Exhibit 10.20
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of December 30,
2002, amends that certain Credit Agreement, dated as of June 27, 2001 (as
amended by the First Amendment to Credit Agreement, dated as of March 28, 2002,
the "Credit Agreement"), among Pinnacle Foods, Inc. (now known as Pennexx Foods,
Inc.), as the Borrower, and Smithfield Foods, Inc., as the Lender.
The Borrower has requested that the Lender make certain changes to the
Credit Agreement and the Lender has agreed to make those changes to the Credit
Agreement as set forth herein.
NOW, THEREFORE, the Borrower and the Lender hereby agree as follows:
A. The Credit Agreement is amended in the following respects:
1. Section 1.1 Defined Terms is hereby amended by revising or adding the
following respective definitions to read in their entireties, as follows:
"Commitment Amount" means $30,000,000 minus the aggregate amount of the
financial obligation of the Lender, if any, as guarantor of any of the Xxxxx
Road Operating Leases.
"Construction Inspector" means an engineer or other professional
selected and retained by the Lender.
"Draw Request" means a Borrowing Request with respect to the Smithfield
Xxxxx Road Loans, in the form of a properly completed and executed written
application by the Borrower (and others as reasonably required by the Lender) to
the Lender on AIA Form G-702 and G-703 (or on another form approved by the
Lender) setting forth the amount of proceeds desired, together with such
applications, schedules, affidavits, releases, waivers, statements, invoices,
bills and other documents, certificates and information in each case as may be
reasonably required by the Lender.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Loan Documents" means, collectively, this Agreement, the Note, the
Security Agreement, the Mortgage, the Xxxxx Road Operating Leases and each other
instrument or document executed and delivered pursuant to or in connection with
this Agreement and the other Loan Documents.
"Mortgage" means the Open End Mortgage and Security Agreement, dated as
of April 2, 2002, from Borrower to Lender, as the same may be amended from time
to time.
"PIDA Xxxxx Road Loans" means in connection with the Xxxxx Road
Property, loans from or through the Philadelphia Industrial Development
Corporation, the Philadelphia Authority for Industrial Development, and/or the
Pennsylvania Industrial Development Authority (including the issuance of
industrial revenue bonds by any such entity), not to exceed Twelve Million
Dollars ($12,000,000) in the aggregate.
"Plans" means any plans and specifications pertaining to the
construction and refurbishing of the improvements located on the Xxxxx Road
Property, as reviewed and approved by the Lender.
"Smithfield Xxxxx Road Loans" means Loans made by the Lender in
accordance with the terms of the Credit Agreement, as amended hereby, in amounts
not to exceed, in the aggregate, (a) $18,300,000 (or such greater amount as
shall be approved by the Lender pursuant to one or more capital appropriation
requests executed after the date of this Second Amendment to Credit Agreement)
minus (b) the aggregate amount of the financial obligation of the Lender, if
any, as guarantor of any of the Xxxxx Road Operating Leases. For the avoidance
of doubt, (i) the Smithfield Xxxxx Road Loans are a part of, and not in addition
to, the Commitment Amount and (ii) the reference to operating leases in this
definition has no effect on the prohibition against the creation, incurrence,
assumption or suffering to exist of any Indebtedness, including, without
limitation, Capitalized Lease Liabilities.
"Xxxxx Road Operating Leases" means the operating leases for equipment
installed at the Xxxxx Road Property for which Borrower is the lessee.
"Xxxxx Road Permitted Financing Transactions" means the Smithfield
Xxxxx Road Loans, the PIDA Xxxxx Road Loans, and the Xxxxx Road Operating
Leases.
"Title Insurance" is defined in Section 5.2.2(b)(iv).
2. Section 2.3 of the Credit Agreement is hereby amended by deleting the text
thereof in its entirety and replacing it with the following:
Section 2.3 Borrowing Procedures.
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(a) With respect to all Loans, other than Smithfield Xxxxx
Road Loans, by delivering a duly completed and executed Borrowing Request to the
Lender on or before 10:00 a.m. (New York City time), on a Business Day, the
Borrower may from time to time irrevocably request that advances be made
pursuant hereto one Business Day thereafter. All such Loans shall be made in a
minimum amount of $100,000 and an integral multiple of $100,000 or, if less, in
the unused amount of the Commitment. The proceeds of all Loans requested
pursuant to this Section 2.3(a) shall be used solely for the purposes described
in the first sentence of Section 4.1.
(b) With respect to Smithfield Xxxxx Road Loans, by delivering
a duly completed and executed Draw Request to the Lender on or before 10:00 a.m.
(New York City time), on a Business Day, the Borrower may from time to time
irrevocably request that advances be made pursuant hereto. The Lender shall,
only upon the satisfaction of all applicable conditions hereof and the other
Loan Documents, make the requested Smithfield Xxxxx Road
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Loan to the Borrower as promptly as practicable, but in any event within five
(5) Business Days after such satisfaction. The proceeds of all Loans requested
pursuant to this Section 2.3(b) shall be used solely for the purposes described
in the second sentence of Section 4.1.
3. Section 4.1 is hereby amended by deleting the text thereof and replacing it
with the following:
Section 4.1 Use of Proceeds. The Borrower shall apply the proceeds of
the Loans requested pursuant to Section 2.3(a) to finance Inventory or
Receivables or for general corporate purposes or, with the Lender's prior
written consent, to purchase machinery and equipment. The Borrower shall apply
the proceeds of the Smithfield Xxxxx Road Loans exclusively (a) to purchase the
Xxxxx Road Property, (b) to refurbish the improvements located on the Xxxxx Road
Property and (c) to purchase and install machinery, equipment and fixtures to be
used and located at the Xxxxx Road Property, subject, however, to the
limitations set forth in Section 7.2.7.
4. Section 5.2.2 is hereby amended by deleting all of the text thereof in its
entirety and replacing it with the following:
Section 5.2.2 Borrowing Requests, Draw Requests, etc.
(a) Loans Other than Smithfield Xxxxx Road Loans. With respect to all
Loans, other than Smithfield Xxxxx Road Loans, the Lender shall have received,
as herein provided, a duly completed and executed Borrowing Request. Each
delivery of a Borrowing Request and the acceptance of the Borrower of the
proceeds of such Loan shall constitute a representation and warranty by the
Borrower that on the date of such Loan (both immediately before and after giving
effect to such Loan and the application of the proceeds thereof) the statements
made in Section 5.2.1 are true and correct.
(b) First Funding of Smithfield Xxxxx Road Loans After Second
Amendment. The obligation of the Lender to fund the first Draw Request under the
Smithfield Xxxxx Road Loans that is requested from the Borrower on or after
December 30, 2002 shall be subject to the prior or concurrent fulfillment of
each of the following conditions precedent to the satisfaction of the Lender:
(i) The Lender shall have received, as herein provided, the
Draw Request executed and certified by the Borrower and accompanied by the
invoices showing amounts to be paid with the proceeds of the Smithfield Xxxxx
Road Loan. Each delivery of a Draw Request and the acceptance of the Borrower of
the proceeds of such Smithfield Xxxxx Road Loan shall constitute a
representation and warranty by the Borrower that on the date of such Smithfield
Xxxxx Road Loan (both immediately before and after giving effect to such
Smithfield Xxxxx Road Loan and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct;
(ii) The Construction Inspector shall have made such
inspection of the work described in the Draw Request as he deems appropriate and
shall have approved the Smithfield Xxxxx Road Loan described in the Draw
Request, such approval not to be unreasonably withheld or delayed;
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(iii) The Borrower shall have executed and delivered to the
Lender an Amended and Restated Mortgage in the form attached hereto as Exhibit
A;
(iv) The Lender shall have received an endorsement to its
policy of mortgagee title insurance (the "Title Insurance") insuring the lien of
the Mortgage, increasing the amount of insurance to Six Million Dollars
($6,000,000) (and acknowledging liability under such Title Insurance in the
amount of $6,000,000 or, alternatively, containing no pending disbursements
clause), which Title Insurance shall be reasonably satisfactory to the Lender
and its counsel, shall provide affirmative coverage against mechanics' and
materialmen's liens, shall insure the right of access and shall not contain any
exceptions that have not been agreed to by Lender and its counsel;
(v) No mechanics' or materialmen's lien or other encumbrance
shall have been filed and remain in effect against the Xxxxx Road Property, and
releases or waivers of mechanics' liens and receipted bills showing payment of
all amounts due to all parties who have furnished materials or services or
performed labor of any kind in connection with the Xxxxx Road Property shall
have been obtained, which releases or waivers may be contingent upon the payment
of amounts from the proceeds of such Smithfield Xxxxx Road Loan and specifically
included in the Draw Request for such Smithfield Xxxxx Road Loan;
(vi) The Xxxxx Road Property shall not have been damaged and
not repaired (unless the Lender determines to its reasonable satisfaction within
thirty (30) days after the occurrence of such damage that such damage is fully
insured, that the insurer will pay the insurance proceeds on a timely basis and
that the Borrower will complete the repair on a schedule which is acceptable to
the Lender and which will not in any event delay the completion date of the
Xxxxx Road Property for a period of more than sixty (60) days); and
(vii) The Borrower shall have provided to the Lender a
schedule of all Xxxxx Road Operating Leases as of the date of such Draw Request.
(c) Interim Funding of Smithfield Xxxxx Road Loans. The obligation of
the Lender to fund each subsequent advance under the Smithfield Xxxxx Road Loans
after funding the first Draw Request pursuant to Section 5.2.2(b) above shall be
subject to the prior or concurrent fulfillment to the Lender's satisfaction of
each of the following conditions precedent as to each such subsequent advance:
(i) The Lender shall have received, as herein provided, the
Draw Request executed and certified by the Borrower and accompanied by the
invoices showing amounts to be paid with the proceeds of the Smithfield Xxxxx
Road Loan. Each delivery of a Draw Request and the acceptance of the Borrower of
the proceeds of such Smithfield Xxxxx Road Loan shall constitute a
representation and warranty by the Borrower that on the date of such Smithfield
Xxxxx Road Loan (both immediately before and after giving effect to such
Smithfield Xxxxx Road Loan and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct;
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(ii) The Construction Inspector shall have made such
inspection of the work described in the Draw Request as he deems appropriate and
shall have approved the Smithfield Xxxxx Road Loan described in the Draw
Request, such approval not to be unreasonably withheld or delayed;
(iii) At the reasonable request of the Lender, the Title
Insurance shall have been endorsed and down-dated in a manner reasonably
satisfactory to the Lender to bring forward the effective date of the Title
Insurance to the date of funding of such Draw Request with no additional title
change or exception objectionable to the Lender;
(iv) No mechanics' or materialmen's lien or other encumbrance
shall have been filed and remain in effect against the Xxxxx Road Property, and
releases or waivers of mechanics' liens and receipted bills showing payment of
all amounts due to all parties who have furnished materials or services or
performed labor of any kind in connection with the Xxxxx Road Property shall
have been obtained, which releases or waivers may be contingent upon the payment
of amounts from the proceeds of such Smithfield Xxxxx Road Loan and specifically
included in the Draw Request for such Smithfield Xxxxx Road Loan;
(v) The Xxxxx Road Property shall not have been damaged and
not repaired (unless the Lender determines to its reasonable satisfaction within
thirty (30) days after the occurrence of such damage that such damage is fully
insured, that the insurer will pay the insurance proceeds on a timely basis and
that the Borrower will complete the repair on a schedule which is acceptable to
the Lender and which will not in any event delay the completion date of the
Xxxxx Road Property for a period of more than sixty (60) days); and
(vi) The Borrower shall have provided to the Lender a schedule
of all Xxxxx Road Operating Leases as of the date of such Draw Request.
(d) Final Funding of Smithfield Xxxxx Road Loan. In addition to the
fulfillment of the conditions precedent contained in Section 5.2.2(c) above, the
obligation of the Lender to fund the final advance under the Smithfield Xxxxx
Road Loans shall be subject to the prior or concurrent fulfillment to the
Lender's satisfaction of each of the following conditions precedent:
(i) The Lender shall have received a certificate from the
Borrower certifying that, to its knowledge, the Xxxxx Road Property has been
completed and the Xxxxx Road Property has been equipped in accordance with, and
as completed complies with all laws and governmental requirements; and, if it is
reasonably available to the Borrower, the Lender shall have received three (3)
sets of detailed "as built" plans approved in writing by the Borrower;
(ii) The Lender shall have received from Borrower final
affidavits (in a form reasonably satisfactory to the Lender) from all
contractors, subcontractors, materialmen and other parties who have supplied
labor, materials or services for the construction of the Xxxxx Road Property and
that are receiving payment for such labor,
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materials or services from the proceeds of the final advance under the
Smithfield Xxxxx Road Loans certifying that such parties have been paid in full
for all labor and materials for construction of the Xxxxx Road Property and
final lien releases or waivers (in a form reasonably satisfactory to the Lender)
from all such parties;
(iii) The Title Insurance shall be endorsed to acknowledge
liability in the full amount of the value of the real property, improvements and
fixtures at the Xxxxx Road Property (if not already so acknowledged), to remove
any exception for mechanics' or materialmen's liens, to remove any "pending
disbursements" clause contained therein, and with no additional title change or
exception objectionable to the Lender and with such other endorsements as the
Lender may reasonably request and permitted by applicable title insurance rules;
(iv) The Lender shall have received a certificate from the
Borrower certifying that, to its knowledge, all laws and governmental
requirements have been satisfied, together with evidence reasonably satisfactory
to the Lender that all necessary governmental licenses, certificates and permits
(including certificates of occupancy) with respect to the completion, use,
occupancy and operation of the Xxxxx Road Property are in full force and effect
and have not been revoked, canceled or modified, except any license, certificate
or permit that cannot be obtained until the Xxxxx Road Property has been in
operation for a period of time, provided that the Borrower certifies that it
knows of no reason that such license, certificate or permit cannot be obtained
after such time; and
(v) The Borrower shall have provided to the Lender a schedule
of all Xxxxx Road Operating Leases as of the date of such Draw Request.
5. Section 7.1 Affirmative Covenants is hereby amended by revising or adding the
following sections to read in their entirety as follows:
The phrase " as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of the Borrower," contained
in Section 7.1.1(a) is hereby deleted and the phrase "contemporaneously with the
filing of the Borrower's Quarterly Report on Form 10-Q or Form 10-QSB with the
Securities and Exchange Commission," is substituted therefor.
Section 7.1.1(a) is hereby amended by adding the following
parenthetical phrase at the end of such subsection : "(it being further
understood that the Borrower shall provide to the Lender a draft of such
financial information not later than five Business Days prior to the date that
the Borrower's Quarterly Report on Form 10-Q or Form 10-QSB is required to be
filed with the Securities and Exchange Commission)"
The phrase " as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Borrower," contained in Section 7.1.1(b) is
hereby deleted and the phrase "contemporaneously with the filing of the
Borrower's Annual Report on Form 10-K or Form 10-KSB with the Securities and
Exchange Commission," is substituted therefor.
Section 7.1.1(b) is hereby amended by adding the following
parenthetical phrase at the end of such subsection : "(it being further
understood that the Borrower shall provide to the Lender a draft of such
financial information not later than five Business Days prior to the date
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that the Borrower's Annual Report on Form 10-K or Form 10-KSB is required to be
filed with the Securities and Exchange Commission)"
The reference to "seven days" contained in Section 7.1.1(i) is hereby
deleted and "10 days" is substituted therefor.
Section 7.1.2 is hereby amended by adding the following clauses (c) and
(d) at the end of such section:
(c) the compliance by the Borrower with its obligations under the
Exchange Act and the rules and regulations promulgated thereunder, including,
without limitation, Section 13(b) of the Exchange Act; and
(d) the compliance by the Borrower with its obligations under the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder.
Section 7.1.9 Xxxxx Road Property Transactions. In connection with the
Smithfield Xxxxx Road Loans, the Borrower agrees to execute and deliver a
mortgage and security agreement in favor of the Lender, which mortgage and
security agreement shall be in form and substance reasonably satisfactory to the
Lender, creating first priority liens on the Xxxxx Road Property and all
fixtures and equipment located at the Xxxxx Road Property. The Borrower shall
apply the proceeds from any PIDA Xxxxx Road Loan to repay the Lender for Loans
made hereunder immediately upon receipt thereof. Upon receipt of such proceeds,
the Lender agrees to execute a subordination and/or intercreditor agreement in
form and substance satisfactory to the Lender and to the lender or lenders
making the PIDA Xxxxx Road Loans (and the purchaser of any industrial revenue
bonds included in the PIDA Xxxxx Road Loans) subordinating the Lender's rights
and priority under the Mortgage to the rights and priority of the liens of the
lender or lenders making the PIDA Xxxxx Road Loans and the purchaser of any such
industrial revenue bonds.
Section 7.1.10 Direct Advances. The Borrower hereby irrevocably
authorizes the Lender (but the Lender shall have no obligation), upon the
occurrence and continuance of a Default or an Event of Default, to advance and
incur such expenses as the Lender reasonably deems necessary for the completion
of the Xxxxx Road Property, the purchase of fixtures and equipment to be located
thereon and to preserve the Xxxxx Road Property and any other security for the
Smithfield Xxxxx Road Loans, and such expenses, even though in excess of the
amount of the Smithfield Xxxxx Road Loans, shall be secured by the Loan
Documents and shall be payable to the Lender on demand. The Lender may disburse
any portion of any Smithfield Xxxxx Road Loans at any time, and from time to
time, to persons other than the Borrower for the purposes specified in this
Section 7.1.10 and the amount of Smithfield Xxxxx Road Loans to which the
Borrower shall thereafter be entitled shall be correspondingly reduced.
Section 7.1.11 Plans. The Borrower assumes full responsibility for the
compliance of the Xxxxx Road Property and all improvements, fixtures and
equipment located thereon with all laws, governmental requirements and sound
building and engineering practices. No plans or specifications shall be included
as part of the Plans until consented to by the Lender, all applicable
governmental authorities and all parties required under the Loan Documents or
otherwise.
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Section 7.1.12 Construction of the Xxxxx Road Property. The Borrower
shall prosecute the construction and equipping of the Xxxxx Road Property with
diligence and continuity, in a good and workmanlike manner, and in accordance
with sound building and engineering practices, all applicable laws and
governmental requirements and the Loan Documents. The Borrower shall complete
construction and equipping of the Xxxxx Road Property free and clear of all
liens, except for liens contemplated by the Loan Documents, and shall obtain an
unconditional certificate of occupancy and all other permits, licenses and
approvals for the occupancy, use and operation of the Xxxxx Road Property from
all applicable governmental authorities, other than any license, certificate or
permit which cannot be obtained until the Xxxxx Road Property has been in
operation for a specific period of time, provided the Borrower has no reason to
believe such license, certificate or permit will not be obtained at the
expiration of such period. In lieu of providing an unconditional certificate of
occupancy, the Borrower may provide a temporary or conditional certificate of
occupancy if it is accompanied by a list of items remaining to be completed or
corrected in order to obtain an unconditional certificate of occupancy together
with a written statement signed by an officer of the Borrower to the effect that
the Borrower is proceeding to complete or correct such items in a timely manner,
and such evidence as the Lender may reasonably request of its ability to do so,
and if the Borrower continues to use its commercially reasonable best efforts to
obtain an unconditional certificate of occupancy and delivers a copy of such
unconditional certificate of occupancy to the Lender within a reasonable time.
The Borrower shall correct promptly (a) any material defect in the improvements,
fixtures or equipment located at the Xxxxx Road Property, (b) any material
departure from any applicable law or governmental requirements, or (c) any
encroachment on any building setback line, easement, property line or restricted
area.
Section 7.1.13 Changes. Without the Lender's prior written consent, the
Borrower shall not change or modify the Plans, agree to any change order or
allow any extras to any contractor or any subcontractor.
Section 7.1.14 Assignment of Contracts and Plans. As additional
security for the payment of the Smithfield Xxxxx Road Loans, the Borrower hereby
collaterally transfers and assigns to the Lender all of the Borrower's rights
and interest, but not its liabilities, in, under and to all construction,
architectural, engineering and design contracts and the Plans. The Borrower
represents and warrants that the copy of any contract furnished or to be
furnished to the Lender is and shall be a true and complete copy thereof as of
the date delivered to the Lender, that there have been no modifications thereof
which are not fully set forth in the copies delivered and that the Borrower's
interest therein is not subject to any claim, setoff or encumbrance. Neither
this assignment nor any action by the Lender shall constitute an assumption by
the Lender of any obligation under any contract or with respect to the Plans,
and the Borrower shall continue to be liable for all obligations of the Borrower
with respect thereto; and the Borrower hereby agrees to perform all of its
obligations under any contract to which it is a party relating to the Xxxxx Road
Property. The Lender shall have the right at any time upon the occurrence and
continuance of a Default or an Event of Default (but shall have no obligation)
to take in its name or in the name of the Borrower such action as the Lender may
determine is necessary to cure any default under any contract or with respect to
the Plans or to protect
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the rights of the Borrower or the Lender with respect thereto. The Lender shall
incur no liability if any action so taken by it or on its behalf shall prove to
be inadequate or invalid. The Borrower indemnifies and holds the Lender harmless
against and from any loss, cost, liability or expense (including, but not
limited to, reasonable attorneys' fees and expenses) incurred in connection with
the Borrower's failure to perform such contracts or any action taken by the
Lender other than any loss, cost, liability or expense arising solely by reason
of the Lender's gross negligence or willful misconduct. Upon the occurrence of a
Default or an Event of Default, the Lender may use the Plans for any purpose
relating to the Xxxxx Road Property. The Borrower irrevocably constitutes and
appoints the Lender as the Borrower's attorney-in-fact, which power of attorney
shall be irrevocable and coupled with an interest, in the Borrower's name or in
the Lender's name to enforce all rights of the Borrower under any contract or
with respect to the Plans; provided, however, that the Lender shall not exercise
its rights as attorney-in-fact until and unless a Default or an Event of Default
shall have occurred and be continuing. The rights of the Lender set forth in
this Section 7.1.14 (including, without limitation, the collateral transfer and
assignment set forth in the first sentence hereof and the power of attorney
granted in the previous sentence) shall be null and void and of no force or
effect upon completion of (a) the purchase of the Xxxxx Road Property, (b) the
refurbishing of the improvements located on the Xxxxx Road Property and (c) the
purchase and installation of the machinery, equipment and fixtures to be used
and located at the Xxxxx Road Property.
Section 7.1.15 Reports and Vouchers. The Borrower shall (a) promptly
deliver to the Lender copies of all reports, studies, inspections and tests made
on the Xxxxx Road Property or any materials to be incorporated into the Xxxxx
Road Property; (b) make additional tests the Lender reasonably requires; and (c)
deliver to the Lender on demand any contracts, bills of sale, statements,
receipted vouchers or agreements under which the Borrower claims title to any
equipment or other materials, fixtures or articles incorporated or to be
incorporated in the Xxxxx Road Property or otherwise subject to a lien or
security interest in favor of the Lender. The Borrower shall immediately notify
the Lender of such report, study, inspection or test that indicates any
materially adverse condition in the Xxxxx Road Property.
Section 7.1.16 Final Affidavits; Lien Release and Waivers. The Borrower
shall use its good faith reasonable efforts to obtain and provide to Lender (a)
affidavits (in a form reasonably satisfactory to the Lender) from all
contractors, subcontractors, materialmen and other parties who have supplied
labor, materials or services for the construction of the Xxxxx Road Property and
that have been paid in full for such labor, materials or services prior to
December 30, 2002, certifying that such parties have been paid in full for all
labor, materials and services for construction of the Xxxxx Road Property and
(b) lien releases or waivers (in a form reasonably satisfactory to the Lender)
from all such parties.
6. Section 7.2.7 Capital Expenditures, etc. is hereby amended by revising the
final sentence thereof to read as follows:
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Notwithstanding the foregoing and provided that no Default or Event of Default
shall have occurred and be continuing, the Borrower shall be permitted to make
Capital Expenditures in connection with the Xxxxx Road Property in amounts not
to exceed $18,300,000 in connection with (a) the purchase of the Xxxxx Road
Property, (b) the refurbishing of the improvements located on the Xxxxx Road
Property and (c) the purchase and installation of the machinery, equipment and
fixtures to be used and located at the Xxxxx Road Property, provided that
evidence of such Capital Expenditures shall be provided to the Lender in
accordance with the terms of the Credit Agreement as amended hereby.
7. Section 7.2.13 is hereby amended by adding the following language at the end
of the parenthetical phrase contained therein: ("and any agreements executed by
Borrower pursuant to any of the Xxxxx Road Permitted Financing Transactions)".
8. Notwithstanding anything contained in the Credit Agreement or in this Second
Amendment to Credit Agreement, Borrower is hereby authorized to enter into the
Xxxxx Road Operating Leases in an aggregate amount not to exceed $12,100,000.
B. The Borrower represents and warrants that, as of the date hereof, no Default
or Event of Default has occurred and is continuing. Except as expressly amended
hereby, the Borrower acknowledges and confirms that the Credit Agreement and the
Borrower's obligations under the Loan Documents remain in full force and effect.
C. Notwithstanding any previous waivers, indulgences or forbearance extended by
the Lender to the Borrower, the Borrower hereby agrees to strictly comply with
all of the provisions of this Agreement and the other Loan Documents.
D. This Second Amendment to Credit Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original.
E. This Second Amendment to Credit Agreement and the Credit Agreement, as
amended hereby, shall be deemed to be contracts made under, and for all purposes
shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to Credit Agreement as of the day and year first above written.
SMITHFIELD FOODS, INC., PENNEXX FOODS, INC.,
a Virginia corporation a Pennsylvania corporation,
f/k/a Pinnacle Foods, Inc.
By: /s/ Xxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------- --------------------------
Name: Xxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President and Title: President
Chief Financial Officer
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Exhibit A
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Amended and Restated Mortgage
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[intentionally omitted]
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