EXHIBIT 4.3(a)
SMITHFIELD FOODS, INC.
AMENDMENT AGREEMENT NO. 1
As of December 7, 2001
To each of the Current Holders
Named in Annex 1 hereto
Ladies and Gentlemen:
Smithfield Foods, Inc., a Virginia corporation (together with its
respective successors and assigns, the "Issuer") agrees with you as follows:
1. PRELIMINARY STATEMENTS.
1.1. Note Issuance, etc.
The Issuer issued and sold:
(a) One Hundred Million Dollars ($100,000,000) in aggregate principal
amount of 7.89% Series I Senior Secured Notes due October 1, 2009 (as they
may be amended, restated or otherwise modified from time to time, the
"Series I Notes");
(b) Fifty Million Dollars ($50,000,000) in aggregate principal amount
of its Variable Rate Series J Senior Secured Notes due October 1, 2009 (as
they may be amended, restated or otherwise modified from time to time, the
"Series J Notes");
(c) Fifty Million Dollars ($50,000,000) in aggregate principal amount
of its 8.44% Series K Senior Secured Notes due October 1, 2009 (as they may
be amended, restated or otherwise modified from time to time, the "Series K
Notes");
(d) Fifty Million Dollars ($50,000,000) in aggregate principal amount
of its LIBOR Rate Series L Senior Secured Notes due October 1, 2009 (as
they may be amended, restated or otherwise modified from time to time, the
"Series L Notes"); and
Annex 1-1
pursuant to those separate Note Purchase Agreements each dated as of October 27,
1999 between the Issuer and the purchasers named in Annex 1 thereto (the
"Existing Purchase Agreements"). The register kept by the Issuer for the
registration and transfer of the Notes indicates that each of the Persons named
in Annex 1 hereto (collectively, the "Current Holders") is currently a holder of
the aggregate principal amount of the Notes indicated in such Annex.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Existing Purchase Agreements.
3. AMENDMENTS TO EXISTING PURCHASE AGREEMENTS; PREPAYMENT.
3.1 Amendments.
Subject to Section 5, the Current Holders and the Issuer hereby agree to
each of the amendments to the Current Holders' rights with respect to the
Existing Purchase Agreements as provided for by this Amendment Agreement No. 1
(this "Amendment Agreement") in the manner specified in Exhibit A. Such
amendments are referred to herein, collectively, as the "Amendments".
4. REPRESENTATIONS AND WARRANTIES OF THE ISSUER.
To induce you to enter into this Amendment Agreement and to consent to the
Amendments, the Issuer represents and warrants as follows:
4.1. Material Adverse Effect.
Since the date of the last audited consolidated financial statements of the
Issuer delivered to each of the Current Holders, no event has occurred or
condition exists which has had, or could reasonably be expected to have, a
Material Adverse Effect.
4.2. Organization, Power and Authority, etc.
The Issuer is duly organized and validly existing under the laws of its
jurisdiction of organization and has all requisite corporate power and authority
to enter into and perform its obligations under this Amendment Agreement.
4.3. Legal Validity.
Annex 1-2
The execution and delivery of this Amendment Agreement by the Issuer and
compliance by the Issuer with its obligations hereunder: (a) are within the
corporate powers, of the Issuer; and (b) are legal and do not conflict with,
result in any breach of, constitute a default under, or result in the creation
of any Lien upon any Property of the Issuer under the provisions of: (i) any
charter instrument or bylaw to which the Issuer is a party or by which the
Issuer or any of its Property may be bound; (ii) any order, judgment, decree or
ruling of any court, arbitrator or governmental authority applicable to the
Issuer or its Property; or (iii) any agreement or instrument to which the Issuer
is a party or by which the Issuer or any of its Property may be bound or any
statute or other rule or regulation of any governmental authority applicable to
the Issuer or its Property, except where such conflict, breach or default could
not reasonably be expected to have a Material Adverse Effect.
This Amendment Agreement has been duly authorized by all necessary action
on the part of the Issuer, has been executed and delivered by a duly authorized
officer of the Issuer, and constitutes a legal, valid and binding obligation of
the Issuer, enforceable in accordance with its terms, except that enforceability
may be limited by applicable bankruptcy, reorganization, arrangement,
insolvency, moratorium, or other similar laws affecting the enforceability of
creditors' rights generally and subject to the availability of equitable
remedies.
4.4. No Defaults.
After giving effect to the Amendments set forth in this Amendment
Agreement, no Default or Event of Default will exist.
4.5. Credit Agreement.
All representations and warranties of the Issuer in the Credit Agreement
are true and correct in all material respects.
5. EFFECTIVENESS OF AMENDMENTS.
5.1. Conditions.
The Amendments shall become effective as of the first date written above
(the "Effective Date"), if at all, at such time as all of the Current Holders
shall have indicated their written consent to such amendments by executing and
delivering the applicable counterparts of this Amendment Agreement. It is
understood that any Current Holder may withhold its consent for any reason, and
that, without limitation of the foregoing, any Current Holder hereby makes the
granting of its consent contingent upon delivery to it of the following:
Annex 1-3
(a) true and correct copies of the fully executed Multi-Year Credit
Agreement among the Issuer, certain of its subsidiaries, JP Morgan Chase
Bank as administrative agent and the lenders party thereto dated as of
December 7, 2001 (the "Credit Agreement");
(b) the Current Holders shall have received from the Issuer an
executed Intercreditor Agreement by and among the Issuer, each of the
subsidiaries of the Issuer identified therein under the caption "Subsidiary
Guarantors", each of the banks and other financial institutions identified
therein under the caption "Initial Lenders", JP Morgan Chase Bank in its
capacity as administrative agent and in its capacity as collateral agent,
each of the Current Holders, and First Union National Bank as security
trustee, in form and substance satisfactory to the Current Holders;
(c) the payment of the expenses to be paid on behalf of the Current
Holders pursuant to Section 6 of this Amendment Agreement (to the extent a
statement therefore has been presented to the Issuers on or prior to the
Effective Date);
(d) the Current Holders shall have received from each of the
guarantors to the Credit Agreement (the "Additional Guarantors"), a fully
executed Guaranty, in form and substance satisfactory to the Current
Holders, unconditionally guaranteeing in full the obligations of the Issuer
under or in respect of the Notes and Existing Purchase Agreements; and
(e) the Current Holders shall have received from special counsel to
the Additional Guarantors, a closing opinion, dated as of the Effective
Date, and in form and substance satisfactory to the Current Holders. This
Section 4.3(e) shall constitute direction by each of the Additional
Guarantors to such counsel to deliver such closing opinion to the Current
Holders.
5.2. Agreement and Reaffirmation of each Guarantor.
By their execution and delivery of this Amendment Agreement, each Guarantor
agrees and consents to the Amendments and reaffirms its obligation to
unconditionally guaranty in full all of the obligations of the Issuer under or
in respect of the Notes and the Existing Purchase Agreements as amended hereby
under its Joint and Several Guaranty dated as of October 27, 1999, as the same
may be amended, restated, modified or supplemented from time to time.
6. EXPENSES.
Annex 1-4
Whether or not the Amendments become effective, the Issuer will promptly
(and in any event within thirty (30) days of receiving any statement or invoice
therefor) pay all fees, expenses and costs relating to this Amendment Agreement,
including, but not limited to, the reasonable fees of your special counsel,
Bingham Dana LLP, incurred in connection with the preparation, negotiation and
delivery of this Amendment Agreement and any other documents related thereto.
Nothing in this Section shall limit the Issuer's obligations pursuant to Section
1.5 of the Existing Purchase Agreements.
7. MISCELLANEOUS.
7.1. Part of Existing Purchase Agreements; Future References, etc.
This Amendment Agreement shall be construed in connection with and as
a part of the Existing Purchase Agreements and, except as expressly amended
by this Amendment Agreement, all terms, conditions and covenants contained
in the Existing Purchase Agreements are hereby ratified and shall be and
remain in full force and effect. Any and all notices, requests,
certificates and other instruments executed and delivered after the
execution and delivery of this Amendment Agreement may refer to the
Existing Purchase Agreements without making specific reference to this
Amendment Agreement, but nevertheless all such references shall include
this Amendment Agreement unless the context otherwise requires.
7.2. Counterparts.
This Amendment Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by all,
of the parties hereto.
7.3. Governing Law.
THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE
COMMONWEALTH OF VIRGINIA EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF
SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION
OTHER THAN VIRGINIA.
Annex 1-5
If you are in agreement with the foregoing, please so indicate by signing
the acceptance below on the accompanying counterpart of this agreement and
returning it to the Issuer, whereupon it will become a binding agreement among
you and the Issuer.
SMITHFIELD FOODS, INC.
By:/s/ Daniel G. Stevens
---------------------
Name: Daniel G. Stevens
Title: Vice President
Annex 1-6
The foregoing Amendment Agreement is hereby accepted as of the date first
above written.
CAPE FEAR FARM CREDIT, ACA
By: /s/ Randy T. Pope
-----------------
Name: Randy T. Pope
Title: Assistant Vice President
JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ Scott A. McFetridge
-----------------------
Name: Scott A. McFetridge
Title: Managing Director
JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY
By: /s/ Scott A. McFetridge
-----------------------
Name: Scott A. McFetridge
Title: Managing Director
INVESTORS PARTNER LIFE
INSURANCE COMPANY
By: /s/ Scott A. McFetridge
-----------------------
Name: Scott A. McFetridge
Title: Authorized Signatory
Annex 1-7
COMMONWEALTH OF PENNSYLVANIA STATE
EMPLOYEES' RETIREMENT SYSTEM
By: John Hancock Life Insurance
Company, as Investment Advisor
By: /s/ David E. Johnson
---------------------
Name: David E. Johnson
Title: Authorized Signatory
JOHN HANCOCK LIFE INSURANCE COMPANY
(On behalf of Private Placement
Separate Account 1Z)
By: /s/ Scott A. McFetridge
-----------------------
Name: Scott A. McFetridge
Title: Authorized Signatory
MELLON BANK, N.A., solely in its
capacity as Trustee for the BELL
ATLANTIC MASTER TRUST, (as directed
by John Hancock Financial Services,
Inc.), and not in its individual
capacity
By: /s/ Bernadette Rist
--------------------
Name: Bernadette Rist
Title: Authorized Signatory
Annex 1-8
THE NORTHERN TRUST COMPANY,
AS TRUSTEE OF THE LUCENT
TECHNOLOGIES INC.
MASTER PENSION TRUST
By: John Hancock Life Insurance
Company, as Investment Manager
By: /s/ Scott A. McFetridge
-----------------------
Name: Scott A. McFetridge
Title: Authorized Signatory
SIGNATURE 4 LIMITED
By: John Hancock Life Insurance
Company, as Portfolio Advisor
By: /s/ David E. Johnson
--------------------
Name: David E. Johnson
Title: Authorized John Hancock
Officer
SIGNATURE 1A (CAYMAN), LTD.
By: John Hancock Life Insurance
Company, Portfolio Advisor
By: /s/ Scott A. McFetridge
-----------------------
Name: Scott A. McFetridge
Title: Authorized John Hancock
Officer
Annex 1-9
MELLON BANK, N. A., solely in its
capacity as Trustee for the LONG-TERM
INVESTMENT TRUST, (as directed by John
Hancock Financial Services, Inc.),
and not in its individual capacity
By: /s/ Bernadette Rist
-------------------
Name: Bernadette Rist
Title: Authorized Signatory
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY AMERICAN GENERAL LIFE INSURANCE
COMPANY
By: American General Investment
Management, L.P.
By: American General Investment
Management Corporation, it
general partner
By: /s/ Lochlan O. McNew
--------------------
Name: Lochlan O. McNew
Title: Senior Vice President
Annex 1-10
The undersigned consent to the Amendments effected by the foregoing
Amendment Agreement.
MURPHY FARMS LLC
CIRCLE FOUR LLC
BROWN'S OF CAROLINA, LLC
CARROLL'S FOODS LLC
SMITHFIELD PACKING REAL ESTATE, LLC
BROWN'S FARMS, LLC
MURPHY-BROWN LLC
QUARTER M LLC,
each a Delaware limited liability company
By MURPHY-BROWN LLC,
a Delaware corporation,
as its sole member of each
By JOHN MORRELL & CO.,
a Delaware corporation,
as its sole member
/s/ Daniel G. Stevens
---------------------
Daniel G. Stevens
Vice President
GWALTNEY OF SMITHFIELD, LTD.
JOHN MORRELL & CO.
THE SMITHFIELD PACKING COMPANY, INCORPORATED
SFFC, INC.
PATRICK CUDAHY INCORPORATED
CARROLL'S REALTY, INC.
CARROLL'S REALTY PARTNERSHIP
NORTH SIDE FOODS CORP.
LYKES MEAT GROUP, INC.
SMITHFIELD-CARROLL'S FARMS
CENTRAL PLAINS FARMS, INC.
By:/s/ Daniel G. Stevens
---------------------
Daniel G. Stevens
Vice President
Annex 1-11
Exhibit A
AMENDMENTS TO EXISTING PURCHASE AGREEMENTS
1. Section 6.9 of the Existing Purchase Agreements is hereby amended and
restated in its entirety to read as follows:
"6.9 Restrictions on Dividends, etc.
The Company shall not, and shall not permit any Subsidiary to, create
or otherwise cause or suffer to exist or become effective any restriction
or encumbrance (other than statutory, regulatory or common law
restrictions) on the right or power of any Subsidiary to
(a) pay dividends or make any other distributions on such Subsidiary's
stock to the Company or any Subsidiary,
(b) pay any indebtedness owed by such Subsidiary to the Company or any
Subsidiary,
(c) make loans or pay advances to the Company or any Subsidiary, or
(d) transfer any of its Property to the Company or any Guarantor;
provided, however, that:
(x) a Subsidiary may be subject to an encumbrance or restriction
described in subsection (d) above if such encumbrance or restriction (i)
restricts in a customary manner the subletting, assignment or transfer of
any property or asset that is subject to a lease, license, or similar
contract, (ii) exists by virtue of any transfer of, agreement to transfer,
option, or right with respect to, any property or assets of the Company or
any Subsidiary not otherwise prohibited by this Note Purchase Agreement, or
(iii) is contained in a security agreement, mortgage or other similar
document securing Debt of the Company or any Subsidiary that is permitted
hereunder to the extent such restriction or encumbrance restricts the
transfer of the property subject to such agreement, or (iv) ordinary course
provisions restricting the assignability of contracts;
(y) a Subsidiary may be subject to restrictions on the payment of
dividends or the making of other distributions on its
Exhibit A-1
stock to the Company or the other Subsidiaries so long as such restrictions
permit the payment of such dividends and the making of such other
distributions that are necessary in order to make any and all payments due
(including, without limitation, any and all amounts due by way of
acceleration, required or optional prepayment or otherwise) in connection
with the Notes, the Note Purchase Agreements and the other Financing
Documents, and any and all indebtedness used to refinance or repay such
indebtedness (without increase as to principal amount or interest rate of
such refinancing indebtedness); and
(z) a Subsidiary may be subject to any such encumbrance and
restriction that is not otherwise allowed under subsections (x) and (y)
above, so long as the aggregate contributions to Consolidated EBITDA for
the period of four (4) fiscal quarters then most recently ended of all
Subsidiaries subject to such encumbrances and restrictions that are not
otherwise allowed under subsections (x) and (y) above, are less than or
equal to fifteen percent (15%) of such Consolidated EBITDA; such
contribution shall be based on the earnings before interest, taxes,
depreciation and amortization of each such Subsidiary for such fiscal
year."
2. The following definitions in Section 9.1 of the Existing Purchase
Agreements are hereby amended and restated read as follows:
"Credit Facility -- means that certain Multi-Year Credit Agreement
among the Company, certain of the Subsidiaries, JP Morgan Chase Bank as
administrative agent and the lenders party thereto, providing for an
aggregate amount of up to seven hundred fifty million dollars
($750,000,000) in loans to the Company, as it may be amended, supplemented,
or modified from time to time and any renewal, increase, extension,
refunding, restructuring, replacement or refinancing thereof (whether with
the original administrative agent and lenders or another administrative
agent or agents or one or more other lenders and whether provided under the
original Multi-Year Credit Agreement or one or more other credit or other
agreements)."
Exhibit A-2