EXHIBIT 4.6
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SMITHFIELD FOODS, INC.
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AMENDMENT NUMBER ONE
TO NOTE PURCHASE AGREEMENT DATED AS OF JULY 15, 1996
AMENDMENT DATED AS OF JULY 15, 1997
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AMENDMENT NUMBER ONE
AMENDMENT NUMBER ONE (this "Agreement"), dated as of July 15, 1997, to
the separate Note Purchase Agreements, each dated as of July 15, 1996, between
SMITHFIELD FOODS, INC., a Delaware corporation (the "Company") and each of the
Persons listed on Annex 1 thereto (collectively, the "Purchasers").
RECITALS:
A. The Company entered into those certain separate Note Purchase
Agreements, each dated as of July 15, 1996, (as amended from time to time and as
in effect immediately prior to the effectiveness of this Agreement, the
"Existing Note Purchase Agreement," and, as amended by this Agreement, the
"Amended Note Purchase Agreement"), with the Purchasers, pursuant to which the
Company authorized, issued and sold, and certain of the Purchasers purchased (as
set forth on Annex 1 thereto):
(a) $2,825,000 in aggregate principal amount of its six and
twenty-four one-hundredths percent (6.24%) Series A Senior Secured
Notes Due November 1, 1998 (as amended, restated or otherwise modified
from time to time, the "Series A Notes"),
(b) $9,852,942 in aggregate principal amount of its eight and
forty-one one-hundredths percent (8.41%) Series B Senior Secured Notes
Due August 1, 2006 (as amended, restated or otherwise modified from
time to time, the "Series B Notes"),
(c) $40,000,000 in aggregate principal amount of its eight and
thirty-four one-hundredths percent (8.34%) Series C Senior Secured
Notes Due August 1, 2003 (as amended, restated or otherwise modified
from time to time, the "Series C Notes"),
(d) $9,000,000 in aggregate principal amount of its nine and
eighty one-hundredths percent (9.80%) Series D Senior Secured Notes Due
August 1, 2003 (as amended, restated or otherwise modified from time to
time, the "Series D Notes"),
(e) $9,250,000 in aggregate principal amount of its ten and
seventy five one-hundredths percent (10.75%) Series E Senior Secured
Notes Due August 1, 2005 (as amended, restated or otherwise modified
from time to time, the "Series E Notes"),
(f) $100,000,000 in aggregate principal amount of its eight
and fifty-two one-hundredths percent (8.52%) Series F Senior Secured
Notes Due August 1, 2006 (as amended, restated or otherwise modified
from time to time, the "Series F Notes"),
(g) $14,000,000 in aggregate principal amount of its nine and
eighty-five one-hundredths percent (9.85%) Series G Senior Secured
Notes Due November 1, 2006 (as amended, restated or otherwise modified
from time to time, the "Series G Notes"), and
(h) $14,779,412 in aggregate principal amount of its eight and
forty-one-hundredths percent (8.41%) Series H Senior Secured Notes Due
August 1, 2004 (as amended, restated or otherwise modified from time to
time, the "Series H Notes").
The Series A Notes, the Series B Notes, the Series C Notes, the Series D Notes,
the Series E Notes, the Series F Notes, the Series G Notes and the Series H
Notes are herein referred to, individually, as a "Note," and collectively, as
the "Notes".
B. As of the Effective Date (defined below), the Purchasers are the
holders of all of the outstanding Notes; the holders of the Notes on the
Effective Date are herein referred to as the "Holders."
C. Gwaltney of Smithfield, Ltd., John Morrell & Co., The Smithfield
Packing Company, Incorporated, SFFC, Inc., Patrick Cudahy Incorporated and
Brown's of Carolina, Inc. (collectively, the "Guarantors"), each a Wholly-Owned
Subsidiary, are guarantors of the obligations of the Company in respect of,
among other things, the Notes, pursuant to that certain Joint and Several
Guaranty dated as of July 15, 1996.
D. The Company has requested that the Holders agree to amend certain
provisions of the Existing Note Purchase Agreement.
E. Subject to the terms and conditions set forth in this Agreement, the
Company and the Holders are willing to agree to amend the Existing Note Purchase
Agreement in the manner specified on certain Exhibits hereto and as more
particularly set forth herein.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Holders agree as follows:
SECTION 1. WARRANTIES AND REPRESENTATIONS.
To induce the Holders to enter into this Agreement, the Company and
each of the Guarantors represent and warrant to each of the Holders that as of
the Effective Date (as hereinafter defined):
1.1 Corporate Organization and Authority.
The Company and each Subsidiary:
(a) is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation;
(b) has all legal and corporate power and authority to own and
operate its Properties and to carry on its business as now conducted
and as presently proposed to be conducted;
(c) has all necessary licenses, certificates and permits to
own and operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted, except where the
failure to have such licenses, certificates and permits, in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect; and
(d) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
corporation, in each state in the United States of America and in each
other jurisdiction where the failure to be so qualified or licensed and
authorized and in good standing, in the aggregate for all such
failures, could reasonably be expected to have a Material Adverse
Effect.
1.2 Authorization, etc.
(a) This Agreement has been duly authorized by all necessary
corporate action on the part of the Company and each of the Guarantors.
Each of this Agreement, the Amended Note Purchase Agreement and each
other Financing Document (as defined in the Amended Note Purchase
Agreement, the "Financing Documents") constitutes a legal, valid and
binding obligation of the Company or the Guarantors, as applicable,
enforceable, in each case, against the Company or such Guarantor, as
applicable, in accordance with its terms, except as such enforceability
may be limited by
(i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(b) The Holders are the record owners of all of the
outstanding Notes.
1.3 Litigation.
There are no proceedings pending, or, to the knowledge of the Company
or the Guarantors, threatened, against or affecting the Company, any Guarantor
or any other Subsidiary, or any of their respective Properties in any court or
before any governmental authority or arbitration board or tribunal that, either
individually or in the aggregate, conflict with or interfere with the ability of
the Company or any of the Guarantors to execute and deliver this Agreement and
to perform their respective obligations hereunder, under the Amended Note
Purchase Agreement and under each of the other Financing Documents.
1.4 No Conflicts, etc.
The execution and delivery by the Company and the Guarantors of this
Agreement and the performance by the Company and the Guarantors of their
respective obligations under each of this Agreement, the Amended Note Purchase
Agreement and the other Financing Documents to which they are a party do not
conflict with, result in any breach in any of the provisions of, constitute a
default under, violate or result in the creation of any Lien upon any Property
of the Company or any Subsidiary under the provisions of:
(a) any charter document, agreement with shareholders or
bylaws of the Company or any Subsidiary;
(b) any agreement, instrument or conveyance by which the
Company or any Subsidiary or any of their respective Properties may be
bound or affected; or
(c) any statute, rule or regulation or any order, judgment or
award of any court, tribunal or arbitrator by which the Company or any
Subsidiary or any of their respective Properties may be bound or
affected.
1.5 Governmental Consent.
The execution and delivery by the Company and the Guarantors of this
Agreement and the performance by the Company and the Guarantors of their
respective obligations hereunder, under the Amended Note Purchase Agreement and
the other Financing Documents to which they are a party do not require any
consents, approvals or authorizations of, or filings, registrations or
qualifications with, any governmental authority on the part of the Company or
any Subsidiary under the circumstances and conditions contemplated by this
Agreement, the Amended Note Purchase Agreement or the other Financing Documents.
1.6 Compliance with Law.
Neither the Company nor any Subsidiary:
(a) is in violation of any law, ordinance, governmental rule
or regulation to which it is subject; or
(b) has failed to obtain any license, permit, franchise or
other governmental authorization necessary to the ownership of its
Property or to the conduct of its business;
which violation or failure to obtain might, either individually or in the
aggregate, have a material adverse effect on the business, prospects, profits,
Properties or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or the ability of the Company or the Guarantors
to perform any of their respective obligations set forth in this Agreement, the
Amended Note Purchase Agreement or the other Financing Documents.
1.7 Existence of Defaults.
Immediately prior to, and after giving effect to, the Note Purchase
Agreement Amendment (as such term is defined in Section 2 hereof), no condition
exists that would constitute a Default or an Event of Default under the Note
Purchase Agreement or the Amended Note Purchase Agreement, as the case may be.
1.8 Disclosure.
Neither this Agreement nor any written statement furnished by the
Company or any Guarantor to any Holder in connection herewith contains any
untrue statement of a material fact or omits a material fact necessary to make
the statements contained therein or herein not misleading. There is no fact that
the Company has not disclosed to the Holders in writing that has had or, so far
as the Company can now reasonably foresee, could reasonably be expected to have
a material adverse effect on the business, prospects, profits, Properties or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or the ability of the Company or any Guarantor to perform any of their
respective obligations set forth in this Agreement, the Amended Note Purchase
Agreement or the other Financing Documents.
1.9 True and Correct Copies.
The Company has delivered to the Holders or their special counsel true
and correct copies of (i) the Five-Year Credit Agreement dated as of July 15,
1997, among the Company, certain of the Subsidiaries, certain lenders (the
"Five-Year Lenders"), and The Chase Manhattan Bank, as agent for the Five-Year
Lenders (the "Five-Year Credit Agreement"), and (ii) the 364-day Credit
Agreement among the Company, certain of the Subsidiaries, certain lenders (the
"364-Day Lenders"), and The Chase Manhattan Bank, as agent for the 364-Day
Lenders (the "364-Day Credit Agreement" and, together with the Five-Year Credit
Agreement, the "Credit Agreements"), including all schedules and exhibits to the
Credit Agreements and all agreements delivered in connection with the Credit
Agreements as in effect on the Effective Date (the Five Year Credit Agreement
and the 364-Day Credit Agreement herein collectively referred to as "Credit
Agreements").
SECTION 2. AMENDMENT TO EXISTING DOCUMENTS; AFFIRMATION.
2.1 Amendment to Existing Documents.
The Company and the Guarantors, and, subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Holders, each hereby consent and
agree that:
(a) the Existing Note Purchase Agreement is hereby amended in the
manner and as specified in Exhibit A to this Agreement (such amendment provided
for in Exhibit A is herein collectively referred to as the "Note Purchase
Agreement Amendment"); and
(b) Section 2.18 of the Joint and Several Guaranty is hereby amended to
read in full as follows:
"(a) Notwithstanding anything in Section 2.1 or elsewhere in
this Guaranty or any other Financing Document to the contrary, the
obligations of each Guarantor under this Guaranty shall at each point
in time be limited to an aggregate amount equal to the greatest amount
that would not result in such obligations being subject to avoidance,
or otherwise result in such obligations being unenforceable, at such
time under applicable law (including, without limitation, to the
extent, and only to the extent, applicable to each Guarantor, Section
548 of the Bankruptcy Code of the United States of America and any
comparable provisions of the law of any other jurisdiction, any capital
preservation law of any jurisdiction and any other law of any
jurisdiction that at such time limits the enforceability of the
obligations of such Guarantor under this Guaranty).
(b) For purposes of determining the obligations of the
Guarantors under this Guaranty it shall be assumed that: (i) any and
all stated obligations of any one or more of Guarantors in favor of one
or more commercial banks existing at any time on or after the Closing
Date and prior to July 15, 1997 were fully satisfied with the proceeds
of loans made under the Credit Facility and such loans were made on the
Closing Date; (ii) the Guarantors received $350,000,000 of the proceeds
of loans made pursuant to the Credit Facility on the Closing Date and
such loans remained outstanding at all times after the Closing Date
until all obligations under the Credit Facility shall have been fully
satisfied; and (iii) on the Closing Date the Guarantors were relieved
of obligations in an aggregate amount equal to the aggregate principal
amounts of the Notes issued on the Closing Date in consideration for
such Guarantors entering into this Guaranty."
2.2 Affirmation of Obligations under Amended Note Purchase Agreement
and Notes.
The Company hereby acknowledges and affirms all of its obligations
under the terms of the Amended Note Purchase Agreement, the Notes and each of
the other Financing Documents to which it is a party.
2.3 Affirmation of Obligations under Joint and Several Guaranty and
Financing Documents.
Each of the Guarantors hereby acknowledges and affirms all of its
obligations under the terms of the Joint and Several Guaranty and each other
Financing Document to which it is a party.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF NOTE PURCHASE AGREEMENT AMENDMENT.
The Note Purchase Agreement Amendment shall not become effective unless
all of the following conditions precedent shall have been satisfied in full on
or before 5:00 p.m. (Hartford, Connecticut time) on July 15, 1997 (the date of
such satisfaction being herein referred to as the "Effective Date"):
3.1 Execution and Delivery of this Agreement.
The Company and each of the Guarantors shall have executed and
delivered to each of the Holders an original counterpart of this Agreement.
3.2 No Defaults; Warranties and Representations True.
No Default or Event of Default shall exist, and the warranties and
representations set forth in Section 1 hereof shall be true and correct on the
Effective Date.
3.3 Authorization of Transactions.
The Company and each of the Guarantors shall have authorized, by all
necessary corporate action, the execution and delivery of this Agreement and the
performance of all obligations of, and the satisfaction of all conditions
pursuant to this Section 3 by, and the consummation of all transactions
contemplated by the Amended Note Purchase Agreement and the other Financing
Documents by, the Company and each of the Guarantors.
3.4 Intercreditor Agreement; Additional Guaranties.
(a) The lenders party to the Credit Agreements on the Effective Date
shall have entered into an intercreditor agreement with the Holders in form and
substance satisfactory to the Holders.
(b) The Company shall have caused certain of its Subsidiaries to have
executed and delivered the Joint and Several Guaranty substantially in the form
of Exhibit C hereto.
3.5 Legal Opinions.
The Holders shall have received legal opinions as to such matters as
the Holders and their special counsel shall request in connection with the
transactions contemplated by this Agreement.
3.6 Expenses.
The Company shall have paid all costs and expenses of the Holders
relating to this Agreement in accordance with Section 4.5 hereof.
3.7 Confirmation of Holders' Satisfaction.
Each of the Holders shall have delivered to the Company a written
statement substantially in the form of Exhibit B hereto (and the Company shall
have acknowledged and agreed to such statement) confirming such Holder's
satisfaction with respect to the conditions specified in this Section 3.
SECTION 4. MISCELLANEOUS.
4.1 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, INTERNAL VIRGINIA LAW, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
4.2 Duplicate Originals.
Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed in one or
more counterparts and shall be effective when at least one counterpart shall
have been executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall constitute one duplicate
original.
4.3 Waivers and Amendments.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
4.4 Section Headings.
The titles of the Sections hereof appear as a matter of convenience
only, do not constitute a part of this Agreement and shall not affect the
construction hereof.
4.5 Costs and Expenses.
The Company shall pay all costs and expenses of the Holders relating to
this Agreement, including, but not limited to, the statement for reasonable fees
and disbursements of the Holders' special counsel presented to the Company on
the Effective Date. The Company will also pay, upon receipt thereof, each
additional statement for reasonable fees and disbursements of the Holders'
special counsel rendered after the Effective Date in connection with this
Agreement or the Financing Documents.
4.6 Survival.
All warranties, representations, certifications and covenants made by
the Company or any of the Guarantors in this Agreement shall be considered to
have been relied upon by the Holders and shall survive the execution and
delivery of this Agreement, regardless of any investigation made by or on behalf
of the Holders.
4.7 Time of Essence.
Time is and shall be of the essence in the satisfaction of all the
conditions set forth in Section 3 of this Agreement.
4.8 Defined Terms.
Capitalized terms used herein and not defined herein shall have the
meanings assigned to them in the Amended Note Purchase Agreement.
[Remainder of page intentionally left blank; next page is signature page.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by a duly authorized officer or agent
thereof.
SMITHFIELD FOODS, INC.
By:________________________________
Name:
Title:
GWALTNEY OF SMITHFIELD, LTD.
By________________________________
Name:
Title:
JOHN MORRELL & CO.
By________________________________
Name:
Title:
THE SMITHFIELD PACKING COMPANY,
INCORPORATED
By________________________________
Name:
Title:
SFFC, INC.
By________________________________
Name:
Title:
PATRICK CUDAHY INCORPORATED
By________________________________
Name:
Title:
BROWN'S OF CAROLINA, INC.
By________________________________
Name:
Title:
[HOLDERS]
By:________________________________
Name:
Title:
EXHIBIT A
AMENDMENT TO EXISTING NOTE PURCHASE AGREEMENT
ss.1. Section 6.11 of the Existing Note Purchase Agreement is
hereby amended to read in its entirety as follows:
(a) Total Liabilities.
The Company shall not at any time permit the ratio of
Consolidated Total Liabilities to Consolidated Tangible Net Worth to
exceed the applicable ratio set forth with respect to such time in the
following table:
If such time is: the applicable ratio is:
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On or before October 27, 1996 2.85 to 1.00
After October 27, 1996 and on or 2.75 to 1.00
before July 15, 1997
After July 15, 1997 and before May 3, 3.00 to 1.00
1998
On or after May 3, 1998 2.75 to 1.00
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ss.2. The definition of "Consolidated Current Liabilities" in Section
9.1 of the Existing Note Purchase Agreement is hereby amended to read in its
entirety as follows:
Consolidated Current Liabilities -- means, at any time, the
aggregate amount at which the current liabilities of the Company and
the Subsidiaries would be shown on a consolidated balance sheet for
such Persons at such time, provided that such liabilities (a) shall
exclude (to the extent otherwise included therein) liabilities in
respect of Deemed Funded Debt and (b) shall include, without
duplication, liabilities in respect of Excluded Funded Debt.
ss.3. The definition of "Funded Debt" in Section 9.1 of the Existing
Note Purchase Agreement is hereby amended to read in its entirety as follows:
Funded Debt -- means, at any time, with respect to any Person,
without duplication:
(a) all Debt of such Person (including, without
limitation, the current portion thereof) that by its terms or
by the terms of any instrument or agreement relating thereto
matures, or that is otherwise payable or unpaid, more than one
(1) year from, or is directly or indirectly renewable or
extendible at the option of such Person to a date more than
one (1) year (including, without limitation, an option of the
debtor under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a
period of more than one (1) year) from, the date of the
creation of such Debt (notwithstanding that such Debt may
under certain contingencies be payable on demand or within one
(1) year after such date of creation), provided that, with
respect to the Company and the Subsidiaries, such Debt (i)
shall exclude (to the extent otherwise included therein)
Excluded Funded Debt and (ii) shall include, without
duplication, Deemed Funded Debt;
(b) all Capital Lease Obligations of such Person; and
(c) all Debt of such Person of the type specified in
clause (e) of the definition of "Debt," provided that such
Debt of such Person is in respect of or in support of Funded
Debt of another Person.
ss.4. The definition of "Revolving Credit Agreement" in Section 9.1 of
the Existing Note Purchase Agreement is hereby amended to read in its entirety
as follows:
Revolving Credit Agreement -- means, with respect to the
Company or any Subsidiary, a credit or loan agreement to which the
Company or such Subsidiary is a party and pursuant to which the Company
or such Subsidiary is entitled to obtain working capital loans or other
loans from the commercial bank or commercial banks party thereto, and
shall include, without limitation, the Credit Facility.
ss.5. Section 9.1 of the Existing Note Purchase Agreement is hereby
amended to add the following definition of "Credit Facility" in the appropriate
alphabetical position in such Section:
Credit Facility -- means, collectively, that certain Five-Year
Credit Agreement and that certain 364-Day Credit Agreement, in each
case among the Company, certain of the Subsidiaries, The Chase
Manhattan Bank as administrative agent and the lenders party thereto,
providing for an aggregate amount of up to $350,000,000 in loans to the
Company, and in each case as amended from time to time.
ss.6. Section 9.1 of the Existing Note Purchase Agreement is hereby
amended to add the following definition of "Deemed Funded Debt" in the
appropriate alphabetical position in such Section:
Deemed Funded Debt -- means, at any time, the lesser of (a)
the aggregate amount of Debt of the Company and the Subsidiaries
outstanding under the Credit Facility at such time and (b) $75,000,000.
ss.7. Section 9.1 of the Existing Note Purchase Agreement is hereby
amended to add the following definition of "Excluded Funded Debt" in the
appropriate alphabetical position in such Section:
Excluded Funded Debt -- means, at any time, the excess (if
any) of (a) the aggregate amount of Debt of the Company and the
Subsidiaries outstanding under the Credit Facility at such time over
(b) $75,000,000.
[EXHIBITS B AND C OMITTED]