EXHIBIT 4.4(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) Nine Million Eight Hundred and Fifty-Two Thousand Nine
Hundred Forty-Two Dollars ($9,852,942) in aggregate principal amount
of 8.41% Series B Senior Secured Notes due August 1, 2006 (as they may
be amended, restated or otherwise modified from time to time, the
"Series B Notes");
(b) Forty Million Dollars ($40,000,000) in aggregate principal
amount of its 8.34% Series C Senior Secured Notes due August 1, 2003
(as they may be amended, restated or otherwise modified from time to
time, the "Series C Notes");
(c) Nine Million Dollars ($9,000,000) in aggregate principal
amount of its 9.80% Series D Senior Secured Notes due August 1, 2003
(as they may be amended, restated or otherwise modified from time to
time, the "Series D Notes");
(d) Nine Million Two Hundred Fifty Thousand Dollars ($9,250,000)
in aggregate principal amount of its 10.75% Series E Senior Secured
Notes due August 1, 2005 (as they may be amended, restated or
otherwise modified from time to time, the "Series E Notes");
(e) One Hundred Million Dollars ($100,000,000) in aggregate
principal amount of its 8.52% Series F Senior Secured Notes due August
1, 2006 (as they may be amended, restated or otherwise modified from
time to time, the "Series F Notes");
(f) Fourteen Million Dollars ($14,000,000) in aggregate
principal amount of its 9.85% Series G Senior Secured Notes due
November 1, 2006 (as they may be amended, restated or otherwise
modified from time to time, the "Series G Notes"); and
(g) Fourteen Million Seven Hundred Seventy-Nine Thousand Four
Hundred and Twelve Dollars ($14,779,412) in aggregate principal amount
of its 8.41% Series H Senior Secured Notes due August 1, 2004 (as they
may be amended, restated or otherwise modified from time to time, the
"Series H Notes");
pursuant to those separate Amended and Restated Note Purchase Agreements each
dated as of October 31, 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
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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.
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.
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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:
(a) true and correct copies of the fully executed Multi-Year
Credit Agreement among the Issuer, certain of its subsidiaries, XX
Xxxxxx Xxxxx 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",
XX Xxxxxx 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 5.1(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.
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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 July 15, 1996, as the same may
be amended, restated, modified or supplemented from time to time.
6. EXPENSES.
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, Xxxxxxx Xxxx 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 1.4 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
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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.
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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/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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The foregoing Amendment Agreement is hereby accepted as of the date first
above written.
XXXX XXXXXXX LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. XxXxxxxxxx
-----------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Managing Director
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Xxxxx X. XxXxxxxxxx
-----------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Managing Director
MELLON BANK, N.A., solely in its capacity as
Trustee for the XXXX ATLANTIC MASTER TRUST,
(as directed by Xxxx Xxxxxxx Financial Services, Inc.),
and not in its individual capacity
By: /s/ Xxxxxxxxxx Xxxx
-------------------
Name: Xxxxxxxxxx Xxxx
Title: Authorized Signatory
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MELLON BANK, N. A., solely in its capacity as
Trustee for the LONG-TERM INVESTMENT TRUST,
(as directed by Xxxx Xxxxxxx Financial Services, Inc.),
and not in its individual capacity
By: /s/ Xxxxxxxxxx Xxxx
-------------------
Name: Xxxxxxxxxx Xxxx
Title: Authorized Signatory
THE NORTHERN TRUST COMPANY, AS
TRUSTEE OF THE LUCENT TECHNOLOGIES
INC. MASTER PENSION TRUST
By: Xxxx Xxxxxxx Life Insurance Company,
as Investment Manager
By: /s/ Xxxxx X. XxXxxxxxxx
-----------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Authorized Signatory
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THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Its Authorized Representative
AMERICAN GENERAL LIFE AND ACCIDENT
INSURANCE COMPANY (successor by merger to The
Independent Life and Accident Insurance Company)
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By: American General Investment Management, L.P.
By: American General Investment Management
Corporation, it general partner
By: /s/ Xxxxxxx X. XxXxx
--------------------
Name: Xxxxxxx X. XxXxx
Title: Senior Vice President
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UNITED OF OMAHA LIFE INSURANCE COMPANY
By: /s/ Illegible
-------------
Name: Illegible
Title: First Vice President
COMPANION LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
-------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Assistant Treasurer
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company, Inc.,
as Investment Adviser
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY (as successor in interest to Unicare
Life & Health Insurance Company)
By: Xxxxx X. Xxxxxx & Company, Inc.,
as Investment Adviser
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company, Inc., as
Investment Sub-Adviser
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Managing Director
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The undersigned consent to the Amendments effected by the foregoing
Amendment Agreement.
XXXXXX FARMS LLC
CIRCLE FOUR LLC
XXXXX'X OF CAROLINA, LLC
XXXXXXX'X FOODS LLC
SMITHFIELD PACKING REAL ESTATE, LLC
XXXXX'X FARMS, LLC
XXXXXX-XXXXX LLC
QUARTER M LLC,
each a Delaware limited liability company
By XXXXXX-XXXXX LLC,
a Delaware corporation,
as its sole member of each
By XXXX XXXXXXX & CO.,
a Delaware corporation,
as its sole member
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Vice President
XXXXXXXX OF SMITHFIELD, LTD.
XXXX XXXXXXX & CO.
THE SMITHFIELD PACKING COMPANY, INCORPORATED
SFFC, INC.
XXXXXXX XXXXXX INCORPORATED
XXXXXXX'X REALTY, INC.
XXXXXXX'X REALTY PARTNERSHIP
NORTH SIDE FOODS CORP.
XXXXX MEAT GROUP, INC.
SMITHFIELD-XXXXXXX'X FARMS
CENTRAL PLAINS FARMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Vice President
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Annex 1-1
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, XX Xxxxxx Xxxxx 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
