SMITHFIELD FOODS, INC. AMENDMENT AGREEMENT NO. 5
EXHIBIT 4.1(k)
SMITHFIELD FOODS, INC.
As of March 25, 2004
To each of the Current Holders
listed in Annex 1 attached 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.
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” and, together with the Series B Notes, the Series E Notes, the Series F Notes and the Series G Notes, collectively, the “Notes”);
pursuant to those separate Amended and Restated Note Purchase Agreements each dated as of October 31, 1999 among the Issuer and the noteholders named in Annex 1 thereto (as amended by that certain Amendment Agreement No. 1, dated as of December 7, 2001, that certain Amendment Agreement No. 2, dated as of December 31, 2002, that certain Amendment Agreement No. 3, dated as of April 4, 2003 and that certain Amendment Agreement No. 4, dated as of October 31, 2003, each among the Issuer and the other parties listed on the signature pages 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 outstanding aggregate principal amount of the Notes as of the date hereof indicated in such Annex. The Series C Notes and the Series D Notes became due and all then outstanding principal and interest thereon was paid in full on August 1, 2003.
In connection with the Issuer’s agreement to sell its Canadian subsidiaries to Maple Leaf Foods, Inc. (the “Transaction”), the Required Holders previously agreed to amend the Existing Purchase Agreements to exclude certain effects of the Transaction from certain of the restrictions set forth in Section 6.15 of the Existing Purchase Agreements relating to Transfers of Property by the Issuer and its Subsidiaries. Such exclusion is contingent upon certain conditions, including the consummation of the Transaction on or before April 1, 2004. Due to pending regulatory approvals, the Issuer has requested that the Current Holders extend such date until April 30, 2004.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the Existing Purchase Agreements.
3. AMENDMENT TO EXISTING PURCHASE AGREEMENTS.
The Required Holders and the Issuer hereby agree to amend clause (e) of the definition of “Smithfield Canada Transfer Conditions” set forth in Section 9.1 of the Existing Purchase Agreements by deleting the phrase, “such Transfer is consummated on or before April 1, 2004”, and substituting in its place the phrase, “such Transfer is consummated on or before April 30, 2004”. Such amendment is referred to herein as the “Amendment”.
4. CONSENT.
The Required Holders hereby consent to the execution and delivery of amendments to those certain separate Note Purchase Agreements, dated as of March 1, 2002, between the Issuer and each of the purchasers listed on Annex 1 thereto, those certain separate Note Purchase Agreements, dated as of June 2, 2000 between the Issuer and each of the purchasers listed on Annex 1 thereto, and those certain separate Amended and Restated Note Purchase Agreements, dated as of October 27, 1999, between the Issuer and each of the purchasers listed on Annex 1 thereto. Each such amendment shall be substantially in the form of this Amendment Agreement.
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5. EXPENSES.
Whether or not the Amendment becomes 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 XxXxxxxxx LLP, incurred in connection with the preparation, negotiation and delivery of this Amendment Agreement and any other documents related thereto. Nothing in this Section 5 shall limit the Issuer’s obligations pursuant to Section 1.4 of the Existing Purchase Agreements.
6. MISCELLANEOUS.
| 6.1. | 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.
| 6.2. | 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. Delivery of a facsimile of an executed signature page hereto shall be effective as delivery of an original.
| 6.3. | 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 COMMONWEALTH THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH COMMONWEALTH.
[Remainder of page intentionally left blank. Next page is signature page.]
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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 Amendment 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 and Chief Financial Officer | |
[Signature Page to Amendment Agreement No. 5 (B-H)]
The foregoing Amendment Agreement is hereby accepted as of the date first above written.
| XXXX XXXXXXX LIFE INSURANCE COMPANY | ||
| By: |
/s/ Xxxxxxx Xxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxx | |
| Title: |
Managing Director | |
| XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY | ||
| By: |
/s/ Xxxxxxx Xxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxx | |
| Title: |
Authorized Signatory | |
| SIGNATURE 6 LIMITED | ||
| By: | Xxxx Xxxxxxx Life Insurance Company, as Portfolio Advisor | |
| By: |
/s/ Xxxxxxx Xxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxx | |
| Title: |
Authorized Signatory | |
| MELLON BANK, N.A., solely in its capacity as Trustee for the XXXX ATLANTIC MASTER TRUST, and not in its individual capacity | ||
| By: | Xxxx Xxxxxxx Life Insurance Company, as purchaser of all of the Series F Senior Notes owned by such person (re-registration pending) | |
| By: |
/s/ Xxxxxxx Xxxxxxx | |
| Name: |
Xxxxxxx Xxxxxxx | |
| Title: |
Managing Director | |
| JPMORGAN CHASE BANK, as Directed Trustee for the AT&T LONG-TERM INVESTMENT TRUST | ||
| By: |
/s/ Xxxxxx X. Xxxxx | |
| Name: |
Xxxxxx X. Xxxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment Agreement No. 5 (B-H)]
| THE MARITIME LIFE ASSURANCE COMPANY | ||
| By: |
| |
| Name: | ||
| Title: | ||
| By: |
| |
| Name: | ||
| Title: | ||
| METROPOLITAN LIFE INSURANCE COMPANY | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Director | |
| METLIFE INVESTORS USA INSURANCE COMPANY | ||
| By: | Metropolitan Life Insurance Company, as Investment Manager | |
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Director | |
| 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: | AIG Global Investment Corp., Investment Adviser | |
| By: | /s/ Xxxxx XxXxxxx | |
| Name: | Xxxxx XxXxxxx | |
| Title: | Vice President | |
| MONUMENTAL LIFE INSURANCE COMPANY, | ||
| successor by merger to PEOPLES SECURITY LIFE INSURANCE COMPANY | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxxxx | |
| Title: | Vice President | |
| MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY | ||
| By: | Xxxxx X. Xxxxxx & Company, Inc., as Investment Adviser | |
| By: | /s/ Xxxxxxxx Xxxxx | |
| Name: | Xxxxxxxx Xxxxx | |
| Title: | Managing Director | |
[Signature Page to Amendment Agreement No. 5 (B-H)]
The undersigned consent to the Amendments effected by the foregoing Amendment Agreement.
CODDLE ROASTED MEATS, INC.
XXXXXXXX OF SMITHFIELD, LTD.
XXXXXXX’X OLD FASHIONED COUNTRY HAM, INC.
IOWA QUALITY MEATS, LTD.
XXXX XXXXXXX & CO.
XXXXX MEAT GROUP, INC.
XXXXX PACKING COMPANY
NORTH SIDE FOODS CORP.
PACKERLAND HOLDINGS, INC.
PACKERLAND PROCESSING COMPANY, INC.
PACKERLAND-PLAINWELL, INC. (f/k/a Murco Foods, Inc.)
XXXXXXX XXXXXX INCORPORATED
PREMIUM PORK, INC.
QUIK-TO-FIX FOODS, INC.
SFFC, INC.
SMITHFIELD PURCHASE CORPORATION (successor by merger to Xxxxxxx’x Realty, Inc.)
XXXXXXX’X COUNTRY HAMS, INC.
SUN LAND BEEF COMPANY
SUNNYLAND, INC.
THE SMITHFIELD COMPANIES, INC.
THE SMITHFIELD PACKING COMPANY INCORPORATED
| XXXXXX-XXXXX LLC | ||
| By: |
Xxxx Xxxxxxx & Co., as sole member | |
| XXXXXX FARMS LLC | ||
| QUARTER M FARMS LLC | ||
| XXXXXXX’X FOODS OF VIRGINIA LLC | ||
| XXXXXXX’X FOODS LLC | ||
| CIRCLE FOUR LLC | ||
| CENTRAL PLAINS FARMS LLC | ||
| XXXXX’X OF CAROLINA LLC | ||
| By: |
Xxxxxx-Xxxxx LLC, as sole member | |
| By: |
Xxxx Xxxxxxx & Co., as sole member | |
| XXXXX’X FARMS, LLC | ||
| By: |
Xxxxx’x of Carolina LLC, as sole member | |
| By: |
Xxxxxx-Xxxxx LLC, as sole member | |
| By: |
Xxxx Xxxxxxx & Co., as sole member | |
| XXXXXXX’X REALTY PARTNERSHIP | ||
| By: |
Smithfield Purchase Corporation, as general partner | |
| SMITHFIELD PACKING REAL ESTATE, LLC | ||
| By: |
The Smithfield Packing Company Incorporated, as sole member | |
| GREAT LAKES CATTLE CREDIT COMPANY, LLC | ||
| By: |
Packerland Holdings, Inc., as sole member | |
[Signature Page to Amendment Agreement No. 5 (B-H)]
| SMITHFIELD-XXXXXXX’X FARMS | ||
| By: |
Smithfield Purchase Corporation, as general partner | |
| XXXXX’X REALTY PARTNERSHIP | ||
| By: |
Xxxxx’x Farms, LLC, its partner | |
| By: |
Xxxxx’x of Carolina LLC, its sole member and manager | |
| By: |
Xxxxxx-Xxxxx LLC, its sole member and manager | |
| By: |
Xxxx Xxxxxxx & Co., as sole member and | |
| By: |
Smithfield Purchase Corporation, its partner | |
| SMITHFIELD PACKING REALTY PARTNERSHIP | ||
| By: |
Smithfield Packing Real Estate, LLC, its partner | |
| By: |
The Smithfield Packing Company, Incorporated, its sole member and manager and | |
| By: |
Smithfield Purchase Corporation, its partner | |
| By: |
/s/ Xxxxxx X. Xxxxxxx | |
| Name: |
Xxxxxx X. Xxxxxxx | |
| Title: |
Vice President | |
[Signature Page to Amendment Agreement No. 5 (B-H)]
ANNEX 1
CURRENT HOLDERS AND PRINCIPAL AMOUNTS
As of March 25, 2004
| Name of Current Holder |
Aggregate Principal Amount of Series B Notes Held |
Aggregate Principal Amount of Series E Notes Held |
Aggregate Principal Amount of Series F Notes Held |
Aggregate Notes Held |
Aggregate Principal Amount of Series H Notes Held | ||||||||||
| Xxxx Xxxxxxx Life Insurance Company | $ | 7,578,942 | $ | 1,500,000 | $ | 24,000,000 | $ | 3,666,666.77 | $ | -0- | |||||
| Xxxx Xxxxxxx Variable Life Insurance Company | $ | -0- | $ | -0- | $ | 5,000,000 | $ | -0- | $ | -0- | |||||
| Signature 6 Limited | $ | -0- | $ | -0- | $ | 2,040,000 | $ | -0- | $ | -0- | |||||
| Mellon Bank, N.A., Trustee under Master Trust Agreement of Xxxx Atlantic Master Trust | $ | -0- | $ | -0- | $ | 3,000,000 | $ | -0- | $ | -0- | |||||
| Xxxxxx Bank, N.A. Trustee under Master Trust Agreement of Long-Term Investment Trust | $ | -0- | $ | -0- | $ | 960,000 | $ | -0- | $ | -0- | |||||
| The Maritime Life Assurance Company | $ | -0- | $ | -0- | $ | 5,000,000 | $ | -0- | $ | -0- | |||||
| Metropolitan Life Insurance Company (as assignee of The Northwestern Mutual Life Insurance Company) | $ | -0- | $ | -0- | $ | 20,000,000 | $ | -0- | $ | -0- | |||||
| MetLife Investors USA Insurance Company (as assignee of The Northwestern Mutual Life Insurance Company) | $ | -0- | $ | -0- | $ | 10,000,000 | $ | -0- | $ | -0- | |||||
| American General Life and Accident Insurance Company (Successor by merger to Independent Life and Accident Insurance Company) | $ | -0- | $ | -0- | $ | 3,000,000 | $ | -0- | $ | -0- | |||||
| The Variable Annuity Life Insurance Company | $ | -0- | $ | -0- | $ | 12,000,000 | $ | -0- | $ | -0- | |||||
| Monumental Life Insurance Company, Successor by Merger to Peoples Security Life Insurance Company | $ | -0- | $ | -0- | $ | 12,500,000 | $ | -0- | $ | -0- | |||||
| Massachusetts Mutual Life Insurance Company | $ | -0- | $ | -0- | $ | 2,500,000 | $ | -0- | $ | 7,389,706 | |||||
| Total |
$ | 7,578,942 | $ | 1,500,000 | $ | 100,000,000 | $ | 3,666,666.77 | $ | 7,389,706 | |||||
Exhibit B-1
