EXHIBIT 10.2
SMITHFIELD FOODS, INC.
AMENDMENT AGREEMENT NO. 3
As of April 4, 2003
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) 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"); and
(d) Twenty-Five Million Dollars ($25,000,000) 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, together with the Series I Notes, the Series J
Notes and the Series K Notes, collectively, the "Notes"),
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 (as amended
by that certain Amendment Agreement No. 1, dated as of December 7, 2001, and
that certain Amendment Agreement No. 2, dated as of December 31, 2002, 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
original 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.
Subject to Section 5, the Current Holders and the Issuer hereby agree to
each of the amendments to the Existing Purchase Agreements as provided for by
this Amendment Agreement No. 3 (this "Amendment Agreement") in the manner
specified in Exhibit 3 hereto. 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.
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.
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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.
Immediately prior to and after giving effect to the Amendments set forth in
this Amendment Agreement, no Default or Event of Default will exist.
5. EFFECTIVENESS OF AMENDMENTS.
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 the 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, each Current Holder hereby makes the
granting of its consent contingent upon satisfaction of the following
conditions:
5.1. Amendment to Credit Facility.
Each Current Holder shall have received true and correct copies of the
fully executed amendment (the "Credit Facility Amendment") to the Credit
Facility substantially in the form of Exhibit 5.1 hereto;
5.2. Amendment of Other Note Agreements.
Each Current Holder shall have received true and correct copies of the
fully executed amendments (collectively, the "Other Purchase Agreement
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 31, 1999, between the Issuer and each of the noteholders listed on
Annex 1 thereto. Each such amendment shall be substantially in the form of this
Amendment Agreement;
5.3. Opinion of Counsel.
The Current Holders shall have received from special counsel to the Issuer,
a closing opinion, dated as of the Effective Date, and in form and substance
satisfactory to the Current Holders. This Section 5.3 shall constitute direction
by the Issuer to such counsel to deliver such closing opinion to the Current
Holders;
5.4. Amendment Fee.
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The fee to be paid to the Current Holders pursuant to Section 7 of this
Amendment Agreement shall have been paid in full; and
5.5. Expenses.
The payment of the expenses to be paid on behalf of the Current Holders
pursuant to Section 8 of this Amendment Agreement (to the extent a statement
therefore has been presented to the Issuer on or prior to the Effective Date)
shall have been paid in full.
6. CONSENT.
The Current Holders hereby consent to the execution and delivery of the
Credit Facility Amendment and the Other Purchase Agreement Amendments to the
extent that such consent is required under the terms of the Financing Documents.
7. AMENDMENT FEE.
In consideration of the execution and delivery by the Current Holders of
this Amendment Agreement and the consent by the Current Holders to the
Amendments, on or prior to the Effective Date, the Issuer shall have paid to
each of the Current Holders a fee in an amount equal to 0.15% of the aggregate
outstanding principal amount of the Notes held by such Current Holder on March
31, 2003, in the manner and to the accounts specified in the Existing Purchase
Agreements.
8. 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 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 8 shall limit the Issuer's obligations pursuant
to Section 1.5 of the Existing Purchase Agreements.
9. MISCELLANEOUS.
9.1. 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.
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9.2. 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.
9.3. 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 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
The foregoing Amendment Agreement is hereby accepted as of the date first
above written.
XXXX XXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
INVESTORS PARTNER LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
COMMONWEALTH OF PENNSYLVANIA
STATE EMPLOYEES' RETIREMENT SYSTEM
By: Xxxx Xxxxxxx Life Insurance Company, as Investment Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXX XXXXXXX LIFE INSURANCE COMPANY
(On behalf of Private Placement Separate Account 1Z)
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SIGNATURE 4 LIMITED
By: Xxxx Xxxxxxx Life Insurance Company, Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Authorized Xxxx Xxxxxxx Officer
SIGNATURE 1A (CAYMAN), LTD.
By: Xxxx Xxxxxxx Life Insurance Company, Portfolio Advisor
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Authorized Xxxx Xxxxxxx Officer
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
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
CAPE FEAR FARM CREDIT, ACA
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AMERICAN GENERAL LIFE INSURANCE COMPANY
By: AIG Global Investment Corp., Investment Adviser
By: /s/ Xxxxxxx X. XxXxx
Name: Xxxxxxx X. XxXxx
Title: Vice President
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
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
ANNEX 1
CURRENT HOLDERS AND PRINCIPAL AMOUNTS
------------------------------------------------------------------------------------------------------------------
Aggregate Aggregate Aggregate Aggregate
Principal Principal Principal Principal
Name of Current Holder Amount of Amount of Amount of Amount of
Series I Series J Series K Series L
Notes Held Notes Held Notes Held Notes Held
------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx Life Insurance Company $ -0- $ -0- $15,500,000 $15,000,000
------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx Variable Life Insurance Company $ -0- $ -0- $ 1,000,000 $ 1,000,000
------------------------------------------------------------------------------------------------------------------
Investors Partner Life Insurance Company $ -0- $ -0- $ 500,000 $ 500,000
------------------------------------------------------------------------------------------------------------------
Commonwealth of Pennsylvania State Employees' $ -0- $ -0- $ 2,000,000 $ 1,000,000
Retirement System
------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxx Life Insurance Company (Private $ -0- $ -0- $ 1,000,000 $ 1,000,000
Placement Separate Account 1Z)
------------------------------------------------------------------------------------------------------------------
The Northern Trust Company, as Trustee for the $ -0- $ -0- $ 2,000,000 $ 1,000,000
Lucent Technologies Inc. Master Pension Trust
------------------------------------------------------------------------------------------------------------------
Signature 4 Limited (Xxxxxxx Xxxxx $ -0- $ -0- $10,000,000 $ -0-
International)
------------------------------------------------------------------------------------------------------------------
Signature 1A (Cayman), Ltd. $ -0- $ -0- $ -0- $ 3,500,000
------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. as Trustee for Xxxx Atlantic $ -0- $ -0- $ 1,000,000 $ 1,000,000
Master Trust
------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. as Trustee for the Long-Term $ -0- $ -0- $ 2,000,000 $ 1,000,000
Investment Trust
------------------------------------------------------------------------------------------------------------------
The Variable Annuity Life Insurance Company $ -0- $ -0- $10,000,000 $ -0-
------------------------------------------------------------------------------------------------------------------
American General Life Insurance Company $ -0- $ -0- $ 5,000,000 $ -0-
------------------------------------------------------------------------------------------------------------------
Cape Fear Farm Credit, ACA $100,000,000 $50,000,000 $ -0- $ -0-
------------------------------------------------------------------------------------------------------------------
Total $100,000,000 $50,000,000 $50,000,000 $25,000,000
------------------------------------------------------------------------------------------------------------------
EXHIBIT 3
AMENDMENTS TO EXISTING PURCHASE AGREEMENTS
1. Section 1.6 of the Existing Purchase Agreements is hereby amended and
restated in its entirety to read as follows:
1.6 Collateral; Release.
The Notes are secured pursuant to and entitled to all of the benefits
of the Security Documents. In the event that at any time after the Closing
Date, except during the Suspension Period, the Company shall have obtained
an Acceptable Rating in respect of its long-term, senior unsecured debt,
the Company may give written notice to each holder of Notes (which notice
shall include copies of the letters to the Company from Xxxxx'x and
Standard & Poor's evidencing that such Acceptable Rating has been in full
force and effect for the one hundred eighty (180) day period immediately
preceding the date of such notice and, if such Acceptable Rating is in
effect during the Suspension Period, for the one hundred eighty (180) day
period following the conclusion of such Suspension Period) requesting that
the holders of the Notes direct the Security Trustee to release the
Collateral from the security interests created by the Security Documents on
a date specified in such notice (the "Collateral Release Date") that is not
less than thirty (30) days and not more than sixty (60) days after the date
of such notice. The holders of the Notes agree to direct the Security
Trustee to so release the Collateral, provided that the Collateral Release
Conditions have been satisfied and the holders of the Notes and the
Security Trustee shall have received an officer's certificate, executed by
a Senior Officer and dated the Collateral Release Date, specifying that at
the time of such release and after giving effect thereto, each of the
Collateral Release Conditions are satisfied. Notwithstanding such release
of Collateral, the provisions of Section 6.13 hereof shall continue to
apply on and after the Collateral Release Date. For the avoidance of doubt,
the Collateral Release Date may not occur during or within 180 days after
the conclusion of the Suspension Period.
2. Section 6.5 of the Existing Purchase Agreements is hereby amended and
restated in its entirety to read as follows:
6.5 Consolidated Working Capital.
The Company shall not at any time permit Consolidated Working Capital
to be less than Two Hundred Fifty Million Dollars ($250,000,000).
3. Section 6.6 of the Existing Purchase Agreements is hereby amended and
restated in its entirety to read as follows:
6.6 Debt to Capitalization Ratio.
Exhibit 3-1
The Company shall not at any time permit (a) Consolidated Funded Debt
to exceed sixty-five percent (65%) of Consolidated Total Capitalization and
(b) Consolidated Senior Funded Debt to exceed fifty-five percent (55%) of
the result of (i) Consolidated Total Capitalization minus (ii) Senior
Subordinated Debt; provided that, during the Suspension Period, to the
extent that unfunded pension liabilities as reflected on the Company's
balance sheet would otherwise be deducted in the determination of
Consolidated Total Capitalization or Consolidated Shareholders' Equity,
such unfunded pension liabilities shall not be deducted in such
determination during the Suspension Period to the extent that they
aggregate less than One Hundred Million Dollars ($100,000,000).
4. Section 6.7 of the Existing Purchase Agreements is hereby amended and
restated in its entirety to read as follows:
6.7. Maintenance of Funded Debt.
(a) Consolidated Funded Debt. Except for each fiscal quarter end
occurring during the Suspension Period, the Company shall not permit
Consolidated Funded Debt, determined as of the end of each fiscal quarter
of the Company, to exceed 400% of Consolidated EBITDA for the period of
four (4) consecutive fiscal quarters of the Company ended at such time.
(b) Consolidated Senior Funded Debt. Except for each fiscal quarter
end occurring during the Suspension Period, the Company shall not permit
Consolidated Senior Funded Debt, determined as of the end of each fiscal
quarter of the Company, to exceed 320% of Consolidated EBITDA for the
period of four (4) consecutive fiscal quarters of the Company ended at such
time.
5. Section 6.8 of the Existing Purchase Agreements is hereby amended and
restated in its entirety to read as follows:
6.8. Fixed Charges Coverage.
The Company shall not at any time permit the ratio of Consolidated Net
Income Available for Fixed Charges (calculated in respect of the period of
eight (8) consecutive fiscal quarters of the Company then most recently
ended) to Consolidated Fixed Charges (calculated in respect of such period)
to be less than (a) 1.00 to 1.00 during the Suspension Period and (b) 1.50
to 1.00 at all times after the Suspension Period.
6. Section 6.14 of the Existing Purchase Agreements is hereby amended by
amending and restating paragraph (b) thereof in its entirety to read as follows:
(b) Acquisitions. The Company will not, and will not permit any of its
Subsidiaries to consummate any Acquisition or Joint Venture Investment,
unless immediately prior to such Acquisition or Joint Venture Investment
and after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing, and:
Exhibit 3-2
(i) (a) such transaction is an Acquisition and such Acquisition
(if by purchase of assets, merger or consolidation) is effected in
such manner that the acquired business, and the related assets, are
owned either by the Company or a Subsidiary and, if effected by merger
or consolidation involving the Company, the Company is the continuing
or surviving entity and, if effected by merger or consolidation
involving a Subsidiary, the continuing or surviving entity is a
Subsidiary; or (b) such transaction is an Acquisition and such
Acquisition (if by purchase of stock or partner, member or other
ownership interests) is effected in such manner so that the acquired
entity becomes a Subsidiary; and
(ii) such transaction is an Acquisition or a Joint Venture
Investment and immediately after giving effect to such Acquisition or
Joint Venture Investment (x) the Company is in compliance with
Sections 6.4, 6.5, 6.6, 6.7, 6.8 and 6.10 (the determination of such
compliance to be calculated on a pro forma basis, as at the end of the
fiscal quarter most recently ended prior to the date of such
Acquisition or Joint Venture Investment for which financial statements
of the Company and its Subsidiaries are available, under the
assumption that such Acquisition or Joint Venture Investment and any
other Acquisitions or Joint Venture Investments consummated during the
twelve-month period ending on such date shall have occurred, and any
Debt in connection therewith shall have been incurred, at the
beginning of the applicable period, and under the assumption that
interest for such period had been equal to the actual weighted average
interest rate in effect for such period for all loans outstanding
under the Credit Facility on the date of such Acquisition or Joint
Venture Investment) and, in the event that the aggregate amount of
expenditures in respect of such Acquisition or Joint Venture
Investment and of all prior Acquisitions and Joint Venture Investments
made during a single fiscal year and not covered by a certificate
delivered under this subclause (ii) exceeds $100,000,000, the Company
shall have delivered to each of the holders of Notes a certificate of
a Senior Financial Officer showing calculations in reasonable detail
to demonstrate compliance with this subclause (ii) and certifying that
prior to such acquisition and after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing and (y)
during the Suspension Period, if such transaction is consummated
before the Borrowing Base Release Date (as defined in the Credit
Facility) and the aggregate amount of expenditures in respect of such
Acquisition or Joint Venture Investment and of all prior Acquisitions
and Joint Venture Investments made during a single fiscal year exceeds
$20,000,000, then, immediately after giving effect to such Acquisition
or Joint Venture Investment (and any borrowings under the Credit
Facility made in connection therewith), the excess of (A) the lesser
of the Borrowing Base (as defined in the Credit Facility) and the
aggregate Commitments (as defined in the Credit Facility) at such time
minus (B) the Secured Obligations Amount (as defined in the Credit
Facility) shall not be less than $150,000,000."
7. Section 9.1 of the Existing Purchase Agreements is hereby amended by
amending and restating the following definitions in their entirety to read as
follows:
Exhibit 3-3
Consolidated EBITDA -- means, with respect to any fiscal period, the
sum of
(a) Consolidated Net Income, plus
(b) the aggregate amount of all interest expense, depreciation,
amortization and income taxes,
(to the extent, and only to the extent, that such aggregate amount was
deducted in the computation of Consolidated Net Income), in each case
accrued for such period by the Company, provided that, with respect to any
period during which a Person shall have become, or ceased to be, a
Subsidiary, or during which the Company or any Subsidiary shall have
acquired or disposed of an On-Going Business, the calculation of
Consolidated EBITDA shall (i) include the EBITDA for such period of each
Person who shall have become a Subsidiary, and of each On-Going Business
acquired by the Company or any Subsidiary, during such period as if such
Person had been a Subsidiary or such On-Going Business had been owned by
the Company or a Subsidiary for the entire period, or (ii) exclude the
EBITDA for such period of each Person who shall have ceased to be a
Subsidiary, and of each On-Going Business disposed of by the Company or any
Subsidiary, at any time after the beginning of such period as if such
Person had not been a Subsidiary at any time during the entire period or
such On-Going Business had not been owned or operated by the Company or any
Subsidiary at any time during such period. As used in this definition,
EBITDA with respect to any Person or On-Going Business for any period shall
mean, the net income (after income taxes) of such Person or On-Going
Business for such period, determined in accordance with GAAP plus, to the
extent deducted in calculating such net income, amounts attributable to
interest, income taxes, depreciation and amortization.
Incremental Margin - means one half of one percent (0.50%) at all
times during 4FQ03 and at all other times during each other fiscal quarter
during the Incremental Margin Period, (a) zero (0) if Consolidated Funded
Debt at the end of the immediately preceding fiscal quarter is less than
400% of Consolidated EBITDA for the period of four (4) consecutive fiscal
quarters of the Company then most recently ended, (b) three quarters of one
percent (0.75%) if Consolidated Funded Debt at the end of the immediately
preceding fiscal quarter equal to or more than 400% but less than 450% of
Consolidated EBITDA for the period of four (4) consecutive fiscal quarters
of the Company then most recently ended, (c) one percent (1.00%) if
Consolidated Funded Debt at the end of the immediately preceding fiscal
quarter is equal to or more than 450% but less than 500% of Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters of the
Company then most recently ended, (d) one and one quarter of one percent
(1.25%) of Consolidated Funded Debt at the end of the immediately preceding
fiscal quarter is equal to or more than 500% but less than 550% of
Consolidated EBITDA for the period of four (4) consecutive fiscal quarters
of the Company then most recently ended and (e) one and one half of one
percent (1.50%) if Consolidated Funded Debt at the end of the immediately
preceding fiscal quarter is equal to or more than 550% of Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters of the
Company then most recently ended.
Exhibit 3-4
Incremental Margin Period - means 4FQ03 together with the period from
the start of IFQ04 to and including the end of 2FQ05.
8. Section 9.1 of the Existing Purchase Agreements is hereby amended by adding
the following new definitions in the appropriate alphabetical order to read as
follows:
4FQ04 - means the fiscal quarter of the Company ending on April 25,
2004.
1FQ05 - means the fiscal quarter of the Company ending on July 25,
2004.
2FQ05 - means the fiscal quarter of the Company ending on October 31,
2004.
Acquisition - means any transaction, or any series of related
transactions, consummated after the Amendment No. 3 Effective Date, by
which the Company or any of its Subsidiaries (a) acquires any On-Going
Business or all or substantially all of the assets of any Person, whether
through purchase of assets, merger or otherwise, (b) directly or indirectly
acquires control of at least a majority (in number of votes) of the
securities of a corporation that have ordinary voting power for the
election of directors or (c) directly or indirectly acquires control of at
least a majority of the partner, member or other ownership interests of any
Person that is not a corporation.
Amendment No. 3 Effective Date - means the "Effective Date" as defined
in that certain Amendment Agreement No. 3 dated as of April 4, 2003 among
the Company and each of the holders of the Notes party thereto and
consented to by each of the Guarantors.
Joint Venture Investment - means any Investment by the Company or any
of its Subsidiaries as a joint venturer or partner in, or lender to, any
other Person (other than a Subsidiary) principally engaged in a business in
which the Company and its Subsidiaries are permitted by Section 6.18 to be
engaged.
On-Going Business - means a distinct operating business, whether
operated as a division of a larger business operation or operated
independently, which regardless of the form of legal entity owns or
operates the assets and has the liabilities, of such business.
Suspension Period - means the period from the start of 4FQ03 to and
including the end of 1FQ05.
9. Section 9.1 of the Existing Purchase Agreements is hereby amended by
deleting the following definitions from such Section: "3FQ03", "Applicable
Funded Debt Percentage", "Applicable Senior Funded Debt Percentage", "New Debt
Step Up" and "Unsecured Debt".
Exhibit 3-5
