AMENDMENT AGREEMENT NO. 1 TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

EXHIBIT 4.3

 

SMITHFIELD FOODS, INC.

 

AMENDMENT AGREEMENT NO. 1

TO SECOND AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

 

As of February 15, 2005

 

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) 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 ”);

 

(c) 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 ”); and

 

(d) 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, together with the Series B Notes, the Series E Notes and the Series F Notes, the “ Notes ”);

 

pursuant to those separate Second Amended and Restated Note Purchase Agreements each dated as of October 29, 2004 among the Issuer and the noteholders named in Annex 1 thereto (the “ Existing Note Purchase Agreements ”). The Issuer represents and warrants to you that 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 Issuer has requested that the Required Holders agree, and by executing this Amendment Agreement No. 1 to Second Amended and Restated Note Purchase Agreement (this “ Amendment Agreement ”) the Required Holders hereby agree, to certain amendments of the Existing Note Purchase Agreements pursuant to the terms and conditions contained herein.

 

2.	DEFINED TERMS.

 

Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the Existing Note Purchase Agreements, assuming the Amendments (as defined below) shall have become effective.

 

3.	AMENDMENT TO EXISTING NOTE PURCHASE AGREEMENTS.

 

Subject to Section 5, the Required Holders, as evidenced by their execution and delivery hereof and the Issuer hereby agree to each of the amendments to the Existing Note Purchase Agreements as provided for by this Amendment Agreement in the manner specified in Exhibit A 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.

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.

 

4.2.

No Defaults.

 

No Default or Event of Default will exist immediately prior to and after giving effect to this Amendment Agreement and the Amendments contemplated hereby.

 

4.3.

Financial Statements; Debt.

 

(a) The quarterly and annual financial statements most recently delivered to you pursuant to Section 7.1 of the Existing Note Purchase Agreements (such annual financial statements herein referred to as the “Most Recent Audited Financials” ) have been prepared in accordance with GAAP consistently applied and present fairly, in all material respects, the consolidated financial position of the Issuer and its consolidated subsidiaries as of such dates and the results of their operations and cash flows for the periods specified therein.

 

(b) The aggregate amount of Debt of the Issuer and the Restricted Subsidiaries as of the Effective Date that is not disclosed in the Most Recent Audited Financials does not exceed $500,000,000.

 

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4.4.

Subsidiaries, Restricted Subsidiaries and Affiliates.

 

Exhibit B states (a) the name of each of the Subsidiaries as of the Effective Date (as defined below), its jurisdiction of organization and the percentage of its Voting Stock owned by the Issuer and each other Subsidiary, and whether it is hereby designated as a Restricted Subsidiary or an Unrestricted Subsidiary, and (b) the name of each of the Affiliates, other than the Subsidiaries, as of the Effective Date and the nature of the affiliation. Each of the Issuer and the Restricted Subsidiaries has good and marketable title to all of the shares it purports to own of the stock of each Restricted Subsidiary, free and clear in each case of any Lien. All such shares have been duly issued and are fully paid and nonassessable.

 

4.5.

Pending Litigation.

 

(a) Pending Litigation . There are no proceedings, actions or investigations pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer or any Subsidiary in any court or before any Governmental Authority or arbitration board or tribunal that, in the aggregate for all such proceedings, actions and investigations, could reasonably be expected to have a Material Adverse Effect.

 

(b) No Defaults . Neither the Issuer nor any Subsidiary is in default with respect to any judgment, order, writ, injunction or decree of any court, Governmental Authority, arbitration board or tribunal that, in the aggregate for all such defaults, could reasonably be expected to have a Material Adverse Effect.

 

4.6.

Title to Properties; UCC Matters.

 

(a) Title to Properties . The Issuer and the Restricted Subsidiaries have valid title to all of the Property reflected in the most recent audited consolidated balance sheet referred to in Section 4.3(a) (except as sold or otherwise disposed of in the ordinary course of business), except for such failures to have valid title as are immaterial in the context of such balance sheet and that, in the aggregate for all such failures, could not reasonably be expected to have a Material Adverse Effect.

 

(b) Leases . All leases necessary for the conduct of the business of the Issuer and the Restricted Subsidiaries are valid and subsisting and are in full force and effect, except for such failures to be valid and subsisting that, in the aggregate for all such failures, could not reasonably be expected to have a Material Adverse Effect.

 

(c) Liens . All Property of the Issuer and the Restricted Subsidiaries is free from Liens not permitted by Section 6.13 of the Existing Note Purchase Agreements.

 

(d) UCC Matters . Part 2.5(d) of Annex 2 to the Existing Note Purchase Agreements sets forth with respect to the Issuer and each Guarantor, as of the First Restatement Date:

 

(i) each name under which such Person conducts or has conducted all or a portion of its business operations, and

 

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(ii) the location of the principal executive office of each such Person.

 

Neither the Issuer nor any Guarantor has changed its name or the name under which it conducts its business operations within the immediately preceding period of five (5) years.

 

4.7.

Taxes.

 

(a) Returns Filed; Taxes Paid . All tax returns required to be filed by each of the Issuer and the Restricted Subsidiaries and any other Person with which the Issuer or any Restricted Subsidiary files or has filed a consolidated return in any jurisdiction have in fact been filed on a timely basis, and all taxes, assessments, fees and other governmental charges upon each of the Issuer and the Subsidiaries and any such Person, and upon any of their respective Properties, income or franchises, that are due and payable have been paid. As of the Effective Date, all liabilities of the Issuer and the Restricted Subsidiaries with respect to federal income taxes have been finally determined except with respect to the fiscal years disclosed on Part 2.7 of Annex 2 to the Existing Note Purchase Agreements, which are the only fiscal years not closed by the completion of an audit or the expiration of the statute of limitations. There is currently in effect no tax sharing, tax allocation or similar agreement providing for the manner in which tax payments (whether in respect of federal or state income or other taxes) owing by the members of the affiliated group of which the Issuer is the “common parent” (as defined in section 1504 of the IRC) are allocated between any member of such group and any Person other than the Issuer or a Restricted Subsidiary.

 

(b) Book Provisions Adequate.

 

(i) The amount of the liability for taxes reflected in the most recent balance sheet referred to in Section 4.3(a) is an adequate provision for taxes as of the date of such balance sheet (including, without limitation, any payment due pursuant to any tax sharing agreement) as are or may become payable by any one or more of the Issuer, any Restricted Subsidiary and the other Persons consolidated with the Issuer in such financial statements in respect of all tax periods ending on or prior to such dates.

 

(ii) As of the First Restatement Date, neither the Issuer nor any Restricted Subsidiary knows of any proposed additional tax assessment against it or any such Person that is not reflected in full in the most recent balance sheet referred to in Section 4.3(a).

 

(iii) In no event is the Issuer or any Restricted Subsidiary liable for any tax payments or obligations of any Unrestricted Subsidiary accrued or incurred prior to the Effective Date.

 

4.8.

Full Disclosure.

 

The financial statements referred to in Section 4.3(a) do not, nor does any Financing Document or any written statement furnished by or on behalf of the Issuer or any Subsidiary to

 

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you in connection with the negotiation or the closing of the transactions contemplated by this Amendment Agreement, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein not misleading when viewed in the aggregate. There is no fact that the Issuer has not disclosed to you in writing that has had or, so far as the Issuer can now reasonably foresee, could reasonably be expected to have a Material Adverse Effect.

 

4.9.

Corporate Organization and Authority.

 

The Issuer and each Subsidiary:

 

(a) is a corporation, limited liability company or partnership duly organized, validly existing and in good standing (to the extent that such concept is applicable) under the laws of its jurisdiction of organization;

 

(b) has all legal and corporate, limited liability company or partnership, as the case may be, 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, limited liability company or foreign partnership, as the case may be, 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.

 

4.10.

Restrictions on Issuer and Restricted Subsidiaries.

 

(a) Neither the Issuer nor any Restricted Subsidiary:

 

(i) is a party to any contract or agreement, or subject to any charter, bylaw, partnership agreement or other restriction that, in the aggregate for all such contracts, agreements, constitutive documents and other restrictions (assuming that all such contracts and agreements are performed in accordance with their respective terms), could reasonably be expected to have a Material Adverse Effect; or

 

(ii) has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its Property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 6.13 of the Existing Note Purchase Agreements.

 

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(b) As of the Effective Date, neither the Issuer nor any Guarantor is a party to any contract or agreement that restricts the right or ability of the Issuer or such Guarantor to incur Debt, other than the Existing Note Purchase Agreements and the agreements listed in Part 2.10(b) of Annex 2 to the Existing Note Purchase Agreements (none of which restricts the issuance and sale of the Notes or the performance of the Issuer hereunder or under the Notes and none of which restricts the guaranty of the Notes by any of the Guarantors under the Joint and Several Guaranty).

 

4.11.

Compliance with Law.

 

Neither the Issuer nor any Subsidiary:

 

(a) is in violation of any law, ordinance, governmental rule or regulation to which it is subject (including, without limitation, those relating to zoning and planning, building, subdivision, inland wetland and environmental and hazardous waste disposal); or

 

(b) has failed to obtain any license, certificate, permit, franchise or other governmental authorization necessary to the ownership of its Property or to the conduct of its business (including, without limitation, to the extent required, building, zoning, subdivision, traffic and environmental approvals and certificates of occupancy);

 

which violations or failures to obtain, in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

4.12.

USA Patriot Act, Etc.

 

Neither the Issuer nor any Subsidiary (a) is a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engages in any dealings or transactions with any such Person. The Issuer, the Restricted Subsidiaries and, to the best knowledge of the Issuer, the Unrestricted Subsidiaries are in compliance, in all material respects, with the USA Patriot Act.

 

4.13.

Certain Laws.

 

The execution and delivery of this Amendment Agreement by the Issuer and each of the Guarantors and the performance under the Financing Documents by the Issuer and the Subsidiaries:

 

(a) is not subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935, as amended, the Transportation Acts, as amended, or the Federal Power Act, as amended, and

 

(b) does not violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Issuer or any Subsidiary.

 

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4.14.

Transaction is Legal and Authorized; Obligations are Enforceable.

 

(a) Transaction is Legal and Authorized . Each of the execution and delivery of this Amendment Agreement by the Issuer and by each of the Guarantors and compliance by the Issuer and each of the Guarantors with all of their respective obligations under the Financing Documents:

 

(i) is within the corporate powers of the Issuer and each of the Guarantors;

 

(ii) is legal and does not conflict with, result in any breach in any of the provisions of, constitute a default under, or result in the creation of any Lien upon any Property of the Issuer or any Restricted Subsidiary under the provisions of (A) any agreement, charter instrument, bylaw or other instrument to which it is a party or by which it or any of its Property may be bound or (B) any order, judgment, decree or ruling of any court, arbitrator or governmental authority applicable to the Issuer or any of the Guarantors and their respective Property; and

 

(iii) does not give rise to a right or option of any other Person under any agreement or other instrument, which right or option could reasonably be expected to have a Material Adverse Effect.

 

(b) Obligations are Enforceable . This Amendment Agreement has been duly authorized by all necessary action on the part of each Obligor and has been executed and delivered by one or more duly authorized officers of such Obligor, and the obligations of each Obligor set forth herein constitute legal, valid and binding obligations of such Obligor, enforceable in accordance with its terms, except that the enforceability of the Financing Documents may be:

 

(i) limited by applicable bankruptcy, reorganization, arrangement, insolvency, moratorium or other similar laws affecting the enforceability of creditors’ rights generally; and

 

(ii) subject to the availability of equitable remedies.

 

4.15.

Governmental Consent.

 

Neither the nature of the Issuer or any Subsidiary, or of any of their respective businesses or Properties, nor any relationship between the Issuer or any Subsidiary and any other Person, nor any circumstance in connection with the execution and delivery of this Amendment Agreement, is such as to require a consent, approval or authorization of, or filing, registration or qualification with, any Governmental Authority on the part of the Issuer or any Guarantor as a condition to the execution and delivery of this Amendment Agreement.

 

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4.16.

No Defaults.

 

(a) The Agreement . No event has occurred and no condition exists that, upon the execution and delivery of this Amendment Agreement, would constitute a Default or an Event of Default.

 

(b) Charter Instruments, Other Agreements . Neither the Issuer nor any Restricted Subsidiary nor, to the best knowledge of the Issuer, any Unrestricted Subsidiary, is in violation in any respect of any term of any charter instrument, bylaw, partnership agreement or other constitutive document or instrument. Neither the Issuer nor any Subsidiary is in violation in any respect of any term in any agreement or other instrument to which it is a party or by which it or any of its Property may be bound except for such violations that, in the aggregate for all such violations, could not reasonably be expected to have a Material Adverse Effect.

 

4.17.

Issuer and the Guarantors.

 

The Issuer and the Guarantors are operated as part of one consolidated business entity and are directly dependent upon each other for and in connection with their respective business activities and their respective financial resources. The Issuer and each of the Guarantors receive direct economic and financial benefits from the Debt outstanding under the Existing Note Purchase Agreements by the Issuer and the existence of such Debt is in the best interests of the Issuer and each of the Guarantors.

 

4.18.

Solvency.

 

The fair value of the business and assets of the Issuer and each Guarantor will be in excess of the amount that will be required to pay its liabilities (including, without limitation, contingent, subordinated, unmatured and unliquidated liabilities on existing debts, as such liabilities may become absolute and matured), in each case after giving effect to the transactions contemplated by this Amendment Agreement. Neither the Issuer nor any Guarantor, after giving effect to the transactions contemplated by this Amendment Agreement, will be engaged in any business or transaction, or about to engage in any business or transaction, for which such Person has unreasonably small assets or capital (within the meaning of applicable law, including, without limitation, Section 548 of the United States Bankruptcy Code), and neither the Issuer nor any Guarantor has any intent to

 

(a) hinder, delay or defraud any entity to which it is, or will become, on or after the Effective Date, indebted, or

 

(b) incur debts that would be beyond its ability to pay as they mature.

 

4.19.

True and Correct Copies.

 

The Issuer has delivered to you or your special counsel true and correct copies of each of the following (including each amendment and restatement entered into in connection herewith) : (a) Amendment No. 7 to the Credit Facility and any corresponding amendment to any other Revolving Credit Agreement (including, without limitation, all schedules and exhibits thereto

 

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and all agreements delivered in connection therewith) of the Issuer or any Subsidiary, (b) Amendment Agreement No. 1 to the 1999 Note Purchase Agreement (c) Amendment Agreement No. 1 to the 2000 Note Purchase Agreement, (d) Amendment Agreement No. 1 to the 2002 Note Purchase Agreement, and (e) each other agreement creating or evidencing Debt of the Issuer or any Restricted Subsidiary related to the creation or designation of any Unrestricted Subsidiary on or prior to the Effective Date.

 

5.	EFFECTIVENESS OF THE AMENDMENTS.

 

The Amendments shall become effective as of the date (the “ Effective Date ”), if at all, at such time as the Required 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.

Opinions of Counsel.

 

You shall have received a closing opinion from McGuireWoods LLP, counsel for the Issuer and the Guarantors, dated as of the Effective Date as to such matters as you may reasonably request. The Issuer hereby requests and directs its counsel to deliver such closing opinion to you and the other Noteholders.

 

5.2.

Warranties and Representations True.

 

The warranties and representations contained in Section 4 shall be true on the Effective Date with the same effect as though made on and as of that date.

 

5.3.

No Defaults.

 

No “Default” or “Event of Default” (as such terms are defined in the Existing Note Purchase Agreements) shall exist in respect of the Notes, this Amendment Agreement or the Existing Note Purchase Agreements.

 

5.4.

Officers’ Certificates.

 

You shall have received:

 

(a) a certificate dated the Effective Date and signed by the President, a Vice-President, the Controller, the Treasurer, an Assistant Treasurer or the Chief Financial Officer of the Issuer, substantially in the form of Exhibit C, certifying that the conditions specified in Section 5.2, Section 5.3, Section 5.7, Section 5.8, and Section 5.9 have been fulfilled and that no Default or Event of Default exists on the Effective Date; and

 

(b) a certificate dated the Effective Date and signed by the Secretary or an Assistant Secretary of the Issuer, substantially in the form of Exhibit D, with respect to the matters set forth therein.

 

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5.5.

Expenses.

 

The payment of the expenses to be paid on behalf of the Current Holders pursuant to Section 7 of this Amendment Agreement (to the extent a statement therefor has been presented to the Issuer on or prior to the Effective Date) shall have been paid in full.

 

5.6.

Ratification by Guarantors

 

Each Guarantor shall have executed and delivered the ratification of its obligations under the Joint and Several Guaranty as contemplated on the signature pages to this Agreement.

 

5.7.

Other Debt Documents.

 

The Issuer shall have delivered to you a true and correct copy of the agreements referred to in Section 4.19.

 

5.8.

Transaction Restructuring Fee.

 

The Issuer shall have paid to each Noteholder a non-refundable transaction structuring fee equal to .05% of the aggregate principal amount of the Notes held by such Noteholder on the Effective Date.

 

5.9.

Compliance with this Agreement.

 

Each of the Issuer and the Guarantors shall have performed and complied with all agreements and conditions contained herein that are required to be performed or complied with by the Issuer and the Guarantors on or prior to the Effective Date, and such performance and compliance shall remain in effect on the Effective Date.

 

5.10.

Proceedings Satisfactory.

 

All proceedings taken in connection with the transactions contemplated hereby and all documents and papers relating thereto shall be satisfactory to you and your special counsel. You and your special counsel shall have received copies of such documents and papers as you or they may reasonably request in connection therewith or in connection with your special counsel’s closing opinion, all in form and substance satisfactory to you and your special counsel.

 

6.

CONSENT.

 

The Current Holders hereby consent to the execution and delivery of the documents referred to in clauses (b) through (d) of Section 4.19 to the extent that such consent is required under the terms of the Financing Documents.

 

7.

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

 

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reasonable fees of your special counsel, Bingham McCutchen LLP, incurred in connection with the preparation, negotiation and delivery of this Amendment Agreement and any other documents related thereto. Nothing in this Section 7 shall limit the Issuer’s obligations pursuant to Section 1.5 of the Existing Note Purchase Agreements.

 

8.	MISCELLANEOUS.

 

8.1.

Part of Existing Note Purchase Agreements; Future References, etc.

 

This Amendment Agreement shall be construed in connection with and as a part of the Existing Note Purchase Agreements and, except as expressly amended by this Amendment Agreement, all terms, conditions and covenants contained in the Existing Note 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 Note 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.

 

8.2.

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.

 

8.3.

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 this Agreement is satisfactory to you, please so indicate by signing the acceptance at the foot of a counterpart hereof and returning such counterpart to the Company, whereupon this Agreement shall become binding among us in accordance with its terms.

 

 

[Signature Page to Amendment No. 1 to

Second Amended and Restated Note Purchase Agreement (B-H)

 

The undersigned hereby ratify and confirm their obligations pursuant to the Joint and Several Guaranty (as defined in the foregoing Second Amended and Restated Note Purchase Agreement (the “ Agreement ”) and consent to the amendments effected by the Agreement.

 

CODDLE ROASTED MEATS, INC.

GWALTNEY OF SMITHFIELD, LTD.

HANCOCK’S OLD FASHIONED COUNTRY HAM, INC.

IOWA QUALITY MEATS, LTD.

JOHN MORRELL & CO.

LYKES MEAT GROUP, INC.

MOYER PACKING COMPANY

NORTH SIDE FOODS CORP.

PACKERLAND HOLDINGS, INC.

PACKERLAND PROCESSING COMPANY, INC.

PACKERLAND-PLAINWELL, INC. (f/k/a Murco Foods, Inc.)

PATRICK CUDAHY INCORPORATED

PREMIUM PORK, INC.

QUIK-TO-FIX FOODS, INC.

SFFC, INC.

SMITHFIELD PURCHASE CORPORATION (successor by merger to Carroll’s Realty, Inc.)

STADLER’S COUNTRY HAMS, INC.

SUN LAND BEEF COMPANY

SUNNYLAND, INC.

THE SMITHFIELD COMPANIES, INC.

THE SMITHFIELD PACKING COMPANY INCORPORATED

 

MURPHY-BROWN LLC

 

By:     John Morrell & Co., as sole member

 

MURPHY FARMS LLC

QUARTER M FARMS LLC

CARROLL’S FOODS OF VIRGINIA LLC

CARROLL’S FOODS LLC

CIRCLE FOUR LLC

CENTRAL PLAINS FARMS LLC

BROWN’S OF CAROLINA LLC

 

By:     Murphy-Brown LLC, as sole member

 

By:     John Morrell & Co., as sole member

 

BROWN’S FARMS, LLC

 

By:     Brown’s of Carolina LLC, as sole member

 

By:     Murphy-Brown LLC, as sole member

 

By:     John Morrell & Co., as sole member

 

CARROLL’S REALTY PARTNERSHIP

 

By:     Smithfield Purchase Corporation, as general partner

 

SMITHFIELD PACKING REAL ESTATE, LLC

 

By:     The Smithfield Packing Company Incorporated, as sole member

 

[Signature Page to Amendment no. 1 to

Second Amended and Restated Note Purchase Agreement (B-H)

 

CATTLE PRODUCTION SYSTEMS, INC.

 

By:     Packerland Holdings, Inc., as sole member

 

SMITHFIELD-CARROLL’S FARMS

 

By:     Smithfield Purchase Corporation, as general partner

 

BROWN’S REALTY PARTNERSHIP

 

By:     Brown’s Farms, LLC, its partner

 

By:     Brown’s of Carolina LLC, its sole member and manager

 

By:     Murphy-Brown LLC, its sole member and manager

 

By:     John Morrell & 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/ Daniel G. Stevens
Name:		Daniel G. Stevens
Title:		Vice President

 

[Signature Page to Amendment no. 1 to

Second Amended and Restated Note Purchase Agreement (B-H)

 

Accepted:
JOHN HANCOCK LIFE INSURANCE COMPANY
By:		/s/ Kenneth Warlick
Name:		Kenneth Warlick
Title:		Managing Director

 

JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By:		/s/ Kenneth Warlick
Name:		Kenneth Warlick
Title:		Managing Director

 

SIGNATURE 6 LIMITED

 

By:     John Hancock Life Insurance Company, as Portfolio Advisor

 

By:		/s/ Kenneth Warlick
Name:		Kenneth Warlick
Title:		Managing Director

 

METROPOLITAN LIFE INSURANCE COMPANY
By:		/s/ Timothy L. Powell
Name:		Timothy L. Powell
Title:		Director

 

METLIFE INVESTORS USA INSURANCE COMPANY

 

By:     Metropolitan Life Insurance Company, as Investment Manager

 

By:		/s/ Timothy L. Powell
Name:		Timothy L. Powell
Title:		Director

 

[Signature Page to Amendment no. 1 to

Second Amended and Restated Note Purchase Agreement (B-H)

 

MONUMENTAL LIFE INSURANCE COMPANY,

successor by merger to PEOPLES SECURITY LIFE INSURANCE COMPANY

 

By:		/s/ Bill Henricksen
Name:		Bill Henricksen
Title:		Vice President

 

THE MARITIME LIFE ASSURANCE COMPANY

    per THE MANUFACTURERS LIFE INSURANCE COMPANY

 

By:		/s/ Laurie Harding
Name:		Laurie Harding
Title:		VP, Canadian Private Placements

 

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY

 

By:     David L. Babson & Company, Inc., as Investment Adviser

 

By:		/s/ Kathleen Lynch
Name:		Kathleen Lynch
Title:		Managing Director

 

[Signature Page to Amendment no. 1 to

Second Amended and Restated Note Purchase Agreement (B-H)

 

 

ANNEX 1

 

CURRENT HOLDERS AND PRINCIPAL AMOUNTS

 

As of February 15, 2005

 

 

Annex 1-1

 

EXHIBIT A

 

AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENTS

 

1. Section 6 of the Existing Note Purchase Agreements is hereby amended and restated in its entirety as follows:

 

6.	GENERAL COVENANTS.

 

The Company covenants and agrees that on and after the Second Restatement Date and thereafter for so long as any of its obligations under the Note Purchase Agreements and the Notes shall be outstanding:

 

6.1

Payment of Taxes and Claims.

 

The Company shall, and shall cause each Subsidiary to, pay before they become delinquent,

 

(a) all taxes, assessments and governmental charges or levies imposed upon it or its Property, and

 

(b) all claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like Persons that, if unpaid, might result in the creation of a Lien upon its Property,

 

provided, that items of the foregoing description need not be paid (x)(i) while being contested in good faith and by appropriate proceedings diligently pursued as long as adequate book reserves have been established and maintained and exist with respect thereto, and (ii) so long as the title of the Company or the Subsidiary, as the case may be, to, and its right to use, such Property, is not materially adversely affected thereby or (y) if any failure to make any such payment could not reasonably be expected to have a Material Adverse Effect.

 

6.2

Maintenance of Properties and Corporate Existence.

 

The Company shall, and shall cause each Restricted Subsidiary to,

 

(a) Property — maintain its Property in good condition, ordinary wear and tear excepted, and make all necessary renewals, replacements, additions, betterments and improvements thereto, and, in addition to the foregoing, the Guarantors shall collectively, during each year, either expend or invest an aggregate amount equal to at least fifty percent (50%) of Depreciation determined for the then most recently ended fiscal year of the Company on repairs, maintenance or capital improvements to the “Improvements” (as such term is defined in the Deeds of Trust);

 

(b) Insurance — maintain, with financially sound and reputable insurers accorded a rating by A.M. Best Company of “A” or better and a size rating of “XII” or better (or comparable ratings by any comparable successor rating agency), insurance

 

Exhibit A-1

(including, without limitation, the insurance required by the Security Documents) with respect to its Property and business against such casualties and contingencies, of such types (including, without limitation, insurance with respect to losses arising out of Property loss or damage, public liability, business interruption, larceny, workers’ compensation, embezzlement or other criminal misappropriation) and in such amounts as is customary in the case of corporations of established reputations engaged in the same or a similar business and similarly situated; provided that the Company and the Restricted Subsidiaries may maintain one or more systems of self-insurance if adequate reserves are maintained with respect thereto and if such systems are implemented and operated in a manner consistent with the sound financial practices of similarly situated corporations of established reputations that maintain similar systems of self-insurance;

 

(c) Financial Records — maintain sound accounting policies and an adequate and effective system of accounts and internal accounting controls that will safeguard assets, properly record income, expenses and liabilities and assure the production of proper financial statements that the Company is required to deliver pursuant to the terms of Section 7;

 

(d) Corporate Existence and Rights — do or cause to be done all things necessary

 

(i) to preserve and keep in full force and effect its existence, rights and franchises,

 

(ii) to ensure that the Company legally and beneficially owns eighty-six percent (86%) of the capital stock of each class of Brown’s and one hundred percent (100%) of the capital stock of each of the other Guarantors, and

 

(iii) to maintain, subject to the provisions of Section 6.25, each Restricted Subsidiary as a Subsidiary, except as otherwise permitted by Section 6.14 and Section 6.15(b); and

 

(e) Compliance with Law — not be in violation of any law, ordinance or governmental rule or regulation to which it is subject (including, without limitation, the USA Patriot Act and any Environmental Protection Law) and not fail to obtain any license, permit, franchise or other governmental authorization necessary to the ownership of its Properties or to the conduct of its business if such violation or failure to obtain could be reasonably expected to have a Material Adverse Effect.

 

6.3

Payment of Notes and Maintenance of Office.

 

The Company shall punctually pay, or cause to be paid, the principal of and interest (and Make-Whole Amount, if any) to become due in respect of, the Notes, as and when the same shall become due according to the terms hereof and of the Notes, and shall maintain an office at the address of the Company set forth in Section 10.1 where notices, presentations and demands in respect hereof and of the Notes may be made upon it. Such office shall be maintained at such address until such time as the Company shall notify the holders of the Notes of any change of location of such office, which shall in any event be located within the United States of America.

 

Exhibit A-2

6.4

Intentionally Deleted.

 

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).

 

6.6

Funded Debt to Capitalization Ratio.

 

The Company shall not at any time permit Consolidated Funded Debt to exceed sixty-five percent (65%) of Consolidated Total Capitalization.

 

6.7

Maintenance of Funded Debt.

 

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.

 

6.8

Consolidated Interest Coverage Ratio; Consolidated Fixed Charges.

 

(a) The Company shall not permit the ratio of Consolidated EBITDA to Consolidated Interest Expense for any period of four consecutive fiscal quarters of the Company to be less than 3.00 to 1.00.

 

(b) 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 1.50 to 1.00.

 

6.9

Restrictions on Dividends, etc.

 

The Company shall not, and shall not permit any Restricted 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 Restricted Subsidiary to

 

(a) pay dividends or make any other distributions on such Restricted Subsidiary’s stock to the Company or any other Restricted Subsidiary,

 

(b) pay any indebtedness owed by such Restricted Subsidiary to the Company or any other Restricted Subsidiary,

 

(c) make loans or pay advances to the Company or any other Restricted Subsidiary, or

 

Exhibit A-3

(d) transfer any of its Property to the Company or any Guarantor;

 

provided, however, that:

 

(x) a Restricted 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 other Restricted 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 Restricted 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 Restricted Subsidiary may be subject to restrictions on the payment of dividends or the making of other distributions on its stock to the Company or the other Restricted 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 Restricted 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 Restricted 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 Restricted Subsidiary for such fiscal year.

 

6.10

Consolidated Net Worth.

 

The Company shall not at any time permit Consolidated Net Worth, determined at such time, to be less than the sum of

 

(a) one billion four hundred fifty million dollars ($1,450,000,000), plus

 

(b) the sum of the Company Fiscal Year Net Worth Increase Amounts calculated for all fiscal years of the Company ended on or after the Second Restatement Date.

 

Exhibit A-4

6.11

Terrorism Sanctions Regulations.

 

The Company will not and will not permit any Subsidiary to (a) become a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (b) engage in any dealings or transactions with any such Person.

 

6.12

Restricted Payments and Restricted Investments.

 

(a) Limitation on Restricted Payments and Restricted Investments. The Company shall not, and shall not permit any Restricted Subsidiary to, at any time declare or make or incur any liability to declare or make any Restricted Payment (other than Restricted Payments comprised solely of Distributions to the Company or a Wholly-Owned Restricted Subsidiary in respect of the capital stock of a Subsidiary (“ Permitted Distributions ”)) or make or authorize any Restricted Investment, unless

 

(i) immediately after giving effect to the proposed Restricted Payment or Restricted Investment, the aggregate amount of all Restricted Payments (other than Permitted Distributions) and Restricted Investments in each case made or authorized after February 1, 2000 does not exceed the sum of

 

(A) one hundred million dollars ($100,000,000); plus

 

(B) fifty percent (50%) of the aggregate Consolidated Net Income (or, in case such aggregate Consolidated Net Income shall be a deficit, minus one hundred percent (100%) of such deficit) for the period commencing on February 1, 2000 and ending on the date of such proposed transaction; plus

 

(C) one hundred percent (100%) of the aggregate net cash proceeds received by the Company after March 9, 2000 from the issuance or sale of shares of capital stock of the Company (other than Mandatorily Redeemable Stock); plus

 

(D) the market value of (but in any event not exceeding the Fair Market Value of the assets or stock acquired with) the shares of capital stock issued by the Company in payment for the stock or assets of any Person acquired by the Company or any Subsidiary after March 9, 2000 in an arm’s-length transaction;

 

(ii) immediately prior to, and immediately after giving effect to the proposed Restricted Payment or Restricted Investment, the Company would be permitted by Section 6.6 to incur at least one dollar ($1.00) of additional Funded Debt owed to a Person other than a Restricted Subsidiary; and

 

(iii) immediately prior to, and immediately after giving effect to, the proposed Restricted Payment or Restricted Investment, no Default or Event of Default exists or would exist.

 

Exhibit A-5

(b) Time of Payment of Distributions . The Company shall not, and shall not permit any Restricted Subsidiary to, authorize a Distribution on its capital stock that is not payable within sixty (60) days of authorization.

 

(c) Restricted Subsidiaries . Each Person that became or becomes a Preexisting Restricted Subsidiary or a New Restricted Subsidiary shall be deemed to have made, at the time it became or becomes a Subsidiary, all Restricted Investments of such Person existing immediately after it became or becomes a Preexisting Restricted Subsidiary or a New Restricted Subsidiary, as the case may be.

 

6.13

Liens.

 

(a) Negative Pledge . The Company shall not, and shall not permit any Restricted Subsidiary to, cause or permit, or agree or consent to cause or permit in the future (upon the happening of a contingency or otherwise), any of their Property, whether now owned or hereafter acquired, to be subject to a Lien except:

 

(i) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like Persons, provided that the payment thereof is not at the time required by Section 6.1 or by any provision of the other Financing Documents;

 

(ii) Liens incurred or deposits made in the ordinary course of business

 

(A) in connection with workers’ compensation, unemployment insurance, social security and other like laws, and

 

(B) to secure the performance of letters of credit, bids, tenders, sales contracts, leases, statutory obligations, surety and performance bonds (of a type other than set forth in Section 6.13(a)(iii)) and other similar obligations not incurred in connection with the borrowing of money, the obtaining of advances or the payment of the deferred purchase price of Property;

 

(iii) Liens

 

(A) arising from judicial attachments and judgments,

 

(B) securing appeal bonds, supersedeas bonds, or

 

(C) arising in connection with court proceedings (including, without limitation, surety bonds and letters of credit or any other instrument serving a similar purpose),

 

provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith

 

Exhibit A-6

and by appropriate proceedings, and provided further that the aggregate amount so secured shall not at any time exceed one million dollars ($1,000,000);

 

(iv) Liens in the nature of reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other similar title exceptions or encumbrances affecting real Property, provided that such exceptions and encumbrances do not in the aggregate materially detract from the value of such Properties or materially interfere with the use of such Properties in the ordinary conduct of the owning Person’s business;

 

(v) (A) Liens (of a type other than set forth in Section 6.13(a)(ix)) in existence on the First Restatement Date, more specifically described on Part 6.13(a)(v) of Annex 2; and

 

(B) Liens securing renewals, extensions and refinancings of Debt secured by the Liens permitted by clause (A) immediately above, provided that the amount of Debt secured by each such Lien is not increased in excess of the amount of Debt outstanding on the date such Lien was originally created, and none of such Liens is extended to include any additional Property of the Company or any Restricted Subsidiary;

 

(vi) on or prior to the Collateral Release Date, Liens on the Collateral

 

(A) in favor of the Security Trustee for the benefit of the holders of the Notes that secure obligations under any of the Financing Documents, and

 

(B) constituting Permitted Exceptions;

 

(vii) on or prior to the Collateral Release Date, Liens on Property (other than the Collateral) securing Funded Debt (other than Funded Debt outstanding under the Credit Facility) incurred and permitted to exist in accordance with the provisions of Sections 6.6 and 6.7;

 

(viii) Purchase Money Liens, if, after giving effect thereto and to any concurrent transactions:

 

(A) each such Purchase Money Lien secures Debt in an amount not exceeding the cost of acquisition or construction of the particular Property to which such Debt relates; and

 

(B) no Default or Event of Default would exist;

 

(ix) on or prior to the Collateral Release Date, Liens on Property of the Restricted Subsidiaries primarily constituting inventory or accounts that secure obligations arising under Revolving Credit Agreements of the Company or any Restricted Subsidiary; and

 

Exhibit A-7

(x) after the Collateral Release Date, Liens securing Debt of the Company or any Subsidiary, provided that at the time of the incurrence thereof and after giving effect thereto and to the concurrent retirement of any other Debt,

 

(A) the aggregate outstanding principal amount of all Debt of the Company and the Subsidiaries secured by Liens (including, without limitation, Liens permitted by Section 6.13(a)(v) and Section 6.13(a)(viii)) would not exceed fifteen percent (15%) of Consolidated Total Tangible Net Worth, determined at such time; and

 

(B) no Default or Event of Default would exist.

 

(b) Collateral . Nothing in this Section 6.13 shall be deemed to permit the Company or any Guarantor to cause or permit, or agree or consent to cause or permit in the future (upon the happening of a contingency or otherwise), any of the Collateral, whether now owned or hereafter acquired, to be subject to a Lien in violation of the terms of the Security Documents.

 

(c) Stock . Notwithstanding anything to the contrary in Section 6.13(a), the Company shall not, and shall not permit any Restricted Subsidiary to cause or permit, or agree or consent to cause or permit in the future (upon the happening of a contingency or otherwise), any of the capital stock of any Restricted Subsidiary, whether now owned or hereafter acquired, to be subject to a Lien.

 

(d) Equal and Ratable Lien; Equitable Lien . In case any Property not otherwise the subject of a prior perfected Lien in favor of the Security Trustee shall be subjected to a Lien in violation of this Section 6.13, the Company shall forthwith make or cause to be made, to the fullest extent permitted by applicable law, provision whereby the Notes shall be secured equally and ratably with all other obligations secured thereby pursuant to such agreements and instruments as shall be approved by the Required Holders, and the Company shall cause to be delivered to each holder of a Note an opinion of independent counsel to the effect that such agreements and instruments are enforceable in accordance with their terms, and in any such case the Notes shall have the benefit, to the full extent that, and with such priority as, the holders may be entitled thereto under applicable law, of an equitable Lien on such Property securing the Notes. Such violation of this Section 6.13 shall constitute an Event of Default hereunder, whether or not any such provision is made pursuant to this Section 6.13(d).

 

(e) Financing Statements . The Company shall not, and shall not permit any Restricted Subsidiary to, sign or file a financing statement under the Uniform Commercial Code of any jurisdiction that names the Company or such Restricted Subsidiary as debtor, or sign any security agreement authorizing any secured party thereunder to file any such financing statement, except, in any such case, a financing statement filed or to be filed to perfect or protect a security interest that the Company or such Restricted Subsidiary is entitled to create, assume or i