EXHIBIT 4.3(j)
SMITHFIELD FOODS,
INC.
AMENDMENT AGREEMENT NO.
5
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) 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 Amended and Restated
Note Purchase Agreements each dated as of October 27, 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.
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 31, 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.
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, 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 5
shall limit the Issuer’s obligations pursuant to Section 1.5
of the Existing Purchase Agreements.
2
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 w
