EX-4.4A 7 dex44a.txt AMENDMENT AGREEMENT NO. 1 EXHIBIT 4.4(a) SMITHFIELD FOODS, INC. AMENDMENT AGREEMENT NO. 1 As of December 7, 2001 To each of the Current Holders Named in Annex 1 hereto Ladies and Gentlemen: Smithfield Foods, Inc., a Virginia corporation (together with its respective successors and assigns, the "Issuer") agrees with you as follows: 1. PRELIMINARY STATEMENTS. 1.1. Note Issuance, etc. The Issuer issued and sold: (a) Nine Million Eight Hundred and Fifty-Two Thousand Nine Hundred Forty-Two Dollars ($9,852,942) in aggregate principal amount of 8.41% Series B Senior Secured Notes due August 1, 2006 (as they may be amended, restated or otherwise modified from time to time, the "Series B Notes"); (b) Forty Million Dollars ($40,000,000) in aggregate principal amount of its 8.34% Series C Senior Secured Notes due August 1, 2003 (as they may be amended, restated or otherwise modified from time to time, the "Series C Notes"); (c) Nine Million Dollars ($9,000,000) in aggregate principal amount of its 9.80% Series D Senior Secured Notes due August 1, 2003 (as they may be amended, restated or otherwise modified from time to time, the "Series D Notes"); (d) Nine Million Two Hundred Fifty Thousand Dollars ($9,250,000) in aggregate principal amount of its 10.75% Series E Senior Secured Notes due August 1, 2005 (as they may be amended, restated or otherwise modified from time to time, the "Series E Notes"); (e) One Hundred Million Dollars ($100,000,000) in aggregate principal amount of its 8.52% Series F Senior Secured Notes due August 1, 2006 (as they may be amended, restated or otherwise modified from time to time, the "Series F Notes"); (f) Fourteen Million Dollars ($14,000,000) in aggregate principal amount of its 9.85% Series G Senior Secured Notes due November 1, 2006 (as they may be amended, restated or otherwise modified from time to time, the "Series G Notes"); and (g) Fourteen Million Seven Hundred Seventy-Nine Thousand Four Hundred and Twelve Dollars ($14,779,412) in aggregate principal amount of its 8.41% Series H Senior Secured Notes due August 1, 2004 (as they may be amended, restated or otherwise modified from time to time, the "Series H Notes"); pursuant to those separate Amended and Restated Note Purchase Agreements each dated as of October 31, 1999 between the Issuer and the purchasers named in Annex 1 thereto (the "Existing Purchase Agreements"). The register kept by the Issuer for the registration and transfer of the Notes indicates that each of the Persons named in Annex 1 hereto (collectively, the "Current Holders") is currently a holder of the aggregate principal amount of the Notes indicated in such Annex. 2. DEFINED TERMS. Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in the Existing Purchase Agreements. 3. AMENDMENTS TO EXISTING PURCHASE AGREEMENTS; PREPAYMENT. 3.1 Amendments. Subject to Section 5, the Current Holders and the Issuer hereby agree to each of the amendments to the Current Holders' rights with respect to the Existing Purchase Agreements as provided for by this Amendment Agreement No. 1 (this "Amendment Agreement") in the manner specified in Exhibit A. Such amendments are referred to herein, collectively, as the "Amendments". 4. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. To induce you to enter into this Amendment Agreement and to consent to the Amendments, the Issuer represents and warrants as follows: 4.1. Material Adverse Effect. Since the date of the last audited consolidated financial statements of the 2 Issuer delivered to each of the Current Holders, no event has occurred or condition exists which has had, or could reasonably be expected to have, a Material Adverse Effect. 4.2. Organization, Power and Authority, etc. The Issuer is duly organized and validly existing under the laws of its jurisdiction of organization and has all requisite corporate power and authority to enter into and perform its obligations under this Amendment Agreement. 4.3. Legal Validity. The execution and delivery of this Amendment Agreement by the Issuer and compliance by the Issuer with its obligations hereunder: (a) are within the corporate powers, of the Issuer; and (b) are legal and do not conflict with, result in any breach of, constitute a default under, or result in the creation of any Lien upon any Property of the Issuer under the provisions of: (i) any charter instrument or bylaw to which the Issuer is a party or by which the Issuer or any of its Property may be bound; (ii) any order, judgment, decree or ruling of any court, arbitrator or governmental authority applicable to the Issuer or its Property; or (iii) any agreement or instrument to which the Issuer is a party or by which the Issuer or any of its Property may be bound or any statute or other rule or regulation of any governmental authority applicable to the Issuer or its Property, except where such conflict, breach or default could not reasonably be expected to have a Material Adverse Effect. This Amendment Agreement has been duly authorized by all necessary action on the part of the Issuer, has been executed and delivered by a duly authorized officer of the Issuer, and constitutes a legal, valid and binding obligation of the Issuer, enforceable in accordance with its terms, except that enforceability may be limited by applicable bankruptcy, reorganization, arrangement, insolvency, moratorium, or other similar laws affecting the enforceability of creditors' rights generally and subject to the availability of equitable remedies. 4.4. No Defaults. After giving effect to the Amendments set forth in this Amendment Agreement, no Default or Event of Default will exist. 4.5. Credit Agreement. All representations and warranties of the Issuer in the Credit Agreement are true and correct in all material respects. 5. EFFECTIVENESS OF AMENDMENTS. 3 5.1. Conditions. The Amendments shall become effective as of the first date written above (the "Effective Date"), if at all, at such time as all of the Current Holders shall have indicated their written consent to such amendments by executing and delivering the applicable counterparts of this Amendment Agreement. It is understood that any Current Holder may withhold its consent for any reason, and that, without limitation of the foregoing, any Current Holder hereby makes the granting of its consent contingent upon delivery to it of the following: (a) true and correct copies of the fully executed Multi-Year Credit Agreement among the Issuer, certain of its subsidiaries, JP Morgan Chase Bank as administrative agent and the lenders party thereto dated as of December 7, 2001 (the "Credit Agreement"); (b) the Current Holders shall have received from the Issuer an executed Intercreditor Agreement by and among the Issuer, each of the subsidiaries of the Issuer identified therein under the caption "Subsidiary Guarantors", each of the banks and other financial institutions identified therein under the caption "Initial Lenders", JP Morgan Chase Bank in its capacity as administrative agent and in its capacity as collateral agent, each of the Current Holders, and First Union National Bank as security trustee, in form and substance satisfactory to the Current Holders; (c) the payment of the expenses to be paid on behalf of the Current Holders pursuant to Section 6 of this Amendment Agreement (to the extent a statement therefore has been presented to the Issuers on or prior to the Effective Date); (d) the Current Holders shall have received from each of the guarantors to the Credit Agreement (the "Additional Guarantors"), a fully executed Guaranty, in form and substance satisfactory to the Current Holders, unconditionally guaranteeing in full the obligations of the Issuer under or in respect of the Notes and Existing Purchase Agreements; and (e) the Current Holders shall have received from special counsel to the Additional Guarantors, a closing opinion, dated as of the Effective Date, and in form and substance satisfactory to the Current Holders. This Section 5.1(e) shall constitute direction by each of the Additional Guarantors to such counsel to deliver such closing opinion to the Current Holders. 5.2. Agreement and Reaffirmation of each Guarantor. 4 By their execution and delivery of this Amendment Agreement, each Guarantor agrees and consents to the Amendments and reaffirms its obligation to unconditionally guaranty in full all of the obligations of the Issuer under or in respect of the Notes and the Existing Purchase Agreements as amended hereby under its Joint and Several Guaranty dated as of July 15, 1996, as the same may be amended, restated, modified or supplemented from time to time. 6. EXPENSES. Whether or not the Amendments become effective, the Issuer will promptly (and in any event within thirty (30) days of receiving any statement or invoice therefor) pay all fees, expenses and costs relating to this Amendment Agreement, including, but not limited to, the reasonable fees of your special counsel, Bingham Dana LLP, incurred in connection with the preparation, negotiation and delivery of this Amendment Agreement and any other documents related thereto. Nothing in this Section shall limit the Issuer's obligations pursuant to Section 1.4 of the Existing Purchase Agreements. 7. MISCELLANEOUS. 7.1. Part of Existing Purchase Agreements; Future References, etc. This Amendment Agreement shall be construed in connection with and as a part of the Existing Purchase Agreements and, except as expressly amended by this Amendment Agreement, all terms, conditions and covenants contained in the Existing Purchase Agreements are hereby ratified and shall be and remain in full force and effect. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment Agreement may refer to the Existing Purchase Agreements without making specific reference to this Amendment Agreement, but nevertheless all such references shall include this Amendment Agreement unless the context otherwise requires. 7.2. Counterparts. This Amendment Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. 7.3. Governing Law. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE 5 COMMONWEALTH OF VIRGINIA EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN VIRGINIA. 6 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/ Daniel G. Stevens --------------------- Name: Daniel G. Stevens Title: Vice President 7 The foregoing Amendment Agreement is hereby accepted as of the date first above written. JOHN HANCOCK LIFE INSURANCE COMPANY By: /s/ Scott A. McFetridge ----------------------- Name: Scott A. McFetridge Title: Managing Director JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY By: /s/ Scott A. McFetridge ----------------------- Name: Scott A. McFetridge Title: Managing Director MELLON BANK, N.A., solely in its capacity as Trustee for the BELL ATLANTIC MASTER TRUST, (as directed by John Hancock Financial Services, Inc.), and not in its individual capacity By: /s/ Bernadette Rist ------------------- Name: Bernadette Rist Title: Authorized Signatory 8 MELLON BANK, N. A., solely in its capacity as Trustee for the LONG-TERM INVESTMENT TRUST, (as directed by John Hancock Financial Services, Inc.), and not in its individual capacity By: /s/ Bernadette Rist ------------------- Name: Bernadette Rist Title: Authorized Signatory THE NORTHERN TRUST COMPANY, AS TRUSTEE OF THE LUCENT TECHNOLOGIES INC. MASTER PENSION TRUST By: John Hancock Life Insurance Company, as Investment Manager By: /s/ Scott A. McFetridge ----------------------- Name: Scott A. McFetridge Title: Authorized Signatory 9 THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY By: /s/ David A. Barras ------------------- Name: David A. Barras Title: Its Authorized Representative AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY (successor by merger to The Independent Life and Accident Insurance Company) THE VARIABLE ANNUITY LIFE INSURANCE COMPANY By: American General Investment Management, L.P. By: American General Investment Management Corporation, it general partner By: /s/ Lochlan O. McNew -------------------- Name: Lochlan O. McNew Title: Senior Vice President 10 UNITED OF OMAHA LIFE INSURANCE COMPANY By: /s/ Illegible ------------- Name: Illegible Title: First Vice President COMPANION LIFE INSURANCE COMPANY By: /s/ Edwin H. Garrison, Jr. ------------------------- Name: Edwin H. Garrison, Jr. Title: Assistant Treasurer MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY By: David L. Babson & Company, Inc., as Investment Adviser By: /s/ Kathleen Lynch ------------------ Name: Kathleen Lynch Title: Managing Director 11 MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY (as successor in interest to Unicare Life & Health Insurance Company) By: David L. Babson & Company, Inc., as Investment Adviser By: /s/ Kathleen Lynch ------------------ Name: Kathleen Lynch Title: Managing Director C.M. LIFE INSURANCE COMPANY By: David L. Babson & Company, Inc., as Investment Sub-Adviser By: /s/ Kathleen Lynch ------------------ Name: Kathleen Lynch Title: Managing Director 12 The undersigned consent to the Amendments effected by the foregoing Amendment Agreement. MURPHY FARMS LLC CIRCLE FOUR LLC BROWN'S OF CAROLINA, LLC CARROLL'S FOODS LLC SMITHFIELD PACKING REAL ESTATE, LLC BROWN'S FARMS, LLC MURPHY-BROWN LLC QUARTER M LLC, each a Delaware limited liability company By MURPHY-BROWN LLC, a Delaware corporation, as its sole member of each By JOHN MORRELL & CO., a Delaware corporation, as its sole member /s/ Danial G. Stevens --------------------- Daniel G. Stevens Vice President GWALTNEY OF SMITHFIELD, LTD. JOHN MORRELL & CO. THE SMITHFIELD PACKING COMPANY, INCORPORATED SFFC, INC. PATRICK CUDAHY INCORPORATED CARROLL'S REALTY, INC. CARROLL'S REALTY PARTNERSHIP NORTH SIDE FOODS CORP. LYKES MEAT GROUP, INC. SMITHFIELD-CARROLL'S FARMS CENTRAL PLAINS FARMS, INC. By: /s/ Daniel G. Stevens --------------------- Daniel G. Stevens Vice President 13 Annex 1-1 Exhibit A AMENDMENTS TO EXISTING PURCHASE AGREEMENTS 1. Section 6.9 of the Existing Purchase Agreements is hereby amended and restated in its entirety to read as follows: "6.9 Restrictions on Dividends, etc. The Company shall not, and shall not permit any Subsidiary to, create or otherwise cause or suffer to exist or become effective any restriction or encumbrance (other than statutory, regulatory or common law restrictions) on the right or power of any Subsidiary to (a) pay dividends or make any other distributions on such Subsidiary's stock to the Company or any Subsidiary, (b) pay any indebtedness owed by such Subsidiary to the Company or any Subsidiary, (c) make loans or pay advances to the Company or any Subsidiary, or (d) transfer any of its Property to the Company or any Guarantor; provided, however, that: (x) a Subsidiary may be subject to an encumbrance or restriction described in subsection (d) above if such encumbrance or restriction (i) restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, or similar contract, (ii) exists by virtue of any transfer of, agreement to transfer, option, or right with respect to, any property or assets of the Company or any Subsidiary not otherwise prohibited by this Note Purchase Agreement, or (iii) is contained in a security agreement, mortgage or other similar document securing Debt of the Company or any Subsidiary that is permitted hereunder to the extent such restriction or encumbrance restricts the transfer of the property subject to such agreement, or (iv) ordinary course provisions restricting the assignability of contracts; (y) a Subsidiary may be subject to restrictions on the payment of dividends or the making of other distributions on its Exhibit A-1 stock to the Company or the other Subsidiaries so long as such restrictions permit the payment of such dividends and the making of such other distributions that are necessary in order to make any and all payments due (including, without limitation, any and all amounts due by way of acceleration, required or optional prepayment or otherwise) in connection with the Notes, the Note Purchase Agreements and the other Financing Documents, and any and all indebtedness used to refinance or repay such indebtedness (without increase as to principal amount or interest rate of such refinancing indebtedness); and (z) a Subsidiary may be subject to any such encumbrance and restriction that is not otherwise allowed under subsections (x) and (y) above, so long as the aggregate contributions to Consolidated EBITDA for the period of four (4) fiscal quarters then most recently ended of all Subsidiaries subject to such encumbrances and restrictions that are not otherwise allowed under subsections (x) and (y) above, are less than or equal to fifteen percent (15%) of such Consolidated EBITDA; such contribution shall be based on the earnings before interest, taxes, depreciation and amortization of each such Subsidiary for such fiscal year." 2. The following definitions in Section 9.1 of the Existing Purchase Agreements are hereby amended and restated read as follows: "Credit Facility -- means that certain Multi-Year Credit Agreement among the Company, certain of the Subsidiaries, JP Morgan Chase Bank as administrative agent and the lenders party thereto, providing for an aggregate amount of up to seven hundred fifty million dollars ($750,000,000) in loans to the Company, as it may be amended, supplemented, or modified from time to time and any renewal, increase, extension, refunding, restructuring, replacement or refinancing thereof (whether with the original administrative agent and lenders or another administrative agent or agents or one or more other lenders and whether provided under the original Multi-Year Credit Agreement or one or more other credit or other agreements)." Exhibit A-2