UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 7, 2016
SMITHFIELD FOODS, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Virginia | 1-15321 | 52-0845861 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
| 200 Commerce Street Smithfield, Virginia |
23430 | |||
| (Address of Principal Executive Offices) | (Zip Code) | |||
Registrant’s telephone number, including area code: (757) 365-3000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
On December 7, 2016, WH Group Limited, a Cayman Islands limited liability company (the “Parent Guarantor”), Smithfield Foods, Inc., its wholly-owned subsidiary (the “Company”), and U.S. Bank National Association, as trustee (the “Trustee”), entered into (i) the Fourth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, to the Indenture, dated as of June 1, 2007, as supplemented by the First Supplemental Indenture dated as of June 22, 2007, and as amended by Amendment No. 1 to the First Supplemental Indenture, dated as of July 8, 2013, relating to the Company’s 7.750% Senior Notes due 2017 (the “2017 Notes”), (ii) the Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, to the Indenture, dated as of July 31, 2013, between Sun Merger Sub, Inc. (“Merger Sub”) and the Trustee, as amended by the First Supplemental Indenture dated as of September 26, 2013, by and between the Company and the Trustee, pursuant to which the Company succeeded to all of the rights and obligations of Merger Sub, relating to the Company’s 5.250% Senior Notes due 2018 (the “2018 Notes”), (iii) the Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, to the Indenture, dated as of July 31, 2013, between Merger Sub and the Trustee, as amended by the First Supplemental Indenture dated as of September 26, 2013, by and between the Company and the Trustee, pursuant to which the Company succeeded to all of the rights and obligations of Merger Sub, relating to the Company’s 5.875% Senior Notes due 2021 (the “2021 Notes”), and (iv) the Fifth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, to the Indenture, dated as of June 1, 2007, as supplemented by the Third Supplemental Indenture dated as of August 1, 2012, relating to the Company’s 6.625% Senior Notes due 2022 (the “2022 Notes,” and together with the 2017 Notes, the 2018 Notes and the 2021 Notes, the “Notes”), pursuant to which supplemental indentures and parent guarantees (the “Supplemental Indentures and Parent Guarantees”) the Parent Guarantor will irrevocably and unconditionally guarantee the obligations of the Company under the Notes and each of the indentures governing the Notes (the “Indentures”).
In connection with the entry into the Supplemental Indentures and Parent Guarantees, the corporate credit rating of the Company has been upgraded and the Company now has “Investment Grade Status” under each of the Indentures. As a result of the Company’s reaching Investment Grade Status under each of the Indentures, substantially all of the restrictive covenants under the Indentures are no longer in effect upon the Company. In particular, the Company will no longer be required to and will not voluntarily file annual, quarterly or periodic reports with the Securities and Exchange Commission pursuant to the Indentures.
Copies of each of the Supplemental Indentures and Parent Guarantees are attached hereto as Exhibits 4.1, 4.2, 4.3 and 4.4 respectively, and are incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders.
See Item 1.01 hereto, which is incorporated herein by reference, with respect to the execution of the Supplemental Indentures and Parent Guarantees on December 7, 2016.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| 4.1 | Fourth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2017 Notes). | |
| 4.2 | Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2018 Notes). | |
| 4.3 | Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2021 Notes). | |
| 4.4 | Fifth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2022 Notes). | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SMITHFIELD FOODS, INC. | ||
| By: | /s/ Michael H. Cole | |
| Michael H. Cole | ||
Date: December 8, 2016
EXHIBIT INDEX
| 4.1 | Fourth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2017 Notes). | |
| 4.2 | Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2018 Notes). | |
| 4.3 | Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2021 Notes). | |
| 4.4 | Fifth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016, by and among Smithfield Foods, Inc., as Issuer, WH Group Limited, as Parent Guarantor, and U.S. Bank National Association, as Trustee (2022 Notes). | |
Exhibit 4.1
SMITHFIELD FOODS, INC.,
as Issuer
7.750% Senior Notes due 2017
FOURTH SUPPLEMENTAL INDENTURE AND PARENT GURANTEE
Dated as of December 7, 2016
U.S. Bank National Association,
as Trustee
FOURTH SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
This Fourth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016 (this “Supplemental Indenture” or “Guarantee”), among WH Group Limited, a Cayman Islands limited liability company (the “Parent Guarantor”), Smithfield Foods, Inc. (together with its successors and assigns, the “Company”), and U.S. Bank National Association, as Trustee under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture, dated as of June 1, 2007 (the “Original Indenture”), as supplemented by the First Supplemental Indenture dated as of June 22, 2007, and as amended by Amendment No. 1 to the First Supplemental Indenture, dated as of July 8, 2013 (as so amended, the “First Supplemental Indenture,” and together with the Original Indenture, as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), providing for the issuance of an unlimited aggregate principal amount of 7.750% Senior Notes due 2017 of the Company (the “Securities”);
WHEREAS, the Company is a wholly-owned subsidiary of the Parent Guarantor;
WHEREAS, pursuant to Section 7.01 of the First Supplemental Indenture, the Trustee and the Company may amend the Indenture without written notice to or consent of any Holder to add Guarantees with respect to the Securities; and
WHEREAS, acting pursuant to Section 7.01 of the First Supplemental Indenture, the Company desires to cause the Parent Guarantor to irrevocably and unconditionally guarantee the obligations of the Company under the Securities;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parent Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this Guarantee shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; PARENT GUARANTEE
Section 2.1. Agreement to be Bound. The Parent Guarantor hereby becomes a party to the Indenture as a guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a guarantor under the Indenture.
Section 2.2. Guarantee.
(a) The Parent Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Securities and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Obligations”). The Parent Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Supplemental Indenture notwithstanding any extension or renewal of any Obligation.
(b) The Parent Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. The Parent Guarantor waives notice of any default under the Securities, the Obligations or the Indenture. The obligations of the Parent Guarantor hereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company, the Parent Guarantor or any other person under the Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, any Subsidiary Guarantee, the Securities or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (vi) any change in the ownership of the Company.
(c) The Parent Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations.
(d) The obligations of the Parent Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Parent Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under the Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Parent Guarantor or would otherwise operate as a discharge of the Parent Guarantor as a matter of law or equity.
(e) The Parent Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Obligations. The Parent Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Parent Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration,
2
by redemption or otherwise, the Parent Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
(g) The Parent Guarantor further agrees that, as between the Parent Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for the purposes of this Guarantee.
(h) The Parent Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 2.2.
Section 2.3. Limitation on Liability. The obligations of the Parent Guarantor hereunder will be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance or fraudulent transfer under federal or state law and that it is not otherwise void or voidable under any similar laws affecting the rights of creditors generally.
Section 2.4. Release and Discharge. The Parent Guarantor will be deemed released from all its obligations under the Indenture and its Guarantee and such Guarantee will terminate upon the legal defeasance or covenant defeasance of the Securities pursuant to the provisions of Article IV of the Original Indenture and Article VI of the First Supplemental Indenture.
Section 2.5. No Subrogation. Notwithstanding any payment or payments made by Parent Guarantor hereunder, Parent Guarantor shall not be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any Subsidiary Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Obligations, nor shall Parent Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any Subsidiary Guarantor in respect of payments made by Parent Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Obligations are paid in full. If any amount shall be paid to Parent Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by Parent Guarantor in trust for the Trustee and the Holders, segregated from other funds of Parent Guarantor, and shall, forthwith upon receipt by Parent Guarantor, be turned over to the Trustee in the exact form received by Parent Guarantor (duly indorsed by Parent Guarantor to the Trustee, if required), to be applied against the Obligations.
ARTICLE III
MISCELLANEOUS
Section 3.1. Notices. All notices and other communications to the Parent Guarantor shall be given as provided in the Indenture, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company:
WH Group Limited
Unit 7602B, International Commerce Centre
1 Austin Road West
Kowloon, Hong Kong
Facsimile: +852 2868 6001
Attention: General Counsel
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Section 3.2. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 3.3. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.4. Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
Section 3.6. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
Section 3.7. Headings. The headings of the Articles and the sections in this Guarantee are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| WH GROUP LIMITED, | ||
| as Parent Guarantor | ||
| By: | /s/ Wan Long | |
| Name: | Wan Long | |
| Title: | Chairman | |
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David Ferrell | |
| Name: | David Ferrell | |
| Title: | Vice President | |
| SMITHFIELD FOODS, INC. | ||
| By: | /s/ Timothy Dykstra | |
| Name: | Timothy Dykstra | |
| Title: | Vice President and Corporate Treasurer | |
Exhibit 4.2
SMITHFIELD FOODS, INC.,
as Issuer
5.250% Senior Notes due 2018
SECOND SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
Dated as of December 7, 2016
U.S. Bank National Association,
as Trustee
SECOND SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
This Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016 (this “Supplemental Indenture” or “Guarantee”), among WH Group Limited, a Cayman Islands limited liability company (the “Parent Guarantor”), Smithfield Foods, Inc. (together with its successors and assigns, the “Company”), and U.S. Bank National Association, as Trustee under the Indenture referred to below.
WITNESSETH:
WHEREAS, Sun Merger Sub, Inc. (“Merger Sub”) and the Trustee have heretofore executed and delivered an Indenture, dated as of July 31, 2013 (the “Original Indenture”), providing for the issuance of an unlimited aggregate principal amount of 5.250% Senior Notes due 2018 (the “Securities”);
WHEREAS, pursuant to the First Supplemental Indenture dated as of September 26, 2013, by and between the Company and the Trustee, the Company succeeded to all of the rights and obligations of Merger Sub under the Securities and the Original Indenture (the “First Supplemental Indenture,” and together with the Original Indenture, as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”);
WHEREAS, the Company is a wholly-owned subsidiary of the Parent Guarantor;
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Trustee and the Company may amend the Indenture without notice to or consent of any Holder to add Guarantees with respect to the Securities; and
WHEREAS, acting pursuant to Section 9.01 of the Original Indenture, the Company desires to cause the Parent Guarantor to irrevocably and unconditionally guarantee the obligations of the Company under the Securities;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parent Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this Guarantee shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; PARENT GUARANTEE
Section 2.1. Agreement to be Bound. The Parent Guarantor hereby becomes a party to the Indenture as a guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a guarantor under the Indenture.
Section 2.2. Guarantee.
(a) The Parent Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Securities and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Obligations”). The Parent Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Supplemental Indenture notwithstanding any extension or renewal of any Obligation.
(b) The Parent Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. The Parent Guarantor waives notice of any default under the Securities, the Obligations or the Indenture. The obligations of the Parent Guarantor hereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company, the Parent Guarantor or any other person under the Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, any Subsidiary Guarantee, the Securities or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (vi) any change in the ownership of the Company.
(c) The Parent Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations.
(d) The obligations of the Parent Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Parent Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under the Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Parent Guarantor or would otherwise operate as a discharge of the Parent Guarantor as a matter of law or equity.
(e) The Parent Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Obligations. The Parent Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Parent Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, the Parent Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
(g) The Parent Guarantor further agrees that, as between the Parent Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for the purposes of this Guarantee.
(h) The Parent Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 2.2.
Section 2.3. Limitation on Liability. The obligations of the Parent Guarantor hereunder will be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance or fraudulent transfer under federal or state law and that it is not otherwise void or voidable under any similar laws affecting the rights of creditors generally.
Section 2.4. Release and Discharge. The Parent Guarantor will be deemed released from all its obligations under the Indenture and its Guarantee and such Guarantee will terminate upon the legal defeasance or covenant defeasance of the Securities pursuant to the provisions of Article VIII of the Original Indenture.
Section 2.5. No Subrogation. Notwithstanding any payment or payments made by Parent Guarantor hereunder, Parent Guarantor shall not be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any Subsidiary Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Obligations, nor shall Parent Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any Subsidiary Guarantor in respect of payments made by Parent Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Obligations are paid in full. If any amount shall be paid to Parent Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by Parent Guarantor in trust for the Trustee and the Holders, segregated from other funds of Parent Guarantor, and shall, forthwith upon receipt by Parent Guarantor, be turned over to the Trustee in the exact form received by Parent Guarantor (duly indorsed by Parent Guarantor to the Trustee, if required), to be applied against the Obligations.
ARTICLE III
MISCELLANEOUS
Section 3.1. Notices. All notices and other communications to the Parent Guarantor shall be given as provided in the Indenture, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company:
WH Group Limited
Unit 7602B, International Commerce Centre
1 Austin Road West
Kowloon, Hong Kong
Facsimile: +852 2868 6001
Attention: General Counsel
Section 3.2. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 3.3. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.4. Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
Section 3.6. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
Section 3.7. Headings. The headings of the Articles and the sections in this Guarantee are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| WH GROUP LIMITED, | ||
| as Parent Guarantor | ||
| By: | /s/ Wan Long | |
| Name: | Wan Long | |
| Title: | Chairman | |
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David Ferrell | |
| Name: | David Ferrell | |
| Title: | Vice President | |
| SMITHFIELD FOODS, INC. | ||
| By: | /s/ Timothy Dykstra | |
| Name: | Timothy Dykstra | |
| Title: | Vice President and Corporate Treasurer | |
Exhibit 4.3
SMITHFIELD FOODS, INC.,
as Issuer
5.875% Senior Notes due 2021
SECOND SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
Dated as of December 7, 2016
U.S. Bank National Association,
as Trustee
SECOND SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
This Second Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016 (this “Supplemental Indenture” or “Guarantee”), among WH Group Limited, a Cayman Islands limited liability company (the “Parent Guarantor”), Smithfield Foods, Inc. (together with its successors and assigns, the “Company”), and U.S. Bank National Association, as Trustee under the Indenture referred to below.
WITNESSETH:
WHEREAS, Sun Merger Sub, Inc. (“Merger Sub”) and the Trustee have heretofore executed and delivered an Indenture, dated as of July 31, 2013 (the “Original Indenture”), providing for the issuance of an unlimited aggregate principal amount of 5.875% Senior Notes due 2021 (the “Securities”);
WHEREAS, pursuant to the First Supplemental Indenture dated as of September 26, 2013, by and between the Company and the Trustee, the Company succeeded to all of the rights and obligations of Merger Sub under the Securities and the Original Indenture (the “First Supplemental Indenture,” and together with the Original Indenture, as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”);
WHEREAS, the Company is a wholly-owned subsidiary of the Parent Guarantor;
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Trustee and the Company may amend the Indenture without notice to or consent of any Holder to add Guarantees with respect to the Securities; and
WHEREAS, acting pursuant to Section 9.01 of the Original Indenture, the Company desires to cause the Parent Guarantor to irrevocably and unconditionally guarantee the obligations of the Company under the Securities;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parent Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this Guarantee shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; PARENT GUARANTEE
Section 2.1. Agreement to be Bound. The Parent Guarantor hereby becomes a party to the Indenture as a guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a guarantor under the Indenture.
Section 2.2. Guarantee.
(a) The Parent Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Securities and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Obligations”). The Parent Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Supplemental Indenture notwithstanding any extension or renewal of any Obligation.
(b) The Parent Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. The Parent Guarantor waives notice of any default under the Securities, the Obligations or the Indenture. The obligations of the Parent Guarantor hereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company, the Parent Guarantor or any other person under the Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, any Subsidiary Guarantee, the Securities or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (vi) any change in the ownership of the Company.
(c) The Parent Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations.
(d) The obligations of the Parent Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Parent Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under the Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Parent Guarantor or would otherwise operate as a discharge of the Parent Guarantor as a matter of law or equity.
(e) The Parent Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Obligations. The Parent Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Parent Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, the Parent Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
(g) The Parent Guarantor further agrees that, as between the Parent Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for the purposes of this Guarantee.
(h) The Parent Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 2.2.
Section 2.3. Limitation on Liability. The obligations of the Parent Guarantor hereunder will be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance or fraudulent transfer under federal or state law and that it is not otherwise void or voidable under any similar laws affecting the rights of creditors generally.
Section 2.4. Release and Discharge. The Parent Guarantor will be deemed released from all its obligations under the Indenture and its Guarantee and such Guarantee will terminate upon the legal defeasance or covenant defeasance of the Securities pursuant to the provisions of Article VIII of the Original Indenture.
Section 2.5. No Subrogation. Notwithstanding any payment or payments made by Parent Guarantor hereunder, Parent Guarantor shall not be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any Subsidiary Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Obligations, nor shall Parent Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any Subsidiary Guarantor in respect of payments made by Parent Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Obligations are paid in full. If any amount shall be paid to Parent Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by Parent Guarantor in trust for the Trustee and the Holders, segregated from other funds of Parent Guarantor, and shall, forthwith upon receipt by Parent Guarantor, be turned over to the Trustee in the exact form received by Parent Guarantor (duly indorsed by Parent Guarantor to the Trustee, if required), to be applied against the Obligations.
ARTICLE III
MISCELLANEOUS
Section 3.1. Notices. All notices and other communications to the Parent Guarantor shall be given as provided in the Indenture, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company:
WH Group Limited
Unit 7602B, International Commerce Centre
1 Austin Road West
Kowloon, Hong Kong
Facsimile: +852 2868 6001
Attention: General Counsel
Section 3.2. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 3.3. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.4. Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
Section 3.6. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
Section 3.7. Headings. The headings of the Articles and the sections in this Guarantee are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| WH GROUP LIMITED, | ||
| as Parent Guarantor | ||
| By: | /s/ Wan Long | |
| Name: | Wan Long | |
| Title: | Chairman | |
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David Ferrell | |
| Name: | David Ferrell | |
| Title: | Vice President | |
| SMITHFIELD FOODS, INC. | ||
| By: | /s/ Timothy Dykstra | |
| Name: | Timothy Dykstra | |
| Title: | Vice President and Corporate Treasurer | |
Exhibit 4.4
SMITHFIELD FOODS, INC.,
as Issuer
6.625% Senior Notes due 2022
FIFTH SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
Dated as of December 7, 2016
U.S. Bank National Association,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE AND PARENT GUARANTEE
This Fifth Supplemental Indenture and Parent Guarantee, dated as of December 7, 2016 (this “Supplemental Indenture” or “Guarantee”), among WH Group Limited, a Cayman Islands limited liability company (the “Parent Guarantor”), Smithfield Foods, Inc. (together with its successors and assigns, the “Company”), and U.S. Bank National Association, as Trustee under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture, dated as of June 1, 2007 (the “Original Indenture”), as supplemented by the Third Supplemental Indenture dated as of August 1, 2012 (the “Third Supplemental Indenture,” and together with the Original Indenture, as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), providing for the issuance of an unlimited aggregate principal amount of 6.625% Senior Notes due 2022 of the Company (the “Securities”);
WHEREAS, the Company is a wholly-owned subsidiary of the Parent Guarantor;
WHEREAS, pursuant to Section 7.01 of the Third Supplemental Indenture, the Trustee and the Company may amend the Indenture without written notice to or consent of any Holder to add Guarantees with respect to the Securities; and
WHEREAS, acting pursuant to Section 7.01 of the Third Supplemental Indenture, the Company desires to cause the Parent Guarantor to irrevocably and unconditionally guarantee the obligations of the Company under the Securities;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parent Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “Holders” in this Guarantee shall refer to the term “Holders” as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; PARENT GUARANTEE
Section 2.1. Agreement to be Bound. The Parent Guarantor hereby becomes a party to the Indenture as a guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a guarantor under the Indenture.
Section 2.2. Guarantee.
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(a) The Parent Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Securities and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being hereinafter collectively called the “Obligations”). The Parent Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Supplemental Indenture notwithstanding any extension or renewal of any Obligation.
(b) The Parent Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. The Parent Guarantor waives notice of any default under the Securities, the Obligations or the Indenture. The obligations of the Parent Guarantor hereunder shall not be affected by (i) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company, the Parent Guarantor or any other person under the Indenture, the Securities or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, any Subsidiary Guarantee, the Securities or any other agreement; (iv) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (v) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (vi) any change in the ownership of the Company.
(c) The Parent Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations.
(d) The obligations of the Parent Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Parent Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under the Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Parent Guarantor or would otherwise operate as a discharge of the Parent Guarantor as a matter of law or equity.
(e) The Parent Guarantor agrees that its Guarantee herein shall remain in full force and effect until payment in full of all the Obligations. The Parent Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Parent Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, the Parent Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
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(g) The Parent Guarantor further agrees that, as between the Parent Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of its Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Parent Guarantor for the purposes of this Guarantee.
(h) The Parent Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section 2.2.
Section 2.3. Limitation on Liability. The obligations of the Parent Guarantor hereunder will be limited to the extent necessary to insure that it does not constitute a fraudulent conveyance or fraudulent transfer under federal or state law and that it is not otherwise void or voidable under any similar laws affecting the rights of creditors generally.
Section 2.4. Release and Discharge. The Parent Guarantor will be deemed released from all its obligations under the Indenture and its Guarantee and such Guarantee will terminate upon the legal defeasance or covenant defeasance of the Securities pursuant to the provisions of Article IV of the Original Indenture and Article VI of the Third Supplemental Indenture.
Section 2.5. No Subrogation. Notwithstanding any payment or payments made by Parent Guarantor hereunder, Parent Guarantor shall not be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any Subsidiary Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Obligations, nor shall Parent Guarantor seek or be entitled to seek any contribution or reimbursement from the Company or any Subsidiary Guarantor in respect of payments made by Parent Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Obligations are paid in full. If any amount shall be paid to Parent Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by Parent Guarantor in trust for the Trustee and the Holders, segregated from other funds of Parent Guarantor, and shall, forthwith upon receipt by Parent Guarantor, be turned over to the Trustee in the exact form received by Parent Guarantor (duly indorsed by Parent Guarantor to the Trustee, if required), to be applied against the Obligations.
ARTICLE III
MISCELLANEOUS
Section 3.1. Notices. All notices and other communications to the Parent Guarantor shall be given as provided in the Indenture, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company:
WH Group Limited
Unit 7602B, International Commerce Centre
1 Austin Road West
Kowloon, Hong Kong
Facsimile: +852 2868 6001
Attention: General Counsel
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Section 3.2. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 3.3. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.4. Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.5. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
Section 3.6. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
Section 3.7. Headings. The headings of the Articles and the sections in this Guarantee are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| WH GROUP LIMITED, | ||
| as Parent Guarantor | ||
| By: | /s/ Wan Long | |
| Name: | Wan Long | |
| Title: | Chairman | |
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David Ferrell | |
| Name: | David Ferrell | |
| Title: | Vice President | |
| SMITHFIELD FOODS, INC. | ||
| By: | /s/ Timothy Dykstra | |
| Name: | Timothy Dykstra | |
| Title: | Vice President and Corporate Treasurer | |
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