EXHIBIT 99.5
FORM OF EXCHANGE AGENT AGREEMENT
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[Date]
SunTrust Bank
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Ladies and Gentlemen:
Smithfield Foods, Inc., a Virginia corporation (the "Company"), proposes to
make an offer (the "Exchange Offer") to exchange (i) an aggregate principal
amount of up to $300,000,000 of the Company's 8% Senior Notes Due, Series B,
2009 (the "Exchange Notes"), which have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), for a like principal amount of its
issued and outstanding 8% Senior Notes, Series A, ("Senior Notes"). The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a Prospectus, dated December __, 2001 (the "Prospectus"), distributed to all
record holders of the Senior Notes on December __, 2001. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to them in the
Prospectus.
The Company hereby appoints SunTrust Bank to act as exchange agent (the
"Exchange Agent") in connection with the Exchange Offer. References hereinafter
to "you" shall refer to SunTrust Bank.
The Exchange Offer is expected to be commenced by the Company on or about
December __, 2001. The Letter of Transmittal accompanying the Prospectus (or in
the case of book-entry securities, the ATOP System (as defined below)) is to be
used by the holders of the Senior Notes to accept the Exchange Offer and
contains certain instructions with respect to (i) the delivery of certificates
for the Exchange Notes tendered in connection therewith and (ii) the book-entry
transfer of Exchange Notes to the Exchange Agent's account at the Depository
Trust Company ("DTC").
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
January __, 2002 or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time by giving written notice to you no later
than 5:00 p.m., New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Senior Notes not theretofore accepted
for exchange, upon the occurrence of any of the conditions to the Exchange Offer
specified in the Prospectus under the caption "The Exchange Offer -- Conditions
to the Exchange Offer." The Company will give written notice of any amendment,
termination or nonacceptance of Senior Notes to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth herein; provided, however, that in no event will your general duty to
act in good faith be discharged by the foregoing.
2. You will establish or cause to be established a book-entry account with
respect to the Senior Notes at DTC (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the Book-
Entry Transfer Facility's systems may make book-entry delivery of the Senior
Notes by causing the Book-Entry Transfer Facility to transfer such Senior Notes
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer. All tenders to you shall be accomplished in
accordance with DTC's Agent Tenders Over PTS ("ATOP System"), unless for any
reason you are prevented from using the ATOP System in connection with the
exchange of the Exchange Notes for the Senior Notes. The parties hereto
acknowledge and agree that in accordance with the ATOP System, neither the
Company nor the Exchange Agent will receive any documents executed by Holders in
connection with the Exchange Offer, including, without limitation, any Letters
of Transmittal, Notices of Guaranteed Delivery and Agent's Messages
(collectively, the "Exchange Documents"). Thus, neither the Company nor the
Exchange Agent shall be required to obtain, review or otherwise inspect any of
such Exchange Documents or verify the execution of the same unless the ATOP
System is not utilized or its utilization is discontinued in connection with the
Exchange Offer, and during the period the ATOP System is being utilized in
connection with the Exchange Offer, the provisions of this Agreement to the
contrary shall be deemed inapplicable and ineffective.
3. You are to examine each of the Letters of Transmittal, certificates for
Senior Notes (or confirmations of book-entry transfers into your account at the
Book-Entry Transfer Facility), Notices of Guaranteed Delivery and any Agent's
Message or other documents delivered or mailed to you by or for holders of the
Senior Notes to ascertain whether: (i) the Letters of Transmittal, Notices of
Guaranteed Delivery, Agent's Messages and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and (ii) the Senior Notes have otherwise been properly tendered. In each
case where the Letter of Transmittal, Notice of Guaranteed Delivery, Agent's
Message or any other document has been improperly completed or executed or any
of the certificates for Senior Notes are not in proper form for transfer or some
other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
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4. Final determination of all questions as to the validity, form,
eligibility and acceptance for exchange of any tender of Senior Notes shall be
made by the Company in its sole discretion, which determination shall be final
and binding. The Company reserves the absolute right to reject any or all
tenders of Senior Notes determined by it not to be timely or in proper form or
the acceptance of or exchange for which may, in the opinion of the Company's
counsel, be unlawful and to waive any of the conditions of the Exchange Offer or
any defect or irregularity in the tender of the Senior Notes, and the Company's
interpretation of the terms and conditions of the Exchange Offer will be final.
Upon notification by any person designated in writing by the Company (a
"Designated Officer") (such approval, if given orally, to be confirmed in
writing) or any other party designated by any such Designated Officer in
writing, you are authorized to waive any irregularities in connection with any
tender of Senior Notes pursuant to the Exchange Offer.
5. Tenders of Senior Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer
--How to Tender" and Senior Notes shall be considered properly tendered to you
only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Senior Notes which any
Designated Officer of the Company shall approve as having been properly tendered
shall be considered to be properly tendered (such approval, if given orally,
shall be confirmed in writing).
6. You shall advise the Company with respect to any Senior Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Senior Notes.
7. You shall accept tenders:
(a) in cases where the Senior Notes are registered in two or more names
only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of such person's authority to so act is submitted; and
(c) from persons other than the registered holder of Senior Notes, provided
that customary transfer requirements, including payment of any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Senior Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Senior Notes
to the transfer agent for split-up and return any untendered Senior Notes to the
holder (or to such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
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8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you in writing of the Company's acceptance,
promptly after the Expiration Date, of all Senior Notes properly tendered and
you, on behalf of the Company, will exchange such Senior Notes for Exchange
Notes and cause such Senior Notes to be canceled. Delivery of Exchange Notes
will be made on behalf of the Company by you at the rate of $1,000 principal
amount of Exchange Notes for each $1,000 principal amount of the Senior Notes
tendered, promptly after notice in writing of acceptance of said Senior Notes by
the Company, provided, however, that in all cases, Senior Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Senior Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees (or an Agent's Message in lieu thereof) and
any other required documents unless otherwise waived by the Company. You shall
accept tendered Senior Notes and issue Exchange Notes only in denominations of
$1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Senior Notes tendered pursuant to the Exchange Offer may
be withdrawn at any time on or prior to the Expiration Date.
10. The Company shall not be required to accept for exchange any Senior
Notes tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Company not to exchange any Senior Notes
tendered shall be given in writing by the Company to you.
11. If, pursuant to the terms of the Exchange Offer, the Company does not
accept for exchange all or part of the Senior Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer" or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return certificates for those unaccepted
Senior Notes (or effect the appropriate book-entry transfer of the unaccepted
Senior Notes), together with any related required documents and the Letter of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
12. All certificates for reissued Senior Notes, unaccepted Senior Notes or
for Exchange Notes shall be forwarded by (a) first-class mail, return receipt
requested, under a blanket surety bond protecting you and the Company from loss
or liability arising out of the non-receipt or non-delivery of such certificates
or (b) by registered mail insured separately for the replacement value of each
of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
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(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Senior Notes represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
provided, however, that in no event will your general duty to act in good faith
be discharged by the foregoing;
(b) shall not be obligated to take any legal action hereunder which might
in your reasonable judgment involve any expense or liability, unless you shall
have been furnished with reasonable indemnity satisfactory to you;
(c) may conclusively rely on and shall be fully protected in acting in good
faith in reliance upon any certificate, instrument, opinion, notice, letter,
facsimile or other document or security delivered to you and reasonably believed
by you to be genuine and to have been signed by the proper party or parties;
(d) may conclusively act upon any tender, statement, request, agreement or
other instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith reasonably believe
to be genuine or to have been signed or represented by a proper person or
persons;
(e) may conclusively rely on and shall be fully protected in acting upon
written or oral instructions from any Designated Officer of the Company with
respect to the Exchange Offer;
(f) shall not advise any person tendering Senior Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Senior Notes; and
(g) may consult with your counsel with respect to any questions relating to
your duties and responsibilities, and the written opinion or advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith and in
accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be requested by
any Designated Officer of the Company (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, and
supplements thereto, the Letter of Transmittal and the Notice of Guaranteed
Delivery, or such other forms as may be approved from time to time by the
Company, to all persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer, provided that
such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with copies
of such documents at your request.
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16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire, Secretary and
Associate General Counsel of the Company, and such other person or persons as
the Company may request, weekly (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested) up to and including
the Expiration Date, as to the principal amount of the Senior Notes which have
been tendered pursuant to the Exchange Offer and the items received by you
pursuant to this Agreement, separately reporting and giving cumulative totals as
to items properly received and items improperly received and items covered by
Notices of Guaranteed Delivery. In addition, you will inform, and cooperate in
making available to, the Company or any other person or persons identified to
you by the Company from time to time up to and including to the Expiration Date
of such other information as they or such persons reasonably request. Such
cooperation shall include, without limitation, the granting by you to the
Company and such persons identified to you by the Company of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date, the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a list of persons who failed to
tender or whose tenders were not accepted and the aggregate principal amount of
Senior Notes not tendered or Senior Notes not accepted and deliver said list to
the Company at least seven days prior to the Expiration Date. You shall also
promptly prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Senior Notes tendered and the aggregate principal
amount of Senior Notes accepted and promptly deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company at the address set forth below for notices.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such reimbursement of reasonable out-of-pocket expenses as are set
forth on Schedule 1 attached hereto.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them to the
extent necessary to perform your duties hereunder. Any inconsistency between
this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time), on the other hand, shall
be resolved in favor of the latter two documents except with respect to the
duties, liabilities and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
20. The Company agrees to indemnify and hold you (and your officers,
directors, employees and agents) harmless in your capacity as Exchange Agent
hereunder against any liability, cost or expense, including reasonable
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attorneys' fees, arising out of or in connection with the performance of your
duties hereunder, other than those losses resulting from your negligence, bad
faith or willful misconduct.
21. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
22. All communications, including notices, required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
if (i) delivered personally with receipt acknowledged, (ii) transmitted by
facsimile (which shall be confirmed by telephone and by a writing sent by
registered or certified mail on the business day that such facsimile is sent) or
(iii) sent by recognized overnight courier for next business day delivery,
addressed to the parties at the addresses or facsimile numbers as any party
shall hereafter specify by communication to the other parties in the manner
provided herein:
Company: Smithfield Foods, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to: McGuireWoods LLP
One ▇▇▇▇▇ Center
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Attention: ▇▇▇▇ ▇▇▇▇▇ Sellers, Esquire
Exchange Agent: SunTrust Bank
Corporate Trust Division
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
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23. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
24. In case any provision of this Agreement 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.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
SMITHFIELD FOODS, INC.
By: ______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary and Associate General Counsel
Accepted as of the date first
above written
SUNTRUST BANK,
as Exchange Agent
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
