Exhibit 4.2
[FORM OF FACE OF NOTE]
[Applicable Restricted Securities
Legend]
[Depository Legend, if applicable]
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No.
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Principal Amount
$[ ]
as revised by the Schedule of
Increases
and Decreases in the Global Security
attached hereto
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CUSIP NO.
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SMITHFIELD FOODS, INC.
10% Senior Secured Note, due
2014
Smithfield Foods, Inc., a Virginia
corporation, promises to pay to
[ ],
or registered assigns, the principal sum of
[ ]
Dollars, as revised by the Schedule of Increases and Decreases in
the Global Security attached hereto, on July 15,
2014.
Interest Payment Dates:
January 15 and July 15.
Record Dates: January 1 and
July 1.
Additional provisions of this
Security are set forth on the other side of this
Security.
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SMITHFIELD
FOODS, INC.
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By:
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By:
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
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U.S. BANK
NATIONAL ASSOCIATION
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as Trustee,
certifies that this is one of the Securities referred to in the
Indenture.
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By
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Authorized
Signatory
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Date:
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A-2
[FORM OF REVERSE SIDE OF NOTE]
10% Senior Secured Note, due
2014
Smithfield Foods, Inc., a Virginia
corporation (such corporation, and its successors and assigns under
the Indenture hereinafter referred to, being herein called the
“Company”), promises to pay interest on the principal
amount of this Security at the rate per annum shown
above.
The Company will pay interest
semiannually on January 15 and July 15 of each year, with
the first interest payment to be made on January 15, 2010.
Interest on the Securities will accrue from the most recent date to
which interest has been paid on the Securities or, if no interest
has been paid, from July 2, 2009. The Company shall pay
interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the
Securities to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
By no later than 10:00 a.m. (New
York City time) on the date on which any principal of, premium, if
any, or interest on any Security is due and payable, the Company
shall irrevocably deposit with the Trustee or the Paying Agent
money sufficient to pay such principal, premium, if any, and/or
interest. The Company will pay interest (except Defaulted Interest)
to the Persons who are registered Holders of Securities at the
close of business on the January 1 and July 1 next
preceding the interest payment date even if Securities are
cancelled, repurchased or redeemed after the record date and on or
before the interest payment date. Holders must surrender Securities
to a Paying Agent to collect principal payments. The Company will
pay principal, premium, if any, and interest in money of the United
States that at the time of payment is legal tender for payment of
public and private debts. Payments in respect of Securities
represented by a Global Security (including principal, premium, if
any, and interest) will be made by the transfer of immediately
available funds to the accounts specified by the Depositary. The
Company will make all payments in respect of a Definitive Security
(including principal, premium, if any, and interest) by mailing a
check to the registered address of each Holder thereof;
provided , however , that payments on the Securities
may also be made, in the case of a Holder of at least $1,000,000
aggregate principal amount of Securities, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such
effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
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3.
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Paying Agent
and Registrar
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Initially, U.S. Bank National
Association, a national banking association duly organized and
existing under the laws of the United States of America and having
a corporate trust office in Atlanta, Georgia
(“Trustee”), will act as Paying Agent and Registrar.
The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company or any of
its domestically incorporated Wholly-Owned Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
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The Company issued the Securities
under an Indenture dated as of July 2, 2009 (as it may be
amended or supplemented from time to time in accordance with the
terms thereof, the “Indenture”), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities
include those stated in the Indenture. Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement
of those terms.
The Securities are senior secured
obligations of the Company. The aggregate principal amount of
Securities which may be authenticated and delivered under the
Indenture is unlimited, provided that to the extent not
applied to refinance Indebtedness, the Net Cash Proceeds from any
issuance of Additional Notes are invested in Additional Assets in
accordance with the Indenture. This Security is one of the 10%
Senior Secured Notes due 2014 referred to in the Indenture. The
Securities include (i) $625,000,000 aggregate principal amount
of the Company’s 10% Senior Secured Notes due 2014 issued
under the Indenture on July 2, 2009 (herein called
“Initial Notes”) and (ii) (x) $225,000,000
aggregate principal amount of the Company’s 10% Senior
Secured Notes due 2014 issued under the Indenture on
August 14, 2009 and (y) if and when issued, additional
10% Senior Secured Notes due 2014 of the Company that may be issued
from time to time under the Indenture subsequent to July 2,
2009 (together, herein called “Additional Notes”). The
Initial Notes and Additional Notes are treated as a single class of
securities under the Indenture and shall be secured by first and
second priority Liens and security interests, subject to Permitted
Liens, in the Collateral. The Indenture imposes certain limitations
on the Incurrence of Indebtedness by the Company and its
Subsidiaries, the payment of dividends and other distributions on
the Capital Stock of the Company and its Subsidiaries, the purchase
or redemption of Capital Stock of the Company and Capital Stock of
such Subsidiaries, certain purchases or redemptions of Junior Lien
Collateral Indebtedness, Senior Unsecured Pari Passu Indebtedness,
Subordinated Indebtedness or Guarantor Subordinated Indebtedness,
the sale or transfer of assets and Capital Stock of Subsidiaries,
certain Sale/Leaseback Transactions involving the Company or any
Restricted Subsidiary, the issuance or sale of Capital Stock of
Restricted Subsidiaries, the incurrence of certain Liens, future
Subsidiary Guarantors, the business activities and investments of
the Company and its Subsidiaries and transactions with Affiliates,
provided, however, certain of such limitations will no longer be in
effect if the Securities receive a rating of “BBB-” or
higher from Standard & Poor’s Rating Services (or
its successors) and “Baa3” or higher from Moody’s
Investors Service, Inc. (or its successors). In addition, the
Indenture limits the ability of the Company and its Subsidiaries to
enter into agreements that restrict distributions and dividends
from Subsidiaries. The Indenture also imposes requirements with
respect to the provision of financial information.
To guarantee the due and punctual
payment of the principal, premium, if any, and interest (including
post-filing or post-petition interest) on the Securities and all
other amounts payable by the Company under the Indenture, the
Securities, the Collateral Documents and the Intercreditor
Agreements when and as the same shall be due and payable, whether
at maturity, by acceleration or
A-4
otherwise, according to the terms of the
Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future guarantors, together with
the Subsidiary Guarantors, will unconditionally Guarantee), jointly
and severally, such obligations on a senior, secured basis pursuant
to the terms of the Indenture.
Prior to July 15, 2012, the
Company may, upon not less than 30 nor more than 60 days’
notice, on any one or more occasions redeem up to 35% of the
original principal amount of the Securities with the Net Cash
Proceeds of one or more Public Equity Offerings at a redemption
price of 110% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); provided
that:
(i) at least 65% of the original
principal amount of the Securities (exclusive of Additional Notes)
remains outstanding after each such redemption; and
(ii) the redemption occurs within 60
days after the closing of such Public Equity Offering.
If the optional redemption date is
on or after an interest record date and on or before the related
interest payment date, the accrued and unpaid interest, if any,
will be paid to the person in whose name the Security is registered
at the close of business on such record date, and no additional
interest will be payable to Holders whose Securities will be
subject to redemption by the Company.
At any time prior to the Maturity
Date of the Securities, the Securities may be redeemed or purchased
by the Company, in whole or in part, at the Company’s option,
at a price (the “Redemption Price”) equal to 100% of
the principal amount thereof plus the Applicable Premium as of, and
accrued but unpaid interest, if any, to, the date of such
redemption or purchase (the “Redemption Date”) (subject
to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date). Such
redemption or purchase may be made upon notice mailed by
first-class mail to each Holder’s registered address, not
less than 30 nor more than 60 days prior to the Redemption Date.
The Company may provide in such notice that payment of the
Redemption Price and performance of the Company’s obligations
with respect to such redemption or purchase may be performed by
another Person. Any such redemption, purchase or notice may, at the
Company’s discretion, be subject to the satisfaction or one
or more conditions precedent, including but not limited to the
occurrence of a Change of Control.
In the case of any partial
redemption, selection of the Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole
discretion shall deem to be fair and appropriate, although no
Securities of $1,000 in original principal amount or less will be
redeemed in part. If any Security is to be redeemed in part only,
the notice of redemption relating to such Security shall state the
portion of the principal amount thereof to be
A-5
redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name
of the Holder thereof upon cancellation of the original Security.
On and after the redemption date, interest will cease to accrue on
Securities or portions thereof called for redemption as long as the
Company has deposited with the Paying Agent funds in satisfaction
of the applicable redemption price pursuant to the
Indenture.
Upon the occurrence of a Change of
Control, any Holder of Securities will have the right to offer to
cause the Company to repurchase all or any part of the Securities
of such Holder at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any,
to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the
relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.
In the event of an Asset Disposition
that requires the purchase of Securities pursuant to
Section 3.7(a) or Section 3.7(b) of the
Indenture, the Company will be required to apply such Excess
Collateral Proceeds or Excess Proceeds, as applicable, to the
repayment of the Securities, the Rabobank Term Loan and, in the
case of Excess Proceeds, any Pari Passu Indebtedness in accordance
with the procedures set forth in Section 3.7 of the
Indenture.
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7.
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Denominations; Transfer; Exchange
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The Securities are in registered
form without coupons in denominations of principal amount of $2,000
and whole multiples of $1,000 in excess thereof. A Holder may
transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any
Securities for a period beginning 15 Business Days before an
interest payment date and ending on such interest payment
date.
The registered Holder of this
Security may be treated as the owner of it for all
purposes.
If money for the payment of the
principal of or premium, if any, or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law
designates another person. After any such payment, Holders entitled
to the money must look only to the Company and not to the Trustee
for payment.
Subject to certain conditions set
forth in the Indenture, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if
the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the
Securities to maturity.
A-6
Subject to certain exceptions set
forth in the Indenture, (i) the Indenture, the Securities, the
Collateral Documents or the Intercreditor Agreements may be amended
with the written consent of the Holders of at least a majority in
principal amount of the then outstanding Securities and
(ii) any default (other than (x) with respect to
nonpayment or (y) in respect of a provision that cannot be
amended without the written consent of each Holder affected or
(z) with respect to Section 11.6(a)(vi) of the Indenture)
or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Holder, the
Company, the Subsidiary Guarantors and the Trustee may amend the
Indenture, the Securities, the Collateral Documents or the
Intercreditor Agreements to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article IV or Article X of the
Indenture in respect of the assumption by a Successor Company of an
obligation of the Company under the Indenture, or to provide for
uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the
Securities or to secure the Securities, or to release a Subsidiary
Guarantor upon its designation as an Unrestricted Subsidiary or
otherwise in accordance with the Indenture, to release Liens in
favor of the Collateral Agent in the Collateral as provided under
the collateral release provisions, or to add additional covenants
or surrender rights and powers conferred on the Company, or to make
any change that does not adversely affect the rights of any
Holder.
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12.
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Defaults and
Remedies
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Under the Indenture, Events of
Default include: (i) default for 30 days in payment of
interest when due on the Securities; (ii) default in payment
of the principal of or premium, if any, on the Securities at Stated
Maturity, upon required repurchase, upon declaration or otherwise;
(iii) failure by the Company or any Significant Subsidiary to
comply with certain other provisions or agreements in the
Indenture, the Securities, the Collateral Documents and the
Intercreditor Agreements, in certain cases subject to notice and
lapse of time; (iv) certain accelerations (including failure
to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Significant Subsidiary if the
amount accelerated (or so unpaid) exceeds $25.0 million
(v) certain events of bankruptcy or insolvency with respect to
the Company or any Significant Subsidiary; (vi) certain final
judgments or decrees for the payment of money in excess of $25.0
million; (vii) failure by any Subsidiary Guarantor that is a
Significant Subsidiary to comply with its obligations under its
Subsidiary Guarantee or Collateral Documents or Intercreditor
Agreement; (viii) the failure of any Subsidiary Guarantee or
Collateral Document entered into by a Subsidiary Guarantor
wh