Exhibit 4.6(f)
Execution Version
WAIVER
WAIVER, dated as of June 22,
2009 (this “ Waiver ”), to the Revolving Credit
Agreement, dated as of August 19, 2005 (as the same may be
amended, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), among SMITHFIELD FOODS,
INC., a Virginia corporation (the “ Borrower ”);
each of the Subsidiaries of the Borrower from time to time party to
the Credit Agreement (each individually, a “ Subsidiary
Guarantor ” and, collectively, the “ Subsidiary
Guarantors ” and, together with the Borrower, the “
Obligors ”), the lenders from time to time party to
the Credit Agreement (the “ Lenders ”), CALYON
NEW YORK BRANCH, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A. “RABOBANK INTERNATIONAL”, NEW YORK BRANCH and
SUNTRUST BANK, as co-documentation agents (in such capacities, the
“ Co-Documentation Agents ”), CITICORP USA,
INC., as syndication agent (in such capacity, the “
Syndication Agent ”) and JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, the “
Administrative Agent ”).
W I T N E S
S E T H :
WHEREAS, the Borrower, the
Subsidiary Guarantors, the Lenders, the Syndication Agents, the
Co-Documentation Agents and the Administrative Agent are parties to
the Credit Agreement;
WHEREAS, the
Borrower has issued certain debt securities outstanding on the date
hereof, including the Borrower’s 8% Senior Notes due 2009
(the “ 2009 Notes ”), the Borrower’s 7%
Senior Notes due 2011 (the “ 2011 Notes ”), the
Borrower’s 7 3
/
4 % Senior Notes due 2013 (the
“ 2013 Notes ”), the Borrower’s
7 3 / 4 % Senior Notes due 2017 (the
“ 2017 Notes ”) and the Borrower’s 4%
Convertible Senior Notes due 2013 (the “ Convertible
Notes ”; together with the 2009 Notes, 2011 Notes, 2013
Notes and 2017 Notes, the “ Covered Notes
”);
WHEREAS, the agreements and
instruments governing or evidencing the Covered Notes (each
individually a “ Covered Notes Document ” and,
collectively, the “ Covered Notes Documents ”)
restrict the ability of the Borrower and its Subsidiaries, subject
to certain exceptions, to enter into consensual encumbrances or
restrictions on the ability of any Subsidiary to pay dividends or
to make certain intercompany transfers;
WHEREAS, the Borrower and certain of
its Foreign Subsidiaries are parties to various lines of credit,
loans and similar agreements pursuant to which certain Foreign
Subsidiaries are subject to restrictions (the “
Restrictions ”) on their ability to make intercompany
transfers, certain of which may be in violation of the Covered
Notes Documents, and the Borrower has requested that the
Administrative Agent and the Lenders waive any Default or Event of
Default under the Credit Agreement that may result therefrom, if
any, as more fully set forth herein; and
WHEREAS, the Lenders are willing to
agree to such requested waiver but only on the terms and conditions
contained in this Waiver.
NOW, THEREFORE, the parties hereto
hereby agree as follows:
SECTION 1. Defined Terms .
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
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SECTION 2. Waiver under the
Credit Agreement . The Lenders hereby waive, during the Waiver
Period (as defined below), any Default or Event of Default that may
have occurred and be continuing under the Credit Agreement
resulting from any default or event of default under any Covered
Notes Document, solely to the extent arising out of the existence
of the Restrictions. For purposes of this Waiver, the “Waiver
Period” shall mean the period from and including the
Effective Date (as defined below) until the earliest to occur of
(a) the receipt by the Borrower of any notice from any trustee
(or any required percentage of holders entitled to delivery such
notice) under any Covered Notes Document of a default under such
Covered Notes Document arising out of the existence of the
Restrictions and (b) the date that is three Business Days
following the Effective Date in the event any Restrictions that
would result in a default under any Covered Notes Document are in
effect on such date.
SECTION 3. Conditions to
Effectiveness . This Waiver shall become effective upon the
date (the “ Effective Date ”) on which the
following conditions are satisfied: (i) the Administrative
Agent shall have received counterparts of this Waiver, executed and
delivered by a duly authorized officer of each of the Obligors and
Lenders constituting the Required Lenders and (ii) no Default
or Event of Default shall have occurred and be continuing as of the
Effective Date (after giving effect to this Waiver).
SECTION 4. Representations and
Warranties . The Borrower represents and warrants to the
Administrative Agent and the Lenders that as of the Effective Date,
after giving effect to this Waiver, no Default or Event of Default
has occurred and is continuing and the representations and
warranties made by the Borrower in or pursuant to the Credit
Agreement or any other Loan Document are true and correct in all
material respects on and as of the Effective Date (after giving
effect to this Waiver) as if made on such date (except to the
extent that any such representations and warranties expressly
relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects on and as
of such earlier date).
SECTION 5. Effect of Waiver .
(a) This Waiver shall not constitute an amendment or waiver of
or consent to any provision of the Credit Agreement and the other
Loan Documents not expressly referred to herein and shall not be
construed as an amendment, waiver or consent to any action on the
part of the Borrower that would require an amendment, waiver or
consent of the Administrative Agent or the Lenders except as
expressly stated herein. Except as expressly provided for herein,
the provisions of the Credit Agreement and the other Loan Documents
are and shall remain in full force and effect in accordance with
its terms.
(b) On and after the Effective Date,
each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof”,
“herein”, or words of like import, and each reference
to the Credit Agreement in any other Loan Document shall be deemed
a reference to the Credit Agreement after giving effect to this
Waiver. This Waiver shall constitute a “Loan Document”
for all purposes of the Credit Agreement and the other Loan
Documents.
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SECTION 6. Costs and Expenses
. The Borrower agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses in connection with this Waiver,
including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent.
SECTION 7. Headings . The
headings of this Waiver are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
SECTION 8. Counterparts .
This Waiver may be executed by one or more of the parties to this
Waiver on any number of separate counterparts (including by
facsimile or other electronic transmission), each of which when so
executed and delivered shall be deemed an original and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
SECTION 9. GOVERNING
LAW . THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
[The remainder of this page is
intentionally left blank.]
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Smithfield
Foods, Inc.
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By:
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Name:
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Carey J.
Dubois
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Title:
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Vice
President
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Iowa Quality Meats, Ltd.
North Side Foods Corp.
John Morrell & Co.
Patrick Cudahy Incorporated
QTF Liquidation Corp.,
formerly known as
Quik-To-Fix Foods, Inc.
Stefano Foods, Inc.
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Murphy Farms of
Texhoma, Inc.
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Smithfield
Global Products, Inc.
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Fannland Foods,
Inc.
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By:
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Name:
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Carey J.
Dubois
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Title:
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Vice
President
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The Smithfield Packing Company, Incorporated,
formerly known as Gwaltney of Smithfield, Ltd.,
and successor by merger
of
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Coddle Roasted
Meats, Inc.
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Hancock’s Old Fashioned Country Ham,
Inc.
Lykes Meat Group, Inc.
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Premium Pork,
Inc.
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Stadler’s
Country Hams, Inc.
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Sunnyland,
Inc.
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The Smithfield
Companies, Inc.
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The Smithfield
Packing Company, Incorporated
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The Smithfield
Ham and Products Company, Incorporated
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By:
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Name:
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Carey J.
Dubois
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Title:
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Vice
President
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Signature Page to Waiver
to
Smithfield Foods, Inc. Revolving Credit
Agreement
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Murphy-Brown
LLC, successor by merger of
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Brown’s
of Carolina LLC
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Carroll’s
Foods LLC
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Carroll’s
Foods of Virginia LLC
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Central Plains
Farms LLC
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Circle Four
LLC
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Murphy Farms
LLC
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Quarter M Farms
LLC
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Murphy-Brown
Holdings LLC
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By:
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John Morrell
& Co., as its sole member
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By:
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Name:
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Carey J.
Dubois
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Title:
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Vice
President
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John
Morrell & Co., successor by merger of
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Dakota
Acquisition Company
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John Morrell of
Japan, Inc.
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By:
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Name:
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Carey J.
Dubois
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Title:
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Vice
President
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Signature Page to Waiver
to
Smithfield Foods, Inc. Revolving Credit
Agreement
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JPMORGAN CHASE
BANK, N.A., as
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Administrative
Agent and as a Lender
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By:
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Name: BARBARA
R. MARKS
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Title:
EXECUTIVE DIRECTOR
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Signature Page to Waiver
to
Smithfield Foods, Inc. Revolving Credit
Agreement
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AgFirst Farm
Credit Bank, as a Lender
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By:
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Name: Matt
Jeffords
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Title:
Assistant Vice President
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Signature Pag