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EXHIBIT 4.1(b)
[APPLICABLE LEGENDS]
[FACE OF NOTE]
PREMIUM STANDARD FARMS, INC.
9-1/4% Senior Note due 2011
[CUSIP] [CINS] [__________]
No. ____ $
PREMIUM STANDARD FARMS, INC. a Delaware corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to _____________, or its
registered assigns, the principal sum of ____________ ($____) on June 15, 2011.
Interest Payment Dates: June 15 and December 15, commencing
December 15, 2001.
Regular Record Dates: June 1 and December 1.
PSF Group Holdings, Inc., a Delaware corporation, The Xxxxx
Packing Company, a North Carolina corporation, Premium Standard Farms of North
Carolina, Inc., a Delaware corporation, and Xxxxx International, Inc., a North
Carolina corporation (collectively, the "Guarantors", which term includes any
successors under the Indenture hereinafter referred to and any Restricted
Subsidiary that provides a Note Guarantee pursuant to the Indenture), have
jointly and severally, fully and unconditionally guaranteed the payment of
principal of premium, if any, and interest on the Notes.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
PREMIUM STANDARD FARMS, INC.
By:
Name:
Title:
By:
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 9-1/4% Senior Notes due 2011 described in the
within-mentioned Indenture.
Date: [________, ____] WILMINGTON TRUST COMPANY,
as Trustee
By:
Authorized Signer
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[REVERSE SIDE OF NOTE]
PREMIUM STANDARD FARMS, INC.
9-1/4% Senior Note due 2011
1. Principal and Interest.
The Company will pay the principal of this Note on June 15,
2011.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of
record of the Notes at the close of business on the June 1 or December 1
immediately preceding the Interest Payment Date) on each Interest Payment Date,
commencing December 15, 2001.
If neither an exchange offer (the "Exchange Offer") registered
under the Securities Act is consummated nor a shelf registration statement (the
"Shelf Registration Statement") under the Securities Act with respect to resales
of the Notes is declared effective by the Commission, on or before December 7,
2001 in accordance with the terms of the Registration Rights Agreement dated
June 4, 2001 among the Company, each of the Guarantors and Xxxxxx Xxxxxxx & Co.
Incorporated and X.X Xxxxxx Securities, Inc., then the annual interest rate
borne by the Notes shall be increased by 0.5% from the rate shown above accruing
from December 7, 2001, payable in cash semiannually, in arrears, on each
Interest Payment Date, commencing December 15, 2001 until the earlier of (a) the
consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement and (b) the expiration of the period set forth in Rule
144(k) under the Securities Act of 1933 with respect to the Notes. The Holder of
this Note is entitled to the benefits of such Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from June 7,
2001; provided that, if there is no existing default in the payment of interest
and this Note is authenticated between a Regular Record Date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such Interest Payment Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of interest, to the extent
lawful, at a rate per annum that is 2% in excess of the rate otherwise payable.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on
the principal amount of the Notes as provided above on each June 15 and December
15, commencing December 15, 2001 to the persons who are Holders (as reflected in
the Security Register at the close of business on the June 1 or December 1
immediately preceding the Interest Payment Date), in each case, even if the Note
is cancelled on registration of transfer or registration of exchange after such
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record date; provided that, with respect to the payment of principal, the
Company will make payment to the Holder that surrenders this Note to a Paying
Agent on or after June 15, 2011.
The Company will pay principal, premium, if any, and as
provided above, interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay principal, premium, if any, and interest by its check payable in
such money. It may mail an interest check to a Holder's registered address (as
reflected in the Security Register). If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
The Notes may be exchanged or transferred at the office or
agency of the Company in The Borough of Manhattan, The City of New York.
Initially, Computerserve Trust Company of New York, Wall Street Plaza, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 will serve as such office. If you give the
Company wire transfer instructions, the Company will pay all principal, premium
and interest on your Notes in accordance with your instructions. If the Company
is not given wire transfer instructions, payments of principal, premium and
interest will be made at the office or agency of the paying agent which will
initially be the Trustee, unless the Company elects to make interest payments by
check mailed to the Holders.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent,
Paying Agent and Registrar. The Company may change any authenticating agent,
Paying Agent or Registrar without notice. The Company, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
June 7, 2001 (the "Indenture"), among the Company, each of the Guarantors and
Wilmington Trust Company Company, trustee (the "Trustee"). Capitalized terms
herein are used as defined in the Indenture unless otherwise indicated. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act. The Notes are subject to
all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. To the extent permitted by
applicable law, in the event of any inconsistency between the terms of this Note
and the terms of the Indenture, the terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and
applicable law, issue additional Notes under the Indenture.
5. Optional Redemption.
The Notes are redeemable, at the Company's option, in whole or in part,
at any time or from time to time, on or after June 15, 2006 and prior to
maturity, upon not less than 30 nor more
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than 60 days' prior notice mailed by first-class mail to each Holder's last
address, as it appears in the Security Register, at the following Redemption
Prices (expressed in percentages of principal amount), plus accrued and unpaid
interest to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date that is prior to the Redemption Date to receive
interest due on an Interest Payment Date), if redeemed during the 12-month
period commencing June 15 of the years set forth below:
Redemption
Year Price
----------------------------------------------------------
2006........................................... 104.625%
2007........................................... 103.083%
2008........................................... 101.542%
2009 and thereafter............................ 100.000%
In addition, at any time prior to June 15, 2004, the Company
may redeem up to 35% of the aggregate principal amount of the Notes with the Net
Cash Proceeds of one or more sales of Capital Stock of the Company (other than
Disqualified Stock) or a capital contribution to the Company's common equity, at
any time as a whole or from time to time in part, at a Redemption Price
(expressed as a percentage of principal amount) of 109.250%, plus accrued and
unpaid interest to the Redemption Date (subject to the rights of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date); provided that (i) at least
65% of the aggregate principal amount of Notes originally issued on the Closing
Date remains outstanding after each such redemption and (ii) notice of such
redemption is mailed within 60 days after such sale of Capital Stock.
Notes in original denominations larger than $1,000 may be
redeemed in part. On and after the Redemption Date, interest ceases to accrue on
Notes or portions of Notes called for redemption, unless the Company defaults in
the payment of the Redemption Price.
6. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, each Holder
shall have the right to require the repurchase of its Notes by the Company in
cash pursuant to the offer described in the Indenture at a purchase price equal
to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Payment Date").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder at its last address as it
appears in the Security Register. Notes in original denominations larger than
$1,000 may be sold to the Company in part. On and after the Payment Date,
interest ceases to accrue on Notes or portions of Notes surrendered for purchase
by the Company, unless the Company defaults in the payment of the purchase
price.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 of principal amount and multiples of $1,000 in excess
thereof. A Holder may register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any
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taxes and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer or exchange of any Notes selected for redemption.
Also, it need not register the transfer or exchange of any Notes for a period of
15 days before the day of mailing of a notice of redemption of Notes selected
for redemption.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all
purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or
maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain provisions thereof, and (b) to the
Stated Maturity, the Company will be discharged from certain covenants set forth
in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency and make any change that does not
materially and adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries, among other things, to Incur
additional Indebtedness, make Restricted Payments, suffer to exist restrictions
on the ability of Restricted Subsidiaries to make certain payments to the
Company, issue Capital Stock of Restricted Subsidiaries, Guarantee Indebtedness
of the Company, engage in transactions with Affiliates, suffer to exist or incur
Liens, enter into sale-leaseback transactions, use the proceeds from Asset
Sales, or merge, consolidate or transfer substantially all of its assets. Within
45 days after the end of each of the first three fiscal quarters of each year
and within 90 days after the end of the last fiscal quarter of each year, the
Company shall deliver to the Trustee an Officers' Certificate stating whether or
not the signers thereof know of any Default or Event of Default under such
restrictive covenants.
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13. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
14. Defaults and Remedies.
Any of the following events constitutes an "Event of Default"
under the Indenture:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period of 30
days;
(c) default in the performance or breach of the provisions of
the Indenture applicable to (A) mergers, consolidations and transfers of all or
substantially all of the assets of the Company or PSF Group Holdings or (B)
mergers or consolidations of any Subsidiary Guarantor or (ii) the failure by the
Company to make or consummate an Offer to Purchase in accordance with Section
4.11 or Section 4.12 of the Indenture;
(d) the Company, any Subsidiary Guarantor or PSF Group
Holdings defaults in the performance of or breaches any other covenant or
agreement of the Company in the Indenture or under the Notes (other than a
default specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company, any Subsidiary Guarantor, PSF Group Holdings or any
Significant Subsidiary having an outstanding principal amount of $7.5 million or
more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (A) an event of default
that has caused the holder thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration and/or (B) the failure to make a principal
payment at the final (but not any interim) fixed maturity and such defaulted
payment shall not have been made, waived or extended within 30 days of such
payment default;
(f) final judgments or orders (not covered by insurance) for
the payment of money in excess of $7.5 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant
Subsidiary and shall not be paid or discharged, and there shall be any period of
30 consecutive days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and not
paid or discharged against all such
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Persons to exceed $7.5 million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect;
(g) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company, any Subsidiary
Guarantor, PSF Group Holdings or any Significant Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company, any
Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary or for
all or substantially all of the property and assets of the Company, any
Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary or (C)
the winding up or liquidation of the affairs of the Company, any Subsidiary
Guarantor, PSF Group Holdings or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days;
(h) the Company, any Subsidiary Guarantor, PSF Group Holdings
or any Significant Subsidiary (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company, any Subsidiary Guarantor, PSF Group Holdings or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company, any Subsidiary Guarantor, PSF Group Holdings or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors; or
(i) any Guarantor repudiates its obligations under its Note
Guarantee or, except as permitted by the Indenture, any Note Guarantee is
determined to be unenforceable or invalid or shall for any reason cease to be in
full force and effect.
If an Event of Default, as defined in the Indenture, occurs
and is continuing, the Trustee may, and at the direction of the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding shall,
declare all the Notes to be due and payable. If a bankruptcy or insolvency
default with respect to the Company or any Guarantor occurs and is continuing,
the Notes automatically become due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of at least a majority in
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power.
15. Guarantee.
The Company's obligations under the Notes are fully and
unconditionally guaranteed, jointly and severally, by the Guarantors.
16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from and perform services for
the Company, the Guarantors or their
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Affiliates and may otherwise deal with the Company, the Guarantors or their
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No incorporator or any past, present or future partner,
stockholder, other equityholder, officer, director, employee or controlling
person, as such, of the Company or of any successor Person shall have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
18. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder
upon written request and without charge. Requests may be made to Premium
Standard Farms, Inc. 000 Xxxx 0xx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx
000000; Attention: Chief Financial Officer.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing attorney to transfer said Note on the books of the
Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL
NOTES OTHER THAN EXCHANGE NOTES, TEMPORARY
OFFSHORE GLOBAL NOTES AND UNLEGENDED
PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933 provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of transfer
set forth in this Note and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date: NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor acceptable to
the Trustee.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or 4.12 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or 4.12 of the Indenture, state the principal
amount: $___________________.
Date:
Your Signature: ____________________________________
(Sign exactly as your name appears on the other side of this
Note)
Signature Guarantee: ______________________________
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor acceptable to
the Trustee.
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