Pilgrim’s Pride Corporation Limited Duration Waiver Agreement
EXHIBIT
10.2
Pilgrim’s
Pride Corporation
This
Limited Duration Waiver Agreement (herein, the “Agreement”) is made as of
September 26, 2008, by and among Pilgrim’s Pride Corporation, a Delaware
corporation (the “Company”), To-Ricos, Ltd., a
Bermuda company (“To-Ricos”), To-Ricos
Distribution, Ltd., a Bermuda company (“To-Ricos Distribution”; and
together with To-Ricos, the “Foreign Borrowers”; the
Company and the Foreign Borrowers collectively, the “Borrowers” and individually,
a “Borrower”), the Banks party hereto,
and Bank of Montreal, a Canadian chartered bank acting through its Chicago
branch, as administrative agent for the Banks (the “Agent”).
Recitals:
A.The
Banks currently extend credit to the Borrowers on the terms and conditions set
forth in that certain Fourth Amended and Restated Secured Credit Agreement dated
as of February 8, 2007, as amended, by and among the Borrowers, the Banks,
and the Agent (the “Credit
Agreement”).
B.The
Company has informed the banks that the Company expects it will not be in
compliance with Section 7.12 (Fixed Charge Coverage Ratio) of the Credit
Agreement as of September 27, 2008 (such instance of noncompliance being
hereinafter referred to as the “Subject Default”).
C.The
Company has requested that the Required Banks waive the Subject Default during
the period ending October 28, 2008, and the Required Banks are willing to
do so subject to the terms and conditions contained in this
Agreement.
Now,
Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1.Incorporation of Recitals; Defined
Terms. The Borrowers acknowledge that the Recitals set forth
above are true and correct in all material respects. The defined
terms in the Recitals set forth above are hereby incorporated into this
Agreement by reference. All other capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Credit Agreement.
2.Amounts Owing. The
Borrowers acknowledge and agree that the principal amount of Loans,
Reimbursement Obligations and L/Cs as of September 25, 2008, is
$291,768,843 ($0 in Bid Loans, $155,500,000 in Revolving Credit Loans,
$25,000,000 in Swing Loans, $0 in Bond Reimbursement Obligations, $25,239,727 in
the Bond L/C, $0 in Reimbursement Obligations, and $86,029,116 in L/Cs), and
such amount (together with interest and fees thereon) is justly and truly owing
by the Borrowers without defense, offset or
counterclaim.
0.Xxxxxxx Duration
Waiver. Subject to the terms and conditions contained in this
Agreement, the Required Banks waive the Subject Default but only for the period
(the “Waiver Period”)
beginning September 28, 2008, and ending on October 28, 2008 (the
“Scheduled Waiver Expiration
Date”). The foregoing waiver shall become null and void on the
Scheduled Waiver Expiration Date and from and after the Scheduled Waiver
Expiration Date the Agent and the Banks shall have all rights and remedies
available to them as a result of the occurrence of the Subject Default as though
this waiver had never been granted.
4.Additional
Agreements. The Borrower further agrees
that:
(a)The
Agent (or its counsel) shall have the right to engage on behalf of the Banks a
financial advisor, selected by the Agent and acceptable to the Required Banks,
to review, evaluate and advise the Agent and the Banks as to the reports,
analyses and cash flow forecasts and other materials prepared by the Company’s
financial consultants relating to the financial condition, operating
performance, and business prospects of the Company and its Subsidiaries and to
perform such other information gathering or evaluation acts as may be reasonably
requested by the Agent, and the reasonable costs and expenses of such financial
advisor shall be borne by the Company and constitute part of the Company’s
obligations outstanding under the Credit Agreement. The Company shall
take reasonable steps to make available to such financial advisor and its
representatives such information respecting the financial condition, operating
performance, and business prospects of the Company and its Subsidiaries as may
be reasonably requested and shall make the Company’s financial consultants,
officers, employees, and independent public accountants available with
reasonable prior notice to discuss such information with such financial advisor
and its representatives.
(b)The
Company shall provide to the Agent and the Banks a 13-week cash flow forecast
(the “Forecast”)
showing projected cash receipts and cash disbursements of the Company and its
Subsidiaries over the following 13-week period, together with a reconciliation
of actual cash receipts and cash disbursements of the Company and its
Subsidiaries from the prior week against the cash flow forecast previously
furnished to the Agent and the Banks and showing any deviations on a cumulative
basis), prepared by the Company and in form and substance, and with such detail,
as the Agent may request. The first Forecast after the date hereof
shall be provided to the Agent and the Banks no later than 5:00 p.m., Central
time, on Monday, October 6, 2008. Thereafter, each Forecast
shall be provided to the Agent and the Banks no later than 5:00 p.m., Central
time, on Wednesday of each week (beginning October 15, 2008).
(c)During
the Waiver Period, unless approved by the Required Banks and the requisite
number of lenders under the CoBank Credit Agreement, the Borrower shall have at
all times undrawn commitments under the Credit Agreement and the Amended and
Restated Credit Agreement dated as of September 21, 2006, among the Company,
CoBank, ACB, as Administrative, Documentation and Collateral Agent for the
benefit of the present and future Syndication Parties and as a Syndication
Party, Lead Arranger and Book Manager thereunder (“CoBank”), Farm Credit
Services of America, FLCA, as Co-Arranger and as a Syndication Party, and the
other Syndication Parties party thereto, as amended, supplemented, restated and
otherwise modified from time to time (as so amended, supplemented, restated and
otherwise modified from time to time, the “CoBank Credit Agreement”) in
an aggregate amount not less than $100,000,000.
(d)No
later than October 13, 2008, the Company shall grant to the Agent for the
benefit of the Banks a valid, enforceable, first priority security interest in
all of its present and future accounts (as defined in the Uniform Commercial
Code of the State of Illinois) and payment intangibles and related property and
the proceeds thereof (other than Receivables (as defined in the Receivables
Purchase Agreement) that have been transferred to a Receivables Securitization
Program, but including Receivables that have not been transferred to a
Receivables Securitization Program and Receivables that have been reconveyed to
the Company by a Receivables Securitization Program) pursuant to documentation
acceptable in form and substance to the Agent as additional collateral for the
Borrower’s indebtedness, obligations and liabilities currently secured by the
Security Agreement, provided that such security
interest and the documentation pursuant to which it is granted shall not
interfere or limit in any way the Company’s ability to sell its accounts
receivable pursuant to its Receivables Securitization Program or
cause the Company to violate the terms of the Receivables Securitization
Program. The Company shall pay all taxes, costs, and expenses
incurred by the Agent in obtaining and perfecting such security interests and
shall supply to the Agent at the Company’s cost and expense such board
resolutions and other instruments, documents, certificates, and opinions
reasonably required by the Agent in connection therewith.
(e)The
Required Banks hereby agree that any Receivables sold by the Company pursuant to
a Receivables Securitization Program are not and will not be subject to any
security interest granted by the Company to the Agent and do not constitute part
of the collateral security for the Company’s indebtedness, obligations and
liabilities to Agent and the Banks, unless and until such Receivables are
reconveyed or otherwise reacquired by the Company.
(f)No
later than the 14th day after the date the CoBank Intercreditor Agreement (as
defined below) is executed and delivered by the parties thereto, the Company
shall grant to the Agent for the benefit of the Banks valid, enforceable liens
and security interests on all of the collateral securing the CoBank Credit
Agreement (the “CoBank
Collateral”), including without limitation mortgages or deeds of trust on
all real property, buildings and improvements on which CoBank presently has or
hereafter obtains a mortgage or deed of trust (other than IRB Collateral (as
defined below)), subject to the liens and security interests granted to CoBank
in such property or permitted under the CoBank Credit Agreement and the Loan
Documents (as defined in the CoBank Credit Agreement). In the case of
any CoBank Collateral that is subject or requires a consent or an approval by
any person in respect of any industrial revenue bonds, notes, debentures or
similar instruments issued by a governmental entity (the “IRB Collateral”), the
Company shall use its reasonable best efforts to, as soon as reasonably
practical, grant to the Agent for the benefit of the Banks valid, enforceable
liens and security interests on all of such IRB Collateral securing the CoBank
Credit Agreement, including without limitation mortgages or deeds of trust on
all real property, buildings and improvements on which CoBank presently has or
hereafter obtains a mortgage or deed of trust on such IRB Collateral, subject to
the liens and security interests granted to CoBank in such property or permitted
under the CoBank Credit Agreement and the Loan Documents (as defined in the
CoBank Credit Agreement). The Company shall pay all taxes, costs, and
expenses incurred by the Agent in obtaining and perfecting such security
interests and shall supply to the Agent at the Company’s cost and expense such
board resolutions and other instruments, documents, certificates, and opinions
reasonably required by the Agent in connection therewith.
(g)During
the Waiver Period the Company shall obtain loans under the Credit Agreement and
the CoBank Credit Agreement, and shall repay loans under the Credit Agreement
and the CoBank Credit Agreement, only on a pro rata basis, determined on the
basis of the undrawn amount of the commitments under each of the two credit
agreements at the close of business in Chicago, Illinois, on September 24, 2008,
as stated in Section 8(f) hereof.
(h)No
later than October 24, 2008, the Company’s senior management and its
financial advisors shall meet with the Agent and the Banks and their financial
advisors to discuss the Company’s business and financial affairs and such
matters as the Banks or the Agent may request.
(i)The
Required Banks hereby consent to the granting by the Company to CoBank, as agent
under the CoBank Credit Agreement, of a security interest in all Collateral
granted to the Agent pursuant to the Security Agreement and Section 4(d) of
this Agreement, provided that such security
interest shall be subject and subordinate to the Agent’s security interests
therein pursuant to an intercreditor agreement that provides, among other
things, that all of the subordinated liens and security interests granted by the
Company to the parties thereto may not be enforced without the approval of the
holder of the senior liens and security interests in the same property and that
shall otherwise be acceptable in form and substance to the Agent, between the
Agent and CoBank, as agent under the CoBank Credit Agreement (the “CoBank Intercreditor
Agreement”).
5.Waiver
Termination. As used in this Agreement, “Waiver Termination” shall
mean the occurrence of the Scheduled Waiver Expiration Date, or, if earlier, the
occurrence of any one or more of the following events: (a) any Potential
Default or Event of Default under the Credit Agreement, in each case other than
the Subject Default; (b) any failure by the Company for any reason to
comply with any term, condition, or provision contained in this Agreement;
(c) any representation made by the Company in this Agreement or pursuant to
it proves to be incorrect or misleading in any material respect when made;
(d) the CoBank Limited Duration Waiver (as defined in Section 12(b)
hereof) shall for any reason not be or shall cease to be in full force and
effect or is declared to be null and void, or CoBank or any other party to the
CoBank Credit Agreement takes any action for the purpose of terminating,
repudiating or rescinding the CoBank Limited Duration Waiver or any of its
obligations thereunder; (e) the Fairway Limited Duration Waiver (as defined
in Section 12(c) hereof) shall for any reason not be or shall cease to be
in full force and effect or is declared to be null and void, or the
Securitization Agent (as defined below) or any other party to the Receivables
Purchase Agreement dated as of June 26, 1998, among Pilgrim’s Pride Funding
Corporation, as Seller, the Company, as Servicer, Fairway Finance Company, LLC,
as Purchaser, and BMO Capital Markets Corp., as Agent (the “Securitization Agent”), as
amended, supplemented and otherwise modified (as so amended,
supplemented and otherwise modified, the “Receivables Purchase
Agreement”), takes any action for the purpose of terminating, repudiating
or rescinding the Fairway Limited Duration Waiver or any of its obligations
thereunder; or (f) the CoBank Intercreditor Agreement, or any part thereof,
shall for any reason not be or shall cease to be in full force and effect or is
declared to be null and void, or CoBank, as agent under the CoBank Credit
Agreement, or any other lender under the CoBank Credit Agreement, takes any
action for the purpose of terminating, repudiating or rescinding the CoBank
Credit Agreement or any of its obligations thereunder. Upon the
occurrence of a Waiver Termination, the Waiver Period is automatically
terminated and the Banks are then permitted and entitled, with respect to the
Subject Default and any other Event of Default then in existence, under
Sections 6.2, 8.2, 8.3, 8.4 and 8.5 of the Credit Agreement, among other
things, to decline to provide additional credit to the Borrowers, to permanently
terminate the Revolving Credit Commitments, to accelerate the Borrowers’
indebtedness, obligations and liabilities under the Loan Documents, to require
cash collateral for outstanding L/Cs, and to exercise any other rights and
remedies that may be available under the Loan Documents or applicable
law.
0.Xxxxxxx Waiver and Reservation of
Rights. The Borrowers acknowledge and agree that immediately
upon expiration or termination of the Waiver Period, the Agent and the Banks
have all of their rights and remedies with respect to the Subject Default to the
same extent, and with the same force and effect, as if the waiver contained
herein had not been granted. The Borrowers will not assert and hereby
forever waives any right to assert that the Agent or the Banks are obligated in
any way to continue to waive the Subject Default beyond the Waiver Period or to
forbear from enforcing their rights or remedies with respect to the Subject
Default after the Waiver Period or that the Agent and the Banks are not entitled
to act on the Subject Default after the occurrence of a Waiver Termination as if
such default had just occurred and the Waiver Period had never
existed. The Borrowers acknowledge that the Banks have made no
representations as to what actions, if any, the Banks will take after the Waiver
Period or upon the occurrence of any Waiver Termination, Potential Default or
Event of Default, and the Banks and the Agent must and do hereby specifically
reserve any and all rights, remedies, and claims they have (after giving effect
hereto) with respect to the Subject Default and each other Potential Default or
Event of Default that may occur.
7.Acknowledgement of
Liens. The Company hereby acknowledges and agrees that all
indebtedness, obligations and liabilities of the Borrowers, or any of them,
owing to the Agent and the Banks arising out of or in any manner relating to the
Loan Documents, as well as all Hedging Liability and Funds Transfer and Deposit
Account Liability, shall continue to be secured by liens and security interests
on all of the Collateral pursuant to the Loan Documents heretofore or hereafter
executed and delivered by the Company, and nothing herein
contained shall in any manner affect or impair the priority of the liens and
security interests created and provided for thereby as to the indebtedness,
obligations, and liabilities which would be secured thereby prior to giving
effect to this Agreement.
8.Representations and
Warranties. The Borrowers represent and warrant to the Agent
and the Banks that:
(a)each
Borrower has full right and authority to enter into this Agreement and to
perform all of its obligations hereunder, and the Company has full right and
authority to grant to the Agent the liens and security interests contemplated
hereby;
(b)this
Agreement and the performance or observance by the Borrowers of any of the
matters and things herein or therein provided for do not (i) contravene or
constitute a default under any provision of law or any judgment, injunction,
order or decree binding upon any Borrower or any provision of the organizational
documents (e.g.,
certificate or articles of incorporation and by-laws) of any Borrower, or
(ii) contravene or constitute a default under any covenant, indenture or
agreement of or affecting any Borrower or any of its Property;
(c)the
obligations of each Borrower and the Guarantor under this Agreement and each of
the Loan Documents executed and delivered by it are legal, valid, enforceable
(except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally) and subsisting and not subject to set-off, defense
(other than payment) or counterclaim;
(d)no
Potential Default or Event of Default has occurred and is continuing;
(e)the
Company’s indebtedness, obligations and liabilities to the Agent and the Banks
under the Loan Documents constitute “Designated Senior indebtedness” as defined
in the First Supplemental Indenture dated as of January 24, 2007, between the
Company and Xxxxx Fargo Bank, National Association, as Trustee, relating to the
Company’s 8-3/8% Senior Subordinated Notes due 2017; and
(f)as of
the close of business in Chicago, Illinois on September 24, 2008, the undrawn
amount of all commitments under the CoBank Credit Agreement was $143,000,000 and
the undrawn amount of all Revolving Credit Commitments under the Credit
Agreement was $35,500,000.
9.Release. For value
received, including without limitation, the agreements of the Banks in this
Agreement, each Borrower hereby releases the Agent and each Bank, its current
and former shareholders, directors, officers, agents, employees, attorneys,
consultants, and professional advisors (collectively, the “Released Parties”) of and
from any and all demands, actions, causes of action, suits, controversies, acts
and omissions, liabilities, and other claims of every kind or nature whatsoever,
both in law and in equity, known or unknown, which such Borrower has or ever had
against the Released Parties from the beginning of the world to this date
arising in any way out of the existing financing arrangements between the
Borrowers and the Banks, and each Borrower further acknowledges that, as of the
date hereof, it does not have any counterclaim, set-off, or defense against the
Released Parties, each of which each Borrower hereby expressly
waives.
00.Xxxx Documents Remain
Effective. Except as expressly set forth in this Agreement,
the Loan Documents and all of the obligations of the Borrowers thereunder, the
rights and benefits of the Agent and Banks thereunder, and the liens and
security interests created thereby remain in full force and
effect. Without limiting the foregoing, each Borrower agrees to
comply with all of the terms, conditions, and provisions of the Loan Documents
except to the extent such compliance is irreconcilably inconsistent with the
express provisions of this Agreement. This Agreement and the Loan
Documents are intended by the Banks as a final expression of their agreement and
are intended as a complete and exclusive statement of the terms and conditions
of that agreement.
11.Fees and
Expenses. The Company shall pay on demand all fees and
expenses (including attorneys’ fees) incurred by the Agent and its counsel in
connection with this Agreement and the other instruments and documents being
executed and delivered in connection herewith, and all fees and expenses of
counsel to the Agent with respect to the credit facilities subject to the Credit
Agreement.
12.Conditions
Precedent. The effectiveness of this Agreement is subject to
the satisfaction of the following conditions precedent:
(a)the
Borrowers, the Agent, and the Required Banks shall have executed and delivered
this Agreement, and the Guarantor shall have executed and delivered its
reaffirmation, acknowledgment, and consent in the space provided for that
purpose below, on or before the close of business in Chicago,
Illinois on September 26, 2008;
(b)the
Agent shall have received a copy of a fully executed limited duration waiver
from the lenders party to the CoBank Credit Agreement and CoBank, as agent for
such lenders, waiving any default under the CoBank Credit Agreement that is
analogous to the Subject Default for a period ending no earlier that the
Scheduled Waiver Expiration Date, which limited duration waiver shall not
contain any terms or provisions that are not contained in this Agreement or that
are inconsistent with the terms of this Agreement or that are more favorable to
the lenders under the CoBank Credit Agreement than the terms of this Agreement
are favorable to the Banks, and which otherwise shall be in form and substance
reasonably satisfactory to the Agent (the “CoBank Limited Duration
Waiver”), provided that the CoBank Limited Duration Waiver may require
the Company to grant mortgages and deeds of trust to CoBank, as agent under the
CoBank Credit Agreement, on real property and buildings and improvements thereon
that are currently unencumbered so long as the Company concurrently grants to
the Agent a second priority mortgage or deed of trust thereon;
(c)the
Agent shall have received a copy of a fully executed limited duration waiver
from the lenders party to the Receivables Purchase Agreement and the
Securitization Agent, waiving any default under the Receivables Purchase
Agreement that is analogous to the Subject Default for a period ending no
earlier that the Scheduled Waiver Expiration Date, which limited duration waiver
shall not contain any terms or provisions that are not contained in this
Agreement or that are inconsistent with the terms of this Agreement or that are
more favorable to the lenders under the Receivables Purchase Agreement than the
terms of this Agreement are favorable to the Banks, and which otherwise shall be
in form and substance reasonably satisfactory to the Agent (the “Fairway Limited Duration
Waiver”); and
(d)the
payment of the current legal fees and expenses referred to in Section 11
above.
13.Authorization to Enter into
Collateral Documents and Intercreditor Agreement. The Required
Banks hereby irrevocably authorize the Agent to execute and deliver
(a) such amendments (including an amendment and restatement) to the
Security Agreement or such other security agreements as the Agent may deem
appropriate to obtain the security interest in the Company’s accounts receivable
and related property pursuant to Section 4(d) of this Agreement without
interfering or limiting in any way the Company’s ability to sell its accounts
receivable pursuant to its Receivables Securitization Program and
such security agreements, mortgages, deeds of trust and other instruments as the
Agent may deem appropriate to obtain the liens and security interests
contemplated by Section 4(f) of this Agreement (collectively, the “Additional Security
Documents”), and (b) the CoBank Intercreditor Agreement on behalf of
each of the Banks and their Affiliates and the L/C Issuers and to take such
action and exercise such powers under the Additional Security Documents and the
CoBank Intercreditor Agreement as the Agent considers appropriate, provided the Agent shall not
amend Additional Security Documents or the CoBank Intercreditor Agreement unless
such amendment is agreed to in writing by the Required Lenders. Each
Bank and L/C Issuer acknowledges and agrees that it will be bound by the
terms and conditions of the CoBank Intercreditor Agreement upon the execution
and delivery thereof by the Agent. Except as otherwise specifically
provided for herein, no Bank (or its Affiliates) or L/C Issuer, other than
the Agent, shall have the right to institute any suit, action or proceeding in
equity or at law for the enforcement of any remedy under the Additional Security
Documents or the CoBank Intercreditor Agreement; it being understood and
intended that no one or more of the Banks (or their Affiliates) or
L/C Issuer shall have any right in any manner whatsoever to enforce any
right thereunder, and that all proceedings at law or in equity shall be
instituted, had, and maintained by the Agent for the benefit of the Banks, the
L/C Issuers, and their Affiliates. The parties hereto hereby
acknowledge and agree that each of the Additional Security Documents and the
CoBank Intercreditor Agreement shall constitute a Loan Document for all purposes
of the Credit Agreement and the other Loan Documents.
14.Miscellaneous. By
its acceptance hereof, the Borrower hereby represents that it has the necessary
power and authority to execute, deliver, and perform the undertakings contained
herein, and that this Agreement constitutes the valid and binding obligation of
the Borrower enforceable against it in accordance with its terms. Any
provision of this Agreement held invalid, illegal, or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality, or unenforceability without affecting the validity,
legality, and enforceability of the remaining provision hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties
hereto hereby acknowledge and agree that this Agreement shall constitute a Loan
Document for all purposes of the Credit Agreement and the other Loan
Documents. Unless otherwise expressly stated herein, the provisions
of this Agreement shall survive the termination of the Waiver
Period. This Agreement may be executed in counterparts and by
different parties on separate counterpart signature pages, each of which
constitutes an original and all of which taken together constitute one and the
same instrument. Delivery of executed counterparts of this Agreement
by telecopy shall be effective as an original. This Agreement shall
be governed by Illinois law and shall be governed and interpreted on the same
basis as the Credit Agreement.
[Signature
Pages to Follow]
This
Limited Duration Waiver Agreement is entered into as of the date and year first
above written.
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“Borrowers”
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Pilgrim’s
Pride Corporation
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By/s/ Xxxxxxx X.
Xxxxxxx
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Its
Chief Financial Officer
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To-Ricos,
Ltd.
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By/s/ Xxxxxxx X.
Xxxxxxx
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Its
Executive Vice President, Treasurer and Assistant
Secretary
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To-Ricos
Distribution, Ltd.
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By/s/ Xxxxxxx X.
Xxxxxxx
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Its
Executive Vice President, Treasurer and Assistant
Secretary
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Accepted
and agreed to.
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Bank
of Montreal, as Agent
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By/s/ Xxxxx
Xxxxxxxx
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Its
Vice President
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BMO
Capital Markets Financing, Inc., individually and as Swing
Bank
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By/s/ Xxxxx
Xxxxxxxx
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Its
Vice President
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SunTrust
Bank
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By/s/ Xxxxx X.
l
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Its
Vice President
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U.S.
Bank National Association
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By
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Its
Vice President
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Xxxxx
Fargo Bank National Association
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By
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Its
Vice President
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ING
Capital LLC
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By/s/ Xxxxxxx X.
Xxxxxxx
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ItsManaging
Director
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By
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Its
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Credit
Suisse, Cayman Islands Branch
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By/s/ Xxxxxxx X.
Xxxxxxxx
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ItsManaging
Director
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By/s/ Xxxxx
Xxxx
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ItsDirector
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Bank
of America N.A.
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By/s/ Xxxxxxx
Honey
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ItsSenior
Vice President
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CALYON
New York Branch
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By/s/ Xxxxx
Xxxxx
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ItsManaging
Director
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By/s/ Xxxxxx
Xxxxx
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ItsManaging
Director
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Natixis
New York Branch
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By/s/ Xxxxx Xxxxx /
Xxxxxxx X. Xxxxxxx
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ItsAssociate
Director / Managing Director
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XX
Xxxxxx Chase Bank, N.A.
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By
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Its
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Deutsche
Bank Trust Company Americas
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By/s/ Xxxx
Xxxxxxxxx
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ItsVice
President
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By/s/ Xxxxxx
Xxxxxxx
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ItsVice
President
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First
National Bank of Omaha
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By
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Its
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Reaffirmation,
Acknowledgement, and Consent of Guarantor
The
undersigned, Pilgrim Interests, Ltd., a Texas limited partnership (the “Guarantor”), has executed
and delivered a Second Amended and Restated Guaranty Agreement dated as of
February 8, 2007 (the “Guaranty”) to the
Banks. As an additional inducement to and in consideration of the
Banks’ acceptance of the Limited Duration Waiver Agreement dated as of
September 26, 2008 (the “Limited Duration Waiver”),
the Guarantor hereby agrees with the Banks as follows:
1.The
Guarantor consents to the execution of the Limited Duration Waiver by the
Borrowers and acknowledges that this consent is not required under the terms of
the Guaranty and that the execution hereof by the Guarantor shall not be
construed to require the Banks to obtain the Guarantor’s consent to any future
amendment, modification or waiver of any term of the Credit Agreement except as
otherwise provided in said Guaranty. The Guarantor hereby agrees that
the Guaranty shall apply to all indebtedness, obligations and liabilities of the
Borrowers to the Banks, the Agent and the L/C Issuers under the Credit
Agreement. The Guarantor further agrees that the Guaranty shall be and remain in
full force and effect.
2.All
terms used herein shall have the same meaning as in the Limited Duration Waiver,
unless otherwise expressly defined herein.
Dated as
of September 26, 2008.
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Pilgrim
Interests, Ltd.
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By/s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx
X. Xxxxxxx, as trustee of the Xxxxxx X. Xxxxxxx 1998 Revocable Trust
created by agreement dated September 9, 1998, as
amended
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Its
General Partner
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By/s/ Xxxxxx Xxx
Xxxxxxx
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Xxxxxx
Xxx Xxxxxxx
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Its
General Partner
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Who
Represent and Warrant that they have Authority to Bind the
Partnership
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