FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.39
FIFTH
AMENDMENT TO CREDIT AGREEMENT
Parties:
“CoBank”: CoBank,
ACB
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
“Borrower”: Pilgrim’s
Pride Corporation
0000
XX
Xxxxxxx 000 X.
Xxxxxxxxx,
Xxxxx 00000
“Syndication
Parties”: Whose
signatures appear below
Execution
Date: August 7,
2007
Recitals:
A. CoBank
(in its capacity as the Administrative Agent (“Agent”), the Syndication
Parties signatory thereto, and Borrower have entered into that certain 2006
Amended and Restated Credit Agreement (Convertible Revolving Loan and Term
Loan)
dated as of September 21, 2006, that certain First Amendment to Credit Agreement
dated as of December 13, 2006, that certain Second Amendment to Credit Agreement
dated as of January 4, 2007, and that certain Third Amendment to Credit
Agreement dated as of February 7, 2007, and that certain Fourth Amendment to
Credit Agreement dated as of July 3, 2007 (as so amended and as amended,
modified, or supplemented from time to time in the future, the “Credit Agreement”) pursuant to
which the Syndication Parties, and any entity which becomes a Syndication Party
on or after September 21, 2006, have extended certain credit facilities to
Borrower under the terms and conditions set forth in the Credit
Agreement.
B. Borrower
has requested that the Agent and the Syndication Parties modify the definition
of the XX Xxxx Date, which the Agent and the Syndication Parties are willing
to
do under the terms and conditions as set forth in this Fifth Amendment to Credit
Agreement (“Fifth
Amendment”).
Agreement:
Now,
therefore, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and adequacy
of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendments
to Credit
Agreement. The Credit Agreement is amended as of the Effective
Date as follows:
1.1 Sections
1.57 is amended to read as follows:
1.57 XX
Xxxx
Date: means September 23, 2007.
2. Conditions
to Effectiveness of this
Fifth Amendment. The effectiveness of this Fifth Amendment is
subject to satisfaction, in the Administrative Agent’s sole discretion, of each
of the following conditions precedent (the date on which all such conditions
precedent are so satisfied shall be the “Effective Date”):
2.1 Delivery
of Executed Loan
Documents. Borrower shall have delivered to the Administrative
Agent, for the benefit of, and for delivery to, the Administrative Agent and
the
Syndication Parties, the following document, duly executed by
Borrower:
A. This
Fifth Amendment
2.2 Syndication
Parties Execution; Voting
Participant Approval. The Administrative Agent shall have
received (a) written approval of this Fifth Amendment by at least the Required
Lenders (including Voting Participants); and (b) a copy of this Fifth Amendment
executed by the Syndication Parties as required.
2.3 Representations
and
Warranties. The representations and warranties of Borrower in
the Credit Agreement shall be true and correct in all material respects on
and
as of the Effective Date as though made on and as of such date.
2.4 No
Event of
Default. No Event of Default shall have occurred and be
continuing under the Credit Agreement as of the Effective Date of this Fifth
Amendment.
2.5 Payment
of Fees and
Expenses. Borrower shall have paid the Administrative Agent,
by wire transfer of immediately available federal funds (a) all fees presently
due under the Credit Agreement (as amended by this Fifth Amendment); and (b)
all
expenses owing as of the Effective Date pursuant to Section 15.1 of the
Credit Agreement.
3. General
Provisions.
3.1 No
Other
Modifications. The Credit Agreement, as expressly modified
herein, shall continue in full force and effect and be binding upon the parties
thereto.
3.2 Successors
and
Assigns. This Fifth Amendment shall be binding upon and inure
to the benefit of Borrower, Agent, and the Syndication Parties, and their
respective successors and assigns, except that Borrower may not assign or
transfer its rights or obligations hereunder without the prior written consent
of all the Syndication Parties.
3.3 Definitions. Capitalized
terms used, but not defined, in this Fifth Amendment shall have the meaning
set
forth in the Credit Agreement.
3.4 Severability. Should
any provision of this Fifth Amendment be deemed unlawful or unenforceable,
said
provision shall be deemed several and apart from all other provisions of this
Fifth Amendment and all remaining provision of this Fifth Amendment shall be
fully enforceable.
3.5 Governing
Law. To
the extent not governed by federal law, this Fifth Amendment and the rights
and
obligations of the parties hereto shall be governed by, interpreted and enforced
in accordance with the laws of the State of Colorado.
3.6 Headings. The
captions or headings in this Fifth Amendment are for convenience only and in
no
way define, limit or describe the scope or intent of any provision of this
Fifth
Amendment.
3.7 Counterparts. This
Fifth Amendment may be executed by the parties hereto in separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto. Copies of documents or signature pages bearing original
signatures, and executed documents or signature pages delivered by a party
by
telefax, facsimile, or e-mail transmission of an Adobe® file format document
(also known as a PDF file) shall, in each such instance, be deemed to be, and
shall constitute and be treated as, an original signed document or counterpart,
as applicable. Any party delivering an executed counterpart of this
Fifth Amendment by telefax, facsimile, or e-mail transmission of an Adobe® file
format document also shall deliver an original executed counterpart of this
Fifth Amendment, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this Fifth
Amendment.
[Signatures
to follow on next
page.]
IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be
executed as of the Effective Date.
ADMINISTRATIVE
AGENT: CoBank,
ACB
By:
/s/
Xxx
Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title: Vice
President
BORROWER: Pilgrim’s
Pride Corporation
By: /s/
Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Exe.
VP, CFO, Sec & Treas.
SYNDICATION
PARTIES: CoBank,
ACB
By:
/s/
Xxx
Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title: Vice
President
Agriland,
FCS
By: /s/
Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Chief
Credit Officer
Deere
Credit, Inc.
By:
/s/
Xxxx X.
Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Manager,
AFS Credit Operations
Bank
of the West
By:
/s/
Xxx
Xxxxx
Name: Xxx
Xxxxx
Title: Regional
Vice President
Xxxx
Xxxxxxx Life Insurance Company
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Managing
Director
The
Variable Annuity Life Insurance Company
By:
/s/ Xxxxxxx X.
XxXxx
Name: Xxxxxxx
X. XxXxx
Title: Managing
Director
The
United States Life Insurance Company in the City of New York
By:
/s/
Xxxxxxx X.
XxXxx
Name: Xxxxxxx
X. XxXxx
Title: Managing
Director
Merit
Life Insurance Co.
By: /s/
Xxxxxxx X.
XxXxx
Name: Xxxxxxx
X. XxXxx
Title: Managing
Director
American
General Assurance Company
By: /s/
Xxxxxxx X.
XxXxx
Name: Xxxxxxx
X. XxXxx
Title: Managing
Director
AIG
International Group, Inc.
By: /s/
Xxxxxxx X.
XxXxx
Name: Xxxxxxx
X. XxXxx
Title: Managing
Director
AIG
Annuity Insurance Company
By: /s/
Xxxxxxx X.
XxXxx
Name: Xxxxxxx
X. XxXxx
Title: Managing
Director
Transamerica
Life Insurance Company
By: /s/
Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Vice
President
The
CIT Group/Business Credit, Inc.
By: /s/
Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title: Vice
President
Metropolitan
Life Insurance Company
By: /s/
Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Director
Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank-Nederland” New York
Branch
By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Executive
Director
By: /s/
Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Executive
Director
Farm
Credit Services of America, PCA
By: /s/
Xxxxx X.
Xxxxx
Name: Xxxxx
X. Xxxxx
Title: Vice
President
