SIXTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.1
SIXTH
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: November 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, and that certain Fifth Amendment
to
Credit Agreement dated as of August 7, 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. In
connection with taking liens against certain of the GK Assets (“GK Pledged Assets”), the Agent
entered into a letter agreement with Borrower dated August 30, 2007 (“Further Action Letter”),
wherein Borrower agreed to (i) take certain action as may be specified by the
Agent with respect to environmental concerns pertaining to certain parcels
of
real property included within the GK Pledged Assets, or, (ii) in lieu thereof,
to elect to remove one or more of such properties from the Available Amount
Report and Available Amount calculations (each such parcel a “Released Property” and
together the “Released
Properties”), in which case Borrower would be entitled to have released
the lien granted in favor of the Agent against each parcel of Released
Property.
C. Borrower
has requested that the Agent and the Syndication Parties modify the Credit
Agreement to allow the Agent to effect release of Released Properties pursuant
to the Further Action Letter without the necessity of obtaining the consent
thereto by the Required Lenders, which the Agent and the Syndication Parties
are
willing to do under the terms and conditions as set forth in this Sixth
Amendment to Credit Agreement (“Sixth
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 Subsection
14.5.6 is amended by the addition of a new clause (f) to read as
follows:
14.5.6 Release
of Certain
Liens. To take such action and execute such documents as may be
reasonably necessary to release any liens on or security interests in any
Collateral where Borrower is entitled to such release in connection with (a)
Dispositions permitted pursuant to the provisions of Section 11.4(a), (b),
and
(c)(i) hereof, without the need to obtain the consent of any of the Syndication
Parties or Voting Participants; (b) the replacement or removal of any Collateral
(other than in connection with a Shut Down pursuant to the terms of Section
10.15 hereof) where the book value of such Collateral is $5,000,000.00 or less,
without the need to obtain the consent of any of the Syndication Parties or
Voting Participants; (c) the removal of any facility from the Available Amount
Report (and therefore, from calculation of the Available Amount) arising from
a
Shut Down pursuant to the provisions of Section 10.15 hereof where the book
value of the Collateral subject to such Shut Down is $10,000,000.00 or less,
without the need to obtain the consent of any of the Syndication Parties or
Voting Participants; (d) dispositions permitted pursuant to the provisions
of
Section 11.4(c)(ii) hereof, with the consent of the Required Lenders; (e) the
removal of any facility from the Available Amount Report (and therefore, from
calculation of the Available Amount) arising from a Shut Down pursuant to the
provisions of Section 10.15 where the book value of the Collateral subject
to
such Shut Down is more than $10,000,000.00, with the consent of the Required
Lenders; and (f) the Administrative Agent’s receipt of a notice from Borrower
that, pursuant to the provisions of that certain letter agreement between
Borrower and the Administrative Agent dated August 30, 2007, Borrower has
elected to withdraw from the calculation of the Available Amount one or more
of
the Sites (as defined in such letter agreement) as to which Borrower has been
required to take Future Actions (as defined in such letter agreement) pursuant
to the provisions of such letter agreement, provided that simultaneously with
such release the Available Amount for such Site shall be automatically reduced
by the Appraised Value for such Site as it was included in the latest Available
Amount Report (or reduced as otherwise provided in such letter agreement if
such
Site was not specifically identified and included in the latest Available Amount
Report), such release to be made without the need to obtain the consent of
any
of the Syndication Parties or Voting Participants.
Clause
(a) of Subsection 14.7.2 is amended by the addition of a reference to clause
(f)
of Subsection 14.5.6 so that such clause reads as follows:
(a) Consenting
to any action or amendment, or granting any waiver with respect to, either
the
Revolving Loan or the Term Loan, not covered in Subsection 14.7.1 and except
as
provided in Subsection 14.5.6(a), (b), (c) or (f) hereof; or
2. Conditions
to Effectiveness of this
Sixth Amendment. The effectiveness of this Sixth 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
Sixth Amendment
2.2 Syndication
Parties Execution; Voting
Participant Approval. The Administrative Agent shall have
received (a) written approval of this Sixth Amendment by at least the Required
Lenders (including Voting Participants); and (b) a copy of this Sixth 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 Sixth
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 Sixth 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 Sixth 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 Sixth Amendment shall have the meaning
set
forth in the Credit Agreement.
3.4 Severability. Should
any provision of this Sixth Amendment be deemed unlawful or unenforceable, said
provision shall be deemed several and apart from all other provisions of this
Sixth Amendment and all remaining provision of this Sixth Amendment shall be
fully enforceable.
3.5 Governing
Law. To
the extent not governed by federal law, this Sixth 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 Sixth Amendment are for convenience only and in
no
way define, limit or describe the scope or intent of any provision of this
Sixth
Amendment.
3.7 Counterparts. This
Sixth 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
Sixth Amendment by telefax, facsimile, or e-mail transmission of an Adobe® file
format document also shall deliver an original executed counterpart of this
Sixth Amendment, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this Sixth
Amendment.
[Signatures
to follow on next
page.]
IN
WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to be
executed as of the Effective Date.
ADMINISTRATIVE
AGENT: CoBank,
ACB
By: /s/
Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
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/
Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
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.
Xxxxxxxx
Name: Xxxx
X. Xxxxxxxx
Title: Vice
President, AFS Operations
Bank
of the West
By: /s/
Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Vice
President
Xxxx
Xxxxxxx Life Insurance Company
By: /s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Director
The
Variable Annuity Life Insurance Company
By: AIG
Global Investment Corp.,
Investment
adviser
By: /s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Managing
Director
The
United States Life Insurance Company in the City of New York
By: AIG
Global Investment Corp.,
Investment
adviser
By:
/s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Managing
Director
Merit
Life Insurance Co.
By: AIG
Global Investment Corp.,
Investment
adviser
By:
/s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Managing
Director
American
General Assurance Company
By: AIG
Global Investment Corp.,
Investment
adviser
By:
/s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Managing
Director
AIG
International Group, Inc.
By: AIG
Global Investment Corp.,
Investment
adviser
By:
/s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Managing
Director
AIG
Annuity Insurance Company
By: AIG
Global Investment Corp.,
Investment
adviser
By:
/s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
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
