SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND
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 Xxxxx
Xxxxxxxxx,
Xxxxx 00000
“Syndication
Parties”: Whose
signatures appear below
Execution
Date:
November 28, 2005
Recitals:
A. CoBank
(in its capacity as the Administrative Agent (“Agent”) and as
a Syndication Party) and Borrower have entered into that certain 2004 Amended
and Restated Credit Agreement (Convertible Revolving Loan) dated as of April 7,
2004, and that certain First Amendment to Credit Agreement dated September 22,
2005 (“First
Amendment”) (as
amended by the First Amendment and as further amended, modified, or supplemented
from time to time, the “Credit
Agreement”)
pursuant to which CoBank and any entity which becomes a “Syndication Party” has
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 broaden Borrower’s
authority to pay dividends and make distributions to the holders of its common
stock, which the Agent and the Syndication Parties are willing to do under the
terms and conditions as set forth in this Second Amendment to Credit Agreement
(“Second
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 Section
10.10 is hereby amended in its entirety to read as follows:
10.10 Dividends,
etc.
Borrower shall not, directly or indirectly, declare or pay any dividends (other
than dividends payable solely in stock of Borrower) on account of any shares of
any class (including common or preferred stock) of its capital stock now or
hereafter outstanding, or set aside or otherwise deposit or invest any sums for
such purpose, or redeem, retire, defease, purchase or otherwise acquire any
shares of any class of its capital stock (or set aside or otherwise deposit or
invest any sums for such purpose) for any consideration other than common stock
or apply or set apart any sum, or make any other distribution (by reduction or
capital or otherwise) in respect of any such shares or agree to do any of the
foregoing; provided that if no Potential Default or Event of Default shall exist
before and after giving effect thereto, Borrower may (a) pay dividends on
preferred stock and other capital stock of Borrower that are convertible,
exchangeable or exercisable into Borrower's common stock and on any common stock
of Borrower which may be issued upon conversion, exchange or exercise of such
capital stock, (b) in addition to the dividends permitted by clauses (a) and
(e), pay dividends in an aggregate amount not to exceed $13,000,000.00 in any
Fiscal Year; (c) pay dividends permitted under clause (b) hereof during the
immediately preceding Fiscal Year that were declared but not paid in the
immediately preceding Fiscal Year (without giving effect to any carry over); (d)
repurchase, at any time after the Original Effective Date, its shares of capital
stock in an amount not to exceed $25,000,000.00 in the aggregate; and (e) in
addition to dividends permitted under clauses (a), (b), and (c) of this Section,
pay a one-time dividend in an amount not to exceed the lesser of $1.00 per share
and $66,556,000.00 in the aggregate to holders of Borrower’s common
stock.
2. Conditions
to Effectiveness of this Second Amendment. The
effectiveness of this Second 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. The
Administrative Agent shall have received originals of this Second Amendment duly
executed by Borrower and all other parties hereto.
2.2 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.
2.3 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 Second Amendment.
2.4 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 Second Amendment); and (b) all expenses owing as
of the Effective Date pursuant to Section 14.1 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
Second 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 Second Amendment shall have the
meaning set forth in the Credit Agreement.
3.4 Severability. Should
any provision of this Second Amendment be deemed unlawful or unenforceable, said
provision shall be deemed several and apart from all other provisions of this
Second Amendment and all remaining provision of this Second Amendment shall be
fully enforceable.
3.5 Governing
Law. To the
extent not governed by federal law, this Second 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 Second Amendment are for convenience only and in no
way define, limit or describe the scope or intent of any provision of this
Second Amendment.
3.7 Counterparts. This
Second 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 Second
Amendment by
telefax, facsimile, or
e-mail transmission of an Adobe® file format document also
shall deliver an original executed counterpart of this Second
Amendment, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Second
Amendment.
[Signatures
to follow on next page.]
4
IN
WITNESS WHEREOF, the parties hereto have caused this Second 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:
Chief Financial Officer
SYNDICATION
PARTIES: CoBank,
ACB
By:
/s/
Xxx Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title: Vice
President
Agriland,
FCS
By:
/s/
Xxxxx Xxxxxxxx
Name: Xxxxx
Xxxxxxxx
Title: Chief
Executive Officer
Deere
Credit, Inc.
By:
/s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Senior
Account Credit Manager
