Contract
EXHIBIT 10.1
Pilgrim’s
Pride Corporation
Third
Amendment To Amended and Restated Post-Petition Credit Agreement
This
Third Amendment to Amended and Restated Post-Petition Credit Agreement (herein,
the “Amendment”) is
entered into as of July 15, 2009, among Pilgrim’s Pride Corporation, a Delaware
corporation (the “Borrower”), as debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy
Code, the direct and indirect Domestic Subsidiaries of the Borrower party to
this Amendment and To-Ricos, Ltd., a Bermuda company (“To-Ricos”) and To-Ricos
Distribution, Ltd., a Bermuda company (“To-Ricos Distribution”), as
Guarantors, each as debtor and debtor-in-possession in a case pending under
Chapter 11 of the Bankruptcy Code, the Lenders party hereto, and Bank of
Montreal, a Canadian chartered bank acting through its Chicago
branch, as DIP Agent for the Lenders.
Preliminary
Statements
A.The
Borrower, the Guarantors from time to time parties thereto, the Lenders and the
DIP Agent are parties to that certain Amended and Restated Post-Petition Credit
Agreement dated as of December 31, 2008, as heretofore amended (the “Credit
Agreement”). All capitalized terms used herein without
definition shall have the same meanings herein as such terms have in the Credit
Agreement.
B.The
Borrower and the Required Lenders have agreed to amend the Credit Agreement on
the terms and conditions set forth in this Amendment.
Now,
Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
|
|
Section 1.Amendments
To Credit Agreement.
|
Upon
satisfaction of all of the conditions precedent specified in Section 2
hereof the Credit Agreement shall be amended as follows:
Section 1.1.Section 4.3
of the Credit Agreement shall be amended by adding the following sentence
thereto as the last sentence thereof:
“The
Collection Accounts may consist of deposit accounts maintained by the Debtors
with the DIP Agent or any affiliate thereof that are fully insured by the
Federal Deposit Insurance Corporation, Pledged Deposit Accounts and Pledged
Government Securities Accounts.”
Section 1.2.Section 4.4(a)
of the Credit Agreement shall be amended by adding the following sentence
thereto as the last sentence thereof:
“The Cash
Collateral Accounts may consist of deposit accounts maintained by the Debtors
with the DIP Agent or any affiliates thereof that are fully insured by the
Federal Deposit Insurance Corporation, Pledged Deposit Accounts and Pledged
Government Securities Accounts.”
Section 1.3.Section 5.1
of the Credit Agreement shall be amended by adding the following definitions
thereto in alphabetical order:
“Customer Hedging Contracts”
commodity hedging arrangements entered into at the request or direction
of a customer or with the prior written approval of the Required Lenders in each
case with financial institutions or on a recognized commodity exchange in
connection with bona fide hedging activities in the ordinary course of business
and not for speculative purposes.
“Permitted Hedging Contracts”
means any forward contract, futures contract, options contract and other similar
agreements relating to feed ingredients used by the Borrower and its
Subsidiaries in their business (other than Customer Hedging Contracts) that
satisfies each of the following requirements: (a) it is traded on a recognized
commodity exchange, (b) it is held in a commodity account maintained by the
Borrower with a futures commission merchant that is a Lender, an Affiliate of a
Lender or a commodities broker or financial institution reasonably acceptable to
the DIP Agent in each case that is subject to a commodity account control
agreement satisfactory in form and substance to the DIP Agent among the
Borrower, such futures commission merchant and the DIP Agent, (c) the expiration date of
such contract is no later than the later of (i) March 21, 2010, or
(ii) such later date as the DIP Agent shall agree in writing, (d) on the
trade date of such contract, the Borrower and its Subsidiaries do not have
open forward, futures or options positions in the subject commodity
(excluding open positions under Customer Hedging Contracts) in excess of fifty
percent (50%) of the Borrower's expected usage of such commodity in the ordinary
course of business of the Borrower and its Subsidiaries for the period beginning
on such trade date and ending on the expiration date of such contract, (e) it has been approved
in accordance with the Borrower's commodity price risk management guidelines,
and (f) it is entered into in the ordinary course of business to
protect the Borrower and its Subsidiaries against fluctuations in the price of
such feed ingredients and not for speculative purposes.
“Pledged Deposit Account”
means an interest bearing deposit account that (a) is maintained by the Borrower
with an institution located in the United States of America that is acceptable
to the DIP Agent, (b) is fully insured by the Federal Deposit Insurance
Corporation without limit as to the amount of such insurance, and (c) is subject
to the terms of a deposit account control agreement satisfactory in form and
substance to the DIP Agent among the Borrower, the DIP Agent and such
institution.
“Pledged Government Securities
Account” means a securities account that (a) is maintained by the
Borrower with the DIP Agent, an affiliate of the DIP Agent or a securities
intermediary located in the United States of America that is acceptable to the
DIP Agent, (b) is subject to a securities account control agreement
satisfactory in form and substance to the DIP Agent among the DIP Agent, the
Borrower and the securities intermediary, and (c) contains no investments
except investments permitted by Section 8.9(a) and (b) hereof.
Section 1.4.Section 8.5
of the Credit Agreement shall be amended by replacing the period appearing at
the end of subsection (p) thereof with “; and” and by adding the
following provision thereto as subsection (q) thereof:
(q)on
Friday of each week, commencing August 14, 2009, a position report showing in
reasonable detail, as of last day of the preceding week, the amount of each
commodity that is subject to a Permitted Hedging Contract, the latest expiration
date of all Permitted Hedging Contracts then outstanding, the percentage of the
Borrower's expected usage of each feed ingredient in the ordinary course of
business of the Borrower and its Subsidiaries subject to open positions under
such contracts during the period beginning on such date and ending on the
latest expiration date of all Permitted Hedging Contracts then outstanding, and the aggregate
amount of all margin provided or required to be provided to futures commission
merchants with respect to such Permitted Hedging Contracts, certified by chief
financial officer or chief restructuring officer of the Borrower or another
officer of the Borrower acceptable to the DIP Agent.
Section 1.5.Section 8.8
of the Credit Agreement shall be amended by replacing the period
appearing at the end of subsection (z) thereof with “; and” and by adding the
following provision thereto as subsection (aa) thereof:
(aa)Liens
on Permitted Hedging Contracts, all margin provided or required to be provided
by the Borrower or its Subsidiaries with respect to Permitted Hedging Contracts,
all of the Borrower’s or its Subsidiaries’ rights relating thereto and all
proceeds thereof granted to the futures commission merchant with which such
Permitted Hedging Contracts are maintained to secure the Borrower’s obligations
with respect to such Permitted Hedging Contracts, which Liens shall be prior to
the Lien of the DIP Agent therein.
Section 1.6.Section 8.25
of the Credit Agreement shall be amended to read as follows:
Section 8.25Restriction on
Hedging. The Borrower shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly enter into any interest rate,
foreign currency or commodity hedging agreements or arrangements other than
(a) Customer Hedging Contracts and (b) Permitted Hedging Contracts; provided that the aggregate
amount of all margin required to be provided by the Borrower with respect to all
Permitted Hedging Contracts shall not exceed $100,000,000 at any
time.
Section 1.7.The Borrower
and the Lenders agree that the DIP Commitments are hereby permanently reduced by
$100,000,000, which reduction shall reduce each Lender’s DIP Commitment ratably
in accordance with its Percentage of such reduction amount.
|
|
Section 2.Conditions
Precedent.
|
The
effectiveness of this Amendment is subject to the satisfaction of all of the
following conditions precedent:
Section 2.1.The
Borrower, the Guarantors and the Required Lenders shall have executed and
delivered this Amendment.
Section 2.2.Each of the
representations and warranties set forth in Section 6 of the Credit
Agreement shall be true and correct in all material respects, except to the
extent the same expressly relate to an earlier date in which case they shall
remain true and correct in all material respects as of such earlier
date.
Section 2.3.The Borrower
shall be in full compliance with all of the terms and conditions of the Credit
Agreement and no Event of Default or Default shall have occurred and be
continuing thereunder or shall result after giving effect to this
Amendment.
Section 2.4.The
Bankruptcy Court shall have entered an order authorizing the execution and
delivery of this Amendment.
|
|
Section 3.Representations
And Warranties.
|
Section 3.1.The
Borrower, by its execution of this Amendment, hereby certifies and warrants the
following:
(a)each
of the representations and warranties set forth in Section 6 of the Credit
Agreement is true and correct in all material respects as of the date hereof,
except to the extent the same expressly relate to an earlier date in which case
they shall remain true and correct in all material respects as of such earlier
date; and
(b)the
Borrower is in full compliance with all of the terms and conditions of the
Credit Agreement and no Event of Default or Default has occurred and is
continuing thereunder.
|
|
Section 4.Miscellaneous.
|
Section 4.1.Except as
specifically amended herein the Credit Agreement shall continue in full force
and effect. Reference to this specific Amendment need not be made in
any note, documents, letter, certificate, the Credit Agreement itself, the
Notes, or any communication issued or made pursuant to or with respect to the
Credit Agreement or the Notes, any reference to the Credit Agreement being
sufficient to refer to the Credit Agreement as amended hereby.
Section 0.0.Xx an
additional inducement to and in consideration of the Lenders’ acceptance of this
Amendment each of the Guarantors hereby acknowledges the execution of the
foregoing Amendment by the Borrower and agrees that this acknowledgement is not
required under the terms of the Guaranty and that the execution hereof by the
Guarantors shall not be construed to require the Lenders to obtain their
acknowledgement or consent to any future amendment, modification or waiver of
any term of the Credit Agreement except as otherwise provided in the
Guaranty. Each of the Guarantors hereby agree that the Guaranty shall
apply to all indebtedness, obligations and liabilities of the Borrower and the
Guarantors to the Lenders under the Credit Agreement as amended by this
Amendment. Each Guarantor further acknowledges and agrees that the
Guaranty shall be and remain in full force and effect.
Section 4.3.This
Amendment may be executed in any number of counterparts, and by the different
parties on different counterparts, all of which taken together shall constitute
one and the same Agreement. Any of the parties hereto may execute
this Amendment by signing any such counterpart and each of such counterparts
shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of Illinois.
[Signature
pages to follow]
This
Third Amendment to Amended and Restated Post-Petition Credit Agreement is
entered into as of the date and year first above written.
“Borrower”
Pilgrim’s
Pride Corporation, as debtor and debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
“Guarantors”
PFS
Distribution Company, as debtor and debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
PPC
Transportation Company, as debtor and debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
Pilgrim’s
Pride Corporation of West Virginia, Inc., as debtor and
debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
PPC
Marketing, Ltd., as debtor and debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
To-Ricos,
Ltd., as debtor and debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
To-Ricos
Distribution, Ltd., as debtor and debtor-in-possession
By/s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
Pilgrim’s
Pride Corporation
Signature
Page to Third Amendment to Amended and Restated Post-Petition Credit
Agreement
“DIP
Agent, Swing Line Lender and L/C Issuer”
Bank of
Montreal, as a Lender, Swing Line Lender, L/C Issuer and as DIP
Agent
By/s/ Xxxxx X.
Xxxxxxxx
Xxxxx X.
Xxxxxxxx
Managing
Director
Pilgrim’s
Pride Corporation
Signature
Page to Third Amendment to Amended and Restated Post-Petition Credit
Agreement
“Lenders”
Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank
Nederland” New York Branch
By/s/ Xxxxx
Xxxxxxx
Its Executive Director
By/s/ Xxxx
XxXxxxx
Its Managing Director
U.S.
Bank National Association
By/s/ Xxxx X.
Xxxxx
Its: Vice President
Xxxxx
Fargo Bank National Association
By/s/ Xxxxx
Xxxxxxx
Its Senior Vice
President
ING
Capital LLC
By/s/ Xxxx X.
Xxxxxx
Its Director
CALYON
New York Branch
By/s/ Xxxx
Xxxxxxx
Its Managing Director
By/s/ Xxxx
Xxxxxxx
Its Managing Director
Natixis
New York Branch
By/s/ Xxxxx
Xxxxx
Its Associate Director
By/s/ Xxxxxxx X.
Xxxxxxx
Its Managing Director
SunTrust
Bank
By/s/ Xxxxx X.
Xxxxxx
Its Senior Vice
President
First
National Bank of Omaha
By
Its
Pilgrim’s
Pride Corporation
Signature
Page to Third Amendment to Amended and Restated Post-Petition Credit
Agreement
