FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH
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:
|
July
3, 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 (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 certain
provisions of the Credit Agreement, which the Agent and the Syndication Parties
are willing to do under the terms and conditions as set forth in this Fourth
Amendment to Credit Agreement (“Fourth
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
1.56 and 1.57 are amended to read as follows and the definitional references
set
forth below are added to the end of Article 1:
1.56 GK
Fixed Assets: (a) until the date, subsequent to the Control
Acquisition Date, that Borrower provides to the Administrative Agent the
schedule of consolidated fixed assets of Gold Xxxx pursuant to Section 10.20
hereof, means the consolidated fixed assets of Gold Xxxx as reflected on the
quarter-end financials of Gold Xxxx that are publicly available for its fiscal
quarter ending immediately preceding the Closing Date; and (b) on and after
the
XX Xxxx Date, means the consolidated fixed assets of Gold Xxxx as reflected
on
the schedule thereof which Borrower provides to the Administrative Agent
pursuant to Section 10.20 hereof. The term “GK Fixed Assets” may, at
Borrower’s election, and upon satisfaction of the applicable conditions and
requirements set forth herein, include leasehold interests in one or more of
the
facilities described on Exhibit 1.56 hereto, including the real property
on which such facility is located and the equipment located on and/or used
in
connection with such facility (each a “GK Leasehold Facility”)
owned by Pilgrim’s Pride Corporation of Georgia, Inc., a Delaware corporation
(“PPC Georgia”), which PPC Georgia acquired as the successor in
interest, by merger, to Gold Xxxx, where Borrower is the lessee under a recorded
lease from PPC Georgia in a form and on terms approved in writing by the
Administrative Agent (“Approved GK Lease”) and (1) calling for
a rental payment equal to or in excess of $100,000.00 per annum, or (2) which
has an Appraised Value, as demonstrated in the Appraisal required pursuant
to
clause (vi) below, of no less than $2,000,000.00; provided that, in each case,
Borrower provides to the Administrative Agent, (i) a leasehold mortgage or
deed
of trust substantially in form and substance satisfactory to the Administrative
Agent, granting a lien and mortgage on such leasehold interest to secure
Borrower’s obligations hereunder, (ii) a Title Policy and survey satisfying the
requirements set forth in clause (a) of Subsection 10.21.2 (modified as
necessary to reflect a leasehold, rather than fee, interest), (iii) a copy
of
the executed Approved GK Lease pursuant to which Borrower derives its leasehold
interest, (iv) a lessor consent in form and content satisfactory to the
Administrative Agent and containing such estoppels of the lessor of the
leasehold estate as the Administrative Agent shall require; (v) with respect
to
the parcel of property that is the subject of the leasehold interest, (A) a
Phase I environmental report, satisfactory in form and content to the
Administrative Agent, and (B) such Phase II environmental report, or proof
satisfactory to the Administrative Agent that Borrower has taken, or has caused
PPC Georgia to take, such remedial or other action as the Administrative Agent
may reasonably require, in either case, based on the contents of such
environmental reports; and (vi) an Appraisal based on the leasehold interest
only.
1.57 XX
Xxxx Date: means August 8, 2007.
|
Approved
GK Lease
|
Section
1.56
|
|
GK
Leasehold Facility
|
Section
1.56
|
|
PPC
Georgia
|
Section
1.56
|
|
Truck
Maintenance Facilities
|
Section
11.4
|
1.2 Subsection
10.21.2 is amended to read as follows:
2
10.21.2
Requirements Regarding Real Property Collateral. With respect
to all GK Collateral that constitutes an interest in real property (including
a
leasehold interest represented by an Approved GK Lease and where the
requirements of Section 1.56 hereof have been satisfied), (a) a mortgagees’
title insurance policy (Standard Texas Mortgagees Policy Form with respect
to GK
Fixed Assets located in the State of Texas, and Standard ALTA form with respect
to GK Fixed Assets located in states other than Texas) from an insurer
acceptable to the Administrative Agent insuring the lien in favor of the
Administrative Agent, on behalf of the Syndication Parties, as a first priority
lien on each such parcel or leasehold interest, as applicable, subject only
to
Permitted Encumbrances, and (i) in such amount as the Administrative Agent
shall
require, (ii) deleting the standard printed exceptions (including exceptions
for
mechanics liens and exceptions based on lack of adequate survey) and the gap
exception, (iii) containing only such exceptions to title as are reasonably
acceptable to the Administrative Agent, (iv) providing access coverage, and
(v)
containing such other endorsements as the Administrative Agent may reasonably
require (but in any event including a revolving credit endorsement); (b) a
survey, which survey, the certifications thereon, and all information contained
therein, shall be acceptable to the Administrative Agent, and shall contain
a
legal description and shall, at a minimum, show the location of all structures,
visible utilities, fences, xxxxxx, or walls on the parcel and within 5 feet
of
all boundaries thereof, any conflicting boundary evidence or visible
encroachments, and all easements, underground utilities, and tunnels for which
properly recorded evidence is available; (c) an Appraisal; and (d) (i) Phase
I
environmental reports, satisfactory in form and content to the Administrative
Agent, on all parcels of real property which are included within the GK
Collateral, and (ii) such Phase II environmental reports, or proof satisfactory
to the Administrative Agent that Borrower has taken such remedial or other
action as the Administrative Agent may reasonably require, in either case,
based
on the contents of such environmental reports.
1.3 A
new clause (d) is added to Section 11.4 so that said Section reads as
follows:
3
11.4 Sale
of Collateral. Borrower shall not (nor shall it permit any of its
Subsidiaries to) sell, convey, assign, lease or otherwise transfer or
dispose of, voluntarily, by operation of law or otherwise (collectively
“Disposition”), any of the Collateral except: (a) the
Disposition of Collateral in the ordinary course of business, and which are
either replaced or are no longer necessary or useful for the business conducted
at the facilities which are included within the Collateral; (b) without
duplication of clause (a) or clause (c), the Disposition in any calendar year,
in one or more events or transactions, of Collateral with a book value in the
aggregate of up to $10,000,000.00; (c) the Disposition of Collateral utilized
at
a facility with respect to which there has been a Shut Down and as to which
Borrower has elected to proceed under the provisions of Section 10.15(b); (d)
the lease by Borrower or PPC Georgia to PPC Transportation Company, wholly
owned
Subsidiary of Borrower, or such other wholly-owned Subsidiary of Borrower whose
primary business is the ownership and operation of over-the-road vehicles and
trailers, truck shop and vehicle facilities and other assets incident thereto
(each such Person a “Transportation Subsidiary”) of one or more
of the truck shop and vehicle maintenance facilities described on Exhibit
11.4 hereto or other such facilities identified by Borrower from time to
time and approved by Administrative Agent, which approval shall not be
unreasonably withheld (“Truck Maintenance Facilities”) and the
equipment located on and/or used in connection with such facilities and as
such
equipment is described in the lease agreement entered into with respect to
each
such Truck Maintenance Facility; and (e) the lease by PPC Georgia to Borrower
of
one or more GK Leasehold Facilities; provided that the following
conditions are met, as applicable: (v) in the case of clause (c), either (i)
(A)
the book value of such Collateral is $20,000,000.00 or less and the
Administrative Agent has agreed on behalf of the Syndication Parties, in advance
of such sale, to release its lien thereon, and (B) the aggregate book
value of all Collateral as to which the Administrative Agent has released,
or is
being asked to release, its lien in any calendar year pursuant to clause (c)
of
this Section (excluding liens released upon the written authorization of the
Required Lenders, as provided in clause (v)(ii) of this Section) shall not
exceed $30,000,000.00, or (ii) (A) the book value of such Collateral is greater
than $20,000,000.00 and/or (B) the aggregate book value of such Collateral
as to
which the Administrative Agent has released, or is being asked to release,
its
lien in any calendar year pursuant to clause (c) of this Section is in excess
of
$30,000,000.00 and, (C) in either case (v)(ii)(A) or (v)(ii)(B), the Required
Lenders have provided written authorization to the Administrative Agent, in
advance of such sale, to release its lien thereon on behalf of the Syndication
Parties; (w) in the case of either clause (b) or clause (c), (i) such
Disposition of Collateral shall not cause or give rise to a Potential Default
or
an Event of Default, and (ii) at the time of any such Disposition of Collateral
no Event of Default shall have occurred and be continuing; (x) with respect
to
clauses (a), (b), and (c), the full Appraised Value of such Collateral shall
be
removed at the closing of the Disposition from the calculation of the Available
Amount and no later than ten (10) days after closing such Disposition, Borrower
shall furnish the Administrative Agent with a revised Available Amount Report
with the entire Appraised Value of the Collateral subject to such Disposition
removed from such Available Amount Report; (y) with respect to clause (d),
such
leases are on terms and for a rental amount acceptable to the Administrative
Agent and Borrower takes such action as the Administrative Agent may require
in
order to create and/or perfect a security interest in Borrower’s rights under
such lease; and (z) with respect to clause (e), each of the requirements of
Section 1.56 hereof, including, by incorporation, the requirements of Subsection
10.21.2 hereof, are satisfied. At the time of furnishing the
Administrative Agent with a revised Available Amount Report, Borrower shall
make
the payment, if any, that would be required under Section 5.6(d) hereof if
the
aggregate outstanding principal balance owing under the Revolving Loan
(including the Converted Loans) exceeds the Available Amount as calculated
without such Collateral being included.
1.4 A
new clause (f) is added to Section 11.6 so that said Section reads as
follows:
11.6 Loans. Borrower
shall not (nor shall it permit any of its Subsidiaries to) lend or advance
money, credit, or property to any Person, except for:
4
(a) loans
between Subsidiaries or between Borrower and Subsidiaries, in each case in
the
ordinary course and pursuant to the reasonable requirements of Borrower’s
business and consistent with demonstratable past practices;
(b) trade
credit extended in the ordinary course of business;
(c) loans
and advances to employees and contract growers (other than executive officers
and directors of the Borrower or its Subsidiaries) for reasonable expenses
incurred in the ordinary course of business and made on an arms length
basis;
(d) loans
and advances to officers and employees of Borrower and its Subsidiaries made
in
connection with such officer’s or employee’s housing related expenses or loans
associated with the procurement or sale of personal residences or necessary
for
the moving of key personnel, in an aggregate amount outstanding at any time
not
to exceed $6,000,000.00;
(e) loans
and advances to contract growers in an aggregate amount at any time not to
exceed $50,000,000.00; and
(f) loans
to a Person in which Borrower has an equity interest and with which Borrower
is
doing, or intends to do, business; provided that the unpaid balance of such
loans in the aggregate, when aggregated with all Investments made pursuant
to
clause (s) of Section 11.8 hereof, including Investments in such Person, does
not at any time exceed $75,000,000.00.
1.5 Clause
(s) of Section 11.8 is amended to read as follows:
(s) Investments
not covered by clauses (a) through (r) above, in an amount which, at any time,
when aggregated with the outstanding balance of all loans made pursuant to
clause (f) of Section 11.6 hereof, do not to exceed an aggregate of
$75,000,000.00.
1.6 A
new Exhibit 1.56 is added in the form of Exhibit 1.56 hereto, and a new
Exhibit 11.4 is added in the form of Exhibit 11.4 hereto.
2. Conditions
to Effectiveness of this Fourth Amendment. The effectiveness
of this Fourth 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
Fourth Amendment
5
2.2 Syndication
Parties Execution; Voting Participant Approval. The
Administrative Agent shall have received (a) written approval of this Fourth
Amendment by at least the Required Lenders (including Voting Participants);
and
(b) a copy of this Fourth 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
Fourth 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 Fourth
Amendment); and (b) all expenses owing as of the Effective Date pursuant to
Section 15.1 of the Credit Agreement.
3. Amendment
to Security Documents.
3.1 Real
Estate Mortgage. To the extent that any real estate mortgage
or other Security Document executed by Borrower in connection with the Credit
Agreement contains a provision prohibiting Borrower from leasing any part of
the
Mortgaged Property as defined therein, or making such leasing an event of
default, such real estate mortgage or other Security Document shall be deemed
to
be amended to allow the lease by Borrower or PPC Georgia to the Transportation
Subsidiary (as defined herein) of one or more of the Truck Maintenance
Facilities (as defined herein) and the equipment located on and/or used in
connection with such facilities and as such equipment is described in the lease
agreement entered into with respect to each such facilities
4. General
Provisions.
4.1 No
Other Modifications. The Credit Agreement, as expressly
modified herein, shall continue in full force and effect and be binding upon
the
parties thereto.
4.2 Successors
and Assigns. This Fourth 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.
4.3 Definitions. Capitalized
terms used, but not defined, in this Fourth Amendment shall have the meaning
set
forth in the Credit Agreement.
6
4.4 Severability. Should
any provision of this Fourth Amendment be deemed unlawful or unenforceable,
said
provision shall be deemed several and apart from all other provisions of this
Fourth Amendment and all remaining provision of this Fourth Amendment shall
be
fully enforceable.
4.5 Governing
Law. To the extent not governed by federal law, this Fourth
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.
4.6 Headings. The
captions or headings in this Fourth Amendment are for convenience only and
in no
way define, limit or describe the scope or intent of any provision of this
Fourth Amendment.
4.7 Counterparts. This
Fourth 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
Fourth Amendment by telefax, facsimile, or e-mail transmission of an Adobe® file
format document also shall deliver an original executed counterpart of this
Fourth Amendment, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this Fourth
Amendment.
[Signatures
to follow on next page.]
7
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be
executed as of the Effective Date.
|
ADMINISTRATIVE
AGENT:
|
CoBank,
ACB
|
||||
|
By:
|
|||||
|
Name:
|
Xxx
Xxxxxxxx
|
||||
|
Title:
|
Vice
President
|
||||
|
BORROWER:
|
Pilgrim’s
Pride Corporation
|
||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||||
|
Title:
|
Exe.
VP, CFO, Sec & Treas.
|
||||
|
SYNDICATION
PARTIES:
|
CoBank,
ACB
|
||||
|
By:
|
|||||
|
Name:
|
Xxx
Xxxxxxxx
|
||||
|
Title:
|
Vice
President
|
||||
|
Agriland,
FCS
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxx
Xxxxx
|
||||
|
Title:
|
Chief
Executive Officer
|
||||
|
Deere
Credit, Inc.
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||||
|
Title:
|
Senior
Account Credit Manager
|
||||
8
|
Bank
of the West
|
|||||
|
By:
|
|||||
|
Name:
|
Xxx
Xxxxx
|
||||
|
Title:
|
Regional
Vice President
|
||||
|
Xxxx
Xxxxxxx Life Insurance Company
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||||
|
Title:
|
Managing
Director
|
||||
|
The
Variable Annuity Life Insurance Company
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. XxXxx
|
||||
|
Title:
|
Managing
Director
|
||||
|
The
United States Life Insurance Company in the City of New
York
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. XxXxx
|
||||
|
Title:
|
Managing
Director
|
||||
|
Merit
Life Insurance Co.
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. XxXxx
|
||||
|
Title:
|
Managing
Director
|
||||
9
|
American
General Assurance Company
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. XxXxx
|
||||
|
Title:
|
Managing
Director
|
||||
|
AIG
International Group, Inc.
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. XxXxx
|
||||
|
Title:
|
Managing
Director
|
||||
|
AIG
Annuity Insurance Company
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxxx
X. XxXxx
|
||||
|
Title:
|
Managing
Director
|
||||
|
Transamerica
Life Insurance Company
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxx
X. Xxxxxxxxx
|
||||
|
Title:
|
Vice
President
|
||||
|
The
CIT Group/Business Credit, Inc.
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxx
Xxxx
|
||||
|
Title:
|
Vice
President
|
||||
|
Metropolitan
Life Insurance Company
|
|||||
|
By:
|
|||||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||||
|
Title:
|
Director
|
||||
10
|
Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank-Nederland” New York
Branch
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
|
Farm
Credit Services of America, PCA
|
|||||
|
By:
|
|||||
|
Name:
|
|||||
|
Title:
|
|||||
11
CREDIT
AGREEMENT
EXHIBIT
1.56
(GK
Leasehold Facilities)
12
CREDIT
AGREEMENT
EXHIBIT
11.4
(Truck
Maintenance Facilities)
13
