Pilgrim’s Pride Corporation First Amendment to Limited Duration Waiver Agreement
Exhibit
10.49
Pilgrim’s
Pride Corporation
First
Amendment to Limited Duration Waiver Agreement
This
First Amendment to Limited Duration Waiver Agreement (herein, the “Amendment”) is made as
November 25, 2008, by and among Pilgrim’s Pride Corporation, a Delaware
corporation (the “Company”), To-Ricos, Ltd., a
Bermuda company (“To-Ricos”), To-Ricos
Distribution, Ltd., a Bermuda company (“To-Ricos Distribution”; and
together with To-Ricos, the “Foreign Borrowers”; the
Company and the Foreign Borrowers collectively, the “Borrowers” and individually,
a “Borrower”), the Banks party hereto,
and Bank of Montreal, a Canadian chartered bank acting through its Chicago
branch, as administrative agent for the Banks (the “Agent”).
Recitals:
A.The Borrowers, the Banks and the Agent are parties to that certain Limited
Duration Waiver Agreement dated as of October 26, 2008 (the “Waiver Agreement”).
B.Pursuant to the Waiver Agreement the Required Banks agree, among other things,
to waive the Subject Default during the period ending November 26,
2008.
C.The Borrowers has requested that the Required Banks amend the Waiver Agreement
to extend the Scheduled Waiver Expiration Date and to amend certain other
provisions thereof, and the Required Banks are willing to do so subject to the
terms and conditions set forth herein.
Accordingly,
subject to the satisfaction of the conditions precedent set forth below, the
Borrowers and the Required Banks agree as follows:
Now,
Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1.Incorporation of Recitals; Defined
Terms. The Borrowers acknowledge that the Recitals set forth
above are true and correct in all material respects. The defined
terms in the Recitals set forth above are hereby incorporated into this
Amendment by reference. All other capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Waiver Agreement.
2.Amounts Owing. The
Borrowers acknowledge and agree that the principal amount of Loans,
Reimbursement Obligations and L/Cs as of November 25, 2008, is $310,795,372
($0 in Bid Loans, $199,526,529 in Revolving Credit Loans, $0 in Swing Loans, $0
in Bond Reimbursement Obligations, $25,239,727 in the Bond L/C, $0 in
Reimbursement Obligations, and $86,029,116 in issued and currently undrawn
L/Cs), and such amount (together with interest and fees thereon) is justly and
truly owing by the Borrowers without defense, offset or
counterclaim.
3.Amendment of
Section 3 of the Waiver Agreement. Section 3 of the
Waiver Agreement shall be amended to read as follows:
0.Xxxxxxx Duration
Waiver. Subject to the terms and conditions contained in this
Agreement, the Required Banks waive the Subject Default but only for the period
(the “Waiver Period”)
beginning October 28, 2008, and ending at 12:00 Noon, Chicago time, on
December 1, 2008 (the “Scheduled Waiver Expiration
Date”). The foregoing waiver shall become null and void on the
Scheduled Waiver Expiration Date and from and after the Scheduled Waiver
Expiration Date the Agent and the Banks shall have all rights and remedies
available to them as a result of the occurrence of the Subject Default as though
this waiver had never been granted.
4.Amendment of the Waiver
Agreement. The definition of "Subject Default" in the Waiver
Agreement shall be amended to include the Indenture Payment Event (as defined
below).
5.Acknowledgement of
Liens. The Company hereby acknowledges and agrees that all
indebtedness, obligations and liabilities of the Borrowers, or any of them,
owing to the Agent and the Banks arising out of or in any manner relating to the
Loan Documents, as well as all Hedging Liability and Funds Transfer and Deposit
Account Liability, shall continue to be secured by liens and security interests
on all of the Collateral pursuant to the Loan Documents heretofore or hereafter
executed and delivered by the Company, and nothing herein
contained shall in any manner affect or impair the priority of the liens and
security interests created and provided for thereby as to the indebtedness,
obligations, and liabilities which would be secured thereby prior to giving
effect to this Amendment.
6.Representations and
Warranties. The Borrowers represent and warrant to the Agent
and the Banks that:
(a)each
Borrower has full right and authority to enter into this Amendment and to
perform all of its obligations under the Waiver Agreement as amended
hereby;
(b)this
Amendment and the performance or observance by the Borrowers of any of the
matters and things herein provided for do not (i) contravene or constitute
a default under any provision of law or any judgment, injunction, order or
decree binding upon any Borrower or any provision of the organizational
documents (e.g.,
certificate or articles of incorporation and by-laws) of any Borrower, or
(ii) contravene or constitute a default under any covenant, indenture or
agreement of or affecting any Borrower or any of its Property;
(c)the obligations of each Borrower and the
Guarantor under the Waiver Agreement as amended hereby are legal, valid, enforceable (except
as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally) and subsisting and not subject to set-off, defense
(other than payment) or counterclaim;
(d)no
Potential Default or Event of Default has occurred and is continuing, other than
the Subject Default;
(e)the Company’s indebtedness, obligations
and liabilities to the Agent and the Banks under the Loan Documents constitute
“Designated Senior Indebtedness” as defined in the First Supplemental Indenture
dated as of January 24, 2007, between the Company and Xxxxx Fargo Bank, National
Association, as Trustee, relating to the Company’s 8-3/8% Senior Subordinated Notes due 2017;
and
(f)the
Company has decided that during the Waiver Period as extended by this Amendment
it will not pay any interest on its 8-3/8% Senior Subordinated Notes due 2017
or its 7-5/8% Senior Notes due May-1, 2015 (the "Indenture Payment
Event").
7.Release. For value
received, including without limitation, the agreements of the Banks in this
Amendment, each Borrower hereby releases the Agent and each Bank, its current
and former shareholders, directors, officers, agents, employees, attorneys,
consultants, and professional advisors (collectively, the “Released Parties”) of and
from any and all demands, actions, causes of action, suits, controversies, acts
and omissions, liabilities, and other claims of every kind or nature whatsoever,
both in law and in equity, known or unknown, which such Borrower has or ever had
against the Released Parties from the beginning of the world to this date
arising in any way out of the existing financing arrangements between the
Borrowers and the Banks, and each Borrower further acknowledges that, as of the
date hereof, it does not have any counterclaim, set-off, or defense against the
Released Parties, each of which each Borrower hereby expressly
waives.
8.Waiver Agreement Remains
Effective. Except as expressly set forth in this Amendment,
the Waiver Agreement and all of the obligations of the Borrowers thereunder, the
rights and benefits of the Agent and Banks thereunder, and the liens and
security interests created thereby remain in full force and
effect. Without limiting the foregoing, each Borrower agrees to
comply with all of the terms, conditions, and provisions of the Waiver Agreement
except to the extent such compliance is irreconcilably inconsistent with the
express provisions of this Amendment. This Amendment intended by the
Banks as a final expression of their agreement and is intended as a complete and
exclusive statement of the terms and conditions of this agreement.
9.Fees and
Expenses. The Company shall pay on demand all fees and
expenses (including attorneys’ fees) incurred by the Agent and its counsel,
special counsel to the Banks and counsel to each Bank in connection with this
Amendment and the other instruments and documents being executed and delivered
in connection herewith, and all fees and expenses of counsel to the Agent and
special counsel to the Banks with respect to the credit facilities subject to
the Credit Agreement.
10.Conditions
Precedent. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
(a)the
Borrowers, the Agent, and the Required Banks shall have executed and delivered
this Amendment, and the Guarantor shall have executed and delivered its
reaffirmation, acknowledgment, and consent in the space provided for that
purpose below, on or before November __, 2008;
(b)the Agent
shall have received a copy of a fully executed amendment to the CoBank Limited
Duration Waiver extending the waiver under the CoBank Limited Duration Waiver of
any default under the CoBank Credit Agreement that is analogous to the
Subject Default for a period ending no earlier that the Scheduled Waiver
Expiration Date as extended by this Amendment, which amendment shall not contain
or add to the CoBank Limited Duration Waiver any other terms or provisions that
are not contained in the Waiver Agreement as amended by this Amendment or that
are inconsistent with the terms of the Waiver Agreement as amended by this
Amendment or that are more favorable to the lenders under the CoBank Credit
Agreement than the terms of the Waiver Agreement as amended by this Amendment
are favorable to the Banks, and which otherwise shall be in form and substance
reasonably satisfactory to the Agent, and such amendment to the CoBank Limited
Duration Waiver shall be effective;
(c)the Agent
shall have received a copy of a fully executed amendment to the Fairway Limited Duration Waiver
extending the waiver thereunder of any default under the Receivables Purchase
Agreement that is analogous to the Subject Default for a period ending no
earlier that the Scheduled Waiver Expiration Date as extended by this Amendment,
agreeing to extend the existing amendments to the Amended and Restated
Receivables Purchase Agreement during the Waiver Period and agreeing to continue
to provide credit thereunder during the Waiver Period as extended by this
Amendment, which limited duration waiver shall not contain any other terms or
provisions that are not contained in the Waiver Agreement as amended by this
Amendment or that are inconsistent with the terms of the Waiver Agreement as
amended by this Amendment or that are more favorable to the lenders under the
Receivables Purchase Agreement than the terms of the Waiver Agreement
as amended by this Amendment are favorable to the Banks, and which otherwise
shall be in form and substance reasonably satisfactory to the Agent, and such
amendment to the Fairway Limited Duration Waiver shall be effective;
and
(d)the
payment of the current legal fees and expenses referred to in Section 8
above.
11.Miscellaneous. By
its acceptance hereof, each Borrower hereby represents that it has the necessary
power and authority to execute, deliver, and perform the undertakings contained
herein, and that this Amendment constitutes the valid and binding obligation of
each Borrower enforceable against it in accordance with its
terms. Any provision of this Amendment held invalid, illegal, or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality, or unenforceability without
affecting the validity, legality, and enforceability of the remaining provision
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other
jurisdiction. The parties hereto hereby acknowledge and agree that
this Amendment shall constitute a Loan Document for all purposes of the Credit
Agreement and the other Loan Documents. Unless otherwise expressly
stated herein, the provisions of the Waiver as amended by this Amendment shall
survive the termination of the Waiver Period as extended by this
Amendment. This Amendment may be executed in counterparts and by
different parties on separate counterpart signature pages, each of which
constitutes an original and all of which taken together constitute one and the
same instrument. Delivery of executed counterparts of this Amendment
by telecopy shall be effective as an original. This Amendment shall
be governed by Illinois law and shall be governed and interpreted on the same
basis as the Waiver Agreement.
[Signature
Pages to Follow]
2538687
01 02.doc
1078278/RLC
DALDMS/652628.1
This
First Amendment to Limited Duration Waiver Agreement is entered into as of the
date and year first above written.
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“Borrowers”
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Pilgrim’s
Pride Corporation
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By
/s/ Xxxxxxx X.
Xxxxxxx
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Its
Chief Financial Officer
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To-Ricos,
Ltd.
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By
/s/ Xxxxxxx X.
Xxxxxxx
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Its
Executive Vice President, Treasurer and Assistant
Secretary
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To-Ricos
Distribution, Ltd.
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By
/s/ Xxxxxxx X.
Xxxxxxx
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Its
Executive Vice President, Treasurer and Assistant
Secretary
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Accepted
and agreed to.
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Bank
of Montreal, as Agent
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By
/s/ Xxxxx X.
Xxxxxxxxx
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Its
Vice President
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BMO
Capital Markets Financing, Inc., individually and as Swing
Bank
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By
/s/ Xxxxx X.
Xxxxxxxxx
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Its
Vice President
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SunTrust
Bank
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By/s/ Xxxxx X.
Xxxxxx
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Its
Senior Vice President
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U.S.
Bank National Association
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By/s/ Xxxx X.
Xxxxx
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Its
Vice President
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Xxxxx
Fargo Bank National Association
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By/s/ Xxxxx
Xxxxxxx
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Its
Vice President
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ING
Capital LLC
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By
/s/ Xxxx X.
Xxxxxx
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Its
Vice President
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Credit
Suisse, Cayman Islands Branch
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By
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Its
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By
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Its
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Bank
of America N.A.
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By
/s/ Xxxxxxx
Honey
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Its
Senior Vice President
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CALYON
New York Branch
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By/s/
illegible
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Its
Managing Director
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By/s/
illegible
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Its
Managing Director
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Natixis
New York Branch
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By
/s/ Xxxxxxx
Lauras
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Its
Managing Director
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By
/s/ Xxxxxxx X.
Xxxxxx
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Its
Managing Director
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XX
Xxxxxx Xxxxx Bank, N.A.
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By/s/ Xxxxxxxxx
Xxxxxx
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Its
Executive Director
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Deutsche
Bank Trust Company Americas
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By
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Its
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By
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Its
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First
National Bank of Omaha
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By
/s/ Xxxx
Xxxxxx
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Its
Vice President
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Reaffirmation,
Acknowledgement, and Consent of Guarantor
The
undersigned, Pilgrim Interests, Ltd., a Texas limited partnership (the “Guarantor”), has executed
and delivered a Second Amended and Restated Guaranty Agreement dated as of
February 8, 2007 (the “Guaranty”) to the
Banks. As an additional inducement to and in consideration of the
Banks’ acceptance of the First Amendment to Limited Duration Waiver Agreement
dated as of October 26, 2008 (the “Amendment”), the Guarantor
hereby agrees with the Banks as follows:
1.The
Guarantor consents to the execution of the Amendment by the Borrowers and
acknowledges that this consent is not required under the terms of the Guaranty
and that the execution hereof by the Guarantor shall not be construed to require
the Banks to obtain the Guarantor’s consent to any future amendment,
modification or waiver of any term of the Credit Agreement except as otherwise
provided in said Guaranty. The Guarantor hereby agrees that the
Guaranty shall apply to all indebtedness, obligations and liabilities of the
Borrowers to the Banks, the Agent and the L/C Issuers under the Credit
Agreement. The Guarantor further agrees that the Guaranty shall be and remain in
full force and effect.
2.All
terms used herein shall have the same meaning as in the Amendment.
Dated as
of November 25, 2008.
DALDMS/652628.1
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Pilgrim
Interests, Ltd.
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By
/s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx
X. Xxxxxxx, as trustee of the Xxxxxx X. Xxxxxxx 1998 Revocable Trust
created by agreement dated September 9, 1998, as
amended
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Its
General Partner
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By
/s/ Xxxxxx Xxx
Xxxxxxx
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Xxxxxx
Xxx Xxxxxxx
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Its
General Partner
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Who
Represent and Warrant that they have Authority to Bind the
Partnership
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Pilgrim
Interests, Ltd.
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By
/s/ Xxxxxx X.
Xxxxxxx
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Xxxxxx
X. Xxxxxxx, as trustee of the Xxxxxx X. Xxxxxxx 1998 Revocable Trust
created by agreement dated September 9, 1998, as
amended
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Its
General Partner
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By
/s/ Xxxxxx Xxx
Xxxxxxx
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Xxxxxx
Xxx Xxxxxxx
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Its
General Partner
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Who
Represent and Warrant that they have Authority to Bind the
Partnership
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Signature
Page
Pilgrim’s
Pride Corporation
Reaffirmation,
Acknowledgement, and Consent of Guarantor attached to
First
Amendment to Limited Duration Waiver Agreement
DALDMS/652628.1
