UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
report (Date of earliest event reported): March 10, 2008
PILGRIM'S
PRIDE CORPORATION
(Exact
Name of Registrant as Specified in its Charter)
Delaware
60; 1-9273 75-1285071
(State
or Other
Jurisdiction
(Commission (IRS
Employer
of
Incorporation) File
Number) Identification
No.)
4845 US Hwy. 271 N.
Pittsburg,
Texas
75686-0093
(Address of Principal Executive
Offices) (ZIP
Code)
Registrant's
telephone number, including area code: (903) 434-1000
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
q Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
q Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
q
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
q
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
1.01. Entry
into a Material Definitive Agreement.
Amendment
to Credit Agreement with CoBank ACB
On March
10, 2008, Pilgrim's Pride Corporation (the "Company") entered into a Seventh
Amendment (the "Seventh Amendment") to Credit Agreement by and among the
Company, as borrower, CoBank, ACB, as administrative agent (the "Agent"), and
the other syndication parties signatory thereto, amending the 2006 Amended and
Restated Credit Agreement dated as of September 21, 2006 (the "CoBank Credit
Agreement"). The Seventh Amendment amends the definition of EBITDA. Prior to the
Seventh Amendment, EBITDA was generally defined to mean consolidated net income,
plus interest expense, taxes, depreciation and amortization expenses, and
extraordinary losses, minus extraordinary gains. The Seventh Amendment modifies
the definition to also add certain restructuring charges to net income in the
determination of EBITDA. Restructuring charges generally include asset
impairment charges, lease termination costs, severance costs, facility shutdown
costs and other related restructuring charges associated with a permanent
reduction in capacity, closure of plants, facilities cut-backs, plant closures
or significant reconfigurations of facilities. The Seventh Amendment also, among
other things, amended the CoBank Credit Agreement to allow the Agent to release
its liens with respect to any facility in connection with a Shut Down (as
defined in the CoBank Credit Agreement) that is included in the Available Amount
Report (as defined in the CoBank Credit Agreement) without the consent of the
syndication parties.
The above
discussion is a summary of certain terms and conditions of the Seventh Amendment
and is qualified in its entirety by the terms and conditions of the Seventh
Amendment and the CoBank Credit Agreement. For the complete terms and conditions
of the Seventh Amendment summarized in this report, please refer to the Seventh
Amendment attached hereto as Exhibit 10.1 and incorporated by reference
herein.
Amendment
to Credit Agreement with Bank of Montreal
On March
11, 2008, the Company entered into a First Amendment (the "First Amendment") to
Fourth Amended and Restated Secured Credit Agreement by and among the Company,
To-Ricos, Ltd., To-Ricos Distribution, Ltd., Bank of Montreal, as administrative
agent (the "BMO Agent"), and the other lenders signatory thereto (the "BMO
Credit Agreement"). The First Amendment amends the definition of
EBITDA. Prior to the First Amendment, EBITDA was generally defined to mean
consolidated earnings, plus interest expense, taxes, depreciation and
amortization expenses, and extraordinary losses, minus extraordinary gains. The
First Amendment modifies the definition to also add certain restructuring
charges to earnings in the determination of EBITDA with the consent of the BMO
Agent. Restructuring charges generally include asset impairment charges, lease
termination costs, severance costs, facility shutdown costs and other related
restructuring charges related to or associated with a permanent reduction in
capacity, closure of plants or facilities, cut-backs, plant closures or
significant reconfigurations of facilities.
The above
discussion is a summary of certain terms and conditions of the First Amendment
and is qualified in its entirety by the terms and conditions of the First
Amendment and the BMO Credit Agreement. For the complete terms and conditions of
the First Amendment summarized in this report, please refer to the First
Amendment attached hereto as Exhibit 10.2 and incorporated by reference
herein.
Amendment
to Receivables Purchase Agreement with BMO Capital Markets Corp.
On March
11, 2008, the Company entered into Amendment No. 6 (the "Sixth Amendment") to
Receivables Purchase Agreement by and among the Company, Pilgrim's Pride Funding
Corporation, Pilgrim's Pride Corporation, BMO Capital Markets Corp., as agent
("BMO"), and Fairway Finance Company, LLC (the "Receivables Purchase
Agreement"). The Sixth Amendment, among other things, amends
the definitions of EBITDA. Prior to the Sixth Amendment, EBITDA was generally
defined to mean consolidated earnings, plus interest expense, taxes,
depreciation and amortization expenses, and extraordinary losses, minus
extraordinary gains. The Sixth Amendment modifies the definition to also add
certain restructuring charges to earnings in the determination of EBITDA with
the consent of the BMO. Restructuring charges generally include asset impairment
charges, lease termination costs, severance costs, facility shutdown costs and
other related restructuring charges related to or associated with a permanent
reduction in capacity, closure of plants or facilities, cut-backs, plant
closures or significant reconfigurations of facilities.
The above
discussion is a summary of certain terms and conditions of the Sixth Amendment
and is qualified in its entirety by the terms and conditions of the Sixth
Amendment and the Receivables Purchase Agreement. For the complete terms and
conditions of the Sixth Amendment summarized in this report, please refer to the
Sixth Amendment attached hereto as Exhibit 10.3 and incorporated by reference
herein.
Item
9.01. Financial
Statements and Exhibits.
(d) Exhibits.
Exhibit
Number Description
|
|
10.1
|
Seventh
Amendment to Credit Agreement, dated as of March 10, 2008, by and among
the Company as borrower, CoBank, ACB, as administrative agent, and the
other syndication parties signatory
thereto.
|
|
|
10.2
|
First
Amendment to the Fourth Amended and Restated Secured Credit Agreement,
dated as of March 11, 2008, by and among the Company, To-Ricos, Ltd.,
To-Ricos Distribution, Ltd., Bank of Montreal, as administrative agent,
and the other lenders signatory
thereto.
|
|
|
10.3
|
Amendment
No. 6 to Receivables Purchase Agreement, dated as of March 11, 2008, by
and among the Company, Pilgrim's Pride Funding Corporation, Fairway
Finance Company, LLC, and BMO Capital Markets
Corp.
|
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934 the registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
PILGRIM'S
PRIDE CORPORATION
|
Date: March
14, 2008
|
By: /s/ Richard A.
Cogdill
|
Richard
A. Cogdill
|
|
Chief
Financial Officer, Secretary and
Treasurer
|
EXHIBIT INDEX
Exhibit
Number Description
|
|
10.1
|
Seventh
Amendment to Credit Agreement, dated as of March 10, 2008, by and among
the Company as borrower, CoBank, ACB, as administrative agent, and the
other syndication parties signatory
thereto.
|
|
|
10.2
|
First
Amendment to the Fourth Amended and Restated Secured Credit Agreement,
dated as of March 11, 2008, by and among the Company, To-Ricos, Ltd.,
To-Ricos Distribution, Ltd., Bank of Montreal, as administrative agent,
and the other lenders signatory
thereto.
|
|
|
10.3
|
Amendment
No. 6 to Receivables Purchase Agreement, dated as of March 11, 2008, by
and among the Company, Pilgrim's Pride Funding Corporation, Fairway
Finance Company, LLC, and BMO Capital Markets
Corp.
|
EXHIBIT
10.1
SEVENTH
AMENDMENT TO CREDIT AGREEMENT
Parties:
“CoBank”: CoBank,
ACB
5500
South Quebec Street
Greenwood
Village, Colorado 80111
“Borrower”: Pilgrim’s
Pride Corporation
4845 US
Highway 271 N.
Pittsburg,
Texas 75686
“Syndication
Parties”: Whose
signatures appear below
Execution
Date: March 10,
2008
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, that certain Third Amendment to Credit Agreement
dated as of February 7, 2007, that certain Fourth Amendment to Credit Agreement
dated as of July 3, 2007, that certain Fifth Amendment to Credit Agreement dated
as of August 7, 2007, and that certain Sixth Amendment to Credit Agreement dated
as of November 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 advised the Agent that it contemplates curtailing or ceasing production at
one or more facilities (each a “Closed Facility”) and removing
one or more of such Closed Facilities from the Collateral and the calculation of
the Available Amount and possibly adding a facility to the Collateral and the
calculation of the Available Amount.
C. Borrower
has requested that the Agent and the Syndication Parties modify the Credit
Agreement to (i) allow the Agent to effect the release of the Agent’s lien
against any such Closed Facility which is included in the Collateral and which
Borrower wants removed from the Collateral without the necessity of obtaining
the specific consent thereto by the Required Lenders, and (ii) provide relief to
Borrower from the accounting effects of curtailing or ceasing production at the
Closed Facilities, which the Agent and the Syndication Parties are willing to do
under the terms and conditions as set forth in this Seventh Amendment to Credit
Agreement (“Seventh
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:
Amendments to Credit
Agreement. The Credit Agreement is amended as of the Effective
Date as follows:
Section
1.40 is amended to read as follows:
1.40 EBITDA: for
any period, for Borrower and its Consolidated Subsidiaries, net income for such
period, plus the sum of the amounts of (a) Interest Expense, plus
(b) federal and state income taxes, plus (c) depreciation and
amortization expenses, plus (d) Restructuring Charges and other
extraordinary losses, minus (e) extraordinary gains, in each case as
charged against (or added to, as the case may be) revenues to arrive at net
income for such period, all as determined by GAAP.
The
following new Section is added to Article 1:
1.144 Restructuring
Charges: means the following charges related to a Shut Down or
significant reconfiguration of a facility: asset impairment charges,
lease termination costs, severance costs, facility shutdown costs and other
related restructuring charges associated with a permanent reduction in capacity
or closure of plants or facilities cut-backs or plant closures.
Clauses
(b) and (c) of Section 10.18 are amended to read as follows:
(b) Upon
such time as Borrower, in addition to satisfying the requirements of clause (a)
of this Section 10.18, shall, with respect to any such parcel of Additional
Property, have provided to the Administrative Agent (i) a mortgagees’ title
insurance policy (Standard Texas Mortgagees Policy Form with respect to
Additional Property located in the State of Texas, and Standard ALTA form with
respect to Additional Property 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 of Additional Property, subject only to Permitted
Encumbrances, and (A) in such amount as the Administrative Agent shall require,
(B) deleting the standard printed exceptions (including exceptions for mechanics
liens and exceptions based on lack of adequate survey) and the gap exception,
(C) containing only such exceptions to title as are reasonably acceptable to the
Administrative Agent, (D) providing access coverage, and (E) containing such
other endorsements as the Administrative Agent may reasonably require (but in
any event including a revolving credit endorsement), (ii) 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, except as specifically provided otherwise on Exhibit 10.18, shall,
at a minimum, show the location of all structures, visible utilities, fences,
hedges, 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; (iii) an Appraisal, and (iv) (A) a Phase I environmental report,
satisfactory in form and content to the Administrative Agent, and (B) 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, then such Additional Property shall be a part of the Collateral and
shall be included in the Available Amount.
(c) Borrower
may include in the Available Amount any leasehold interest in connection with
any Additional Property where Borrower is a lessee under a recorded lease (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 (v) below, of no less than $2,000,000.00, or (3) which is
described as follows: (A) that certain Lease by and between the City of
Natchitoches and J-M Poultry Packing Company, Ltd., dated June 24, 1977,
recorded June 28, 1977 in MOB 360, page 148 of the Records of Natchitoches
Parish, Louisiana, and (B) that certain Lease by and between the City of
Natchitoches and J-M Poultry Packing Company, Ltd., dated June 24, 1977 and
recorded June 29, 1977 in MOB 360, page 134 of the Records of Natchitoches
Parish, Louisiana; provided that, in each case described in clauses (1), (2),
and (3), Borrower provides to the Administrative Agent, (i) a leasehold mortgage
or deed of trust substantially in form and substance satisfactory to the
Administrative Agent, (ii) a Title Policy and a survey, satisfying the
requirements set forth in clause (b) of this Section 10.18 (modified as
necessary to reflect a leasehold, rather than fee, interest), (iii) (A) a Phase
I environmental report, satisfactory in form and content to the Administrative
Agent, and (B) 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, (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;
and (v) an Appraisal.
Subsection
14.5.6 is amended 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, 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; and (e) 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 to 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 (e) hereof; or
Conditions to Effectiveness of this
Seventh Amendment. The effectiveness of this Seventh 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”):
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:
This
Seventh Amendment
Syndication Parties Execution; Voting
Participant Approval. The Administrative Agent shall have
received (a) written approval of this Seventh Amendment by at least the Required
Lenders (including Voting Participants); and (b) a copy of this Seventh
Amendment executed by the Syndication Parties as required.
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.
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 Seventh
Amendment.
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 Seventh Amendment); and (b)
all expenses owing as of the Effective Date pursuant to Section 15.1 of the
Credit Agreement.
General
Provisions.
No Other
Modifications. The Credit Agreement, as expressly modified
herein, shall continue in full force and effect and be binding upon the parties
thereto.
Successors and
Assigns. This Seventh 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.
Definitions. Capitalized
terms used, but not defined, in this Seventh Amendment shall have the meaning
set forth in the Credit Agreement.
Severability. Should
any provision of this Seventh Amendment be deemed unlawful or unenforceable,
said provision shall be deemed several and apart from all other provisions of
this Seventh Amendment and all remaining provision of this Seventh Amendment
shall be fully enforceable.
Governing Law. To
the extent not governed by federal law, this Seventh 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.
Headings. The
captions or headings in this Seventh Amendment are for convenience only and in
no way define, limit or describe the scope or intent of any provision of this
Seventh Amendment.
Counterparts. This
Seventh 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
Seventh Amendment by telefax, facsimile, or e-mail transmission of an Adobe®
file format document also shall deliver an original executed counterpart of this
Seventh Amendment, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Seventh Amendment.
[Signatures to follow on next
page.]
IN
WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to be
executed as of the Effective Date.
ADMINISTRATIVE
AGENT: CoBank,
ACB
By: /s/ James
Matzat
Name: James
Matzat
Title: Vice
President
BORROWER: Pilgrim’s
Pride Corporation
By: /s/ Richard A.
Cogdill
Name: Richard
A. Cogdill
Title: Exe.
VP, CFO, Sec & Treas.
SYNDICATION
PARTIES: CoBank,
ACB
By: /s/ James
Matzat
Name:
James Matzat
Title: Vice
President
Agriland, FCS
By: /s/ Dwayne
Young
Name: Dwayne
Young
Title: Chief
Credit Officer
Deere Credit, Inc.
By: /s/ Michael P.
Kuehn
Name: Michael
P. Kuehn
Title: Manager,
AFS Johnson Credit Operations
Bank
of the West
By:
Name: Larry
Reding
Title: Vice
President
John
Hancock Life Insurance Company
By: /s/ Bradley A.
Pierce
Name:
Bradley A. Pierce
Title: Director
The
Variable Annuity Life Insurance Company
The
United States Life Insurance Company in the City of New York
Merit
Life Insurance Co.
American
General Assurance Company
AIG
International Group, Inc.
AIG
Annuity Insurance Company
By: /s/ William H.
Hasson
Name: William
H. Hasson
Title: Managing
Director
Transamerica
Life Insurance Company
By: /s/ Stephen
Noonan
Name: Stephen
Noonan
Title: Vice
President
The
CIT Group/Business Credit, Inc.
By:
Name: Al
Schuler
Title: Vice
President
Metropolitan
Life Insurance Company
By: /s/ Steven D.
Craig
Name: Steven
D. Craig
Title: Director
Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank-Nederland” New York
Branch
By: /s/ Richard J.
Beard
Name: Richard
J. Beard
Title: Executive
Director
By: /s/ Rebecca
Morrow
Name: Rebecca
Morrow
Title: Executive
Director
Farm
Credit Services of America, PCA
By: /s/ Bruce P.
Rouse
Name: Bruce
P. Rouse
Title: Vice
President
The
Prudential Insurance Company of America
By: /s/ Timothy M.
Laczkowski
Name: Timothy
M. Laczkowski
Title: Vice
President
Exhibit
10.2
Pilgrim’s
Pride Corporation
First
Amendment to Fourth Amended and Restated Secured Credit Agreement
This
First Amendment to Fourth Amended and Restated Secured Credit Agreement (herein,
the “Amendment”) is
entered into as of March 11, 2008, 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”).
Preliminary
Statements
A.The
Borrowers, the Banks and the Agent are parties to that certain Fourth Amended
and Restated Secured Credit Agreement dated as of February 8, 2007 (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
Borrowers and the Banks have agreed to amend the definition of the term “EBITDA” contained in
Section 4.1 of 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:
|
|
1.Amendments.
|
Upon
satisfaction of all of the applicable conditions precedent set forth in
Section 2 hereof, the Credit Agreement shall be amended as
follows:
1.1.The
definition of the term “EBITDA” Section 4.1 of
the Credit Agreement shall be amended to read as follows:
“EBITDA” shall mean, with
reference to any period, the earnings of the Company and its Subsidiaries on a
consolidated basis for such period plus (i) the sum of all
amounts deducted arriving at such earnings amount in respect of (A) Interest
Expense for such period, (B) income tax obligations of the Company and its
Subsidiaries for such period, (C) depreciation and amortization charges of the
Company and its Subsidiaries for such period, (D) extraordinary losses of the
Company and its Subsidiaries for such period, and (E) with the Agent’s consent,
Restructuring Charges of the Company and its Subsidiaries for such period, minus (ii) extraordinary gains of
the Company and its Subsidiaries for such period, all as determined on the basis
of generally accepted accounting principles consistently applied.
1.2.Section 4.1
of the Credit Agreement shall be amended by adding the following definition
thereto in the appropriate alphabetical order:
“Restructuring Charges” shall
mean asset impairment charges, lease termination costs, severance costs,
facility shutdown costs and other related restructuring charges related to or
associated with a permanent reduction in capacity, closure of plants or
facilities, cut-backs or plant closures or a significant reconfiguration of a
facility.
|
|
2.Conditions
Precedent.
|
The
effectiveness of this Amendment is subject to the satisfaction of all of the
following conditions precedent:
2.1.The
Borrowers and the Required Banks shall have executed this Amendment (such
execution may be in several counterparts and the several parties hereto may
execute on separate counterparts).
2.2.Each
of the representations and warranties set forth in Section 5 of the Credit
Agreement shall be true and correct.
2.3.The
Borrowers shall be in full compliance with all of the terms and conditions of
the Credit Agreement and no Event of Default
or Potential Default shall have occurred and
be continuing thereunder or shall result after giving effect to this
Amendment.
|
|
3.Representations
And Warranties.
|
3.1.The
Company, by its execution of this Amendment, hereby represents and warrants the
following:
(a)each
of the representations and warranties set forth in Section 5 of the Credit
Agreement is true and correct as of the date hereof, except that the
representations and warranties made under Section 5.3 shall be deemed to
refer to the most recent annual report furnished to the Banks by the Company;
and
(b)the
Borrowers are in full compliance with all of the terms and conditions of the
Credit Agreement and no Event of Default or Potential Default has occurred and is
continuing thereunder.
|
|
4.Miscellaneous.
|
4.1.The
Company has heretofore executed and delivered to the Agent that certain Security
Agreement Re: Accounts Receivable, Farm Products and Inventory dated
as of May 27, 1993, as amended (the “Security Agreement”) and the
Company hereby agrees that the Security Agreement shall secure all of the
Company’s indebtedness, obligations and liabilities to the Agent and the Banks
under the Credit Agreement as amended by this Amendment, that notwithstanding
the execution and delivery of this Amendment, the Security Agreement shall be
and remain in full force and effect and that any rights and remedies of the
Agent thereunder, obligations of the Company thereunder and any liens or
security interests created or provided for thereunder shall be and remain in
full force and effect and shall not be affected, impaired or discharged
thereby. Nothing herein contained shall in any manner affect or
impair the priority of the liens and security interests created and provided for
by the Security Agreement as to the indebtedness which would be secured thereby
prior to giving effect to this Amendment.
4.2.Except
as specifically amended herein, the Credit Agreement and the Notes shall
continue in full force and effect in accordance with their original
terms. Reference to this specific Amendment need not be made in any
note, document, letter, certificate, the Credit Agreement itself, the Notes, or
any communication issued or made pursuant to or with respect to the Credit
Agreement, any reference to the Credit Agreement being sufficient to refer to
the Credit Agreement as amended hereby.
4.3.The
Company agrees to pay all reasonable out-of-pocket costs and expenses incurred
by the Agent in connection with the preparation, execution and delivery of this
Amendment and the documents and transactions contemplated hereby, including the
reasonable fees and expenses of Chapman and Cutler LLP.
4.4.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.
4.5.(a) This
Amendment and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Illinois,
except to the extent provided in Section 4.5(b) hereof
and to the extent that the Federal laws of the United States of America may
otherwise apply.
(b)Notwithstanding
anything in Section 4.5(a) hereof to the contrary, nothing in this
Amendment, the Credit Agreement, the Notes, or the Other Loan Documents shall be
deemed to constitute a waiver of any rights which the Company, the Agent or any
of the Banks may have under the National Bank Act or other applicable Federal
law.
[Signature
pages to follow]
DALDMS-635987-v3-Form_8-K_for_7th_Amendment_to_CoBank_Credit_Agreement.DOC
1078278/RLC
This
First Amendment to Fourth Amended and Restated Secured Credit Agreement is
entered into as of the date and year first above written.
|
|
“Borrowers”
|
|
|
Pilgrim’s
Pride Corporation
|
|
|
By
/s/ Richard A.
Cogdill
|
|
|
Its
Chief Financial Officer
|
|
|
To-Ricos,
Ltd.
|
|
|
By
/s/ Richard A.
Cogdill
|
|
|
Its
Executive Vice President, Treasurer and Assistant
Secretary
|
|
|
To-Ricos
Distribution, Ltd.
|
|
|
By
/s/ Richard A.
Cogdill
|
|
|
Its
Executive Vice President, Treasurer and Assistant
Secretary
|
Accepted
and Agreed to as of the day and year last above written.
|
|
Bank
of Montreal, as Agent
|
|
|
By
/s/ David J.
Bechstein
|
|
|
Its
Vice President
|
|
|
BMO
Capital Markets Financing, Inc., individually and as Swing
Bank
|
|
|
By
/s/ David J.
Bechstein
|
|
|
Its
Vice President
|
|
|
SunTrust
Bank
|
|
|
By
/s/ M. Gabe
Bonfield
|
|
|
Its
Vice
President
|
|
|
U.S.
Bank National Association
|
|
|
By
/s/ Charles
Dale
|
|
|
Its
SeniorVice
President
|
|
|
Wells
Fargo Bank National Association
|
|
|
By
/s/ Jeff
Mercer
|
|
|
Its
Vice
President
|
|
|
ING
Capital LLC
|
|
|
By
/s/ Lina A.
Garcia
|
|
|
Its
Vice
President
|
|
|
By
|
|
|
Its
|
|
|
Credit
Suisse, Cayman Islands Branch
|
|
|
By
/s/ Karl
Studer
|
|
|
Its
Director
|
|
|
By
/s/ Petra
Jaek
|
|
|
Its
Assistant Vice
President
|
|
|
Bank
of America N.A.
|
|
|
By
/s/
illegible
|
|
|
Its
Vice
President
|
|
|
CALYON
New York Branch
|
|
|
By /s/ Greg
Hennenfent
|
|
|
Its
Director
|
|
|
By
/s/ Blake
Wright
|
|
|
Its
Managing
Director
|
|
|
Natixis
New York Branch
|
|
|
By
/s/ Stephen A.
Jendras
|
|
|
Its
Managing
Director
|
|
|
JP
Morgan Chase Bank, N.A.
|
|
|
By
/s/ Barbara R.
Marks
|
|
|
Its
Executive
Director
|
|
|
Deutsche
Bank Trust Company Americas
|
|
|
By
/s/ Scottye
Lindsey
|
|
|
Its
Director
|
|
|
By
/s/ Carin
Koogan
|
|
|
Its
Director
|
|
|
First
National Bank of Omaha
|
|
|
By
/s/ Wade
Horton
|
|
|
Its
Vice
President
|
- -
Exhibit
10.3
AMENDMENT
No. 6
Dated
as of March 11, 2008
to
RECEIVABLES
PURCHASE AGREEMENT
Dated
as of June 26, 1998
This
AMENDMENT NO. 6 (this “Amendment”) dated as
of March 11, 2008 is entered into among PILGRIM’S PRIDE FUNDING CORPORATION
(“Seller”),
PILGRIM’S PRIDE CORPORATION (“Pilgrim’s Pride”) as
initial Servicer, FAIRWAY FINANCE COMPANY, LLC (f/k/a Fairway Finance
Corporation) (“Purchaser”) and BMO
CAPITAL MARKETS CORP. (f/k/a Harris Nesbitt Corp. (f/k/a BMO Nesbitt Burns
Corp.)), as agent for the Purchaser (in such capacity, together with its
successors and assigns, the “Agent”).
RECITALS
WHEREAS,
the parties hereto have entered into a certain Receivables Purchase Agreement
dated as of June 26, 1998 (as amended through the date hereof, the “Agreement”);
WHEREAS,
in order to make the most efficient use of the financing facility contemplated
by the Agreement and the other Transaction Documents, the Seller has requested
the Purchaser and the Agent to agree to certain amendments and/or modifications
to such facility as described herein for various purposes;
WHEREAS,
the Purchaser and the Agent are willing to agree to such amendments solely on
the terms and subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the promises and the mutual agreements contained
herein and in the Agreement, the parties hereto agree as follows:
SECTION
1. Definitions. All
capitalized terms used, but not otherwise defined, herein shall have
the respective meanings for such terms set forth in Exhibit I to the
Agreement.
SECTION
2. Amendments to the
Agreement. The Agreement is hereby amended as
follows:
2.1. The
definition of “EBITDA” set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as
follows:
“EBITDA” means, with
reference to any period, the earnings of Pilgrim’s Pride and its subsidiaries on
a consolidated basis for such period plus (i) the sum of all
amounts deducted arriving at such earnings amount in respect of (A) Interest
Expense for such period, (B) income tax obligations of Pilgrim’s Pride and its
subsidiaries for such period, (C) depreciation and amortization charges of
Pilgrim’s Pride and its subsidiaries for such period, (D) extraordinary losses
of Pilgrim’s Pride and its subsidiaries for such period, and (E) with the
Agent’s consent, Restructuring Charges of Pilgrim’s Pride and its subsidiaries
for such period, minus
(ii) extraordinary gains of
Pilgrim’s Pride and its subsidiaries for such period, all as determined on the
basis of generally accepted accounting principles consistently
applied.
2.2The
definition of “Interest Expense” set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as
follows:
“Interest Expense” for
any period shall mean all interest charges during such period, including all
amortization of debt discount and expense and imputed interest with respect to
capitalized lease obligations, determined on a consolidated basis in accordance
with generally accepted accounting principles, consistently applied, including
without limitation dividends relating to Convertible Stock that is classified as
debt under generally accepted accounting principles, consistently applied, or
which Pilgrim’s Pride elects to treat as Debt under this Agreement.
2.3Exhibit I to the
Agreement is hereby amended by adding the following new definitions thereto in
the appropriate alphabetical order:
|
|
“Capital
Stock” means, with
respect to any Person, any and all shares, interests, participations or
other equivalents (however designated) of such Person’s capital stock,
whether or not outstanding on the date of this Agreement, including,
without limitation, any option, warrant or other right relating to any
such capital stock.
|
“Convertible
Stock” means preferred stock
and other Capital Stock that are convertible, exchangeable or exercisable into
Pilgrim’s Pride’s common stock.
“Restructuring
Charges” means asset impairment charges, lease termination costs,
severance costs, facility shutdown costs and other related restructuring charges
related to or associated with a permanent reduction in capacity, closure of
plants or facilities, cut-backs or plant closures or a significant
reconfiguration of a facility.
SECTION
3. Representations and
Warranties. Each of the Seller and the Servicer hereby
represents and warrants to the Purchaser and the Agent that the representations
and warranties of such Person contained in Exhibit III to the
Agreement are true and correct as of the date hereof (unless stated to relate
solely to an earlier date, in which case such representations and warranties
were true and correct as of such earlier date), and that as of the date hereof,
no Termination Event or Unmatured Termination Event has occurred and is
continuing or will result from this Amendment.
SECTION
4. Effect of
Amendment. (a) All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect
and are hereby ratified and confirmed in all respects. After this
Amendment becomes effective, all references in the Agreement (or in any other
Transaction Document) to “this Agreement”, “hereof”, “herein” or words of
similar effect referring to the Agreement shall be deemed to be references to
the Agreement as amended by this Amendment. This Amendment shall not
be deemed, either expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth herein.
(b) Notwithstanding
anything in the Agreement or any other Transaction Document to the contrary,
each of the parties hereto, hereby consents and agrees to the amendments
contemplated hereby and that all of the provisions in the Agreement, the
Purchase and Contribution Agreement, the Purchase Agreement and the other
Transaction Documents shall be interpreted so as to give effect to the intent of
the parties hereto as set forth in this Amendment.
SECTION
5. Effectiveness. This
Amendment shall become effective as of the date hereof upon receipt by the Agent
of the following (each, in form and substance satisfactory to the
Agent):
(a) Counterparts
of this Amendment executed by each of the parties hereto (including facsimile or
electronic copies); and
(b) Such
other documents, resolutions, certificates, agreements and opinions as the Agent
may reasonably request in connection herewith.
SECTION
6. Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
on separate counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute but one and
the same instrument.
SECTION
7. Governing
Law. This Amendment, including the rights and duties of the
parties hereto, shall be governed by, and construed in accordance with, the laws
of the State of Texas (without giving effect to the conflict of laws principles
thereof).
SECTION
8. Section
Headings. The various headings of this Amendment are included
for convenience only and shall not affect the meaning or interpretation of this
Amendment, the Agreement or any provision hereof or thereof.
(continued
on following page)
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized as of the date first above
written.
PILGRIM’S
PRIDE FUNDING CORPORATION,
as
Seller
By: /s/ Richard A.
Cogdill
Name:
Richard A. Cogdill
Title: Vice
President, Secretary & Treasurer
PILGRIM’S
PRIDE CORPORATION,
as
initial Servicer
By: /s/ Richard A.
Cogdill
Name:
Richard A. Cogdill
Title: Chief
Financial Officer, Secretary & Treasurer
FAIRWAY
FINANCE COMPANY, LLC,
as
Purchaser
By:
/s/ Lori
Gebron
Name: Lori
Gebron
Title: Vice
President
BMO
CAPITAL MARKETS CORP.,
as
Agent
By: /s/ Brian
Zaban
Name:
Brian Zaban
Title: Managing
Director