Pilgrim’s Pride Corporation First Amendment to Limited Duration Waiver Agreement
Exhibit
10.50
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 of November 25, 2008, by and among PILGRIM’S PRIDE CORPORATION, a Delaware
corporation (the “Servicer”), PILGRIM’S PRIDE FUNDING
CORPORATION, a Delaware limited liability company (the “Seller” and, together with the
Servicer, the “Seller
Parties”), the PURCHASERS AND PURCHASER AGENTS ON THE SIGNATURE PAGES
HERETO (collectively, the “Purchasers”) and BMO
CAPITAL MARKETS CORP., as administrator (in such capacity, together with its
successors and assigns, the “Administrator” and,
collectively with the Purchasers, the “Waiving
Parties”).
Recitals:
A.The Seller, the Servicer, the Purchasers and the Administrator 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 Waiving Parties agreed, among other
things, to waive the Subject Default during the period ending November 26,
2008.
C.The Seller Parties have requested that the Waiving Parties amend the Waiver
Agreement to extend the Scheduled Waiver Expiration Date and to amend certain
other provisions thereof, and the Waiving Parties 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 Seller Parties and
the Waiving Parties 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 Seller Parties 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
Seller Parties acknowledge and agree that there are amounts outstanding,
including Investment and Discount in respect of the Participation and other
amounts, that are payable by the Originator, the Seller or the Servicer, as
applicable, to the Purchasers and the Administrator (and any other Indemnified
Party and Affected Person under the Transaction Documents, as applicable), and
such amounts (together with interest and fees thereon) are justly and truly
owing by the Seller without defense, offset or
counterclaim.
3.Amendments to the Waiver
Agreement.
(a)Section 3 of the Waiver Agreement
shall be amended to read as follows:
3. Limited Duration
Waiver. Subject to the terms and conditions contained in this
Agreement, the Waiving Parties 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 Administrator and the Purchasers 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.
(b)The
definition of “Subject Default” in the Waiver Agreement shall be amended to
include the Indenture Payment Event (as defined below).
4.[Reserved].
5.Acknowledgement of
Liens. The Seller Parties hereby acknowledge and agree that
all indebtedness, obligations and liabilities of the Seller owing to the
Administrator and the Purchasers arising out of or in any manner relating to the
Transaction Documents shall continue to be secured by liens and security
interests on all of the Receivables, Contracts and Related Security and all
other collateral pursuant to the Transaction Documents heretofore or hereafter
executed and delivered by the Seller or the Servicer, 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. Each of the Seller Parties represents and warrants
to the Administrator and the Purchasers that:
(a)each
Seller Party 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 Seller Parties 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 Seller Party or any provision of the organizational
documents (e.g.,
certificate or articles of incorporation and by-laws) of any Seller Party, or
(ii) contravene or constitute a default under any covenant, indenture or
agreement of or affecting any Seller Party or any of its Property;
(c)the obligations of each Seller Party
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
Unmatured Termination Event or Termination Event (other than the Subject
Default) has occurred and is continuing;
(e)[Reserved];
(f)the
Servicer has decided that during the Waiver Period as extended by this Amendment
it will not make the Indenture Interest Payments (the “Indenture Payment
Event”); and
(g)Each
Seller Party represents and warrants that (i) each of the Lock-Box Accounts and
lock-boxes set forth on Schedule I hereto is subject to a Lock-Box Agreement,
(ii) the Lock-Box Accounts and lock-boxes set forth on Schedule I hereto cover
all of the accounts and lock-boxes into which Obligors are instructed to deposit
Collections and any other amounts related to Receivables and (iii) all Obligors
have been instructed to make payments of all Receivables only to one or more of
the Lock-Box Accounts or lock-boxes set forth on Schedule I hereto.
9.Agreements. The
Seller Parties further acknowledge and agree that, notwithstanding anything to
the contrary in the Receivables Purchase Agreement or the Waiver Agreement as
amended by this Amendment, the Seller shall not request, and the Purchasers
shall not make, any purchases or reinvestments at any time on or after 12:01
a.m. on December 1, 2008, and any such request or any such purchase or
reinvestment shall constitute a breach by the Seller of the Waiver Agreement as
amended by this Amendment.
10.Release. For value
received, including without limitation, the agreements of the Administrator and
the Purchasers in this Amendment, each Seller Party hereby releases the
Administrator, each Purchaser, each Indemnified Party and their respective
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 Seller Party 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 Seller
Parties, the Administrator and the Purchasers, and each Seller Party 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 Seller
Party hereby expressly waives.
11.Waiver Agreement Remain
Effective. Except as expressly set forth in this Amendment,
the Waiver Agreement and all of the obligations of the Seller Parties
thereunder, the rights and benefits of the Administrator and Purchasers
thereunder, and the liens and security interests created thereby remain in full
force and effect. Without limiting the foregoing, each Seller Party
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 is
intended by the Administrator and the Purchasers as a final expression of their
agreement and is intended as a complete and exclusive statement of the terms and
conditions of that agreement.
12.Fees and
Expenses. The Seller and the Servicer shall pay on demand all
fees and expenses (including attorneys’ fees) incurred by the Administrator and
its counsel 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 Administrator with respect to the securitization
facility subject to the Receivables Purchase Agreement.
13.Conditions
Precedent. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent:
(a)the
Seller Parties, the Administrator, and the Purchasers shall have executed and
delivered this Amendment on or before November 26, 2008;
(b)the
Administrator 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 terms or
provisions that are not contained in the Waiver Agreement as amended by this
Amendment materially adverse to the Administrator and the Purchasers or that
are, in any material respect, 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 Administrator and the Purchasers, and which
otherwise shall be in form and substance reasonably satisfactory to the
Administrator, and such amendment to the CoBank Limited Duration Waiver shall be
effective;
(c)the
Administrator shall have received a copy of a fully executed amendment to the
Credit Agreement Limited Duration Waiver extending the waiver under the Credit
Agreement Limited Duration Waiver of any default under the 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 Credit Agreement Limited Duration Waiver any
terms or provisions that are not contained in the Waiver Agreement as amended by
this Amendment materially adverse to the Administrator and the Purchasers or
that are, in any material respect, more favorable to the lenders under the
Credit Agreement than the terms of the Waiver Agreement as amended by this
Amendment are favorable to the Administrator and the Purchasers, and which
otherwise shall be in form and substance reasonably satisfactory to the
Administrator, and such amendment to the Credit Agreement Limited Duration
Waiver shall be effective; and
(d)the
payment of the current legal fees and expenses referred to in Section 12
above.
14.Miscellaneous. By
its acceptance hereof, each Seller Party 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 such Seller Party 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 provisions
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 Transaction Document for all purposes of the
Receivables Purchase Agreement and the other Transaction
Documents. Unless otherwise expressly stated herein, the provisions
of the Waiver Agreement 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 Texas law and shall be
governed and interpreted on the same basis as the Waiver Agreement.
[Signature
Pages to Follow]
This
First Amendment to Limited Duration Waiver Agreement is entered into as of the
date and year first above written.
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Pilgrim’s
Pride Corporation, as Servicer
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By:/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Financial Officer, Secretary and Treasurer
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Pilgrim’s
Pride Funding Corporation, as
Seller
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By:/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Chief Financial Officer, Secretary and Treasurer
Accepted
and agreed to:
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BMO
Capital Markets Corp., as
Administrator
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By: /s/ ▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title: Managing
Director
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BMO
Capital Markets Corp., as Purchaser
Agent
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By: /s/ ▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇
Title: Managing
Director
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Fairway
Finance Company, LLC, as Uncommitted Purchaser and as Related Committed
Purchaser
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By: /s/ ▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title: Vice
President