AMENDMENT No. 2 Dated as of September 26, 2008 to PURCHASE AND CONTRIBUTION AGREEMENT Dated as of June 26, 1998
EXHIBIT
10.5
EXECUTION
COPY
AMENDMENT
No. 2
Dated
as of September 26, 2008
to
Dated
as of June 26, 1998
This
AMENDMENT NO. 2 (this “Amendment”) dated as
of September 26, 2008 is entered into among PILGRIM’S PRIDE FUNDING CORPORATION
(the “Company”)
and PILGRIM’S PRIDE CORPORATION (“Pilgrim’s
Pride”).
RECITALS
WHEREAS,
the parties hereto have entered into a certain Purchase and Contribution
Agreement dated as of June 26, 1998 (as amended through the date hereof, the
“Agreement”);
WHEREAS,
the parties desire to amend the Agreement as hereinafter set forth;
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
Receivables Purchase Agreement (as defined in the Agreement).
SECTION
2. Amendments to the
Agreement. The Agreement is hereby amended as
follows:
2.1 The
second paragraph of the Agreement titled “Definitions” is
hereby amended and restated in its entirety as follows:
Unless
otherwise indicated, certain terms that are capitalized and used throughout this
Agreement are defined in Exhibit I to the
Amended and Restated Receivables Purchase Agreement dated as of September 26,
2008 (as amended, supplemented, restated or otherwise modified from time to
time, the “Receivables
Purchase Agreement”) by and among the Company, Pilgrim’s Pride, as
initial Servicer, the Purchasers and Purchaser Agents from time to time parties
thereto and BMO Capital Markets Corp., as administrator for each Purchaser Group
(together with its successors and assigns, the “Administrator”).
2.2 The
second parenthetical set forth in clause (e) of Section 4.1 of the
Agreement is hereby amended and restated in its entirety as
follows:
(and the
Administrator on behalf of the Purchasers as assignee of the
Company)
2.3 Clause (i) of Section 4.1 of the
Agreement is hereby amended and restated in its entirety as
follows:
(i) A
certificate from an officer of Originator to the effect that Servicer and
Originator have placed on the most recent, and have taken all steps reasonably
necessary to ensure that there shall be placed on subsequent, summary master
control data processing reports the following legend (or the substantive
equivalent thereof): “THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD
TO PILGRIM’S PRIDE FUNDING CORPORATION PURSUANT TO A PURCHASE AND CONTRIBUTION
AGREEMENT, DATED AS OF JUNE 26, 1998, AMONG PILGRIM’S PRIDE CORPORATION AND
PILGRIM’S PRIDE FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES
DESCRIBED HEREIN HAS BEEN GRANTED TO BMO CAPITAL MARKETS CORP. (ON BEHALF OF THE
PURCHASERS) PURSUANT TO AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
DATED AS OF SEPTEMBER 26, 2008, AMONG PILGRIM’S PRIDE FUNDING CORPORATION,
PILGRIM’S PRIDE CORPORATION, THE PURCHASERS AND PURCHASER AGENTS FROM TIME TO
TIME PARTIES THERETO AND BMO CAPITAL MARKETS CORP., AS
ADMINISTRATOR.”
2.4 Clause (b) of Section 5.11 of the
Agreement is hereby amended and restated in its entirety as
follows:
(b) No
effective financing statement or other instrument similar in effect covering any
Receivable generated by Originator (or acquired by it from any Transferor
pursuant to a Purchase Agreement) or any right related to any such Receivable is
on file in any recording office except such as may be filed in favor of the
Company or the Originator, as the case may be, in accordance with this Agreement
or such Purchase Agreement or in favor of the Administrator on behalf of the
Purchasers in accordance with the Receivables Purchase Agreement.
2.5 Article V of the
Agreement is hereby amended by inserting, in the appropriate order, the
following new Section
5.21:
5.21. Ordinary Course of
Business. Each remittance of Collections by or on behalf of
Originator or pursuant to the Transaction Documents and any related accounts of
amounts owing hereunder will have been (i) in payment of a debt incurred by
Originator in the ordinary course of business or financial affairs of Originator
or (ii) made in the ordinary course of business or financial affairs of
Originator.
2.6 Section 6.1(j) of the
Agreement is hereby deleted in its entirety.
2.7 The
second parenthetical set forth in clause (d) of Section 6.3 of the
Agreement is hereby amended and restated in its entirety as
follows:
(which in
turn shall deliver the same to the Administrator on behalf of the
Purchasers)
2.8 The
Agreement is hereby amended by deleting each reference to the term “Agent”
therein and substituting the term “Administrator” therefor.
2.9 The
Agreement is hereby amended by deleting each reference to the term “Purchaser”
therein and substituting the term “Purchasers” therefor.
SECTION
3. Representations and
Warranties. The Originator hereby represents and warrants to
the Company, the Purchasers and the Administrator that the representations and
warranties of such Originator contained in Article V of 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 Purchase and Sale Termination Event or event which, with the giving of notice
or the lapse of time, or both, would constitute a Purchase and Sale 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 the other Transaction Documents 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
Receivables Purchase Agreement, each 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
and the Company of the following (each, in form and substance satisfactory to
the Agent and the Company):
(a) Counterparts
of this Amendment (whether by facsimile or otherwise) executed by each of the
parties hereto; and
(b) Such
other documents, resolutions, certificates, agreements and opinions as the
Company or 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)
|
1428451
98442494
|
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
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: CFO,
Secretary & Treasurer
PILGRIM’S
PRIDE CORPORATION
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: CFO,
Secretary & Treasurer
|
1428451
98442494
|
S-
|
Amendment
No. 2 to PCA
|
Consented
and Agreed:
BMO
CAPITAL MARKETS CORP. (f/k/a Xxxxxx Xxxxxxx Corp.), as
Administrator
By: /s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title:
Managing Director
|
1428451
98442494
|
S-
|
Amendment
No. 2 to PCA
|
