AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of September 26, 2008 among PILGRIM’S PRIDE FUNDING CORPORATION, as Seller, PILGRIM’S PRIDE CORPORATION, as Servicer, THE VARIOUS PURCHASERS AND PURCHASER AGENTS FROM TIME TO TIME PARTIES...
EXHIBIT
10.4
EXECUTION
COPY
AMENDED
AND RESTATED RECEIVABLES PURCHASE AGREEMENT
dated as
of September 26, 2008
among
PILGRIM’S
PRIDE FUNDING CORPORATION,
as
Seller,
PILGRIM’S
PRIDE CORPORATION,
as
Servicer,
THE
VARIOUS PURCHASERS AND PURCHASER AGENTS FROM TIME TO TIME PARTIES
HERETO,
and
BMO
CAPITAL MARKETS CORP.,
as
Administrator
1408834 98442494
|
AMOUNTS
AND TERMS OF THE PURCHASES
Section
1.1.
|
Purchase
Facility
|
2
|
Section
1.2.
|
Making
Purchases
|
3
|
Section
1.3.
|
Participation
Computation
|
5
|
Section
1.4.
|
Settlement
Procedures
|
5
|
Section
1.5.
|
Fees
|
11
|
Section
1.6.
|
Payments
and Computations, Etc
|
11
|
Section
1.7.
|
Dividing
or Combining Portions of the Investment of the
Participation
|
12
|
Section
1.8.
|
Increased
Costs
|
12
|
Section
1.9.
|
Requirements
of Law
|
13
|
|
Section
1.10.Inability to Determine Eurodollar
Rate14
|
ARTICLE
II.
REPRESENTATIONS
AND WARRANTIES; COVENANTS; TERMINATION EVENTS
Section
2.1.
|
Representations
and Warranties; Covenants
|
15
|
Section
2.2.
|
Termination
Events
|
15
|
ARTICLE
III.
INDEMNIFICATION
Section
3.1.
|
Indemnities
by the Seller
|
15
|
ARTICLE
IV.
ADMINISTRATION
AND COLLECTIONS
Section
4.1.
|
Appointment
of Servicer
|
18
|
Section
4.2.
|
Duties
of Servicer
|
19
|
Section
4.3.
|
Establishment
and Use of Certain Accounts
|
19
|
Section
4.4.
|
Enforcement
Rights
|
20
|
Section
4.5.
|
Responsibilities
of the Seller
|
21
|
Section
4.6.
|
Servicing
Fee
|
21
|
ARTICLE
V.
Section
5.1.
|
Appointment
and Authorization
|
22
|
Section
5.2.
|
Delegation
of Duties
|
23
|
Section
5.3.
|
Exculpatory
Provisions
|
23
|
Section
5.4.
|
Reliance
by Agents
|
23
|
Section
5.5.
|
Notice
of Termination Events
|
24
|
Section
5.6.
|
Non-Reliance
on Administrator, Purchaser Agents and Other
Purchasers
|
24
|
Section
5.7.
|
Administrators
and Affiliates
|
25
|
Section
5.8.
|
Indemnification
|
25
|
Section
5.9.
|
Successor
Administrator
|
25
|
ARTICLE
VI.
MISCELLANEOUS
Section
6.1.
|
Amendments,
Etc
|
25
|
Section
6.2.
|
Notices,
Etc
|
26
|
Section
6.3.
|
Successors
and Assigns; Participations;
Assignments
26
|
Section
6.4.
|
Costs,
Expenses and Taxes
|
28
|
Section
6.5.
|
No
Proceedings; Limitation on Payments
|
29
|
Section
6.6.
|
Confidentiality
|
29
|
Section
6.7.
|
GOVERNING
LAW AND JURISDICTION
|
30
|
Section
6.8.
|
Execution
in Counterparts
|
31
|
Section
6.9.
|
Survival
of Termination
|
31
|
Section
6.10.
|
WAIVER
OF JURY
TRIAL
31
|
Section
6.11.
|
ENTIRE
AGREEMENT
31
|
Section
6.12.
|
Headings
32
|
Section
6.13.
|
Purchaser
Groups’
Liabilities
32
|
1408834 98442494
EXHIBITS
Exhibit
I Definitions
Exhibit
II Conditions
of Purchases
Exhibit
III Representations
and Warranties
Exhibit
IV Covenants
Exhibit
V Termination
Events
SCHEDULES
Schedule
I Credit
and Collection Policy
Schedule
II Lock-Box
Banks and Lock-Box Accounts
Schedule
III Trade
Names
Schedule
IV Accounting
Periods
ANNEXES
Annex
A Form
of Servicer Report
Annex
B Form
of Notice of Purchase
Annex
C Form
of Assumption Agreement
Annex
D Form
of Transfer Supplement
1408834 98442494
AMENDED
AND RESTATED RECEIVABLES PURCHASE AGREEMENT
This
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this “Agreement”) is
entered into as of September 26, 2008 among PILGRIM’S PRIDE FUNDING CORPORATION,
a Delaware corporation, as seller (the “Seller”), PILGRIM’S
PRIDE CORPORATION, a Delaware corporation (“Pilgrim’s Pride”), as
initial servicer (in such capacity, together with its successors and permitted
assigns in such capacity, the “Servicer”), THE
VARIOUS PURCHASERS AND PURCHASER AGENTS FROM TIME TO TIME PARTIES HERETO, and
BMO CAPITAL MARKETS CORP., a Delaware corporation (“BMOCM”) as
Administrator for each Purchaser Group (in such capacity, together with its
successors and assigns in such capacity, the “Administrator”).
PRELIMINARY
STATEMENTS. Certain terms that are capitalized and used throughout
this Agreement are defined in Exhibit I to this
Agreement. References in the Exhibits hereto to “the Agreement” refer
to this Agreement, as amended, modified or supplemented from time to
time.
The
Seller desires to sell, transfer and assign an undivided variable percentage
interest in a pool of receivables, and the Purchasers desire to acquire such
undivided variable percentage interest, as such percentage interest shall be
adjusted from time to time based upon, in part, reinvestment payments which are
made by such Purchasers and additional incremental payments made to the
Seller.
This
Agreement amends and restates in its entirety, as of the Closing Date, that
certain Receivables Purchase Agreement, dated as of June 26, 1998 (as amended,
restated, supplemented or otherwise modified prior to the date hereof, the
“Original
Agreement”), among the Seller, the Servicer, Fairway Finance Company, LLC
(f/k/a Fairway Finance Corporation), as Purchaser (as such term is defined in
the Original Agreement) and the Administrator. Notwithstanding the
amendment and restatement of the Original Agreement by this Agreement, (i) the
Seller and Servicer shall continue to be liable to each Indemnified Party and
Affected Person (as such terms are defined in the Original Agreement) for fees
and expenses which are accrued and unpaid under the Original Agreement on the
date hereof (collectively, the “Original Agreement
Outstanding Amounts”) and all agreements to indemnify such parties in
connection with events or conditions arising or existing prior to the effective
date of this Agreement and (ii) the security interest created under the Original
Agreement shall remain in full force and effect as security for such Original
Agreement Outstanding Amounts until such Original Agreement Outstanding Amounts
shall have been paid in full. Upon the effectiveness of this
Agreement, each reference to the Original Agreement in any other document,
instrument or agreement shall mean and be a reference to this
Agreement.
In
consideration of the mutual agreements, provisions and covenants contained
herein, the sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I.
AMOUNTS
AND TERMS OF THE PURCHASES
Section
1.1. Purchase
Facility. (a) On the terms and subject to the
conditions hereinafter set forth, the Seller may, from time to time before the
Facility Termination Date, ratably (based on the aggregate Commitments of the
Related Committed Purchasers in their respective Purchaser Groups) request that
the Uncommitted Purchasers, or, only if an Uncommitted Purchaser denies such
request or is unable to fund (and provides notice of such denial or inability to
the Seller, the Administrator and its Purchaser Agent), ratably request that the
Related Committed Purchasers, make purchases of and reinvestments in undivided
percentage ownership interests with regard to the Participation from the Seller
from time to time during the period from the date hereof to the Facility
Termination Date (each, a “Purchase”). At
no time will an Uncommitted Purchaser have any obligation to make a
Purchase. Each Related Committed Purchaser severally hereby agrees,
on the terms and subject to the conditions hereof, to make Purchases before the
Facility Termination Date, based on the applicable Purchaser Group’s Ratable
Share of each Purchase requested pursuant to Section 1.2(a) (and,
in the case of each Related Committed Purchaser, its Commitment Percentage of
its Purchaser Group’s Ratable Share of such Purchase); provided, however, that under
no circumstances shall any Purchaser make any such Purchase or reinvestment if,
after giving effect to such Purchase or reinvestment, (i) the aggregate of such
Purchaser’s Investment would exceed its Commitment or, in the case of any
Uncommitted Purchaser, the aggregate of such Uncommitted Purchaser’s Investment
(including, for the avoidance of doubt, any portion of such Uncommitted
Purchaser’s Investment being funded by its Liquidity Banks solely pursuant to a
Liquidity Agreement at such time), together with the Investments of its Related
Committed Purchasers, would exceed the aggregate of the Commitments of its
Related Committed Purchasers, (ii) the Aggregate Investment would (after giving
effect to all Purchases and reinvestments on such date) exceed the Purchase
Limit, (iii) with respect to any Purchaser Group, the aggregate Investment of
all Purchasers in such Purchaser Group would exceed the Group Commitment for
such Purchaser Group or (iv) the Participation would exceed 100%.
(b) The
Seller may, upon at least 30 Business Days’ notice to the Administrator and each
Purchaser Agent, terminate the purchase facility provided in this Section 1 in whole
or, from time to time, irrevocably reduce in part the unused portion of the
Purchase Limit (but not below the amount that would cause the Group Investment
of any Purchaser Group to exceed its Group Commitment (after giving effect to
such reduction)); provided that each
partial reduction shall be in the amount of at least $1,000,000, or an integral
multiple of $100,000 in excess thereof and, unless terminated in whole, the
Purchase Limit shall in no event be reduced below $100,000,000. Such
reduction shall, unless otherwise agreed to in writing by the Seller, the
Administrator and each Purchaser Agent, be applied ratably to reduce the Group
Commitment of each Purchaser Group.
(c) The
Seller may, upon at least 10 Business Days’ notice to the Administrator and each
Purchaser Agent terminate the purchase facility with respect to a single
Purchaser Group on a non-pro rata basis and pay in full to each Purchaser in
such Purchaser Group all amounts due and owing as of such termination date;
provided, that
(i) the Seller shall have obtained the prior written consent of the
Administrator, (ii) no Termination Event or Unmatured Termination Event shall
have occurred and be continuing and (iii) the Participation shall not exceed
100%.
(d) The
Seller may advise the Administrator and each Purchaser Agent in writing of its
desire to extend the Scheduled Commitment Termination Date with respect to each
Related Committed Purchaser for an additional period not greater than 364 days,
provided that
such written request shall be delivered by the Seller to the Administrator and
each Purchaser Agent not more than ninety (90) days prior to, and not less than
sixty (60) days prior to, the then Scheduled Commitment Termination
Date. In the event that all Related Committed Purchasers are
agreeable to such extension (which determination shall be made by each Related
Committed Purchaser in its sole discretion and on such terms as each such
Related Committed Purchaser may elect), (i) each Related Committed Purchaser (or
the related Purchaser Agent on its behalf) shall so notify the Administrator and
the Administrator shall so notify the Seller in writing not less than thirty
(30) days prior to the then Scheduled Commitment Termination Date, (ii) the
Seller, the Administrator, the Purchaser Agents and the Purchasers shall enter
into such documents as the Administrator and the Purchaser Agents may deem
necessary or appropriate to reflect such extension, and (iii) the Seller shall
pay all reasonable costs and expenses incurred by the Administrator, the
Purchasers and the Purchaser Agents in connection therewith (including
reasonable attorneys’ costs) in accordance with Section
6.4. In the event that any Related Committed Purchaser
declines the request for such extension (an “Exiting Purchaser”),
such Exiting Purchaser (or the related Purchaser Agent on its behalf) shall so
notify the Administrator, and the Administrator shall so notify Seller of such
determination (it being understood that if any such Related Committed Purchaser
does not extend its Commitment hereunder or assign its obligations to new
Purchasers in accordance with Section 6.3, then on the Scheduled Commitment
Termination Date, the Purchase Limit shall be reduced by an amount equal to that
portion of the Commitment of such Exiting Purchaser, the Commitment of the
Exiting Purchaser shall expire and the Commitment Percentages and Group
Commitments of the Purchasers within each Purchaser Group shall be appropriately
adjusted); provided that the
failure of any Related Committed Purchaser (or related Purchaser Agent on its
behalf) to so notify the Administrator or the failure of the Administrator to so
notify the Seller, in either case, of the determination to decline such
extension shall be deemed to be notice to the Administrator and the Seller that
such Related Committed Purchaser has declined such extension (such notice or
deemed notice, an “Exiting
Notice”). Notwithstanding anything to the contrary
herein, if all
Related Committed Purchasers that are Affiliates of the Administrator decline to
extend the Scheduled Commitment Termination Date, then the Scheduled Commitment
Termination Date shall not be extended with respect to any Related Committed
Purchaser unless one of the existing Related Committed Purchasers or a new
Purchaser (or an Affiliate thereof) that is not an Affiliate of the
Administrator agrees to assume all the duties and obligations of the
Administrator hereunder effective as of such Scheduled Commitment Termination
Date pursuant to such documents as the Administrator (in its sole discretion)
may deem necessary or appropriate to reflect such assignment, it being
understood that all costs and expenses incurred in connection therewith shall be
paid by the Seller.
Section
1.2. Making
Purchases. (a) Each Purchase (but not reinvestment)
of undivided percentage ownership interests with regard to the Participation
hereunder shall be made upon the Seller’s irrevocable written notice in the form
of Annex B
delivered to the Administrator and each Purchaser Agent in accordance with Section 6.2 (which
notice must be received by the Administrator and each Purchaser Agent prior to
11:00 a.m., Chicago time) on the second Business Day next preceding the date of
such proposed Purchase. Each such notice of any such proposed
Purchase shall specify the desired amount to be paid to the Seller from each
Purchaser Group (which amount shall not be less than $1,000,000 (or such lesser
amount as agreed to by the Administrator and each Purchaser Agent) and shall be
in integral multiples of $100,000 in excess thereof), the date of such Purchase
and the desired duration of the Yield Period for the resulting
Participation. Each Purchaser Agent shall select the duration of such
initial Yield Period, and each subsequent Yield Period in its discretion; provided that it
shall use reasonable efforts, taking into account market conditions, to
accommodate Seller’s preferences.
(b) On the
date of each Purchase (but not reinvestment) of undivided percentage ownership
interests with regard to the Participation hereunder, each applicable Purchaser
shall, upon satisfaction of the applicable conditions set forth in Exhibit II hereto,
make available to its related Purchaser Agent in same day funds an amount equal
to the portion of Investment relating to the undivided percentage ownership
interest then being funded by such Purchaser (and set forth in each notice
delivered in accordance with Section 1.2(a)), and after the related Purchaser
Agent’s receipt of such funds, such Purchaser Agent shall make such funds
immediately available to the Seller.
(c) Effective
on the date of each Purchase pursuant to this Section 1.2 and
each reinvestment pursuant to Section 1.4, the
Seller hereby sells and assigns to the Administrator for the benefit of the
Purchasers (ratably, as described in Section 1.1(a), or,
in the case of any reinvestment, ratably based on the aggregate Investment of
each such Purchaser at such time) an undivided percentage ownership interest in
and to the extent of the Participation (i) each Pool Receivable then existing,
(ii) all Related Security with respect to such Pool Receivables, and (iii)
Collections with respect to, and other proceeds of, such Pool Receivables and
Related Security.
(d) To secure
all of the Seller’s obligations (monetary or otherwise) under this Agreement and
the other Transaction Documents to which it is a party, whether now or hereafter
existing or arising, due or to become due, direct or indirect, absolute or
contingent, the Seller hereby grants to the Administrator, for the benefit of
the Purchasers, a security interest in all of the Seller’s right, title and
interest (including without limitation any undivided interest of the Seller) in,
to and under all of the following, whether now or hereafter owned, existing or
arising: (A) all Pool Receivables, (B) all Related Security with
respect to each such Pool Receivable, (C) all Collections with respect to each
such Pool Receivable, (D) the Lock Box Accounts and all amounts on deposit
therein representing proceeds of the Pool Receivables and proceeds of the
Related Security with respect thereto, the Collection Account and Liquidation
Account and all amounts on deposit therein and all certificates and instruments,
if any, from time to time evidencing such Lock Box Accounts, Collection Account
and Liquidation Account and such amounts on deposit therein, (E) all rights (but
none of the obligations) of the Seller under the Purchase and Contribution
Agreement and (F) all proceeds of, and all amounts received or receivable under
any or all of, the foregoing (collectively, the “Pool
Assets”). The Administrator, for the benefit of the
Purchasers, shall have, with respect to the Pool Assets, and in addition to all
the other rights and remedies available to the Administrator and the Purchasers,
all the rights and remedies of a secured party under any applicable
UCC.
(e) The
Seller may, with the written consent of the Administrator and the Majority
Purchasers, add additional Persons as Purchasers (either to an existing
Purchaser Group or by creating new Purchaser Groups) or cause an existing
Purchaser to increase its Commitment in connection with a corresponding increase
in the Purchase Limit; provided, however, (i) that the
Commitment of any Purchaser may only be increased with the prior written consent
of such Purchaser, and (ii) a Purchaser may only be added to an existing
Purchaser Group with the consent of each Purchaser within such Purchaser
Group. Each new Purchaser (or Purchaser Group) shall become a party
hereto, by executing and delivering to the Administrator and the Seller, an
Assumption Agreement in the form of Annex C hereto (which
Assumption Agreement shall, in the case of any new Purchaser or Purchasers, be
executed by each Person in such new Purchaser’s Purchaser Group).
(f) Each
Related Committed Purchaser’s obligation hereunder shall be several, such that
the failure of any Related Committed Purchaser to make a payment in connection
with any Purchase hereunder shall not relieve any other Related Committed
Purchaser of its obligation hereunder to make payment for any Purchase. Further,
in the event any Related Committed Purchaser fails to satisfy its obligation to
make a Purchase as required hereunder, upon receipt of notice of such failure
from the Administrator (or any relevant Purchaser Agent), subject to the
limitations set forth herein, the non-defaulting Related Committed Purchasers in
such defaulting Related Committed Purchaser’s Purchaser Group shall purchase the
defaulting Related Committed Purchaser’s Commitment Percentage of the related
Purchase pro
rata in
proportion to their relative Commitment Percentages (determined without regard
to the Commitment Percentage of the defaulting Related Committed Purchaser;
it being understood that a
defaulting Related Committed Purchaser’s Commitment Percentage of any Purchase
shall be first put to the Related Committed Purchasers in such defaulting
Related Committed Purchaser’s Purchaser Group and thereafter if there are no
other Related Committed Purchasers in such Purchaser Group or if such other
Related Committed Purchasers are fully committed or are also defaulting Related
Committed Purchasers, then such defaulting Related Committed Purchaser’s
Commitment Percentage of such Purchase shall be put to each other Purchaser
Group ratably and applied in accordance with this paragraph (f)).
Notwithstanding anything in this paragraph (f) to the contrary, no Related
Committed Purchaser shall be required to make a Purchase pursuant to this
paragraph for an amount which would cause the aggregate Investment of such
Related Committed Purchaser (after giving effect to such Purchase) to exceed its
Commitment.
Section
1.3. Participation
Computation. The Participation shall be initially computed on
the date of the initial Purchase hereunder. Thereafter until the
Termination Date, the Participation shall be automatically recomputed (or deemed
to be recomputed) on each Business Day other than a Termination
Day. The Participation, as computed (or deemed recomputed) as of the
day immediately preceding the Termination Date, shall thereafter remain
constant. The Participation shall become zero when the Aggregate
Investment thereof and Aggregate Discount thereon shall have been paid in full,
all the amounts owed by the Seller hereunder to each Purchaser, each Purchaser
Agent, the Administrator, and any other Indemnified Party or Affected Person are
paid in full and the Servicer shall have received the accrued Servicing Fee
thereon.
Section
1.4. Settlement
Procedures. (a) Collection of the Pool Receivables
shall be administered by the Servicer in accordance with the terms of this
Agreement. The Seller shall provide to the Servicer on a timely basis
all information needed for such administration, including notice of the
occurrence of any Termination Day and current computations of the
Participation.
(b) The
Servicer shall, on each day on which Collections of Pool Receivables are
received (or deemed received) by the Seller or Servicer, transfer such
Collections from the Lock-Box Account(s) and deposit on such day such
Collections into the Collection Account. With respect to all
Collections on deposit in the Collection Account on such day, the Servicer
shall:
(i) if such day is not a Termination Day,
set aside within the Collection Account (or if such day is a Termination Day,
transfer to the Liquidation Account) for the benefit of each Purchaser Group,
out of the percentage of such Collections represented by the Participation,
first an amount
equal to the Aggregate Discount accrued through such day for each Portion of
Investment and not previously set aside, second, an amount
equal to the fees set forth in each Purchaser Group Fee Letter accrued and
unpaid through such day and third, to the extent
funds are available therefor, an amount equal to the Servicing Fee accrued and
unpaid through such day and not previously set aside; and
(ii) subject to Section 1.4(f), if
such day is not a Termination Day, remit to the Seller, on behalf of each
Purchaser (ratably in accordance with the next succeeding sentence), the
remainder of the percentage of such Collections, represented by the
Participation, to the extent representing a return on the Aggregate Investment;
such Collections shall, ratably, according to each Purchaser’s Investment, be
automatically reinvested in Pool Receivables, and in the Related Security and
Collections and other proceeds with respect thereto, and the Participation shall
be automatically recomputed pursuant to Section 1.3;
it being understood, that
prior to remitting to the Seller the remainder of such Collections by way of
reinvestment in Pool Receivables, the Servicer shall have calculated the
Participation on such day, and if such Participation shall exceed 100% of the
Net Receivables Pool Balance on such day, such Collections shall not be remitted
to the Seller but shall be transferred to the Liquidation Account for the
benefit of the Purchasers in accordance with paragraph (iii)
below; provided, further, that in the
case of an Exiting Purchaser, such Collections shall not be reinvested and
instead shall be held in trust for the benefit of such Exiting Purchaser and
applied in accordance with clause (iii)
below;
(iii) if such day is a Termination Day (or
any day following the provision of an Exiting Notice), (A) transfer to the
Liquidation Account for the benefit of each Purchaser Group (x) the amounts set
aside in the Collection Account for the benefit of each Purchaser Group pursuant
to paragraph
(i) above and not so previously transferred to the Liquidation Account, and (y)
the entire remainder of the percentage of the Collections represented by the
Participation (or in the case of an Exiting Purchaser, an amount equal to such
Exiting Purchaser’s ratable share of such Collections; provided that solely
for the purpose of determining such Exiting Purchaser’s ratable share of
Collections, such Exiting Purchaser’s Investment shall be deemed to remain
constant from the date of such Exiting Purchaser’s Scheduled Commitment
Termination Date until the date such Exiting Purchaser’s Investment has been
paid in full; it being
understood that if such day is also a Termination Day, such Exiting
Purchaser’s Investment shall be recalculated taking into account amounts
received by such Exiting Purchaser in respect of this parenthetical and
thereafter Collections shall be set aside for such Exiting Purchaser ratably in
respect of its Investment (as recalculated)); provided that so long
as the Facility Termination Date has not occurred if any amounts are so
transferred to the Liquidation Account on any Termination Day and thereafter the
conditions set forth in Section 2 of
Exhibit II are
satisfied or are waived by the Administrator and each Purchaser Agent, such
amounts previously transferred to the Liquidation Account shall, to the extent
representing a return on the Aggregate Investment, be reinvested in accordance
with the preceding paragraph (ii) on the
day of such subsequent satisfaction or waiver of conditions; and
(B) transfer to the Liquidation Account for each Purchaser Group the entire
remainder of the Collections in the Collection Account represented by the
Seller’s share of the Collections, if any (or in the case of an Exiting
Purchaser, an amount equal to such Exiting Purchaser’s ratable share of such
Collections; provided that solely
for the purpose of determining such Exiting Purchaser’s ratable share of
Collections, such Exiting Purchaser’s Investment shall be deemed to remain
constant from the date of such Exiting Purchaser’s Scheduled Commitment
Termination Date until the date such Exiting Purchaser’s Investment has been
paid in full; it being
understood that if such day is also a Termination Day, such Exiting
Purchaser’s Investment shall be recalculated taking into account amounts
received by such Exiting Purchaser in respect of this parenthetical and
thereafter Collections shall be set aside for such Exiting Purchaser ratably in
respect of its Investment (as recalculated)); provided that so long
as the Facility Termination Date has not occurred if any amounts are so
transferred to the Liquidation Account pursuant to this clause (B) on any
Termination Day and thereafter, the conditions set forth in Section 2 of
Exhibit II
are satisfied or are waived by the Administrator and each Purchaser Agent, such
previously set aside amounts shall be distributed to the Seller on the day of
such subsequent satisfaction or waiver of conditions; provided, further, if any
amounts are so transferred to the Liquidation Account on any Termination Day and
thereafter the Aggregate Investment, Program Fees, Aggregate Discount and
Servicing Fees with respect to the Participation and all other amounts payable
by the Seller to the Purchasers, the Purchaser Agents, the Administrator of any
other Indemnified Party or Affected Person hereunder shall have been paid in
full, any remaining amounts on deposit in the Liquidation Account shall be
distributed to the Seller for its own account; and
(iv) during such times as amounts are
required to be reinvested in accordance with the foregoing paragraph (ii) or the
proviso to paragraph
(iii), release to the Seller (subject to Section 1.4(f)) for
its own account any Collections in excess of such amounts, the amounts that are
required to be set aside within the Collection Account pursuant to paragraph (i) above
and (z) in the event the Seller is not the Servicer, all reasonable and
appropriate out-of-pocket costs and expenses of such Servicer of servicing,
collecting and administering the Pool Receivables.
(c) The
Servicer shall deposit into each applicable Purchaser’s Account (or such other
account designated by such applicable Purchaser or its Purchaser Agent), on the
last day of each Settlement Period relating to a Portion of
Investment:
(i) Collections held on deposit in the
Collection Account and the Liquidation Account for the benefit of each Purchaser
pursuant to Section
1.4(b)(i) in respect of accrued Discount and the Program Fees and
Commitment Fees with respect to such Portion of Investment;
(ii) Collections held on deposit in the
Liquidation Account for the benefit of each Purchaser pursuant to Section 1.4(f) with
respect to such Portion of Investment; and
(iii) the lesser of (x) the amount of
Collections then held on deposit in the Liquidation Account for the benefit of
each Purchaser pursuant to Section 1.4(b)(iii)
and (y) such Portion of Investment.
The
Servicer shall deposit to its own account from Collections held on deposit in
the Collection Account and the Liquidation Account pursuant to Section 1.4(b)(i) in
respect of the accrued Servicing Fee, an amount equal to such accrued Servicing
Fee.
(d) Upon
receipt of funds deposited into each applicable Purchaser’s Account pursuant to
Section 1.4(c)
with respect to any Portion of Investment, each applicable Purchaser Agent shall
cause such funds to be distributed as follows:
(i) if
such distribution occurs on a day that is not a Termination Day and the
Participation does not exceed 100%, first to each
Purchaser Agent ratably according to the Discount accrued during such Yield
Period (for the benefit of the relevant Purchasers within such Purchaser Agent’s
Purchaser Group) in payment in full of all accrued Discount with respect to such
Portion of Investment maintained by such Purchasers, second, to each
Purchaser Agent ratably according to the Program Fees and Commitment Fees
accrued during such Yield Period (for the benefit of the relevant Purchasers
within such Purchaser Agent’s Purchaser Group) in payment in full of all accrued
Program Fees and Commitment Fees with respect to such Portion of Investment
maintained by such Purchasers; it being understood that each
Purchaser Agent shall distribute the amounts described in the first and second clauses of
this Section
1.4(d)(i) to the Purchasers within its Purchaser Group ratably according
to such Discount, Program Fees and Commitment Fees, respectively and third, if the
Servicer has set aside amounts in respect of the Servicing Fee pursuant to Section 1.4(b)(i) and
has not deposited such amounts to its own account pursuant to Section 1.4(c), to
the Servicer (payable in arrears on the last day of each calendar month) in
payment in full of accrued Servicing Fees so set aside with respect to such
Portion of Investment; and
(ii) if such distribution occurs on a
Termination Day or on a day when the Participation exceeds 100%, first to each
Purchaser Agent ratably according to Discount (for the benefit of the relevant
Purchasers within such Purchaser Agent’s Purchaser Group) in payment in full of
all accrued Discount with respect to such Portion of Investment funded or
maintained by the Purchasers within such Purchaser Agent’s Purchaser Group,
second to each
Purchaser Agent ratably according to the aggregate of the Investment of each
Purchaser in each such Purchaser Agent’s Purchaser Group (for the benefit of the
relevant Purchasers within such Purchaser Agent’s Purchaser Group) in payment in
full of each Purchaser’s Investment (or, if such day is not a Termination Day,
the amount necessary to reduce the Participation to 100%), third to each
Purchaser Agent ratably according to Program Fees and Commitment Fees (for the
benefit of the relevant Purchasers within such Purchaser Agent’s Purchaser
Group); it
being understood that each
Purchaser Agent shall distribute the amounts described in the first, second and third clauses of this
Section
1.4(d)(ii) to the Purchasers within its Purchaser Group ratably according
to such Discount, Investment, Program Fees and Commitment Fees, respectively,
fourth, if
Seller or any of its Affiliates is not the Servicer, to the Servicer in payment
in full of all accrued Servicing Fees with respect to such Portion of
Investment, and fifth, if the
Aggregate Investment and accrued Aggregate Discount with respect to each Portion
of Investment with respect to all Purchaser Groups have been reduced to zero,
and all accrued Servicing Fees payable to the Servicer (if other than the
Seller) have been paid in full, to each Purchaser Group ratably, based on the
amounts payable to each (for the benefit of the Purchasers within such Purchaser
Group), the Administrator and any other Indemnified Party or Affected Person in
payment in full of any other amounts owed thereto by the Seller hereunder and
then to the Servicer (if the Servicer is the Seller) in payment in full of all
accrued Servicing Fees.
After the
Aggregate Investment, Program Fees, Aggregate Discount and Servicing Fees with
respect to the Participation, and any other amounts payable by the Seller to
each Purchaser Group, the Administrator or any other Indemnified Party or
Affected Person hereunder, have been paid in full, all additional Collections
with respect to the Participation shall be paid to the Seller for its own
account.
(e) For the
purposes of this Section 1.4:
(i) if on any day the Outstanding Balance
of any Pool Receivable is reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed goods or services, or any
discount, rebate or other adjustment made by the Seller, the Originator or
Servicer, or any setoff or dispute between the Seller, the Originator or the
Servicer (if the Servicer is Pilgrim’s Pride or an Affiliate thereof) and an
Obligor, the Seller shall be deemed to have received on such day a Collection of
such Pool Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the
representations or warranties in paragraphs (f) or
(l) of Exhibit III is not
true with respect to any Pool Receivable, the Seller shall be deemed to have
received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in paragraph (i) or
(ii) of this
Section 1.4(e),
or as otherwise required by applicable law or the relevant Contract, all
Collections received from an Obligor of any Receivable shall be applied to the
Receivables of such Obligor in the order of the age of such Receivables,
starting with the oldest such Receivable, unless such Obligor designates in
writing its payment for application to specific Receivables;
(iv) if and to the extent the Administrator,
any Purchaser Agent or any Purchaser shall be required for any reason to pay
over to an Obligor (or any trustee, receiver, custodian or similar official in
any Insolvency Proceeding) any amount received by it hereunder, such amount
shall be deemed not to have been so received but rather to have been retained by
the Seller and, accordingly, the Administrator, such Purchaser Agent or such
Purchaser, as the case may be, shall have a claim against the Seller for such
amount, payable when and to the extent that any distribution from or on behalf
of such Obligor is made in respect thereof; and
(v) if and to the extent the Administrator
has exclusive control over the Lock-Box Accounts, the Administrator (or such
other party (including the Servicer) consented to in writing by the
Administrator) may make certain transfers previously required to be made by the
Servicer pursuant to this Section
1.4.
(f) If at any
time the Seller shall wish to cause the reduction of a portion of the Aggregate
Investment (but not to commence the liquidation, or reduction to zero, of the
entire Aggregate Investment), the Seller may do so as follows:
(i) the Seller shall give the Administrator
at least five Business Days’ prior written notice thereof (including the amount
of such proposed reduction and the proposed date on which such reduction will
commence),
(ii) on the proposed date of commencement of
such reduction and on each day thereafter, the Servicer shall cause Collections
not to be reinvested until the amount thereof not so reinvested shall equal the
desired amount of reduction, and
(iii) the
Servicer shall hold such Collections in the Liquidation Account for the benefit
of each Purchaser ratably according to its Investment, for payment to each such
Purchaser (or its related Purchaser Agent for the benefit of such Purchaser) on
the last day of the then current Settlement Period with respect to any Portions
of Investment funded or maintained by such Purchaser immediately following the
related current Yield Period, and the Aggregate Investment (together with the
Investment of any related Purchaser) shall be deemed reduced in the aggregate
amount to be paid to each such Purchaser (or its related Purchaser Agent for the
benefit of such Purchaser) only when in fact finally so paid;
provided
that,
A. the
amount of any such reduction shall be not less than $1,000,000 for each
Purchaser Group and shall be an integral multiple of $500,000 (or such other
amount if necessary to cause the Participation to not exceed 100% after giving
effect to such reduction), and the entire Aggregate Investment after giving
effect to such reduction shall be not less than $1,000,000 unless the Aggregate
Investment shall have been reduced to zero,
B. with
respect to any Portion of Investment, the Seller shall choose a reduction
amount, and the date of commencement thereof, so that to the extent practicable
such reduction shall commence and conclude in the same Yield Period,
and
C. if two or
more Portions of Investment shall be outstanding at the time of any proposed
reduction, such proposed reduction shall be applied, unless the Seller shall
otherwise specify in the notice given pursuant to Section 1.4(f)(i), to
the Portion of Investment with the shortest remaining Yield Period.
Section
1.5. Fees. The
Seller shall pay to each Purchaser Agent for the benefit of the related
Purchasers certain fees in the amounts and on the dates set forth in letters of
even date herewith (each such letter, as the same may be amended, amended and
restated, supplemented or modified, a “Purchaser Group Fee
Letter”), in each case between the Seller and the related Purchaser Agent
delivered pursuant to Section 1 of Exhibit II, and
provided, that, if agreed to by each Purchaser Group, such fees may be set forth
collectively in a single letter, in each case as such letter may be amended,
amended and restated, supplemented or otherwise modified from time to
time.
Section
1.6. Payments and Computations,
Etc. (a) All amounts to be paid or deposited by the
Seller or the Servicer hereunder shall be paid or deposited no later than noon
(Chicago time) on the day when due in same day funds to the
applicable Purchaser’s Account. All amounts received after noon
(Chicago time) will be deemed to have been received on the immediately
succeeding Business Day.
(b) The
Seller shall, pay interest on any amount not paid or deposited by the Seller or
Servicer when due hereunder, at an interest rate equal to 2.0% per annum above the Base
Rate, payable on demand.
(c) All
computations of interest under subsection (b) above
and all computations of Discount, fees, and other amounts hereunder shall be
made on the basis of a year of 360 days (other than Discount calculated by
reference to the Base Rate which shall be computed on the basis of a year of 365
or 366 days, as the case may be) for the actual number of days
elapsed. Whenever any payment or deposit to be made hereunder shall
be due on a day other than a Business Day, such payment or deposit shall be made
on the next succeeding Business Day and such extension of time shall be included
in the computation of such payment or deposit.
(d) Notwithstanding
anything to the contrary in this Section 1.6, it is
the intention of the parties hereto to conform strictly to applicable usury laws
and, the obligations of the Seller to the Purchasers under this Agreement shall
be subject to the limitation that payments of interest (or of other amounts
constituting interest under applicable law) to any Purchaser shall not be
required to the extent that receipt thereof would be in excess of the Highest
Lawful Rate (as defined below), or otherwise contrary to provisions of law
applicable to such Purchaser limiting rates of interest which may be charged or
collected by such Purchaser. Accordingly, if amounts paid in respect
of interest under this Agreement would exceed the Highest Lawful Rate or
otherwise be usurious under applicable law (including the federal and state laws
of the United States of America, or of any other jurisdiction whose laws may be
mandatorily applicable) then, notwithstanding anything to the contrary in this
Agreement, it is agreed as follows as to any Purchaser: (i) the provisions of
this subsection
(d) shall govern and control over any other provision in this Agreement;
(ii) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, charged or received under this Agreement
by such Purchaser shall under no circumstances exceed the maximum amount of
interest allowed by applicable law (such maximum lawful interest rate, if any,
with respect to such Purchaser herein called the “Highest Lawful
Rate”), and all amounts owed under this Agreement shall be held subject
to reduction and (x) the amount of interest which would otherwise be
payable to such Purchaser hereunder shall be automatically reduced to the amount
allowed under applicable law and (y) any unearned interest paid by the
Seller in excess of the Highest Lawful Rate shall be credited to the Seller by
such Purchaser; and (iii) if at any time the interest provided pursuant to this
Agreement, together with any other fees, late charges and other sums payable
pursuant to or in connection with this Agreement and deemed interest under
applicable law, exceeds that amount which would have accrued at the Highest
Lawful Rate, the amount of interest and any such fees, charges and sums to
accrue to such Purchaser pursuant to this Agreement shall be limited,
notwithstanding anything to the contrary in this Agreement to that amount which
would have accrued at the Highest Lawful Rate for such Purchaser, but any
subsequent reductions, as applicable, shall not reduce the interest to accrue
pursuant to this Agreement below the Purchaser’s Highest Lawful Rate until the
total amount of interest payable to such Purchaser (including all consideration
which constitutes interest) equals the amount of interest which would have been
payable to such Purchaser (including all consideration which constitutes
interest) assuming a varying rate per annum equal to the interest provided
pursuant to this Agreement at all times in effect, plus the amount of
fees which would have been received but for the effect of this subsection (d). For
purposes of Chapter 303 of the Texas Finance Code, as amended, to the extent
applicable to such Purchaser, the Seller agrees that the Highest Lawful Rate for
such Purchaser shall be a rate equal to the “weekly ceiling” as calculated
pursuant to Section 303.003 of the Texas Finance Code, provided that such
Purchaser may also rely, to the extent permitted by applicable laws, on
alternative maximum rates of interest under other laws applicable to such
Purchaser if greater.
Section
1.7. Dividing or Combining
Portions of the Investment of the Participation. The Seller
may, on the last day of any Yield Period, either (i) divide the Investment of
the Participation with respect to any Purchaser into two or more portions (each,
a “Portion of
Investment”) equal, in aggregate, to the Investment of the Participation,
provided that
after giving effect to such division the amount of each such Portion of
Investment shall be not less than $1,000,000, or (ii) combine any two or more
Portions of Investment outstanding on such last day and having Yield Periods
ending on such last day into a single Portion of Investment equal to the
aggregate of the Investment of such Portions of Investment.
Section
1.8. Increased
Costs. (a) If the Administrator, any Purchaser, any
Purchaser Agent, any Liquidity Bank, any other Program Support Provider or any
of their respective Affiliates (each an “Affected Person”)
reasonably determines that the existence of or compliance with (i) any law or
regulation or any change therein or in the interpretation or application
thereof, in each case adopted, issued or occurring after the date hereof or (ii)
any request, guideline or directive from any central bank or other Governmental
Authority (whether or not having the force of law) issued or occurring after the
date of this Agreement affects or would affect the amount of capital required or
expected to be maintained by such Affected Person and such Affected Person
determines that the amount of such capital is increased by or based upon the
existence of any commitment to make purchases of or otherwise to maintain the
investment in Pool Receivables related to this Agreement or any related
liquidity facility or credit enhancement facility and other commitments of the
same type, then, upon demand by such Affected Person (with a copy to the
Administrator and the applicable Purchaser Agent, if any), the Seller shall
within 15 days of demand pay to the Administrator or the applicable Purchaser
Agent, for the account of such Affected Person, from time to time as specified
by such Affected Person, additional amounts sufficient and reasonably calculated
to compensate such Affected Person in the light of such circumstances, to the
extent that such Affected Person reasonably determines such increase in capital
to be allocable to the existence of any of such commitments. A
certificate as to such amounts submitted to the Seller and the Administrator by
such Affected Person (or applicable Purchaser Agent on its behalf) shall be
conclusive and binding for all purposes absent manifest error. For
the avoidance of doubt, any interpretation of Accounting Research Bulletin No.
51 by the Financial Accounting Standards Board (“FASB”) (including,
without limitation, FASB Interpretation No. 46), shall (notwithstanding anything
in this paragraph or otherwise in this Agreement to the contrary, whether or not
issued or occurring on or prior to or after the date hereof) constitute an
adoption, change, request, guideline or directive subject to this Section 1.8.
(b) If, due
to either (i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements referred to in Section 1.9) in
or in the interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to any Affected Person of agreeing to purchase or purchasing, or
maintaining the ownership of the Participation in respect of which Discount is
computed by reference to the Eurodollar Rate, then, upon demand by such Affected
Person (or any applicable Purchaser Agent on its behalf), the Seller shall
immediately pay to such Affected Person (or the applicable Purchaser Agent),
from time to time as specified, additional amounts sufficient to compensate such
Affected Person for such increased costs. A certificate as to such amounts
submitted to the Seller by such Affected Person (or the applicable Purchaser
Agent on its behalf) shall be conclusive and binding for all purposes absent
manifest error.
(c) Each
Affected Person (or any applicable Purchaser Agent on its behalf) will notify
Seller and the Administrator, promptly after it has received official notice of
any event occurring after the date hereof which will entitle such Affected
Person to such additional amounts as compensation pursuant to this Section
1.8. Such additional amounts shall accrue from the date as to
which such Affected Person becomes subject to such additional costs as a result
of such event (or if such notice of such event is not given to Seller by such
Affected Person (or applicable Purchaser Agent on its behalf) within 90 days
after such Affected Person received such official notice of such event, from the
date which is 90 days prior to the date such notice is given to Seller by such
Affected Person (or applicable Purchaser Agent on its behalf)).
Section
1.9. Requirements of
Law. (a) In the event that any Affected Person
reasonably determines that the existence of or compliance with (i) any law or
regulation or any change therein or in the interpretation or application
thereof, in each case adopted, issued or occurring after the date hereof or (ii)
any request, guideline or directive from any central bank or other Governmental
Authority (whether or not having the force of law) issued or occurring after the
date of this Agreement:
(i) does or shall subject such Affected
Person to any tax of any kind whatsoever with respect to this Agreement, any
increase in the Participation or in the amount of Investment relating thereto,
or does or shall change the basis of taxation of payments to such Affected
Person on account of Collections, Discount or any other amounts payable
hereunder (excluding taxes imposed on the overall net income or gross receipts
of such Affected Person, and franchise taxes imposed on such Affected Person, by
the jurisdiction under the laws of which such Affected Person is organized or a
political subdivision thereof);
(ii) does or shall impose, modify or hold
applicable any reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the account
of, purchases, advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Affected Person which are not
otherwise included in the determination of the Eurodollar Rate or the Base Rate
hereunder; or
(iii) does or shall impose on such Affected
Person any other condition;
and the
result of any of the foregoing is (x) to increase the cost to such Affected
Person of acting as Administrator or as Purchaser Agent, or of agreeing to
purchase or purchasing or maintaining the ownership of undivided ownership
interests with regard to the Participation (or interests therein) or any Portion
of Investment in respect of which Discount is computed by reference to the
Eurodollar Rate or the Base Rate or (y) to reduce any amount receivable
hereunder (whether directly or indirectly) funded or maintained by reference to
the Eurodollar Rate or the Base Rate, then, in any such case, within 15 days of
demand by such Affected Person (or any applicable Purchaser Agent on its behalf)
the Seller shall pay such Affected Person any additional amounts sufficient and
reasonably calculated to compensate such Affected Person for such additional
cost or reduced amount receivable; provided, however, that such amount shall be
reduced by the net amount of any off setting tax benefit which such Affected
Person receives as a result of such additional cost. All such amounts
shall be payable as incurred. A certificate from such Affected Person
(or the applicable Purchaser Agent on its behalf) to the Seller certifying, in
reasonably specific detail, the basis for, calculation of, and amount of such
additional costs or reduced amount receivable shall be conclusive in the absence
of manifest error; provided, however,
that no Affected Person shall be required to disclose any confidential or tax
planning information in any such certificate.
(b) Each
Affected Person (or any applicable Purchaser Agent on its behalf) will notify
Seller and the Administrator promptly after it has received official notice of
any event occurring after the date hereof which will entitle such Affected
Person to such additional amounts as compensation pursuant to this Section
1.9. Such additional amounts shall accrue from the date as to
which such Affected Person becomes subject to such additional costs as a result
of such event (or if such notice of such event is not given to Seller by such
Affected Person (or applicable Purchaser Agent on its behalf) within 90 days
after such Affected Person received such official notice of such event, from the
date which is 90 days prior to the date such notice is given to Seller by such
Affected Person (or applicable Purchaser Agent on its behalf).
Section
1.10. Inability to Determine
Eurodollar Rate. In the event that the Administrator (or any
Purchaser Agent) shall have determined prior to the first day of any Yield
Period (which determination shall be conclusive and binding upon the parties
hereto) by reason of circumstances affecting the interbank Eurodollar market,
either (a) dollar deposits in the relevant amounts and for the relevant Yield
Period are not available, (b) adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Yield Period or (c) the Eurodollar
Rate determined pursuant hereto does not accurately reflect the cost to any
Purchaser (as conclusively determined by such Purchaser or the applicable
Purchaser Agent) of maintaining any Portion of Investment during such Yield
Period, the Administrator or the applicable Purchaser Agent shall promptly give
telephonic notice of such determination, confirmed in writing, to the Seller
prior to the first day of such Yield Period. Upon delivery of such
notice (a) no Portion of Investment of such Purchaser shall be funded thereafter
at the Bank Rate determined by reference to the Eurodollar Rate, unless and
until the Administrator or the applicable Purchaser Agent shall have given
notice to the Seller that the circumstances giving rise to such determination no
longer exist, and (b) with respect to any outstanding Portions of Investment of
such Purchaser then funded at the Bank Rate determined by reference to the
Eurodollar Rate, such Bank Rate shall automatically be converted to the Bank
Rate determined by reference to the Base Rate at the respective last days of the
then-current Yield Periods relating to such Portions of Investment.
ARTICLE
II.
REPRESENTATIONS
AND WARRANTIES; COVENANTS;
TERMINATION
EVENTS
Section
2.1. Representations and
Warranties; Covenants. Each of the Seller and the Servicer
hereby makes the representations and warranties, and hereby agrees to perform
and observe the covenants, applicable to it set forth in Exhibits III and
IV,
respectively hereto.
Section
2.2. Termination
Events. If any of the Termination Events set forth in Exhibit V hereto
shall occur and be continuing, the Administrator may (with the consent of the
Majority Purchasers) or shall (at the direction of the Majority Purchasers), by
notice to the Seller, declare the Facility Termination Date to have occurred (in
which case the Facility Termination Date shall be deemed to have
occurred); provided that,
automatically upon the occurrence of any event (without any requirement for the
passage of time or the giving of notice) described in subsection (g)
or (k) of Exhibit V, the
Facility Termination Date shall occur. Upon any such declaration,
occurrence or deemed occurrence of the Facility Termination Date, the
Administrator, each Purchaser Agent and each Purchaser shall have, in addition
to the rights and remedies which they may have under this Agreement, all other
rights and remedies provided after default under the UCC and under other
applicable law, which rights and remedies shall be cumulative.
ARTICLE
III.
INDEMNIFICATION
Section
3.1. Indemnities by the
Seller. (a) Without limiting any other rights that
the Administrator, each Purchaser Agent, each Liquidity Bank, each Program
Support Provider, each Purchaser and any of their respective Affiliates,
employees, agents, successors, transferees or assigns (each, an “Indemnified Party”)
may have hereunder or under applicable law, the Seller hereby agrees to
indemnify each Indemnified Party from and against any and all claims, damages,
expenses, losses and liabilities (including Attorney Costs) (all of the
foregoing being collectively referred to as “Indemnified Amounts”)
arising out of or resulting from this Agreement or any other Transaction
Document (whether directly or indirectly) or the use of proceeds of purchases or
reinvestments or the ownership of the Participation, or any interest therein, or
in respect of any Receivable or any Contract, excluding, however, (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party, (b) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Receivables
to be written off consistent with the Credit and Collection Policy, or (c) any
overall gross receipts or net income taxes or franchise taxes imposed on such
Indemnified Party by the jurisdiction under the laws of which such Indemnified
Party is organized or any political subdivision thereof. Without
limiting or being limited by the foregoing, and subject to the exclusions set
forth in the preceding sentence, the Seller shall pay on demand to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
(i) the
failure of any Receivable included in the calculation of the Net Receivables
Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure
of any information contained in a Servicer Report to be true and correct, or the
failure of any other information provided to the Purchasers, the Purchaser
Agents or the Administrator with respect to Receivables or this Agreement to be
true and correct;
(ii) the
failure of any representation or warranty or statement made or deemed made by
the Seller (or any of its officers) under or in connection with this Agreement
to have been true and correct in all respects when made;
(iii) the
failure by the Seller to comply with any applicable law, rule or regulation with
respect to any Pool Receivable or the related Contract; or the failure of any
Pool Receivable or the related Contract to conform to any such applicable law,
rule or regulation;
(iv) the
failure to vest in the Administrator, for the benefit of the Purchasers, a valid
and enforceable (A) perfected undivided percentage ownership interest, to the
extent of the Participation, in the Receivables in, or purporting to be in, the
Receivables Pool and the Related Security and Collections with respect thereto
and (B) first priority perfected security interest in the items described in
Section 1.2(d),
in each case, free and clear of any Adverse Claim;
(v) the
failure to have filed, or any delay in filing, financing statements or other
similar instruments or documents under the UCC of any applicable jurisdiction or
other applicable laws with respect to any Receivables in, or purporting to be
in, the Receivables Pool and the Related Security and Collections in respect
thereof, whether at the time of any purchase or reinvestment or at any
subsequent time;
(vi) any
dispute, claim, offset or defense (other than discharge in bankruptcy or similar
insolvency proceeding of the Obligor) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool (including, without
limitation, a defense based on such Receivable or the related Contract not being
a legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale of the
goods or services related to such Receivable or the furnishing or failure to
furnish such goods or services or relating to collection activities with respect
to such Receivable (if such collection activities were performed by the Seller
or any of its Affiliates acting as Servicer or by any agent or independent
contractor retained by the Seller or any of its Affiliates);
(vii) any
failure of the Seller to perform its duties or obligations in accordance with
the provisions hereof or to perform its duties or obligations under the
Contracts;
(viii) any
products liability or other claim, investigation, litigation or proceeding
arising out of or in connection with merchandise, insurance or services which
are the subject of any Contract;
(ix) the
commingling of Collections of Pool Receivables at any time with other
funds;
(x) any
investigation, litigation or proceeding related to this Agreement or the use of
proceeds of purchases or reinvestments or the ownership of the Participation or
in respect of any Receivable, Related Security or Contract;
(xi) any
reduction in Investment as a result of the distribution of Collections pursuant
to Section
1.4(e)(iv), in the event that all or a portion of such distributions
shall thereafter be rescinded or otherwise must be returned for any reason;
or
(xii) any
tax or governmental fee or charge (other than any tax upon or measured by net
income or gross receipts or franchise tax), all interest and penalties thereon
or with respect thereto, and all reasonable out-of-pocket costs and expenses,
including the reasonable fees and expenses of counsel in defending against the
same, which may arise by reason of the purchase or ownership of the
Participation, or other interests in the Receivables Pool or in any Related
Security or Contract.
(b) Indemnity by the
Servicer. Without limiting any other rights which any such
person may have hereunder under applicable law, Servicer hereby agrees to
indemnify each Indemnified Party, forthwith on demand, from and against any and
all Indemnified Amounts (excluding, however, (a) Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part of such
Indemnified Party, (b) recourse (except as otherwise specifically provided in
this Agreement) for uncollectible Receivables to be written off consistent with
the Credit and Collection Policy, or (c) any overall gross receipts or net
income taxes or franchise taxes imposed on such Indemnified Party by the
jurisdiction under the laws of which such Indemnified Party is organized or any
political subdivision thereof) awarded against or incurred by any of them
arising out of or relating to:
(i) any
representation or warranty made by Servicer under or in connection with any
Transaction Document or any information or report delivered by or on behalf of
Servicer pursuant hereto, which shall have been false, incorrect or misleading
in any material respect when made or deemed made;
(ii) the
failure by Servicer to comply with any applicable law, rule or regulation
(including truth in lending, fair credit billing, usury, fair credit reporting,
equal credit opportunity, fair debt collection practices and privacy) with
respect to any Pool Receivable or other related Contract; or
(iii) any
failure of Servicer to perform its duties, covenants and obligations in
accordance with the applicable provisions of this Agreement.
ARTICLE
IV.
ADMINISTRATION
AND COLLECTIONS
Section
4.1. Appointment of
Servicer. (a) The servicing, administering and
collection of the Pool Receivables shall be conducted by the Person so
designated from time to time as Servicer in accordance with this Section 4.1. During the
continuation of a Termination Event, the Administrator may (with the consent of
the Majority Purchasers) or shall (at the direction of the Majority Purchasers)
designate as Servicer any Person (including itself) to succeed the Servicer or
any successor Servicer, on the condition in each case that any such Person so
designated shall agree to perform the duties and obligations of the Servicer
pursuant to the terms hereof. Until the Administrator gives notice to the Seller
and Pilgrim’s Pride (in accordance with this Section 4.1) of
the designation of a new Servicer, Pilgrim’s Pride is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Servicer pursuant to
the terms hereof.
(b) Upon the
designation of a successor Servicer as set forth in Section 4.1(a)
hereof, the Servicer agrees that it will terminate its activities as Servicer
hereunder in a manner which the Administrator determines will facilitate the
transition of the performance of such activities to the new Servicer, and the
Servicer shall cooperate with and assist such new Servicer. Such
cooperation shall include (without limitation) access to and transfer of records
and use by the new Servicer of all licenses or software necessary or desirable
to collect the Pool Receivables and the Related Security.
(c) Pilgrim’s
Pride acknowledges that, in making its decision to execute and deliver this
Agreement, the Administrator and each Purchaser Group have relied on Pilgrim’s
Pride’s agreement to act as Servicer hereunder. Accordingly,
Pilgrim’s Pride agrees that it will not voluntarily resign as
Servicer.
(d) The
Servicer may delegate its duties and obligations hereunder to any subservicer
(each, a “Sub-Servicer”);
provided that, in each such delegation (i) such Sub-Servicer shall agree in
writing, to perform the duties and obligations of the Servicer pursuant to the
terms hereof, (ii) the Servicer shall remain primarily liable to each Purchaser
Group and the Administrator for the performance of the duties and obligations so
delegated, (iii) the Seller, the Administrator and each Purchaser Group shall
have the right to look solely to the Servicer for performance and (iv) the terms
of any agreement with any Sub-Servicer shall provide that the Administrator may
terminate such agreement upon the termination of the Servicer hereunder by
giving notice of its desire to terminate such agreement to the Servicer (and the
Servicer shall provide appropriate notice to such Sub-Servicer).
Section
4.2. Duties of
Servicer. (a) The Servicer shall take or cause to
be taken all such action as may be necessary or advisable to service, administer
and collect each Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection
Policy. The Servicer shall set aside for the accounts of the Seller
and each Purchaser Group the amount of the Collections to which each such
Purchaser Group is entitled in accordance with Article I
hereto. The Servicer may, in accordance with the Credit and
Collection Policy, extend the maturity of any Pool Receivable (but not beyond
thirty (30) days) and extend the maturity or adjust the Outstanding Balance of
any Defaulted Receivable as the Servicer may determine to be appropriate to
maximize Collections thereof; provided, however, that (i)
such extension or adjustment shall not alter the status of such Pool Receivable
as a Delinquent Receivable or a Defaulted Receivable or limit the rights of any
Purchaser Group or the Administrator under this Agreement and (ii) if a
Termination Event has occurred and is continuing and Pilgrim’s Pride or any of
its Affiliates is still serving as Servicer, the Servicer may make such
extension or adjustment only upon the prior written approval of the
Administrator (with the consent of the Majority Purchasers). The
Seller shall deliver to the Servicer and the Servicer shall hold for the benefit
of the Seller and the Administrator (for the benefit of each Purchaser Group and
individually) in accordance with their respective interests, all records and
documents (including without limitation computer tapes or disks) with respect to
each Pool Receivable. Notwithstanding anything to the contrary
contained herein, the Administrator may direct the Servicer to commence or
settle any legal action to enforce collection of any Pool Receivable or to
foreclose upon or repossess any Related Security; provided, however, that no such
direction may be given unless a Termination Event has occurred and is
continuing.
(b) The
Servicer’s obligations hereunder shall terminate on the Final Payout Date. After
such termination the Servicer shall promptly deliver to the Seller all books,
records and related materials that the Seller previously provided to the
Servicer in connection with this Agreement.
Section
4.3. Establishment and Use of
Certain Accounts.
(a) Lock-Box
Accounts. (i) Prior to the initial purchase hereunder, the
Lock-Box Accounts listed on Schedule II hereto
shall have been opened and the Seller shall have instructed each Obligor to make
payments of all Receivables to such Lock-Box Accounts and (ii) (A) no later than
October 15, 2008, the Seller shall enter into Lock-Box Agreements in form and
substance reasonably satisfactory to the Administrator and covering the Lock-Box
Accounts listed on Schedule II hereto
with all of the Lock-Box Banks, and deliver original counterparts thereof to the
Administrator or (B) no later than October 28, 2008, the Seller shall (x) cause
to be opened new Lock-Box Accounts at new lock-box banks reasonably satisfactory
to the Administrator, (y) enter into lock-box agreements in form and substance
reasonably satisfactory to the Administrator with respect to each such lock-box
account and deliver original counterparts thereof to the Administrator and (z)
instruct each Obligor to make payments of all Receivables to such lock-box
accounts; for the avoidance of doubt, the term “Lock-Box Account” includes,
without limitation, the Collection Account and the Liquidation
Account. A breach of this clause (a) shall constitute a Termination
Event hereunder.
(b) Collection
Account. The Servicer agrees to establish the Collection
Account on or before the date of the first purchase hereunder. The
Collection Account shall be used to accept the transfer of Collections of Pool
Receivables from the Lock-Box Accounts pursuant to Section 1.4(b) and
for such other purposes described in the Transaction Documents.
(c) Liquidation
Account. The Servicer agrees to establish the Liquidation
Account on or before the date of the first purchase hereunder. The
Liquidation Account shall be used to receive transfers of certain amounts of
each Purchaser’s share of Collections of Pool Receivables prior to the
Settlement Dates and for such other purposes described in the Transaction
Documents. No funds other than those transferred in accordance with
Section 1.4
shall be intentionally transferred into the Liquidation Account.
(d) Permitted
Investments. Any amounts in the Liquidation Account or the
Collection Account, as the case may be, may be invested by the Liquidation
Account Bank or Collection Account Bank, respectively, at Servicer’s direction
and with the Administrator’s prior written consent, in Permitted Investments, so
long as the Administrator (for the benefit of the Purchasers) shall have a first
priority perfected security interest in such Permitted Investments and such
Permitted Investments are subject to no Adverse Claims other than those of the
Purchaser provided hereunder. So long as the Administrator has
exclusive control over the Lock-Box Accounts, any amounts on deposit therein may
be invested in Permitted Investments at the discretion of the Administrator, and
in such case the Seller and/or Servicer shall execute the applicable documents,
if any, in connection therewith as requested by the Administrator.
(e) Control of Lock-Box
Accounts. The Administrator may or, upon the direction of the
Majority Purchasers, shall, at any time give notice to each Lock-Box Bank, the
Collection Account Bank and the Liquidation Account Bank that the Administrator
is exercising its rights under the Lock-Box Agreements, and the Liquidation
Account Agreement to do any or all of the following: (i) to have the exclusive
ownership and control of the Lock-Box Accounts to the extent provided in the
related Lock-Box Agreement, the Collection Account and the Liquidation Account
transferred to the Administrator and to exercise exclusive dominion and control
over the funds deposited therein, (ii) to have the proceeds that are sent to the
respective Lock-Box Accounts be redirected pursuant to its instructions rather
than deposited in the applicable Lock-Box Account, and (iii) to take any or all
other actions permitted under the applicable Lock-Box Agreement and the
Liquidation Account Agreement. The Seller hereby agrees that if the
Administrator at any time takes any action set forth in the preceding sentence,
the Administrator shall have exclusive control of the proceeds (including
Collections) of all Pool Receivables and the Seller hereby further agrees to
take any other action that the Administrator or any Purchaser Agent may
reasonably request to transfer such control. Any proceeds of Pool
Receivables received by the Seller or the Servicer, thereafter shall be sent
immediately to the Administrator. The parties hereto hereby
acknowledge that if at any time the Administrator takes control of any Lock-Box
Account, the Collection Account and the Liquidation Account, the Administrator
shall not have any rights to the funds therein in excess of the unpaid amounts
due to the Administrator, the Purchaser Groups or any other Person
hereunder. The parties hereto hereby further acknowledge that, as of
the Closing Date, the Administrator has exclusive control of each of the
Lock-Box Accounts.
Section
4.4. Enforcement
Rights. (a) At any time:
(i) the Administrator may direct the
Obligors that payment of all amounts payable under any Pool Receivable be made
directly to the Administrator or its designee;
(ii) the Administrator may instruct the
Seller or the Servicer to give notice of the Purchaser Groups’ interest in Pool
Receivables to each Obligor, which notice shall direct that payments be made
directly to the Administrator or its designee (on behalf of such Purchaser
Groups), and upon such instruction from the Administrator, the Seller or the
Servicer, as applicable, shall give such notice at the expense of the Seller;
provided, that
if the Seller or the Servicer fails to so notify each Obligor, the Administrator
(at the Seller’s expense) may so notify the Obligors; and
(iii) the Administrator may request the
Seller or the Servicer to, and upon such request the Seller or the Servicer, as
applicable, shall, (A) assemble all of the records necessary or desirable to
collect the Pool Receivables and the Related Security, and transfer or license
to any new Servicer the use of all software necessary or desirable to collect
the Pool Receivables and the Related Security, and make the same available to
the Administrator or its designee (for the benefit of the Purchasers) at a place
selected by the Administrator, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting Collections with
respect to the Pool Receivables in a manner acceptable to the Administrator and,
promptly upon receipt, remit all such cash, checks and instruments, duly
endorsed or with duly executed instruments of transfer, to the Administrator or
its designee.
(b) The
Seller hereby authorizes the Administrator (on behalf of each Purchaser Group),
and irrevocably appoints the Administrator as its attorney-in-fact with full
power of substitution and with full authority in the place and stead of the
Seller, which appointment is coupled with an interest, to take after the
occurrence and during the continuance of a Termination Event any and all steps
in the name of the Seller and on behalf of the Seller necessary or desirable, in
the determination of the Administrator, to collect any and all amounts or
portions thereof due under any and all Pool Receivables or Related Security,
including, without limitation, endorsing the name of the Seller on checks and
other instruments representing Collections and enforcing such Pool Receivables,
Related Security and the related Contracts. Notwithstanding anything
to the contrary contained in this subsection (b), none
of the powers conferred upon such attorney-in-fact pursuant to the immediately
preceding sentence shall subject such attorney-in-fact to any liability if any
action taken by it shall prove to be inadequate or invalid, nor shall they
confer any obligations upon such attorney-in-fact in any manner whatsoever,
except to the extent arising out of the negligence or willful misconduct of such
attorney-in-fact.
Section
4.5. Responsibilities of the
Seller. Anything herein to the contrary notwithstanding, the
Seller shall (i) perform all of its obligations, if any, under the Contracts
related to the Pool Receivables to the same extent as if interests in such Pool
Receivables had not been transferred hereunder, and the exercise by the
Administrator, the Purchaser Agents or the Purchasers of their respective rights
hereunder shall not relieve the Seller from such obligations and (ii) pay when
due any taxes, including, without limitation, any sales taxes payable in
connection with the Pool Receivables and their creation and
satisfaction. The Administrator, the Purchaser Agents and the
Purchasers shall not have any obligation or liability with respect to any Pool
Receivable, any Related Security or any related Contract, nor shall any of them
be obligated to perform any of the obligations of the Seller under any of the
foregoing.
Section
4.6. Servicing
Fee. The Servicer shall be paid a fee, through distributions
contemplated by Section 1.4(d), equal
to 0.50% per
annum of the
average outstanding Net Receivables Pool Balance.
ARTICLE
V.
THE
AGENTS
Section
5.1. Appointment and
Authorization. (a) Each Purchaser and Purchaser
Agent hereby irrevocably designates and appoints BMO Capital Markets Corp., as
the “Administrator” hereunder and authorizes the Administrator to take such
actions and to exercise such powers as are delegated to the Administrator hereby
and to exercise such other powers as are reasonably incidental
thereto. The Administrator shall hold, in its name, for the benefit
of each Purchaser, ratably, the Participation. The Administrator
shall not have any duties other than those expressly set forth herein or any
fiduciary relationship with any Purchaser or Purchaser Agent, and no implied
obligations or liabilities shall be read into this Agreement, or otherwise
exist, against the Administrator. The Administrator does not assume,
nor shall it be deemed to have assumed, any obligation to, or relationship of
trust or agency with, the Seller or Servicer. Notwithstanding any
provision of this Agreement or any other Transaction Document to the contrary,
in no event shall the Administrator ever be required to take any action which
exposes the Administrator to personal liability or which is contrary to the
provision of any Transaction Document or applicable law.
(b) Each
Purchaser hereby irrevocably designates and appoints the respective institution
identified as the Purchaser Agent for such Purchaser’s Purchaser Group on the
signature pages hereto or in the Assumption Agreement or Transfer Supplement
pursuant to which such Purchaser becomes a party hereto, and each authorizes
such Purchaser Agent to take such action on its behalf under the provisions of
this Agreement and to exercise such powers and perform such duties as are
expressly delegated to such Purchaser Agent by the terms of this Agreement, if
any, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no
Purchaser Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Purchaser or
other Purchaser Agent or the Administrator, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of such
Purchaser Agent shall be read into this Agreement or otherwise exist against
such Purchaser Agent.
(c) Except as
otherwise specifically provided in this Agreement, the provisions of
this Article V are
solely for the benefit of the Purchaser Agents, the Administrator and the
Purchasers, and none of the Seller or Servicer shall have any rights as a
third-party beneficiary or otherwise under any of the provisions of this Article V,
except that this Article V shall not
affect any obligations that any Purchaser Agent, the Administrator or any
Purchaser may have to the Seller or the Servicer under the other provisions of
this Agreement. Furthermore, no Purchaser shall have any rights as a third-party
beneficiary or otherwise under any of the provisions hereof in respect of a
Purchaser Agent which is not the Purchaser Agent for such
Purchaser.
(d) In
performing its functions and duties hereunder, the Administrator shall act
solely as the agent of the Purchasers and the Purchaser Agents and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Seller or Servicer or any of their successors
and assigns. In performing its functions and duties hereunder, each Purchaser
Agent shall act solely as the agent of its respective Purchaser and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for the Seller, the Servicer, any other Purchaser, any
other Purchaser Agent or the Administrator, or any of their respective
successors and assigns.
Section
5.2. Delegation of
Duties. The Administrator may execute any of its duties
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrator
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section
5.3. Exculpatory
Provisions. None of the Purchaser Agents, the Administrator or
any of their directors, officers, agents or employees shall be liable for any
action taken or omitted (i) with the consent or at the direction of the
Majority Purchasers (or in the case of any Purchaser Agent, the Purchasers
within its Purchaser Group that have a majority of the aggregate Commitment of
such Purchaser Group) or (ii) in the absence of such Person’s gross
negligence or willful misconduct. The Administrator shall not be
responsible to any Purchaser, Purchaser Agent or other Person for (i) any
recitals, representations, warranties or other statements made by the Seller,
Servicer, or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction
Document, (iii) any failure of the Seller, the Servicer, any Originator or
any of their Affiliates to perform any obligation hereunder or under the other
Transaction Documents to which it is a party (or under any Contract), or
(iv) the satisfaction of any condition specified in
Exhibit II. The Administrator shall not have any obligation to
any Purchaser or Purchaser Agent to ascertain or inquire about the observance or
performance of any agreement contained in any Transaction Document or to inspect
the properties, books or records of the Seller, Servicer, Originator or any of
their Affiliates.
Section
5.4. Reliance by
Agents. (a) Each Purchaser Agent and the
Administrator shall in all cases be entitled to rely, and shall be fully
protected in relying, upon any document or other writing or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person and upon advice and statements of legal counsel (including
counsel to the Seller), independent accountants and other experts selected by
the Administrator. Each Purchaser Agent and the Administrator shall
in all cases be fully justified in failing or refusing to take any action under
any Transaction Document unless it shall first receive such advice or
concurrence of the Majority Purchasers (or in the case of any Purchaser Agent,
the Purchasers within its Purchaser Group that have a majority of the aggregate
Commitment of such Purchaser Group), and assurance of its indemnification, as it
deems appropriate.
(b) The
Administrator shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of the Majority
Purchasers or any Purchaser Agent, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all Purchasers, the
Administrator and Purchaser Agents.
(c) The
Purchasers within each Purchaser Group with a majority of the Commitment of such
Purchaser Group shall be entitled to request or direct the related Purchaser
Agent to take action, or refrain from taking action, under this Agreement on
behalf of such Purchasers. Such Purchaser Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of such Majority Purchasers, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of
such Purchaser Agent’s Purchasers.
(d) Unless
otherwise advised in writing by a Purchaser Agent or by any Purchaser on whose
behalf such Purchaser Agent is purportedly acting, each party to this Agreement
may assume that (i) such Purchaser Agent is acting for the benefit of each
of the Purchasers in respect of which such Purchaser Agent is identified as
being the “Purchaser Agent” in the definition of “Purchaser Agent” hereto, as
well as for the benefit of each assignee or other transferee from any such
Person, and (ii) each action taken by such Purchaser Agent has been duly
authorized and approved by all necessary action on the part of the Purchasers on
whose behalf it is purportedly acting. Each Purchaser Agent and its Purchaser(s)
shall agree amongst themselves as to the circumstances and procedures for
removal, resignation and replacement of such Purchaser Agent.
Section
5.5. Notice of Termination
Events. Neither any Purchaser Agent nor the Administrator
shall be deemed to have knowledge or notice of the occurrence of any Termination
Event unless such Person has received notice from any Purchaser, Purchaser
Agent, the Servicer or the Seller stating that a Termination Event or Unmatured
Termination Event has occurred hereunder and describing such Termination Event
or Unmatured Termination Event. In the event that the Administrator
receives such a notice, it shall promptly give notice thereof to each Purchaser
Agent whereupon each such Purchaser Agent shall promptly give notice thereof to
its Purchasers. In the event that a Purchaser Agent receives such a
notice (other than from the Administrator), it shall promptly give notice
thereof to the Administrator. The Administrator shall take such
action concerning a Termination Event or Unmatured Termination Event as may be
directed by the Majority Purchasers unless such action otherwise requires the
consent of all Purchasers), but until the Administrator receives such
directions, the Administrator may (but shall not be obligated to) take such
action, or refrain from taking such action, as the Administrator deems advisable
and in the best interests of the Purchasers and Purchaser Agents.
Section
5.6. Non-Reliance on
Administrator, Purchaser Agents and Other Purchasers. Each
Purchaser expressly acknowledges that none of the Administrator, the Purchaser
Agents nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrator, or any Purchaser Agent hereafter taken,
including any review of the affairs of the Seller, Servicer or any Originator,
shall be deemed to constitute any representation or warranty by the
Administrator or such Purchaser Agent, as applicable. Each Purchaser
represents and warrants to the Administrator and the Purchaser Agents that,
independently and without reliance upon the Administrator, Purchaser Agents or
any other Purchaser and based on such documents and information as it has deemed
appropriate, it has made and will continue to make its own appraisal of and
investigation into the business, operations, property, prospects, financial and
other conditions and creditworthiness of the Seller, Servicer or the
Originators, and the Receivables and its own decision to enter into this
Agreement and to take, or omit, action under any Transaction
Document. Except for items specifically required to be delivered
hereunder, the Administrator shall not have any duty or responsibility to
provide any Purchaser Agent with any information concerning the Seller, Servicer
or the Originators or any of their Affiliates that comes into the possession of
the Administrator or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
Section
5.7. Administrators and
Affiliates. Each of the Purchasers and the Administrator and
their Affiliates may extend credit to, accept deposits from and generally engage
in any kind of banking, trust, debt, entity or other business with the Seller,
Servicer or any Originator or any of their Affiliates. With respect
to the acquisition of the Eligible Receivables pursuant to this Agreement, each
of the Purchaser Agents and the Administrator shall have the same rights and
powers under this Agreement as any Purchaser and may exercise the same as though
it were not such an agent, and the terms “Purchaser” and “Purchasers” shall
include, to the extent applicable, each of the Purchaser Agents and the
Administrator in their individual capacities.
Section
5.8. Indemnification. Each
Related Committed Purchaser shall indemnify and hold harmless the Administrator
(but solely in its capacity as Administrator) and its officers, directors,
employees, representatives and agents (to the extent not reimbursed by the
Seller, the Servicer or any Originator and without limiting the obligation of
the Seller, the Servicer, or any Originator to do so), ratably (based on its
Commitment) from and against any and all liabilities, obligations, losses,
damages, penalties, judgments, settlements, costs, expenses and disbursements of
any kind whatsoever (including in connection with any investigative or
threatened proceeding, whether or not the Administrator or such Person shall be
designated a party thereto) that may at any time be imposed on, incurred by or
asserted against the Administrator or such Person as a result of, or related to,
any of the transactions contemplated by the Transaction Documents or the
execution, delivery or performance of the Transaction Documents or any other
document furnished in connection therewith (but excluding any such liabilities,
obligations, losses, damages, penalties, judgments, settlements, costs, expenses
or disbursements resulting solely from the gross negligence or willful
misconduct of the Administrator or such Person as finally determined by a court
of competent jurisdiction).
Section
5.9. Successor
Administrator. The Administrator may, upon at least thirty
(30) days notice to the Seller and each Purchaser and Purchaser Agent,
resign as Administrator. Such resignation shall not become effective
until (x) a successor agent is appointed by the Majority Purchasers and has
accepted such appointment and (y) so long as no Termination Event or Unmatured
Termination Event has occurred and is continuing, the Seller shall have
consented to such successor agent (such consent not to be unreasonably withheld
or delayed). Upon such acceptance of its appointment as Administrator
hereunder by a successor Administrator, such successor Administrator shall
succeed to and become vested with all the rights and duties of the retiring
Administrator, and the retiring Administrator shall be discharged from its
duties and obligations under the Transaction Documents. After any
retiring Administrator’s resignation hereunder, the provisions of Sections 5.1 and
5.2 and this Article V
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Administrator.
ARTICLE
VI.
MISCELLANEOUS
Section
6.1. Amendments,
Etc. No amendment or waiver of any provision of this Agreement
or consent to any departure by the Seller or Servicer therefrom shall be
effective unless in a writing signed by the Administrator and the Majority
Purchasers, and, in the case of any amendment, by the Seller and the Servicer
and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, however, that, to the
extent required by the securitization program of any Uncommitted Purchaser, no
such material amendment shall be effective until the Rating Agencies have
notified the Servicer, the Administrator and applicable Purchaser Agent in
writing that such action will not result in a reduction or withdrawal of the
rating of any Notes; provided, further, that no such
amendment or waiver shall, without the consent of each affected Purchaser, (A)
extend the date of any payment or deposit of Collections by the Seller or the
Servicer, (B) reduce the rate or extend the time of payment of Discount, (C)
reduce any fees payable to the Administrator, any Purchaser Agent or any
Purchaser pursuant to the applicable Purchaser Group Fee Letter, (D) change the
amount of Investment of any Purchaser, any Purchaser’s pro rata share of the
Participation or any Related Committed Purchaser’s Commitment, (E) amend, modify
or waive any provision of the definition of “Majority Purchaser” or this Section 6.1, (F)
consent to or permit the assignment or transfer by the Seller of any of its
rights and obligations under this Agreement, (G) change the definition of
“Participation”, “Special Obligor” or “Termination Event”, (H) amend or modify
any defined term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through
(G) above in a
manner that would circumvent the intention of the restrictions set forth in such
clauses, or (I) otherwise materially and adversely affect the rights of any such
Purchaser hereunder. No failure on the part of any Purchaser,
Purchaser Agent or the Administrator to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right.
Section
6.2. Notices,
Etc. All notices and other communications hereunder shall,
unless otherwise stated herein, be in writing (which shall include facsimile
communication) and sent or delivered, to each party hereto, at its address set
forth under its name on the signature pages hereof or at such other address as
shall be designated by such party in a written notice to the other parties
hereto. Notices and communications by facsimile shall be effective
when sent (and shall be followed by hard copy sent by first class mail), and
notices and communications sent by other means shall be effective when
received.
Section
6.3. Successors and Assigns;
Participations; Assignments.
(a) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Except as otherwise provided herein, the Seller may not
assign or transfer any of its rights or delegate any of its duties hereunder or
under any Transaction Document without the prior consent of the Administrator
and the Purchaser Agents.
(b) Participations. Except
as otherwise specifically provided herein, any Purchaser may sell to one or more
Persons (each a “Participant”)
participating interests in the interests of such Purchaser hereunder; provided, however, that no
Purchaser shall grant any participation under which the Participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Transaction Document. Such Purchaser shall remain solely responsible
for performing its obligations hereunder, and the Seller, each Purchaser Agent
and the Administrator shall continue to deal solely and directly with such
Purchaser in connection with such Purchaser’s rights and obligations
hereunder. A Purchaser shall not agree with a Participant to restrict
such Purchaser’s right to agree to any amendment hereto, except amendments that
require the consent of all Purchasers.
(c) Assignments by Certain
Related Committed Purchasers.
(i) Any
Related Committed Purchaser may assign to one or more Eligible Assignees (each a
“Purchasing Related
Committed Purchaser”), who is (x) reasonably acceptable to the related
Purchaser Agent in its sole discretion and (y) so long as no Termination Event
or Unmatured Termination Event has occurred and is continuing, consented to by
the Seller (such consent not to be unreasonably withheld or delayed), any
portion of its Commitment pursuant to a supplement hereto, substantially in the
form of Annex D
with any changes as have been approved by the parties thereto (each, a “Transfer
Supplement”), executed by each such Purchasing Related Committed
Purchaser, such selling Related Committed Purchaser, such related Purchaser
Agent and the Administrator. Any such assignment by Related Committed
Purchaser cannot be for an amount less than $50,000,000. Upon (i) the
execution of the Transfer Supplement, (ii) delivery of an executed copy thereof
to the Seller, such related Purchaser Agent and the Administrator and (iii)
payment by the Purchasing Related Committed Purchaser to the selling Related
Committed Purchaser of the agreed purchase price, if any, such selling Related
Committed Purchaser shall be released from its obligations hereunder to the
extent of such assignment and such Purchasing Related Committed Purchaser shall
for all purposes be a Related Committed Purchaser party hereto and shall have
all the rights and obligations of a Related Committed Purchaser hereunder to the
same extent as if it were an original party hereto. The amount of the
Commitment of the selling Related Committed Purchaser allocable to such
Purchasing Related Committed Purchaser shall be equal to the amount of the
Commitment of the selling Related Committed Purchaser transferred regardless of
the purchase price, if any, paid therefor. The Transfer Supplement
shall be an amendment hereof only to the extent necessary to reflect the
addition of such Purchasing Related Committed Purchaser as a “Related Committed
Purchaser” and any resulting adjustment of the selling Related Committed
Purchaser’s Commitment.
(ii) Each
Related Committed Purchaser agrees that in the event it shall cease to have a
short term debt or deposit rating of A-1 or better by S&P and P-1 or better
by Xxxxx’x, such Related Committed Purchaser shall, at the request of the
Seller, assign all of its rights and obligations hereunder to an Eligible
Assignee reasonably acceptable to the Seller and the Administrator in accordance
with subparagraph
(i) above.
(d) Assignments to Liquidity
Banks and other Program Support Providers. Any Uncommitted
Purchaser may at any time grant to one or more of its Liquidity Banks or other
Program Support Providers, participating interests in its portion of the
Participation. In the event of any such grant by such Uncommitted
Purchaser of a participating interest to a Liquidity Bank or other Program
Support Provider, such Uncommitted Purchaser shall remain responsible for the
performance of its obligations hereunder. The Seller agrees that each
Liquidity Bank and Program Support Provider of any Uncommitted Purchaser
hereunder shall be entitled to the benefits of Section
1.8.
(e) Other Assignment by
Uncommitted Purchasers. Without limiting the right of any
Uncommitted Purchaser to sell or grant interests or participations to its
Liquidity Banks and Program Support Providers as described in paragraph (d), above,
each party hereto agrees and consents (i) to any Uncommitted Purchaser’s
assignment, participation, grant of security interests in or other transfers of
any portion of, or any of its beneficial interest in, the Participation (or
portion thereof), including without limitation to any collateral agent in
connection with its commercial paper program and (ii) to the complete assignment
by any Uncommitted Purchaser of all of its rights and obligations hereunder to
any Eligible Assignee, and upon such assignment such Uncommitted Purchaser shall
be released from all obligations and duties, if any, hereunder; provided, however, that such
Uncommitted Purchaser may not, without the prior consent of its Related
Committed Purchasers and, so long as no Termination Event or Unmatured
Termination Event has occurred and is continuing, the consent of the Seller
(such consent not to be unreasonably withheld or delayed), make any such
transfer of its rights hereunder unless the assignee (i) is principally engaged
in the purchase of assets similar to the assets being purchased hereunder and
(ii) has as its Purchaser Agent the Purchaser Agent of the assigning Uncommitted
Purchaser (each such Person, a “Note
Issuer”). Any assigning Uncommitted Purchaser shall deliver to
any assignee a Transfer Supplement with any changes as have been approved by the
parties thereto, duly executed by such Uncommitted Purchaser, assigning any
portion of its interest in the Participation to its Eligible
Assignee. Such Uncommitted Purchaser shall promptly (i) notify each
of the other parties hereto of such assignment and (ii) take all further action
that the assignee reasonably requests in order to evidence the assignee’s right,
title and interest in such interest in the Participation and to enable the
assignee to exercise or enforce any rights of such Uncommitted Purchaser
hereunder. Upon the assignment of any portion of its interest in the
Participation, the assignee shall have all of the rights hereunder with respect
to such interest (except that the Discount therefor shall thereafter accrue at
the rate, determined with respect to the assigning Uncommitted Purchaser unless
the Seller, the related Purchaser Agent and the assignee shall have agreed upon
a different Discount).
Section
6.4. Costs, Expenses and
Taxes. (a) In addition to the rights of
indemnification granted under Section 3.1
hereof, the Seller agrees to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery and administration
(including periodic auditing of Pool Receivables) of this Agreement, each
Liquidity Agreement, and the other documents and agreements to be delivered
hereunder, including all reasonable costs and expenses relating to the amending,
amending and restating, modifying or supplementing of this Agreement, the
Liquidity Agreements and the other documents and agreements to be delivered
hereunder and the waiving of any provisions thereof, and including in all cases,
without limitation, Attorney Costs for the Administrator, the Purchaser Agents,
the Purchasers and their respective Affiliates and agents with respect thereto
and with respect to advising the Administrator, the Purchaser Agents, the
Purchasers and their respective Affiliates and agents as to their rights and
remedies under this Agreement and the other Transaction Documents, and all
reasonable costs and expenses, if any (including Attorney Costs), of the
Administrator, the Purchaser Agents, the Purchasers and their respective
Affiliates and agents, in connection with the enforcement of this Agreement and
the other Transaction Documents.
(b) In
addition, the Seller shall pay on demand any and all stamp and other taxes and
fees payable in connection with the execution, delivery, filing and recording of
this Agreement or the other documents or agreements to be delivered hereunder
(other than taxes payable on the gross receipts or income of any Indemnified
Party), and agrees to save each Indemnified Party harmless from and against any
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
Section
6.5. No Proceedings; Limitation
on Payments.
(a) Each of
the Seller, the Servicer, the Administrator, the Purchaser Agents, the
Purchasers, each assignee of the Participation or any interest therein, and each
Person which enters into a commitment to purchase the Participation or interests
therein, hereby covenants and agrees that it will not institute against, or join
any other Person in instituting against, any Note Issuer (including any
Uncommitted Purchaser), any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the latest maturing
Note issued by any such Note Issuer is paid in full. The provisions
of this paragraph shall survive any termination of this Agreement.
(b) Notwithstanding
any provisions contained in this Agreement to the contrary, no Uncommitted
Purchaser shall or shall be obligated to, pay any amount, if any, payable by it
pursuant to this Agreement or any other Transaction Document unless (i) such
Uncommitted Purchaser has received funds which may be used to make such payment
and which funds are not required to repay the Notes when due and (ii) after
giving effect to such payment, either (x) such Uncommitted Purchaser could issue
Notes to refinance all outstanding Notes (assuming such outstanding Notes
matured at such time) in accordance with the program documents governing such
Uncommitted Purchaser’s securitization program or (y) all Notes are paid in
full. Any amount which such Uncommitted Purchaser does not pay
pursuant to the operation of the preceding sentence shall not constitute a claim
(as defined in §101 of the Bankruptcy Code) against or company obligation of
such Uncommitted Purchaser for any such insufficiency unless and until such
Uncommitted Purchaser satisfies the provisions of clauses (i) and (ii)
above. The provisions of this paragraph shall survive any termination
of this Agreement. This paragraph (b) shall
not act in limitation of any Related Committed Purchasers obligation to make
Purchases in accordance with and subject to the terms of Sections 1.1 and
1.2.
Section
6.6. Confidentiality.
(a) Each of
the Administrator, the Indemnified Parties, the Seller and the Servicer shall
maintain and shall cause each of its employees and officers to maintain the
confidentiality of this Agreement and all information with respect to the other
parties, including all information regarding the business of the Seller and the
Servicer hereto and their respective businesses obtained by it or them in
connection with the structuring, negotiating and execution of the transactions
contemplated herein, except that each such party and its directors, officers and
employees may (i) disclose such information to its external accountants,
attorneys, commercial paper investors, potential commercial paper investors,
credit enhancers to the Purchasers (including the directors, officers, external
accountants, and attorneys of such credit enhancers) and the agents or advisors
of such Persons (“Excepted Persons”)
who have a need to know such information, provided that each Excepted Person
shall be advised by the party disclosing such information of the confidential
nature of the information being disclosed, (ii) disclose the existence of this
Agreement, but not the financial terms thereof, (iii) disclose such information
as is required by Applicable Law and (iv) disclose this Agreement and such
information in any suit, action, proceeding or investigation (whether in law or
in equity or pursuant to arbitration) involving any of the Transaction Documents
or any interest rate swap, exchange or cap agreements for the purpose of
defending itself, reducing its liability, or protecting or exercising any of its
claims, rights, remedies, or interests under or in connection with any of the
Transaction Documents or any interest rate swap, exchange or cap agreements,
provided that the Persons permitted to make such disclosures under clauses (iii)
and (iv) shall also include credit enhancers to the Purchasers. It is
understood that the financial terms that may not be disclosed except in
compliance with this Section 6.6(a)
include, without limitation, all fees and other pricing terms, and all
Termination Events or Unmatured Termination Events, and priority of payment
provisions.
(b) Anything
herein to the contrary notwithstanding, the Seller and the Servicer each hereby
consents to the disclosure of any nonpublic information with respect to it (i)
to the Administrator or any Indemnified Party by each other, (ii) by the
Administrator or any Indemnified Party to any prospective or actual assignee or
participant of any of them or (iii) by the Administrator or any Indemnified
Party to any Rating Agency, commercial paper dealer or provider of a surety,
guaranty or credit or liquidity enhancement to a Purchaser and to any officers,
directors, employees, outside accountants, advisors, and attorneys of any of the
foregoing, provided each such Person is informed of the confidential nature of
such information. In addition, the Indemnified Parties and credit
enhancers to the Purchasers, and the Administrator may disclose any such
nonpublic information as required pursuant to any law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory
authority or proceedings (whether or not having the force or effect of
law).
(c) Notwithstanding
anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes publicly
known, (ii) disclosure of any and all information (A) if required to do so by
any applicable statute, law, rule or regulation, (B) to any government agency or
regulatory body having or claiming authority to regulate or oversee any respects
of the Administrator or any Indemnified Party’s business or that of their
affiliates, (C) pursuant to any subpoena, civil investigative demand or similar
demand or request of any court, regulatory authority, arbitrator or arbitration
to which the Administrator or any Indemnified Party or any affiliate or an
officer, director, employer or shareholder thereof is a party, (D) in any
preliminary or final offering circular, registration statement or contract or
other document pertaining to the transactions contemplated herein approved in
advance by the Seller or Servicer or (E) to any affiliate, independent or
internal auditor, agent, employee or attorney of the Administrator or any
Indemnified Party having a need to know the same, provided that the
Administrator or Indemnified Party advises such recipient of the confidential
nature of the information being disclosed, or (iii) any other disclosure
authorized in writing by the Seller or Servicer.
Section
6.7. GOVERNING LAW AND
JURISDICTION. (a) THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF), EXCEPT TO THE EXTENT
THAT THE PERFECTION (OR THE EFFECT OF PERFECTION OR
NON-PERFECTION) OF THE INTERESTS OF THE PURCHASER IN THE POOL
RECEIVABLES AND THE OTHER ITEMS DESCRIBED IN SECTION 1.2(d) IS
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
TEXAS.
(b) ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE PURCHASERS, THE PURCHASER AGENTS, THE SELLER, THE SERVICER AND THE
ADMINISTRATOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PURCHASERS,
THE PURCHASER AGENTS, THE SELLER, THE SERVICER AND THE ADMINISTRATOR IRREVOCABLY
WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE PURCHASERS, THE PURCHASER AGENTS, THE
SELLER, THE SERVICER AND THE ADMINISTRATOR EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY ILLINOIS LAW.
Section
6.8. Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
Section
6.9. Survival of
Termination. The provisions of Sections 1.8, 1.9, 1.10, 3.1, 6.4, 6.5, 6.6, 6.7 and 6.10 shall survive
any termination of this Agreement.
Section
6.10. WAIVER OF JURY
TRIAL. THE PURCHASERS, THE PURCHASER AGENTS, THE SELLER, THE
SERVICER AND THE ADMINISTRATOR EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS
OR OTHERWISE. THE PURCHASERS, THE PURCHASER AGENTS, THE SELLER, THE
SERVICER AND THE ADMINISTRATOR EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section
6.11. ENTIRE
AGREEMENT. THIS AGREEMENT AMENDS AND RESTATES IN ITS ENTIRETY
THE ORIGINAL AGREEMENT. AS SO AMENDED, THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PURCHASERS, THE PURCHASER AGENTS, THE SELLER, THE SERVICER AND THE
ADMINISTRATOR, AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF. FOR THE AVOIDANCE OF DOUBT, ANY
RECEIVABLES HELD BY A PURCHASER ON THE DATE OF THIS AGREEMENT CONSTITUTE
RECEIVABLES FOR ALL PURPOSES OF THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS. THIS AMENDMENT AND RESTATEMENT OF THE ORIGINAL AGREEMENT
SHALL NOT EFFECTUATE A NOVATION OR EXTINGUISHMENT OF THE OBLIGATIONS OUTSTANDING
UNDER THE ORIGINAL AGREEMENT, BUT RATHER AN AMENDMENT AND RESTATEMENT OF CERTAIN
TERMS GOVERNING SUCH OBLIGATIONS.
Section
6.12. Headings. The
captions and headings of this Agreement and in any Exhibit hereto are for
convenience of reference only and shall not affect the interpretation hereof or
thereof.
Section
6.13. Purchaser Groups’
Liabilities. The obligations of each Purchaser Agent and each
Purchaser under this Agreement and the other Transaction Documents are solely
the corporate obligations of such Person. No recourse shall be had
for any obligation or claim arising out of or based upon this Agreement or any
other Transaction Document against any stockholder, employee, officer, director
or incorporator of such Person; provided, however, that this
Section 6.13
shall not relieve any such Person of any liability it might otherwise have for
its own gross negligence or willful misconduct. The agreements
provided in this Section 6.13 shall
survive termination of this Agreement.
(continued
on following page)
1408834 98442494
|
|
IN
WITNESS WHEREOF, the parties have caused this Agreement 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/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title:CFO,
Secretary & Treasurer
0000
Xxxxxxx 000 Xxxxx, Xxxxx X
Xxxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
PILGRIM’S
PRIDE CORPORATION,
as
initial Servicer
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title:CFO,
Secretary & Treasurer
0000
Xxxxxxx 000 Xxxxx
Xxxxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
1408834 98442494
S- Receivable Purchase Agreement
(Pilgrim’s
Pride)
BMO
CAPITAL MARKETS CORP.,
as
Administrator
By: /s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: Managing
Director
000 X.
XxXxxxx Xx., 00X
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
Xxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
1408834 98442494
S- Receivable Purchase Agreement
(Pilgrim’s
Pride)
BMO
CAPITAL MARKETS CORP.,
as
Purchaser Agent for the BMOCM Purchaser Group
By: /s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: Managing
Director
000 X.
XxXxxxx Xx., 00X
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
Xxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
FAIRWAY
FINANCE COMPANY, LLC
as
Uncommitted Purchaser and as Related Committed Purchaser for the BMOCM Purchaser
Group
By: /s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title: Vice
President
c/o Lord
Securities Corporation
00 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment: $300,000,000
1408834 98442494
S- Receivable Purchase Agreement
(Pilgrim’s
Pride)
EXHIBIT
I
DEFINITIONS
As used
in the Agreement (including its Exhibits), the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined). Unless otherwise indicated,
all Section, Annex, Exhibit and Schedule references in this Exhibit are to
Sections of and Annexes, Exhibits and Schedules to the Agreement.
“Administrator” has
the meaning set forth in the preamble to the Agreement.
“Adverse Claim” means
a lien, security interest or other charge or encumbrance, or any other type of
preferential arrangement, other than Permitted Encumbrances, it being understood
that a lien, security interest or other charge or encumbrance, or any other type
of preferential arrangement, in favor of the Purchaser shall not constitute an
Adverse Claim.
“Affected Person” has
the meaning set forth in Section 1.8.
“Affiliate” means, as
to any Person, any other Person that, directly or indirectly, is in control of,
is controlled by or is under common control with such Person or is a director or
officer of such Person, except that with respect to any Purchaser, Affiliate
shall mean the holder(s) of its capital stock.
“Aggregate Discount”
at any time, means the sum of the aggregate for each Purchaser of the accrued
and unpaid Discount with respect to each such Purchaser’s Investment at such
time.
“Aggregate Investment”
means the amount paid to the Seller in respect of the Participation or portion
thereof by all Purchasers pursuant to the Agreement, as reduced from time to
time by Collections distributed and applied on account of such Aggregate
Investment pursuant to Section 1.4(d) of the
Agreement; provided, that if
such Aggregate Investment shall have been reduced by any distribution, and
thereafter all or a portion of such distribution is rescinded or has otherwise
been returned for any reason, such Aggregate Investment shall be increased by
the amount of such rescinded or returned distribution as though it had not been
made.
“Applicable Law”
means, for purposes of Section 6.6 of this
Agreement, for any Person or property of such Person, all existing and future
applicable laws, rules, regulations (including proposed, temporary and final
income tax regulations), statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by any Governmental
Authority (including, without limitation, usury laws, the Federal Truth in
Lending Act, and Regulation Z and Regulation B of the Federal Reserve Board),
and applicable judgments, decrees, injunctions, writs, orders, or line of action
of any court, arbitrator or other administrative, judicial, or quasi-judicial
tribunal or agency of competent jurisdiction.
“Applicable Margin”
has the meaning set forth in the applicable Purchaser Group Fee
Letter.
“Assumption Agreement”
means an agreement substantially in the form set forth in Annex C to the
Agreement.
“Attorney Costs” means
and includes all reasonable fees and disbursements of any law firm or other
external counsel, to be paid as set forth in the applicable Purchaser Group Fee
Letter.
“Average Maturity”
means at any time that period of days equal to the average days sales
outstanding of the Pool Receivables calculated by the Servicer in the then most
recent Servicer Report; provided, that if the
Administrator shall disagree with any such calculation, the Administrator may
reasonably recalculate such Average Maturity, and any such recalculation upon
disclosure to Servicer and Seller shall be prima facie evidence of such Average
Maturity.
“Bank Rate” for any
Purchaser and for any Yield Period for any Portion of Investment of the
Participation means an interest rate per annum equal to the
Applicable Margin above the Eurodollar Rate for such Yield Period; provided,
further, that in the case of
(i) any
Yield Period on or prior to the first day of which the Administrator or
applicable Purchaser Agent shall have been notified by a Liquidity Bank or any
Purchaser that the introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful, for such Liquidity Bank or
such Purchaser to fund any Portion of Investment (based on the Eurodollar Rate)
set forth above (and such Liquidity Bank or such Purchaser, as applicable, shall
not have subsequently notified the Administrator or applicable Purchaser Agent
that such circumstances no longer exist),
(ii) any
Yield Period of one to (and including) 13 days,
(iii) any
Yield Period as to which the Administrator or applicable Purchaser Agent does
not receive notice, by no later than 12:00 noon (Chicago time) on (w) the second
Business Day preceding the first day of such Yield Period that the Seller
desires that the related Portion of Investment be funded at the CP Rate, (x) the
third Business Day preceding the first day of such Yield Period that the Seller
desires that the related Portion of Investment be funded at the Bank Rate, or
(y) the Seller has given the notice contemplated by clause (w) of this clause (iii) and the
Administrator or the applicable Purchaser Agent shall have notified the Seller
that funding the related Portion of Investment at the CP Rate is unacceptable to
such Purchaser, or
(iv) any
Yield Period relating to a Portion of Investment which is less than
$1,000,000,
the
“Bank Rate” for
each such Yield Period shall be an interest rate per annum equal to the Base
Rate in effect on each day of such Yield Period. Notwithstanding the
foregoing, the “Bank
Rate” for each day in a Yield Period occurring during the continuance of
a Termination Event shall be an interest rate equal to the greater of (a) 2%
per annum above the Base
Rate in effect on such day and (b) 1% per annum above the CP
Rate plus all fees payable pursuant to the Purchaser Group Fee
Letters.
“Bankruptcy Code”
means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101,
et seq.), as
amended from time to time.
“Base Rate” means,
with respect to any Purchaser, for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be at all times
equal to the rate of interest most recently announced by the applicable
Purchaser Agent as its prime commercial rate or similar reference rate for
United States loans made in the United States.
“BMOCM” has the
meaning set forth in the preamble to the Agreement.
“Business Day” means
any day on which (i) both (A) the Administrator at its branch office in Chicago,
Illinois is open for business and (B) commercial banks in New York City are not
authorized or required to be closed for business, and (ii) if this definition of
“Business Day” is utilized in connection with the Eurodollar Rate, dealings are
carried out in the London interbank market.
“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.
“Cash Equivalent”
shall mean with respect to any Person any short-term investments that are
classified as cash equivalents on such Person’s consolidated balance sheet in
accordance with generally accepted accounting principles, consistently
applied.
“Change in Control”
means the occurrence of any of the following:
(i) the
direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of Pilgrim’s Pride and
its subsidiaries taken as a whole to any “person” or “group” (as such terms are
used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
other than a subsidiary of Pilgrim’s Pride;
(ii) any
“person” or “group” (as such terms are used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended), other than the Pilgrim Family,
becomes the ultimate “beneficial owner,” as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, of more than 50% of the total
voting power of the Voting Stock of Pilgrim’s Pride on a fully-diluted
basis;
(iii) the
adoption of a plan relating to the liquidation or dissolution of Pilgrim’s
Pride;
(iv) the
consummation of any transaction (including, without limitation, any merger,
consolidation or recapitalization) to which Pilgrim’s Pride is a party the
result of which is that, immediately after such transaction, the holders of all
of the outstanding Voting Stock of Pilgrim’s Pride immediately prior to such
transaction hold less than 50.1% of the Voting Stock of the Person surviving
such transaction, measured by voting power rather than number of
shares;
(v) the
first day on which a majority of the members of the Board of Directors of
Pilgrim’s Pride are not Continuing Directors; or
(vi) Pilgrim’
Pride ceases to own at least 100% of the outstanding capital stock of the
Seller.
For
purposes of this definition:
“Continuing Directors”
means, as of any date of determination, any member of the board of directors of
Pilgrim’s Pride who:
(i) was
a member of such board of directors on the date hereof; or
(ii) was
nominated for election or elected to such board of directors with the approval
of a majority of the Continuing Directors who were members of such board at the
time of such nomination or election.
“Pilgrim Family” means
Xxxxxx X. “Bo” Pilgrim, his spouse, his issue, his estate and any trust,
partnership or other entity primarily for the benefit of him, his spouse and/or
issue, including any direct or indirect trustee, managing partner or such other
Person serving a similar function.
“Voting Stock” of any
Person as of any date means the capital stock of such Person that is at the time
entitled to vote in the election of the Board of Directors of such
Person.
“Closing Date” means
September 26, 2008.
“Collateral Report”
means a report, in form and substance satisfactory to the Administrator, which
shall be delivered upon request by the Administrator, which request may be made
as frequently as each Business Day in the Administrator’s sole
discretion.
“Collection Account”
means that certain bank account maintained at JPMorgan Chase Bank, N.A. which is
(i) identified as the “Pilgrim’s Pride Funding
Corporation Collection Account,” (ii) pledged, on a first-priority basis,
to the Administrator for the benefit of the Purchasers pursuant to Section 1.2(d), and
(iii) is governed by the applicable Lock-Box Agreement.
“Collection Account
Bank” means the bank holding the Collection Account.
“Collection Delay
Period” means 0.5 times the Average Maturity or such other number of days
as the Administrator may from time to time select (after consultation with the
Seller) upon three Business Days’ notice to the Seller.
“Collections” means,
with respect to any Pool Receivable, (a) all funds which are received by the
Seller or the Servicer in payment of any amounts owed in respect of such
Receivable (including, without limitation, purchase price, finance charges,
interest and all other charges), or applied to amounts owed in respect of such
Receivable (including, without limitation, insurance payments and net proceeds
of the sale or other disposition of repossessed goods or other collateral or
property of the related Obligor or any other Person directly or indirectly
liable for the payment of such Pool Receivable and available to be applied
thereon), (b) all Collections deemed to have been received pursuant to Section 1.4(e)
and (c) all other proceeds of such Receivable.
“Commitment” means,
with respect to each Related Committed Purchaser, the maximum amount which such
Purchaser is obligated to pay hereunder on account of any purchase, as set forth
below its signature to this Agreement or in the Assumption Agreement pursuant to
which it became a Purchaser, as such amount may be modified in connection with
any subsequent assignment pursuant to Section 6.3(c)
or in connection with a change in the Purchase Limit pursuant to Section 1.1(b).
“Commitment Fee” has
the meaning set forth in the applicable Purchaser Group Fee Letter.
“Commitment
Percentage” means, for each Related Committed Purchaser in a Purchaser
Group, such Related Committed Purchaser’s Commitment divided by the total of all
Commitments of all Related Committed Purchasers in such Purchaser
Group.
“Company Note” has the
meaning set forth in Section 3.2 of the
Purchase and Contribution Agreement.
“Concentration
Percentage” means, for any Obligor, the percentage equal to (a) the
aggregate Outstanding Balances of all Eligible Receivables of such Obligor divided by (b) the
aggregate Outstanding Balances of all Eligible Receivables then in the
Receivables Pool.
“Contract” means, with
respect to any Receivable, any and all contracts, understandings, instruments,
agreements, invoices, notes, or other writings pursuant to which such Receivable
arises or which evidences such Receivable or under which an Obligor becomes or
is obligated to make payment in respect of such Receivable.
“Contributed
Receivables” shall have the meaning set forth in Section 3.1 of the
Purchase and Contribution Agreement.
“Contributed Value”
has the meaning set forth in Section 3.4 of the
Purchase and Contribution Agreement.
“Convertible
Stock” means preferred stock
and other Capital Stock that are convertible, exchangeable or exercisable into
Pilgrim’s Pride’s common stock.
“CP Rate” for any
Uncommitted Purchaser for any Yield Period for any Portion of Investment of the
Participation means, to the extent such Uncommitted Purchaser funds such Portion
of Investment for such Yield Period by issuing Notes, a rate per annum equal to the
sum of (i) the rate (or if more than one rate, the weighted average of the
rates) at which Notes of such Uncommitted Purchaser having a term equal to such
Yield Period and to be issued to fund such Portion of Investment may be sold by
any placement agent or commercial paper dealer selected by the applicable
Purchaser Agent on behalf of the related Uncommitted Purchaser, as agreed
between each such agent or dealer and the applicable Purchaser Agent and
notified by the applicable Purchaser Agent to the Servicer; provided, that if the
rate (or rates) as agreed between any such agent or dealer and applicable
Purchaser Agent with regard to any Yield Period for such Portion of Investment
is a discount rate (or rates), then such rate shall be the rate (or if more than
one rate, the weighted average of the rates) resulting from converting such
discount rate (or rates) to an interest-bearing equivalent rate per annum, plus (ii) the
commissions and charges charged by such placement agent or commercial paper
dealer with respect to such Notes, expressed as a percentage of such face amount
and converted to an interest-bearing equivalent rate per annum.
“Credit and Collection
Policy” means those receivables credit and collection policies and
practices of the Servicer in effect on the date of the Agreement and attached as
Schedule I
hereto, as modified in compliance with the Agreement.
“Debt” of any Person
means as of any time the same is to be determined, the aggregate
of:
(a) all
indebtedness, obligations and liabilities of such Person with respect to
borrowed money (including by the issuance of debt securities);
(b) all
guaranties, endorsements and other contingent obligations of such Person with
respect to indebtedness arising from money borrowed by others;
(c) all
reimbursement and other obligations with respect to letters of credit, bankers
acceptances, customer advances and other extensions of credit whether or not
representing obligations for borrowed money;
(d) the
aggregate of the principal components of all leases and other agreements for the
use, acquisition or retention of real or personal property which are required to
be capitalized under generally accepted accounting principles consistently
applied;
(e) all
indebtedness, obligations and liabilities representing the deferred purchase
price of property or services (excluding trade payables incurred in the ordinary
course of business);
(f) all
indebtedness secured by a lien on the Property of such Person, whether or not
such Person has assumed or become liable for the payment of such
indebtedness;
(g) in
the case of Pilgrim’s Pride, all indebtedness, obligations and liabilities of
Pilgrim’s Pride relating to any Convertible Stock that Pilgrim’s Pride has
elected to treat as Debt; and
(h) all
net obligations of such Person under any agreement providing for an interest
rate swap, cap, cap and floor, contingent participation or other hedging
mechanisms with respect to interest payable on any of the items described in
this definition.
“Default Ratio” means
the ratio (expressed as a percentage and rounded upward to the nearest 1/100 of
1%) computed as of the last day of each Fiscal Month by dividing (i) the
aggregate Outstanding Balance of all Pool Receivables that became Defaulted
Receivables during such Fiscal Month or that would have been Defaulted
Receivables on such day had they not been written off the books of the Seller
during such month by (ii) the Outstanding Balance of the Pool Receivables as of
such day.
“Defaulted Receivable”
means a Receivable:
(i) as
to which any payment, or part thereof, remains unpaid for 91 days or more from
the invoice date for such Receivable;
(ii) as
to which the Obligor thereof or any other Person obligated thereon or owning any
Related Security in respect thereof has taken any action, or suffered any event
to occur, of the type described in paragraph (g) of
Exhibit V
hereto; or
(iii) which,
consistent with the Credit and Collection Policy, would be written off the
Seller’s books as uncollectible.
“Delinquency Ratio”
means the ratio (expressed as a percentage and rounded upward to the nearest
1/100 of 1%) computed as of the last day of each Fiscal Month by dividing (i)
the aggregate Outstanding Balance of all Pool Receivables that were Delinquent
Receivables on such day by (ii) the aggregate Outstanding Balance of all Pool
Receivables on such day.
“Delinquent
Receivable” means a Receivable which is not a Defaulted Receivable
and:
(i) as
to which any payment, or part thereof, remains unpaid for 61 days or more from
the invoice date for such Receivable; or
(ii) which,
consistent with the Credit and Collection Policy, would be classified as
delinquent by the Seller.
“Designated Obligor”
means, at any time, all Obligors except any Obligor as to which the
Administrator has given notice to Seller that such Obligor shall not be
considered a Designated Obligor, such notice to become effective on the last day
of the Fiscal Month in which such notice is given.
“Dilution Ratio”
means, for any Fiscal Month, the ratio (expressed as a percentage and rounded
upwards to the nearest 1/100th of 1%) of (a) the extent to which the aggregate
Outstanding Balance of all Pool Receivables during such period that have been
reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed goods or services, or any discount or adjustment made
by Seller or Servicer or any dispute between the Seller or the Servicer and an
Obligor, to (b) the aggregate amount of Collections of Pool Receivables actually
received during such period.
“Discount” means with
respect to any Purchaser:
(i) for
the Portion of Investment of the Participation for any Yield Period with respect
to any Purchaser to the extent such Purchaser will be funding such Portion of
Investment on the first day of such Yield Period through the issuance of
Notes,
CPR x I x
ED/360 + TF
(ii) for
the Portion of Investment of the Participation for any Yield Period with respect
to any Purchaser to the extent such Purchaser will not be funding such Portion
of Investment on the first day of such Yield Period through the issuance of
Notes,
BR x I x
ED/Year + TF
where:
|
BR
|
=
|
the
Bank Rate for the Portion of Investment of the Participation for such
Yield Period with respect to such
Purchaser
|
|
I
|
=
|
the
Portion of Investment of the Participation during such Yield Period with
respect to such Purchaser
|
|
CPR
|
=
|
the
CP Rate for the Portion of Investment of the Participation for such Yield
Period with respect to such
Purchaser
|
|
ED
|
=
|
the
actual number of days during such Yield
Period
|
|
Year
|
=
|
if
such Portion of Investment is funded based upon: (i) the Eurodollar Rate,
360 days, and (ii) the Base Rate, 365 or 366 days, as
applicable
|
|
TF
|
=
|
the
Termination Fee, if any, for the Portion of Investment of the
Participation for such Yield Period with respect to such
Purchaser
|
provided, however, that during
the occurrence and continuance of a Termination Event, the CP Rate shall not be
available and Discount for each Portion of Capital shall be determined for each
day in a Yield Period using a rate equal to the Base Rate in effect on such day
plus 2.0%; provided, further, that no
provision of the Agreement shall require the payment or permit the collection of
Discount in excess of the maximum permitted by applicable law; and provided, further, that
Discount for the Portion of Investment of the Participation shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
“Discount Reserve” for
the Participation at any time means (a) the sum of (i) the Termination Discount
at such time for the Participation, and (ii) the then accrued and unpaid
Discount for the Participation, divided by (b) 1 minus the Loss
Percentage.
“Dividends” means any
dividend or distribution (in cash or obligations) on any shares of any class of
Seller’s capital stock or any warrants, options or other rights with respect to
shares of any class of Seller’s capital stock.
“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
Administrator’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.
“Eligible Assignee”
means (i) any existing Purchaser or (ii) a commercial bank (or commercial paper
conduit formed by a commercial bank) having a combined capital and surplus of at
least $250,000,000 and a short-term debt or deposit rating of A-1 or better by
S&P and P-1 or better by Xxxxx’x.
“Eligible Receivables”
means, at any time, Receivables:
(i) the
Obligor of which is (i) a United States resident, (ii) not a government or a
governmental subdivision, affiliate or agency, (iii) not an Affiliate of
Pilgrim’s Pride or any Affiliate of Pilgrim’s Pride, and (iv) not subject to an
exchange agreement with the Originator;
(ii) which
are denominated and payable only in U.S. dollars in the United
States;
(iii) which
have a stated maturity and which stated maturity is not more than 60 days after
the date on which such Receivable was invoiced;
(iv) which
arise under a Contract which is in full force and effect and which is a legal,
valid and binding obligation of the related Obligor, enforceable against such
Obligor in accordance with its terms; except as enforceability may be limited by
(i) bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors’ rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law or (ii) the availability of the remedy of specific
performance or any other equitable remedies subject to the discretion of the
courts;
(v) which
conform in all material respects with all applicable laws, rulings and
regulations in effect;
(vi) which
are not the subject of any asserted dispute, offset, hold back defense, Adverse
Claim or other claim and which do not arise from the sale of inventory which is
subject to any Adverse Claim;
(vii) which
comply with the requirements of the Credit and Collection Policy;
(viii) which
arise from the sale and delivery of goods or services in the ordinary course of
the applicable Originator’s (including the applicable Transferor’s)
business;
(ix) which
do not require the consent of the related Obligor to be sold or
assigned;
(x) which
have not been modified or restructured since their creation, except as permitted
pursuant to Section
4.2 of the Agreement;
(xi) in
which the Seller owns good and valid title and which are freely assignable by
the Seller;
(xii) for
which the Administrator, for the benefit of the Purchasers, shall have a valid
and enforceable undivided percentage ownership interest, to the extent of the
Participation, and a valid and enforceable first priority perfected security
interest therein and in the Related Security and Collections with respect
thereto, in each case free and clear of any Adverse Claim;
(xiii) which
constitute accounts (and the Administrator, for the benefit of the Purchasers,
has not informed the Seller that such account is not acceptable) as defined in
the UCC, and which are not evidenced by instruments or chattel
paper;
(xiv) which
are not Defaulted Receivables or Delinquent Receivables;
(xv) the
Obligor of which is not the Obligor of Defaulted Receivables in an aggregate
amount in excess of 10% of the aggregate Outstanding Balance of all Receivables
of such Obligor;
(xvi) the
Obligor of which is a Designated Obligor; and
(xvii) which
do not constitute “xxxx and hold” or “goods on consignment”
receivables;
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
“ERISA Affiliate”
shall mean with respect to any Person, at any time, each trade or business
(whether or not incorporated) that would, at the time, be treated together with
such Person as a single employer under Section 4001 of ERISA or Sections 414(b),
(c), (m) or (o) of the Code.
“Eurodollar Rate”
means, for any Yield Period, an interest rate per annum (rounded upward to the
nearest 1/100th of 1%) determined pursuant to the following
formula:
Eurodollar
Rate
= LIBOR
1.00 -
Eurodollar Reserve Percentage
Where,
“Eurodollar Reserve
Percentage” means, for any Yield Period, the maximum reserve percentage
(expressed as a decimal, rounded upward to the nearest 1/100th of 1%) in effect
on the date LIBOR for such Yield Period is determined under regulations issued
from time to time by the Federal Reserve Board for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to “Eurocurrency” funding (currently referred
to as “Eurocurrency liabilities”) having a term comparable to such Yield
Period.
“Excepted Person” has
the meaning set forth in Section
6.6(a).
“Exiting Notice” has the meaning set forth in
Section
1.1(d).
“Exiting Purchaser”
has the meaning set forth in
Section
1.1(d).
“Facility Termination
Date” means the earlier of (a) August 20, 2012, (b) the date determined
pursuant to Section
2.2 and (c) the Scheduled Commitment Termination Date.
“Federal Funds Rate”
means, for any period, the per annum rate set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, “H.15(519)”) for such day opposite the caption “Federal Funds
(Effective)”. If on any relevant day such rate is not yet published
in H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the “Composite 3:30 p.m.
Quotation”) for such day under the caption “Federal Funds Effective
Rate.” If on any relevant day the appropriate rate for such previous
day is not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such day will be the arithmetic mean as determined by
the Administrator of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by the
Administrator.
“Federal Reserve
Board” means the Board of Governors of the Federal Reserve System, or any
entity succeeding to any of its principal functions.
“Final Payout Date”
means the date following the Facility Termination Date on which no Investment or
Discount in respect of the Participation under the Agreement shall be
outstanding and all other amounts payable by the Originator, the Seller or the
Servicer to the Purchasers, the Purchaser Agents, the Administrator or any other
Affected Person under the Transaction Documents shall have been paid in
full.
“Fiscal Month” means
each accounting period listed on Schedule IV hereto,
as updated with respect to additional accounting periods by notice from the
Servicer to the Administrator and each Purchaser Agent.
“Fiscal Year” shall
mean the 52 or 53 week period ending on the Saturday closest to September 30 in
each calendar year, regardless of whether such Saturday occurs in September or
October of any calendar year.
“Fixed Charge Coverage
Ratio” with respect to any Person shall mean the ratio of (a) the sum of
EBITDA and all amounts payable under all non-cancellable operating leases
(determined on a consolidated basis in accordance with generally accepted
accounting principles, consistently applied) for the period in question, to (b)
the sum of (without duplication) (i) Interest Expense for such period, (ii) the
sum of the scheduled current maturities (determined in accordance with generally
accepted accounting principles consistently applied) of Debt during the period
in question, (iii) all amounts payable under non-cancellable operating leases
(determined as aforesaid) during such period, and (iv) without duplication, all
amounts payable with respect to capitalized leases (determined on a consolidated
basis in accordance with generally accepted accounting principles, consistently
applied) for the period in question; provided, that, for
purposes of calculating the Fixed Charge Coverage Ratio, the term “Debt” shall
not include (i) indebtedness related to the Protein IRB Bonds to the extent
proceeds remain held in trust and are not paid to Pilgrim’s Pride pursuant to
the terms of the bond documents pursuant to which the Protein IRB Bonds were
issued, (ii) indebtedness related to the Intercompany Bonds so long as Pilgrim’s
Pride or a subsidiary of Pilgrim’s Pride remains the holder of such Intercompany
Bonds and (iii) any other indebtedness so long as the trustee in respect of such
indebtedness holds cash and Cash Equivalents in an amount sufficient to repay
the principal balance of such indebtedness, subject to the Administrator’s
reasonable verification that such cash and Cash Equivalents are held by a
trustee for the sole purpose of insuring such repayment.
“Funded Purchase”
means a purchase or deemed purchase of undivided percentage ownership interests
with regard to the Participation under the Agreement which is paid for in cash
(other than through reinvestment of Collections pursuant to Section 1.4(b) of the
Agreement).
“GAAP” means the
generally accepted accounting principles and practices in the United States,
consistently applied.
“Good Faith Contest”
means the contest of an item if (a) the item is diligently contested in good
faith by appropriate proceedings timely instituted, (b) either the item is (i)
bonded or (ii) adequate reserves are established with respect to the contested
item if and to the extent reasonably satisfactory to the Administrator, and (c)
during the period of such contest, the enforcement of any contested item is
effectively stayed.
“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory
authority) thereof, any body or entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
including without limitation any court, and any Person owned or controlled,
through stock or capital ownership or otherwise, by any of the
foregoing.
“Group Commitment”
means with respect to any Purchaser Group the aggregate of the Commitments of
each Related Committed Purchaser within such Purchaser Group.
“Group Investment”
means with respect to any Purchaser Group, an amount equal to the aggregate of
all Investments of the Purchasers within such Purchaser Group.
“Xxxxxx” means Xxxxxx
Bank, N.A.
“Indemnified Amounts”
has the meaning set forth in Section
3.1.
“Indemnified Party”
has the meaning set forth in Section
3.1.
“Insolvency
Proceeding” means (a) any case, action or proceeding before any court or
other Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidations, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each case (a) and (b)
undertaken under U.S. Federal, state or foreign law, including the Bankruptcy
Code.
“Intangible Assets”
shall mean license agreements, trademarks, trade names, patents, capitalized
research and development, proprietary products (the results of past research and
development treated as long term assets and excluded from Inventory) and
goodwill (all determined on a consolidated basis in accordance with
generally accepted accounting principles consistently
applied).
“Intercompany Bonds”
shall mean (a) those certain existing industrial revenue bonds in the aggregate
principal amount of approximately $57.5 million, assigned to Pilgrim’s Pride or
a subsidiary of Pilgrim’s Pride, in connection with and as part of the
acquisition by Pilgrim’s Pride of the stock of certain subsidiaries of ConAgra
Foods, Inc., a Delaware corporation, which bonds are provided by or through
state and local governmental agencies, the proceeds of which were used to
finance the acquisition and construction of specified projects, and (b) any
industrial revenue bonds, notes, debentures or similar instruments issued by a
governmental entity on behalf of Pilgrim’s Pride or a Subsidiary and
concurrently with or following the issuance purchased by Pilgrim’s Pride or a
Subsidiary.
“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.
“Inventory” with
respect to any Person shall mean all raw materials, work in process, finished
goods, and goods held for sale or lease or furnished or to be furnished under
contracts of service in which such Person or any subsidiary now has or hereafter
acquires any right.
“Investment” means
with respect to any Purchaser the amount paid to the Seller by such Purchaser in
respect of the Participation by such Purchaser pursuant to the Agreement, or
such amount divided or combined in accordance with Section 1.7, in
each case reduced from time to time by Collections distributed and applied on
account of such Investment pursuant to Section 1.4(d).
If such Investment shall have been reduced by any distribution and thereafter
all or a portion of such distribution is rescinded or must otherwise be returned
for any reason, such Investment shall be increased by the amount of such
rescinded or returned distribution, as though it had not been made.
“Investment Grade”
means, with respect to any Person’s long term public senior debt securities, a
rating of at least BBB- by S&P or Baa3 by Moody’s; provided, that if
such Person’s long term public senior debt securities are rated by more than one
of the foregoing rating agencies, then each such rating agency which rates such
securities shall have given them a rating at least equal to the categories
specified above.
“Key Person Event”
means an event that shall occur if at any time (a) Xxxxxxx Xxxxxxx (or, upon
thirty (30) days’ notice, such successor acceptable to and consented to in
writing by the Administrator) (i) ceases to hold the position of Chief Financial
Officer or (ii) ceases to be involved in the day-to-day management and
operations of Pilgrim’s Pride in connection with this purchase facility in a
capacity at least equal to his capacity on the Closing Date or (b) Xxxx Xxxxx
(or, upon thirty (30) days’ notice, such successor acceptable to and consented
to in writing by the Administrator) (i) ceases to hold the positions of Vice
President and Assistant to the Treasurer and Chief Financial Officer or (ii)
ceases to be involved in the day-to-day management and operations of Pilgrim’s
Pride in connection with this purchase facility in a capacity at least equal to
her capacity on the Closing Date.
“Leverage Ratio” with
respect to any Person shall mean the ratio for such Person and its subsidiaries,
determined on a consolidated basis (as calculated on the last day of each fiscal
quarter of such Person) of (a) an amount equal to the sum of the aggregate
outstanding principal amount of all Debt (other than Debt consisting of
reimbursement and other obligations with respect to undrawn letters of credit),
minus the aggregate principal amount of all cash and Cash Equivalents reflected
on such Person’s balance sheet that is not restricted to secure the payment of
off-balance sheet liabilities of such Person or any subsidiary, to (b) the
amount included in clause (a), above, plus the Net Worth of such Person; provided, that, for
purposes of calculating the Leverage Ratio, the terms “Debt” and “Total
Liabilities” shall not include (a) indebtedness of Pilgrim’s Pride related to
the Protein IRB Bonds to the extent proceeds remain held in trust and are not
paid to Pilgrim’s Pride pursuant to the terms of the bond documents pursuant to
which the Protein IRB Bonds were issued, (b) indebtedness related to the
Intercompany Bonds so long as Pilgrim’s Pride or a subsidiary of Pilgrim’s Pride
remains the holder of such Intercompany Bonds, and (c) any other indebtedness so
long as the trustee in respect of such indebtedness holds cash and Cash
Equivalents in an amount sufficient to repay the principal balance of such
indebtedness, subject to the Administrator’s reasonable verification that such
cash and Cash Equivalents are held by a trustee for the sole purpose of insuring
such repayment.
“LIBOR” means the rate
of interest per annum (i) for deposits in U.S. dollars for a period equal to
such Yield Period which appears on Reuters Page LIBOR01 or (ii) if such rate
does not appear on Reuters Page LIBOR01, determined by the Liquidity Agent to be
the arithmetic mean (rounded upward, if necessary, to the nearest 1/100th of 1%)
of the rates of interest per annum notified to the Liquidity Agent as the rate
of interest at which dollar deposits in the approximate amount of the Investment
associated with such Yield Period would be offered to major banks in the London
interbank market at their request, in each case at or about 11:00 a.m. (London
time) on the second Business Day prior to the commencement of such Yield
Period.
“Limited Duration Waiver
Agreement” means the Limited Duration Waiver Agreement dated as of
September 26, 2008, among Pilgrim’s Pride, the Seller, the Purchasers and
Purchaser Agents named therein and the Administrator.
“Liquidation Account”
means (i) a bank account which is (a) identified as the “Pilgrim’s
Pride Funding Corporation Liquidation Account,” (b) pledged,
on a first-priority basis, to the Administrator on behalf of the Purchasers
pursuant to Section
1.2(d), and (c) is governed by the Liquidation Account Agreement or (ii)
any other bank account designated by the Administrator in writing as the
“Liquidation Account”.
“Liquidation Account
Agreement” means a letter agreement, in the form of Exhibit VII to the
Agreement, among the Seller, the Administrator and the Liquidation Account Bank,
as the same may be amended, supplemented, amended and restated, or otherwise
modified from time to time in accordance with the Agreement.
“Liquidation Account
Bank” means the bank holding the Liquidation Account.
“Liquidity Agent”
means each of the banks acting as agent for the various Liquidity Banks under
each Liquidity Agreement.
“Liquidity Agreement”
means any agreement entered into in connection with this Agreement pursuant to
which a Liquidity Bank agrees to make purchases or advances to, or purchase
assets from, any Uncommitted Purchaser in order to provide liquidity for such
Uncommitted Purchaser.
“Liquidity Bank” means
each bank or other financial institution that provides liquidity support to any
Uncommitted Purchaser pursuant to the terms of a Liquidity
Agreement.
“Lock-Box Account”
means an account maintained at a bank or other financial institution for the
purpose of receiving Collections established pursuant to Section 4.3,
including, without limitation, the Collection Account, and as listed on Schedule
II.
“Lock-Box Agreement”
means an agreement, in form and substance satisfactory to the Administrator,
among the Seller, the Servicer, the Administrator and each Lock-Box Bank, as the
same may be amended, supplemented, amended and restated, or otherwise modified
from time to time in accordance with the Agreement.
“Lock-Box Bank” means
any of the banks or other financial institutions holding one or more Lock-Box
Accounts.
“Loss Percentage”
means, on any date, the greatest of (i) 5 times the sum of (x) the highest
average of the Default Ratios for any three consecutive calendar months during
the twelve most recent calendar months, plus (y) the greater of (1) the highest
average of the Dilution Ratios for any three consecutive calendar months during
the twelve most recent calendar months and (2) 2.25%, (ii) 4 times the quotient
(expressed as a percentage) of (x) the aggregate Outstanding Balance of the
Eligible Receivables then included in the Net Receivable Pool Balance of the
non-Investment Grade Obligor with the greatest amount of Receivables included in
the Net Receivables Pool Balance divided by (y) Net
Receivables Pool Balance on such date, and (iii) 18%.
“Loss Reserve” means,
for the Participation, on any date, an amount equal to
LP x
NRPB
where:
LP = the
Loss Percentage for the Participation on such date.
NRPB = Net
Receivables Pool Balance.
“Loss-to-Liquidation
Ratio” means the ratio (expressed as a percentage and rounded upward to
the nearest 1/100th of 1%) computed as of the last day of each Fiscal Month by
dividing (i) the aggregate Outstanding Balance of all Pool Receivables written
off by the Seller, or which should have been written off by the Seller in
accordance with the Credit and Collection Policy, during such Fiscal Month by
(ii) the aggregate amount of Collections of Pool Receivables actually received
during such period.
“Majority Purchasers”
means, at any time, the Related Committed Purchasers whose Commitments aggregate
more than 66-2/3% of the aggregate of the Commitments of all Purchasers; provided, however, that so long
as any one Related Committed Purchaser’s Commitment is greater than 50% of the
aggregate Commitments and there is more than one Related Committed Purchaser,
then “Majority Purchasers” shall mean a minimum of two Related Committed
Purchasers whose Commitments aggregate more than 66-2/3% of the aggregate
Commitments.
“Material Adverse
Effect” has the meaning set forth in Section 5.20 of the
Purchase and Contribution Agreement.
“Moody’s” means
Xxxxx’x Investors Service, Inc. or its successor.
“Net Income” of any
Person shall mean the net income of such Person and its subsidiaries determined
on a consolidated basis in accordance with generally accepted accounting
principles, consistently applied.
“Net Receivables Pool
Balance” means at any time an amount equal to the sum of (a) the
aggregate Outstanding Balances of Eligible Receivables then in the Receivables
Pool minus
(b) the aggregate amount of any accounts payable which are greater than 15
days past the date on which such accounts payable became due, owed by Pilgrim’s
Pride to any Poultry Grower under any Poultry Growing Arrangement, minus (c) the
aggregate amount by which the Outstanding Balance of the Eligible Receivables of
each Obligor then in the Receivables Pool exceeds the product of (A) the Normal
Concentration Percentage for such Obligor multiplied by (B) the Outstanding
Balance of the Eligible Receivables then in the Receivables Pool.
“Net Worth” of any
Person shall mean the Total Assets minus the Total Liabilities of such Person
and its subsidiaries, all determined on a consolidated basis in accordance with
generally accepted accounting principles, consistently applied.
“Normal Concentration
Percentage” means, at any time, (a) for any Obligor that is not a Special
Obligor, 3%; or (b) for any Obligor that is a Special Obligor, (i) if such
Special Obligor is rated A+ or better by S&P and A1 or better by Moody’s,
12% or (ii) if such Special Obligor is not so rated but is rated at least BBB-
by S&P and Baa3 by Moody’s, 6%. If the ratings from S&P and
Moody’s fall within different categories, the Normal Concentration Percentage
shall be based on the category in which the lower of the two ratings
falls. If any Obligor is rated only by S&P or only by Moody’s,
the Normal Concentration Percentage shall be based on the rating by such Rating
Agency without regard to a rating by any other Rating Agency.
“Note Issuer” has the
meaning set forth in Section 6.3(e).
“Notes” means
short-term promissory notes issued or to be issued by any Note Issuer
(including, without limitation, any Uncommitted Purchaser) to fund its
investments in accounts receivable or other financial assets.
“Obligor” means, with
respect to any Receivable, the Person obligated to make payments pursuant to the
Contract relating to such Receivable.
“Original Agreement”
has the meaning set forth in the preamble to the Agreement.
“Original Agreement
Outstanding Amounts” has the meaning set forth in the preamble to the
Agreement.
“Originator” means,
individually or collectively, as the context may require (a) Pilgrim’s Pride, as
the transferor of Receivables to the Seller under the Purchase and Contribution
Agreement described in clause (i) of the
definition thereof and (b) each Transferor, as a transferor of Receivables to
Pilgrim’s Pride under a Purchase Agreement.
“Outstanding Balance”
of any Receivable at any time means the then outstanding principal balance
thereof; provided, however, that the
aggregate Outstanding Balance of the Receivables owed by any Obligor and its
Affiliates shall be reduced (but not to an amount less than zero) by the amount
of any payment obligations owed by the Originator and its Affiliates to such
Obligor.
“Participant” has the
meaning set forth in Section
6.3(b).
“Participation” means,
at any time, the undivided percentage ownership interest of the Administrator
for the benefit of the Purchasers in (i) each and every Pool Receivable now
existing or hereafter arising, other than any Pool Receivable that arises on or
after the Facility Termination Date, (ii) all Related Security with respect to
such Pool Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Pool Receivables and Related Security. Such
undivided percentage interest shall be computed as
I + DR + LR +
SFR
NRB
where:
|
I
|
=
|
the
Investment of the Participation at the time of
computation.
|
|
DR
|
=
|
the
Discount Reserve of the Participation at the time of
computation.
|
|
LR
|
=
|
the
Loss Reserve of the Participation at the time of
computation.
|
|
SFR
|
=
|
the
Servicing Fee Reserve of the Participation at the time of
computation.
|
|
NRB
|
=
|
the
Net Receivables Pool Balance at the time of computation; provided, that
solely for purposes of clause (i) of
Exhibit
V, NRB shall equal the sum of (a) the Net Receivables Pool Balance
at the time of computation plus (b) amounts then on deposit in the
Lock-Box Accounts, Collection Account and/or Liquidation Account and
available for and applicable to the payment of principal in respect of the
Aggregate Investment outstanding at the time of
computation.
|
The
Participation shall be determined from time to time pursuant to the provisions
of Section 1.3.
“Payment Date” has the
meaning set forth in Section 1.4 of the
Purchase and Contribution Agreement.
“Permitted
Encumbrance” means (a) liens created or arising in favor of Administrator
for the benefit of Purchasers pursuant to the Transaction Documents; and (b)
solely in the case of any Originator (i) liens for taxes, assessments or other
governmental charges which are not delinquent or, if delinquent, are subject of
a Good Faith Contest and with respect to which proper reserves have been
established by the applicable Originator in accordance with GAAP; provided, that the
lien shall have no effect on the priority of the liens in favor of Administrator
or in any material respect on the value of the assets in which Administrator has
such a lien and a stay of enforcement of any such lien shall be in effect; (ii)
judgment liens (not relating to any Receivables, Related Security or Collections
or any interest in the Seller), not in excess of $30,000,000, that have been
stayed or bonded and are subject of a Good Faith Contest by the applicable
Originator; provided that proper
reserves have been established therefor by such Originator in accordance with
GAAP, and (iii) mechanics’, workers’, materialmen’s or other like liens (not
relating to any Receivables, Related Security or Collections or any interest in
the Seller), not in excess of $10,000,000, arising in the ordinary course of
such Originator’s business with respect to obligations which are not due or
which are subject of a Good Faith Contest by such Originator and for which
proper reserves have been established in accordance with GAAP, and which have
not been outstanding for longer than 30 days.
“Permitted
Investments” means any US Dollar-denominated investment that is issued
after July 18, 1984 and, at the time of acquisition, is one or more of the
following obligations or securities:
a) direct
obligations of, or obligations the timely payment of principal of and interest
on, which is fully and expressly guaranteed by, the United States, or any agency
or instrumentality of the United States; or
b) demand
and time deposits in, certificates of deposit of, bankers’ acceptances issued
by, or federal funds sold by, any depository institution or trust company
incorporated under the laws of the United States or any state thereof or the
District of Columbia or otherwise subject to the supervision and examination by
federal and/or state banking authorities so long as the
commercial paper and/or the debt obligations of such depositary
institution or trust company (or, in the case of the principal depositary
institution in a holding company system, the commercial paper or debt
obligations of such holding company) at the time of such investment or
contractual commitment providing for such investment have (i) with respect to
such investments having a maturity of 30 days or less a short-term credit rating
of not less than “P-1” by Moody’s and “A-1” by S&P and (ii) with respect to
all other such investments, a long-term credit rating of not less than “A1” by
Moody’s and “A+” by S&P; or
c) unleveraged
repurchase or forward purchase obligations with respect to (i) any security
described in clause
(a) above or (ii) any other security issued or guaranteed by an agency or
instrumentality of the United States, in either case entered into with a
depository institution or trust company (acting as principal) described in clause (b) above or
entered into with a corporation (acting as principal) whose long-term rating is
(A) with respect to such investments having a maturity of 30 days or less a
short-term credit rating of not less than “P-1” by Moody’s and “A-1” by S&P
and (B) with respect to all other such investments, a long-term credit rating of
not less than “A1” by Moody’s and “A+” by S&P; provided, that the
issuer of the underlying security thereof must also have at the time of such
investment a long-term credit rating of not less than “Aaa” by Moody’s and “AAA”
by S&P; or
d) commercial
paper or other similar short-term obligations having at the time of such
investment a short-term credit rating of not less than “P-1” by Moody’s and
“A-1” by S&P for Eligible Investments which have a maturity of 30 days or
less; or
e) money
market funds which have at all times the highest credit rating assigned by each
of S&P and Moody’s; or
f) any other
investment similar to those described in clauses (a) through
(d) above that
has (i) with respect to such investments having a maturity of 30 days or less a
short-term credit rating of not less than “P-1” by Moody’s and “A-1” by S&P
and (ii) with respect to all other such investments, a long-term credit rating
of not less than “A1” by Moody’s and “A+” by S&P;
provided that
mortgage-backed securities and Interest Only Securities shall not constitute
Permitted Investments; and provided, further, that
Permitted Investments shall not (a) include obligations bearing interest at
inverse floating rates; (b) have payments subject to foreign or United States
withholding tax; (c) have been purchased for a price in excess of par and (d)
have an S&P rating which contains a subscript “r”, “t”, “p”, “pi” or
“q”.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture, limited liability
company or other entity, or a government or any political subdivision or agency
thereof.
“Pilgrim’s Pride” has
the meaning set forth in the preamble to the Agreement.
“Plan” means any
employee benefit plan covering any officers or employees of Pilgrim’s Pride or
any Subsidiary, any benefits of which are, or are required to be, guaranteed by
the Pension Benefit Guaranty Corporation.
“Pool Assets” has the
meaning set forth in Section
1.2(d).
“Pool Receivable”
means a Receivable in the Receivables Pool.
“Portion of
Investment” has, with respect to any Purchaser, the meaning set forth in
Section 1.7. In
addition, with respect to any Purchaser, at any time when the Investment of the
Participation is not divided into two or more portions, “Portion of Investment”
means 100% of the Investment of the Participation.
“Poultry Grower” means
any Person engaged in the business of raising and caring for live
poultry.
“Poultry Growing
Arrangement” means any growout contract, marketing agreement or any other
arrangement under which a Poultry Grower raises and cares for live
poultry.
“Prime Rate” has the
meaning set forth in Section 2.1 of the
Purchase and Contribution Agreement.
“Program Fee” has the
meaning set forth in the applicable Purchaser Group Fee Letter.
“Program Support
Agreement” means and includes each Liquidity Agreement and any other
agreement entered into by any Program Support Provider providing for the
issuance of one or more letters of credit for the account of any Purchaser, the
issuance of one or more surety bonds for which such Purchaser is obligated to
reimburse the applicable Program Support Provider for any drawings thereunder,
the sale by such Purchaser to any Program Support Provider of the Participation
(or portions thereof) and/or the making of loans and/or other extensions of
credit to such Purchaser in connection with such Purchaser’s securitization
program, together with any letter of credit, surety bond or other instrument
issued thereunder.
“Program Support
Provider” means and includes with respect to each Uncommitted Purchaser
any Liquidity Bank and any other or additional Person (other than any customer
of the Purchaser) now or hereafter extending credit or having a commitment to
extend credit to or for the account of, or to make purchases from, such
Uncommitted Purchaser or issuing a letter of credit, surety bond or other
instrument to support any obligations arising under or in connection with any
Uncommitted Purchaser’s securitization program.
“Property” shall mean
any interest in any kind of property or asset, whether real, personal or mixed
or tangible or intangible.
“Protein IRB Bond”
shall mean Pilgrim’s Pride’s obligations pursuant to that certain Loan Agreement
dated as of June 5, 1999 between Pilgrim’s Pride and the Camp County Industrial
Development Corporation and in connection with the related bonds issued by the
Camp County Industrial Development Corporation.
“Purchase” has the
meaning set forth in Section
1.1(a).
“Purchase Agreement”
means each of (i) the Purchase Agreement dated as of December 31, 2003, among
Pilgrim’s Pride, as buyer and each of the various Transferors from time to time
parties thereto, as sellers, as such agreement may be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof and
(ii) with the written consent of the Administrator, and upon receipt by the
Administrator of opinions and such other documents as requested by the
Administrator in connection therewith, any other Purchase Agreement entered into
from time to time by Pilgrim’s Pride as buyer and each of the various
Transferors from time to time parties thereto, as sellers, as each such
agreement may be amended, supplemented, or otherwise modified from time to time
in accordance with the terms thereof.
“Purchase and Contribution
Agreement” means, as the context may require, either or both of (i) the
Purchase and Contribution Agreement, dated as of June 26, 1998, among Pilgrim’s
Pride, the Servicer and the Seller, as amended through the date hereof and as
the same may be modified, supplemented, amended and amended and restated from
time to time in accordance with the Transaction Documents and (ii) each Purchase
Agreement, as amended through the date hereof and as the same may be modified,
supplemented, amended and amended and restated from time to time in accordance
with the Transaction Documents.
“Purchase and Sale
Indemnified Amount” has the meaning set forth in Section 9.1 of the
Purchase and Contribution Agreement.
“Purchase and Sale
Indemnified Party” has the meaning set forth in Section 9.1 of the
Purchase and Contribution Agreement.
“Purchase and Sale
Termination Date” has the meaning set forth in Section 1.4 of the
Purchase and Contribution Agreement.
“Purchase and Sale
Termination Event” has the meaning set forth in Section 8.1 of the
Purchase and Contribution Agreement.
“Purchase Facility”
has the meaning set forth in Section 1.1 of the
Purchase and Contribution Agreement.
“Purchase Limit” means
the lesser of (a) the aggregate of the Commitments of each Related Committed
Purchaser at such time and (b) the aggregate of the Group Commitments with
respect to each Purchaser Group at such time, as such amount may be reduced
pursuant to Section
1.1(b) or otherwise in connection with any Exiting
Purchaser. References to the unused portion of the Purchase Limit
shall mean, at any time, the Purchase Limit minus the then outstanding
Investment of the Participation under the Agreement.
“Purchase Price” has
the meaning set forth in Section 2.1 of the
Purchase and Contribution Agreement.
“Purchase Report” has
the meaning set forth in Section 2.1 of the
Purchase and Contribution Agreement.
“Purchaser” means each
Uncommitted Purchaser and Related Committed Purchaser, as
applicable.
“Purchaser Agent”
means each Person acting as agent on behalf of a Purchaser Group and designated
as a Purchaser Agent for such Purchaser Group on the signature pages to the
Agreement or any other Person who becomes a party to this Agreement as a
Purchaser Agent pursuant to an Assumption Agreement or a Transfer
Supplement.
“Purchaser Group”
means, for each Uncommitted Purchaser, such Uncommitted Purchaser, its Related
Committed Purchasers (if any) and its related Purchaser Agent.
“Purchaser Group Fee
Letter” has the meaning set forth in Section
1.5.
“Purchaser’s Account”
means the account maintained by the applicable Purchaser Agent for the
Purchasers in such Purchaser Agent’s Purchaser Group; in the case of the BMOCM
Purchaser Group, the “Purchaser’s Account” means the special account (account
number 0000000) of the Purchaser maintained at the office of Xxxxxx in Chicago,
Illinois (ABA #071-000-288) or such other account as may be so designated in
writing to the Seller and the Servicer.
“Purchasing Related Committed
Purchaser” has the meaning set forth in Section
6.3(c).
“Ratable Share” means,
for each Purchaser Group, such Purchaser Group’s aggregate Commitments divided
by the aggregate Commitments of all Purchaser Groups.
“Rate Variance Factor”
means 1.50.
“Rating Agencies”
means Moody’s and S&P.
“Receivable” means any
indebtedness and other obligations owed to any Originator (including any
applicable Transferor) or the Seller or any right of any Originator (including
any applicable Transferor) or Seller to payment from or on behalf of an Obligor,
or any right to reimbursement for funds paid or advanced by such Originator or
Seller on behalf of an Obligor, whether constituting an account, chattel paper,
payment intangible, instrument or general intangible, however arising in
connection with the sale of goods or the rendering of services by such
Originator or Seller (whether or not earned by performance), and includes,
without limitation, the obligation to pay any finance charges, fees and other
charges with respect thereto. Indebtedness and other obligations
arising from any one transaction, including, without limitation, indebtedness
and other obligations represented by an individual invoice or agreement, shall
constitute a Receivable separate from a Receivable consisting of the
indebtedness and other obligations arising from any other
transaction.
“Receivables Pool”
means at any time all of the then outstanding Receivables.
“Related Committed
Purchaser” means each of the financial institutions identified on the
signature pages hereto as a “Related Committed Purchaser” and its respective
successors and assigns.
“Related Rights” has
the meaning set forth in Section 1.1 of the
Purchase and Contribution Agreement.
“Related Security”
means, with respect to any Receivable:
(i) all
of the Seller’s or the applicable Originator’s (including the applicable
Transferor’s) interest in any goods (including returned goods), and
documentation or title evidencing the shipment or storage of any goods
(including returned goods), relating to any sale giving rise to such
Receivable;
(ii) all
other security interests or liens and property subject thereto from time to time
purporting to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with all UCC
financing statements or similar filings signed by an Obligor relating thereto;
and
(iii) all
guaranties, indemnities, insurance and other agreements (including the related
Contract) or arrangements of whatever character from time to time supporting or
securing payment of such Receivable or otherwise relating to such Receivable
whether pursuant to the Contract related to such Receivable or
otherwise.
“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.
“S&P” means
Standard and Poor’s Rating Services, a division of The McGraw Hill Companies,
Inc. or any successor to its rating business.
“Scheduled Commitment
Termination Date” means August 14, 2009, as such date may be extended
from time to time in accordance with Section
1.1(d)
“Seller” has the
meaning set forth in the preamble to the Agreement.
“Servicer” has the
meaning set forth in the preamble to the Agreement.
“Servicer Report”
means a report, in substantially the form of Annex A hereto,
furnished by the Servicer to the Administrator and each Purchaser Agent pursuant
to the Agreement.
“Servicer Report Date”
means the 15th Business Day following the last day of each Fiscal
Month.
“Servicing Fee” shall
mean the fee referred to in Section 4.6.
“Servicing Fee
Reserve” for the Participation at any time means the sum of (i) the
unpaid Servicing Fee relating to the Participation accrued to such time, plus
(ii) an amount equal to (a) the Net Receivables Pool Balance at the time of
computation multiplied by (b) the product of (x) the percentage per annum at
which the Servicing Fee is accruing on such date and (y) a fraction having the
sum of the Average Maturity plus the Collection Delay Period (each as in effect
at such date) as its numerator and 360 as its denominator.
“Settlement Period”
for each Portion of Investment means each period commencing on the first day and
ending on the last day of each Yield Period for such Portion of Investment and,
on and after the Termination Date, such period (including, without limitation, a
period of one day) as shall be selected from time to time by the
Administrator.
“Solvent” has the
meaning set forth in Section 5.20 of the
Purchase and Contribution Agreement.
“Special Obligor”
means an Obligor having a long-term public senior debt rating of at least
Investment Grade or which has been approved by the Administrator and the
Majority Purchasers; provided, however, that, to the
extent required by the securitization program of any Uncommitted Purchaser, each
of the Rating Agencies shall have provided a notice in writing to the
Administrator and each applicable Purchaser Agent to the effect that the
inclusion of such Obligor as a Special Obligor will not result in the
downgrading or withdrawal of such Rating Agencies’ current rating of such
Notes.
“Sub-Servicer” shall
have the meaning set forth in Section
4.1(d).
“Subsidiary” means,
collectively, any corporation or other entity at least a majority of the
outstanding voting equity interests (other than directors’ qualifying shares)
(measured by voting power rather than number of shares) of which is at the time
owned directly or indirectly by Pilgrim’s Pride or by one or more subsidiaries
or by Pilgrim’s Pride and one or more subsidiaries.
“Tangible Net Worth”
of any Person (as calculated on the last day of each fiscal quarter of such
Person), shall mean the Net Worth of such Person minus the amount of all
Intangible Assets of such Person on such date and its subsidiaries, determined
on a consolidated basis in accordance with generally accepted accounting
principles, consistently applied.
“Termination Date”
means the earlier of (i) the Business Day which the Seller so designates by
notice to the Administrator at least 30 Business Days in advance and (ii) the
Facility Termination Date.
“Termination Day”
means (i) each day on which the conditions set forth in Section 2 of
Exhibit II are
not satisfied and (ii) each day which occurs on or after the Termination
Date.
“Termination Discount”
means, for the Participation on any date, an amount equal to the Rate Variance
Factor on such date multiplied by the product of (i) the Investment of the
Participation on such date and (ii) the product of (a) the Base Rate for the
Participation plus 2% per annum for a 30-day Yield Period deemed to commence on
such date and (b) a fraction having as its numerator the sum of the Average
Maturity plus the Collection Delay Period (each as in effect at such date) and
360 as its denominator.
“Termination Event”
has the meaning specified in Exhibit
V.
“Termination Fee”
means, for any Yield Period during which a Termination Day occurs, the amount,
if any, by which (i) the additional Discount (calculated without taking into
account any Termination Fee or any shortened duration of such Yield Period
pursuant to clause
(iv) of the definition thereof) which would have accrued during such
Yield Period on the reductions of Investment of the Participation relating to
such Yield Period had such reductions remained as Investment, exceeds (ii) the
income, if any, received by the Purchaser from the Purchaser investing the
proceeds of such reductions of Investment, as determined by the Administrator,
which determination shall be binding and conclusive for all purposes, absent
manifest error.
“Total Assets” with
respect to any Person, shall mean at any date, the aggregate amount of assets of
such Person and its subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles consistently
applied.
“Total Liabilities”
with respect to any Person, shall mean at any date, the aggregate amount of all
liabilities of such Person and its subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting principles,
consistently applied.
“Transaction
Documents” means the Agreement, each Purchaser Group Fee Letter, the
Purchase and Contribution Agreement, the Lock-Box Agreements, the Liquidation
Account Agreement and all other certificates, instruments, UCC financing
statements, reports, notices, agreements and documents executed or delivered
under or in connection with the Agreement, in each case as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the Agreement.
“Transfer Supplement”
has the meaning set forth in Section 6.3(c) of the
Agreement.
“Transferor” means,
each Affiliate of Pilgrim’s Pride, from time to time party to a Purchase
Agreement, as a seller or transferor thereunder. As of the date
hereof such Transferors shall include only the following entities: each of
Pilgrim’s Pride Corporation of West Virginia, Inc. and PFS Distribution
Company.
“UCC” means the
Uniform Commercial Code as from time to time in effect in the applicable
jurisdiction.
“Uncommitted
Purchaser” means each of the financial institutions identified on the
signature pages hereto as an “Uncommitted Purchaser” and its respective
successors and permitted assigns.
“Unmatured Termination
Event” means an event which, with the giving of notice or lapse of time,
or both, would constitute a Termination Event.
“Yield Period” means,
with respect to each Portion of Investment:
(a) initially
the period commencing on the date of a purchase pursuant to Section 1.2 and
ending such number of days as the Seller shall select, subject to the approval
of the applicable Purchaser Agent pursuant to Section 1.2, up
to 60 days after such date; and
(b) thereafter
each period commencing on the last day of the immediately preceding Yield Period
for any Portion of Investment of the Participation and ending such number of
days (not to exceed 60 days) as the Seller shall select, subject to the approval
of the applicable Purchaser Agent pursuant to Section 1.2, on
notice by the Seller received by the Administrator (including notice by
telephone, confirmed in writing) not later than 11:00 a.m. (Chicago time) on
such last day, except that if the
applicable Purchaser Agent shall not have received such notice or approved such
period on or before 11:00 a.m. (Chicago time) on such last day, such period
shall be one day; provided,
that
(i) any
Yield Period in respect of which Discount is computed by reference to the Bank
Rate shall be a period from one to and including 60 days;
(ii) any
Yield Period (other than of one day) which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day; provided, however, if Discount
in respect of such Yield Period is computed by reference to the Eurodollar Rate,
and such Yield Period would otherwise end on a day which is not a Business Day,
and there is no subsequent Business Day in the same calendar month as such day,
such Yield Period shall end on the next preceding Business Day;
(iii) in
the case of any Yield Period of one day, (A) if such Yield Period is the initial
Yield Period for a purchase pursuant to Section 1.2, such
Yield Period shall be the day of purchase of the Participation; (B) any
subsequently occurring Yield Period which is one day shall, if the immediately
preceding Yield Period is more than one day, be the last day of such immediately
preceding Yield Period, and, if the immediately preceding Yield Period is one
day, be the day next following such immediately preceding Yield Period; and (C)
if such Yield Period occurs on a day immediately preceding a day which is not a
Business Day, such Yield Period shall be extended to the next succeeding
Business Day; and
(iv) in
the case of any Yield Period for any Portion of Investment of the Participation
which commences before the Termination Date and would otherwise end on a date
occurring after the Termination Date, such Yield Period shall end on such
Termination Date and the duration of each Yield Period which commences on or
after the Termination Date shall be of such duration as shall be selected by the
applicable Purchaser Agent.
Other
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting
principles. All terms used in Article 9 of the UCC in the State of
Texas, and not specifically defined herein, are used herein as defined in such
Article 9. Unless the context otherwise requires, “or” means
“and/or,” and “including” (and with correlative meaning “include” and
“includes”) means including without limiting the generality of any description
preceding such term.
1408834 98442494
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EXHIBIT
II
CONDITIONS
OF PURCHASES
1. Conditions Precedent to
Closing Date. The occurrence of the Closing Date is subject to
the conditions precedent that the Administrator and each Purchaser Agent shall
have received on or before the date of such purchase the following, each in form
and substance (including the date thereof) satisfactory to the Administrator and
each Purchaser Agent:
(a) A
counterpart of this Agreement and the other Transaction Documents duly executed
by the parties thereto.
(b) Certified
copies of (i) the resolutions of the Board of Directors of each of the Seller,
the Servicer and the Originator authorizing the execution, delivery, and
performance by the Seller, the Servicer and the Originator of the Transaction
Documents to which they are a party, (ii) all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
the Agreement and the other Transaction Documents and (iii) the certificate of
incorporation and by-laws of the Seller, the Servicer and the
Originator.
(c) A
certificate of the Secretary or Assistant Secretary of each of the Seller, the
Servicer and the Originator certifying the names and true signatures of its
officers authorized to sign the Agreement and the other Transaction Documents to
which it is a party. Until the Administrator receives a subsequent
incumbency certificate from the Seller, the Servicer and the Originator in form
and substance satisfactory to the Administrator, the Administrator shall be
entitled to rely on the last such certificate delivered to it by the Seller, the
Servicer and the Originator, as the case may be.
(d) Copies
of (i) the Limited Duration Waiver Agreement duly executed by each of the
parties thereto, (ii) the CoBank Limited Duration Waiver (as defined in the
Limited Duration Waiver Agreement) duly executed by each of the parties thereto
and (iii) the Credit Agreement Limited Duration Waiver (as defined in the
Limited Duration Waiver Agreement) duly executed by each of the parties
thereto.
(e) [Intentionally
Omitted].
(f) [Intentionally
Omitted].
(g) [Intentionally
Omitted].
(h) Favorable
opinions of Xxxxx & XxXxxxxx, LLP, counsel for the Seller, in form and
substance acceptable to the Administrator and covering such matters as the
Administrator may reasonably request, including, without limitation,
organizational and enforceability matters, certain bankruptcy matters, and
certain UCC perfection and priority matters.
(i) [Intentionally
Omitted].
(j) A
copy of the Servicer Report as of August 31, 2008.
(k) Evidence
(i) of the execution and delivery by each of the parties thereto of the
amendment to the Purchase and Contribution Agreement, dated as of the date
hereof, and all documents, agreements and instruments contemplated thereby
(which evidence shall include copies, either original or facsimile, of each of
such documents, instruments and agreements) and (ii) that each of the conditions
precedent to the execution and delivery of the amendment to the Purchase and
Contribution Agreement referred to above has been satisfied to the
Administrator’s satisfaction.
(l) Evidence
of payment by the Seller of all accrued and unpaid fees (including those
contemplated by each Purchaser Group Fee Letter), costs and expenses to the
extent then due and payable on the date thereof, together with Attorney Costs of
the Administrator and each Purchaser Agent to the extent invoiced prior to or on
such date, plus such additional amounts of Attorney Costs as shall constitute
the Administrator’s and each Purchaser Agent’s reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings;
including any such costs, fees and expenses arising under or referenced in Section
6.4.
(m) Each
Purchaser Group Fee Letter between the Seller and the applicable Purchaser Agent
as contemplated by Section
1.5.
(n) Good
standing certificates with respect to the Seller, the Originator, each
Transferor and the Servicer issued by the Secretaries of State of the States of
such Person’s organization and principal place of business.
(o) Such
other approvals, opinions or documents as the Administrator may reasonably
request.
2. Conditions Precedent to All
Purchases and Reinvestments. Each purchase (including the
initial purchase) and each reinvestment shall be subject to the further
conditions precedent that:
(a) in
the case of each purchase, the Servicer shall have delivered to the
Administrator and each Purchaser Agent on or prior to such purchase, in form and
substance satisfactory to the Administrator and each Purchaser Agent, a
completed Servicer Report with respect to the immediately preceding Fiscal
Month, dated within 40 days prior to the date of such purchase together with a
listing by Obligor of all Receivables, a completed Collateral Report, dated as
of the date requested by the Administrator and each Purchaser Agent, and such
additional information as may reasonably be requested by the Administrator or
any Purchaser Agent;
(b) on
the date of such purchase or reinvestment the following statements shall be true
(and acceptance of the proceeds of such purchase or reinvestment shall be deemed
a representation and warranty by the Seller that such statements are then
true):
(i) the
representations and warranties contained in Exhibit III are true
and correct on and as of the date of such purchase or reinvestment as though
made on and as of such date; and
(ii) no
event has occurred and is continuing, or would result from such purchase or
reinvestment, that constitutes a Termination Event or an Unmatured Termination
Event; and
(iii) in
the case of purchases only, no event of the type described in clause(e) of Exhibit V has
occurred and is continuing; and
(c) the
Administrator and each Purchaser Agent shall have received such other approvals,
opinions or documents as such Person may reasonably request.
1408834 98442494
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EXHIBIT
III
REPRESENTATIONS
AND WARRANTIES
Representations and
Warranties of the Seller. The Seller represents and warrants
as follows:
(a) The
Seller is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and is duly qualified to do business,
and is in good standing, as a foreign corporation in every jurisdiction where
the nature of its business requires it to be so qualified unless any failure to
be so qualified would not materially adversely affect the business, operations
or financial condition of Seller or the ability of Seller to perform its
obligations under this Agreement or the other Transaction Documents or the
collectibility of the Receivables or the validity or enforceability of this
Agreement or other Transaction Documents.
(b) The
execution, delivery and performance by the Seller of the Agreement and the other
Transaction Documents to which it is a party, including the Seller’s use of the
proceeds of purchases and reinvestments, (i) are within the Seller’s corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
do not contravene or result in a default under or conflict with (1) the Seller’s
charter or by-laws, (2) any law, rule or regulation applicable to the Seller,
(3) any contractual restriction binding on or affecting the Seller or its
property or (4) any order, writ, judgment, award, injunction or decree binding
on or affecting the Seller or its property, and (iv) do not result in or require
the creation of any Adverse Claim upon or with respect to any of its
properties. The Agreement and the other Transaction Documents to
which it is a party have been duly executed and delivered by the
Seller.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or other Person is required for the due execution,
delivery and performance by the Seller of the Agreement or any other Transaction
Document to which it is a party other than those previously obtained or UCC
filings.
(d) Each
of the Agreement and the other Transaction Documents to which it is a party
constitutes the legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
(e) There
is no pending or threatened action or proceeding affecting the Seller before any
Governmental Authority or arbitrator which could reasonably be expected to
materially adversely affect the business, operations, property, financial or
other condition or operations of the Seller, the ability of the Seller to
perform its obligations under the Agreement or the other Transaction Documents
or the collectibility of the Receivables, or which affects or purports to affect
the legality, validity or enforceability of the Agreement or the other
Transaction Documents.
(f) The
Seller is the legal and beneficial owner of the Pool Receivables and Related
Security, free and clear of any Adverse Claim; upon each purchase or
reinvestment, the Administrator, for the benefit of the Purchasers, shall
acquire a valid and enforceable perfected undivided percentage ownership
interest, to the extent of the Participation, in each Pool Receivable then
existing or thereafter arising and in the Related Security and Collections and
other proceeds, with respect thereto, free and clear of any Adverse Claim; the
Agreement creates a security interest in favor of the Administrator on behalf of
the Purchasers in the items described in Section 1.2(d), and
the Administrator on behalf of the Purchasers has a first priority perfected
security interest in such items, free and clear of any Adverse
Claims. No effective financing statement or other instrument similar
in effect covering any Contract or any Pool Receivable or the Related Security
or Collections with respect thereto or any Lock-Box Account is on file in any
recording office, except those filed in favor of the Administrator on behalf of
the Purchasers relating to the Agreement.
(g) Each
Servicer Report, Collateral Report, information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Administrator or any Purchaser Agent in
connection with the Agreement is or will be accurate in all material respects as
of its date or (except as otherwise disclosed to the Administrator or such
Purchaser Agent at such time) as of the date so furnished, and no such item
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading.
(h) The
principal place of business and chief executive office (as such terms are used
in the UCC) of the Seller and the office where the Seller keeps its records
concerning the Receivables are located at the address referred to in paragraph (b) of
Exhibit
IV. For purposes of the UCC, the Seller is located at the
address referred to in paragraph (b) of
Exhibit
IV.
(i) The
names and addresses of all the Lock-Box Banks, together with the account numbers
of the Lock-Box Accounts of the Seller at such Lock-Box Banks, are specified in
Schedule II to
the Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box
Accounts as have been notified to the Administrator in accordance with the
Agreement) and, subject to Section 4.3(a), all
Lock-Box Accounts are subject to Lock-Box Agreements. All Obligors
have been directed to make all payment with respect to each Contract to a
Lock-Box Account.
(j) The
Seller is not in violation of any order of any court, arbitrator or Governmental
Authority.
(k) No
proceeds of any purchase or reinvestment will be used for any purpose that
violates any applicable law, rule or regulation, including, without limitation,
Regulations T, U and X of the Federal Reserve Board.
(l) Each
Pool Receivable included as an Eligible Receivable in the calculation of the Net
Receivables Pool Balance is an Eligible Receivable as of the date of such
calculation.
(m) No
event has occurred and is continuing, or would result from a purchase in respect
of, or reinvestment in respect of, the Participation or from the application of
the proceeds therefrom, which constitutes a Termination Event.
(n) The
Seller and the Servicer have complied in all material respects with the Credit
and Collection Policy with regard to each Receivable.
(o) The
Seller has complied with all of the terms, covenants and agreements contained in
the Agreement and the other Transaction Documents.
(p) The
Seller’s complete corporate name is set forth in the preamble to the Agreement,
and the Seller does not use and has not during the last six years used any other
corporate name, trade name, doing-business name or fictitious name, except as
set forth on Schedule
III and except for names first used after the date of the Agreement and
set forth in a notice delivered to the Administrator pursuant to paragraph (l)(vii) of
Exhibit
IV.
(q) Seller
has filed all federal and other tax returns and reports required by law to have
been filed by it and has paid all taxes and governmental charges thereby shown
to be owing.
(r) The
Seller is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
(s) The
consolidated balance sheet of Pilgrim’s Pride as at June 28, 2008, a copy of
which has been furnished to the Administrator, fairly presents the financial
condition of Pilgrim’s Pride and its consolidated subsidiaries in all material
respects, as at such date, and since the date of such balance sheet, there has
been no material adverse change in the financial condition of the Seller or
Pilgrim’s Pride or the ability of the Seller or the Originator to perform their
obligations under the Agreement or the other Transaction Documents to which it
is a party or the collectibility of the Pool Receivables, or which affects the
legality, validity or enforceability of the Agreement or the other Transaction
Documents.
(t) There
is no pending or threatened action or proceeding affecting the Seller, Servicer
or the Originator before any Governmental Authority or arbitrator which could
reasonably be expected to materially adversely affect the business, operations,
property, financial or other condition or operations of such Person, the ability
of such Person to perform its obligations under the Agreement or the other
Transaction Documents or the collectibility of the Pool Receivables, or which
affects or purports to affect the legality, validity or enforceability of the
Agreement or the other Transaction Documents.
(u) Each
remittance of Collections by or on behalf of the Seller pursuant to the
Transaction Documents and any related accounts of amounts owing hereunder in
respect of the Funded Purchases will have been (i) in payment of a debt incurred
by Seller in the ordinary course of business or financial affairs of the Seller
and (ii) made in the ordinary course of business or financial affairs of the
Seller.
1408834 98442494
III-
EXHIBIT
IV
COVENANTS
Covenants of the Seller and
the Servicer. Until the latest of the Facility Termination
Date, the date on which no Investment of or Discount in respect of the
Participation shall be outstanding or the date all other amounts owed by the
Seller under the Agreement to any Purchaser, any Purchaser Agent, the
Administrator and any other Indemnified Party or Affected Person shall be paid
in full:
(a) Compliance with Laws,
Etc. Each of the Seller and the Servicer shall comply in all
material respects with all applicable laws, rules, regulations and orders, and
preserve and maintain its corporate existence, rights, franchises,
qualifications, and privileges except to the extent that the failure so to
comply with such laws, rules and regulations or the failure so to preserve and
maintain such existence, rights, franchises, qualifications, and privileges
would not materially adversely affect the collectibility of the Receivables or
the enforceability of any related Contract or the ability of the Seller or the
Servicer to perform its obligations under any related Contract or under the
Agreement.
(b) Offices, Records and Books
of Account, Etc. The Seller (i) shall keep its principal place
of business and chief executive office (as such terms are used in the UCC) and
the office where it keeps its records concerning the Receivables at the address
of the Seller set forth under its name on the signature page to the Agreement
or, upon at least 30 days’ prior written notice of a proposed change to the
Administrator, at any other locations in jurisdictions where all actions
reasonably requested by the Administrator to protect and perfect the interest of
the Purchaser in the Receivables and related items (including without limitation
the items described in Section 1.2(d)) have
been taken and completed and (ii) shall provide the Administrator with at least
60 days’ written notice prior to making any change in the Seller’s name or
making any other change in the Seller’s identity or corporate structure
(including a merger) which could render any UCC financing statement filed in
connection with this Agreement “seriously misleading” as such term is used in
the UCC; each notice to the Administrator pursuant to this sentence shall set
forth the applicable change and the effective date thereof. The
Seller also will maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records,
computer tapes and disks and other information reasonably necessary or advisable
for the collection of all Receivables (including, without limitation, records
adequate to permit the daily identification of each Receivable and all
Collections of and adjustments to each existing Receivable).
(c) Performance and Compliance
with Contracts and Credit and Collection Policy. The Seller
shall, at its expense, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by it under the
Contracts related to the Receivables, and timely and fully comply in all
material respects with the Credit and Collection Policy with regard to each
Receivable and the related Contract.
(d) Ownership Interest,
Etc. The Seller shall, at its expense, take all action
necessary or desirable to establish and maintain a valid and enforceable
undivided ownership interest, to the extent of the Participation, in the Pool
Receivables and the Related Security and Collections and other proceeds with
respect thereto, and a first priority perfected security interest in the items
described in Section
1.2(d), in each case free and clear of any Adverse Claim, in favor of the
Administrator on behalf of the Purchasers, including, without limitation, taking
such action to perfect, protect or more fully evidence the interest of the
Administrator for the benefit of the Purchasers under the Agreement as any
Purchaser Agent or the Administrator may request.
(e) Sales, Liens,
Etc. The Seller shall not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any Adverse
Claim upon or with respect to, any or all of its right, title or interest in, to
or under, any item described in Section 1.2(d)
(including without limitation the Seller’s undivided interest in any Receivable,
Related Security, or Collections, or upon or with respect to any account to
which any Collections of any Receivables are sent), or assign any right to
receive income in respect of any items contemplated by this paragraph
(e).
(f) Extension or Amendment of
Receivables. Except as provided in the Agreement, neither the
Seller nor the Servicer shall extend the maturity or adjust the Outstanding
Balance or otherwise modify the terms of any Pool Receivable, or amend, modify
or waive any term or condition of any related Contract.
(g) Change in Business or Credit
and Collection Policy. Neither the Seller nor the Servicer
shall make any material change in the character of its business or in the Credit
and Collection Policy, or any change in the Credit and Collection Policy that
would adversely affect the collectibility of the Receivables Pool or the
enforceability of any related Contract or the ability of the Seller or Servicer
to perform its obligations under any related Contract or under the
Agreement. Neither the Seller nor the Servicer shall make any other
material change in the Credit and Collection Policy without the prior written
consent of the Administrator and each Purchaser Agent.
(h) Audits. Each
of the Seller and the Servicer shall, from time to time during regular business
hours upon reasonable notice as requested by the Administrator or any Purchaser
Agent, permit the Administrator or such Purchaser Agent, or their respective
administrators or representatives, (i) to examine and make copies of and
abstracts from all books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control of the Seller
or the Servicer relating to Receivables and the Related Security, including,
without limitation, the related Contracts, and (ii) to visit the offices and
properties of the Seller and the Servicer for the purpose of examining such
materials described in clause (i) above, and to discuss matters relating to
Receivables and the Related Security or the Seller’s or Servicer’s performance
hereunder or under the Contracts with any of the officers, employees, agents or
contractors of the Seller having knowledge of such matters.
(i) Change in Lock-Box Banks,
Lock-Box Accounts and Payment Instructions to
Obligors. Neither the Seller nor the Servicer shall add or
terminate any bank as a Lock-Box Bank or any account as a Lock-Box Account from
those listed in Schedule II to the Agreement, or make any change in its
instructions to Obligors regarding payments to be made to the Seller or the
Servicer or payments to be made to any Lock-Box Account (or related post office
box), unless the Administrator shall have consented thereto in writing and the
Administrator shall have received copies of all agreements and documents
(including without limitation Lock-Box Agreements) that it may request in
connection therewith. The Seller (or the Servicer on its behalf)
shall cause each Lock-Box Bank to make available to the Administrator at all
times on-line reports or other on-line access satisfactory to the Administrator
showing the then available balances in the Lock-Box Accounts, Collection Account
and Liquidation Account.
(j) Deposits to Lock-Box
Accounts. The Seller shall, or shall cause the Servicer to,
(i) instruct all Obligors to make payments of all Receivables to one or more
Lock-Box Accounts or to post office boxes to which only Lock-Box Banks have
access (and shall instruct the Lock-Box Banks to cause all items and amounts
relating to such Receivables received in such post office boxes to be removed
and deposited into a Lock-Box Account on a daily basis), and (ii) deposit, or
cause to be deposited, any Collections of Pool Receivables received by it or the
Servicer into Lock-Box Accounts not later than one Business Day after receipt
thereof. Subject to Section 4.3(a), each
Lock-Box Account, the Collection Account and the Liquidation Account shall at
all times be subject to a Lock-Box Agreement or Liquidation Account Agreement,
respectively. Neither the Seller nor the Servicer will deposit or
otherwise credit, or cause or permit to be so deposited or credited, to any
Lock-Box Account cash or cash proceeds other than Collections of Pool
Receivables.
(k) Marking of
Records. At its expense, the Seller (or the Servicer on its
behalf) shall xxxx its master data processing records relating to Pool
Receivables and related Contracts, including with a legend evidencing that the
undivided percentage ownership interests with regard to the Participation
related to such Receivables and related Contracts have been sold in accordance
with the Agreement.
(l) Reporting
Requirements. The Seller will provide to the Administrator and
each Purchaser Agent (in multiple copies, if requested by the Administrator or
any Purchaser Agent) the following:
(i) as
soon as available and in any event within 60 days after the end of the first
three quarters of each fiscal year of the Seller and Pilgrim’s Pride, balance
sheets of the Seller and Pilgrim’s Pride and its subsidiaries as of the end of
such quarter and statements of income and retained earnings of the Seller and
Pilgrim’s Pride and its subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified by the
chief financial officer of the Seller and Pilgrim’s Pride, as
applicable;
(ii) as
soon as available and in any event within 120 days after the end of each fiscal
year of the Seller and Pilgrim’s Pride, a copy of the annual report for such
year for the Seller and Pilgrim’s Pride and its subsidiaries, containing
financial statements for such year audited by a nationally recognized
independent certified public accountants;
(iii) as
soon as available and in any event not later than the Servicer Report Date, a
Servicer Report as of the Fiscal Month ended immediately prior to such Servicer
Report Date;
(iv) upon
request by the Administrator, but in no event more frequently than once each
Business Day, a Collateral Report;
(v) as
soon as possible and in any event within five Business Days after an officer of
the Seller or Servicer obtains knowledge of the occurrence of each Termination
Event or event which, with the giving of notice or lapse of time, or both, would
constitute a Termination Event, a statement of the chief financial officer of
the Seller setting forth details of such Termination Event or event and the
action that the Seller has taken and proposes to take with respect
thereto;
(vi) promptly
after the filing or receiving thereof, copies of all reports and notices that
the Seller or any Affiliate files under ERISA with the Internal Revenue Service
or the Pension Benefit Guaranty Corporation or the U.S. Department of Labor or
that the Seller or any Affiliate receives from any of the foregoing or from any
multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA) to
which the Seller or any Affiliate is or was, within the preceding five years, a
contributing employer, in each case in respect of the assessment of withdrawal
liability or an event or condition which could, in the aggregate, (A) result in
the imposition of liability on the Seller in excess of $250,000 or (B)
reasonably be expected to have a material adverse effect on the business,
operations, property or condition (financial or otherwise) of Pilgrim’s Pride
and its subsidiaries;
(vii) at
least thirty days prior to any change in the Seller’s name or any other change
requiring the amendment of UCC financing statements, a notice setting forth such
changes and the effective date thereof;
(viii) such
other information respecting the Receivables or the condition or operations,
financial or otherwise, of the Seller or any of its Affiliates as the
Administrator or any Purchaser Agent may from time to time reasonably
request;
(ix) promptly
after the Seller obtains knowledge thereof, notice of any litigation,
investigation or proceeding which may exist at any time between the Seller or
the Servicer, on the one hand, and any other Person if not cured or if adversely
determined, as the case may be, would be reasonably expected to have a material
adverse effect on the business, operations, property or financial or other
condition of the Seller, the Originator or the Servicer, as the case may be;
and
(x) promptly
after the Seller obtains knowledge thereof, notice of a material adverse change
in the business, operations, property or financial or other condition of the
Seller.
(m) Separate Corporate
Existence. Each of the Seller and the Servicer hereby acknowledges that
the Purchasers, the Purchaser Agents and the Administrator are entering into the
transactions contemplated by the Agreement and the Transaction Documents in
reliance upon the Seller’s identity as a legal entity separate from the Servicer
and the Originator. Therefore, from and after the date hereof, the
Seller and the Servicer shall take all reasonable steps to continue the Seller’s
identity as a separate legal entity and to make it apparent to third Persons
that the Seller is an entity with assets and liabilities distinct from those of
the Servicer, the Originator and any other Person, and is not a division of the
Servicer or the Originator or any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the covenant
set forth in paragraph (a) of
this Exhibit IV, the
Seller and the Servicer shall take such actions as shall be required in order
that:
(i) The
Seller will be a limited purpose corporation whose primary activities are
restricted in its certificate of incorporation to purchasing Receivables from
the Originator, entering into agreements for the servicing of such Receivables,
selling undivided interests in such Receivables and conducting such other
activities as it deems necessary or appropriate to carry out its primary
activities;
(ii) Not
less than one member of Seller’s Board of Directors (the “Independent
Directors”) shall be individuals who are not direct, indirect or
beneficial stockholders, officers, directors, employees, affiliates, associates,
customers or suppliers of the Originator or any of its
Affiliates. The Seller’s Board of Directors shall not approve, or
take any other action to cause the commencement of a voluntary case or other
proceeding with respect to the Seller under any applicable bankruptcy,
insolvency, reorganization, debt arrangement, dissolution or other similar law,
or the appointment of or taking possession by, a receiver, liquidator, assignee,
trustee, custodian, or other similar official for the Seller unless in each case
the Independent Directors shall approve the taking of such action in writing
prior to the taking of such action. The Independent Directors’
fiduciary duty shall be to the Seller (and creditors) and not to the Seller’s
shareholders in respect of any decision of the type described in the preceding
sentence. In the event an Independent Director resigns or otherwise
ceases to be a director of the Seller, there shall be selected a replacement
Independent Director who shall not be an individual within the proscriptions of
the first sentence of this clause (ii) or any
individual who has any other type of professional relationship with the
Originator or any of its Affiliates or any management personnel of any such
Person or Affiliate and who shall be (x) a tenured professor at a business or
law school, (y) a retired judge or (z) an established independent member of the
business community, having a sound reputation and experience relative to the
duties to be performed by such individual as an Independent
Director;
(iii) No
Independent Director shall at any time serve as a trustee in bankruptcy for the
Originator or any Affiliate thereof;
(iv) Any
employee, consultant or agent of the Seller will be compensated from the
Seller’s own bank accounts for services provided to the Seller except as
provided herein in respect of the Servicer’s Fee. The Seller will
engage no agents other than a servicer for the Receivables, which servicer will
be fully compensated for its services to the Seller by payment of the Servicer’s
Fee;
(v) The
Seller will contract with the Servicer to perform for the Seller all operations
required on a daily basis to service its Receivables. The Seller will
pay the Servicer a monthly fee based on the level of Receivables being managed
by the Servicer. The Seller will not incur any material indirect or
overhead expenses for items shared between the Seller and the Originator or any
Affiliate thereof which are not reflected in the Servicer’s Fee. To
the extent, if any, that the Seller and the Originator or any Affiliate thereof
share items of expenses not reflected in the Servicer’s Fee, such as legal,
auditing and other professional services, such expenses will be allocated to the
extent practical on the basis of actual use or the value of services rendered,
and otherwise on a basis reasonably related to the actual use or the value of
services rendered, it being understood that Pilgrim’s Pride shall pay all
expenses relating to the preparation, negotiation, execution and delivery of the
Transaction Documents, including, without limitation, legal and other
fees;
(vi) The
Seller’s operating expenses will not be paid by the Originator or any Affiliate
thereof unless the Seller shall have agreed in writing with such Person to
reimburse such Person for any such payments;
(vii) The
Seller will have its own separate mailing address and stationery;
(viii) The
Seller’s books and records will be maintained separately from those of the
Originator or any Affiliate thereof;
(ix) Any
financial statements of the Originator or any Affiliate thereof which are
consolidated to include the Seller will contain detailed notes clearly stating
that the Seller is a separate corporate entity and has sold ownership interests
in the Seller’s accounts receivable;
(x) The
Seller’s assets will be maintained in a manner that facilitates their
identification and segregation from those of the Originator and any Affiliate
thereof;
(xi) The
Seller will strictly observe corporate formalities in its dealings with the
Originator and any Affiliate thereof, and funds or other assets of the Seller
will not be commingled with those of the Originator or any Affiliate
thereof. The Seller shall not maintain joint bank accounts or other
depository accounts to which the Originator or any Affiliate thereof (other than
Pilgrim’s Pride in its capacity as Servicer) has independent
access. None of the Seller’s funds will at any time be pooled with
any funds of the Originator or any Affiliate thereof;
(xii) The
Seller shall pay to the Originator the marginal increase (or, in the absence of
such increase, the market amount of its portion) of the premium payable with
respect to any insurance policy that covers the Seller and any Affiliate
thereof, but the Seller shall not, directly or indirectly, be named or enter
into an agreement to be named, as a direct or contingent beneficiary or loss
payee, under any such insurance policy, with respect to any amounts payable due
to occurrences or events related to the Originator or any Affiliate thereof;
and
(xiii) The
Seller will maintain arm’s length relationships with the Originator and any
Affiliate thereof. The Originator or any Affiliate thereof that
renders or otherwise furnishes services to the Seller will be compensated by the
Seller at market rates for such services. Neither the Seller nor the
Originator or any Affiliate thereof will be or will hold itself out to be
responsible for the debts of the other or the decisions or actions respecting
the daily business and affairs of the other.
(n) Mergers, Acquisitions,
Sales, etc.
(i) The
Seller shall not
(A) be
a party to any merger or consolidation, or directly or indirectly purchase or
otherwise acquire, whether in one or a series of transactions, all or
substantially all of the assets or any stock of any class of, or any partnership
or joint venture interest in, any other Person, or sell, transfer, assign,
convey or lease any of its property and assets (including, without limitation,
any Pool Receivable or any interest therein) other than pursuant to this
Agreement;
(B) make,
incur or suffer to exist an investment in, equity contribution to, loan, credit
or advance to, or payment obligation in respect of the deferred purchase price
of property from, any other Person, except for obligations incurred pursuant to
the Transaction Documents; or
(C) create
any direct or indirect Subsidiary or otherwise acquire direct or indirect
ownership of any equity interests in any other Person.
(o) Restricted
Payments.
(i) General
Restriction. Except in accordance with this subparagraph (i), the
Seller shall not (A) purchase or redeem any shares of its capital stock,
(B) declare or pay any Dividend or set aside any funds for any such
purpose, (C) prepay, purchase or redeem any subordinated indebtedness of
the Seller, (D) lend or advance any funds or (E) repay any loans or
advances to, for or from the Originator. Actions of the type
described in this clause (i) are herein
collectively called “Restricted
Payments”.
(ii) Types of Permitted
Payments. Subject to the limitations set forth in clause (iii) below,
the Seller may make Restricted Payments so long as such Restricted Payments are
made only to the Originator and only in one or more of the following
ways:
(A) Seller
may make cash payments (including prepayments) on the Company Notes in
accordance with their terms; and
(B) if
no amounts are then outstanding under the Company Notes, the Seller may declare
and pay Dividends.
(iii) Specific
Restrictions. The Seller may make Restricted Payments only out
of Collections paid or released to the Seller pursuant to Sections
1.4(b). Furthermore, the Seller shall not pay, make or
declare
(A) any
Dividend if, after giving effect thereto, Seller’s Tangible Net Worth would be
less than 2.5 Million Dollars ($2,500,000); or
(B) any
Restricted Payment (including any Dividend) if, after giving effect thereto, any
Termination Event or Unmatured Termination Event shall have occurred and be
continuing.
(p) Use of Seller’s Share of
Collections. The Seller shall apply its share of Collections
to make payments in the following order of priority: first, the payment of
its expenses (including, without limitation, the obligations payable to
Purchaser, the Affected Persons and the Administrator under the Transaction
Documents), second, the payment
of accrued and unpaid interest on the Company Notes, third, the payment of
the outstanding principal amount of the Company Notes, and fourth, other legal
and valid corporate purposes.
(q) Amendments to Certain
Documents.
(i) The
Seller shall not amend, supplement, amend and restate, or otherwise modify the
Purchase and Contribution Agreement, the Company Notes, any other document
executed under the Purchase and Contribution Agreement, the Lock-Box Agreements,
the Liquidation Account Agreement or the Seller’s certificate of incorporation
or by-laws, except (A) in accordance with the terms of such document, instrument
or agreement and (B) with the advance written consent of the Administrator and
each Purchaser Agent.
(ii) The
Seller shall not, and shall not permit the Originator to enter into or otherwise
become bound by, any agreement, instrument, document or other arrangement that
restricts its right to amend, supplement, amend and restate or otherwise modify,
or to extend or renew, or to waive any right under, this Agreement or any other
Transaction Document.
(r) Incurrence of
Indebtedness. The Seller shall not (i) create, incur or permit
to exist, any Debt or liability or (ii) cause or permit to be issued for its
account any letters of credit or bankers’ acceptances, except for Debt incurred
pursuant to the Company Notes and liabilities incurred pursuant to or in
connection with the Transaction Documents or otherwise permitted
therein.
(s) [Intentionally
Omitted].
(t) Leverage
Ratio. The Servicer (or if Pilgrim’s Pride is not then
the Servicer, Pilgrim’s Pride) will not permit its Leverage Ratio at any time to
exceed 0.7 to 1.
(u) Tangible Net
Worth. The Servicer (or if Pilgrim’s Pride is not then the
Servicer, Pilgrim’s Pride) shall maintain its Tangible Net Worth at all times in
an amount not less than the minimum required amount for each period set forth
below:
(a) from
the date hereof through September 25, 2009, $250,000,000; and
(b)
$300,000,000 thereafter, which amount shall increase as of the last day of each
Fiscal Year commencing with the Fiscal Year ending October 2, 2010 by an amount,
in each case, equal to the sum of: (i) the net proceeds of any equity issuance
in a capital raising transaction (including in connection with the acquisition
of any subsidiary, division or otherwise) during such Fiscal Year, plus (ii) 25%
of Pilgrim’s Pride’s Net Income (but not less than zero) during such Fiscal
Year.
(v) Fixed Charge Coverage
Ratio. The Servicer (or if Pilgrim’s Pride is not then the
Servicer, Pilgrim’s Pride) will not permit, as of the last day of each fiscal
quarter of Pilgrim’s Pride, its Fixed Charge Coverage Ratio for the eight
consecutive fiscal quarters of Pilgrim’s Pride then ended to be less than (a)
1.25 to 1 as of the last day of each quarterly fiscal accounting period of
Pilgrim’s Pride ending after the date hereof through September 26, 2009, and (b)
as of the last day of each quarterly fiscal accounting period of Pilgrim’s Pride
thereafter, 1.30 to 1.
1408834 98442494
IV-
EXHIBIT
V
TERMINATION
EVENTS
Each of
the following shall be a “Termination Event”:
(a) The
Servicer, the Originator or Seller shall fail to make when due any payment or
deposit to be made by it under the Agreement or any other Transaction Document
and such failure shall continue unremedied for two Business Days;
or
(b) Pilgrim’s
Pride (or any Affiliate thereof) shall fail to transfer to any successor
Servicer when required any rights, pursuant to the Agreement, which Pilgrim’s
Pride (or such Affiliate) then has as Servicer; or
(c) Any
representation or warranty made or deemed made by the Seller, the Originator or
the Servicer (or any of their respective officers) under or in connection with
the Agreement or any information or report delivered by the Seller or the
Servicer pursuant to the Agreement shall prove to have been incorrect or untrue
in any material respect when made or deemed made or delivered; provided, however, if the
violation of this paragraph (c) by the
Seller or Servicer may be cured without any potential or actual detriment to any
Purchaser, any Purchaser Agent, the Administrator, or any Program Support
Provider, the Seller or the Servicer as applicable shall have 30 days from the
earlier of (i) such Person’s knowledge of such failure and (ii) notice to such
Person of such failure to cure any such violation, before a Termination Event
shall occur so long as such Person is diligently attempting to effect such cure;
or
(d) The
Seller, the Originator or the Servicer shall fail to perform or observe any
other term, covenant or agreement contained in the Agreement or any other
Transaction Document on its part to be performed or observed and any such
failure shall remain unremedied for 30 days after the Seller, the Originator or
Servicer, as applicable, has notice or knowledge thereof (or, with respect to a
failure to deliver the Servicer Report pursuant to the Agreement, such failure
shall remain unremedied for five Business Days); or
(e) The
Seller or the Originator shall fail to pay any principal of or premium or
interest on any of its Debt which is outstanding in a principal amount of at
least $20,000,000 in the aggregate when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise); or any other event shall occur or condition shall exist under any
agreement, mortgage, indenture or instrument relating to any such Debt, whether
or not waived; or
(f) The
Agreement or any purchase or any reinvestment pursuant to the Agreement shall
for any reason (other than pursuant to the terms hereof) (i) cease to create, or
the Participation shall for any reason cease to be, a valid and enforceable
perfected undivided percentage ownership interest to the extent of the
Participation in each Pool Receivable and the Related Security and Collections
and other proceeds with respect thereto, free and clear of any Adverse Claim or
(ii) cease to create with respect to the items described in Section 1.2(d), or
the interest of the Administrator, for the benefit of the Purchasers, with
respect to such items shall cease to be, a valid and enforceable first priority
perfected security interest, free and clear of any Adverse Claim;
or
(g) The
Seller or the Originator shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Seller or the Originator seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days, or any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of its
property) shall occur; or Seller or the Originator shall take any corporate
action to authorize any of the actions set forth above in this paragraph (g);
or
(h) As
of the last day of any Fiscal Month (i) the arithmetic average for the most
recent three Fiscal Months of (A) the Default Ratios shall exceed 3.0% or (B)
the Delinquency Ratios shall exceed 4.5% or (ii) the arithmetic average of the
Loss-to-Liquidation Ratios for the most recent twelve Fiscal Months shall exceed
0.5%; or
(i) The
Participation shall exceed 100% and such condition shall continue unremedied for
one Business Day; or
(j) A
Change in Control or Key Person Event shall occur; or
(k) (i)
The Internal Revenue Service shall file notice of a lien pursuant to Section
6323 of the Internal Revenue Code with regard to any assets of the Seller or the
Pension Benefit Guaranty Corporation shall, or shall indicate its intention to,
file notice of a lien pursuant to Section 4068 of ERISA with regard to any of
the assets of Seller and such lien shall not have been released within ten
Business Days; (ii) the Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Internal Revenue Code with regard to any assets
of the Originator in an aggregate amount of at least $30,000,000 or the Pension
Benefit Guaranty Corporation shall, or shall indicate its intention to, file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of the
assets of the Originator in an aggregate amount of at least $30,000,000 and such
lien shall not have been released within thirty days; or (iii) in the case of
any Originator, any reportable event (as defined in ERISA) which constitutes
grounds for the termination of any Plan or for the appointment by the
appropriate United States District Court of a trustee to administer or liquidate
any such Plan shall have occurred and such reportable event shall be continuing
for thirty days after written notice to such effect shall have been given to the
Originator by any Purchaser, or such Plan shall be terminated, or a trustee
shall be appointed by the appropriate United States District Court to administer
any such Plan, or the Pension Benefit Guaranty Corporation shall institute
proceedings to administer or terminate any such Plan; or
(l) Seller’s
Tangible Net Worth shall be less than 2.5 million dollars ($2,500,000);
or
(m) On
or before October 28, 2008, the Seller shall not have caused to be delivered to
the Administrator and the Purchasers, a favorable opinion in form and substance
reasonably satisfactory to the Administrator and covering (i) security interest
and perfection matters or (ii) with respect to the Transferors, certain
bankruptcy matters; or
(n) Any
event shall occur that is deemed a Termination Event under the Limited Duration
Waiver Agreement.
1408834 98442494
V-
1408834 98442494
Annex D-