AMENDMENT No. 5 Dated as of August 20, 2007 to RECEIVABLES PURCHASE AGREEMENT Dated as of June 26, 1998
EXHIBIT
10.1
AMENDMENT
No. 5
Dated
as of August 20, 2007
to
Dated
as of June 26, 1998
This
AMENDMENT NO. 5 (this “Amendment”)
dated
as of August 20, 2007 is entered into among PILGRIM’S PRIDE FUNDING CORPORATION
(“Seller”),
PILGRIM’S PRIDE CORPORATION (“Pilgrim’s
Pride”)
as
initial Servicer, FAIRWAY FINANCE COMPANY, LLC (as successor to Fairway Finance
Corporation) (“Purchaser”)
and
BMO CAPITAL MARKETS CORP. (as successor to Xxxxxx Xxxxxxx Corp. (f/k/a BMO
Xxxxxxx Xxxxx Corp.)), as agent for the Purchaser (in such capacity, together
with its successors and assigns, the “Agent”).
RECITALS
WHEREAS,
the parties hereto have entered into a certain Receivables Purchase Agreement
dated as of June 26, 1998 (as amended through the date hereof, the “Agreement”);
WHEREAS,
in order to make the most efficient use of the financing facility contemplated
by the Agreement and the other Transaction Documents, the Seller has requested
the Purchaser and the Agent to agree to certain amendments and/or modifications
to such facility as described herein for various purposes;
WHEREAS,
the Purchaser and the Agent are willing to agree to such amendments solely
on
the terms and subject to the conditions set forth herein;
NOW,
THEREFORE, in consideration of the promises and the mutual agreements contained
herein and in the Agreement, the parties hereto agree as follows:
SECTION
1. Definitions.
All
capitalized terms used, but not otherwise defined, herein shall have the
respective meanings for such terms set forth in Exhibit
I
to the
Agreement.
SECTION
2. Amendments
to the Agreement.
The
Agreement is hereby amended as follows:
2.1. The
definition of “Change in Control” is hereby amended and restated in its entirety
as follows:
“Change
of 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.
1.1. Clause
(i)
of the
definition of “Defaulted Receivable” set forth in Exhibit
I
to the
Agreement is hereby amended and restated in its entirety as
follows:
(i) as
to
which any payment, or part thereof, remains unpaid for 91 days or more from
the
invoice date for such Receivable;
1.2. Clause
(i)
of the
definition of “Delinquent Receivable” set forth in Exhibit
I
to the
Agreement is hereby amended and restated in its entirety as
follows:
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(i) as
to
which any payment, or part thereof, remains unpaid for 61 days or more from
the
invoice date for such Receivable; or
1.1. Clause
(viii)
of the
definition of “Eligible Receivables” set forth in Exhibit
I
to the
Agreement is hereby amended and restated in its entirety as
follows:
(viii) which
arise from the sale and delivery of goods or services (other than the sale
and
delivery of turkey and turkey related products directly to third-party customers
from any Excluded Turkey Plant) in the ordinary course of the applicable
Originator’s (including the applicable Transferor’s) business; provided that
Receivables that existed on or about August 15, 2007 that were originated
by
Pilgrim’s Pride Corporation of Georgia, Inc. (as successor by merger to Gold
Xxxx Inc.) that would otherwise constitute “Eligible Receivables” but for this
clause (viii) shall be “Eligible Receivables”;
1.2. The
definition of “Excluded Turkey Plants” set forth in Exhibit
I
to the
Agreement is hereby amended and restated in its entirety as
follows:
“Excluded
Turkey Plant”
means,
solely the production and turkey processing plant of Pilgrim’s Pride or any of
its Affiliates designated by it as “New Oxford Pennsylvania” which relates to a
portion (but not all) of Pilgrim’s Pride’s business in respect of turkey and/or
turkey related products.
1.3. Clause
(a)
of the
definition of “Facility Termination Date” set forth in Exhibit
I
to the
Agreement is hereby amended by replacing the reference to “June 26, 2008” with a
reference to “August 20, 2012”.
1.4. The
definition of “Normal Concentration Percentage” set forth in Exhibit
I
to the
Agreement is hereby amended in its entirety as follows:
“Normal
Concentration Percentage”
means,
at any time, (a) for any Obligor that is not a Special Obligor or Wal-Mart,
3%;
(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 Xxxxx’x, 12% or (ii) if such
Special Obligor is not so rated but is rated at least BBB- by S&P and Baa3
by Xxxxx’x, 6%; or (c) for any Obligor that is Wal-Mart, (i) if Wal-Mart is
rated AA or better by S&P and Aa2 or better by Xxxxx’x, 18%, or (ii) if
Wal-Mart is not so rated but is rated at least AA- by S&P and Aa3 by
Xxxxx’x, 15% or (iii) if Wal-Mart is rated A+ or lower by S&P and A1 or
lower by Xxxxx’x, the applicable percentage shall be as set forth for Obligors
and Special Obligors in this definition. If the ratings from S&P and Xxxxx’x
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 Xxxxx’x, the Normal Concentration
Percentage shall be based on the rating by such Rating Agency without regard
to
a rating by any other Rating Agency.
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1.1. The
definition of “Purchase Limit” set forth in Exhibit
I
to the
Agreement is hereby amended by replacing the amount “$125,000,000” with the
amount “$300,000,000” therein.
1.2. The
definition of “Transferor” set forth in Exhibit
I
to the
Agreement is hereby amended and restated in its entirety as
follows:
“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.
1.3. The
following definition is hereby added to Exhibit
I
to the
Agreement in the appropriate alphabetical order:
“Wal-Mart”
means
Wal-Mart Stores, Inc., a Delaware corporation, and its
subsidiaries.
1.4. Clause
(e)
of
Exhibit
V
to the
Agreement is hereby amended by deleting the reference to the amount “$5,000,000”
therein with the amount “$20,000,000” therefor.
SECTION
2. Representations
and Warranties.
Each of
the Seller and the Servicer hereby represents and warrants to the Purchaser
and
the Agent that the representations and warranties of such Person contained
in
Exhibit
III
to the
Agreement are true and correct as of the date hereof (unless stated to
relate
solely to an earlier date, in which case such representations and warranties
were true and correct as of such earlier date), and that as of the date
hereof,
no Termination Event or Unmatured Termination Event has occurred and is
continuing or will result from this Amendment.
SECTION
3. Effect
of Amendment.
(a)
All
provisions of the Agreement, as expressly amended and modified by this
Amendment, shall remain in full force and effect and are hereby ratified
and
confirmed in all respects. After this Amendment becomes effective, all
references in the Agreement (or in any other Transaction Document) to “this
Agreement”, “hereof”, “herein” or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as amended
by this
Amendment. This Amendment shall not be deemed, either expressly or impliedly,
to
waive, amend or supplement any provision of the Agreement other than as
set
forth herein.
(b) Notwithstanding
anything in the Agreement or any other Transaction Document to the contrary,
each of the parties hereto, hereby consents and agrees to the amendments
contemplated hereby and that all of the provisions in the Agreement, the
Purchase and Contribution Agreement, the Purchase and Sale Agreement and
the
other Transaction Documents shall be interpreted so as to give effect to
the
intent of the parties hereto as set forth in this Amendment.
4
SECTION
1. Effectiveness.
This
Amendment shall become effective as of the date hereof upon receipt by
the Agent
of the following (each, in form and substance satisfactory to the
Agent):
(a) Counterparts
of this Amendment (whether by facsimile or otherwise) executed by each
of the
parties hereto;
(b) Completed
UCC requests for information, dated on or before the date hereof listing
all
effective financing statements filed in any applicable UCC jurisdictions
that
name Pilgrim’s Pride of Georgia, Inc. or PFS Distribution Company as debtor or
seller, together with copies of such other financing statements (none
of which
shall cover any Receivables, Contracts or Related Security);
(c) Favorable
opinions of Xxxxx & XxXxxxxx, LLP, counsel for the Seller, Pilgrim’s Pride
and the Transferors, in form and substance acceptable to the Agent and
as to
such corporate and enforceability and other matters as the Agent may
reasonably
request;
(d) Favorable
opinions of Xxxxx & XxXxxxxx, LLP, counsel for the Seller, Pilgrim’s Pride
and the Transferors, in form and substance acceptable to the Agent and
as to
such UCC and perfection and other matters as the Agent may reasonably
request;
and
(e) Such
other documents, resolutions, certificates, agreements and opinions as
the Agent
may reasonably request in connection herewith.
SECTION
2. Counterparts.
This
Amendment may be executed in any number of counterparts and by different
parties
on separate counterparts, each of which when so executed shall be deemed
to be
an original and all of which when taken together shall constitute but
one and
the same instrument.
SECTION
3. Governing
Law.
This
Amendment, including the rights and duties of the parties hereto, shall
be
governed by, and construed in accordance with, the laws of the State
of Texas
(without giving effect to the conflict of laws principles thereof).
SECTION
4. Section
Headings.
The
various headings of this Amendment are included for convenience only
and shall
not affect the meaning or interpretation of this Amendment, the Agreement
or any
provision hereof or thereof.
(continued
on following page)
5
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized as of the date first above
written.
PILGRIM’S
PRIDE FUNDING CORPORATION,
as
Seller
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Vice President, Chief Financial Officer,
Treasurer
and Secretary
PILGRIM’S
PRIDE CORPORATION,
as
initial Servicer
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Vice President, Treasurer and Secretary
FAIRWAY
FINANCE COMPANY, LLC,
as
Purchaser
By:/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
President
BMO
CAPITAL MARKETS CORP.,
as
Agent
By:/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Managing Director
S-1
Amedment No. 5 to RPA
