AMENDMENT No. 1
Dated as of July 12, 2002
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 26, 1998
This AMENDMENT NO. 1 (this "Amendment") dated as of July 12, 2002 is entered
into among PILGRIM'S PRIDE FUNDING CORPORATION ("Seller"), PILGRIM'S PRIDE
CORPORATION ("Pilgrim's Pride") as initial Servicer, FAIRWAY FINANCE
CORPORATION (as successor in interest to Pooled Accounts Receivable Capital
Corporation)
("Purchaser") and BMO NESBITT BURNS CORP. (f/k/a Nesbitt Burns Securities
Inc.), 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 (the "Agreement");
WHEREAS, the parties hereto wish to make certain changes to the Agreement as
herein provided;
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 not otherwise defined herein are
used as defined in the Agreement.
SECTION 2. Amendments to the Agreement. The Agreement is hereby amended as
follows:
2.1. The definition of "Receivable" set forth in Exhibit I to the
Agreement is hereby amended in its entirety as follows:
"Receivable" means any indebtedness and other obligations owed to the
Originator or the Seller or any right of the Originator or Seller to payment
from or on behalf of an Obligor, or any right to reimbursement for funds paid
or advanced by the Originator or Seller on behalf of an Obligor (other than any
such indebtedness, obligation or right which arises from the sale and delivery
of goods or services relating to the Originator's inventory of turkey and/or
turkey related products), 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 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.
2.2. Exhibit IV of the Agreement is hereby amended by adding to the end
thereof the following new paragraph (s):
"(s) Turkey Operations. In addition to and without limiting any other
obligations of the Seller or the Servicer herein or in the other Transaction
Documents, the Seller and the Servicer shall have established, and shall at all
times maintain, procedures for identifying and segregating collections relating
to turkey and/or turkey related products from Collections on the Receivables
which are financed under the Agreement and the other Transaction Documents, and
have notified all applicable Obligors or other applicable Persons to make all
payments in respect of such turkey and/or turkey related products other than to
the Lock-Box Account(s) and/or the Collection Account (into which Collections
solely on the Receivables are and will continue to be deposited), and no
collections relating to turkey and/or turkey related products are or will be
deposited in the Lock-Box Accounts and/or Collection Account or otherwise
commingled with Collections on the Receivables. In addition, the Seller and/or
the Servicer shall (or shall cause the applicable Originator to) invoice all
sales or services relating to turkey and/or turkey related products separately
from invoices relating to the Receivables which are financed under the
Agreement and the other Transaction Documents."
SECTION 3. Miscellaneous.
3.1. Effectiveness. This Amendment shall become effective on the date
when the Agent shall have received (a) an original counterpart (or
counterparts) of this Amendment, executed and delivered by each of the parties
hereto, (b) an opinion from counsel to the Seller, in form and substance
satisfactory to the Agent, regarding such UCC matters as the Agent may request,
(c) executed amendments to the Lock-Box Agreements, in form and substance
satisfactory to the Agent, which amend the original Lock-Box Agreements to
cover only those Lock-Box Accounts into which Collections on Receivables (as
such term is amended by this Amendment) are deposited and (d) evidence,
satisfactory to the Agent, that all amendments to the UCC financing statements,
of the Seller and/or the Originator, necessary to reflect the amendments
contemplated hereby, have been filed in all applicable jurisdictions.
3.2. References to Agreement. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this Agreement", "hereunder", "hereof",
"herein", or words of like import shall mean and be a reference to the
Agreement as amended hereby, and each reference to the Agreement in any other
document, instrument or agreement executed and/or delivered in connection with
the Agreement shall mean and be a reference to the Agreement as amended hereby.
3.3. Effect on the Agreement. Except as specifically amended above, the
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
3.4. No Waiver. The execution, delivery and effectiveness of this
amendment shall not operate as a waiver of any right, power or remedy of any
party under the Agreement or any other document, instrument or agreement
executed in connection therewith, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
3.5. 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).
3.6. Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
3.7. Headings. The Section headings in this Amendment are inserted for
convenience of reference only and shall not affect the meaning or
interpretation of this Amendment or any provision hereof.
3.8. Counterparts. This Amendment may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and
all of which shall constitute together but one and the same agreement. IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed by their
respective officers thereunto duly authorized as of the date first above
written.
PILGRIM'S PRIDE FUNDING CORPORATION
By: /s/ R. A. Cogdill
Name: R. A. Cogdill
Title: Chief Financial Officer
PILGRIM'S PRIDE CORPORATION
By: /s/ R. A. Cogdill
Name: R. A. Cogdill
Title: Chief Financial Officer
FAIRWAY FINANCE CORPORATION, as Purchaser
By:
Name:
Title:
BMO NESBITT BURNS CORP., as Agent
By:
Name:
Title:
By:
Name:
Title: