PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of June 26, 1998
among
PILGRIM'S PRIDE FUNDING CORPORATION
and
PILGRIM'S PRIDE CORPORATION
TABLE OF CONTENTS
SCHEDULES
SCHEDULE 5.13 Office Locations
SCHEDULE 5.14 Trade Names
EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Form of Company Note
EXHIBIT C Form of Opinion of Originator's Counsel
PURCHASE AND CONTRIBUTION AGREEMENT
THIS PURCHASE AND CONTRIBUTION AGREEMENT (as amended, supplemented
or modified from time to time, this "AGREEMENT"), dated as of June 26,
1998, is between PILGRIM'S PRIDE CORPORATION, a Delaware corporation
(APILGRIM'S PRIDE@), individually as the Originator (the "ORIGINATOR")
and as the initial Servicer and PILGRIM'S PRIDE FUNDING CORPORATION, a
Delaware corporation (the ACOMPANY@), as purchaser and contributee.
DEFINITIONS
Unless otherwise indicated, certain terms that are capitalized and
used throughout this Agreement are defined in EXHIBIT I to the
Receivables Purchase Agreement of even date herewith (as amended,
supplemented or otherwise modified from time to time, the "RECEIVABLES
PURCHASE AGREEMENT"), among the Company, Pilgrim's Pride, as initial
Servicer, POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION (the
"PURCHASER"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as agent for Purchaser
(together with its successors and assigns, the "AGENT").
BACKGROUND
1. The Company is a special purpose corporation, all of the
capital stock of which is wholly-owned by Pilgrim's Pride.
2. In order to finance their respective businesses, the Originator
wishes to sell certain Receivables and Related Rights from time to time
to the Company, and the Company is willing, on the terms and subject to
the conditions set forth herein, to purchase such Receivables and Related
Rights from Originator.
3. The Company intends to sell to Purchaser an undivided variable
percentage interest in its Receivables and Related Rights pursuant to the
Receivables Purchase Agreement in order to finance its purchases of
certain Receivables and Related Rights hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND CONTRIBUTE
I.1. AGREEMENT TO PURCHASE AND SELL. On the terms and subject to the
conditions set forth in this Agreement (including ARTICLE IV), and in
consideration of the Purchase Price, Originator agrees to sell to the Company,
and does hereby sell to the Company, and the Company agrees to purchase from
Originator, and does hereby purchase from Originator, without recourse and
without regard to collectibility, all of Originator's right, title and interest
in and to:
(a) each Receivable of Originator that existed and was owing to
Originator as of the close of Originator's business on June 25, 1998
Closing Date") (other than the Receivables and Related Rights contributed
by Originator to the Company pursuant to Section 3.1 (the "CONTRIBUTED
RECEIVABLES"));
(b) each Receivable created or originated by Originator from the
close of Originator's business on the Closing Date to and including the
Purchase and Sale Termination Date;
(c) all rights to, but not the obligations under, all Related
Security;
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all proceeds thereof (as defined in the UCC) received on or
after the date hereof including, without limitation, all funds which
either are received by Originator, the Company or the Servicer from or on
behalf of the Obligors in payment of any amounts owed (including, without
limitation, finance charges, interest and all other charges) in respect
of Receivables, or are applied to such amounts owed by the Obligors
(including, without limitation, insurance payments, if any, that
Originator or the Servicer (if other than Originator) applies in the
ordinary course of its business to amounts owed in respect of any
Receivable).
All purchases and contributions hereunder shall be made without recourse,
but shall be made pursuant to and in reliance upon the representations,
warranties and covenants of Originator set forth in this Agreement and
each other Transaction Document. The Company's foregoing commitment to
purchase such Receivables and the proceeds and rights described in
SUBSECTIONS (C) through (F) of this SECTION 1.1 (collectively, the
"RELATED RIGHTS") is herein called the "PURCHASE FACILITY."
I.2. TIMING OF PURCHASES.
(a) CLOSING DATE PURCHASES. Originator's entire right, title and
interest in (i) each Receivable that existed and was owing to Originator
as of the close of Originator's business on the Closing Date, (other than
Contributed Receivables), (ii) all Related Rights with respect thereto
shall be deemed to have been sold to the Company on the Closing Date.
(b) REGULAR PURCHASES. After the Closing Date, each Receivable
created or originated by Originator and described in SECTION 1.1(B)
hereof and all Related Rights shall be purchased and owned by the Company
(without any further action) upon the creation or origination of such
Receivable.
I.3. CONSIDERATION FOR PURCHASES.
On the terms and subject to the conditions set forth in this Agreement,
the Company agrees to make all Purchase Price payments to the Originator,
and to reflect all contributions, in accordance with ARTICLE III.
I.4. PURCHASE AND SALE
TERMINATION DATE. The "PURCHASE AND SALE TERMINATION DATE" shall be the
earlier to occur of (a) the date of the termination of this Agreement
pursuant to SECTION 8.2 and (b) the Payment Date immediately following
the day on which the Originator shall have given notice to the Company
that the Originator desires to terminate this Agreement.
As used herein, "PAYMENT DATE" means (i) the Closing Date and (ii)
each Business Day thereafter that the Originator is open for business.
I.5. INTENTION OF THE PARTIES. It is the express intent of the parties
hereto that the transfers of the Receivables and Related Rights by Originator to
the Company, as contemplated by this Agreement be, and be treated as, sales or
contributions, as applicable, and not as secured loans secured by the
Receivables and Related Rights. If, however, notwithstanding the intent
of the parties, such transactions are deemed to be loans, Originator
hereby grants to the Company a first priority security interest in all of
Originator's right, title and interest in and to the Receivables and the
Related Rights now existing and hereafter created, all monies due or to
become due and all amounts received with respect thereto, and all
proceeds thereof, to secure all of Originator's obligations hereunder.
ARTICLE II
CALCULATION OF PURCHASE PRICE
II.1. CALCULATION OF PURCHASE PRICE. On each Servicer Report Date, the
Servicer shall deliver to the Company, the Agent and Originator a report in
substantially the form of EXHIBIT A (each such report being herein called a
"PURCHASE REPORT") with respect to the matters set forth therein and the
Company's purchases of Receivables from Originator
(a) that are to be made on the Closing Date (in the case of the
Purchase Report to be delivered on the Closing Date), or
(b) that were made during the period commencing on the Servicer
Report Date immediately preceding such Servicer Report Date to (but not
including) such Servicer Report Date (in the case of each subsequent
Purchase Report).
The "PURCHASE PRICE" (to be paid to Originator in accordance with the
terms of ARTICLE III) for the Receivables and the Related Rights that are
purchased hereunder shall be determined in accordance with the following
formula:
PP = OB X FMVD
WHERE:
PP = Purchase Price for each Receivable as calculated on the
relevant Payment Date.
OB = the Outstanding Balance of such Receivable.
FMVD = Fair Market Value Discount, as measured on such Payment
Date, which is equal to the quotient (expressed as
percentage) of (a) one DIVIDED by (b) the sum of (i) one,
plus (ii) the product of (A) the Prime Rate on such
Payment Date, and (B) a fraction, the numerator of which
is the Average Maturity (calculated as of the last day of
the calendar month next preceding such Payment Date) and
the denominator of which is 365.
"PRIME RATE" means a PER ANNUM rate equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal or such
other publication as determined by the Agent in its sole discretion.
ARTICLE III
CONTRIBUTION OF RECEIVABLES; PAYMENT OF PURCHASE PRICE
III.1. CONTRIBUTION OF RECEIVABLES.
On the Closing Date, Pilgrim's Pride shall, and hereby does, contribute
to the capital of the Company, Receivables and Related Rights with
respect thereto consisting of each Receivable of Pilgrim's Pride that
existed and was owing to Pilgrim's Pride on the Closing Date, beginning
with the oldest of such Receivables and continuing chronologically
thereafter, and all or an undivided interest in the most recent of such
contributed Receivables such that the aggregate Outstanding Balance of
all such contributed Receivables shall be equal to $2,500,000.
III.2. INITIAL PURCHASE PRICE PAYMENT. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to pay to Originator
the Purchase Price for the purchase of Receivables to be made on the Closing
Date, partially in cash in the amount of the proceeds of the Purchase made by
the Purchaser on the Closing Date under the Receivables Purchase Agreement, and
partially by issuing a promissory note in the form of EXHIBIT B to
Originator with an initial principal balance equal to the remaining
Purchase Price (as such promissory note may be amended, supplemented,
indorsed or otherwise modified from time to time, together with all
promissory notes issued from time to time in substitution therefor or
renewal thereof in accordance with the Transaction Documents, being
herein called the "COMPANY NOTE").
III.3. SUBSEQUENT PURCHASE PRICE PAYMENTS. On each Business Day falling
after the Closing Date and on or prior to the Purchase and Sale Termination
Date, on the terms and subject to the conditions set forth in this Agreement,
the Company shall pay to Originator the Purchase Price for the Receivables sold
by Originator to the Company on such Business Day, in cash, to the extent
provided under SECTION 1.2 of the Receivables Purchase Agreement, and to
the extent any of such Purchase Price remains unpaid, such remaining
portion of such Purchase Price shall be paid by means of an automatic
increase to the outstanding principal amount of the Company Note issued
to Originator.
Servicer shall make all appropriate record keeping entries with respect
to the Company Notes or otherwise to reflect the foregoing payments and
to reflect adjustments pursuant to SECTION 3.4, and Servicer's books and
records shall constitute rebuttable presumptive evidence of the principal
amount of and accrued interest on any Company Note at any time.
Furthermore, Servicer shall hold the Company Notes for the benefit of the
Originator, and all payments under the Company Notes shall be made to the
Servicer for the account of the applicable payee thereof. Originator
hereby irrevocably authorizes Servicer to ▇▇▇▇ the Company Notes
"CANCELLED" and to return such Company Notes to the Company upon the
final payment thereof after the occurrence of the Purchase and Sale
Termination Date.
III.4. SETTLEMENT AS TO SPECIFIC RECEIVABLES AND DILUTION.
(a) If on the day of purchase or contribution of any Receivable
from Originator hereunder, any of the representations or warranties set
forth in SECTION 5.4 or 5.11 of Originator is not true with respect to
such Receivable or as a result of any action or inaction of Originator,
on any day any of such representations or warranties set forth in SECTION
5.4 or 5.11 is no longer true with respect to such a Receivable, then the
Purchase Price (or in the case of a Contributed Receivable, the
Outstanding Balance of such Receivable (the "CONTRIBUTED VALUE")) with
respect to such Receivables shall be reduced by an amount equal to the
Outstanding Balance of such Receivable and shall be accounted to
Originator as provided in SUBSECTION (C) below; PROVIDED, that if the
Company thereafter receives payment on account of Collections due with
respect to such Receivable, the Company promptly shall deliver funds to
Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
(including any Contributed Receivable) purchased (or contributed)
hereunder is reduced or adjusted as a result of any defective, rejected,
returned goods or services, or any discount or other adjustment made by
Originator, the Company or the Servicer or any offset, setoff or dispute
between Originator or the Servicer and an Obligor as indicated on the
books of the Company (or, for periods prior to the Closing Date, the
books of Originator), then the Purchase Price or the Contributed Value,
as the case may be, with respect to such Receivable shall be reduced by
the amount of such net reduction and shall be accounted to Originator as
provided in SUBSECTION (C) below.
(c) Any reduction in the Purchase Price (or Contributed Value) of
any Receivable pursuant to SUBSECTION (A) or (B) above shall be applied
as a credit for the account of the Company against the Purchase Price of
Receivables subsequently purchased by the Company from Originator
hereunder; PROVIDED, HOWEVER if there have been no purchases of
Receivables from Originator (or insufficiently large purchases of
Receivables) to create a Purchase Price sufficient to so apply such
credit against, the amount of such credit
(i) shall be paid in cash to the Company by Originator in the
manner and for application as described in the following proviso, or
(ii) shall be deemed to be a payment under, and shall be deducted
from the principal amount outstanding under, the Company Note
payable to Originator to the extent permitted under clause (o) of
Exhibit IV of the Receivables Purchase Agreement;
PROVIDED, FURTHER, that at any time (y) when a Termination Event or
Unmatured Termination Event exists under the Receivables Purchase
Agreement or (z) on or after the Purchase and Sale Termination Date, the
amount of any such credit shall be paid by Originator to the Company by
deposit in immediately available funds into the Collection Account for
application by Servicer to the same extent as if Collections of the
applicable Receivable in such amount had actually been received on such
date.
(d) Each Purchase Report (other than the Purchase Report delivered
on the Closing Date) shall include, in respect of the Receivables
previously generated by Originator (including the Contributed
Receivables), a calculation of the aggregate reductions described in
SUBSECTION (A) or (B) relating to such Receivables since the last
Purchase Report delivered hereunder, as indicated on the books of the
Company (or, for such period prior to the Closing Date, the books of
Originator).
III.5. RECONVEYANCE OF RECEIVABLES.
In the event that Originator has paid to the Company the full Outstanding
Balance of any Receivable pursuant to SECTION 3.4, the Company shall
reconvey such Receivable to Originator, without representation or
warranty, but free and clear of all liens created by the Company.
ARTICLE IV
CONDITIONS OF PURCHASES
IV.1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial purchase
hereunder is subject to the condition precedent that the Company shall have
received, on or before the Closing Date, the following, each (unless otherwise
indicated) dated the Closing Date, and each in form, substance and date
satisfactory to the Company:
(a) A copy of the resolutions of the Board of Directors of
Originator approving the Transaction Documents to be delivered by it and
the transactions contemplated hereby and thereby, certified by the
Secretary or Assistant Secretary of Originator;
(b) Good standing certificates for Originator issued as of a recent
date acceptable to Servicer by the Secretary of State of the jurisdiction
of Originator=s incorporation and the jurisdiction where Originator=s
chief executive office is located;
(c) A certificate of the Secretary or Assistant Secretary of Originator
certifying the names and true signatures of the officers authorized on
Originator's behalf to sign the Transaction Documents to be delivered by
it (on which certificate the Company and Servicer (if other than
Originator) may conclusively rely until such time as the Company and the
Servicer shall receive from Originator a revised certificate meeting the
requirements of this SUBSECTION (C));
(d) The articles of incorporation of Originator, duly certified by
the Secretary of State of the jurisdiction of Originator=s incorporation
as of a recent date acceptable to Servicer, together with a copy of the
by-laws of Originator, each duly certified by the Secretary or an
Assistant Secretary of Originator;
(e) Copies of the proper financing statements (Form UCC-1) that
have been duly executed and name Originator as the assignor and the
Company as the assignee (and Purchaser as assignee of the Company) of the
Receivables generated by Originator and Related Rights or other, similar
instruments or documents, as may be necessary or, in Servicer's or the
Agent's opinion, desirable under the UCC of all appropriate jurisdictions
or any comparable law of all appropriate jurisdictions to perfect the
Company's ownership interest in all Receivables and Related Rights in
which an ownership interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to Servicer
and the Agent listing all effective financing statements that name
Originator as debtor or assignor and that are filed in the jurisdictions
in which filings were made pursuant to the foregoing SUBSECTION (E),
together with copies of such financing statements (none of which, except
for those described in the foregoing SUBSECTION (E), shall cover any
Receivable or any Related Right), and tax and judgment lien search
reports from a Person satisfactory to Servicer and the Agent showing no
evidence of such liens filed against Originator;
(g) Favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to
Originator, in the forms of EXHIBIT C;
(h) Evidence (i) of the execution and delivery by each of the
parties thereto of each of the other Transaction Documents to be executed
and delivered in connection herewith and (ii) that each of the conditions
precedent to the execution, delivery and effectiveness of such other
Transaction Documents has been satisfied to the Company's satisfaction;
and
(i) A certificate from an officer of Originator to the effect that
Servicer and Originator have placed on the most recent, and have taken
all steps reasonably necessary to ensure that there shall be placed on
subsequent, summary master control data processing reports the following
legend (or the substantive equivalent thereof): "THE RECEIVABLES
DESCRIBED HEREIN HAVE BEEN SOLD TO PILGRIM'S PRIDE FUNDING CORPORATION
PURSUANT TO A PURCHASE AND CONTRIBUTION AGREEMENT, DATED AS OF June 26,
1998, AMONG PILGRIM'S PRIDE, AND PILGRIM'S PRIDE FUNDING CORPORATION; AND
AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED TO
POOLED ACCOUNTS RECEIVABLES CAPITAL CORPORATION, PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF June 26, 1998, AMONG
PILGRIM'S PRIDE FUNDING CORPORATION, PILGRIM'S PRIDE, POOLED ACCOUNTS
RECEIVABLE CAPITAL CORPORATION AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., AS
AGENT."
IV.2. CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. Originator, by
accepting the Purchase Price related to each purchase of Receivables (and
Related Rights)generated by Originator, shall be deemed to have
certified that the representations and warranties contained in ARTICLE V
are true and correct on and as of such day, with the same effect as
though made on and as of such day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
In order to induce the Company to enter into this Agreement and to
make purchases and accept contributions hereunder, Originator, hereby
makes with respect to itself the representations and warranties set forth
in this ARTICLE V.
V.1. ORGANIZATION AND GOOD STANDING. Originator has been duly organized
and is validly existing as a corporation in good standing under the laws of the
state of its incorporation, with power and authority to own its properties and
to conduct its business as such properties are presently owned and such
business is presently conducted.
V.2. DUE QUALIFICATION. Originator is duly
licensed or qualified to do business as a foreign corporation in good
standing in the jurisdiction where its chief executive office and
principal place of business are located and in all other jurisdictions in
which (a) the ownership or lease of its property or the conduct of its
business requires such licensing or qualification and (b) the failure to
be so licensed or qualified would reasonably be expected to have a
Material Adverse Effect.
V.3. POWER AND AUTHORITY; DUE AUTHORIZATION. Originator has (a) all
necessary corporate power, authority and legal right (i) to execute and deliver,
and perform its obligations under, each Transaction Document to which it is a
party, and (ii) to generate, own, sell, contribute and assign Receivables and
Related Rights on the terms and subject to the conditions herein and
therein provided; and (b) duly authorized such execution and delivery and
such sale, contribution and assignment and the performance of such
obligations by all necessary corporate action.
V.4. VALID SALE OR CONTRIBUTION; BINDING OBLIGATIONS. Each sale or
contribution, as the case may be, of Receivables and Related Rights made by
Originator pursuant to this Agreement shall constitute a valid sale or
contribution, as the case may be, transfer, and assignment thereof to the
Company, enforceable against creditors of, and purchasers from, Originator; and
this Agreement constitutes, and each other Transaction Document to be
signed by Originator, when duly executed and delivered, will constitute,
a legal, valid, and binding obligation of Originator, enforceable in
accordance with its terms; except in each case 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.
V.5. NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents and the fulfillment of the
terms hereof or thereof will not (a) conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time or both) a default under (i) Originator's certificate of incorporation
or by-laws, or (ii) any indenture, loan agreement, mortgage, deed of trust, or
other agreement or instrument to which it is a party or by which it is bound,
(b) result in the creation or imposition of any Adverse Claim upon any of
its properties pursuant to the terms of any such indenture, loan
agreement, mortgage, deed of trust, or other agreement or instrument,
other than the Transaction Documents, or (c) violate any law or any
order, rule, or regulation applicable to it of any court or of any
federal, state or foreign regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over it or any of
its properties.
V.6. PROCEEDINGS. There is no litigation or, to
Originator's knowledge, any proceeding or investigation pending before
any court, regulatory body, arbitrator, administrative agency, or other
tribunal or governmental instrumentality (a) asserting the invalidity of
any Transaction Document, (b) seeking to prevent the sale or contribution
of Receivables and Related Rights to the Company or the consummation of
any of the other transactions contemplated by any Transaction Document,
or (c) seeking any determination or ruling that could reasonably be
expected to have a Material Adverse Effect.
V.7. BULK SALES ACT. No transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
V.8. GOVERNMENT APPROVALS. Except for the
filing of the UCC financing statements referred to in ARTICLE IV, all of
which, at the time required in ARTICLE IV, shall have been duly made and
shall be in full force and effect, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for Originator's due execution, delivery and
performance of any Transaction Document to which it is a party, as
seller.
V.9. FINANCIAL CONDITION.
(a) On the date hereof, and on the date of each sale of Receivables
by Originator to the Company (both before and after giving effect to such
sale), Originator shall be Solvent.
(b) The consolidated balance sheets of Originator and its
consolidated subsidiaries as of December 31, 1997, and the related
statements of income and shareholders' equity of Originator and its
consolidated subsidiaries for the fiscal year then ended certified by
Originator's independent accountants, copies of which have been furnished
to the Company, present fairly the consolidated financial position of
Originator and its consolidated subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied; and since such date no event has occurred that has
had, or is reasonably likely to have, a Material Adverse Effect.
V.10. MARGIN REGULATIONS. No use of any
funds acquired by Originator under this Agreement will conflict with or
contravene any of Regulations G, T, U and X promulgated by the Board of
Governors of the Federal Reserve System from time to time.
V.11. QUALITY OF TITLE.
(a) Each Receivable (together with the Related Rights) which is to
be sold or contributed to the Company hereunder is or shall be owned by
Originator, free and clear of any Adverse Claim. Whenever the Company
makes a purchase, or accepts a contribution, hereunder, it shall have
acquired a valid and perfected ownership interest (free and clear of any
Adverse Claim) in all Receivables generated by Originator and all
Collections related thereto, and in Originator's entire right, title and
interest in and to the other Related Rights with respect thereto.
(b) No effective financing statement or other instrument similar in
effect covering any Receivable generated by Originator or any right
related to any such Receivable is on file in any recording office except
such as may be filed in favor of the Company or the Originator, as the
case may be, in accordance with this Agreement or in favor of the
Purchaser in accordance with the Receivables Purchase Agreement.
(c) Unless otherwise identified to the Company in the related
Purchase Report, each Receivable purchased or contributed hereunder is on
the date of purchase or contribution an Eligible Receivable.
V.12. ACCURACY OF INFORMATION. Nofactual written information furnished or
to be furnished in writing by Originator, to the Company, the Purchaser or the
Agent for purposes of or in connection with any Transaction Document or any
transaction contemplated hereby or thereby is, and no other such factual written
information hereafter furnished (and prepared) by Originator, to the
Company, the Purchaser, or the Agent pursuant to or in connection with
any Transaction Document, taken as a whole, will be inaccurate in any
material respect as of the date it was furnished or (except as otherwise
disclosed to the Company at or prior to such time) as of the date as of
which such information is dated or certified, or shall contain any
material misstatement of fact or omitted or will omit to state any
material fact necessary to make such information, in the light of the
circumstances under which any statement therein was made, not materially
misleading on the date as of which such information is dated or
certified.
V.13. OFFICES. Originator's principal place of business
and chief executive office is located at the address set forth under
Originator's signature hereto, and the offices where Originator keeps all
its books, records and documents evidencing the Receivables, the related
Contracts and all other agreements related to such Receivables are
located at the addresses specified on SCHEDULE 5.13 (or at such other
locations, notified to Servicer and the Agent in accordance with SECTION
6.1(F), in jurisdictions where all action required by SECTION 7.3 has
been taken and completed).
V.14. TRADE NAMES. Except as disclosed on
SCHEDULE 5.14, Originator does not use any trade name other than its
actual corporate name. From and after the date that fell five (5) years
before the date hereof, Originator has not been known by any legal name
other than its corporate name as of the date hereof, nor has Originator
been the subject of any merger or other corporate reorganization except
as disclosed on SCHEDULE 5.14.
V.15. TAXES. Originator has filed all material 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, except any such taxes
which are not yet delinquent or are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles shall have been
set aside on its books.
V.16. LICENSES AND LABOR CONTROVERSIES.
(a) Originator has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of its properties or to the conduct of its business, which
violation or failure to obtain would be reasonably likely to have a
Material Adverse Effect; and
(b) There are no labor controversies pending against Originator
that have had (or are reasonably likely to have) a Material Adverse
Effect.
V.17. COMPLIANCE WITH APPLICABLE LAWS. Originator is in compliance, in
all material respects, with the requirements of (i) all applicable laws, rules,
regulations, and orders of all governmental authorities (including, without
limitation, Regulation Z, laws, rules and regulations relating to usury, truth
in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy and all other
consumer laws applicable to the Receivables and related Contracts)
(excluding with respect to environmental matters which are covered by
CLAUSE (II)), and (ii) to the best of its knowledge, all applicable
environmental laws, rules, regulations and orders of all governmental
authorities.
V.18. RELIANCE ON SEPARATE LEGAL IDENTITY. Originator is aware that
Purchaser and the Agent are entering into the Transaction Documents to which
they are parties in reliance upon the Company's identity as a legal entity
separate from Originator.
V.19. PURCHASE PRICE. The purchase price payable
by the Company to Originator hereunder is intended by Originator and
Company to be consistent with the terms that would be obtained in an
arm's length sale. The Servicer's Fee payable to Originator is intended
to be consistent with terms that would be obtained in an arm's length
servicing arrangement.
V.20. CERTAIN DEFINITIONS. With respect to
this Agreement, the terms "Material Adverse Effect" and "Solvent" are
defined as follows:
"MATERIAL ADVERSE EFFECT" means, with respect to any event or
circumstance, a material adverse effect on:
(i) the business, assets, financial condition of Originator;
(ii) the ability of Originator or the Servicer (if it is the
Originator) to perform its obligations under the Receivables
Purchase Agreement or any other Transaction Document to which it is
a party or the performance of any such obligations;
(iii) the validity or enforceability of the Receivables
Purchase Agreement or any other Transaction Document;
(iv) with respect to the Purchase and Contribution Agreement,
the status, existence, perfection, priority or enforceability of
Company's interest in the Receivables or Related Rights; or
(v) the validity or enforceability of the Receivables.
"SOLVENT" means, with respect to any Person at any time, a
condition under which:
(i) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater than
such Person's total liabilities (including contingent and
unliquidated liabilities) at such time;
(ii) such Person is and shall continue to be able to
pay all of its liabilities as such liabilities mature; and
(iii) such Person does not have unreasonably small capital
with which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light of all
the facts and circumstances then existing, represents the amount
which can reasonably be expected to become an actual or matured
liability;
(B) the "fair value" of an asset shall be the amount which may
be realized within a reasonable time either through collection or
sale of such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such
asset from an interested buyer who is willing to purchase such asset
under ordinary selling conditions; and
(D) the "present fair saleable value" of an asset means the amount
which can be obtained if such asset is sold with reasonable
promptness in an arm's length transaction in an existing and not
theoretical market.
ARTICLE VI
COVENANTS OF THE ORIGINATOR
VI.1. AFFIRMATIVE COVENANTS. From the
date hereof until the first day following the Final Payout Date,
Originator will, unless the Company and the Agent shall otherwise consent
in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects
with all applicable laws, rules, regulations and orders, including those
with respect to the Receivables generated by it and the related Contracts
and other agreements related thereto.
(b) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain its
corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification could reasonably be expected to have a
Material Adverse Effect.
(c) RECEIVABLES REVIEW. (i) At any time and from time to time (but
not more than twice during the term of this Agreement so long as no
Termination Event has occurred and is continuing) during regular business
hours, upon reasonable prior notice, permit the Company and/or the Agent,
or their respective agents or representatives, (A) to examine, to audit
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 Originator relating to the Receivables
and Related Rights, including, without limitation, the Contracts and
other agreements related thereto, and (B) to visit Originator's offices
and properties for the purpose of examining such materials described in
the foregoing CLAUSE (A) and discussing matters relating to the
Receivables and Related Rights or Originator's performance hereunder with
any of the officers or employees of Originator having knowledge of such
matters; and (ii) without limiting the provisions of CLAUSE (I) next
above, from time to time on request of the Agent, permit certified public
accountants or other auditors acceptable to the Agent to conduct a review
of its books and records with respect to the Receivables and Related
Rights.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain an ability
to recreate records evidencing the Receivables in the event of the
destruction of the originals thereof.
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. At its
expense timely and fully perform and comply with all provisions,
covenants and other promises required to be observed by it under the
related Contracts and all other agreements related to the Receivables and
Related Rights.
(f) LOCATION OF RECORDS. Keep its principal place of business and
chief executive office, and the offices where it keeps its records
concerning or related to Receivables and Related Rights, at the
address(es) referred to in SCHEDULE 5.13 or, upon 30 days' prior written
notice to the Company and the Agent, at such other locations in
jurisdictions where all action required by SECTION 7.3 shall have been
taken and completed.
(g) CREDIT AND COLLECTION POLICIES. Comply in all material respects
with its Credit and Collection Policy in connection with the Receivables
and the related Contracts.
(h) SEPARATE CORPORATE EXISTENCE OF THE COMPANY. Take such actions
as shall be required in order that:
(i) the Company's operating expenses (other than certain
organization expenses and expenses incurred in connection with the
preparation, negotiation and delivery of the Transaction Documents)
will not be paid by Originator;
(ii) the Company's books and records will be maintained
separately from those of Originator;
(iii) all financial statements of Originator that are
consolidated to include the Company will contain detailed notes
clearly stating that (A) all of the Company's assets are owned by
the Company, and (B) the Company is a separate entity with creditors
who have received interests in the Company's assets;
(iv) Originator will strictly observe corporate formalities in
its dealing with the Company;
(v) Originator shall not commingle its funds with any funds of
the Company;
(vi) Originator will maintain arm's length relationships with
the Company, and Originator will be compensated at market rates for
any services it renders or otherwise furnishes to the Company; and
(vii) Originator will not be, and will not hold itself out to be,
responsible for the debts of the Company or the decisions or actions
in respect of the daily business and affairs of the Company.
(i) POST OFFICE BOXES. Within 30 days after the date hereof, deliver to
the Agent (with a copy for Purchaser) a certificate from an authorized
officer of Originator to the effect that (i) the name of the renter of
all post office boxes into which Collections may from time to time be
mailed have been changed to the name of the Company (unless such post
office boxes are in the name of the relevant Lock-Box Banks) and (ii) all
relevant postmasters have been notified that each of Servicer and the
Agent are authorized to collect mail delivered to such post office boxes
(unless such post office boxes are in the name of the relevant Lock-Box
Banks).
VI.2. REPORTING REQUIREMENTS. From the
date hereof until the first day following the Purchase and Sale
Termination Date, Originator shall, unless the Agent and the Company
shall otherwise consent in writing, furnish to the Company and the Agent:
(a) PROCEEDINGS. As soon as possible and in any event within three
Business Days after Originator has knowledge thereof, written notice to
the Company and the Agent of (i) all pending proceedings and
investigations of the type described in SECTION 5.6 not previously
disclosed to the Company and/or the Agent and (ii) all material adverse
developments that have occurred with respect to any previously disclosed
proceedings and investigations.
(b) OTHER. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables, the Related
Rights or Originator's performance hereunder that the Company or the
Agent may from time to time reasonably request in order to protect the
interests of the Company, the Purchaser, the Agent or any other Affected
Party under or as contemplated by the Transaction Documents.
VI.3. NEGATIVE COVENANTS. From the date
hereof until the date following the Final Payout Date, Originator agrees
that, unless the Agent and the Company shall otherwise consent in
writing, it shall not:
(a) SALES, LIENS, ETC. Except as otherwise provided herein or in
any other Transaction Document, 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 Receivable or related
Contract, Collections or Related Security, or any interest therein, or
assign any right to receive income in respect thereof.
(b) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise
permitted in SECTION 4.2(A) of the Receivables Purchase Agreement or in
accordance with the Credit and Collection Policy, extend, amend or
otherwise modify the terms of any Receivable in any material respect, or
amend, modify or waive, in any material respect, any term or condition of
any Contract related thereto (which term or condition relates to payments
under, or the enforcement of, such Contract).
(c) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. Make any
change in the character of its business or materially alter its Credit
and Collection Policy, which change would, in either case, materially
change the credit standing required of particular Obligors or potential
Obligors or impair, in any material respect, the collectibility of the
Receivables generated by it.
(d) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES OR CHATTEL
PAPER. Take any action to cause or permit any Receivable generated by it
to become evidenced by any "instrument" or "chattel paper" (as defined in
the applicable UCC) unless such "instrument" or "chattel paper" shall be
delivered to the Company (which in turn shall deliver the same to the
Purchaser (or the Agent on its behalf)).
(e) MERGERS, ACQUISITIONS, SALES, ETC. Merge or consolidate with
another Person (except pursuant to a merger or consolidation involving
Originator where Originator is the surviving corporation), or convey,
transfer, lease or otherwise dispose of (whether in one or in a series of
transactions), all or substantially all of its assets (whether now owned
or hereafter acquired), other than pursuant to this Agreement.
(f) LOCK-BOX BANKS. Make any changes in its instructions to
Obligors regarding Collections or add or terminate any Lock-Box Bank
unless the requirements of CLAUSE (I) of EXHIBIT IV of the Receivables
Purchase Agreement have been met.
(g) ACCOUNTING FOR PURCHASES. Account for or treat (whether in
financial statements or otherwise) the transactions contemplated hereby
in any manner other than as sales of the Receivables and Related Security
by Originator to the Company.
(h) TRANSACTION DOCUMENTS. Enter into, execute, deliver or
otherwise become bound by any agreement, instrument, document or other
arrangement that restricts the right of Originator 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 Documents.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
VII.1. RIGHTS OF THE COMPANY. Originator
hereby authorizes the Company and the Servicer or their respective
designees to take any and all steps in Originator's name necessary or
desirable, in their respective determination, to collect all amounts due
under any and all Receivables and Related Rights, including, without
limitation, endorsing Originator's name on checks and other instruments
representing Collections and enforcing such Receivables and the
provisions of the related Contracts that concern payment and/or
enforcement of rights to payment.
VII.2. RESPONSIBILITIES OF
ORIGINATOR. Anything herein to the contrary notwithstanding:
(a) Originator agrees, to direct, and hereby grants to each of the
Company and the Agent the authority to direct, all Obligors to make
payments of Receivables directly to a Lock-Box Account at a Lock-Box
Bank. Originator further agrees to transfer any Collections that it
receives directly, to Servicer (for deposit to such a Lock-Box Account)
within one Business Day of receipt thereof, and agrees that all such
Collections shall be deemed to be received in trust for the Company.
(b) Originator shall perform its obligations hereunder, and the
exercise by the Company or its designee of its rights hereunder shall not
relieve Originator from such obligations.
(c) None of the Company, Servicer, Purchaser or the Agent shall
have any obligation or liability to any Obligor or any other third Person
with respect to any Receivables, Contracts related thereto or any other
related agreements, nor shall the Company, Servicer, Purchaser or the
Agent be obligated to perform any of the obligations of Originator
thereunder.
(d) Originator hereby grants to Servicer an irrevocable power of
attorney, with full power of substitution, coupled with an interest, to
take in the name of Originator all steps necessary or advisable to
indorse, negotiate or otherwise realize on any writing or other right of
any kind held or transmitted by Originator or transmitted or received by
the Company (whether or not from Originator) in connection with any
Receivable or Related Right.
VII.3. FURTHER ACTION EVIDENCING
PURCHASES. Originator agrees that from time to time, at its expense, it
will promptly execute and deliver all further instruments and documents,
and take all further action that the Company or Servicer may reasonably
request in order to perfect, protect or more fully evidence the
Receivables (and the Related Rights) purchased by, or contributed to, the
Company hereunder, or to enable the Company to exercise or enforce any of
its rights hereunder or under any other Transaction Document. Without
limiting the generality of the foregoing, upon the request of the
Company, Originator will:
(a) execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate; and
(b) ▇▇▇▇ the summary master control data processing records with
the legend set forth in SECTION 4.1(I).
Originator hereby authorizes the Company or its designee to file one or
more financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any of the Receivables (and the
Related Rights) now existing or hereafter generated by Originator. If
Originator fails to perform any of its agreements or obligations under
this Agreement, the Company or its designee may (but shall not be
required to) itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Company or its designee incurred in
connection therewith shall be payable by Originator as provided in
SECTION 9.1.
VII.4. APPLICATION OF COLLECTIONS.
Any payment by an Obligor in respect of any indebtedness owed by it to
Originator shall, except as otherwise specified by such Obligor or
otherwise required by contract or law and unless otherwise instructed by
the Company or the Agent, be applied FIRST, as a Collection of any
Receivables of such Obligor, in the order of the age of such Receivables,
starting with the oldest of such Receivables, and SECOND, to any other
indebtedness of such Obligor.
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
VIII.1. PURCHASE AND SALE TERMINATION EVENTS.
Each of the following events or occurrences described in this SECTION 8.1 shall
constitute a "PURCHASE AND SALE TERMINATION EVENT":
(a) The Facility Termination Date (as defined in the Receivables
Purchase Agreement) shall have occurred; or
(b) Originator shall fail to make any payment or deposit to be made by
it hereunder when due and such failure shall remain unremedied for one
Business Day after notice; or
(c) Any representation or warranty made or deemed to be made by
Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Document or any other information or
report delivered pursuant hereto or thereto shall prove to have been
false or incorrect in any material respect when made or deemed made; or
(d) Originator shall fail to perform or observe in any material
respect any agreement contained in any of SECTIONS 6.1(H) or 6.3; or
(e) Originator shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall remain unremedied for thirty
(30) days after written notice thereof shall have been given by Servicer,
the Agent or the Company to Originator; or
(f) (i) Originator or any of its subsidiaries 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 Originator or any of its subsidiaries 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, or
other similar official for it or for all or any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), such proceeding shall remain undismissed or
unstayed for a period of 30 days; or () Originator or any of its
subsidiaries shall take any corporate action to authorize any of the
actions set forth in CLAUSE (I) above in this SECTION 8.1(F);
(g) A contribution failure shall occur with respect to any benefit
plan sufficient to give rise to a lien under Section 302(f) of ERISA, or
the Internal Revenue Service shall, or shall indicate its intention in
writing to Originator to, file notice of a lien asserting a claim or
claims pursuant to the Code with regard to any of the assets of
Originator, or the Pension Benefit Guaranty Corporation shall, or shall
indicate its intention in writing to Originator or an ERISA Affiliate to,
either file notice of a lien asserting a claim pursuant to ERISA with
regard to any assets of Originator or an ERISA Affiliate or terminate any
benefit plan that has unfunded benefit liabilities; or
(h) The Internal Revenue Service shall file notice of a lien pursuant to
Section 6373 of the Internal Revenue Code with regard to any of assets of
Originator and such lien shall not have been released within ten Business
Days, 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.
VIII.2. REMEDIES.
(i) OPTIONAL TERMINATION. Upon the occurrence of a Purchase
and Sale Termination Event, the Company (and not Servicer) shall
have the option by notice to the Originator (with a copy to the
Agent) to declare the Purchase and Sale Termination Date to have
occurred.
(ii) REMEDIES CUMULATIVE. Upon any termination of the Purchase
Facility pursuant to this SECTION 8.2, the Company shall have, in
addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the UCC of
each applicable jurisdiction and other applicable laws, which rights
shall be cumulative. Without limiting the foregoing, the occurrence
of the Purchase and Sale Termination Date shall not deny the Company
any remedy in addition to termination of the Purchase Facility to
which the Company may be otherwise appropriately entitled, whether
at law or equity.
ARTICLE IX
INDEMNIFICATION
IX.1. INDEMNITIES BY THE
ORIGINATOR. Without limiting any other rights which the Company may have
hereunder or under applicable law, the Originator hereby agrees to
indemnify the Company and each of its assigns, officers, directors,
employees and agents (each of the foregoing Persons being individually
called a "PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand,
from and against any and all damages, losses, claims, judgments,
liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being
collectively called "PURCHASE AND SALE INDEMNIFIED AMOUNTS") awarded
against or incurred by any of them arising out of or as a result of the
following:
(a) the transfer by Originator of an interest in any Receivable or
Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by Originator
under or in connection with this Agreement or any other Transaction
Document, or any information or report delivered by Originator pursuant
hereto or thereto which shall have been false or incorrect in any
material respect when made or deemed made;
(c) the failure by Originator to comply with any applicable law,
rule or regulation with respect to any Receivable or the related
Contract, or the nonconformity of any Receivable or the related Contract
with any such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an
ownership interest in the Receivables generated by Originator and Related
Rights free and clear of any Adverse Claim, other than an Adverse Claim
arising solely as a result of an act of the Company, whether existing at
the time of the purchase or contribution of such Receivables or at any
time thereafter;
(e) the failure of Originator to file with respect to itself, or
any delay by Originator 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 or purported
Receivables generated by Originator or Related Rights, whether at the
time of any purchase or contribution or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of an Obligor to the payment of any Receivable or purported
Receivable generated by Originator (including, without limitation, a
defense based on such Receivables or the related Contracts 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
goods or services related to any such Receivable or the furnishing of or
failure to furnish such goods or services;
(g) any product liability claim or any other claim involving health
or safety issues, arising out of or in connection with goods or services
that are the subject of any Receivable;
(h) any litigation, proceeding or investigation against Originator;
(i) any tax or governmental fee or charge (other than any tax
excluded pursuant to the proviso below), all interest and penalties
thereon or with respect thereto, and all 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,
contribution or ownership of the Receivables or any Related Right
connected with any such Receivables; and
(j) any failure of Originator to perform its duties or obligations in
accordance with the provisions of this Agreement or any other Transaction
Document;
EXCLUDING, HOWEVER, (i) Purchase and Sale Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part
of a Purchase and Sale Indemnified Party, (ii) any indemnification which
has the effect of recourse for non-payment of the Receivables due to
credit reasons to any indemnitor (except as otherwise specifically
provided under this SECTION 9.1) and (iii) any tax based upon or measured
by net income or gross receipts.
If for any reason the indemnification provided above in this SECTION
9.1 is unavailable to a Purchase and Sale Indemnified Party or is
insufficient to hold such Purchase and Sale Indemnified Party harmless,
then the Originator shall contribute to the amount paid or payable by
such Purchase and Sale Indemnified Party as a result of such loss, claim,
damage or liability to the maximum extent permitted under applicable law.
ARTICLE X
MISCELLANEOUS
X.1. AMENDMENTS, ETC.
(a) The provisions of this Agreement may from time to time be
amended, modified or waived, if such amendment, modification or waiver is
in writing and consented to by the Company, the Agent and the Originator
(with respect to an amendment) or by the Company (with respect to a
waiver or consent by it).
(b) No failure or delay on the part of the Company, Servicer,
Originator or any third party beneficiary in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No
notice to or demand on the Company, Servicer, or Originator in any case
shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Company or Servicer under
this Agreement shall, except as may otherwise be stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.
X.2. NOTICES, ETC. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in
writing (including facsimile communication) and shall be personally
delivered or sent by express mail or courier or by certified mail,
postage-prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature
pages hereof or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties hereto.
All such notices and communications shall be effective, (i) if personally
delivered or sent by express mail or courier or if sent by certified
mail, when received, and (ii) if transmitted by facsimile, when sent,
receipt confirmed by telephone or electronic means.
X.3. NO WAIVER; CUMULATIVE
REMEDIES. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
X.4. BINDING EFFECT;
ASSIGNABILITY. This Agreement shall be binding upon and inure to the
benefit of the Company and Originator and their respective successors and
permitted assigns; PROVIDED, HOWEVER, that Originator may not assign its
rights hereunder or any interest herein or delegate its duties hereunder
without the prior consent of the Company and the Agent. This Agreement
shall create and constitute the continuing obligations of the parties
hereto in accordance with its terms, and shall remain in full force and
effect until the date after the Purchase and Sale Termination Date on
which the Originator has received payment in full for all Receivables and
Related Rights purchased pursuant to SECTION 1.1 hereof. The rights and
remedies with respect to any breach of any representation and warranty
made by Originator pursuant to ARTICLE V and the indemnification and
payment provisions of ARTICLE IX and SECTION 10.6 shall be continuing and
shall survive any termination of this Agreement.
X.5. GOVERNING LAW. THIS AGREEMENT 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).
X.6. COSTS, EXPENSES AND TAXES. In
addition to the obligations of the Originator under ARTICLE IX,
Originator agrees to pay on demand:
(a) all reasonable costs and expenses in connection with the
enforcement of this Agreement and the other Transaction Documents; and
(b) all stamp and other similar taxes and fees payable or determined to
be payable in connection with the execution, delivery, filing and
recording of this Agreement or the other Transaction Documents, and
agrees to indemnify each Purchase and Sale Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
X.7. SUBMISSION TO JURISDICTION.
EACH PARTY HERETO HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY COURT OF THE STATE OF ILLINOIS OR OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b)
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c)
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING; (d) CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS
IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS
TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 10.2; AND (e) TO THE
EXTENT ALLOWED BY LAW, AGREES THAT A NONAPPEALABLE FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE
COMPANY'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST ORIGINATOR OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.
X.8. WAIVER OF JURY TRIAL. EACH PARTY
HERETO EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY
OTHER TRANSACTION DOCUMENT, OR UNDER ANY AMENDMENT, INSTRUMENT OR
DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
X.9. CAPTIONS AND CROSS REFERENCES; INCORPORATION BY REFERENCE.
The various captions (including, without limitation, the table of contents) in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References
in this Agreement to any underscored Section or Exhibit are to such
Section or Exhibit of this Agreement, as the case may be. The Exhibits
hereto are hereby incorporated by reference into and made a part of this
Agreement.
X.10. EXECUTION IN COUNTERPARTS. This
Agreement may be executed in any number of counterparts and by different
parties hereto in separate 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.
X.11. ACKNOWLEDGMENT AND AGREEMENT. By
execution below, Originator expressly acknowledges and agrees that all of
the Company's rights, title, and interests in, to, and under this
Agreement shall be assigned by the Company to the Purchaser pursuant to
the Receivables Purchase Agreement, and Originator consents to such
assignment. Each of the parties hereto acknowledges and agrees that the
Agent and the Purchaser are third party beneficiaries of the rights of
the Company arising hereunder and under the other Transaction Documents
to which Originator is a party.
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
By:
Name:
Title:
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
PILGRIM'S PRIDE CORPORATION
By:
Name:
Title:
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
Acknowledged and consented by:
PILGRIM'S PRIDE CORPORATION,
as initial Servicer
By:
Name:
Title:
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
