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EXECUTION COPY
AMENDMENT NO. 1, dated as of December 16, 2008
(this “ Amendment ”), to the AMENDED AND
RESTATED RECEIVABLES TRANSFER AGREEMENT, dated as of August 6,
2008, (as amended, supplemented or otherwise modified from time to
time, the “ Receivables Transfer Agreement
”), by and among TYSON RECEIVABLES CORPORATION, a
Delaware corporation, as transferor (in such capacity, the
“ Transferor ”), TYSON FOODS, INC., a
Delaware corporation, individually (“ Tyson
”), as collection agent (in such capacity, the
“ Collection Agent ”) and as guarantor
under the Limited Guaranty set forth in Article IX of the
Receivables Transfer Agreement (in such capacity, the “
Guarantor ”), the several commercial paper
conduits identified on Schedule B of the Receivables Transfer
Agreement and their respective permitted successors and assigns
(the “ CP Conduit Purchasers ”; each,
individually, a “ CP Conduit Purchaser
”), the several financial institutions identified on
Schedule B of the Receivables Transfer Agreement as “
Committed Purchasers ” and their respective
permitted successors and assigns (the “ Committed
Purchasers ”; each, individually, a “
Committed Purchaser ”), the agent bank set forth
opposite the name of each CP Conduit Purchaser and Committed
Purchaser on Schedule B of the Receivables Transfer Agreement and
its permitted successor and assign (the “ Funding
Agent ” with respect to such CP Conduit Purchaser and
Committed Purchaser), and JPMORGAN CHASE BANK, N.A. (formerly known
as The Chase Manhattan Bank) (“ JPMCB
”), as administrative agent for the benefit of the CP
Conduit Purchasers, the Committed Purchasers and the Funding Agents
(in such capacity, the “ Administrative Agent
”).
RECITALS
The parties hereto enter into this Amendment pursuant to Section
10.02 of the Receivables Transfer Agreement.
NOW THEREFORE, for and in consideration of the premises and of
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto consent and
agree as follows:
SECTION 1. Definitions . Unless otherwise defined
in this Amendment, all defined terms used in this Amendment,
including the Recitals hereto, shall have the meanings ascribed to
such terms in the Receivables Transfer Agreement.
SECTION 2. Amendment and Restatement .
(a)
Section 2.02(a) of the Receivables Transfer
Agreement is hereby amended by amending and restating the third
sentence of the second paragraph thereof to read as
follows:
“Each Incremental Transfer shall be subject to the
condition precedent that the Collection Agent shall have delivered
to the Administrative Agent, in form and substance satisfactory to
each Funding Agent, the most recently completed Settlement
Statement and, with respect to any Incremental Transfer for which
the proposed date of such Incremental Transfer is after January 15,
2009, a Daily Report dated within one (1) Business Day prior to the
desired date of such Incremental Transfer (and to the extent
1
required by Section 5.01(a)(ix) for proposed
Incremental Transfers prior to January 15, 2009, a completed Weekly
Report dated within five (5) Business Days prior to the desired
date of such Incremental Transfer), together with such other
additional information as any Funding Agent may reasonably
request.”
(b)
Section 2.03(g) of the Receivables Transfer
Agreement is hereby amended and restated in its entirety to read as
follows:
“(g) Nieuw Amsterdam may at any time designate all or
any portion of the Net Investment held by it as a “CP
Conduit Purchaser” as having been transferred to itself
in its capacity as a “Committed Purchaser”, to
the same extent and with the same effect as if such transfer had
been made to a third party Committed Purchaser pursuant to this
Agreement or an Asset Purchase Agreement. Three Pillars may at any
time designate all or any portion of the Net Investment held by it
as a “CP Conduit Purchaser” as having been
transferred to itself in its capacity as a “Committed
Purchaser”, to the same extent and with the same effect
as if such transfer had been made to a third party Committed
Purchaser pursuant to this Agreement or an Asset Purchase
Agreement.”
(c) Section 2.11(a) of the
Receivables Transfer Agreement is hereby amended by deleting the
reference to “2.00%” therein and substituting
therefor “3.50%”.
(d) Section 2.12(a)
of the Receivables Transfer Agreement is hereby amended and
restated in its entirety to read as follows:
“(a) Weekly Report and Daily
Report. The Collection Agent shall
deliver to the Administrative Agent and the Transferor, no later
than 1:00 p.m., New York City time, (i) on each Weekly Settlement
Date (which occurs on or before January 11, 2009) during a
Downgrade Condition, a written report substantially in the form
attached hereto as Exhibit D-1 (the “Weekly
Report”) setting forth total Collections received and
Receivables originated during the immediately preceding calendar
week, Eligible Receivables balances at the end of the immediately
preceding calendar week, and such other information as the
Administrative Agent or any Funding Agent may reasonably request,
and (ii) on each Business Day after January 15, 2009, a daily
report substantially in the form attached hereto as Exhibit D-3
(the “Daily Report”) setting forth Collections
received on the previous Business Day and the balance of Eligible
Receivables as of the close of business on the previous Business
Day, and such other information as the Administrative Agent or any
Funding Agent may reasonably request. The Weekly Report and such
daily report may be delivered in an electronic format mutually
agreed upon by the Collection Agent and each Funding Agent, or
pending such agreement, by facsimile.”
(e)
Section 5.01(a)(ix) of the Receivables Transfer
Agreement is hereby amended and restated in its entirety to read as
follows:
“(ix) Weekly Reports . During
a Downgrade Condition, on each Weekly Settlement Date occurring on
or before January 15, 2009, a Weekly Report to the Administrative
Agent, the Funding Agents and CP Conduit
Purchasers.”
(f)
Section 6.02(c)(iii) of the Receivables Transfer
Agreement is hereby amended and restated in its entirety to read as
follows:
“(iii) During a Downgrade Condition, selected at least
one Weekly Report or Daily Report, as applicable, for each fiscal
quarter (during which a Downgrade Condition had occurred or was
continuing) delivered during the fiscal year then ended and
verified that the amounts presented on such Weekly Report relating
to sales, collections, concentrati
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