RECEIVABLES TRANSFER AGREEMENT

Receivables Purchase Transfer Agreement

You are currently viewing:

This Receivables Purchase Transfer Agreement involves

TYSON FOODS INC | Chase Manhattan Bank | JPMorgan Chase Bank, NA | Park Avenue Receivables Corporation | SUNTRUST BANK | SUNTRUST ROBINSON HUMPHREY, INC | Three Pillars Funding Corporation | THREE PILLARS FUNDING, LLC | Transaction Management | TYSON FOODS, INC | TYSON RECEIVABLES CORPORATION

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: RECEIVABLES TRANSFER AGREEMENT
Governing Law: New York Date: 8/11/2008
Industry: Food Processing Law Firm: Kutak Rock Sector: Consumer/Non-Cyclical

RECEIVABLES TRANSFER AGREEMENT, Parties: tyson foods inc , chase manhattan bank , jpmorgan chase bank na , park avenue receivables corporation , suntrust bank , suntrust robinson humphrey inc , three pillars funding corporation , three pillars funding llc , transaction management , tyson foods inc , tyson receivables corporation

EXHIBIT 10.1

EXECUTION COPY

RECEIVABLES TRANSFER AGREEMENT

by and among

TYSON RECEIVABLES CORPORATION,

as Transferor,

TYSON FOODS, INC.,

individually,

as Collection Agent and as Guarantor,

The Persons Parties hereto as

CP Conduit Purchasers,

Committed Purchasers

and Funding Agents

and

JPMORGAN CHASE BANK

(formerly known as The Chase Manhattan Bank),

as Administrative Agent

Dated as of October 17, 2001

As amended and restated as of August 6, 2008

TABLE OF CONTENTS

Page

ARTICLE I

Definitions

SECTION 1.01. Certain Defined Terms

SECTION 1.02. Other Terms

SECTION 1.03. Computation of Time Periods

ARTICLE II

Purchases and Settlements

SECTION 2.01. Facility; Termination

SECTION 2.02. Transfers; Certificates; Eligible Receivables.

SECTION 2.03. Selection of Tranche Periods and Tranche Rates.

SECTION 2.04. Discount, Fees and Other Costs and Expenses

SECTION 2.05. Non-Liquidation Settlement and Reinvestment Procedures

SECTION 2.06. Liquidation Settlement Procedures

SECTION 2.07. Reduction of Commitments

SECTION 2.08. Fees

SECTION 2.09. Protection of Ownership Interest of the CP Conduit Purchasers and the Committed Purchasers

SECTION 2.10. Deemed Collections; Application of Payments

SECTION 2.11. Payments and Computations, etc

SECTION 2.12. Reports.

SECTION 2.13. Collection Account

SECTION 2.14. Right of Setoff

SECTION 2.15. Sharing of Payments, etc

SECTION 2.16. Broken Funding

SECTION 2.17. Conversion and Continuation of Outstanding Tranches Funded by the Committed Purchasers

SECTION 2.18. Illegality

SECTION 2.19. Inability to Determine Eurodollar Rate

SECTION 2.20. Indemnities by the Transferor

SECTION 2.21. Indemnity for Reserves and Expenses

SECTION 2.22. Indemnity for Taxes

SECTION 2.23. Other Costs, Expenses and Related Matters

SECTION 2.24. Funding Agents

SECTION 2.25. Use of Historical Data

SECTION 2.26. Extension of Facility A Commitment Expiry Date

ARTICLE III

Representations and Warranties

SECTION 3.01. Representations and Warranties of the Transferor

SECTION 3.02. Reaffirmation of Representations and Warranties by the Transferor

ARTICLE IV

Conditions Precedent

SECTION 4.01. Conditions to Effectiveness

ARTICLE V

Covenants

SECTION 5.01. Affirmative Covenants of the Transferor

SECTION 5.02. Negative Covenants of the Transferor

ARTICLE VI

Administration and Collections

SECTION 6.01. Appointment of Collection Agent

SECTION 6.02. Duties of Collection Agent

SECTION 6.03. Rights After Designation of New Collection Agent

SECTION 6.04. Representations and Warranties of the Collection Agent

SECTION 6.05. Affirmative Covenants of the Collection Agent

SECTION 6.06. Negative Covenants of the Collection Agent

SECTION 6.07. Collection Agent Default

SECTION 6.08. Responsibilities of the Transferor and the Sellers

ARTICLE VII

Termination Events

SECTION 7.01. Termination Events.

SECTION 7.02. Remedies Upon the Occurrence of a Termination Event

SECTION 7.03. Reconveyance Under Certain Circumstances

ARTICLE VIII

The Administrative Agent

SECTION 8.01. Appointment

SECTION 8.02. Delegation of Duties

SECTION 8.03. Exculpatory Provisions

SECTION 8.04. Reliance by Administrative Agent

SECTION 8.05. Notice of Collection Agent Default

SECTION 8.06. Non-Reliance on the Administrative Agent and Other Purchasers

SECTION 8.07. Indemnification

SECTION 8.08. The Administrative Agent in Its Individual Capacity

SECTION 8.09. Resignation of Administrative Agent; Successor Administrative Agent

SECTION 8.10. Consent to Agreed-Upon Procedures

SECTION 8.11. Authorization and Action of Funding Agents

ARTICLE IX

Limited Guaranty

SECTION 9.01. Limited Guaranty of Obligations

SECTION 9.02. Validity of Obligations; Irrevocability

SECTION 9.03. Several Obligations

SECTION 9.04. Subrogation Rights

SECTION 9.05. Rights of Set-Off

SECTION 9.06. Representations and Warranties

ARTICLE X

Miscellaneous

SECTION 10.01. Term of Agreement

SECTION 10.02. Waivers; Amendments

SECTION 10.03. Notices

SECTION 10.04. Governing Law; Submission to Jurisdiction;| Integration

SECTION 10.05. Severability; Counterparts

SECTION 10.06. Successors and Assigns

SECTION 10.07. Confidentiality

SECTION 10.08. No Bankruptcy Petition Against the CP Conduit Purchasers

SECTION 10.09. Limited Recourse

SECTION 10.10. Characterization of the Transactions Contemplated by this Agreement

SECTION 10.11. Waiver of Setoff

SECTION 10.12. Conflict Waiver

SECTION 10.13. Limitation on the Termination of Sellers

SCHEDULE A

Definitions

SCHEDULE B

Schedule of CP Conduit Purchasers, Committed Purchasers, Funding Agents, CP Conduit Funding Limits and Commitments

SCHEDULE C

Schedule of Special Obligors

SCHEDULE D

Schedule of Match Funding CP Conduit Purchasers

EXHIBIT A

Credit and Collection Policies and Practices

EXHIBIT B

List of Lockbox Banks and Accounts

EXHIBIT C

Form of Lockbox Agreement

EXHIBIT D-1

Form of Weekly Report

EXHIBIT D-2

Form of Settlement Statement

EXHIBIT E

Form of Transfer Certificate

EXHIBIT F

List of Actions and Suits

EXHIBIT G

List of Subsidiaries and Trade Names

EXHIBIT H

Form of Secretary’s Certificate

EXHIBIT I

Trade Names of the Sellers

EXHIBIT J

Form of Transfer Supplement

EXHIBIT K

Form of Transfer/Tranche Period Request

EXHIBIT L

Form of Reduction Notice

EXHIBIT M

Form of Letter with Respect to Agreed-Upon Procedures

EXHIBIT N

Form of Compliance Certificate

iii

RECEIVABLES TRANSFER AGREEMENT (as amended, supplemented or otherwise modified and in effect from time to time, this “ Agreement ”), dated as of October 17, 2001, 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 (in such capacity, the “ Guarantor ”), the several commercial paper conduits identified on Schedule B 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 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 and its permitted successor and assign (the “ Funding Agent ” with respect to such CP Conduit Purchaser and Committed Purchaser), and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), a New York state banking corporation (“ 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 ”).

PRELIMINARY STATEMENTS

WHEREAS the Transferor may desire to convey, transfer and assign, from time to time, undivided percentage interests in certain accounts receivable, and the CP Conduit Purchasers may desire to, and the Committed Purchasers in each Related Group, if requested by the CP Conduit Purchaser in its Related Group or (if such CP Conduit Purchaser does not make a purchase requested by the Transferor), shall, accept such conveyance, transfer and assignment of such undivided percentage interests, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereby agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Certain Defined Terms. Capitalized terms used herein shall have the meanings assigned to such terms in, or incorporated by reference into, Schedule A attached hereto, which Schedule A is incorporated by reference herein.

SECTION 1.02. Other Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP.

SECTION 1.03. Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each means “to but excluding,” and the word “within” means “from and excluding a specified date and to and including a later specified date.”

ARTICLE II

Purchases and Settlements

SECTION 2.01. Facility; Termination. On the terms and conditions set forth in this Agreement, the parties hereto establish a receivables financing facility (“Program”) consisting of a renewable 364-day facility (“ Facility A ”) and another renewable 364-day facility (“ Facility B ”).

The Committed Purchasers’ several obligations to make purchases from the Transferor hereunder shall terminate under each Facility on the applicable Termination Date. Notwithstanding anything to the contrary contained herein or in the other Transaction Documents,

(a) no Committed Purchaser shall be obligated to provide the Transferor with funds (i) in an amount that would exceed such Committed Purchaser’s unused Commitment then in effect or (ii) for a Tranche Period that would extend beyond the applicable Commitment Expiry Date, subject to Section 2.02(a)(iv) and in the case of Facility A to Section 2.03(a), and

(b) the failure of any Committed Purchaser to make its Commitment Pro Rata Share of such purchase available to the Transferor (subject to the terms and conditions set forth herein) shall not relieve any other Committed Purchaser of its obligations hereunder.

Notwithstanding the foregoing or any other provision contained herein, to the extent that any Committed Purchaser fails to agree to an extension of the Facility B Commitment Expiry Date in accordance with Section 2.26(b) hereof, (i) such Committed Purchaser shall fund such Committed Purchaser’s Facility Pro Rata Share with respect to Facility B of the Transfer Price for each Transferred Interest solely by accepting a Term-out Period Account Funded Incremental Transfer and (ii) no CP Conduit in such Committed Purchaser’s Related Group shall accept any Incremental Transfers with respect to Facility B after the then existing Facility B Commitment Expiry Date.

SECTION 2.02. Transfers; Certificates; Eligible Receivables.

(a) Incremental Transfers. Prior to the Termination Date, upon the terms and subject to the conditions set forth herein and in the other Transaction Documents,

(x) the Transferor may, at its option from time to time, request a conveyance, transfer and assignment to each CP Conduit Purchaser (prior to the occurrence of a CP Conduit Purchaser’s Termination Event with respect to such CP Conduit Purchaser) or if

any CP Conduit Purchaser does not make such purchase, to the Committed Purchaser(s) in such CP Conduit Purchaser’s Related Group; and

(y) each CP Conduit Purchaser may, at its option from time to time (prior to the occurrence of a CP Conduit Purchaser’s Termination Event with respect to such CP Conduit Purchaser), and if any CP Conduit Purchaser does not make such purchase, the Committed Purchaser(s) in such CP Conduit Purchaser’s Related Group shall, accept such conveyance, transfer and assignment from the Transferor, without recourse except as provided herein,

of undivided percentage ownership interests in the Receivables, together with Related Security, Collections and Proceeds with respect thereto (each, an “ Incremental Transfer ”) at the Transfer Price from time to time prior to the Termination Date; provided that

(i) after giving effect to the issuance of Commercial Paper by the CP Conduit Purchasers or the obtaining of funds by the Committed Purchasers to fund the Transfer Price of any Incremental Transfer and the payment to the Transferor of such Transfer Price, the Net Investment shall not exceed the Program Limit;

(ii) the representations and warranties set forth in Section 3.01 shall be true and correct as of the date of such Incremental Transfer and the payment to the Transferor of the Transfer Price related thereto;

(iii) a portion of each Tranche of such Incremental Transfer shall be allocated to each Related Group according to its Commitment Pro Rata Share; and

(iv) each Related Group’s portion of such Tranche will be allocated to such Related Group’s Facility A and Facility B according to such Related Group’s applicable Facility Pro Rata Share; provided , however , that if allocating such portion of such Tranche according to the applicable Facility Pro Rata Share would result in (x) a Tranche Period that extends beyond the Facility A Commitment Expiry Date being allocated to Facility A of such Related Group or (y) a Tranche Period that extends beyond the Facility B Commitment Expiry Date being allocated to Facility B of such Related Group, such Tranche Period, to the extent it applies to Facility A of such Related Group or Facility B of such Related Group, as applicable, will be deemed to end on the Facility A Commitment Expiry Date or the Facility B Commitment Expiry Date, as applicable.

The Transferor may, by delivery of a Transfer/Tranche Period Request to the Administrative Agent and each Funding Agent by telecopy, offer to convey, transfer and assign to each CP Conduit Purchaser (prior to the occurrence of a CP Conduit Purchaser’s Termination Event with respect to such CP Conduit Purchaser) or if any CP Conduit Purchaser does not make such purchase, to the Committed Purchaser(s) in such CP Conduit Purchaser’s Related Group, undivided percentage ownership interests in the Receivables and Related Security, Collections and Proceeds with respect thereto at least two (2) Business Days prior to the proposed date of any Incremental Transfer. Each such notice shall specify (x) the desired Transfer Price (which shall be at least $3,000,000 in the aggregate, or integral multiples of $100,000 in excess thereof) or, to the extent that the then available unused portion of the Program Limit is less than such

amount, such lesser amount equal to such available portion of the Program Limit; (y) the desired date of such Incremental Transfer which shall be a Business Day; and (z) the desired Tranche Period(s) and allocations of the Net Investment of such Incremental Transfer thereto as required by Section 2.03 hereof. 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 to the extent required by Section 5.01(a)(ix), 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. The Administrative Agent will promptly notify the Funding Agent for each CP Conduit Purchaser and the Committed Purchasers, as applicable, of the Administrative Agent’s receipt of any request for an Incremental Transfer to be made to such Person. At their option, each CP Conduit Purchaser shall accept or reject any such offer by prompt written notice given to the Transferor, the Administrative Agent and the Funding Agent with respect to such CP Conduit Purchaser by telephone or telecopy.

Each notice of proposed Incremental Transfer shall be irrevocable and binding on the Transferor, and the Transferor shall indemnify the CP Conduit Purchasers and the Committed Purchasers against any loss or expense incurred by the CP Conduit Purchasers and the Committed Purchasers, either directly or indirectly, as a result of any failure by the Transferor to complete such Incremental Transfer, including, without limitation, any loss or expense incurred by the CP Conduit Purchasers and the Committed Purchasers by reason of the liquidation or reemployment of funds acquired by the CP Conduit Purchasers or the Committed Purchasers (including, without limitation, funds obtained by issuing Commercial Paper or promissory notes, obtaining deposits as loans from third parties and reemployment of funds) to fund such Incremental Transfer.

On the date of the initial Incremental Transfer, each Funding Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers in its Related Group, shall deliver written confirmation to the Transferor of the Transfer Price, the Tranche Period(s) and the Tranche Rate(s) relating to such Transfer as required by Section 2.03 hereof, and the Transferor shall deliver to the Administrative Agent the Transfer Certificate in the form of Exhibit E hereto (the “ Transfer Certificate ”). The Transfer Price for the initial Incremental Transfer shall be $702,000,000. The Administrative Agent shall indicate the amount of the initial Incremental Transfer together with the date thereof on the grid attached to the Transfer Certificate; provided , however , that the failure by the Administrative Agent to make the foregoing notations shall not in any way affect the Transferor’s obligations hereunder. On the date of each subsequent Incremental Transfer, each Funding Agent shall send written confirmation to the Transferor of the Transfer Price, the Tranche Period(s), the Transfer Date and the Tranche Rate(s) applicable to such Incremental Transfer. The Administrative Agent shall indicate the amount of the Incremental Transfer together with the date thereof as well as the Net Investment (after giving effect to the Incremental Transfer) on the grid attached to the Transfer Certificate. The Transfer Certificate shall evidence the Incremental Transfers. On the day of each Incremental Transfer, each CP Conduit Purchaser and Committed Purchaser participating in such purchase shall deposit to the Transferor’s account, in immediately available funds, an amount equal to its share of the Transfer Price for such Incremental Transfer made to the CP Conduit Purchasers or the

Committed Purchasers, as applicable. No Committed Purchaser shall have any responsibility for the failure of any other Committed Purchaser to make any such deposit.

(b) Reinvestment Transfers. On each Business Day occurring after the initial Incremental Transfer hereunder and prior to a CP Conduit Purchaser’s Termination Event (in the case of the CP Conduit Purchasers) and the Termination Date, the Transferor hereby agrees to convey, transfer and assign to each CP Conduit Purchaser (prior to the occurrence of a CP Conduit Purchaser’s Termination Event with respect to such CP Conduit Purchaser) or the Committed Purchasers, and each CP Conduit Purchaser may agree to purchase and, if such CP Conduit Purchaser does not so purchase, each Committed Purchaser in its Related Group shall purchase from the Transferor, undivided percentage ownership interests in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, to the extent that Collections are available for such Transfer in accordance with Section 2.05 hereof. The Transferor agrees to maintain, at all times prior to the Termination Date, a Net Receivables Balance in an amount at least sufficient to maintain the Percentage Factor at an amount not greater than the Maximum Percentage Factor pursuant to Section 2.06. Accordingly, the maximum amount of funding that the Transferor may obtain on the Closing Date or at any time thereafter shall be equal to the maximum Net Investment that would not exceed the Program Limit and would not cause the Percentage Factor to exceed the Maximum Percentage Factor.

(c) All Transfers. Each Transfer shall constitute a purchase of undivided percentage ownership interests in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, then existing, as well as in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, which arises at any time after the date of such Transfer. The CP Conduit Purchasers’ (and, following the occurrence of a CP Conduit Purchaser’s Termination Event with respect to any CP Conduit Purchaser, the Committed Purchaser(s) in its Related Group) aggregate undivided percentage ownership interest in the Receivables, together with the Related Security, Collections and Proceeds with respect thereto, shall equal the Percentage Factor in effect from time to time. By accepting any conveyance, transfer and assignment of ownership interests in the Receivables hereunder, none of the CP Conduit Purchasers, the Committed Purchasers, the Funding Agents or the Administrative Agent assumes or shall have any obligations or liability under any of the applicable Contracts, all of which shall remain the obligations and liabilities of the Sellers. Such purchases from the Transferor by the CP Conduit Purchasers and the Committed Purchasers shall be made in accordance with their respective Commitment Pro Rata Shares.

(d) Percentage Factor. The Percentage Factor shall be initially computed as of the opening of business of the Collection Agent on the date of the initial Incremental Transfer hereunder. Thereafter, until the Termination Date, the Percentage Factor shall be automatically recomputed as of the close of business of the Collection Agent on each Business Day and on each Saturday on which the Collection Agent is open until the Termination Date. The Percentage Factor shall remain constant from the time as of which any such computation or recomputation is made until the time as of which the next such recomputation, if any, shall be made. At all times on and after the Termination Date until the date on which the Net Investment has been reduced to zero, all Term-out Period Advances have been repaid in full and all accrued Discount, Servicing Fees and all other Aggregate Unpaids have been paid in full, the Percentage Factor shall equal 100%. Following any assignment of any portion of the Transferred Interest to

the Committed Purchasers in any Related Group pursuant to the relevant Asset Purchase Agreement, the Funding Agent for such Related Group shall, at all times and from time to time, calculate such CP Conduit Purchaser’s and such Committed Purchaser’s pro rata interest in the Percentage Factor and regularly report thereon to the Administrative Agent (with copies thereof to the Transferor).

SECTION 2.03. Selection of Tranche Periods and Tranche Rates.

(a) Transferred Interest Held by CP Conduit Purchasers Prior to CP Conduit Purchaser’s Termination Event. At all times hereafter, but prior to the Termination Date and not with respect to any portion of the Transferred Interest held by any of the Committed Purchasers, the Transferor may, subject to each Match Funding CP Conduit Purchaser’s approval and the limitations described below, request Tranche Periods and allocate a portion of the Net Investment to each selected Tranche Period, so that the aggregate amounts allocated to outstanding Tranche Periods at all times shall equal the portion of the Net Investment held by the Match Funding CP Conduit Purchasers. Each Related Group’s portion of each applicable Tranche will be allocated to such Related Group’s Facility A and Facility B according to such Related Group’s applicable Facility Pro Rata Share; provided , however , that if allocating such portion of such Tranche according to the applicable Facility Pro Rata Share would result in a Tranche Period that extends beyond the Facility A Commitment Expiry Date being allocated to Facility A of such Related Group, such Tranche Period, to the extent it applies to Facility A of such Related Group, will be deemed to end on the Facility A Commitment Expiry Date. The Transferor may, by delivery of a Transfer/Tranche Period Request by telecopy to the Administrative Agent and the Funding Agent with respect to any Match Funding CP Conduit Purchaser at least two (2) Business Days prior to the expiration of any then existing Tranche Period, request new Tranche Period(s) with respect to the relevant Match Funding CP Conduit Purchaser; provided , however , that each Match Funding CP Conduit Purchaser may select, in its sole discretion, any such new Tranche Period if (i) the Transferor fails to provide such notice on a timely basis or (ii) the Funding Agent with respect to such Match Funding CP Conduit Purchaser, on behalf of such Match Funding CP Conduit Purchaser, determines, in its sole discretion, that the Tranche Period requested by the Transferor is unavailable or for any reason commercially undesirable. Each Match Funding CP Conduit Purchaser confirms that it is its intention to allocate all or substantially all of the portion of the Net Investment held by it to one or more CP Tranche Periods; provided that each Match Funding CP Conduit Purchaser may determine, from time to time, in its sole discretion, that funding such portion of the Net Investment by means of one or more CP Tranche Periods is not possible or is not desirable for any reason.

On any Business Day, a Match Funding CP Conduit Purchaser may elect that the Transferor no longer be permitted to select CP Tranches in accordance with the preceding paragraph in respect of the CP Conduit Funded Amount with respect to such Match Funding CP Conduit Purchaser by giving the Transferor and the Administrative Agent irrevocable written notice thereof, which notice must be received by the Transferor and the Administrative Agent at least one Business Day prior to such election becoming effective. On any Business Day, a Pooled Funding CP Conduit Purchaser may elect thereafter to allow the Transferor to select CP Tranches in accordance with the preceding paragraph in respect of the CP Conduit Funded Amount with respect to such Pooled Funding CP Conduit Purchaser by giving the Transferor and

the Administrative Agent irrevocable written notice thereof, which notice must be received by the Transferor and the Administrative Agent at least two (2) Business Days prior to such Business Day. Any CP Conduit Purchaser making an election to change the manner in which its funding costs are allocated will be both a Match Funding CP Conduit Purchaser and a Pooled Funding CP Conduit Purchaser during the period that its CP Conduit Funded Amount is funded on both a “pooled” and “match funded” basis and its accrued and unpaid Discount will be calculated accordingly. For all purposes of this Agreement, the “CP Tranche” with respect to any Pooled Funding CP Conduit Purchaser shall be equal to the aggregate amount of its CP Conduit Funded Amount funded on a pooled basis during the related CP Tranche Period.

(b) Transferred Interest Held by CP Conduit Purchasers Following the Termination Date. At all times on and after the Termination Date, with respect to any portion of the Transferred Interest which shall not have been transferred to the Committed Purchasers (or any of them), each CP Conduit Purchaser or the Funding Agent with respect to such CP Conduit Purchaser, as applicable, shall select all Tranche Periods (not to exceed 45 days) and Tranche Rates applicable thereto upon the expiration of Tranche Periods in effect on the Termination Date.

(c) Transferred Interest Held by the Committed Purchasers or Liquidity Provider Prior to the Termination Date. With respect to any portion of the Transferred Interest which is owned by or transferred to a Committed Purchaser or Liquidity Provider pursuant to this Agreement or an Asset Purchase Agreement prior to the Termination Date, the initial Tranche Period applicable to such portion of the Net Investment allocable thereto shall be a period of at least three (3) Business Days, and such Tranche shall be a BR Tranche. Thereafter (but prior to the Termination Date), with respect to such portion, and with respect to any other portion of the Transferred Interest held by or transferred to any Committed Purchaser or Liquidity Provider, the Tranche Period applicable thereto shall be, at the Transferor’s sole option, either a BR Tranche or a Eurodollar Tranche. The Transferor may, by delivery of a Transfer/Tranche Period Request by telecopy to the Administrative Agent and the Funding Agents with respect to any Committed Purchaser (i) if the applicable Tranche is to be a Eurodollar Tranche, at least three (3) Business Days prior to the expiration of any then existing Tranche Period, and (ii) if the applicable Tranche is to be a BR Tranche, at least one (1) Business Day prior to the expiration of any then existing Tranche Period, request new Tranche Period(s) with respect to such Committed Purchaser or Liquidity Provider. Any Tranche Period maintained by the Committed Purchasers which is outstanding on the Termination Date shall end on the Termination Date.

(d) After the Termination Date; Transferred Interest Held by or Transferred to Committed Purchasers or Liquidity Providers. At all times on and after the Termination Date, with respect to any portion of the Transferred Interest which shall have been owned by, or transferred to, the Committed Purchaser or Liquidity Provider, the Funding Agents of the applicable Committed Purchaser or Liquidity Provider shall select all Tranche Periods and Tranche Rates applicable thereto upon the expiration of Tranche Periods in effect on the Termination Date.

(e) Term-out Period Advances Made Prior to the Termination Date. With respect to any portion of a Term-out Period Advance which is made by a Nonrenewing Committed Purchaser pursuant to this Agreement prior to the Termination Date, the initial Tranche Period

applicable to such portion shall be either (i) at the Transferor's sole option, either a Eurodollar Tranche or a BR Tranche if so specified in the written request for such Term-out Period Advance delivered pursuant to Section 2.26(c) and if such request is delivered at least three (3) days prior to such initial Tranche Period or (ii) if not so specified, a period of at least three (3) days, and such Tranche shall be a BR Tranche. Thereafter (but prior to the Termination Date), with respect to any portion of such Term-out Period Advance, the Tranche Period applicable thereto shall be, at the Transferor’s sole option, either a Eurodollar Tranche or a BR Tranche. The Transferor shall give the Administrative Agent and the Funding Agents with respect to the applicable Nonrenewing Committed Purchasers irrevocable notice by telephone of the new Tranche Period at least three (3) Business Days prior to the expiration of any then existing Tranche Period. Any Tranche Period maintained by the Nonrenewing Committed Purchasers which is outstanding on the Termination Date shall end on the Termination Date.

(f) After the Termination Date; Term-out Period Advances Made by Nonrenewing Committed Purchasers. At all times on and after the Termination Date, with respect to any Term-out Period Advances which shall have been made by the Nonrenewing Committed Purchasers, the Funding Agents with respect to the applicable Nonrenewing Committed Purchasers shall select all Tranche Periods and Tranche Rates applicable thereto upon the expiration of Tranche Periods in effect on the Termination Date.

(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.

SECTION 2.04. Discount, Fees and Other Costs and Expenses. Notwithstanding the limitation on recourse under Section 2.01 hereof, the Transferor shall pay, as and when due in accordance with this Agreement and the other Transaction Documents, all Discount, Servicing Fees, Fees and other Aggregate Unpaids to the extent not otherwise provided for by the provisions of this Agreement. As provided in Section 2.05 and 2.06, the Transferor shall pay to the Administrative Agent, on behalf of the CP Conduit Purchasers and/or the Committed Purchasers, as applicable, an amount equal to the accrued and unpaid Discount for such Tranche Period together with, in the event any portion of the Transferred Interest is held by the CP Conduit Purchasers, an amount equal to the Discount (without duplication) accrued on the CP Conduit Purchasers’ Commercial Paper to the extent such Commercial Paper was issued in order to fund the Transferred Interest in a face amount in excess of the Transfer Price of an Incremental Transfer; provided that (i) in the event of any repayment or prepayment of a BR Tranche or a Eurodollar Tranche, accrued Discount on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (ii) in the event of any conversion of a BR Tranche or a Eurodollar Tranche, accrued interest on such BR Tranche or Eurodollar Tranche shall be payable on the effective date of such conversion. Discount shall accrue with respect to each Tranche on each day occurring during the Tranche Period related thereto.

Nothing in this Agreement or the other Transaction Documents shall limit in any way the obligations of the Transferor to pay the amounts set forth in this Section 2.04.

SECTION 2.05. Non-Liquidation Settlement and Reinvestment

Procedures. (a) On each day after the date of any Incremental Transfer but prior to the Termination Date, and provided that Section 2.06 shall not be applicable, the Collection Agent shall, out of the Percentage Factor of Collections received on or prior to such day and not previously set aside or paid:

(i) set aside and hold in trust for the CP Conduit Purchasers or the Committed Purchasers, as applicable an amount equal to all Discount, Fees and the Servicing Fee accrued through such day and not so previously set aside or paid;

(ii) apply the balance of such Percentage Factor of Collections remaining after application of Collections as provided in clause (i) of this Section 2.05 to the Transferor, for the benefit of the CP Conduit Purchasers and/or the Committed Purchasers, as applicable, to the purchase of additional undivided percentage interests in each Receivable pursuant to Section 2.02(b) hereof; and

(iii) remit the balance, if any, of Collections remaining after the applications provided in clauses (i) and (ii) to the Transferor or its designee.

(b) On each Settlement Date (or during a Downgrade Condition, on each Weekly Settlement Date), from the amounts set aside as described in clause (a) (i) of this Section 2.05, the Collection Agent shall deposit to the Collection Account, for the benefit of the CP Conduit Purchasers and/or the Committed Purchasers, as applicable, an amount equal to the accrued and unpaid Discount and Fees for the related Settlement Period (or during a Downgrade Condition, for the period since the end of the preceding Settlement Period or for the preceding calendar week) and shall deposit to its own account an amount equal to the accrued and unpaid Servicing Fee for such Settlement Period (or calendar week, as applicable); provided that (i) accrued and unpaid Discount with respect to any Eurodollar Tranche shall be deposited at the end of the related Tranche Period, and (ii) at the end of each Eurodollar Tranche Period, the Administrative Agent shall distribute from such amounts deposited into the Collection Account to the Funding Agents for the CP Conduit Purchasers and/or the Committed Purchaser the amount of accrued and unpaid Discount for such Eurodollar Tranche Period, as calculated by the Funding Agents in accordance with the Transaction Documents. On each Settlement Date (or during a Downgrade Condition, on each Weekly Settlement Date), the Administrative Agent shall distribute from such amounts deposited into the Collection Account to the Funding Agents for the CP Conduit Purchasers and/or the Committed Purchasers the amount of accrued and unpaid Discount and Fees for such preceding Settlement Period (or during a Downgrade Condition, for the period since the end of the preceding Settlement Period or for the preceding calendar week, as applicable) as calculated by the Funding Agents in accordance with the Transaction Documents; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall notify the Transferor and the Transferor shall immediately pay to the Administrative Agent, from funds previously paid to the Transferor, an amount equal to such insufficiency. The Administrative Agent shall pay the Funding Agents in accordance with the records maintained by the Funding Agents pursuant to Section 2.24; provided that earnings on any Permitted Investments in a Committed Purchaser’s Term-out Period Account shall be applied to offset the Discount payable to such Committed Purchaser on any date upon which Discount is payable to such Committed Purchaser.

SECTION 2.06. Liquidation Settlement Procedures. (a) If at any time on or prior to the Termination Date, the Percentage Factor is greater than the Maximum Percentage Factor, then the Collection Agent shall immediately pay to each Funding Agent, for the benefit of the relevant CP Conduit Purchasers and/or the Committed Purchasers, as applicable, from previously received Collections, an amount that, when applied to reduce the Net Investment will result in a Percentage Factor less than or equal to the Maximum Percentage Factor, to be allocated to each Related Group based on its Commitment Pro Rata Share and, within each Related Group, to each Facility based on the applicable Facility Pro Rata Share. Such amount shall be applied to reduce the Net Investment of Tranche Periods selected by the Funding Agents. On the Termination Date or the day on which a Potential Termination Event occurs, the Collection Agent shall deposit to the Collection Account, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, as applicable, any amounts set aside pursuant to Section 2.05 above.

(b) The Collection Agent shall implement the procedures set forth in this clause (b) (a “ Partial Liquidation ”) with respect to the Related Group of any Liquidating Related Group under Section 2.26. On each Business Day, until the portion of such Related Group’s Facility A Net Investment is reduced to zero, and provided that no Termination Date has been declared or has occurred, the Collection Agent shall apply out of the Percentage Factor of Collections received on or before such Business Day and not previously applied, funds in the following manner:

(i) first , set aside and hold in trust for the CP Conduit Purchasers or the Committed Purchasers, as applicable, an amount equal to all Discount, Fees and the Servicing Fee accrued through such day and not so previously set aside or paid;

(ii) second , on each Settlement Date (or during a Downgrade Condition, on each Weekly Settlement Date), deposit such funds as specified in Section 2.05(b) and the Administrative Agent shall distribute such funds as specified in Section 2.05(b);

(iii) third , on each Settlement Date (or during a Downgrade Condition, on each Weekly Settlement Date), pay to the Funding Agent for such Liquidating Related Group an amount equal to such Liquidating Related Group’s Liquidation Share of all remaining Collections, up to the amount of such Liquidating Related Group’s Facility A Net Investment, in payment of such Liquidating Related Group’s Facility A Net Investment; and

(iv) fourth , apply the balance of such Collections to the purchase of additional undivided percentage interests pursuant to Section 2.02 (b) hereof.

(c) On the Termination Date and on each day thereafter, the Collection Agent shall deposit to the Collection Account, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, as applicable, the Percentage Factor of all Collections received on such day, and the Administrative Agent shall distribute such funds in the following order of priority:

(i) first , in payment in full of the accrued Discount and all Fees payable by the Transferor;

(ii) second , if Tyson or any Affiliate of Tyson is not then the Collection Agent, to the Collection Agent’s account, in payment in full of the Servicing Fee payable to the Collection Agent;

(iii) third , in reduction of the Net Investment to zero and the repayment in full of all Term-out Period Advances, to be allocated to each Related Group based on its Commitment Pro Rata Share and, within each Related Group, to each Facility based on the applicable Facility Pro Rata Share;

(iv) fourth , in payment in full of all other Aggregate Unpaids not covered in clauses (i) through (iii) above; and

(v) fifth , if Tyson or any Affiliate of Tyson is the Collection Agent, to its account as Collection Agent, in payment of the Servicing Fee payable to such Person as Collection Agent.

The Administrative Agent, upon its receipt of such amounts in the Collection Account, shall distribute such amounts to the Funding Agents for the CP Conduit Purchasers and/or the Committed Purchasers entitled thereto in accordance with the records maintained by the Funding Agents pursuant to Section 2.24; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts in the order of priority set forth above and, with respect to any such category above for which the Administrative Agent shall have insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to such Persons) among all such Persons entitled to payment thereof.

(d) Following the date on which the Net Investment has been reduced to zero, all Term-out Period Advances have been paid in full and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids have been paid in full, (i) the Percentage Factor shall equal zero, (ii) the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall be considered to have reconveyed to the Transferor all of the CP Conduit Purchasers’ and the Committed Purchasers’ right, title and interest in, to and under the Receivables and Related Security, Collections and Proceeds with respect thereto, and (iii) the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall execute and deliver to the Transferor, at the Transferor’s expense, such documents or instruments as are necessary to terminate the CP Conduit Purchasers’ and the Committed Purchasers’ respective interests in the Receivables and Related Security, Collections and Proceeds with respect thereto. Any such documents shall be prepared by or on behalf of the Transferor.

(e) Subject to Section 2.16, the Transferor may, by delivery of a Reduction Notice to the Administrative Agent and each Funding Agent by telecopy, at any time and from time to time reduce the Net Investment, in whole or in part, upon at least three Business Days’ prior notice to the Administrative Agent before 11:00 a.m., New York City time; provided, however, that each partial reduction of the Net Investment shall be in an amount that is an integral multiple of $1,000,000 and not less than $3,000,000 in the aggregate. Upon the date specified in such Reduction Notice for such reduction, the Transferor shall immediately pay to

the relevant Funding Agent, for the benefit of the applicable CP Conduit Purchasers and/or the Committed Purchasers, as applicable, from previously received Collections, an amount equal to the Commitment Pro Rata Share of the applicable Related Group of such targeted reduction, to be allocated within such Related Group to each Facility based on the applicable Facility Pro Rata Share. Such amount shall be applied to reduce the Net Investment of Tranche Periods selected by the Funding Agents.

SECTION 2.07. Reduction of Commitments. Upon fifteen (15) days written notice to the Administrative Agent, the Transferor may reduce the Commitments of the Committed Purchasers and repay Term-out Period Advances, pro rata, in an aggregate amount equal to $5,000,000 or a whole multiple of $500,000 in excess thereof; provided that no such termination, reduction or repayment shall be permitted if, after giving effect thereto, the Net Investment would exceed 98.04% of the sum of the Aggregate Commitment and the Nonrenewing Amounts of all Committed Purchasers. Upon any such reduction or repayment, the Commitment of each Committed Purchaser shall be reduced, and the Term-out Period Advance of each Committed Purchaser shall be repaid, in an amount equal to such Committed Purchaser’s Commitment Pro Rata Share of the amount of such reduction or repayment, and the Program Limit shall be recalculated to equal 98.04% of the sum of the Aggregate Commitment and the Nonrenewing Amounts of all Committed Purchasers. Once reduced, the Commitments shall not be subsequently reinstated and once repaid, the Term-out Period Advances may not be reborrowed. The Commitment of each Committed Purchaser shall be automatically reduced to zero on its Commitment Expiry Date and the Commitment of all Committed Purchasers shall be automatically reduced to zero on the Termination Date.

SECTION 2.08. Fees. To the extent not otherwise provided for by the provisions of this Agreement, the Transferor shall pay to the Administrative Agent, for its own account and the account of each CP Conduit Purchaser, Funding Agent and Committed Purchaser, the Fees specified in the Fee Letter.

SECTION 2.09. Protection of Ownership Interest of the CP Conduit Purchasers and the Committed Purchasers. (a) The Transferor will, and will cause each Seller to, from time to time, at its expense, promptly execute and deliver all instruments and documents and take all actions as may be necessary or as any Funding Agent may reasonably request in order to perfect or protect the Transferred Interest and the Term-out Period Accounts or to enable the Administrative Agent, the CP Conduit Purchasers, the Funding Agents or the Committed Purchasers to exercise or enforce any of their respective rights hereunder. Without limiting the foregoing, the Transferor will, and will cause each Seller to, upon the request of any Funding Agent, the CP Conduit Purchasers or any of the Committed Purchasers, in order to accurately reflect this purchase and sale transaction, (x) execute and file such financing or continuation statements or amendments thereto or assignments thereof as may be so requested, and (y) mark its respective master data processing records and other documents with a legend describing the conveyance to the Transferor (in the case of the Sellers) and to the Administrative Agent for the benefit of the CP Conduit Purchasers and the Committed Purchasers, of the Transferred Interest. The Transferor shall, and will cause the Sellers to, upon request of any Funding Agent, obtain such additional search reports as any Funding Agent, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, shall reasonably request. To the fullest extent permitted by applicable law, the Administrative Agent shall be permitted to sign and file

continuation statements and amendments thereto and assignments thereof without the Transferor’s or any Seller’s signature. Carbon, photostatic or other reproduction of this Agreement or any financing statement shall be sufficient as a financing statement. The Transferor shall not, and shall not permit any Seller to, change its respective name (within the meaning of Section 9-507(c) of the Relevant UCC), jurisdiction of organization, form of organization, taxpayer identification number or state organizational number, unless it shall have: (i) given the Administrative Agent at least thirty (30) days’ prior notice thereof and (ii) prepared at the Transferor’s expense and delivered to the Administrative Agent all financing statements, instruments and other documents necessary to preserve and protect the Transferred Interest and the Term-out Period Accounts or requested by any Funding Agent in connection with such change. Any filings under the Relevant UCC or otherwise that are occasioned by such change shall be made at the expense of Transferor.

(b) The Collection Agent shall instruct, and shall cause the other Sellers to instruct, all Obligors to cause all Collections to be deposited directly with a Lockbox Bank; any Lockbox Account maintained by a Lockbox Bank pursuant to the related Lockbox Agreement shall be under the exclusive dominion and control of the Administrative Agent which is hereby granted to the Administrative Agent by the Transferor. The Collection Agent shall be permitted to give instructions to the Lockbox Banks except during the occurrence of a Collection Agent Default or any other Termination Event. The Collection Agent shall not add any bank as a Lockbox Bank to those listed on Exhibit B attached hereto unless such bank has entered into a Lockbox Agreement. The Collection Agent shall not terminate any bank as a Lockbox Bank unless the Administrative Agent shall have received sixty (60) days’ prior notice of such termination. If the Transferor, any Seller or the Collection Agent receives any Collections, the Transferor or the Collection Agent, as applicable, shall, or shall cause such Seller to, remit such Collections to a Lockbox Account within one (1) Business Day of receipt thereof.

(c) The Transferor hereby pledges, assigns and transfers to the Administrative Agent, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, and hereby creates and grants to the Administrative Agent, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, a security interest in the Lockbox Accounts and all cash, checks and other negotiable instruments, funds and other evidences of payment held therein.

SECTION 2.10. Deemed Collections; Application of Payments. (a) If on any day a Receivable becomes a Diluted Receivable, the Transferor shall be deemed to have received on such day a Collection of such Receivable in the amount of the applicable reduction or cancellation, and the Transferor shall pay to the Collection Agent an amount equal to such reduction or cancellation. Any such amount shall be applied by the Collection Agent as a Collection in accordance with Section 2.05 or 2.06 hereof, as applicable.

(b) If on any day any of the representations or warranties in Article III was or becomes untrue with respect to a Receivable or the nature of the Administrative Agent’s interest therein (whether on or after the date of any transfer of an interest therein to the CP Conduit Purchasers and the Committed Purchasers, or an assignment therein by the CP Conduit Purchasers to the Committed Purchasers under the Asset Purchase Agreements), the Transferor shall be deemed to have received on such day a Collection of such Receivable in full and the Transferor shall, on such day, pay to the Collection Agent an amount equal to the Outstanding

Balance of such Receivable and such amount shall be allocated and applied by the Collection Agent as a Collection allocable to the Transferred Interest in accordance with Section 2.05 or 2.06 hereof, as applicable. Simultaneously with any such payment by the Transferor, each of the CP Conduit Purchasers and the Committed Purchasers, as the case may be, shall convey all of its right, title and interest in such Receivable and Related Security to the Transferor, and the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall take all action reasonably requested by the Transferor to effectuate such conveyance.

(c) Any payment by an Obligor in respect of any indebtedness owed by it to the Transferor or the Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or law, be applied as a Collection of any Receivable of such Obligor included in the Transferred Interest (in order of the age of such Receivable, starting with the oldest such Receivable), except as otherwise instructed by the Administrative Agent and the Required Committed Purchasers, to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other indebtedness of such Obligor.

SECTION 2.11. Payments and Computations, etc. (a) All amounts to be paid or deposited by the Transferor or the Collection Agent hereunder shall be paid or deposited in accordance with the terms hereof no later than 12:00 p.m. (New York time) on the day when due in immediately available funds; if such amounts are payable to any CP Conduit Purchaser (or any Committed Purchaser), they shall be paid or deposited to the Collection Account (or, in the case of payments in respect of Net Investment, directly to an account specified by the relevant Funding Agent), until otherwise notified by the Administrative Agent. No later than 3:00 p.m. (New York time) on the date of any Incremental Transfer hereunder, the CP Conduit Purchasers or the Committed Purchasers, as applicable, will make available to the Transferor, in immediately available funds, the Transfer Price for such Incremental Transfer on such day by remitting such amount to an account of the Transferor specified in the related Transfer/Tranche Period Request (or otherwise specified by the Transferor by written notice to the Administrative Agent), provided that any portion of the Transfer Price with respect to Facility B to be paid by any Nonrenewing Committed Purchaser shall be funded solely by a withdrawal from such Nonrenewing Committed Purchaser’s Term-out Period Account as provided in Section 2.01. The Transferor shall, to the extent permitted by law, pay to the Administrative Agent, for the benefit of the CP Conduit Purchasers and/or the Committed Purchasers upon demand, interest on all amounts not paid or deposited by it when due under this Section 2.11 at a rate equal to 2.00% per annum plus the Base Rate. All computations of interest hereunder shall be made on the basis of a year of 365 or 366 days, as applicable for the actual number of days (including the first but excluding the last day) 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. Any computations by the Administrative Agent or the applicable Funding Agent of amounts payable by the Transferor hereunder shall be binding upon the Transferor absent manifest error.

(b) Notwithstanding anything herein to the contrary, all payments in respect of the Net Investment with respect to Facility B hereunder made after a Term-out Period Advance has been made by a Nonrenewing Committed Purchaser to such Nonrenewing Committed Purchaser shall be made to such Nonrenewing Committed Purchaser’s Term-out Period Account.

SECTION 2.12. Reports.

(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 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 the occurrence of a Termination Event, a 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.

(b) Settlement Statement. On each Settlement Statement Date, the Collection Agent shall deliver to the Administrative Agent and the Transferor a monthly report, substantially in the form of Exhibit D-2 (the “ Settlement Statement ”), showing (i) the aggregate Purchase Price of Receivables acquired or generated by the Sellers in the preceding fiscal month, (ii) the aggregate Outstanding Balance of such Receivables that are Eligible Receivables and (iii) such other information as the Administrative Agent or any Funding Agent may reasonably request.

SECTION 2.13. Collection Account . (a) There shall be established on or before the day of the initial Incremental Transfer hereunder and maintained, for the benefit of the Administrative Agent on behalf of the CP Conduit Purchasers and the Committed Purchasers, a segregated account (the “ Collection Account ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the CP Conduit Purchasers and the Committed Purchasers. Upon the occurrence and during the continuation of a Termination Event, the Collection Agent, at the direction of the Administrative Agent acting at the direction of the Required Committed Purchasers, shall remit daily to the Collection Account all Collections received with respect to any Receivables as provided in Section 2.06(c). Funds on deposit in the Collection Account (other than investment earnings) shall be invested by the Administrative Agent in Permitted Investments that will mature so that such funds will be available prior to each Settlement Date following such investment. On each Settlement Date, all interest and earnings (net of losses and investment expenses) on funds on deposit in the Collection Account shall be retained in the Collection Account and be available to make any payments required to be made hereunder (including Discount) by the Transferor. On the date on which the Net Investment is zero and all Term-out Period Advances have been repaid in full, and all accrued Discount, Servicing Fees, Fees and all other Aggregate Unpaids have been paid in full, any funds remaining on deposit in the Collection Account shall be paid to the Transferor.

(b) For so long as any amounts remain due and owing to the CP Conduit Purchasers or the Committed Purchasers hereunder or under the Transaction Documents, the Administrative Agent shall distribute all payments received by it in respect of the Transaction Documents by (i) transferring to the CP Conduit Purchasers and the Committed Purchasers, on a

pro rata basis, based on the amounts thereof owing to each CP Conduit Purchaser and each Committed Purchaser, respectively, all payments of Discount, (ii) transferring to the CP Conduit Purchasers and the Committed Purchasers, on a pro rata basis, based on the CP Conduit Purchaser’s Interest and the Committed Purchaser Funded Amount, respectively, on the date of payment, all payments in reduction of the Net Investment (which after a Term-Out Period Advance has been made by a Nonrenewing Committed Purchaser, shall be made) to such Nonrenewing Committed Purchaser’s Term Out Period Account and (iii) transferring to the CP Conduit Purchasers and/or the Committed Purchasers in accordance with their Commitment Pro Rata Shares, any other amounts owing to the CP Conduit Purchasers and/or the Committed Purchasers under this Agreement. Such transfers shall be made by the Administrative Agent by withdrawing funds on deposit in the Collection Account and remitting such funds to the accounts of the CP Conduit Purchasers and the Committed Purchasers specified by each of them from time to time.

SECTION 2.14. Right of Setoff. Each of the CP Conduit Purchasers and the Committed Purchasers is hereby authorized (in addition to any other rights it may have) at any time after the occurrence of the Termination Date, or during the continuation of a Potential Termination Event, to set off, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such CP Conduit Purchaser or such Committed Purchaser to, or for the account of, the Transferor against the amount of the Aggregate Unpaids owing by the Transferor to such Person.

SECTION 2.15. Sharing of Payments, etc. If any CP Conduit Purchaser or any Committed Purchaser (for purposes of this Section 2.15 only, a “ Recipient ”) shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on account of any interest in the Transferred Interest owned by it or its Term-out Period Advance in excess of its Commitment Pro Rata Share of payments on account of any interest in the Transferred Interest or its Term-out Period Advance obtained by the CP Conduit Purchasers and/or the Committed Purchasers entitled thereto, such Recipient shall forthwith purchase from the CP Conduit Purchasers and/or the Committed Purchasers entitled to a share of such amount participations in the percentage interests owned by such Persons as shall be necessary to cause such Recipient to share the excess payment ratably with each such other Person entitled thereto; provided , however , that if all or any portion of such excess payment is thereafter recovered from such Recipient, such purchase from each such other Person shall be rescinded and each such other Person shall repay to the Recipient the purchase price paid by such Recipient for such participation to the extent of such recovery, together with an amount equal to such other Person’s Commitment Pro Rata Share (according to the proportion of (a) the amount of such other Person’s required payment to (b) the total amount so recovered from the Recipient) of any interest or other amount paid or payable by the Recipient in respect of the total amount so recovered.

SECTION 2.16. Broken Funding. In the event that (a) the payment of any principal of any Eurodollar Tranche is made other than on the last day of the Eurodollar Tranche Period applicable thereto (including as a result of the occurrence of the Termination Date or an optional prepayment by the Transferor of a Eurodollar Tranche), (b) the conversion of any Eurodollar Tranche is made by the Transferor other than on the last day of the related Eurodollar Tranche Period, or (c) the Transferor fails to borrow, convert, continue or prepay any Eurodollar

Tranche on the date specified in any notice delivered pursuant hereto, then, in any such event, the Transferor shall compensate the Committed Purchasers for the loss, cost and expense actually incurred by such Committed Purchasers attributable to such event. Such loss, cost or expense to any Committed Purchaser shall include an amount determined by such Committed Purchaser to be the excess, if any, of (i) the amount of Discount which would have accrued on the principal amount of such Eurodollar Tranche had such event not occurred, at the Eurodollar Rate that would have been applicable to such Eurodollar Tranche, for the period from the date of such event to the last day of the Eurodollar Tranche Period (or, in the case of a failure to borrow, convert or continue, for the period that would have been the related Eurodollar Tranche Period), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Committed Purchaser would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the interbank Eurodollar market. Within forty-five (45) days after any Committed Purchaser hereunder receives actual knowledge of any of the events specified in this Section 2.16, a certificate of such Committed Purchaser setting forth any amount or amounts that such Committed Purchaser is entitled to receive pursuant to this Section 2.16 and the reason(s) therefor shall be delivered to the Transferor (with a copy to the Administrative Agent) and shall be conclusive absent manifest error. The Transferor shall pay each such Committed Purchaser the amount shown as due on any such certificate within ten (10) days after receipt thereof.

SECTION 2.17. Conversion and Continuation of Outstanding Tranches Funded by the Committed Purchasers. Prior to the occurrence of the Termination Date, (a) each BR Tranche hereunder may, at the option of the Transferor, be continued as a BR Tranche or converted to a Eurodollar Tranche and (b) each Eurodollar Tranche may, at the option of the Transferor, be continued as a Eurodollar Tranche or converted to a BR Tranche. On and after the Termination Date (i) no outstanding Tranche funded by the Committed Purchasers may be converted to, or continued as, a Eurodollar Tranche and (ii) unless repaid, each Eurodollar Tranche shall be converted to a BR Tranche on the last day of the Tranche Period related thereto. For any such optional conversion or continuation by the Transferor, the Transferor shall give each Funding Agent irrevocable notice (each, a “ Conversion/Continuation Notice ”) of such request not later than 12:30 p.m. (New York City time) in the case of a conversion of a BR Tranche into a Eurodollar Tranche, or a continuation of a Eurodollar Tranche as a Eurodollar Tranche, three (3) Business Days before the date of such conversion or continuation, as applicable. If a Conversion/Continuation Notice has not been timely delivered with respect to any BR Tranche or Eurodollar Tranche, such Tranche shall be automatically continued as, or converted to, a BR Tranche. Each Conversion/Continuation Notice shall specify (a) the requested date (which shall be a Business Day) of such conversion or continuation, (b) the aggregate amount and rate option applicable to the Tranche which is to be converted or continued and (c) the amount and rate option(s) of Tranche(s) into which such Tranche is to be converted or continued.

SECTION 2.18. Illegality. (a) Notwithstanding any other provision herein, if, after the Closing Date, the adoption of any Law or bank regulatory guideline or any amendment or change in the interpretation of any existing or future Law or bank regulatory guideline by any Official Body charged with the administration, interpretation or application thereof, or the compliance with any directive of any Official Body (in the case of any bank regulatory guideline, whether or not having the force of Law), shall make it unlawful for any Committed Purchaser to

acquire or maintain a Eurodollar Tranche as contemplated by this Agreement, (i) such Committed Purchaser shall, within forty-five (45) days after receiving actual knowledge thereof, deliver a certificate to the Transferor (with a copy to the Administrative Agent) setting forth the basis for such illegality, which certificate shall be conclusive absent manifest error, (ii) the commitment of such Committed Purchaser hereunder to make a portion of a Eurodollar Tranche, continue any portion of a Eurodollar Tranche as such and convert a BR Tranche to a Eurodollar Tranche shall forthwith be canceled, and such cancellation shall remain in effect so long as the circumstance described above exists, and (iii) such Committed Purchaser’s portion of any Eurodollar Tranche then outstanding shall be converted automatically to a BR Tranche on the last day of the related Eurodollar Tranche Period, or within such earlier period as required by law.

If any such conversion of a portion of a Eurodollar Tranche occurs on a day which is not the last day of the related Eurodollar Tranche Period, then pursuant to Section 2.16 the Transferor shall pay to such Committed Purchaser such amounts, if any, as may be required to compensate such Committed Purchaser. If circumstances subsequently change so that it is no longer unlawful for an affected Committed Purchaser to acquire or to maintain a portion of a Eurodollar Tranche as contemplated hereunder, such Committed Purchaser will, as soon as reasonably practicable after such Committed Purchaser knows of such change in circumstances, notify the Transferor and the Administrative Agent, and upon receipt of such notice, the obligations of such Committed Purchaser to acquire or maintain its acquisition of portions of Eurodollar Tranches or to convert its portion of a BR Tranche into portions of Eurodollar Tranches shall be reinstated.

(b) Each Committed Purchaser agrees that, upon the occurrence of any event giving rise to the operation of Section 2.18(a) with respect to such Committed Purchaser, it will, if requested by the Transferor and to the extent permitted by law or by the relevant Official Body, endeavor in good faith to change the office at which it books its portions of Eurodollar Tranches hereunder if such change would make it lawful for such Committed Purchasers to continue to acquire or to maintain its acquisition of portions of Eurodollar Tranches hereunder; provided , however , that such change may be made in such manner that such Committed Purchaser, in its sole determination, suffers no unreimbursed cost or expense or any other disadvantage whatsoever.

SECTION 2.19. Inability to Determine Eurodollar Rate. If, prior to the first day of any Eurodollar Tranche Period:

(a) the Administrative Agent shall have determined (which determination in the absence of manifest error shall be conclusive and binding upon the Transferor) that, by reason of circumstances affecting the interbank Eurodollar market, either (i) dollar deposits in the relevant amounts and for the relevant Tranche Period are not available, or (ii) adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Eurodollar Tranche Period; or

(b) the Administrative Agent shall have received notice from the Required Committed Purchasers that the Eurodollar Rate determined or to be determined for such Eurodollar Tranche Period will not adequately and fairly reflect the cost to such

Committed Purchasers (as conclusively certified by such Committed Purchasers) of purchasing or maintaining their affected portions of Eurodollar Tranches during such Eurodollar Tranche Period;

then, in either such event, the Administrative Agent shall give telecopy or telephonic notice thereof (confirmed in writing) to the Transferor and the Committed Purchasers as soon as practicable (but, in any event, within ten (10) days after such determination or notice, as applicable) thereafter. Following delivery of such notice to the Transferor, no further Eurodollar Tranches shall be made. The Administrative Agent agrees to withdraw any such notice as soon as reasonably practicable after the Administrative Agent is notified of a change in circumstances which makes such notice inapplicable.

SECTION 2.20. Indemnities by the Transferor. Without limiting any other rights which the Administrative Agent, the CP Conduit Purchasers or the Committed Purchasers may have hereunder or under applicable law, the Transferor hereby agrees to indemnify the CP Conduit Purchasers, the Committed Purchasers, the Funding Agents and the Administrative Agent and any successors and permitted assigns and their respective officers, directors, agents and employees (collectively, “ Indemnified Parties ”) from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including, without limitation, interest, penalties, amounts paid in settlement and reasonable attorneys’ fees (including allocated costs of attorneys who may be employees of the Administrative Agent) (all of the foregoing being collectively referred to as “ Indemnified Amounts ”) awarded against or incurred by any of them in any action or proceeding between the Transferor, the Collection Agent in such capacity or the Sellers and any of the Indemnified Parties or between any of the Indemnified Parties and any third party and arising out of or as a result of this Agreement, the other Transaction Documents, the ownership or maintenance, either directly or indirectly, by the Administrative Agent, the CP Conduit Purchasers or any Committed Purchaser of the Transferred Interest or any of the other transactions contemplated hereby or thereby, excluding, however, (i) Indemnified Amounts to the extent relating to or resulting from (x) gross negligence or willful misconduct on the part of any Indemnified Party or (y) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Receivables or (ii) all taxes (other than Indemnified Taxes). Without limiting the generality of the foregoing, the Transferor shall indemnify each Indemnified Party for Indemnified Amounts (without duplication of amounts for which any Indemnified Party is effectively held harmless under any other provision hereof) relating to or resulting from:

(a) any representation or warranty made in writing by the Transferor, Tyson as Collection Agent, or the Sellers or any Responsible Officer of the Transferor, Tyson as Collection Agent, or the Sellers under or in connection with this Agreement, any of the other Transaction Documents, any Weekly Report, any Settlement Statement or any other information or report delivered by any of them pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;

(b) the failure by the Transferor, Tyson as the Collection Agent, or the Sellers 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;

(c) the failure to either (x) vest and maintain vested in the Administrative Agent, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, an undivided first priority, perfected percentage ownership interest, to the extent of the Transferred Interest, in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claim or (y) to create or maintain a valid and perfected first priority security interest in favor of the Administrative Agent, for the benefit of the CP Conduit Purchasers and the Committed Purchasers, in the Transferor’s interest in the Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claim (other than any Adverse Claim created by or through the CP Conduit Purchasers or the Committed Purchasers);

(d) the failure to file, or any delay in filing, financing statements, continuation statements, or other similar instruments or documents under the Relevant UCC or other applicable laws with respect to any of the Receivables or Related Security, Collections and Proceeds with respect thereto;

(e) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (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 merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services, or failure to diligently pursue the collection of any Receivable (if such collection activities were performed by the Transferor or any of its Affiliates acting as the Collection Agent);

(f) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with merchandise or services which are the subject of any Receivable;

(g) the transfer of an ownership interest in any Receivable other than pursuant to the Transaction Documents;

(h) the failure by any of the Transferor, Tyson as the Collection Agent, or the Sellers to comply with any term, provision or covenant contained in this Agreement or any of the other Transaction Documents to which it is a party or to perform any duty or obligation in accordance with the provisions hereof or thereof or to perform any of its duties or obligations under the Contracts;

(i) the Percentage Factor exceeding the Maximum Percentage Factor at any time on or prior to the Termination Date;

(j) the failure of the Sellers to pay when due any taxes, including without limitation, sales, excise or personal property taxes payable in connection with any of the Receivables with respect to which an Indemnified Party may be held liable as a transferee of such Receivables;

(k) any repayment by any Indemnified Party of any amount previously distributed in reduction of Net Investment which such Indemnified Party believes in good faith is required to be made;

(l) the commingling by the Transferor, the Sellers or Tyson as Collection Agent, of Collections of Receivables at any time with other funds;

(m) any investigation, litigation or proceeding related to this Agreement, any of the other Transaction Documents, the use of proceeds of Transfers by the Transferor or the Sellers, the ownership of Transferred Interests, or any Receivable, Related Security or Contract;

(n) the failure of any Lockbox Bank to remit any amounts held in the Lockbox Accounts pursuant to the instructions of the Collection Agent, the Transferor, the Sellers or the Administrative Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of any applicable Lockbox Agreement) whether by reason of the exercise of set-off rights or otherwise;

(o) any inability to obtain any judgment in or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Transferor or the Sellers to qualify to do business or file any notice of business activity report or any similar report;

(p) any failure of the Transferor to give reasonably equivalent value to the Sellers in consideration of the purchase by the Transferor from the Sellers of any Receivable, or any attempt by any Person to void, rescind or set aside any such transfer under statutory provisions or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code; or

(q) any action taken by the Transferor, the Sellers or the Collection Agent in the enforcement or collection of any Receivable;

provided , however , that the Transferor shall not be liable for Indemnified Amounts attributable to the fraud, negligence, breach of fiduciary duty or willful misconduct of the Collection Agent in the enforcement or collection of any Receivable if the Collection Agent is not Tyson or an Affiliate of Tyson; provided , further , that if any CP Conduit Purchaser enters into agreements for the purchase of interests in Receivables from one or more Other Transferors, such CP Conduit Purchaser shall equitably allocate such Indemnified Amounts to the Transferor and each Other Transferor; and provided , further , that if such Indemnified Amounts are attributable solely to the Transferor, the Transferor shall be solely liable for such Indemnified Amounts, and if such Indemnified Amounts are attributable solely to Other Transferors, such Other Transferors shall be solely liable for such Indemnified Amounts.

SECTION 2.21. Indemnity for Reserves and Expenses. (a) If after the date hereof, the adoption of any Law or bank regulation or regulatory guideline or any amendment or change in the interpretation of any existing or future Law or bank regulation or regulatory guideline by any Official Body charged with the administration, interpretation or application thereof, or the compliance with any directive of any Official Body (in the case of any bank

regulation or regulatory guideline, whether or not having the force of Law), other than Laws, interpretations, guidelines or directives relating to Taxes:

(i) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System) against assets of, deposits with or for the account of, or credit extended by, any Indemnified Party or shall impose on any Indemnified Party or on the United States market for certificates of deposit or the London interbank market any other condition affecting this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables or payments of amounts due hereunder or its obligation to advance funds hereunder or under the other Transaction Documents; or

(ii) imposes upon any Indemnified Party any other expense (including, without limitation, reasonable attorneys’ fees and expenses, and expenses of litigation or preparation therefor in contesting any of the foregoing to the extent attributable to this Agreement or any other Transaction Document) with respect to this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables or payments of amounts due hereunder or its obligation to advance funds hereunder or otherwise in respect of this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interests or the Receivables;

and the result of any of the foregoing is to increase the cost to such Indemnified Party with respect to this Agreement, the other Transaction Documents, the ownership, maintenance or financing of the Transferred Interest, the Receivables, the obligations hereunder, the funding of any Purchases hereunder or under the other Transaction Documents, by an amount deemed by such Indemnified Party to be material, then, within ten (10) Business Days after demand by such Indemnified Party through the Administrative Agent acting at the direction of the applicable Funding Agent, the Transferor shall pay to the Administrative Agent, for the benefit of such Indemnified Party, such additional amount or amounts (other than with respect to taxes) as will compensate such Indemnified Party for such increased cost or reduction; provided that no such amount shall be payable with respect to any period commencing more than 120 days prior to the date the Administrative Agent, acting at the direction of the applicable Funding Agent, first notifies the Transferor of its intention to demand compensation therefor under this Section 2.21; provided further that if such change in Law, rule or regulation giving rise to such increased costs or reductions is retroactive, then such 120-day period shall be extended to include the period of retroactive effect thereof if such demand is made within 60 days after such change is effective. In making demand hereunder, the applicable Indemnified Party shall submit to the Transferor a certificate as to such increased costs incurred which shall provide in reasonable detail the basis for such claim.

(b) If any Indemnified Party shall have determined that after the date hereof, the adoption of any applicable Law or bank regulation or regulatory guideline regarding capital adequacy, or any change therein, or any change in the interpretation thereof by any Official Body, or any directive regarding capital adequacy (in the case of any bank regulatory guideline, whether or not having the force of law) of any such Official Body, has or would have the effect

of reducing the rate of return on capital of such Indemnified Party (or its parent) as a consequence of such Indemnified Party’s obligations hereunder or with respect hereto to a level below that which such Indemnified Party (or its parent) could have achieved but for such adoption, change, request or directive (taking into consideration its policies with respect to capital adequacy) by an amount deemed by such Indemnified Party to be material, then from time to time, within ten (10) Business Days after demand by such Indemnified Party through the Administrative Agent acting at the direction of the applicable Funding Agent, the Transferor shall pay to the Administrative Agent, for the benefit of such Indemnified Party, such additional amount or amounts (other than with respect to taxes) as will compensate such Indemnified Party (or its parent) for such reduction; provided that no such amount shall be payable with respect to any period commencing more than 120 days prior to the date the Administrative Agent first notifies the Transferor of its intention to demand compensation therefor under this Section 2.21(b); provided further that if such change in Law, rule or regulation giving rise to such increased costs or reductions is retroactive, then such 120-day period shall be extended to include the period of retroactive effect thereof if such demand is made within 60 days after such change is effective. In making demand hereunder, the applicable Indemnified Party shall submit to the Transferor a certificate as to such increased costs incurred which shall provide in reasonable detail the basis for such claim.

(c) Anything in this Section 2.21 to the contrary notwithstanding, if any CP Conduit Purchaser enters into agreements for the acquisition of interests in receivables from one or more Other Transferors, such CP Conduit Purchaser shall equitably allocate the liability for any amounts under this Section 2.21 (“ Section 2.21 Costs ”) to the Transferor and each Other Transferor; provided , however , that if such Section 2.21 Costs are attributable to the Transferor and not attributable to any Other Transferor, the Transferor shall be solely liable for such Section 2.21 Costs or if such Section 2.21 Costs are attributable to Other Transferors and not attributable to the Transferor, such Other Transferors shall be solely liable for such Section 2.21 Costs.

SECTION 2.22. Indemnity for Taxes. (a) All payments made by the Transferor or the Collection Agent to the Administrative Agent for the benefit of the CP Conduit Purchasers, the Funding Agents and the Committed Purchasers under this Agreement and any other Transaction Document shall be made free and clear of, and without deduction or withholding for or on account of any Indemnified Taxes. If any such Indemnified Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Indemnified Party hereunder, (i) the amounts so payable to the Administrative Agent or such Indemnified Party shall be increased to the extent necessary to yield to the Administrative Agent or such Indemnified Party (after payment of all Indemnified Taxes) all amounts payable hereunder at the rates or in the amounts specified in this Agreement and the other Transaction Documents and (ii) the Transferor or the Collection Agent, as the case may be, shall make such deductions or withholdings and shall pay the amount so deducted or withheld to the applicable Official Body in accordance with the applicable law. The Transferor shall indemnify the Administrative Agent or any Indemnified Party for the full amount of any Indemnified Taxes paid by the Administrative Agent or the Indemnified Party within ten (10) Business Days after the date of written demand therefor by the Administrative Agent or such Indemnified Party if the Administrative Agent or such Indemnified Party, as the case may be, has delivered to the Transferor a certificate signed by an officer of the Administrative Agent or such Indemnified Party, as the case may be, setting forth in reasonable detail the amount so paid and the

computations made to determine such amount. Such certificate shall be conclusive absent manifest error.

(b) Each Indemnified Party that is not a United States person (within the meaning of Section 7701(a)(30) of the Code) (a “United States Person”) shall:

(i) at the time such Indemnified Party becomes a party to this Agreement or the Transaction Documents, deliver to the Transferor and the Administrative Agent (A) two duly completed copies of IRS Form W-8ECI, or successor applicable form, as the case may be, and (B) an IRS Form W-8BEN or W-9, or successor applicable form, as the case may be;

(ii) deliver to the Transferor and the Administrative Agent two (2) further copies of any such form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Transferor or the Administrative Agent; and

(iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Transferor or the Administrative Agent;

unless, in the case of (ii) and (iii) above, any change in treaty, law regulation, governmental rule, guideline order, or official application or official interpretation thereof has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Indemnified Party from duly completing and delivering any such form with respect to it, and such Indemnified Party so advises the Transferor and the Administrative Agent. Each such Indemnified Party that is not a United States person (A) shall certify (i) in the case of an IRS Form W-8ECI, or successor applicable form, that it is entitled to receive payments under this Agreement and the other Transaction Documents without deduction or withholding of any United States federal income taxes and (ii) in the case of an IRS Form W-8BEN or IRS Form W-9, or successor applicable form, that it is entitled to an exemption from United States backup withholding tax and (B) shall agree to provide any other certification and documentation as required by the applicable law that is reasonably requested by the Transferor, the Sellers or the Collection Agent. Each Person that is a Purchaser or Participant hereunder, or which otherwise becomes a party to this Agreement and the other Transaction Documents as a Committed Purchaser, shall, prior to the effectiveness of such assignment, participation or addition, as applicable, be required to provide all of the forms and statements required pursuant to this Section 2.22.

SECTION 2.23. Other Costs, Expenses and Related Matters. (a) The Transferor agrees, upon receipt of a written invoice, to pay or cause to be paid, and to save the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers and each Funding Agent harmless against liability for the payment of, all reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys’, accountants’, rating agencies’ and other third parties’ fees and expenses, any filing fees and expenses incurred by officers or employees of the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers and/or the

Funding Agents) or intangible, documentary or recording taxes incurred by or on behalf of the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers and the Funding Agents (i) in connection with the negotiation, execution, delivery and preparation of this Agreement, the other Transaction Documents and any documents or instruments delivered pursuant hereto and thereto and the transactions contemplated hereby or thereby (including, without limitation, the perfection or protection of the Transferred Interest) and (ii) (A) relating to any amendments, waivers or consents under this Agreement, any Asset Purchase Agreement and the other Transaction Documents, (B) arising in connection with the Administrative Agent’s, the CP Conduit Purchasers’, the Committed Purchasers’ or the Funding Agents’ enforcement or preservation of rights (including, without limitation, the perfection and protection of the Transferred Interest under this Agreement), or (C) arising in connection with any audit, dispute, disagreement, litigation or preparation for litigation involving this Agreement or any of the other Transaction Documents (all of such amounts, collectively, “ Transaction Costs ”). All Transaction Costs owed by the Transferor pursuant to this subsection 2.23(a) shall be payable in accordance with Section 2.05 and 2.06.

(b) The Transferor shall pay the Administrative Agent, for the account of the relevant CP Conduit Purchasers and the Committed Purchasers, as applicable, on demand (i) any Early Collection Fee due on account of the reduction of a Tranche on any day prior to the last day of its Tranche Period or (ii) with respect to the replacement of any Funding Agent and such Funding Agent’s Related Group pursuant to Section 10.14, the excess, if any, of (i) the additional Discount that such Funding Agent’s related CP Conduit Purchaser and related Committed Purchaser, would have accrued on its Net Investment and Term-out Period Advances, during the Tranche Period in which it is replaced, if such Funding Agent’s related CP Conduit Purchaser and related Committed Purchaser had not been replaced as CP Conduit Purchaser and Committed Purchaser, respectively, minus (ii) the income, if any, received by such Funding Agent’s related CP Conduit Purchaser and related Committed Purchaser from investing the funds received with respect to its Net Investment and Term-out Period Advances due to such replacement for the remainder of such Tranche Period.

(c) The Administrative Agent, at the request of any Funding Agent, will within forty-five (45) days after receipt of notice of any event occurring after the date hereof which will entitle an Indemnified Party to compensation pursuant to this Article II, notify the Transferor in writing of such event. Any notice by a Funding Agent claiming compensation under this Article II and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error, provided that such claim is made in good faith and on a reasonable basis. In determining such amount, the applicable Funding Agent or any applicable Indemnified Party may use any reasonable averaging and attributing methods.

(d) If the Transferor is required to pay any additional amount to any Committed Purchaser pursuant to Sections 2.21 or 2.22, then such Committed Purchaser shall use reasonable efforts (which shall not require such Committed Purchaser to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden reasonably deemed by it to be significant) (A) to file any certificate or document reasonably requested in writing by the Transferor or (B) to assign its rights and delegate and transfer its obligations hereunder to

another of its offices, branches or affiliates, if such filing or assignment would reduce amounts payable pursuant to Sections 2.21 or 2.22, as the case may be, in the future.

SECTION 2.24. Funding Agents. (a) The Funding Agent with respect to each CP Conduit Purchaser and Committed Purchaser is hereby authorized to record on each Business Day the CP Conduit Funded Amount with respect to such CP Conduit Purchaser and the aggregate amount of Discount and Fees accruing with respect thereto on such Business Day and the Committed Purchaser Funded Amount and Term-out Period Advances with respect to such Committed Purchaser and the aggregate amount of Discount and Fees accruing with respect thereto on such Business Day. Any such recordations by a Funding Agent, absent manifest error, shall constitute prima facie evidence of the accuracy of the information so recorded. The Funding Agents will report the aggregate amounts due to the CP Conduit Purchasers and the Committed Purchasers as of any Settlement Date or Weekly Settlement Date, as applicable, to the Transferor, the Collection Agent and the Administrative Agent not later than two (2) Business Days prior to such Settlement Date. Furthermore, the Funding Agent with respect to each CP Conduit Purchaser and Committed Purchaser will maintain records sufficient to identify the percentage interest of such CP Conduit Purchaser and such Committed Purchaser in the Receivables and any amounts owing thereunder.

(b) Upon receipt of funds from the Administrative Agent on each Settlement Date pursuant to Sections 2.05 and 2.06, each Funding Agent shall pay such funds to the related CP Conduit Purchaser and/or the related Committed Purchaser owed such funds in accordance with the recordations maintained by it in accordance with Section 2.24(a). If a Funding Agent shall have paid to any CP Conduit Purchaser or Committed Purchaser any funds that (i) must be returned for any reason (including bankruptcy) or (ii) exceeds that which such CP Conduit Purchaser or Committed Purchaser was entitled to receive, such amount shall be promptly repaid to such Funding Agent by such CP Conduit Purchaser or Committed Purchaser.

SECTION 2.25. Use of Historical Data. Where necessary to calculate any ratios or other amounts under this Agreement with reference to periods prior to the Closing Date, historical data shall be used.

SECTION 2.26. Extension of Facility A Commitment Expiry Date. (a) The Transferor may request the extension of any Committed Purchaser’s Facility A Commitment Expiry Date for an additional 364 days, and such request shall be made no later than 60 days prior to such Committed Purchaser’s Facility A Commitment Expiry Date then in effect. Each Committed Purchaser may elect to extend or not to extend its commitment upon receipt of such request by written notice given to the Transferor, the Administrative Agent and the applicable CP Conduit Purchaser no later than 30 days prior to such Committed Purchaser’s Facility A Commitment Expiry Date then in effect. Any such extension of a Committed Purchaser’s Facility A Commitment Expiry Date shall be effective only if the Rating Agencies have provided Rating Confirmations, on or before such Committed Purchaser’s then-effective Facility A Commitment Expiry Date. If no such notice is given at least 15 days before such date, the Commitment of such Committed Purchaser shall be deemed to have not been extended. On the Business Day after the Commitment Expiry Date of any non-extending Committed Purchaser, a Partial Liquidation shall be implemented with respect to such non-extending Committed Purchaser.

(b) Extension of Facility B Commitment Expiry Date. The Transferor may request the extension of any Committed Purchaser’s Facility B Commitment Expiry Date for an additional 364 days, and such request shall be made no later than 60 days prior to such Committed Purchaser’s Facility B Commitment Expiry Date then in effect. Each Committed Purchaser may elect to extend or not to extend its commitment upon receipt of such request by written notice given to the Transferor, the Administrative Agent and the applicable CP Conduit Purchaser no later than 30 days prior to such Committed Purchaser’s Facility B Commitment Expiry Date then in effect. Any such request shall be subject to the following conditions: (i) no Committed Purchaser shall have an obligation to extend its Facility B Commitment Expiry Date at any time and (ii) any such extension with respect to any Committed Purchaser shall be effective only upon the written agreement of the Administrative Agent, such Committed Purchaser, each CP Conduit Purchaser and Funding Agent in such Committed Purchaser’s Related Group, the Transferor and the Collection Agent. Each such Committed Purchaser will respond to any such request no later than the fifteenth day prior to its Facility B Commitment Expiry Date (the “Response Deadline”); provided that a failure by any Committed Purchaser to respond by the Response Deadline shall be deemed to be a rejection of the requested extension. If such Committed Purchaser elects not to extend its commitment (each such Committed Purchaser, a “Nonrenewing Committed Purchaser”), the Transferor may request Term-out Period Advances to be made by such Nonrenewing Committed Purchaser in accordance with the provisions of this paragraph and paragraph (c) of this Section 2.26 on such Facility B Commitment Expiry Date unless, on or prior to such date, such Nonrenewing Committed Purchaser is replaced by another Committed Purchaser pursuant to an assignment in compliance with Section 10.06 and the aggregate amount of the Commitments of the replacement Committed Purchaser equals the aggregate amount of the Commitments of the replaced Committed Purchaser immediately prior to such replacement (the amount of such Commitment of a Nonrenewing Purchaser, its “Nonrenewing Amount”).

(c) Term-out Period Advances. On the Scheduled Commitment Expiry Date with respect to a Nonrenewing Committed Purchaser, such Nonrenewing Committed Purchaser shall, by 12:00 noon, New York City time, following its receipt of written request therefor from the Transferor and subject to the satisfaction of the applicable conditions precedent set forth in Section 2.02(a) with respect to each Incremental Transfer, (i) establish such Nonrenewing Committed Purchaser’s Term-out Period Account and (ii) make a Term-out Period Advance by depositing, in same day funds to such Nonrenewing Committed Purchaser’s Term-out Period Account, an amount equal to its Nonrenewing Amount as of such date. Each Nonrenewing Committed Purchaser shall invest the amounts on deposit in such Nonrenewing Committed Purchaser’s Term-out Period Account at the direction of the Transferor, and the proceeds of such investments, in Permitted Investments (it being agreed that the earnings on any such Permitted Investments shall be applied pursuant to Section 2.05(b) to offset the Discount payable to the Committed Purchasers).

(d) Term-out Period Account Funded Advances. No later than 1:00 p.m., New York City time, on the Facility B Commitment Expiry Date on which the Nonrenewing Committed Purchasers make the initial deposit into their respective Term-out Period Accounts in accordance with Section 2.26(b), the Administrative Agent will withdraw from each Nonrenewing Committed Purchaser’s Term-out Period Account an amount equal to the Pro Rata Share of the Net Investment with respect to such Nonrenewing Committed Purchaser’s Related

Group, and cause such funds to be immediately applied to purchase the CP Conduit Purchaser’s Transferred Interest of the CP Conduit Purchaser that is a member of such Nonrenewing Committed Purchaser’s Related Group in accordance with the applicable Asset Purchase Agreement. From and after the date on which any Nonrenewing Committed Purchaser makes a Term-out Period Advance, all additional Incremental Transfers to be accepted and purchased by such Nonrenewing Committed Purchaser pursuant to Section 2.02(a) shall be accepted and purchased by the Administrative Agent withdrawing funds from such Nonrenewing Committed Purchaser’s Term-out Period Account.

(e) Maturity. All Term-out Period Advances shall be due and payable in full by the Transferor on the Termination Date and shall be paid pursuant to Section 2.06.

(f) Use of Proceeds; Security Interest in Term-out Period Account. The Transferor hereby agrees that it shall use the proceeds of the Term-out Period Advances solely to fund and maintain the Term-out Period Account for the purpose of funding Incremental Transfers from time to time. The Transferor hereby grants to the applicable Nonrenewing Committed Purchaser, a security interest in the Term-out Period Account, all funds from time to time credited to the Term-out Period Account, all financial assets (including without limitation, Permitted Investments) from time to time acquired with any such funds or otherwise credited to the Term-out Period Account, all interest, dividends, cash, instruments and other investment property from time to time received, receivable, or otherwise distributed in respect of or in exchange for any or all of such funds or such financial assets, and all proceeds, collateral for, and supporting obligations relating to any and all of the foregoing.

The grant of a security interest by the Transferor to each such Nonrenewing Committed Purchaser pursuant to this Section secures the payment of the Transferor’s obligations to repay the Term-out Period Advances, and to pay Discount thereon, pursuant to the terms of this Agreement.

ARTICLE III

Representations and Warranties

SECTION 3.01. Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Administrative Agent, the Funding Agents, the CP Conduit Purchasers and the Committed Purchasers that:

(a) Corporate Existence and Power. The Transferor is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all corporate power and all material governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is now conducted. The Transferor is duly qualified (or has duly applied for such qualification) to do business in, and is in good standing in, every other jurisdiction in which the nature of its business requires it to be so qualified, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.

(b) Corporate and Governmental Authorization; Contravention. The execution, delivery and performance by the Transferor of this Agreement and the other Transaction Documents to which the Transferor is a party are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any Official Body or official thereof, and do not contravene any provision of applicable law, rule or regulation or of the Certificate of Incorporation or Bylaws of the Transferor or constitute a default under any agreement or any judgment, injunction, order, writ, decree or other instrument binding upon the Transferor or result in the creation or imposition of any Adverse Claim on the assets of the Transferor (except as contemplated by Section 2.09 hereof).

(c) Binding Effect. Each of this Agreement and the other Transaction Documents to which the Transferor is a party constitutes, and the Transfer Certificate, upon payment of the Transfer Price for the initial Incremental Transfer, will constitute the legal, valid and binding obligation of the Transferor, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the rights of creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).

(d) Perfection. Immediately preceding each Transfer hereunder, the Transferor shall be the owner of all of the Receivables, free and clear of all Adverse Claims (except as contemplated by Section 2.09 hereof). On or prior to each Transfer and each recomputation of the Transferred Interest, all financing statements and other documents required to be recorded or filed in order to perfect and protect the Transferred Interest against all creditors of, and purchasers from, the Transferor and the Sellers will have been duly filed in each filing office necessary for such purpose, and all filing fees and taxes, if any, payable in connection with such filings shall have been paid in full.

(e) Accuracy of Information. All information heretofore furnished by or on behalf of the Transferor or the Collection Agent (including, without limitation, the Weekly Reports, the Settlement Statements, any other reports delivered pursuant to the terms of this Agreement and the Transferor’s financial statements) to any CP Conduit Purchaser, any Committed Purchaser, any Funding Agent or the Administrative Agent for purposes of, or in connection with, this Agreement and the other Transaction Documents are, and all such information hereafter furnished by or on behalf of the Transferor to any CP Conduit Purchaser, any Committed Purchaser, any Funding Agent or the Administrative Agent will be, true and accurate in every material respect, on the date such information is stated or certified.

(f) Tax Status. The Transferor has filed all material tax returns (Federal, state and local) required to be filed and has paid or made adequate provision for the payment of all material taxes, assessments and other governmental charges other than taxes or filings contested in good faith or taxes which are not yet due and payable, and for which adequate reserves have been established in accordance with GAAP consistently applied.

(g) Action, Suits. There are no actions, suits or proceedings pending or, to the knowledge of the Transferor threatened, against or affecting the Transferor or its properties, in or before any court, arbitrator or other Official Body, which could reasonably be expected,

individually or in the aggregate, to have a Material Adverse Effect, except as set forth in Exhibit F concerning Affiliates of the Transferor.

(h) Use of Proceeds. No proceeds of any Transfer will be used by the Transferor to acquire any security in any transaction which violates Regulation T, U or X of the Federal Reserve Board.

(i) Jurisdiction of Organization, Etc. The principal place of business and chief executive office of the Transferor are located at the address of the Transferor indicated in Section 10.03 hereof, and the jurisdiction of organization and offices where the Transferor keeps all its Records, are located at the address(es) described on Schedule I to the Receivables Purchase Agreement or such other locations notified to the Administrative Agent in accordance with Section 2.09 hereof in jurisdictions where all action required by Section 2.09 hereof has been taken and completed.

(j) Good Title. Upon each Transfer and each recomputation of the Transferred Interest, the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall acquire (A) a valid and perfected first priority undivided percentage ownership interest to the extent of the Transferred Interest or (B) a first priority perfected security interest in each Receivable that exists on the date of such Transfer and recomputation and in the Related Security, Collections and Proceeds with respect thereto, in either case free and clear of any Adverse Claim.

(k) Trade Names, etc. As of the date hereof: (i) the Transferor’s chief executive office is located at the address for notices set forth in Section 10.03 hereof; (ii) the Transferor has no subsidiaries or divisions; and (iii) the Transferor has, within the last five (5) years, operated only under the trade names identified in Exhibit G hereto, and, within the last five (5) years, has not changed its name, merged with or into or consolidated with any other corporation or been the subject of any proceeding under Title 11, United States Code (Bankruptcy), except as disclosed in Exhibit G hereto.

(l) Nature of Receivables. Each Receivable (x) represented by the Transferor or the Collection Agent to be an Eligible Receivable (including in any Settlement Statement or other report delivered pursuant to Section 2.12 hereof) or (y) included in the calculation of the Net Receivables Balance in fact satisfies at such time the definition of “Eligible Receivable.”

(m) Coverage Requirement; Amount of Receivables. The Percentage Factor does not exceed the Maximum Percentage Factor. As of September 29, 2001 the aggregate Outstanding Balance of the Receivables in existence was $1,276,589,000, and the Net Receivables Balance was $1,006,745,000.

(n) Credit and Collection Policy. Since the Closing Date, there have been no material changes in the Credit and Collection Policy, other than as permitted hereunder. Since the Closing Date, no material adverse change has occurred in the overall rate of collection of the Receivables.

(o) Collections and Servicing. Since July 31, 2001, there has been no material adverse change in the ability of the Collection Agent, the Sellers, the Transferor or any Subsidiary or Affiliate of any of the foregoing to service and collect the Receivables.

(p) No Termination Event. No event has occurred and is continuing and no condition exists which constitutes a Termination Event or a Potential Termination Event.

(q) Not an Investment Company. The Transferor is not, and is not controlled by, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or is exempt from all provisions of such Act.

(r) ERISA. Each of the Transferor and its ERISA Affiliates is in compliance with ERISA except for any compliance which would not reasonably be expected to have a Material Adverse Effect, and no lien exists in favor of the Pension Benefit Guaranty Corporation on any of the Receivables.

(s) Lockbox Accounts. The names and addresses of all the Lockbox Banks, together with the account numbers of the Lockbox Accounts at such Lockbox Banks, are specified in Exhibit B hereto (or at such other Lockbox Banks and/or with such other Lockbox Accounts as have been notified to the Administrative Agent and the Funding Agents for the CP Conduit Purchasers and the Committed Purchasers and for which Lockbox Agreements have been executed in accordance with Section 2.09(b) hereof and delivered to the Collection Agent). All Obligors have been instructed to make payment to a Lockbox Account, and only Collections are deposited into a Lockbox Account.

(t) Bulk Sales. No transaction contemplated hereby or by the Receivables Purchase Agreement requires compliance with any “bulk sales” act or similar law.

(u) Transfers Under Receivables Purchase Agreement. Each Receivable which has been transferred to the Transferor by any Seller has been purchased by the Transferor from the Seller pursuant to, and in accordance with, the terms of the Receivables Purchase Agreement.

(v) Preference; Voidability. The Transferor shall have given reasonably equivalent value to each Seller in consideration for the transfer to the Transferor of the Receivables and Related Security, Collections and Proceeds with respect thereto from the Seller, and each such transfer shall not have been made for or on account of an antecedent debt owed by the Seller to the Transferor, and no such transfer is or may be voidable under any Section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq .), as amended (the “Bankruptcy Code”).

(w) Subsidiaries. The Transferor shall not have any subsidiaries.

Any document, instrument, certificate or notice delivered to the Administrative Agent or any Funding Agent by the Transferor or any agent of the Transferor hereunder shall be deemed a representation and warranty by the Transferor.

SECTION 3.02. Reaffirmation of Representations and Warranties by the Transferor. On each day that a Transfer is made hereunder, the Transferor, by accepting the

proceeds of such Transfer, whether delivered to the Transferor pursuant to Section 2.02(a) or Section 2.05 hereof, shall be deemed to have certified that all representations and warranties described in Section 3.01 hereof are true and correct on and as of such day as though made on and as of such day.

ARTICLE IV

Conditions Precedent

SECTION 4.01. Conditions to Effectiveness. This Agreement shall become effective on the first day on which the Administrative Agent shall have received the following documents, instruments and Fees, all of which shall be in a form and substance acceptable to each Funding Agent:

(a) A Certificate of the Secretary or Assistant Secretary of the Transferor in substantially the form of Exhibit H hereto certifying (i) the names and signatures of the officers and employees authorized on its behalf to execute this Agreement and any other documents to be delivered by it hereunder (on which Certificate the Administrative Agent, the Funding Agents, the CP Conduit Purchasers and the Committed Purchasers may conclusively rely until such time as the Administrative Agent shall receive from the Transferor a revised Certificate meeting the requirements of this clause (a)(i)), (ii) a copy of the Transferor’s Certificate of Incorporation, certified by the Secretary of State of the State of Delaware, (iii) a copy of the Transferor’s By-Laws, (iv) a copy of resolutions of the Board of Directors of the Transferor approving this transaction and (v) certificates of the Secretary of State of the State of Delaware certifying the Transferor’s good standing under the laws of the State of Delaware.

(b) A Certificate of the Secretary or Assistant Secretary of each Seller in substantially the form of Exhibit H hereto certifying (i) the names and signatures of the officers and employees authorized on its behalf to execute the Receivables Purchase Agreement and any other documents to be delivered by it (on which Certificate the Administrative Agent, the Funding Agents, the CP Conduit Purchasers and the Committed Purchasers may conclusively rely until such time as the Administrative Agent shall receive from the Seller a revised Certificate meeting the requirements of this clause (b)(i)), (ii) a copy of the Seller’s certificate of incorporation, certified by the Secretary of State of the state of such Seller’s incorporation, (iii) a copy of the Seller’s By-Laws, (iv) a copy of resolutions of the Board of Directors of the Seller approving this transaction and (v) certificates of the Secretary of State of the state of such Seller’s incorporation, certifying the Seller’s good standing under the laws of such state.

(c) Acknowledgment copies evidencing the filing in the appropriate filing offices of proper financing statements (Form UCC-1), naming the Transferor as the debtor, the Administrative Agent, as secured party, and of such other similar instruments or documents as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable under the Relevant UCC of all appropriate jurisdictions or any comparable law to perfect the Administrative Agent’s security interest in all Receivables, Related Security, Proceeds and Collections.

(d) Acknowledgment copies evidencing the filing in the appropriate filing offices of proper financing statements (Form UCC-1), naming each Seller as debtor, the Transferor as secured party, and the Administrative Agent, as assignee of the secured party, and of such other similar instruments or documents as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable under the Relevant UCC of all appropriate jurisdictions or any comparable law to perfect the Transferor’s ownership or security interest in all Receivables, Related Security and Collections.

(e) Acknowledgment copies evidencing the filing in the appropriate filing offices of proper financing statements (Form UCC-3), if any, necessary to terminate or assign to the Administrative Agent all security interests and other rights of any person in Receivables previously granted by the Transferor.

(f) Acknowledgment copies evidencing the filing in the appropriate filing offices of proper financing statements (Form UCC-3), if any, necessary to terminate or assign to the Administrative Agent all security interests and other rights of any person in Receivables, Related Security or Proceeds previously granted by the Sellers.

(g) Certified copies of request for information or copies (Form UCC-11) (or a similar search report certified by parties acceptable to the Administrative Agent), dated a date reasonably near the Closing Date, listing all effective financing statements which name the Transferor and any Seller (under their respective present names and any previous names) as debtor and which are filed in jurisdictions in which the filings were made pursuant to item (c), (d), (e) or (f) above together with copies of such financing statements (none of which, except for those filed pursuant to item (c) or (d) or those terminated pursuant to item (e) or (f), shall cover any Receivables, Related Security or Contracts).

(h) Executed copies of the Lockbox Agreements relating to each of the Lockbox Banks and the Lockbox Accounts and evidence satisfactory to the Administrative Agent of the establishment of the Collection Account.

(i) An opinion of Kutak Rock L.L.P., special counsel to the Transferor and the Sellers, addressed to the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers, the Funding Agents and the Rating Agencies, regarding substantive consolidation in the event of a bankruptcy of Tyson or any Seller and true sale between each Seller and the Transferor.

(j) Opinions of special counsel to the Seller and the Transferor in the states of Arkansas, Delaware, Illinois, Iowa, Oklahoma, Texas, Wisconsin addressed to the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers, the Funding Agents and the Rating Agencies, regarding perfection and priority of the interest granted by the Seller to the Transferor and the security interest granted by the Transferor to the Administrative Agent.

(k) An opinion of Kutak Rock, L.L.P., special counsel to the Transferor and the Seller, addressed to the Administrative Agent, the CP Conduit Purchasers, the Committed

Purchasers, the Funding Agents and the Rating Agencies, regarding the enforceability of the Transaction Documents to which each is a party and other corporate matters.

(l) An opinion of general counsel or assistant general counsel of Tyson, addressed to the Administrative Agent, the CP Conduit Purchasers, the Committed Purchasers and the Funding Agents.

(m) An executed copy of this Agreement and each other Transaction Document to be executed by the Transferor and the Sellers.

(n) A Settlement Statement for September 2001.

(o) The most recent audited and unaudited consolidated financial statements of Tyson and a balance sheet of the Transferor certified by its chief financial officer.

(p) All Fees required to be paid on or prior to the Closing Date in accordance with the Fee Letter shall have been paid.

(q) (i) A written confirmation of PARCO’s A-1 and P-1 CP rating by S&P and Moody’s, respectively, (ii) a written confirmation of Nieuw Amsterdam’s A-1, P-1 and F1 CP rating by S&P, Moody’s and Fitch, respectively, and (iii) written confirmation of Three Pillars’ A-1 and P-1 CP rating by S&P and Moody’s, respectively.

(r) The performance of a review of the credit and collections procedures of the Sellers.

(s) Such other documents, instruments, certificates and opinions as the Administrative Agent or any Funding Agent shall reasonably request.

ARTICLE V

Covenants

SECTION 5.01. Affirmative Covenants of the Transferor. At all times from the date hereof to the date on which all Commitments have been terminated, the Net Investment has been reduced to zero, all Term-out Period Advances have been paid in full and all accrued Discount, Fees, Servicing Fees and all other Aggregate Unpaids shall have been paid in full in cash:

(a) Financial Reporting. The Transferor will maintain a system of accounting established and administered in accordance with GAAP consistently applied, and the Transferor and Tyson will furnish to the Administrative Agent:

(i) Annual Reporting. Within 90 days after the close of the Transferor’s fiscal year, audited financial statements of Tyson and unaudited financial statements of the Transferor, prepared in accordance with GAAP consistently applied, in the case of Tyson on a consolidated basis for Tyson and its Subsidiaries, including balance sheets as of the end of such period, related statements of income, shareholders’ equity and cash flows,

accompanied by (in the case of Tyson) an audit report certified (without a “going concern” qualification and without any qualification as to the scope of the audit) by a nationally recognized independent certified public accountants, acceptable to the Administrative Agent, prepared in accordance with generally accepted auditing standards and any management letter prepared by said accountants.

(ii) Quarterly Reporting. Within 45 days after the close of the first three (3) quarterly periods of the Transferor’s fiscal year, for (x) the Transferor and (y) for Tyson and its Subsidiaries, on a consolidated basis, unaudited balance sheets as at the close of each such period and related statements of income, shareholders’ equity and cash flows in each case for the period from the beginning of such fiscal year to the end of such quarter, together with such other financial or other information as the Administrative Agent or any Funding Agent may reasonably request, in each case certified by its senior financial officer.

(iii) Compliance Certificate. Together with the financial statements required hereunder, a compliance certificate, substantially in the form of Exhibit N hereto, signed by the Transferor’s chief financial officer or treasurer stating that (x) the attached financial statements have been prepared in accordance with GAAP consistently applied and accurately reflect the financial condition of the Transferor or Tyson, as applicable, and (y) to the best of such Person’s knowledge, no Termination Event or Potential Termination Event exists, or if any Termination Event or Potential Termination Event exists, stating the nature and status thereof.

(iv) Notice of Termination Events or Potential Termination Events. As soon as possible and in any event within one Business Day after the actual knowledge of a Responsible Officer of the Transferor of the occurrence of each Termination Event or each Potential Termination Event, a statement of the chief financial officer of the Transferor setting forth details of such Termination Event or Potential Termination Event and the action which the Transferor has taken or proposes to take with respect thereto.

(v) Change in Credit and Collection Policy. Within ten (10) Business Days after the date any material change in or amendment to the Credit and Collection Policy is made, a copy of the Credit and Collection Policy then in effect indicating such change or amendment.

(vi) Credit and Collection Policy. Within ninety (90) days after the close of each Seller’s and the Transferor’s fiscal years, a complete copy of the Credit and Collection Policy then in effect.

(vii) ERISA. Without limiting the generality of the reporting requirements contained in this Section 5.01(a), promptly after the filing or receiving thereof, copies of all reports and notices with respect to any reportable event (as defined in Article IV of ERISA) which has any reasonable likelihood of having a Material Adverse Effect which (A) the Transferor, any of the Sellers or any ERISA Affiliate of the Transferor or the Sellers files under ERISA with the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor, or (B) the Transferor, any of the

Sellers or any ERISA Affiliates of the Transferor or the Sellers receives from the Internal Revenue Service, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor.

(viii) Settlement Statements . On each Settlement Statement Date, a Settlement Statement to the Administrative Agent, the Funding Agents and CP Conduit Purchasers.

(ix) Weekly Reports . During a Downgrade Condition, on each Weekly Settlement Date, a Weekly Report to the Administrative Agent, the Funding Agents and CP Conduit Purchasers.

(x) Other Information. Such other information (including non-financial information) as the Administrative Agent or any Funding Agent may from time to time reasonably request with respect to the Sellers, the Transferor or any Subsidiary of any of the foregoing, such information to be furnished to the Administrative Agent.

(b) Conduct of Business. The Transferor will carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted and do all things necessary to remain duly incorporated, validly existing and in good standing as a domestic corporation in its jurisdiction of incorporation and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted except any jurisdictions where the failure to maintain such authority could not reasonably be expected to have a Material Adverse Effect.

(c) Compliance with Laws. The Transferor will, and will cause each Seller and each Subsidiary of a Seller to, comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it or its respective properties may be subject, except to the extent that the failure to so comply with such laws, rules, regulations, writs, judgments, injunctions, decrees or awards would not materially adversely affect the ability of the Transferor to perform its obligations under this Agreement.

(d) Furnishing of Information and Inspection of Records. The Transferor will, and will cause each Seller to, furnish to the Administrative Agent from time to time such information with respect to the Receivables as the Administrative Agent or any Funding Agent may reasonably request, including, without limitation, listings identifying the Obligor and the Outstanding Balance for each Receivable, together with an aging of Receivables. The Transferor will, and will cause each Seller to, at any time and from time to time during regular business hours and upon reasonable notice, permit the Administrative Agent and each Funding Agent, or their agents or representatives, (i) to examine and make copies of and abstracts from all Records and (ii) to visit the offices and properties of the Transferor and the Sellers for the purpose of examining such Records, and to discuss matters relating to Receivables or the Transferor’s and the Sellers’ performance hereunder and under the other Transaction Documents to which such Person is a party with any of the officers or employees of the Transferor and the Sellers having knowledge of such matters.

(e) Keeping of Records and Books of Account. The Transferor will, and will cause each Seller to, maintain and implement administrative and operating procedures

(including, without limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain, all documents, books, records 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 new Receivable and all Collections of and adjustments to each existing Receivable). The Transferor will, and will cause each Seller to, give the Administrative Agent, each of the Funding Agents and each of the Committed Purchasers, prompt notice of any change in the administrative and operating procedures of the Transferor or such Seller, as applicable, referred to in the previous sentence to the extent such change may have a Material Adverse Effect.

(f) Performance and Compliance with Contracts. The Transferor, at its expense, will instruct the Collection Agent to, and to the extent applicable, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by the Transferor under the Contracts related to the Receivables.

(g) Credit and Collection Policies. The Transferor will instruct the Collection Agent and the Sellers to comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract.

(h) Collections. The Transferor shall instruct the Collection Agent and the Sellers to instruct all Obligors to cause all Collections to be deposited directly to a Lockbox Account.

(i) Collections Received. The Transferor shall, and shall instruct the Collection Agent and the Sellers to, hold in trust, and deposit immediately (but in any event no later than one (1) Business Day following receipt thereof) to a Lockbox Account all Collections received from time to time by the Transferor, the Collection Agent and the Sellers, or with the consent of the Administrative Agent and the Required Committed Purchasers, to a segregated account satisfactory to the Administrative Agent and the Required Committed Purchasers.

(j) Sale Treatment. The Transferor will not account for (including for accounting purposes), or otherwise treat, the transactions contemplated by the Receivables Purchase Agreement in any manner other than as a sale of Receivables by the Sellers to the Transferor. In addition, the Transferor shall disclose (in a footnote or otherwise) in all of its financial statements (including any such financial statements consolidated with any other Persons’ financial statements) the existence and nature of the transaction contemplated hereby and by the Receivables Purchase Agreement, the interest of the Transferor, the CP Conduit Purchasers and the Committed Purchasers in the Receivables and Related Security, Collections and Proceeds with respect thereto, and that the assets of the Transferor are not available to pay creditors of Tyson or the Sellers. For U.S. Federal, State and local income and franchise tax purposes, the transactions contemplated by this Agreement will be treated as a loan to the Transferor, secured by the assets acquired by the Transferor pursuant to the Receivables Purchase Agreement.

(k) Separate Business. The Transferor shall not engage in any business not permitted by its Certificate of Incorporation as in effect on the Closing Date.

(l) Corporate Documents. The Transferor shall only amend, alter, change or repeal its Certificate of Incorporation or the By-laws with the prior written consent of each Funding Agent which shall not be unreasonably withheld.

(m) Net Worth. The Transferor on the Closing Date shall have a net worth (as defined in accordance with GAAP) of at least $190,000,000, and shall thereafter maintain at all times a net worth (as defined in accordance with GAAP), of at least $140,000,000.

(n) Separate Corporate Existence. The Transferor shall:

(i) Maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions and use its commercially reasonable efforts to ensure that the funds of the Transferor will not be diverted to any other Person or for other than corporate uses of the Transferor and that, except as contemplated by Section 6.02(b) such funds will not be commingled with the funds of any Seller or any Subsidiary or Affiliate of the Sellers;

(ii) To the extent that it shares the same officers or other employees as any of its stockholders or Affiliates, fairly allocate among such entities the salaries of and the expenses related to providing benefits to such officers and other employees, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;

(iii) To the extent that it jointly contracts with any of its stockholders or Affiliates to do business with vendors or service providers or to share overhead expenses, fairly allocate among such entities the costs incurred in so doing, and each such entity shall bear its fair share of such costs. To the extent that the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs;

(iv) Enter into all material transactions between the Transferor and any of its Affiliates, whether currently existing or hereafter entered into, only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Transaction Documents meet the requirements of this clause (iv);

(v) Maintain office space separate from the office space of the Sellers and any Affiliates of the Sellers. To the extent that the Transferor and any of its stockholders or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;

(vi) Issue separate unaudited financial statements prepared not less frequently than quarterly and prepared in accordance with GAAP consistently applied;

(vii) Conduct its affairs strictly in accordance with its certificate of incorporation and observe all necessary, appropriate and customary corporate formalities,

including, but not limited to, holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates