EXHIBIT 10.1
dated as of March 30, 2004
Among
DAIRY GROUP RECEIVABLES, L.P., as a Seller,
DAIRY GROUP RECEIVABLES II, L.P., as a Seller,
SPECIALTY GROUP RECEIVABLES, L.P., as a Seller,
XXXX NATIONAL BRAND GROUP, L.P., as a Seller,
THE SERVICERS,
THE COMPANIES,
THE FINANCIAL INSTITUTIONS
and
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Agent
TABLE OF CONTENTS
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ARTICLE I |
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PURCHASE ARRANGEMENTS |
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3 |
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Section 1.1 Purchase Facility |
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3 |
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Section 1.2 Increases |
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4 |
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Section 1.3 Decreases |
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5 |
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Section 1.4 Payment Requirements |
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ARTICLE II |
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PAYMENTS AND COLLECTIONS |
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6 |
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Section 2.1 Payments |
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6 |
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Section 2.2 Collections Prior to Amortization |
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Section 2.3 Collections Following Amortization |
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8 |
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Section 2.4 Application of Collections |
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8 |
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Section 2.5 Payment Rescission |
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9 |
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Section 2.6 Maximum Purchaser Interests |
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9 |
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ARTICLE III |
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COMPANY FUNDING |
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10 |
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Section 3.1 CP Costs |
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10 |
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Section 3.2 CP Costs Payments |
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10 |
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Section 3.4 Selection and Calculation of CP (Tranche) Accrual Periods |
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11 |
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ARTICLE IV |
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FINANCIAL INSTITUTION FUNDING |
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12 |
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Section 4.1 Financial Institution Funding |
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12 |
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Section 4.2 Yield Payments |
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12 |
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Section 4.3 Selection and Continuation of Tranche Periods |
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12 |
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Section 4.4 Financial Institution Discount Rates |
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13 |
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Section 4.5 Suspension of the LIBO Rate |
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13 |
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ARTICLE V |
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REPRESENTATIONS AND WARRANTIES |
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16 |
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Section 5.1 Representations and Warranties of the Seller Parties |
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16 |
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Section 5.2 Financial Institution Representations and Warranties |
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22 |
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ARTICLE VI |
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CONDITIONS OF PURCHASES |
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23 |
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Section 6.1 Conditions Precedent to Initial Incremental Purchase |
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23 |
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Section 6.2 Conditions Precedent to All Purchases and Reinvestments |
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23 |
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ARTICLE VII |
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COVENANTS |
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24 |
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Section 7.1 Affirmative Covenants of the Seller Parties |
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24 |
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Section 7.2 Negative Covenants of The Seller Parties |
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34 |
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ARTICLE VIII |
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ADMINISTRATION AND COLLECTION |
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36 |
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Section 8.1 Designation of Servicers |
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36 |
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Section 8.2 Duties of Servicer |
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37 |
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Section 8.3 Collection Notices |
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40 |
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Section 8.4 Responsibilities of the Sellers |
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40 |
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Section 8.5 Reports |
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40 |
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Section 8.6 Servicing Fees |
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40 |
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ARTICLE IX |
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AMORTIZATION EVENTS |
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41 |
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Section 9.1 Amortization Events |
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Section 9.2 Remedies |
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44 |
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ARTICLE X |
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INDEMNIFICATION |
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45 |
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Section 10.1 Indemnities by the Seller Parties |
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45 |
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Section 10.2 Increased Cost and Reduced Return |
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48 |
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Section 10.3 Other Costs and Expenses |
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50 |
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Section 10.4 Allocations |
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50 |
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ARTICLE XI |
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THE AGENT |
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51 |
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Section 11.1 Authorization and Action |
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51 |
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Section 11.2 Delegation of Duties |
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51 |
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Section 11.3 Exculpatory Provisions |
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51 |
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Section 11.4 Reliance by Agent |
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52 |
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Section 11.5 Non-Reliance on Agent and Other Purchasers |
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52 |
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Section 11.6 Reimbursement and Indemnification |
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53 |
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Section 11.7 Agent in Its Individual Capacity |
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53 |
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Section 11.8 Successor Agent |
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53 |
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ARTICLE XII |
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ASSIGNMENTS; PARTICIPATIONS |
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54 |
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Section 12.1 Assignments |
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54 |
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Section 12.2 Participations |
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55 |
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ARTICLE XIII |
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INTENTIONALLY OMITTED |
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56 |
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ARTICLE XIV |
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MISCELLANEOUS |
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56 |
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Section 14.1 Waivers and Amendments |
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56 |
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Section 14.2 Notices |
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57 |
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Section 14.3 Ratable Payments |
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58 |
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Section 14.4 Protection of Ownership Interests of the Purchasers |
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58 |
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Section 14.5 Confidentiality |
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59 |
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Section 14.6 Bankruptcy Petition |
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60 |
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Section 14.7 Limitation of Liability |
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60 |
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Section 14.8 CHOICE OF LAW |
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60 |
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Section 14.9 CONSENT TO JURISDICTION |
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60 |
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Section 14.10 WAIVER OF JURY TRIAL |
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61 |
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Section 14.11 Integration; Binding Effect; Survival of Terms |
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Section 14.12 Counterparts; Severability; Section References |
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61 |
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Section 14.13 Bank One Roles |
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62 |
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Section 14.14 Characterization |
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Section 14.15 Withholding |
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63 |
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Section 14.16 [Intentionally Omitted] |
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63 |
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Section 14.17 Confirmation and Ratification of Terms |
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63 |
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Section 14.18 Excess Funds |
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64 |
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Section 14.19 Administrative Seller |
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64 |
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Section 14.20 Joint and Several |
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64 |
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Section 14.21 Assignments by Dairy Group |
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Exhibits and Schedules
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Exhibit I
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Definitions |
Exhibit II
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Form of Purchase Notice |
Exhibit III
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Places of Business of the Seller Parties; Locations of Records; Federal Employer
Identification Number(s) |
Exhibit IV
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Names of Collection Banks; Collection Accounts |
Exhibit V
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Form of Compliance Certificate |
Exhibit VI
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Form of Collection Account Agreement |
Exhibit VII
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Form of Assignment Agreement |
Exhibit VIII
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Credit and Collection Policies |
Exhibit IX
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Form of Acknowledgment and Amendment Agreement |
Exhibit X
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Form of Monthly Report |
Exhibit XI
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Form of Performance Undertaking |
Schedule A
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Commitments |
Schedule B
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Closing Documents |
Schedule C
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Xxxx Entities |
Schedule D
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Originators |
Schedule E
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Notice Addresses |
Schedule F
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Top Twenty-Five Obligors |
Schedule G
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Additional Entities |
This Fourth Amended and Restated
Receivables Purchase Agreement, dated as of March 30, 2004,
is among Dairy Group Receivables, L.P., a Delaware limited partnership (“
Dairy Group”),
Dairy Group Receivables II, L.P., a Delaware limited partnership (“
Dairy Group II”),
Specialty Group Receivables, L.P., a Delaware limited partnership (“
Specialty Group”), Xxxx
National Brand Group, L.P., a Delaware limited partnership (“
National Brand Group” and,
together with Dairy Group, Dairy Group II and Specialty Group, the “
Sellers” and each a
“
Seller”), each of the parties listed on the signature pages hereof as a Servicer (the
Servicers, together with the Sellers, the “
Seller Parties,” and each a “
Seller
Party”), the entities listed on
Schedule A to this Agreement under the heading
“Financial Institution” (together with any of their respective successors and assigns hereunder,
the “
Financial Institutions”), the entities listed on
Schedule A to this Agreement
under the heading “Company” (together with any of their respective successors and assigns
hereunder, the “
Companies”) and Bank One, NA (Main Office Chicago), as agent for the
Purchasers hereunder or any successor agent hereunder (together with its successors and assigns
hereunder, the “
Agent”). Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in
Exhibit I.
PRELIMINARY STATEMENTS
Certain Seller Parties, certain Financial Institutions, certain Companies and the Agent are
parties to that certain
Receivables Purchase Agreement, dated as of June 30, 2000, as amended and
restated by that certain Amended and Restated
Receivables Purchase Agreement, dated as of December
21, 2001, as further amended and restated by that certain Second Amended and Restated
Receivables
Purchase Agreement, dated as of May 15, 2002 and effective for all purposes as of March 31, 2002,
and as further amended and restated by that certain Third Amended and Restated
Receivables Purchase
Agreement, dated as of November 20, 2003, and as amended by the Amendment No. 1 thereto and
Reaffirmation of Performance Undertakings, dated as of December 31, 2003 (such agreement, as so
amended and restated and amended, the “
Original Agreement”).
Dairy Group, Dairy Group II and Specialty Group have transferred and assigned pursuant to the
Original Agreement, and desire to continue to transfer and assign Purchaser Interests to the
Purchasers from time to time.
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National Brand Group desires to become a party to the Original Agreement as a seller and to
transfer and assign Purchaser Interests to the Purchasers from time to time.
Each Company may, in its absolute and sole discretion, purchase the Purchaser Interests from
the Sellers from time to time.
In the event that any Company declines to make any purchase, such Company’s Related Financial
Institutions shall, at the request of the Administrative Seller, purchase Purchaser Interests that
such Company declined to purchase from time to time.
Bank One, NA (Main Office Chicago) has been requested and is willing to act as Agent on behalf
of the Companies and the Financial Institutions in accordance with the terms hereof.
The parties hereto now desire to amend and restate the Original Agreement in its entirety to
read as set forth herein.
AGREEMENT
Now Therefore, in consideration of the foregoing and for other valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree that,
subject to satisfaction of the conditions precedent set forth in Section 6.1 hereof, the
Original Agreement is hereby amended and restated in its entirety to read as follows:
PURCHASE ARRANGEMENTS
Purchase Facility.
Upon the terms and subject to the conditions hereof, each Seller may, at its option, sell
and assign Purchaser Interests to the Agent for the benefit of one or more of the Purchasers. In
accordance with the terms and conditions set forth herein, each Company may, at its option,
instruct the Agent to purchase on
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behalf of such Company, or if any Company shall decline to
purchase, the Agent shall purchase, on behalf of such declining Company’s Related Financial
Institutions, Purchaser Interests from time to time in an amount not to exceed in the aggregate for
all Sellers at such time (i) in the case of each Company, its Company Purchase Limit and (ii) in
the aggregate, the lesser of (A) the Purchase Limit and (B) the aggregate amount of the Commitments
during the period from the date hereof to but not including the Facility Termination Date.
a The Administrative Seller may, upon at least 10 Business Days’ notice to the Agent, each
Company and each Financial Institution, terminate in whole or reduce in part, ratably among the
Financial Institutions, the unused portion of the Purchase Limit; provided that (i) any such notice
shall be irrevocable, (ii) each partial reduction of the Purchase Limit shall be in an amount equal
to $5,000,000 or an integral multiple thereof and (iii) the aggregate of the Company Purchase
Limits for all of the Companies shall also be terminated in whole or reduced in part, ratably among
the Companies, by an amount equal to such termination or reduction in the Purchase Limit.
2 Increases.
The Administrative Seller shall provide the Agent and each Purchaser with at least two
Business Days’ prior notice in a form set forth as Exhibit II hereto of each Incremental
Purchase (a “Purchase Notice”) to be made by a Seller. Each Purchase Notice shall be
subject to Section 6.2 hereof and, except as set forth below, (i) shall be irrevocable and
shall specify the requested Purchase Price (which, in the case of the initial Incremental Purchase
hereunder shall not be less than $10,000,000 and in the case of subsequent Incremental Purchases
shall not be less than $1,000,000), (ii) the date of purchase (which, in the case of Incremental
Purchases after the initial Incremental Purchase hereunder, shall not exceed four per calendar
month), (iii) in the case of an Incremental Purchase to be funded by any of the Financial
Institutions, the requested Discount Rate and Tranche Period and (iv) in the case of an Incremental
Purchase to be funded by the CL Company or by any Pool Company (other than an Incremental Purchase
funded by such Pool Company substantially with Pooled Commercial Paper), the requested CP (Tranche)
Accrual Period. Following receipt of a Purchase Notice, the Agent will promptly notify each
Company of such Purchase Notice and the Agent will identify the Companies that agree to make the
purchase. If any Company declines to make a proposed purchase, the Administrative Seller may
cancel the Purchase Notice as to all Purchasers no
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fourth amended and restated
receivables purchase agreement
later than 2:00 p.m. (Chicago time) on the
Business Day immediately prior to the date of purchase specified in the Purchase Notice or, in the
absence of such a cancellation, the Incremental Purchase of the Purchaser Interest, which such
Company has declined to purchase, will be made by such declining Company’s Related Financial
Institutions in accordance with the rest of this Section 1.2. If the proposed Incremental
Purchase or any portion thereof is to be made by any of the Financial Institutions, the Agent shall
send notice of the proposed Incremental Purchase to the applicable Financial Institutions
concurrently by telecopier, telex or cable specifying (i) the date of such Incremental Purchase,
which date must be at least one Business Day after such notice is received by the applicable
Financial Institutions, (ii) each Financial Institution’s Pro Rata Share of the aggregate Purchase
Price of the Purchaser Interests the Financial Institutions in such Financial Institution’s
Purchaser Group are then purchasing and (iii) the requested Discount Rate and Tranche Period. On
the date of each Incremental Purchase, upon satisfaction of the applicable conditions precedent set
forth in Article VI and the conditions set forth in this Section 1.2, the Companies
and/or the Financial Institutions, as applicable, shall use their reasonable best efforts to
deposit to the Facility Account, in immediately available funds, no later than 12:00 noon (Chicago
time), and in any event no later than 2:00 pm (Chicago time), an amount equal to (i) in the case of
a Company that has agreed to make such Incremental Purchase, such Company’s Pro Rata Share of the
aggregate Purchase Price of the Purchaser Interests of such Incremental Purchase or (ii) in the
case of a Financial Institution, such Financial Institution’s Pro Rata Share of the aggregate
Purchase Price of the Purchaser Interests the Financial Institutions in such Financial
Institution’s Purchaser Group are then purchasing. Each Financial Institution’s Commitment
hereunder shall be limited to purchasing Purchaser Interests that the Company in such Financial
Institution’s Purchaser Group has declined to purchase. Each Financial Institution’s obligation
shall be several, such that the failure of any Financial Institution to make available to any
Seller any funds in connection with any purchase shall not relieve any other Financial Institution
of its obligation, if any, hereunder to make funds available on the date of such purchase, but no
Financial Institution shall be responsible for the failure of any other Financial Institution to
make funds available in connection with any purchase.
3 Decreases. The Administrative Seller shall provide the Agent with an irrevocable prior
written notice in conformity with the Required Notice Period (a “Reduction Notice”) of any proposed
reduction of Aggregate Capital from Collections and the Agent will promptly notify each Purchaser
of such Reduction Notice after Agent’s receipt thereof. Such Reduction Notice shall designate (i)
the date (the “Proposed Reduction Date”) upon which any such reduction of Aggregate
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fourth amended and restated
receivables purchase agreement
Capital shall
occur (which date shall give effect to the applicable Required Notice Period), and (ii) the amount
of Aggregate Capital to be reduced that shall be applied ratably to the Purchaser Interests of the
Companies and the Financial Institutions in accordance with the amount of Capital (if any) owing to
the Companies (ratably to each Company, based on the ratio of such Company’s Capital at such time
to the aggregate Capital of all the Companies at such time), on the one hand, and the amount of
Capital (if any) owing to the Financial Institutions (ratably to each Financial Institution, based
on the ratio of such Financial Institution’s Capital at such time to the aggregate Capital of all
of the Financial Institutions at such time), on the other hand (the “Aggregate Reduction”). Only
one (1) Reduction Notice shall be outstanding at any time. Concurrently with any reduction of
Aggregate Capital pursuant to this Section, the Sellers shall pay to the applicable Purchaser all
Broken Funding Costs arising as a result of such reduction. No Aggregate Reduction will be made
following the occurrence of the Amortization Date without the prior written consent of the Agent.
4 Payment Requirements. All amounts to be paid or deposited by any Seller Party pursuant to any
provision of this Agreement or any other Transaction Documents shall be paid or deposited in
immediately available funds in accordance with the terms hereof. Such Seller Party shall use its
reasonable best efforts to pay or deposit all such amounts no later than 12:00 noon (Chicago time)
on the day when due. Any such payment or deposit not received by 1:00 pm (Chicago time) shall be
deemed to be received on the next succeeding Business Day. If such amounts are payable to a
Purchaser, they shall be paid to such Purchaser at the “Payment Address” specified for such
Purchaser on Schedule A or such other address specified in writing to each other party hereto. If
such amounts are payable to the Agent, they shall be paid to the Agent at 0 Xxxx Xxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 until otherwise notified by the Agent. Upon notice to the Administrative
Seller, the Agent may debit the Facility Account for all amounts due and payable hereunder. All
computations of Yield, per annum fees or discount calculated as part of any CP Costs, per annum
fees hereunder and per annum fees under any Fee Letter shall be made on the basis of a year of 360
days for the actual number of days elapsed. If any amount hereunder or under any other Transaction
Document shall be payable on a day that is not a Business Day, such amount shall be payable on the
next succeeding Business Day.
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fourth amended and restated
receivables purchase agreement
PAYMENTS AND COLLECTIONS
5 Payments. Notwithstanding any limitation on recourse contained in this Agreement, the Sellers
shall immediately pay to the Agent or relevant Purchaser, as applicable, when due, for the account
of the relevant Purchaser or Purchasers on a full recourse basis, (i) such fees as set forth in
each Fee Letter (which fees collectively shall be sufficient to pay all fees owing to the Financial
Institutions and other Funding Sources), (ii) all CP Costs, (iii) all amounts payable as Yield,
(iv) all amounts payable as Deemed Collections (which shall be immediately due and payable by the
Sellers and applied to reduce outstanding Aggregate Capital hereunder in accordance with Sections
2.2 and 2.3 hereof), (v) all amounts required pursuant to Section 2.6, (vi) all amounts payable
pursuant to Article X, if any, (vii) all Servicer costs and expenses, including the Servicing Fee,
in connection with servicing, administering and collecting the Receivables, (viii) all Broken
Funding Costs (any request for reimbursement of which shall be accompanied by a certificate in
reasonable detail demonstrating the reasonable calculation of ay such amount) and (ix) all Default
Fees (collectively, the “Obligations”). If any Person fails to pay any of the Obligations (other
than the Default Fee) when due, such Person agrees to pay, on demand, the Default Fee in respect
thereof until paid. Notwithstanding the foregoing, no provision of this Agreement or any Fee
Letter shall require the payment or permit the collection of any amounts hereunder in excess of the
maximum permitted by applicable law. If at any time any Seller receives any Collections or is
deemed to receive any Collections, such Seller shall immediately pay such Collections or Deemed
Collections to the applicable Servicer for application in accordance with the terms and conditions
hereof and, at all times prior to such payment, such Collections or Deemed Collections shall be
held in trust by such Seller for the exclusive benefit of the Purchasers and the Agent.
6 Collections Prior to Amortization. Prior to the Amortization Date, any Collections
and/or Deemed Collections received by each Servicer shall be set aside and held in trust by such
Servicer for the benefit of the Agent and the Purchasers for the payment of any accrued and unpaid
Aggregate Unpaids or for a Reinvestment as provided in this Section 2.2. If at any time
any Collections and/or Deemed Collections are received by any Servicer prior to the Amortization
Date, (i) such Servicer shall set aside the Termination Percentage (hereinafter defined) of
Collections and/or Deemed Collections evidenced by the Purchaser Interests of each Terminating
Financial Institution and of each Company in a Terminating Financial Institution’s Purchaser Group,
shall set aside Collections to be used to effect any Aggregate Reduction in accordance with
Section 1.3 and shall set aside amounts
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fourth amended and restated
receivables purchase agreement
necessary to pay Obligations due on the next
succeeding Settlement Date and (ii) each Seller hereby requests and the Purchasers (other than any
Terminating Financial Institutions and, to the extent applicable, any Company in a Terminating
Financial Institution’s Purchaser Group) hereby agree to make, simultaneously with such receipt, a
reinvestment (each a “Reinvestment”) with that portion of the balance of each and every
Collection and Deemed Collection received by any Servicer that is part of any Purchaser Interest
(other than any Purchaser Interests of Terminating Financial Institutions and, to the extent
applicable, of any Company in a Terminating Financial Institution’s Purchaser Group), such that
after giving effect to such Reinvestment, the amount of Capital of such Purchaser Interest
immediately after such receipt and corresponding Reinvestment shall be equal to the amount of
Capital immediately prior to such receipt (but giving effect to any ratable reduction thereof
pursuant to application of an Aggregate Reduction). On each Settlement Date prior to the
occurrence of the Amortization Date, the Servicers shall remit to the Agent’s or applicable
Purchaser’s account the amounts set aside during the preceding Settlement Period that have not been
subject to a Reinvestment and apply such amounts (if not previously paid in accordance with
Section 2.1) first, to reduce unpaid CP Costs, Yield and other Obligations and
second, to reduce the Capital of all Purchaser Interests of Terminating Financial
Institutions and, to the extent applicable, of each Company in a Terminating Financial
Institution’s Purchaser Group, applied ratably to such Terminating Financial Institution and each
such Company according to its respective Termination Percentage. If such Capital, CP Costs, Yield
and other Obligations shall be reduced to zero, any additional Collections received by any Servicer
(i) if applicable, shall be remitted to the Agent’s or applicable Purchaser’s account to the extent
required to fund any Aggregate Reduction on such Settlement Date and (ii) any balance remaining
thereafter shall be remitted from such Servicer to the Sellers on such Settlement Date. Such
Servicer shall use its reasonable best efforts to remit all deposit amounts in the Agent’s or
applicable Purchaser’s account no later than 12:00 noon (Chicago time) on such Settlement Date.
Any such amounts not received by Agent or the applicable Purchaser by 1:00 pm (Chicago time) shall
be deemed to be received on the next succeeding Business Day. Each Terminating Financial
Institution and each Company in such Terminating Financial Institution’s Purchaser Group shall be
allocated a ratable portion of Collections from its Termination Date until, with respect to a
Terminating Financial Institution, such Terminating Financial Institution’s Capital, if any, shall
be paid in full and, with respect to a related Company (i) if any Related Financial Institution
with respect to such Company continues to exist, the Capital of such Company is equal to the
Company Purchase Limit (as reduced pursuant to Section 4.6(b)) of such Company or (ii) if
there are no Related Financial Institutions with respect to such Company, the Capital of such
Company shall be paid in full. The applicable ratable portion shall be calculated,
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fourth amended and restated
receivables purchase agreement
with respect to
any Terminating Financial Institution or applicable Company, on the Termination Date of each
Terminating Financial Institution or applicable Company as a percentage equal to (i) the Capital of
such Terminating Financial Institution or applicable Company outstanding on its Termination Date,
divided by (ii) the Aggregate Capital outstanding on such Termination Date (the
“Termination Percentage”). Each Terminating Financial Institution’s and applicable
Company’s Termination Percentage shall remain constant prior to the Amortization Date. On and
after the Amortization Date, each Termination Percentage shall be disregarded, and each Terminating
Financial Institution’s and each applicable Company’s Capital shall be reduced ratably with all
Financial Institutions and Companies in accordance with Section 2.3.
7 Collections Following Amortization. On the Amortization Date and on each day thereafter, the
Servicers shall set aside and hold in trust, for the holder of each Purchaser Interest, all
Collections received on such day and an additional amount for the payment of any accrued and unpaid
Aggregate Unpaids owed by the Sellers and not previously paid by the Sellers in accordance with
Section 2.1. On and after the Amortization Date, the Servicers shall, at any time upon the request
from time to time by (or pursuant to standing instructions from) the Agent (i) remit to the Agent’s
or applicable Purchaser’s account the amounts set aside pursuant to the preceding sentence, and
(ii) apply such amounts to reduce the Capital associated with each such Purchaser Interest and any
other Aggregate Unpaids.
8 Application of Collections. If there shall be insufficient funds on deposit for the Servicers to
distribute funds in payment in full of the aforementioned amounts pursuant to Section 2.2 or 2.3
(as applicable), the Servicers shall distribute funds to the applicable payee:
first, to the payment of each Servicer’s reasonable actual out-of-pocket costs
and expenses in connection with servicing, administering and collecting the Receivables,
including the Servicing Fee, provided no Seller nor any of its Affiliates is then acting as
a Servicer,
second, to the reimbursement of the Agent’s and the Purchasers’ costs of
collection and enforcement of this Agreement,
third, ratably to the payment of all accrued and unpaid fees under the Fee
Letters, CP Costs and Yield,
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fourth, (to the extent applicable) to the ratable reduction of the Aggregate
Capital (without regard to any Termination Percentage),
fifth, for the ratable payment of all other unpaid Obligations,
provided that to the extent such Obligations relate to the payment of Servicer
costs and expenses, including the Servicing Fee, when any Seller or any of its Affiliates
is acting as a Servicer, such costs and expenses will not be paid until after the payment
in full of all other Obligations, and
sixth, after the Aggregate Unpaids have been indefeasibly reduced to zero, to
the Administrative Seller for ratable distribution to the Sellers.
Collections applied to the payment of Aggregate Unpaids shall be distributed in accordance
with the aforementioned provisions, and, giving effect to each of the priorities set forth in
Section 2.4 above, shall be shared ratably (within each priority) among the Agent and the
Purchasers in accordance with the amount of such Aggregate Unpaids owing to each of them in respect
of each such priority.
9 Payment Rescission. No payment of any of the Aggregate Unpaids shall be considered
paid or applied hereunder to the extent that, at any time, all or any portion of such payment or
application is rescinded by application of law or judicial authority, or must otherwise be returned
or refunded for any reason. Each Seller shall remain obligated for the amount of any payment or
application so rescinded, returned or refunded, and shall promptly pay to the Agent (for
application to the Person or Persons who suffered such rescission, return or refund) the full
amount thereof, plus the Default Fee from the date of any such rescission, return or refunding.
10 Maximum Purchaser Interests. Each Seller shall ensure that the Purchaser Interests of
the Purchasers shall at no time exceed in the aggregate 100%. If the aggregate of the Purchaser
Interests of the Purchasers exceeds 100%, the Sellers shall pay to the Purchasers (ratably based on
the ratio of each Purchaser’s Capital at such time to the Aggregate Capital at such time) within
one (1) Business Day an amount to be applied to reduce the Aggregate Capital, such that after
giving effect to such payment the aggregate of the Purchaser Interests equals or is less than 100%.
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Clean Up Call. In addition to the Sellers’ rights pursuant to Section 1.3, the Sellers shall have
the right, upon two Business Days’ prior written notice to the Agent and the Purchasers, at any
time following the reduction of the Aggregate Capital to a level that is less than 20.0% of the
original Purchase Limit hereunder, to repurchase from the Purchasers all, but not less than all, of
the then outstanding Purchaser Interests. The purchase price in respect thereof shall be an amount
equal to the Aggregate Unpaids (including any Broken Funding Costs arising as a result of such
repurchase) through the date of such repurchase, payable in immediately available funds. Such
repurchase shall be without representation, warranty or recourse of any kind by, on the part of, or
against any Purchaser or the Agent.
COMPANY FUNDING
11 CP Costs. The Sellers shall pay CP Costs with respect to the Capital
associated with each Purchaser Interest of the Companies for each day that any Capital in respect
of any such Purchaser Interest is outstanding. Each Purchaser Interest of any Pool Company funded
substantially with Pooled Commercial Paper will accrue CP Costs each day on a pro rata basis, based
upon the percentage share the Capital in respect of such Purchaser Interest represents in relation
to all assets held by the applicable Pool Company and funded substantially with Pooled Commercial
Paper. Each Purchaser Interest of the CL Company and each Purchaser Interest of any Pool Company
not funded substantially with Pooled Commercial Paper shall accrue CP Costs for each day during its
CP (Tranche) Accrual Period at the rate determined in accordance with the definition of “Company
Costs” set forth in Exhibit I.
12 CP Costs Payments. On each Settlement Date relating to a CP (Tranche) Accrual
Period, the Sellers shall pay to the applicable Company an aggregate amount equal to all accrued
and unpaid CP Costs in respect of the Capital associated with all Purchaser Interests of such
Company for the related CP (Tranche) Accrual Period in accordance with Article II.
Calculation of Pool Company Costs. On the third Business Day immediately preceding each Settlement
Date relating to a CP (Pool) Accrual Period, each Pool Company shall calculate the aggregate amount
of its Company Costs with respect to all Purchaser Interests funded substantially with Pooled
Commercial Paper for the
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applicable CP (Pool) Accrual Period and shall notify the Administrative
Seller of such aggregate amount of such Company Costs due and payable on such Settlement Date.
13 Selection and Calculation of CP (Tranche) Accrual Periods.
a In the case of Purchaser Interests of each Pool Company, the Administrative Seller shall (and
following the occurrence and during the continuance of a Potential Amortization Event or an
Amortization Event, shall with consultation from, and approval by, each Pool Company), from time to
time request CP (Tranche) Accrual Periods for the Purchaser Interests of each Pool Company other
than those funded substantially with Pooled Commercial Paper, provided, that (i) the consent of the
Agent and each Purchaser shall be required, (ii) the Administrative Seller must elect CP (Tranche)
Accrual Periods for all Purchaser Interests of each Pool Company, such that after giving effect to
such election, no Purchaser Interest of any Pool Company is funded with Pooled Commercial Paper and
(iii) the Administrative Seller may only make such election once hereunder. In the case of
Purchaser Interests of the CL Company, the Administrative Seller shall, with consultation from, and
approval by, the CL Company (such approval not to be unreasonably withheld), from time to time
request CP (Tranche) Accrual Periods for the Purchaser Interests of the CL Company.
b The Administrative Seller or the applicable Company, upon notice to and consent by the other
received at least three (3) Business Days prior to the end of a CP (Tranche) Accrual Period (the
“Terminating CP Tranche”) for any Purchaser Interest, may, effective on the last day of the
Terminating CP Tranche: (i) divide any such Purchaser Interest into multiple Purchaser Interests,
(ii) combine any such Purchaser Interest with one or more other Purchaser Interests that have a
Terminating CP Tranche ending on the same day as such Terminating CP Tranche or (iii) combine any
such Purchaser Interest with a new Purchaser Interest (other than a Purchaser Interest funded
substantially with Pooled Commercial Paper) to be purchased on the day such Terminating CP Tranche
ends, provided, that in no event may a Purchaser Interest of any Purchasers be combined with a
Purchaser Interest of any other Purchaser.
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c The Administrative Seller shall, at least three (3) Business Days prior to the expiration of
any Terminating CP Tranche, give the applicable Company (or its agent) irrevocable notice of the
new CP (Tranche) Accrual Period associated with such Terminating CP Tranche and the amount of
Capital to be allocated to such new CP (Tranche) Accrual Period. The Administrative Seller shall
use its reasonable best efforts to give such notice such that the applicable Company (or its agent)
receives it no later than 12:00 noon (Chicago time) on the day such request is being made. Any
such request not received by the applicable Company by 1:00 pm (Chicago time) shall be deemed to be
received on the next succeeding Business Day.
FINANCIAL INSTITUTION FUNDING
14 Financial Institution Funding. Each Purchaser Interest of the Financial Institutions
shall accrue Yield for each day during its Tranche Period at either the LIBO Rate or the Prime Rate
in accordance with the terms and conditions hereof. Until the Administrative Seller gives notice
to the Agent of another Discount Rate in accordance with Section 4.4, the initial Discount Rate for
any Purchaser Interest transferred to the Financial Institutions pursuant to the terms and
conditions hereof shall be the Prime Rate. If any Purchaser Interest of any Company is assigned or
transferred to, or funded by, any Funding Source of such Company pursuant to any Funding Agreement
or to or by any other Person, each such Purchaser Interest so assigned, transferred or funded shall
each be deemed to have a new Tranche Period commencing on the date of any such transfer or funding
and shall accrue Yield for each day during its Tranche Period at either the LIBO Rate or the Prime
Rate in accordance with the terms and conditions hereof as if each such Purchaser Interest was held
by a Financial Institution, and with respect to each such Purchaser Interest, the transferee
thereof or lender with respect thereto shall be deemed to be a Financial Institution in the
transferring Company’s Purchaser Group for purposes hereof; provided that until the Administrative
Seller gives notice to the Agent of another Discount Rate in accordance with Section 4.4, the
initial Discount Rate for any Purchaser Interest so transferred shall be the Prime Rate.
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15 Yield Payments. On the Settlement Date for each Purchaser Interest of the Financial
Institutions, the Sellers shall pay to the applicable Financial Institutions an aggregate amount
equal to the accrued and unpaid Yield for the entire Tranche Period of each such Purchaser Interest
in accordance with Article II.
16 Selection and Continuation of Tranche Periods.
a In the case of Purchaser Interests of any Financial Institution in the Purchaser Group
of the Bank One Company, the Administrative Seller shall (and following the occurrence and during
the continuance of a Potential Amortization Event or an Amortization Event, shall with consultation
from, and approval by, the applicable Financial Institution), from time to time request Tranche
Periods for the Purchaser Interests of such Financial Institutions. In the case of Purchaser
Interests of any Financial Institution in the Purchaser Group of any Company other than the Bank
One Company, the Administrative Seller shall, with consultation from, and approval by, the
applicable Financial Institution (such approval not to be unreasonably withheld), from time to time
request Tranche Periods for the Purchaser Interests of such Financial Institution. Notwithstanding
the foregoing provisions of this subsection (a), if at any time the Financial Institutions shall
have a Purchaser Interest, the Administrative Seller shall always request Tranche Periods such that
at least one Tranche Period shall end on the date specified in clause (A) of the definition of
Settlement Date.
b The Administrative Seller or the applicable Financial Institution, upon notice to and consent
by the other received at least three (3) Business Days prior to the end of a Tranche Period (the
“Terminating Tranche”) for any Purchaser Interest, may, effective on the last day of the
Terminating Tranche: (i) divide any such Purchaser Interest into multiple Purchaser Interests,
(ii) combine any such Purchaser Interest with one or more other Purchaser Interests that have a
Terminating Tranche ending on the same day as such Terminating Tranche or (iii) combine any such
Purchaser Interest with a new Purchaser Interest to be purchased on the day such Terminating
Tranche ends, provided, that in no event may a Purchaser Interest of any Purchasers be combined
with a Purchaser Interest of any other Purchaser.
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17 Financial Institution Discount Rates. The Administrative Seller may select the LIBO
Rate or the Prime Rate for each Purchaser Interest of the Financial Institutions. The
Administrative Seller shall: (i) at least three (3) Business Days prior to the expiration of any
Terminating Tranche with respect to which the LIBO Rate is being requested as a new Discount Rate
and (ii) at least one (1) Business Day prior to the expiration of any Terminating Tranche with
respect to which the Prime Rate is being requested as a new Discount Rate, give the applicable
Financial Institution irrevocable notice of the new Discount Rate for the Purchaser Interest
associated with such Terminating Tranche. The Administrative Seller shall use its reasonable best
efforts to give such notice such that the applicable Financial Institution receives it no later
than 12:00 noon (Chicago time) on the day such request is being made. Any such request not
received by the applicable Financial Institution by 1:00 pm (Chicago time) shall be deemed to be
received on the next succeeding Business Day. Until the Administrative Seller gives notice to the
applicable Financial Institution of another Discount Rate, the initial Discount Rate for any
Purchaser Interest transferred to the Financial Institutions pursuant to the terms and conditions
hereof (or transferred to, or funded by, any Funding Source pursuant to any Funding Agreement or to
or by any other Person) shall be the Prime Rate.
18 Suspension of the LIBO Rate.
a If any Financial Institution notifies the Agent that it has determined that funding its
Pro Rata Share of the Purchaser Interests of the Financial Institutions in such Financial
Institution’s Purchaser Group at the LIBO Rate would violate any applicable law, rule, regulation
or directive of any governmental or regulatory authority, whether or not having the force of law,
or that (i) deposits of a type and maturity appropriate to match fund its Purchaser Interests at
the LIBO Rate are not available or (ii) the LIBO Rate does not accurately reflect the cost of
acquiring or maintaining a Purchaser Interest at the LIBO Rate, then the Agent shall suspend the
availability of the LIBO Rate for the Financial Institutions in such Financial Institution’s
Purchaser Group and require Seller to select the Prime Rate for any Purchaser Interest funded by
the Financial Institutions in such Financial Institution’s Purchaser Group accruing Yield at the
LIBO Rate.
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b If less than all of the Financial Institutions in such Financial Institution’s Purchaser
Group give a notice to the Agent pursuant to Section 4.5(a), each Financial Institution which gave
such a notice shall be obliged, at the request of the Administrative Seller, the Company in such
Financial Institution’s Purchaser Group or the Agent, to assign all of its rights and obligations
hereunder to (i) another Financial Institution in such Financial Institution’s Purchaser Group or
(ii) another funding entity nominated by the Administrative Seller or the Agent that is acceptable
to the Company in such Financial Institution’s Purchaser Group and willing to participate in this
Agreement through the Liquidity Termination Date in the place of such notifying Financial
Institution; provided that (i) the notifying Financial Institution receives payment in full,
pursuant to an Assignment Agreement, of an amount equal to such notifying Financial Institution’s
Pro Rata Share of the Capital and Yield owing to all of the Financial Institutions in such
Financial Institution’s Purchaser Group and all accrued but unpaid fees and other costs and
expenses payable in respect of its Pro Rata Share of the Purchaser Interests of the Financial
Institutions in such Financial Institution’s Purchaser Group, and (ii) the replacement Financial
Institution otherwise satisfies the requirements of Section 12.1(b).
Extension of Liquidity Termination Date.
c The Administrative Seller may request one or more 364-day extensions of the Liquidity
Termination Date then in effect by giving written notice of such request to the Agent (each such
notice an “Extension Notice”) at least 60 days prior to the Liquidity Termination Date then in
effect. After the Agent’s receipt of any Extension Notice, the Agent shall promptly advise each
Financial Institution of such Extension Notice. Each Financial Institution may, in its sole
discretion, by a written irrevocable notice (a “Consent Notice”) given to the Agent on or prior to
the 30th day prior to the Liquidity Termination Date then in effect (such period from
the date of the Extension Notice to such 30th day being referred to herein as the
“Consent Period”), consent to such extension of such Liquidity Termination Date; provided, however,
that such extension shall not be effective with respect to a Financial Institution if such
Financial Institution: (i) notifies the Agent during the Consent Period that such Financial
Institution does not wish to consent to such extension or (ii) fails to respond to the Agent within
the Consent Period (each Financial Institution that does not wish to consent to such extension or
fails to respond to the Agent within the Consent Period is herein referred to as a “Non-Renewing
Financial Institution”). If at the end of the Consent Period, there is no Non-Renewing
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Financial
Institution then, the Liquidity Termination Date shall be irrevocably extended until the date that
is 364 days after the Liquidity Termination Date then in effect. If at the end of the Consent
Period there is a Non-Renewing Financial Institution, then unless such Non-Renewing Financial
Institution assigns its rights and obligations hereunder pursuant to Section 4.6(b) (each such
Non-Renewing Financial Institution whose rights and obligations under this Agreement and the other
applicable Transaction Documents are not so assigned is herein referred to as a “Terminating
Financial Institution”), the then existing Liquidity Termination Date shall be extended for an
additional 364 days with respect to all Financial Institutions other than the Terminating Financial
Institution; provided, however, that (i) the Purchase Limit shall be reduced on the Termination
Date applicable to each Terminating Financial Institution by an aggregate amount equal to the
Terminating Commitment Availability of each Terminating Financial Institution and shall thereafter
continue to be reduced by amounts equal to any reduction in the Capital of any Terminating
Financial Institution (after application of Collections pursuant to Sections 2.2 and 2.3), (ii) the
Company Purchase Limit of each Company shall be reduced by the aggregate amount of the Terminating
Commitment Amount of each Terminating Financial Institution in such Company’s Purchaser Group and
(iii) the Commitment of each Terminating Financial Institution shall be reduced to zero on the
Termination Date applicable to such Terminating Financial Institution. Upon reduction to zero of
the Capital of all of the Purchaser Interests of a Terminating Financial Institution (after
application of Collections thereto pursuant to Sections 2.2 and 2.3) all rights and obligations of
such Terminating Financial Institution hereunder shall be terminated and such Terminating Financial
Institution shall no longer be a “Financial Institution”; provided, however, that the provisions of
Article X shall continue in effect for its benefit with respect to Purchaser Interests held by such
Terminating Financial Institution prior to its termination as a Financial Institution.
d Upon receipt of notice from the Agent pursuant to Section 4.6(a) of any Non-Renewing
Financial Institution, one or more of the Financial Institutions (including any Non-Renewing
Financial Institution) may proffer to the Agent and the Company in such Non-Renewing Financial
Institution’s Purchaser Group the names of one or more institutions meeting the criteria set forth
in Section 12.1(b)(i) that are willing to accept assignments of and assume the rights and
obligations under this Agreement and the other applicable Transaction Documents of the Non-Renewing
Financial Institution. Provided the proffered name(s) are acceptable to the Agent and the Company
in such Non-Renewing Financial Institution’s Purchaser Group, the Agent shall notify
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the remaining
Financial Institutions of such fact, and the then existing Liquidity Termination Date shall be
extended for an additional 364 days upon satisfaction of the conditions for an assignment in
accordance with Section 12.1, and the Commitment of each Non-Renewing Financial Institution shall
be reduced to zero.
e Any requested extension may be approved or disapproved by a Financial Institution in its sole
discretion. In the event that the Commitments are not extended in accordance with the provisions
of this Section 4.6, the Commitment of each Financial Institution shall be reduced to zero on the
Liquidity Termination Date. Upon reduction to zero of the Commitment of a Financial Institution
and upon reduction to zero of the Capital of all of the Purchaser Interests of such Financial
Institution all rights and obligations of such Financial Institution hereunder shall be terminated
and such Financial Institution shall no longer be a “Financial Institution”; provided, however,
that the provisions of Article X shall continue in effect for its benefit with respect to Purchaser
Interests held by such Financial Institution prior to its termination as a Financial
Institution.
REPRESENTATIONS AND WARRANTIES
19 Representations and Warranties of the Seller Parties. Each Seller Party hereby
represents and warrants to the Agent and the Purchasers, as to itself, as of the date hereof and as
of the date of each Incremental Purchase and the date of each Reinvestment that:
a Corporate Existence and Power. Such Seller Party is a corporation, limited liability company
or limited partnership duly organized and validly existing in good standing under the laws of its
state of organization. Each such Seller Party is duly qualified to do business and is in good
standing as a foreign corporation or entity, and has and holds all corporate or other power and all
governmental licenses, authorizations, consents and approvals required to carry on its business in
each jurisdiction in which its business is conducted except to the extent that the failure to so
qualify or hold could not reasonably be expected to have a Material Adverse Effect.
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b Power and Authority; Due Authorization, Execution and Delivery. The execution and delivery
by such Seller Party of this Agreement and each other Transaction Document to which it is a party,
and the performance of its obligations hereunder and thereunder and, in the case of each Seller,
such Seller’s use of the proceeds of purchases made hereunder, are within its corporate or other
powers and authority and have been duly authorized by all necessary corporate or other action on
its part. This Agreement and each other Transaction Document to which such Seller Party is a party
has been duly executed and delivered by such Seller Party.
c No Conflict. The execution and delivery by such Seller Party of this Agreement and each
other Transaction Document to which it is a party, and the performance of its obligations hereunder
and thereunder do not contravene or violate (i) its certificate or articles of incorporation or
by-laws (or equivalent organizational documents) or any shareholder agreements, voting trusts or
similar arrangements applicable to its authorized shares or other equity interests, (ii) any law,
rule or regulation applicable to it, (iii) any restrictions under any material agreement, contract
or instrument to which it is a party or by which it or any of its property is bound or (iv) any
order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and
do not result in the creation or imposition of any Adverse Claim on assets of such Seller Party or
its Subsidiaries (except as created hereunder); and no transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
d Governmental Authorization. Other than the filing of the financing statements required
hereunder, no authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution and delivery by such
Seller Party of this Agreement and each other Transaction Document to which it is a party and the
performance of its obligations hereunder and thereunder.
e Actions, Suits. There are no actions, suits or proceedings pending, or to the best of such
Seller Party’s knowledge, threatened, against or affecting such Seller Party, or any of its
properties, in or before any court, arbitrator or other body, that could reasonably be expected to
have a Material Adverse Effect. Such Seller Party is not in default with respect to any order of
any court, arbitrator or governmental body.
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f Binding Effect. This Agreement and each other Transaction Document to which such Seller
Party is a party constitute the legal, valid and binding obligations of such Seller Party
enforceable against such Seller Party in accordance with their respective terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors’ rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at law).
g Accuracy of Information. All information heretofore furnished by or on behalf of such Seller
Party or any of its Affiliates to the Agent or the Purchasers for purposes of or in connection with
this Agreement, any of the other Transaction Documents or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by or on behalf of such Seller Party or
any of its Affiliates to the Agent or the Purchasers will be, true and accurate in every material
respect on the date such information is stated or certified and does not and will not contain any
material misstatement of fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading in light of the circumstances made or presented.
h Use of Proceeds. No proceeds of any purchase hereunder will be used (i) for a purpose that
violates, or would be inconsistent with, Regulation T, U or X promulgated by the Board of Governors
of the Federal Reserve System from time to time or (ii) to acquire any security in any transaction
that is subject to Section 12, 13 or 14 of the Securities Exchange Act of 1934, as amended.
i Good Title. Immediately prior to each purchase hereunder, each Seller shall be the legal and
beneficial owner of the Receivables and Related Security with respect thereto, free and clear of
any Adverse Claim, except as created by the Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect each Seller’s ownership interest in
each of its Receivables, its Collections and the Related Security.
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j Perfection. This Agreement, together with the filing of the financing statements
contemplated hereby, is effective to, and shall, upon each purchase hereunder, transfer to the
Agent for the benefit of the relevant Purchaser or Purchasers (and the Agent for the benefit of
such Purchaser or Purchasers shall acquire from each Seller) a valid and perfected first priority
undivided percentage ownership or security interest in each Receivable existing or hereafter
arising and in the Related Security and Collections with respect thereto, free and clear of any
Adverse Claim, except as created by the Transactions Documents. There have been duly filed all
financing statements or other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect the Agent’s (on behalf of the
Purchasers) ownership or security interest in the Receivables, the Related Security and the
Collections.
k Jurisdiction of Organization; Places of Business, etc. Exhibit III correctly sets forth such
Seller Party’s legal name, jurisdiction of organization, Federal Employer’s Identification Number
and State Organizational Identification Number. Such Seller Party’s principal places of business
and chief executive office and the offices where such Seller Party keeps all of its Records are
located at the address(es) listed on Exhibit III, or such other locations of which the Agent has
been notified in accordance with Section 7.2(a) in jurisdictions where all action required by
Section 14.4(a) has been taken and completed. Such Seller Party has not within the period of six
months prior to the date hereof, (i) changed its location (as defined in Section 9-307 of the UCC),
except as set forth on Exhibit III or (ii) changed its legal name (except as set forth on Exhibit
III), corporate structure or become a “new debtor” (as defined in Section 9-102(a)(56) of the UCC)
with respect to a currently effective security agreement previously entered into by any other
Person. Each Seller is a Delaware limited partnership and is a “registered organization” (within
the meaning of Section 9-102 of the UCC in effect in the State of Delaware).
l Collections. The conditions and requirements set forth in Section 7.1(j) and Section 8.2
have at all times been satisfied and duly performed. The names and addresses of all Collection
Banks, together with the account numbers of the Collection Accounts of each Seller at each
Collection Bank and the post office
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box number of each Lock-Box, are listed on Exhibit IV. No
Seller has granted any Person, other than the Agent as contemplated by this Agreement, dominion and
control or “control” (within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions) of any Lock-Box or Collection Account, or the right to take dominion and control or
“control” (within the meaning of Section 9-104 of the UCC of all applicable jurisdictions) of any
such Lock-Box or Collection Account at a future time or upon the occurrence of a future event.
m Material Adverse Effect. (i) Each of the Initial Servicers represents and warrants that
since December 31, 1999, and each of the Additional Servicers represents and warrants that since
December 31, 2000, and each of the Xxxx Entities represents and warrants that since May 31, 2001,
and each of the Additional Entities represents and warrants that since December 31, 2002, and each
of the New Entities represents and warrants that since December 31, 2002, no event has occurred
that would have a material adverse effect on the financial condition or operations of such Servicer
and its Subsidiaries taken as a whole, or the ability of such Servicer to perform its obligations
under this Agreement, and (ii) Dairy Group represents and warrants that since June 30, 2000, and
Dairy Group II represents and warrants that since May 14, 2002, and Specialty Group represents and
warrants that since November 20, 2003, and National Brand Group represents and warrants that since
March 30, 2004, no event has occurred that would have a material adverse effect on (A) the
financial condition or operations of such Seller, (B) the ability of such Seller to perform its
obligations under the Transaction Documents or (C) the collectibility of the Receivables generally
or of any material portion of the Receivables.
n Names. In the past five (5) years, no Seller has used any corporate names, trade names or
assumed names other than the name in which it has executed this Agreement and, in the case of Dairy
Group, other than Suiza Receivables, L.P.
o Ownership of Sellers. (i) Suiza Dairy Group, Inc. and Provider own, directly or indirectly,
100% of the limited partnership interests and 99.9% of the partnership interests of Dairy Group,
free and clear of any Adverse Claim (except any Adverse Claim in favor of the Collateral Agent in
accordance with the Xxxx Credit Agreement). Dairy Group Receivables GP, LLC (f/k/a Suiza
Receivables GP, LLC) is the general partner of Dairy Group
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and owns, directly or indirectly, 100%
of the general partnership interests and 0.1% of the partnership interests of Dairy Group, free and
clear of any Adverse Claim (except any Adverse Claim in favor of the Collateral Agent in accordance
with the Xxxx Credit Agreement). There are no options or other rights to acquire any partnership
interest of Dairy Group. 100% of the membership interests of Dairy Group Receivables GP, LLC are
owned, directly or indirectly by Provider.
(ii) Xxxx Dairy Holdings, LLC and Provider own, directly or indirectly, 100% of the limited
partnership interests and 99.9% of the partnership interests of Dairy Group II, free and clear of
any Adverse Claim (except any Adverse Claim in favor of the Collateral Agent in accordance with the
Xxxx Credit Agreement). Dairy Group Receivables XX XX, LLC is the general partner of Dairy Group
II and owns, directly or indirectly, 100% of the general partnership interests and 0.1% of the
partnership interests of Dairy Group II, free and clear of any Adverse Claim (except any Adverse
Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement). There are no
options or other rights to acquire any partnership interest of Dairy Group II. 100% of the
membership interests of Dairy Group Receivables XX XX, LLC are owned, directly or indirectly by
Provider.
(iii) Xxxx Holding Company and Provider own, directly or indirectly, 100% of the limited
partnership interests and 99.9% of the partnership interests of Specialty Group, free and clear of
any Adverse Claim (except any Adverse Claim in favor of the Collateral Agent in accordance with the
Xxxx Credit Agreement). Specialty Group Receivables GP, LLC is the general partner of Specialty
Group and owns, directly or indirectly, 100% of the general partnership interests and 0.1% of the
partnership interests of Specialty Group, free and clear of any Adverse Claim (except any Adverse
Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement). There are no
options or other rights to acquire any partnership interest of Specialty Group. 100% of the
membership interests of Specialty Group Receivables GP, LLC are owned, directly or indirectly by
Provider.
(iv) National Brand and Provider own, directly or indirectly, 100% of the limited partnership
interests and 99.9% of the partnership interests of National Brand Group, free and clear of any
Adverse Claim (except any Adverse Claim in favor of the Collateral Agent in accordance with the
Xxxx Credit Agreement). Xxxx National Brand Group GP, LLC is the general partner of National Brand
Group and owns, directly or indirectly, 100% of the general
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partnership interests and 0.1% of the
partnership interests of National Brand Group, free and clear of any Adverse Claim (except any
Adverse Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement).
There are no options or other rights to acquire any partnership interest of National Brand Group.
100% of the membership interests of Xxxx National Brand Group GP, LLC are owned, directly or
indirectly by Provider.
p Not a Holding Company or an Investment Company. Such Seller Party is not a “holding company”
or a “subsidiary holding company” of a “holding company” within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or any successor statute. Such Seller Party is not an
“investment company” within the meaning of the Investment Company Act of 1940, as amended, or any
successor statute.
q Compliance with Law. Such Seller Party has complied in all respects with all applicable
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may
be subject, except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Each Receivable, together with any Writing or Contract related thereto,
does not contravene any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and privacy), and no
part of such Writing or Contract is in violation of any such law, rule or regulation.
r Compliance with Credit and Collection Policies. Such Seller Party has complied in all
material respects with its Credit and Collection Policy with regard to each Receivable and any
related Writing or Contract, and has not made any material change to such Credit and Collection
Policy, except such material change as to which the Agent has been notified in accordance with
Section 7.1(a)(vii).
s Payments to Originators. With respect to each Receivable transferred to the applicable
Seller by each Originator under the Receivables Sale Agreement to which it is a party, such Seller
has given reasonably equivalent value to such Originator in consideration therefor and such
transfer was not made for or on account of an antecedent debt. No transfer by any Originator of
any Receivable
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under any Receivables Sale Agreement is or may be voidable under any section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.
t Enforceability of Contracts. Each Contract, if any, with respect to each Receivable is
effective to create, and has created, a legal, valid and binding obligation of the related Obligor
to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors’ rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
u Eligible Receivables. Each Receivable included in the Net Receivables Balance as an Eligible
Receivable on the date of its purchase under the applicable Receivables Sale Agreement was an
Eligible Receivable on such purchase date.
v Net Receivables Balance. Each Seller has determined that, immediately after giving effect to
each purchase hereunder, the Net Receivables Balance is at least equal to the sum of (i) the
Aggregate Capital, plus (ii) the Aggregate Reserves.
w Accounting. The manner in which such Seller Party accounts for the transactions contemplated
by this Agreement and each Receivables Sale Agreement does not jeopardize the true sale
analysis.
20 Financial Institution Representations and Warranties . Each Financial Institution
hereby represents and warrants to the Agent and the Company in such Financial Institution’s
Purchaser Group that:
a Existence and Power. Such Financial Institution is a corporation or a banking association
duly organized, validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, and has all corporate power to perform its obligations
hereunder.
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b No Conflict. The execution and delivery by such Financial Institution of this Agreement and
the performance of its obligations hereunder are within its corporate powers, have been duly
authorized by all necessary corporate action, do not contravene or violate (i) its certificate or
articles of incorporation or association or by-laws, (ii) any law, rule or regulation applicable to
it, (iii) any restrictions under any material agreement, contract or instrument to which it is a
party or by which it or any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not result in the creation
or imposition of any Adverse Claim on its assets, except, in any case, where such contravention or
violation could not reasonably be expected to have a material adverse effect on (i) the financial
condition or operations of such Financial Institution, (ii) the ability of such Financial
Institution to perform its obligations under this Agreement or (iii) the legality, validity or
enforceability of this Agreement. This Agreement has been duly authorized, executed and delivered
by such Financial Institution.
c Governmental Authorization. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required for the due execution
and delivery by such Financial Institution of this Agreement and the performance of its obligations
hereunder, except that has already been received.
d Binding Effect. This Agreement constitutes the legal, valid and binding obligation of such
Financial Institution enforceable against such Financial Institution in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or limiting creditors’ rights generally and by general principles of
equity (regardless of whether such enforcement is sought in a proceeding in equity or at law).
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CONDITIONS OF PURCHASES
21 Conditions Precedent to Initial Incremental Purchase. The effectiveness of this
Agreement is subject to the conditions precedent that (a) the Agent shall have received on or
before the date hereof those documents listed on Schedule B and (b) the Agent and the Purchasers
shall have received all fees and expenses required to be paid on or prior to the date hereof
pursuant to the terms of this Agreement and the Fee Letters.
22 Conditions Precedent to All Purchases and Reinvestments. Each purchase of a Purchaser
Interest and each Reinvestment shall be subject to the further conditions precedent that (c) in the
case of each such purchase or Reinvestment: (i) the Servicers shall have delivered to the Agent on
or prior to the date of such purchase, in form and substance satisfactory to the Agent, all
Periodic Reports, including, without limitation, the most recent Periodic Report as and when due
under Section 8.5, and (ii) upon the Agent’s request, the Servicers shall have delivered to the
Agent at least three (3) days prior to such purchase or Reinvestment an interim Monthly Report
showing the amount of Eligible Receivables; (d) the Facility Termination Date shall not have
occurred; (c) the Agent shall have received such other approvals, opinions or documents as it may
reasonably request and (d) on the date of each such Incremental Purchase or Reinvestment, the
following statements shall be true (and acceptance of the proceeds of such Incremental Purchase or
Reinvestment shall be deemed a representation and warranty by Seller that such statements are then
true):
(i) the representations and warranties set forth in Section 5.1 are true and correct
on and as of the date of such Incremental Purchase or Reinvestment as though made on and as of such
date;
(ii) no event has occurred and is continuing, or would result from such Incremental Purchase
or Reinvestment, that will constitute an Amortization Event, and no event has occurred and is
continuing, or would result from such Incremental Purchase or Reinvestment, that would constitute a
Potential Amortization Event; and
(iii) the Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser
Interests do not exceed 100%.
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It is expressly understood that each Reinvestment shall, unless otherwise directed by the Agent or
any Purchaser, occur automatically on each day that any Servicer shall receive any Collections
without the requirement that any further action be taken on the part of any Person and
notwithstanding the failure of any Seller to satisfy any of the foregoing conditions precedent in
respect of such Reinvestment. The failure of any Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of the Agent, which right may
be exercised at any time on demand of the Agent, to rescind the related purchase and direct the
Sellers to pay to the Agent for the benefit of the Purchasers an amount equal to the Collections
prior to the Amortization Date that shall have been applied to the affected Reinvestment.
COVENANTS
23 Affirmative Covenants of the Seller Parties. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance with its
terms, each Seller Party hereby covenants, as to itself, as set forth below:
a Financial Reporting. Such Seller Party will maintain, for itself and each of its
Subsidiaries, a system of accounting established and administered in accordance with GAAP, and
furnish or cause to be furnished to the Agent and each Financial Institution:
(i)Annual Reporting. Within 90 days after the close of each of its respective fiscal
years, audited, unqualified consolidated financial statements (which shall include balance sheets,
statements of income and retained earnings and a statement of cash flows) for Provider for such
fiscal year certified in a manner acceptable to the Agent by independent public accountants
acceptable to the Agent.
Quarterly Reporting. Within 45 days after the close of the first three (3) quarterly periods of
each of its respective fiscal years, (A) consolidated balance sheets of Provider and its
Subsidiaries as at the close of each such period, (B) consolidated statements of income and
retained earnings and a statement of cash flows for Provider for the period from the beginning of
such fiscal year to the end of such quarter, (C) the balance sheet of each Seller as at the close
of each such period and (D) statements of income and retained earnings and a statement of cash
flows for each Seller, all certified by its respective chief financial officer or treasurer.
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Compliance Certificate. Together with the financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit V signed by an Authorized Officer of the Seller
Parties and dated the date of such annual financial statement or such quarterly financial
statement, as the case may be.
Shareholders Statements and Reports. Promptly upon the furnishing thereof to the shareholders of
such Seller Party, to the extent not available electronically, copies of all financial statements,
reports and proxy statements so furnished.
S.E.C. Filings. Promptly upon the filing thereof, to the extent not available electronically,
copies of all annual, quarterly, monthly or other regular reports that Provider or any of its
Subsidiaries files with the Securities and Exchange Commission.
Copies of Notices. Promptly upon its receipt of any notice, request for consent, financial
statements, certification, report or other communication under or in connection with any
Transaction Document from any Person other than the Agent, copies of the same.
Change in Credit and Collection Policies. At least thirty (30) days prior to the effectiveness of
any material change in or material amendment to any Credit and Collection Policy, a copy of such
Credit and Collection Policy then in effect and a notice (A) indicating such change or amendment,
and (B) if such proposed change or amendment would be reasonably likely to adversely affect the
collectibility of the Receivables or decrease the credit quality of any newly created Receivables,
requesting the Agent’s and the Required Purchasers’ consent thereto.
Copies of Xxxx Credit Agreement Amendments. Promptly after execution thereof, copies of each
amendment to the Xxxx Credit Agreement as in effect from time to time notwithstanding any language
to the contrary contained in the definition of “Xxxx Credit Agreement.”
Other Information. Promptly, from time to time, such other information, documents, records or
reports relating to the Receivables or the condition or operations, financial or otherwise, of such
Seller Party as the Agent may from time to time reasonably request in order to protect the
interests of the Agent and the Purchasers under or as contemplated by this Agreement.
b Notices. Such Seller Party will notify the Agent and each Financial Institution in
writing of any of the following promptly upon learning of the occurrence thereof, describing the
same and, if applicable, the steps being taken with respect thereto:
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Amortization Events or Potential Amortization Events. The occurrence of each Amortization
Event and each Potential Amortization Event, by a statement of an Authorized Officer of such Seller
Party.
Judgment and Proceedings. (A) (1) The entry of any judgment or decree against Provider or any
Servicer or any of its respective Subsidiaries if the aggregate amount of all judgments and decrees
then outstanding against Provider or such Servicer and its respective Subsidiaries could reasonably
be expected to have a Material Adverse Effect, and (2) the institution of any litigation,
arbitration proceeding or governmental proceeding against Provider that, if adversely determined,
could reasonably be expected to have a Material Adverse Effect, or against any Servicer; and (B)
the entry of any judgment or decree or the institution of any litigation, arbitration proceeding or
governmental proceeding against any Seller.
Material Adverse Effect. The occurrence of any event or condition that has had, or could
reasonably be expected to have, a Material Adverse Effect.
Termination Date. The occurrence of the “Termination Date” under and as defined in each
Receivables Sale Agreement.
Defaults Under Other Agreements. The occurrence of a default or an event of default under any
other financing arrangement pursuant to which such Seller Party is a debtor or an obligor that
could reasonably be expected to have a Material Adverse Effect.
c Compliance with Laws and Preservation of Corporate Existence. Such Seller Party will
comply in all respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject if noncompliance with any such law, rule,
regulation, order, writ, judgment, injunction, decree or award could reasonably be expected to have
a Material Adverse Effect. Such Seller Party will preserve and maintain its legal existence,
rights, franchises and privileges in the jurisdiction of its organization, and qualify and remain
qualified in good standing as a foreign entity in each jurisdiction where its business is
conducted, except where the failure to so qualify or remain qualified could not reasonably be
expected, either individually or in the aggregate, to have a Material Adverse Effect.
d Audits. Such Seller Party will furnish to the Agent (with the Agent providing copies thereof
to each Financial Institution, subject to the Agent
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receiving any necessary consents to disclosure)
from time to time such information with respect to it and the Receivables as the Agent or the
Required Purchasers may reasonably request. Such Seller Party will, from time to time during
regular business hours as requested by the Agent upon reasonable notice, permit the Agent, or its
agents or representatives (and shall cause each Originator) to permit the Agent or its agents or
representatives), (i) to examine and make copies of and abstracts from all Records in the
possession or under the control of such Person relating to the Receivables and the Related
Security, including, without limitation, the related Writings or Contracts, and (ii) to visit the
offices and properties of such Person for the purpose of examining such materials described in
clause (i) above, and to discuss matters relating to such Person’s financial condition or the
Receivables and the Related Security or any Person’s performance under any of the Transaction
Documents or any Person’s performance under the Writings or Contracts and, in each case, with any
of the officers or employees of any Seller Party having knowledge of such matters. All such
examinations and visits shall be at the sole cost of such Seller Party; provided, however, that (i)
for so long as no Amortization Event or Potential Amortization Event shall have occurred and be
continuing and (ii) the result of the immediately preceding examination and/or visit of such Seller
Party shall have been reasonably satisfactory to the Agent, such cost shall be borne by such Seller
Party not more than twice per calendar year in 2004 and once per calendar year thereafter (although
in no event shall the foregoing be construed to limit the Agent or its agents or representatives to
one such examination and/or visit during such calendar year period with respect to such Seller
Party, provided, that if the Agent or its agents or representatives fails to make any such
examination and/or visit during any calendar year period, any Financial Institution or its agent or
representatives may make such examination and/or visit in the Agent’s stead). Such Seller Party
agrees that one of the two audits to be completed in calender year 2004 shall be completed by March
31, 2004.
e Keeping and Marking of Records and Books.
The Servicers will (and will cause each Originator 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
immediate identification of each new Receivable and all Collections of and adjustments to each
existing Receivable). The Servicers will (and will cause each Originator to) give the Agent notice
of any material change in the administrative and operating procedures referred to in the previous
sentence.
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Such Seller Party will (and will cause each Originator to) (A) on or prior to June 30, 2000 with
respect to any Seller Party or Originator (other than GTL, Tuscan Dairies, each Xxxx Entity, each
Additional Entity, each New Entity, Dairy Group II, Specialty Group and National Brand Group), on
or prior to June 28, 2001 with respect to GTL and Tuscan Dairies, on or prior to December 21, 2001
with respect to any Seller Party or Originator that is a Xxxx Entity, on or prior to May 15, 2002
with respect to Dairy Group II, on or prior to November 20, 2003 with respect to Specialty Group
and any Originator that is an Additional Entity, and on and prior to the date hereof with respect
to National Brand Group and any Originator that is a New Entity xxxx its master data processing
records and other books and records relating to the Purchaser Interests with a legend, acceptable
to the Agent, describing the Purchaser Interests and (B) upon the request of the Agent following
the occurrence and during the continuance of an Amortization Event (x) xxxx each Writing or
Contract with a legend describing the Purchaser Interests and (y) deliver to the Agent all Writings
and Contracts (including, without limitation, all multiple originals of any such Writing or
Contract) relating to the Receivables.
f Compliance with Contracts and Credit and Collection Policies. Such Seller Party will
timely and fully (i) perform and comply with all provisions, covenants and other promises required
to be observed by it under the Contracts related to the Receivables, and (ii) comply in all
material respects with its respective Credit and Collection Policy in regard to each Receivable and
any related Contract.
g Performance and Enforcement of Receivables Sale Agreements. Each Seller will, and will
require each Originator party thereto to, perform each of their respective obligations and
undertakings under and pursuant to the Receivables Sale Agreement to which it is a party, will
purchase Receivables thereunder in strict compliance with the terms thereof and will vigorously
enforce the rights and remedies accorded to such Seller under such Receivables Sale Agreement.
Each Seller will take all actions to perfect and enforce its rights and interests (and the rights
and interests of the Agent and the Purchasers as assignees of Seller) under the Receivables Sale
Agreement to which it is a party as the Agent may from time to time reasonably request, including,
without limitation, making claims to which it may be entitled under any indemnity, reimbursement or
similar provision contained in such Receivables Sale Agreement.
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h Ownership. Each Seller will (or will cause each Originator to) take all necessary action to
(i) vest legal and equitable title to the Receivables, the Related Security and the Collections
purchased under the Receivables Sale Agreement to which it is a party irrevocably in such Seller,
free and clear of any Adverse Claims other than Adverse Claims in favor of the Agent and the
Purchasers (including, without limitation, the filing of all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect such Seller’s interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the interest of such
Seller therein as the Agent may reasonably request), and (ii) establish and maintain, in favor of
the Agent, for the benefit of the Purchasers, a valid and perfected first priority undivided
percentage ownership interest (and/or a valid and perfected first priority security interest) in
all Receivables, Related Security and Collections to the full extent contemplated herein, free and
clear of any Adverse Claims other than Adverse Claims in favor of the Agent for the benefit of the
Purchasers (including, without limitation, the filing of all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect the Agent’s (for the benefit of the Purchasers) interest in such
Receivables, Related Security and Collections and such other action to perfect, protect or more
fully evidence the interest of the Agent for the benefit of the Purchasers as the Agent may
reasonably request).
i (e)Purchasers’ Reliance. Each Seller acknowledges that the Purchasers are entering into the
transactions contemplated by this Agreement in reliance upon such Seller’s identity as a legal
entity that is separate from the Originators. Therefore, from and after June 30, 2000 (or, May 15,
2002, in the case of Dairy Group II, November 20, 2003, in the case of Specialty Group, and the
date hereof, in the case of National Brand Group), each Seller shall take all reasonable steps,
including, without limitation, all steps that the Agent or any Purchaser may from time to time
reasonably request, to maintain such Seller’s identity as a separate legal entity and to make it
manifest to third parties that such Seller is an entity with assets and liabilities distinct from
those of the Originators and any Affiliates thereof and not just a division of an Originator or any
such Affiliate. Without limiting the generality of the foregoing and in addition to the other
covenants set forth herein, each Seller will:
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conduct its own business in its own name and require that all full-time employees of such Seller,
if any, identify themselves as such and not as employees of any Originator or any Affiliate thereof
(including, without limitation, by means of providing appropriate employees with business or
identification cards identifying such employees as such Seller’s employees);
A compensate all employees, consultants and agents directly, from such Seller’s own funds, for
services provided to such Seller by such employees, consultants and agents and, to the extent any
employee, consultant or agent of such Seller is also an employee, consultant or agent of any
Originator or any Affiliate thereof, allocate the compensation of such employee, consultant or
agent between such Seller and Originator or such Affiliate, as applicable, on a basis that reflects
the services rendered to such Seller and such Originator or such Affiliate, as applicable;
B clearly identify its offices (by signage or otherwise) as its offices and, if such office is
located in the offices of any Originator or any Affiliate thereof, allocate fairly any overhead for
shared office space;
C have a separate telephone number or extension, which will be answered only in its name and
separate stationery, invoices and checks in its own name;
D conduct all transactions with the Originators and the Servicers (including, without limitation,
any delegation of its obligations hereunder as Servicers) strictly on an arm’s-length basis,
allocate all overhead expenses (including, without limitation, telephone and other utility charges)
for items shared between such Seller and each Originator (or any Affiliate thereof) on the basis of
actual use to the extent practicable and, to the extent such allocation is not practicable, on a
basis reasonably related to actual use;
E at all times have as its general partner a limited liability company having at least one
Independent Manager;
F observe all corporate and/or limited partnership formalities as a distinct entity, and ensure
that all corporate and/or limited partnership actions relating to (A) the selection, maintenance or
replacement
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of the general partner, (B) the dissolution or liquidation of such Seller or (C) the
initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency,
reorganization or similar proceeding involving Seller, are duly authorized by the Independent
Manager of the general partner;
G maintain such Seller’s books and records separate from those of each Originator and any Affiliate
thereof and otherwise readily identifiable as its own assets rather than assets of such Originator
and any Affiliate thereof;
H prepare its financial statements separately from those of each Originator and insure that any
consolidated financial statements of such Originator or any Affiliate thereof that include such
Seller and that are filed with the Securities and Exchange Commission or any other governmental
agency have notes clearly stating that such Seller is a separate corporate entity and that its
assets will be available first and foremost to satisfy the claims of the creditors of such Seller;
I except as herein specifically otherwise provided, maintain the funds or other assets of such
Seller separate from, and not commingled with, those of any Originator or any Affiliate thereof and
only maintain bank accounts or other depository accounts to which such Seller alone is the account
party and from which such Seller alone (or the Agent hereunder) has the sole power to make
withdrawals;
J pay all of such Seller’s operating expenses from such Seller’s own assets (except for certain
payments by the Originators or other Persons pursuant to allocation arrangements that comply with
the requirements of this Section 7.1(i));
K operate its business and activities such that: it does not engage in any business or activity of
any kind, or enter into any transaction or indenture, mortgage, instrument, agreement, contract,
lease or other undertaking, other than the transactions contemplated and authorized by this
Agreement and the Receivables Sale Agreement to which it is a party (it being understood that Dairy
Group, Dairy Group II, Specialty Group and National Brand Group may enter into the transactions
contemplated by the respective Demand Notes); and does not create, incur, guarantee, assume or
suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than (1)
as a result of the endorsement of
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negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, (2) the incurrence of obligations under this
Agreement, (3) the incurrence of obligations, as expressly contemplated in the Receivables Sale
Agreement to which it is a party, to make payment to each Originator thereunder for the purchase of
Receivables from any Originator under such Receivables Sale Agreement, and (4) the incurrence of
operating expenses in the ordinary course of business of the type otherwise contemplated by this
Agreement;
L maintain its limited partnership agreement in conformity with this Agreement, such that it does
not amend, restate, supplement or otherwise modify its limited partnership agreement in any respect
that would impair its ability to comply with the terms or provisions of any of the Transaction
Documents, including, without limitation, Section 7.1(i) of this Agreement;
M maintain the effectiveness of, and continue to perform under the Receivables Sale Agreement to
which it is a party (and, in the case of Dairy Group, Dairy Group II, Specialty Group and National
Brand Group, the respective Demand Notes), such that it does not amend, restate, supplement,
cancel, terminate or otherwise modify such Receivables Sale Agreement or the Demand Notes, or give
any consent, waiver, directive or approval under such Receivables Sale Agreement or the Demand
Notes, or waive any default, action, omission or breach under such Receivables Sale Agreement or
under the Demand Notes, or otherwise grant any indulgence under such Receivables Sale Agreement or
the Demand Notes, without (in each case) the prior written consent of the Agent and the Required
Purchasers;
N maintain its limited partnership separateness such that it does not merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series
of transactions, and except as otherwise contemplated herein) all or substantially all of its
assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the
assets of, any Person, nor at any time create, have, acquire, maintain or hold any interest in any
Subsidiary;
O maintain at all times the Required Capital Amount (as defined in the Receivables Sale Agreement
to which it is a party) and refrain from making any dividend, distribution, redemption of capital
stock or partnership interest or payment
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of any subordinated indebtedness that would cause such
Required Capital Amount to cease to be so maintained;
P take such other actions as are necessary on its part to ensure that the facts and assumptions set
forth in the opinion issued by Xxxxx Xxxxxxx & Xxxx LLP, as counsel for such Seller, in connection
with the closing or initial Incremental Purchase or initial Reinvestment under this Agreement and
relating to substantive consolidation issues, and in the certificates accompanying such opinion,
remain true and correct in all material respects at all times.
j Collections. Such Seller Party will cause (1) all proceeds from all Lock-Boxes to be
directly deposited by a Collection Bank into a Collection Account and (2) each Lock-Box and
Collection Account to be subject at all times to a Collection Account Agreement that is in full
force and effect. In the event any payments relating to Receivables are remitted directly to any
Seller or any Affiliate of any Seller, such Seller will (except as otherwise specified in Section
8.2(b)) remit (or will cause all such payments to be remitted) directly to a Collection Bank and
deposited into a Collection Account within two (2) Business Days following receipt thereof, and, at
all times prior to such remittance, such Seller will itself hold or, if applicable, will cause such
payments to be held in trust for the exclusive benefit of the Agent and the Purchasers. Each
Seller will maintain exclusive ownership, dominion and control (subject to the terms of this
Agreement) of each applicable Lock-Box and Collection Account and shall not grant the right to take
dominion and control or grant “control” (within the meaning of Section 9-104 of the UCC of all
applicable jurisdictions) of any such Lock-Box or Collection Account at a future time or upon the
occurrence of a future event to any Person, except to the Agent as contemplated by this Agreement.
k Taxes. Such Seller Party will file all tax returns and reports required by law to be filed
by it and will promptly pay all taxes and governmental charges at any time owing except, in the
case of each Seller Party other than the Sellers, for taxes not yet due or that are being
diligently contested in good faith by appropriate proceedings and that have been adequately
reserved against in accordance with GAAP. Each Seller will pay when due any taxes payable in
connection with the Receivables, exclusive of taxes on or measured by income or gross receipts of
any Company, the Agent or any Financial Institution.
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l Payment to Originators. With respect to any Receivable purchased by any Seller from any
Originator, such sale shall be effected under, and in strict compliance with the terms of, the
Receivables Sale Agreement to which such Seller is a party, including, without limitation, the
terms relating to the amount and timing of payments to be made to such Originator in respect of the
purchase price for such Receivable.
24 Negative Covenants of The Seller Parties. Until the date on which the Aggregate
Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance with its
terms, each Seller Party hereby covenants, as to itself, that:
a Name Change, Jurisdiction of Organization, Offices, Records and Books of Accounts. Such
Seller Party will not change its name, identity, corporate or other organizational structure or
jurisdiction of organization (within the meaning of Sections 9-503 and/or 9-507 of the UCC of all
applicable jurisdictions) or relocate its chief executive office, principal place of business or
any office where Records are kept unless it shall have: (i) given the Agent at least thirty (30)
days’ prior written notice thereof and (ii) delivered to the Agent all financing statements,
instruments and other documents requested by the Agent in connection with such change or
relocation.
b Change in Payment Instructions to Obligors. Except as may be required by Section 7.1(m) or
by the Agent pursuant to Section 8.2(b), such Seller Party will not add or terminate any bank as a
Collection Bank, or make any change in the instructions to Obligors regarding payments to be made
to any Lock-Box or Collection Account, unless the Agent shall have received, at least ten (10) days
before the proposed effective date therefor, (i) written notice of such addition, termination or
change and (ii) with respect to the addition of a Collection Bank or a Collection Account or
Lock-Box, an executed Collection Account Agreement acceptable to the Agent with respect to the new
Collection Account or Lock-Box; provided, however, that the Servicers may make changes in
instructions to Obligors regarding payments if such new instructions require such Obligor to make
payments to another existing Collection Account.
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c Modifications to Writings, Contracts and Credit and Collection Policies. Such Seller Party
will not, and will not permit any Originator to, make any change to such Originator’s Credit and
Collection Policy that could materially (either individually or in the aggregate) adversely affect
the collectibility of the Receivables or materially (either individually or in the aggregate)
decrease the credit quality of any newly created Receivables. Except as provided in Section
8.2(d), the Servicers will not, and will not permit any Originator to, extend, amend or otherwise
modify the terms of any Receivable or the Writing or Contract related thereto other than in
accordance with such Originator’s Credit and Collection Policy.
d Sales, Liens. No Seller will sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, or create or suffer to exist any Adverse Claim
upon (including, without limitation, the filing of any financing statement) or with respect to, any
Receivable, Related Security or Collections, or upon or with respect to the Writing or Contract
under which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to
receive income with respect thereto (other than, in each case, the creation of the interests
therein in favor of the Agent and the Purchasers provided for herein), and each Seller will defend
the right, title and interest of the Agent and the Purchasers in, to and under any of the foregoing
property, against all claims of third parties claiming through or under such Seller or any
Originator. No Seller will create or suffer to exist any mortgage, pledge, security interest,
encumbrance, lien, charge or other similar arrangement on any of its inventory, the financing or
lease of which gives rise to any Receivable. Notwithstanding this Section 7.2(d), so long as no
Amortization Event or Potential Amortization Event exists, the Sellers collectively may, at their
discretion and in a single transaction occurring on a single day, sell all of the Xxxxxxx
Receivables to White Wave, Inc., a Delaware corporation (“White Wave”); provided that no later than
3 Business Days after such sale, each Seller shall deliver to the Agent a certificate executed by
an Authorized Officer of such Seller (A) stating that, with respect to all Xxxxxxx Receivables sold
in such sale, (I) neither Seller nor any Servicer (in its capacity as Servicer hereunder) has made,
and neither Seller nor the Servicer (in its capacity as Servicer hereunder) will make, any
representations or warranties in connection with such sale of Xxxxxxx Receivables, (II) both before
and after giving effect to such sale, no Amortization Event or Potential Amortization Event exists,
(III) White Wave has, and will have, no recourse to the Seller or the assets of the Seller (other
than the Xxxxxxx Receivables subject to such sale), (IV) such sale is solely to (x) enable White
Wave to further sell such Xxxxxxx Receivables through an
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arm’s-length, fair market transaction to a
purchaser that is not an Affiliate of any Seller Party or Provider and (y) to receive advertising
trade credits in exchange for such Xxxxxxx Receivables, (V) such Xxxxxxx Receivables have been or
will be included as Charged-Off Receivables in at least one Monthly Report and (VI) White Wave has
given fair consideration and reasonably equivalent value to each Seller in consideration of such
sale of the Xxxxxxx Receivables, the cash purchase price for such Xxxxxxx Receivables is no less
than the fair market value to be paid to White Wave upon White Wave’s subsequent transfer of such
Xxxxxxx Receivables and the sale of such Xxxxxxx Receivables to White Wave was not made for or on
account of an antecedent debt, (B) setting forth the aggregate Outstanding Balance of all such
Xxxxxxx Receivables and (C) setting forth the aggregate purchase price paid for all such Xxxxxxx
Receivables. Upon any such sale of the Xxxxxxx Receivables in accordance with the terms of this
Section 7.2(d) and the Sellers’ receipt of the purchase price therefor in immediately available
funds in a Collection Account and Agent’s receipt of the certificate described above, such Xxxxxxx
Receivables shall be automatically released without any further action by any party hereto from the
security interest granted to the Agent for the ratable benefit of the Purchasers pursuant to
Section 14.14(b). For the avoidance of doubt, each party hereto agrees that the purchase price
paid upon any such sale of Xxxxxxx Receivables shall constitute Collections hereunder and shall be
applied in accordance with the terms hereof, including, without limitation, Article II.
e Net Receivables Balance. At no time prior to the Amortization Date shall any Seller permit
the Net Receivables Balance to be less than an amount equal to the sum of (i) the Aggregate Capital
plus (ii) the Aggregate Reserves.
f Termination Date Determination. No Seller will designate the Termination Date (as defined in
each Receivables Sale Agreement) under the Receivables Sale Agreement to which it is a party, or
send any written notice to any Originator in respect thereof, without the prior written consent of
the Agent and the Required Purchasers, except with respect to the occurrence of such Termination
Date arising pursuant to Section 5.1(d) of such Receivables Sale Agreement.
g Restricted Junior Payments. From and after the occurrence of any Amortization Event, no
Seller will make any Restricted Junior Payment if, after
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giving effect thereto, such Seller would
fail to meet its obligations set forth in Section 7.2(e).
h Demand Notes. At no time shall (i) Dairy Group cause or permit the aggregate outstanding
principal balance of its Demand Note to exceed $21,325,653, (ii) Dairy Group II cause or permit the
aggregate outstanding principal balance of its Demand Note to exceed $13,181,876, (iii) Specialty
Group cause or permit the aggregate outstanding principal balance of its Demand Note to exceed
$3,000,000, and (iv) National Brand Group cause or permit the aggregate outstanding balance of its
Demand Note to exceed $3,000,000.
ADMINISTRATION AND COLLECTION
25 Designation of Servicers. (a) The servicing, administration and collection of the
Receivables shall be conducted by such Person or Persons (each such Person, a “Servicer”) so
designated from time to time in accordance with this Section 8.1. Each of National Brand, Country
Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, each Xxxx Entity, each Additional Entity
and each New Entity is hereby designated as, and hereby agrees to perform the duties and
obligations of, Servicer pursuant to the terms of this Agreement with respect to the Receivables
originated by such entity. The Agent may, and at the direction of the Required Purchasers shall,
at any time following an Amortization Event, designate as Servicer any Person to succeed National
Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any Xxxx Entity, any
Additional Entity or any New Entity, or any successor Servicer.
Without the prior written consent of the Agent and the Required Purchasers, neither National
Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any Xxxx Entity, any
Additional Entity nor any New Entity shall be permitted to delegate any of its duties or
responsibilities as Servicer to any Person other than (i) a Seller and (ii) with respect to certain
Charged-Off Receivables, outside collection agencies in accordance with its customary practices.
No Seller shall be permitted to further delegate to any other Person any of the duties or
responsibilities of a Servicer delegated to it by National
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Brand, Country Fresh, Land-O-Sun,
Southern Foods, GTL, Tuscan Dairies, any Xxxx Entity, any Additional Entity or any New Entity. If
at any time following an Amortization Event the Agent shall designate as Servicer any Person other
than National Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any Xxxx
Entity, any Additional Entity or any New Entity, all duties and responsibilities theretofore
delegated by National Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any
Xxxx Entity, any Additional Entity or any New Entity to any Seller may, at the discretion of the
Agent, be terminated forthwith on notice given by the Agent to National Brand, Country Fresh,
Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any Xxxx Entity, any Additional Entity or any New
Entity, as applicable, and to the Administrative Seller.
Notwithstanding the foregoing subsection (b), (i) each of National Brand, Country Fresh,
Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, each Xxxx Entity, each Additional Entity and each
New Entity shall be and remain primarily liable to the Agent and the Purchasers for the full and
prompt performance of all of its duties and responsibilities as a Servicer hereunder and (ii) the
Agent and the Purchasers shall be entitled to deal exclusively with National Brand, Country Fresh,
Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, each Xxxx Entity, each Additional Entity and each
New Entity in matters relating to the discharge by a Servicer of its duties and responsibilities
hereunder. The Agent and the Purchasers shall not be required to give notice, demand or other
communication to any Person other than National Brand, Country Fresh, Land-O-Sun, Southern Foods,
GTL, Tuscan Dairies, each Xxxx Entity, each Additional Entity or each New Entity in order for
communication to a Servicer and its sub-servicer or other delegate with respect thereto to be
accomplished. Each of National Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan
Dairies, each Xxxx Entity, each Additional Entity and each New Entity, at all times that it is a
Servicer, shall be responsible for providing any sub-servicer or other delegate of a Servicer with
any notice given to a Servicer under this Agreement.
Duties of Servicer. (b) Each Servicer shall take or cause to be taken all such actions
as may be necessary or advisable to collect each Receivable originated by such entity from time to
time, all in accordance in all material respects with applicable laws, rules and regulations, with
reasonable care and diligence, and in accordance in all material respects with the applicable
Originator’s Credit and Collection Policy.
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Each Servicer will instruct all Obligors to pay all Collections with respect to the
Receivables originated by such entity directly to a Lock-Box or Collection Account; provided,
however, that to the extent that the Originator (other than a Local Originator) of the Receivable
giving rise to such Collections, as applicable, currently permits the Obligor of such Receivable to
pay such Collections to a local employee of such Originator, as applicable, such Servicer will
insure that such local employees remit such Collections to a local depository account no less
frequently than weekly, and within two (2) Business Days of such local employee’s deposit of such
Collections, such Servicer will cause such Collections to be deposited directly to a Lock-Box or
Collection Account. With respect to payments relating to Receivables that are remitted directly to
any Servicer, such Servicer will remit such payments (or will cause all such payments to be
remitted) directly to a Collection Bank and deposited into a Collection Account within two (2)
Business Days following receipt thereof, and, at all times prior to such remittance, such Servicer
will itself hold or, if applicable, will cause such payments to be held in trust for the exclusive
benefit of the Agent and the Purchasers. Each Servicer shall effect a Collection Account Agreement
substantially in the form of Exhibit VI with each bank party to a Collection Account at any time.
Prior to the delivery of any Collection Notice to any Collection Bank, in the case of any
remittances received in any Lock-Box or Collection Account that shall have been identified, to the
satisfaction of the applicable Servicer, to not constitute Collections or other proceeds of the
Receivables or the Related Security (which identification shall occur no later than two (2)
Business Days after such amounts are received therein), such Servicer shall promptly (and, in any
event, no later than one (1) Business Day after such identification) remit such items to the Person
identified to it as being the owner of such remittances and cause such amounts to be removed from
such Lock-Box or Collection Account. From and after the date the Agent delivers to any Collection
Bank a Collection Notice pursuant to Section 8.3, the Agent may request that the Servicers, and the
Servicers thereupon promptly shall instruct all Obligors with respect to the Receivables, to remit
all payments thereon to a new depositary account specified by the Agent and, at all times
thereafter, each Seller and the Servicers shall not deposit or otherwise credit, and shall not
permit any other Person to deposit or otherwise credit to such new depositary account any cash or
payment item other than Collections.
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The Servicers shall administer the Collections with respect to the Receivables originated by
each such entity in accordance with the procedures described herein and in Article II. The
Servicers shall set aside and hold in trust for the account of Seller and the Purchasers their
respective shares of the Collections in accordance with Article II. The Servicers shall, upon the
request of the Agent, segregate, in a manner acceptable to the Agent, all cash, checks and other
instruments received by it from time to time constituting Collections from the general funds of
each of the Servicers or the Sellers prior to the remittance thereof in accordance with Article II.
If the Servicers shall be required to segregate Collections pursuant to the preceding sentence,
the Servicers shall segregate and deposit with a bank designated by the Agent such allocable share
of Collections of Receivables set aside for the Purchasers on the second Business Day following
receipt by any Servicer of such Collections, duly endorsed or with duly executed instruments of
transfer.
The Servicers may, in accordance with the applicable Originator’s Credit and Collection Policy,
extend the maturity of any Receivable or adjust the Outstanding Balance of any Receivable as the
Servicers determine to be appropriate to maximize Collections thereof; provided, however, that such
extension or adjustment shall not alter the status of such Receivable as a Delinquent Receivable or
Charged-Off Receivable or limit the rights of the Agent or the Purchasers under this Agreement.
Notwithstanding anything to the contrary contained herein, upon the occurrence and during the
continuance of an Amortization Event and until such time as the Aggregate Unpaids have been
indefeasibly paid in full, the Agent shall have the absolute and unlimited right to direct the
Servicers to commence or settle any legal action with respect to any Receivable or to foreclose
upon or repossess any Related Security.
The Servicers shall hold in trust for the Sellers and the Purchasers all Records that (i)
evidence or relate to the Receivables, the related Writings and Contracts and Related Security or
(ii) are otherwise necessary or desirable to collect the Receivables and shall, as soon as
reasonably practicable upon demand of the Agent, deliver or make available to the Agent all such
Records, at a place selected by the Agent. The Servicers shall, as soon as reasonably practicable
following receipt thereof turn over to the Sellers any cash collections or other cash proceeds
received with respect to Indebtedness not constituting Receivables. The Servicers shall, from time
to time at the request of any Purchaser, furnish to the Purchasers (promptly after any such
request) a calculation of the amounts set aside for the Purchasers pursuant to Article II.
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Any payment by an Obligor in respect of any indebtedness owed by it to any Originator or any
Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or
law and unless otherwise instructed by the Agent, be applied as a Collection of any Receivable of
such Obligor (starting with the oldest such Receivable) to the extent of any amounts then due and
payable thereunder before being applied to any other receivable or other obligation of such
Obligor.
Collection Notices . The Agent is authorized at any time to date and to deliver to the
Collection Banks the Collection Notices. Each Seller hereby agrees that, effective when the Agent
delivers such notice, the Agent (for the benefit of the Purchasers) shall have exclusive ownership
and sole “control” (within the meaning of Section 9-104 of the UCC of all applicable jurisdictions)
of each Lock-Box, the Collection Accounts and the amounts on deposit therein. In case any
authorized signatory of any Seller whose signature appears on a Collection Account Agreement shall
cease to have such authority before the delivery of such notice, such Collection Notice shall
nevertheless be valid as if such authority had remained in force. Each Seller hereby authorizes
the Agent, and agrees that the Agent shall be entitled to (i) endorse such Seller’s name on checks
and other instruments representing Collections, (ii) enforce the Receivables, the related Writings
and Contracts and the Related Security and (iii) take such action as shall be necessary or
desirable to cause all cash, checks and other instruments constituting Collections of Receivables
to come into the possession of the Agent rather than the Sellers or any Servicer.
Responsibilities of the Sellers. Anything herein to the contrary notwithstanding, the exercise by
the Agent and the Purchasers of their rights hereunder shall not release the Servicers, the
Originators or any Seller from any of their duties or obligations with respect to any Receivables
or under the related Writings or Contracts. The Purchasers shall have no obligation or liability
with respect to any Receivables or related Writings or Contracts, nor shall any of them be
obligated to perform the obligations of any Seller.
Reports. The Servicers shall prepare and forward to the Agent and each Financial Institution (i)
on the 20th calendar day of each month and at such times as the Agent or the Required
Purchasers shall request, a Monthly Report and (ii) at such times as
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the Agent or the Required
Purchasers shall request, a listing by Obligor of all Receivables together with an aging of such
Receivables. In addition, during any time when the long-term debt rating of Provider is rated Ba3
or lower by Xxxxx’x Investors Service, Inc. and BB- or lower by Standard & Poor’s Ratings Group,
the Servicers shall prepare and forward to the Agent and each Financial Institution on Wednesday of
each calendar week, an abbreviated Monthly Report in a form acceptable to the Agent (each such
report, a “Weekly Report”) with respect to and as of the end of the immediately preceding calendar
week.
Servicing Fees. In consideration of each of National Brand’s, Country Fresh’s, Land-O-Sun’s,
Southern Foods’, GTL’s, Tuscan Dairies’, each Xxxx Entity’s, each Additional Entity’s and each New
Entity’s agreement to each act as a Servicer hereunder, the Purchasers hereby agree that, so long
as each of National Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, each
Xxxx Entity, each Additional Entity and each New Entity shall continue to perform as a Servicer
hereunder, Seller shall pay over to National Brand, Country Fresh, Land-O-Sun, Southern Foods, GTL,
Tuscan Dairies, each Xxxx Entity, each Additional Entity and each New Entity collectively, a fee
(the “Servicing Fee”) on each Settlement Date (other than a Settlement Date relating to a CP
(Tranche) Accrual Period) for the immediately preceding Settlement Period equal to 1% (one percent)
of the lesser of the (a) the average Net Receivables Balance during such Settlement Period and (b)
the average Capital of all Receivables during such period, as compensation for its servicing
activities. Such Servicing Fee shall be allocated among National Brand, Country Fresh, Land-O-Sun,
Southern Foods, GTL, Tuscan Dairies, each Xxxx Entity, each Additional Entity and each New Entity
as such parties shall mutually determine.
AMORTIZATION EVENTS
Amortization Events . The occurrence of any one or more of the following events shall
constitute an Amortization Event:
Any Seller Party shall fail (i) to make any payment or deposit of any amount consisting of
Capital required hereunder when due, or (ii) to make any payment or deposit of any other amount
required hereunder when due and such failure shall continue for two (2) consecutive Business Days,
or (iii) to perform or
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observe any term, covenant or agreement set forth in Section 7.2 hereof, or
(iv) to perform or observe any term, covenant or agreement set forth in Section 7.1(a)(iv),
(a)(v), (a)(viii) or (c)(second sentence only), and such failure shall continue for thirty (30)
consecutive days or (v) to perform or observe any other term, covenant or agreement hereunder
(other than as referred to in clauses (i), (ii), (iii) or (iv) of this paragraph (a)) and such
failure shall continue for five (5) consecutive Business Days.
Any representation, warranty, certification or statement made by any Seller Party in this
Agreement, any other Transaction Document or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect when made or deemed made.
Failure of any Seller to pay any Indebtedness when due or the failure of any other Seller Party
to pay Indebtedness when due in excess of $50,000,000 or the default by any Seller Party in the
performance of any term, provision or condition contained in any agreement under which any such
Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder
or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity or any such Indebtedness of any Seller Party shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity
thereof.
(i) Any Seller Party or Provider shall generally not pay its debts as such debts become due or
shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors, or (ii) any proceeding shall be
instituted by or against any Seller Party or Provider seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee or other similar official for it or any substantial part of its property or
(iii) any Seller Party or Provider shall take any corporate action to authorize any of the actions
set forth in clauses (i) or (ii) above in this subsection (d).
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Any Seller shall fail to comply with the terms of Section 2.6 hereof and such failure shall not
have been remedied within one Business Day.
(ii) As at the end of any calendar month, the average of the Default Ratios for the three most
recently-ended calendar months shall exceed 7.75%, or (ii) as at the end of any calendar month, the
average of the Dilution Ratios for the three most recently-ended calendar months shall exceed 4%,
or (iii) as at the end of any calendar month, the average of the Delinquency Ratios for the three
most recently-ended calendar months shall exceed 3.00%.
A Change of Control shall occur.
(i) One or more final judgments for the payment of money shall be entered against any Seller or
(ii) one or more final judgments for the payment of money in an amount in excess of $50,000,000,
individually or in the aggregate, shall be entered against any Servicer on claims not covered by
insurance or as to which the insurance carrier has denied its responsibility, and such judgment
shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of
execution.
The “Termination Date” under and as defined in any Receivables Sale Agreement shall occur under
any such Receivables Sale Agreement or any Seller or any Originator shall fail to observe any term
or condition of any Receivables Sale Agreement or shall waive its right to enforce the terms and
conditions of any Receivables Sale Agreement, or any Originator shall for any
reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be
incapable of transferring Receivables to any Seller under any Receivables Sale Agreement (other
than an Immaterial Originator which ceases to transfer Receivables subject to and in accordance
with Section 1.7 of any Receivables Sale Agreement).
This Agreement shall terminate in whole or in part (except in accordance with its terms), or
shall cease to be effective or to be the legally valid, binding and enforceable obligation of any
Seller, or any Obligor shall directly or indirectly contest in any manner such effectiveness,
validity, binding nature or
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enforceability, or the Agent for the benefit of the Purchasers shall
cease to have a valid and perfected first priority security interest in the Receivables, the
Related Security and the Collections with respect thereto and the Collection Accounts.
Provider shall fail to perform or observe any term, covenant or agreement required to be
performed by it under any Performance Undertaking, or any Performance Undertaking shall cease to be
effective or to be the legally valid, binding and enforceable obligation of Provider, or Provider
shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or
enforceability.
The Agreement of General Partner shall terminate in whole or in part or shall cease to be
effective or to be the legally valid, binding and enforceable obligation of the general partner of
Dairy Group or Dairy Group shall directly or indirectly contest in any manner such effectiveness,
validity, binding nature or enforceability, or the general partner of Dairy Group shall fail in any
respect to perform its obligations under the Agreement of General Partner.
(i) Provider shall fail to own, free and clear of any Adverse Claims, in the aggregate, either
directly or indirectly, 100% of the limited partnership interests of Dairy Group and 99.9% of the
partnership interests of Dairy Group, or Dairy Group Receivables GP, LLC (f/k/a Suiza Receivables
GP, LLC) shall fail to own, free and clear of any Adverse Claims (except any Adverse Claim in favor
of the Collateral Agent in accordance with the Xxxx Credit Agreement), 100% of the general
partnership interests of Dairy Group and 0.1% of the partnership interests of Dairy Group, or
Provider and Suiza
Dairy Group, Inc. shall fail to own, free and clear of any Adverse Claims (except any Adverse
Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement), in the
aggregate, either directly or indirectly, 100% of the membership interests of Dairy Group
Receivables GP, LLC.
(ii) Provider shall fail to own, free and clear of any Adverse Claims, in the aggregate,
either directly or indirectly, 100% of the limited partnership interests of Dairy Group II and
99.9% of the partnership interests of Dairy Group II, or Dairy Group Receivables XX XX, LLC shall
fail to own, free and clear of any Adverse Claims (except any Adverse Claim in favor of the
Collateral
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Agent in accordance with the Xxxx Credit Agreement), 100% of the general partnership
interests of Dairy Group II and 0.1% of the partnership interests of Dairy Group II, or Provider
and Xxxx Dairy Holdings, LLC shall fail to own, free and clear of any Adverse Claims (except any
Adverse Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement), in
the aggregate, either directly or indirectly, 100% of the membership interests of Dairy Group
Receivables XX XX, LLC.
(iii) Provider shall fail to own, free and clear of any Adverse Claims, in the aggregate,
either directly or indirectly, 100% of the limited partnership interests of Specialty Group and
99.9% of the partnership interests of Specialty Group, or Specialty Group Receivables GP, LLC shall
fail to own, free and clear of any Adverse Claims (except any Adverse Claim in favor of the
Collateral Agent in accordance with the Xxxx Credit Agreement), 100% of the general partnership
interests of Specialty Group and 0.1% of the partnership interests of Specialty Group, or Provider
and Xxxx Holding Company shall fail to own, free and clear of any Adverse Claims (except any
Adverse Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement), in
the aggregate, either directly or indirectly, 100% of the membership interests of Specialty Group
Receivables GP, LLC.
(iv) Provider shall fail to own, free and clear of any Adverse Claims, in the aggregate,
either directly or indirectly, 100% of the limited partnership interests of National Brand Group
and 99.9% of the partnership interests of National Brand Group, or Xxxx National Brand Group GP,
LLC shall fail to own, free and clear of any Adverse Claims (except any Adverse Claim in favor of
the Collateral Agent in accordance with the Xxxx Credit Agreement), 100% of the general partnership
interests of National Brand Group and 0.1% of the partnership interests of National Brand Group, or
Provider and National Brand shall fail to own, free and clear of any Adverse Claims (except any
Adverse Claim in favor of the Collateral Agent in accordance with the Xxxx Credit Agreement), in
the aggregate,
either directly or indirectly, 100% of the membership interests of Xxxx National Brand Group
GP, LLC.
Provider shall fail to comply with the Xxxx Financial Covenants.
Remedies. Upon the occurrence and during the continuation of an Amortization Event, the Agent may,
or upon the direction of the Required Purchasers shall, take any of the following actions: (i)
replace any Person then acting as Servicer, (ii)
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declare the Amortization Date to have occurred,
whereupon the Amortization Date shall forthwith occur, without demand, protest or further notice of
any kind, all of which are hereby expressly waived by each Seller Party; provided, however, that
(A) upon the occurrence of an Amortization Event described in Section 9.1(d)(ii), or of an actual
or deemed entry of an order for relief with respect to any Seller Party under the Federal
Bankruptcy Code, the Amortization Date shall automatically occur, without demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Seller Party and (B) upon the
occurrence of an Amortization Event described in Section 9.1(a), 9.1(d) or 9.1(e), by three (3)
Business Days’ notice to the Agent, each other Purchaser and the Administrative Seller, the
affected Financial Institution in the case of a Section 9.1(a) Amortization Event and any Financial
Institution in the case of a Section 9.1(d) or 9.1(e) Amortization Event may terminate its
Commitment hereunder, whereupon such Financial Institution shall be deemed to be a “Terminating
Financial Institution” for all purposes hereof, (iii) to the fullest extent permitted by applicable
law, declare that the Default Fee shall accrue with respect to any of the Aggregate Unpaids
outstanding at such time, (iv) deliver the Collection Notices to the Collection Banks, (v) notify
Obligors of the Purchasers’ interest in the Receivables, and (vi) notify Provider of the
Purchaser’s interest in the Demand Notes, make demand for any and all payments due thereunder and
direct that such payments be made directly to the Agent or its designee. The aforementioned rights
and remedies shall be without limitation, and shall be in addition to all other rights and remedies
of the Agent and the Purchasers otherwise available under any other provision of this Agreement, by
operation of law, at equity or otherwise, all of which are hereby expressly preserved, including,
without limitation, all rights and remedies provided under the UCC, all of which rights shall be
cumulative.
INDEMNIFICATION
Indemnities by the Seller Parties. Without limiting any other rights that the Agent, any
Purchaser, any Funding Source or any of their respective Affiliates may have hereunder or under
applicable law, (A) each Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each
Purchaser, each Funding Source and their respective Affiliates, assigns, officers, directors and
employees (each an “Indemnified Party”) from and against any and all damages, losses, claims,
taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable
attorneys’ fees (which attorneys may be employees of any Indemnified Party) and
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disbursements (all
of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or
incurred by any of them arising out of or as a result of this Agreement, or the use of the proceeds
of any purchase hereunder, or the acquisition, funding or ownership, either directly or indirectly,
by a Purchaser or a Funding Source of a Purchaser Interest or of an interest in the Receivables, or
any Receivable or any Contract or any Writing, or any action of any Seller Party, any Originator or
any Affiliate of any of the foregoing and (B) the Servicers hereby agree to indemnify (and pay upon
demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of
them arising out of any Servicer’s activities as Servicer hereunder excluding, however, in all of
the foregoing instances under the preceding clauses (A) and (B):
Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds
that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of
the Indemnified Party seeking indemnification;
Indemnified Amounts to the extent the same includes losses in respect of Receivables that are
uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related
Obligor; or
franchise taxes and taxes imposed by the jurisdiction in which such Indemnified Party’s principal
executive office is located, on or measured by the overall net income of such Indemnified Party to
the extent that the computation of such taxes is consistent with the characterization for income
tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the
Purchasers to the Sellers secured by the Receivables, the Related Security, the Collection Accounts
and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Seller Party or limit the recourse of the Purchasers to any Seller Party for
amounts otherwise specifically provided to be paid by such Seller Party under the terms of this
Agreement. Without limiting the generality of the foregoing indemnification, each Seller shall
indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in
respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute
recourse to any Seller or any Servicer) relating to or resulting from:
any representation or warranty made by any Seller Party or any Originator in its capacity as
seller under any Receivables Sale Agreement (or any officers of any such Person) under or in
connection with this Agreement, any other Transaction Document or any other information or report
delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect
when made or deemed made;
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the failure by any Seller, any Servicer, any Originator to comply with any applicable law, rule or
regulation with respect to any Receivable or Writing or Contract related thereto, or the
nonconformity of any Receivable or Writing or Contract included therein with any such applicable
law, rule or regulation or any failure of any Originator to keep or perform any of its obligations,
express or implied, with respect to the Writing or Contract;
any failure of any Seller, any Servicer, any Originator to perform its duties, covenants or other
obligations in accordance with the provisions of this Agreement or any other Transaction Document;
any products liability, personal injury or damage suit, or other similar claim arising out of or in
connection with merchandise, insurance or services that are the subject of any Writing or Contract
or any Receivable;
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 Writing or 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 the merchandise or service related to such Receivable or the furnishing or failure
to furnish such merchandise or services;
the commingling of Collections of Receivables at any time with other funds;
any investigation, litigation or proceeding related to or arising from this Agreement or any other
Transaction Document, the transactions contemplated hereby, the use of the proceeds of an
Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other
investigation, litigation or proceeding relating to any Seller, any Servicer, any Originator in
which any Indemnified Party becomes involved as a result of any of the transactions contemplated
hereby;
any inability to litigate any claim against any Obligor in respect of any Receivable as a result of
such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or
otherwise from any legal action, suit or proceeding;
any Amortization Event described in Section 9.1(d);
any failure of any Seller to acquire and maintain legal and equitable title to, and ownership of
any Receivable and the Related Security and Collections with respect thereto from the applicable
Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure
of any Seller to give reasonably equivalent value to applicable Originator under the Receivables
Sale Agreement to which it is a party in consideration of the transfer thereunder by such
Originator of any Receivable or any attempt by any Person to void such transfer under statutory
provisions or common law or equitable action;
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any failure to vest and maintain vested in the Agent for the benefit of the Purchasers, or to
transfer to the Agent for the benefit of the Purchasers, legal and equitable title to, and
ownership of, a first priority perfected undivided percentage ownership interest (to the extent of
the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the
Related Security and the Collections, free and clear of any Adverse Claim (except as created by the
Transaction Documents);
the failure to have filed, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivable, the Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any
subsequent time;
any action or omission by any Seller Party that reduces or impairs the rights of the Agent or the
Purchasers with respect to any Receivable or the value of any such Receivable;
any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under
statutory provisions or common law or equitable action; and
the failure of any Receivable included in the calculation of the Net Receivables Balance as an
Eligible Receivable to be an Eligible Receivable at the time so included.
Increased Cost and Reduced Return.
If after June 30, 2000 with respect to any Funding Source relating to the Bank
One Company, after the Original Closing Date with respect to any Funding Source relating to the
CL Company, after November 20, 2003 with respect to any Funding Source relating to the Rabo Company
or the Wachovia Company, or after the date hereof with respect to any other Funding Source, any
such Funding Source shall be charged any fee, expense or increased cost on account of the adoption
of any applicable law, rule or regulation (including any applicable law, rule or regulation
regarding capital adequacy), any accounting principles or any change in any of the foregoing, or
any change in the interpretation or administration thereof by the Financial Accounting Standards
Board (“FASB”), any governmental authority, any central bank or comparable agency charged with the
interpretation or administration thereof, or compliance with any request or directive (whether or
not having the force of law) of any such authority or agency (a “Regulatory Change”): (i) that
subjects any Funding Source to any charge or withholding on or with respect to any Funding
Agreement or a Funding Source’s obligations under a Funding
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Agreement, or on or with respect to the
Receivables, or changes the basis of taxation of payments to any Funding Source of any amounts
payable under any Funding Agreement (except for changes in the rate of tax on the overall net
income of a Funding Source or taxes excluded by Section 10.1) or (ii) that imposes, modifies or
deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of a Funding Source, or credit extended by a
Funding Source pursuant to a Funding Agreement or (iii) that imposes any other condition the result
of which is to increase the cost to a Funding Source of performing its obligations under a Funding
Agreement, or to reduce the rate of return on a Funding Source’s capital as a consequence of its
obligations under a Funding Agreement, or to reduce the amount of any sum received or receivable by
a Funding Source under a Funding Agreement or to require any payment calculated by reference to the
amount of interests or loans held or interest received by it, then, upon demand by the Agent, each
Seller shall pay to the Agent, for the benefit of the relevant Funding Source, such amounts charged
to such Funding Source or such amounts to otherwise compensate such Funding Source for such
increased cost or such reduction. For the avoidance of doubt, if the issuance of FASB
Interpretation No. 46, or any other change in accounting standards or the issuance of any other
pronouncement, release or interpretation, causes or requires the consolidation of all or a portion
of the assets and liabilities of any Company or any Seller with the assets and liabilities of the
Agent, any Financial Institution or any other Funding Source, such event shall constitute a
circumstance on which such Funding Source may base a claim for reimbursement under this
Section.
If less than all of the Financial Institutions are subject to any Regulatory Change giving rise
to a demand by the Agent pursuant to Section 10.2(a), each Financial Institution so subject, at the
request of the Administrative Seller, the Company in such Financial Institution’s Purchaser Group
or the Agent, shall assign all of its rights and obligations hereunder to (i) another Financial
Institution in such Financial Institution’s Purchaser Group or (ii) another funding entity
nominated by the Administrative Seller or the Agent that is acceptable to the Company in such
Financial Institution’s Purchaser
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Group and willing to participate in this Agreement through the
Liquidity Termination Date in the place of such notifying Financial Institution and that is not so
subject; provided that (i) the subject Financial Institution receives payment in full, pursuant to
an Assignment Agreement, of an amount equal to such notifying Financial Institution’s Pro Rata
Share of the Capital and Yield owing to all of the Financial Institutions in such Financial
Institution’s Purchaser Group and all accrued but unpaid fees and other costs and expenses payable
in respect of its Pro Rata Share of the Purchaser Interests of the Financial Institutions in such
Financial Institution’s Purchaser Group, and (ii) the replacement Financial Institution otherwise
satisfies the requirements of Section 12.1(b).
Other Costs and Expenses. Each Seller shall reimburse the Agent and each Purchaser on demand for
all costs and out-of-pocket expenses in connection with the preparation, execution, delivery and
administration of this Agreement, the transactions contemplated hereby and the other documents to
be delivered hereunder, including without limitation, the cost of any Purchaser’s auditors auditing
the books, records and procedures of any Seller Party, reasonable fees and out-of-pocket expenses
of legal counsel for each Purchaser and the Agent (which such counsel may be employees of any
Purchaser or the Agent) with respect thereto and with respect to advising any Purchaser or the
Agent as to their respective rights and remedies under this Agreement. Each Seller shall reimburse
the Agent on demand for any and all costs and expenses of the Agent and the Purchasers, if any,
including reasonable counsel fees and expenses in connection with the enforcement of this Agreement
and the other documents delivered hereunder and in connection with any restructuring or workout of
this Agreement or such documents, or the administration of this Agreement following an Amortization
Event. Each Seller shall reimburse each Company on demand for all other costs and expenses
incurred by such Company (“Other Costs”), including, without limitation, the cost of auditing such
Company’s books by certified public accountants, the cost of rating the Commercial Paper by
independent financial rating
agencies, and the reasonable fees and out-of-pocket expenses of counsel for such Company or any
counsel for any shareholder of such Company with respect to advising such Company or such
shareholder as to matters relating to such Company’s operations.
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Allocations. Each Company shall allocate the liability for Other Costs among the Sellers and other
Persons with whom such Company has entered into agreements to purchase interests in receivables
(“Other Sellers”). If any Other Costs are attributable to the Sellers and not attributable to any
Other Seller, the Sellers shall be solely liable for such Other Costs. However, if Other Costs are
attributable to Other Sellers and not attributable to the Sellers, such Other Sellers shall be
solely liable for such Other Costs. All allocations to be made pursuant to the foregoing
provisions of this Article X shall be made by the applicable Company in its sole discretion and
shall be binding on the Sellers and the Servicers.
THE AGENT
Authorization and Action. Each Purchaser hereby designates and appoints Bank One to act as
its agent hereunder and under each other Transaction Document, and authorizes the Agent to take
such actions as agent on its behalf and to exercise such powers as are delegated to the Agent by
the terms of this Agreement and the other Transaction Documents together with such powers as are
reasonably incidental thereto. The Agent shall not have any duties or responsibilities, except
those expressly set forth herein or in any other Transaction Document, or any fiduciary
relationship with any Purchaser, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of the Agent shall be read into this Agreement or any other
Transaction Document or otherwise exist for the Agent. In performing its functions and duties
hereunder and under the other Transaction Documents, the Agent shall act solely as agent for the
Purchasers and does not assume nor shall be deemed to have assumed any obligation or relationship
of trust or agency with or for any Seller Party or any of such Seller Party’s successors or
assigns. The Agent shall not be required to take any action that exposes the Agent to personal
liability or that is contrary to this Agreement, any other Transaction Document or applicable law.
The appointment
and authority of the Agent hereunder shall terminate upon the indefeasible payment in full of all
Aggregate Unpaids. Each Purchaser hereby authorizes the Agent to execute each of the Uniform
Commercial Code financing statements on behalf of such Purchaser (the terms of which shall be
binding on such Purchaser).
Delegation of Duties. The Agent may execute any of its duties under this Agreement and each other
Transaction Document by or through agents or
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attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
Exculpatory Provisions. Neither the Agent nor any of its directors, officers, agents or employees
shall be (i) liable for any action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Transaction Document (except for its, their or such
Person’s own gross negligence or willful misconduct), or (ii) responsible in any manner to any of
the Purchasers for any recitals, statements, representations or warranties made by any Seller Party
contained in this Agreement, any other Transaction Document or any certificate, report, statement
or other document referred to or provided for in, or received under or in connection with, this
Agreement, or any other Transaction Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, or any other Transaction Document or
any other document furnished in connection herewith or therewith, or for any failure of any Seller
Party to perform its obligations hereunder or thereunder, or for the satisfaction of any condition
specified in Article VI, or for the perfection, priority, condition, value or sufficiency of any
collateral pledged in connection herewith. The Agent shall not be under any obligation to any
Purchaser to ascertain or to inquire as to the observance or performance of any of the agreements
or covenants contained in, or conditions of, this Agreement or any other Transaction Document, or
to inspect the properties, books or records of the Seller Parties. The Agent shall not be deemed
to have knowledge of any Amortization Event or Potential Amortization Event unless the Agent has
received notice from a Seller or a Purchaser.
Reliance by Agent. The Agent shall in all cases be entitled to rely, and shall be fully protected
in relying, upon any document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Sellers), independent accountants and other
experts selected by the Agent. The Agent shall in all cases be fully justified in failing or
refusing to take any action under this Agreement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Required Purchasers or all of the Purchasers, as
applicable, as it deems appropriate and it shall first be indemnified to its satisfaction by the
Financial Institutions, provided that unless and until the Agent shall have received such advice,
the Agent may take or refrain from taking any action, as the Agent shall deem advisable and in the
best interests of the Purchasers. The Agent shall in all cases be fully protected in acting, or in
refraining
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from acting, in accordance with a request of the Required Purchasers or all of the
Purchasers, as applicable, and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Purchasers.
Non-Reliance on Agent and Other Purchasers. Each Purchaser expressly acknowledges that neither the
Agent, nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the Agent hereafter taken,
including, without limitation, any review of the affairs of any Seller Party, shall be deemed to
constitute any representation or warranty by the Agent. Each Purchaser represents and warrants to
the Agent that it has and will, independently and without reliance upon the Agent or any other
Purchaser and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property, prospects, financial and
other conditions and creditworthiness of any Seller and made its own decision to enter into this
Agreement, the other Transaction Documents and all other documents related hereto or thereto.
Reimbursement and Indemnification. The Financial Institutions agree to reimburse and indemnify the
Agent and its officers, directors, employees, representatives and agents, ratably based on the
ratio of each Financial Institution’s Commitment to the aggregate Commitment, to the extent not
paid or reimbursed by the Seller Parties (i) for any amounts for which the
Agent, acting in its capacity as Agent, is entitled to reimbursement by the Seller Parties
hereunder and (ii) for any other expenses incurred by the Agent, in its capacity as Agent and
acting on behalf of the Purchasers, in connection with the administration and enforcement of this
Agreement and the other Transaction Documents; provided that the Agent shall not be entitled to any
indemnity or reimbursement under this Section 11.6 for any expenses resulting from the gross
negligence or willful misconduct of the Agent, as determined by a final and non-appealable judgment
rendered by a court of competent jurisdiction.
Agent in Its Individual Capacity . The Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any Seller or any Affiliate of any
Seller as though the Agent were not the Agent hereunder. With respect to the acquisition of
Purchaser Interests pursuant to this Agreement,
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the Agent shall have the same rights and powers
under this Agreement in its individual capacity as any Purchaser and may exercise the same as
though it were not the Agent, and the terms “Financial Institution,” “Related Financial
Institution,” “Purchaser,” “Financial Institutions,” “Related Financial Institutions,” and
“Purchasers” shall include the Agent in its individual capacity.
Successor Agent. The Agent may, upon five days’ notice to the Administrative Seller and the
Purchasers, and the Agent will, upon the direction of all of the Purchasers (other than the Agent,
in its individual capacity) resign as Agent. If the Agent shall resign, then the Required
Purchasers during such five-day period shall appoint, with the consent of the Administrative
Seller, such consent not to be unreasonably withheld or delayed, from among the Purchasers a
successor agent. If for any reason no successor Agent is appointed by the Required Purchasers
during such five-day period, then effective upon the termination of such five day period, the
Purchasers shall perform all of the duties of the Agent hereunder and under the other Transaction
Documents and the Sellers and the Servicers (as applicable) shall make all payments in respect of
the Aggregate Unpaids directly to the applicable Purchasers and for all purposes shall deal
directly with the Purchasers. After the effectiveness of any retiring Agent’s resignation
hereunder as Agent, the retiring
Agent shall be discharged from its duties and obligations hereunder and under the other Transaction
Documents and the provisions of this Article XI and Article X shall continue in effect for its
benefit with respect to any actions taken or omitted to be taken by it while it was Agent under
this Agreement and under the other Transaction Documents.
ASSIGNMENTS; PARTICIPATIONS
Assignments. (c) Each Seller Party, the Agent and each Purchaser hereby agree and consent to
the complete or partial assignment by any Company of all or any portion of its rights under,
interest in, title to and obligations under this Agreement to any Funding Source pursuant to any
Funding Agreement or to any other Person, and upon such assignment, such Company shall be released
from its obligations so assigned. Further, each Seller Party, the Agent and each Purchaser hereby
agree that any assignee of any Company of this Agreement or of all or any of the Purchaser
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Interests of any Company shall have all of the rights and benefits under this Agreement as if the
term “Company” explicitly referred to and included such party (provided that (i) the Purchaser
Interests of any such assignee that is a Company or a commercial paper conduit shall accrue CP
Costs based on such Company’s Company Costs or on such commercial paper conduit’s cost of funds,
respectively, and (ii) the Purchaser Interests of any other such assignee shall accrue Yield
pursuant to Section 4.1), and no such assignment shall in any way impair the rights and benefits of
any Company hereunder. Neither any Seller nor any Servicer shall have the right to assign its
rights or obligations under this Agreement.
Any Financial Institution may at any time and from time to time assign to one or more Persons
(“Purchasing Financial Institutions”) all or any part of its rights and obligations under this
Agreement pursuant to an assignment agreement, substantially in the form set forth in Exhibit VII
hereto (the “Assignment Agreement”) executed by such Purchasing Financial Institution and such
selling Financial Institution. The consent of the Company in such selling Financial Institution’s
Purchaser Group and the consent of the Administrative Seller shall be required prior to the
effectiveness of any such assignment; provided, however, that in the event the Administrative
Seller fails to consent to any proposed Purchasing Financial Institution during the thirty
(30) day period following the Administrative Seller’s initial receipt of a request for its
consent to any such assignment, only the consent of the Company in such selling Financial
Institution’s Purchaser Group shall thereafter be required with respect to any such assignment.
Each assignee of a Financial Institution must (i) have a short-term debt rating of A-1 or better by
Standard & Poor’s Ratings Group and P-1 by Xxxxx’x Investor Service, Inc. and (ii) agree to deliver
to the Agent, promptly following any request therefor by the Agent or the Company in such selling
Financial Institution’s Purchaser Group, an enforceability opinion in form and substance
satisfactory to the Agent and such Company (such opinion may be delivered by in-house counsel of
such assignee). Upon delivery of the executed Assignment Agreement to the Agent, such selling
Financial Institution shall be released from its obligations hereunder to the extent of such
assignment. Thereafter the Purchasing Financial Institution shall for all purposes be a Financial
Institution party to this Agreement and shall have all the rights and obligations of a Financial
Institution (including, without limitation, the applicable obligations of a Related Financial
Institution) under this Agreement to the same extent as if it were an original party hereto and no
further consent or action by any Seller, the Purchasers or the Agent shall be required.
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Each of the Financial Institutions agrees that in the event that it shall cease to have a
short-term debt rating of A-1 or better by Standard & Poor’s Ratings Group and P-1 by Xxxxx’x
Investor Service, Inc. (or, solely in the case of CLNY, a short-term debt rating of A-2 or better
by Standard & Poor’s Ratings Group and P-2 by Xxxxx’x Investor Service, Inc.) (an “Affected
Financial Institution”), such Affected Financial Institution shall be obliged, at the request of
the Company in such Affected Financial Institution’s Purchaser Group or the Agent, to assign all of
its rights and obligations hereunder to (x) another Financial Institution in such Affected
Financial Institution’s Purchaser Group or (y) another funding entity nominated by the Agent and
acceptable to the Company in such Affected Financial Institution’s Purchaser Group, and willing to
participate in this Agreement through the Liquidity Termination Date in the place of such Affected
Financial Institution; provided that the Affected Financial Institution receives payment in full,
pursuant to an Assignment Agreement, of an amount equal to such Financial Institution’s Pro Rata
Share of the Aggregate Capital and Yield owing to the Financial Institutions in such Affected
Financial Institution’s Purchaser Group and all accrued but unpaid fees and other costs and
expenses payable in respect of its Pro Rata Share of the Purchaser Interests of the Financial
Institutions in such Affected Financial Institution’s Purchaser Group.
Participations. Any Financial Institution may, in the ordinary course of its business at
any time sell to one or more Persons (each a “Participant”) participating interests in its
Pro Rata Share of the Purchaser Interests of the Financial Institutions in such Financial
Institution’s Purchaser Group or any other interest of such Financial Institution hereunder.
Notwithstanding any such sale by a Financial Institution of a participating interest to a
Participant, such Financial Institution’s rights and obligations under this Agreement shall remain
unchanged, such Financial Institution shall remain solely responsible for the performance of its
obligations hereunder, and each Seller, each Company and the Agent shall continue to deal solely
and directly with such Financial Institution in connection with such Financial Institution’s rights
and obligations under this Agreement. Each Financial Institution agrees that any agreement between
such Financial Institution and any such Participant in respect of such participating interest shall
not restrict such Financial Institution’s right to agree to any amendment, supplement, waiver or
modification to this Agreement, except for any amendment, supplement, waiver or modification
described in Section 14.1(b)(i).
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INTENTIONALLY OMITTED
MISCELLANEOUS
Waivers and Amendments. (d) No failure or delay on the part of the Agent or any Purchaser in
exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude any other further
exercise thereof or the exercise of any other power, right or remedy. The rights and remedies
herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law.
Any waiver of this Agreement shall be effective only in the specific instance and for the specific
purpose for which given.
No provision of this Agreement may be amended, supplemented, modified or
waived except in writing in accordance with the provisions of this Section 14.1(b). Each
Company, each Seller and the Agent, at the direction of the Required Purchasers, may enter into
written modifications or waivers of any provisions of this Agreement, provided, however, that with
respect to any modification or waiver, the Rating Agencies then rating the commercial paper notes
of the Rabo Company and the CL Company shall have confirmed that the ratings of the commercial
paper notes of the Rabo Company and the CL Company will not be downgraded or withdrawn as a result
of such modification or waiver; and provided, further, that no such modification or waiver shall:
without the consent of each affected Purchaser, (A) extend the Liquidity Termination Date or
the date of any payment or deposit of Collections by any Seller or any Servicer, (B) reduce the
rate or extend the time of payment of Yield or any CP Costs (or any component of Yield or CP
Costs), (C) reduce any fee payable to the Agent for the benefit of the Purchasers, (D) except
pursuant to Article XII hereof, change the amount of the Capital of any Purchaser, any
Financial Institution’s Pro Rata Share, any Company’s Pro Rata Share, any Financial Institution’s
Commitment or any Company’s Company Purchase Limit (other than, to the extent applicable, pursuant
to Section 4.6), (E) amend, modify or waive any provision of the definition of Required
Purchasers or this Section 14.1(b), (F) consent to or permit the assignment or transfer by
any Seller of any of its rights and obligations under this Agreement, (G) change the definition of
“Eligible Receivable,” “Loss Reserve,” Yield and Servicer Reserve,”
“Default Ratio,” “Delinquency Ratio,” “Dilution Reserve,” or “Dilution
Ratio” or amend or modify Section 9.1(f) or (H) amend or modify any defined term (or
any
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defined term used directly or indirectly in such defined term) used in clauses (A) through (G)
above in a manner that would circumvent the intention of the restrictions set forth in such
clauses; or
without the written consent of the then Agent, amend, modify or waive any provision of this
Agreement if the effect thereof is to affect the rights or duties of such Agent.
Notwithstanding the foregoing, (i) without the consent of the Financial Institutions, but with
the consent of the Administrative Seller, the Agent may amend this Agreement solely to add
additional Persons as Financial Institutions hereunder and (ii) the Agent, the Required Purchasers
and each Company may enter into amendments to modify any of the terms or provisions of Article
XI, Article XII, Section 14.13 or any other provision of this Agreement without
the consent of any Seller Party, provided that such amendment has no negative impact upon such
Seller Party and provided further that the Rating Agencies then rating the commercial paper notes
of the Rabo Company and the CL Company shall have confirmed that the ratings of the commercial
paper notes of the Rabo Company and the CL Company will not be downgraded or withdrawn as a result
of such amendments. Any modification or waiver made in accordance with this Section 14.1
shall apply to
each of the Purchasers equally and shall be binding upon each Seller Party, the Purchasers and the
Agent.
Notices. Except as provided in this Section 14.2, all communications and notices provided for
hereunder shall be in writing (including bank wire, telecopy or electronic facsimile transmission
or similar writing) and shall be given to the other parties hereto at their respective addresses or
telecopy numbers set forth on Schedule E hereto or at such other address or telecopy number as such
Person may hereafter specify for the purpose of notice to each of the other parties hereto. Each
such notice or other communication shall be effective (i) if given by telecopy, upon the receipt
thereof, (ii) if given by mail, three (3) Business Days after the time such communication is
deposited in the mail with first class postage prepaid or (iii) if given by any other means, when
received at the address specified in this Section 14.2. Each Seller hereby authorizes the Agent
and the Purchasers to effect purchases and, selections of CP (Tranche) Accrual Periods, Tranche
Periods and Discount Rates based on telephonic notices made by any Person whom the Agent or
applicable Purchaser in good faith believes to be acting on behalf of such Seller. Each Seller
agrees to deliver promptly to the Agent and each applicable Purchaser a written confirmation of
each telephonic notice signed by an authorized officer of such Seller; provided, however, the
absence of such confirmation shall not affect the validity of such notice. If the written
confirmation differs from the action taken by
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the Agent or applicable Purchaser, the records of the
Agent or applicable Purchaser shall govern absent manifest error.
Ratable Payments. If any Purchaser, whether by setoff or otherwise, has payment made to it with
respect to any portion of the Aggregate Unpaids owing to such Purchaser (other than payments
received pursuant to Section 10.2 or 10.3) in a greater proportion than that received by any other
Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such Purchaser agrees,
promptly upon demand, to purchase for cash without recourse or warranty a portion of such Aggregate
Unpaids held by the other Purchasers so that after such purchase each Purchaser will hold its
ratable proportion of such Aggregate Unpaids; provided that if all or any portion of such excess
amount is thereafter recovered from such Purchaser, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
Protection of Ownership Interests of the Purchasers. (e) Each Seller agrees that from time to
time, at its expense, it will promptly execute and deliver all instruments and documents, and take
all actions, that may be necessary or reasonably desirable, or that the Agent may request, to
perfect, protect or more fully evidence the Purchaser Interests, or to enable the Agent or the
Purchasers to exercise and enforce their rights and remedies hereunder. Without limiting the
foregoing, each Seller will, upon the request of the Agent or the Required Purchasers, execute and
file such financing or continuation statements, or amendments thereto or assignments thereof, and
such other instruments and documents, that may be necessary or desirable, or that the Agent may
reasonably request, to perfect, protect or evidence such Purchaser Interests. At any time after
the occurrence and during the continuation of an Amortization Event, the Agent may, or the Agent
may direct any Seller or any Servicer to, notify the Obligors of Receivables, at the Sellers’
expense, of the ownership or security interests of the Purchasers under this Agreement and may also
direct that payments of all amounts due or that become due under any or all Receivables be made
directly to the Agent or its designee. The Sellers or the Servicers (as applicable) shall, at any
Purchaser’s request, withhold the identity of such Purchaser in any such notification.
If any Seller Party fails to perform any of its obligations hereunder, the Agent or any
Purchaser may (but shall not be required to) perform, or cause performance of, such obligations,
and the Agent’s or such Purchaser’s costs and
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expenses incurred in connection therewith shall be
payable by the Sellers as provided in Section 10.3. Each Seller Party irrevocably authorizes the
Agent at any time and from time to time in the sole discretion of the Agent, and appoints the Agent
as its attorney-in-fact, to act on behalf of such Seller Party (i) to execute on behalf of any
Seller as debtor and to file financing or continuation statements (and amendments thereto and
assignments thereof) necessary or desirable in the Agent’s sole discretion to perfect and to
maintain the perfection and priority of the interest of the Purchasers in the Receivables and (ii)
to file a carbon, photographic or other reproduction of this Agreement or any financing statement
with respect to the Receivables as a financing statement in such offices as the Agent in its sole
discretion deems necessary or desirable to perfect and to maintain the perfection and priority of
the interests of the Purchasers in the Receivables. The financing statements described in this
Section14.4(b) may describe the collateral in the same manner as described herein or may contain an
indication or description of collateral that describes such property in any other manner as the
Agent may determine, in its sole and absolute discretion, is necessary, advisable or prudent to
ensure the perfection and priority of the
interests of the Purchasers in the Receivables, the Related Security and the Collections, and
of the security interest granted hereunder, including, without limitation, describing such property
as “all assets” or “all personal property” or “all assets, whether now owned or hereafter acquired”
or “all personal property of the debtor, whether now owned or hereafter acquired”.This appointment
is coupled with an interest and is irrevocable. The authorization set forth in the second sentence
of this Section 14.4(b) is intended to meet all requirements for authorization by a debtor under
Article 9 of any applicable enactment of the UCC, including, without limitation, Section 9-509
thereof.
Confidentiality. (f) Each Seller Party and each Purchaser shall maintain and shall cause each of
its employees and officers to maintain the confidentiality of this Agreement and the other
confidential or proprietary information with respect to the Agent and each Purchaser and their
respective businesses obtained by it or them in connection with the structuring, negotiating and
execution of the transactions contemplated herein, except that such Seller Party and such Purchaser
and its officers and employees may disclose such information to such Seller Party’s and such
Purchaser’s external accountants and attorneys and as required by any applicable law or order of
any judicial or administrative proceeding.
Anything herein to the contrary notwithstanding, each Seller Party hereby consents to the
disclosure of any nonpublic information with respect to it (i) to
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the Agent, the Financial
Institutions or the Companies by each other, (ii) by the Agent or the Purchasers to any prospective
or actual assignee or participant of any of them and (iii) by the Agent or any Purchaser to any
rating agency, Funding Source, Commercial Paper dealer or provider of a surety, guaranty or credit
or liquidity enhancement to any Company or any entity organized for the purpose of purchasing, or
making loans secured by, financial assets for which Bank One, Rabobank, Wachovia, Wachovia Capital
Markets, LLC or CLNY acts as the administrative agent and to any officers, directors, employees,
outside accountants and attorneys of any of the foregoing. In addition, the Purchasers and the
Agent may disclose any such nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or proceedings (whether or
not having the force or effect of law).
Bankruptcy Petition. Each Seller, the Servicers, the Agent, each Financial Institution and each
Company (except with respect to itself) hereby covenants and agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding senior indebtedness of any
Funding Source that is a special purpose bankruptcy remote entity or of any Company, it will not
institute against, or join any other Person in instituting against, any such entity or any Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar
proceeding under the laws of the United States or any state of the United States.
Limitation of Liability. Except with respect to any claim arising out of the willful misconduct or
gross negligence of any Company, the Agent or any Financial Institution, no claim may be made by
any Seller Party or any other Person against any Company, the Agent or any Financial Institution or
their respective Affiliates, directors, officers, employees, attorneys or agents for any special,
indirect, consequential or punitive damages in respect of any claim for breach of contract or any
other theory of liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and each Seller Party
hereby waives, releases, and agrees not to xxx upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF
ILLINOIS.
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CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO,
ILLINOIS IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY
SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER
PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST
THE AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR ANY PURCHASER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR
ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO,
ILLINOIS.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY
SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Integration; Binding Effect; Survival of Terms.
This Agreement and each other Transaction Document contain the final and complete
integration of all prior expressions by the parties hereto with respect
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to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns (including any trustee in bankruptcy). This Agreement
shall create and constitute the continuing obligations of the parties hereto in accordance with its
terms and shall remain in full force and effect until terminated in accordance with its terms;
provided, however, that the rights and remedies with respect to (i) any breach of any
representation and warranty made by any Seller Party pursuant to Article V, (ii) the
indemnification and payment provisions of Article X, and Sections 14.5 and 14.6 shall be continuing
and shall survive any termination of this Agreement.
Counterparts; Severability; Section References. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same Agreement. Any provisions of this Agreement that are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all
references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean articles and sections
of, and schedules and exhibits to, this Agreement.
Bank One Roles. Each of the Purchasers acknowledges that Bank One acts, or may in the future act,
(i) as administrative agent for the Bank One Company or any Financial Institution in the Bank One
Company’s Purchaser Group, (ii) as issuing and paying agent for certain Commercial Paper, (iii) to
provide credit or liquidity enhancement for the timely payment for certain Commercial Paper and
(iv) to provide other services from time to time for the Bank One Company or any Financial
Institution in the Bank One Company’s Purchaser Group (collectively, the “Bank One Roles”).
Without limiting the generality of this Section 14.13, each Purchaser hereby acknowledges and
consents to any and all Bank One Roles and agrees that in connection with any Bank One Role, Bank
One may take, or refrain
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from taking, any action that it, in its discretion, deems appropriate,
including, without limitation, in its role as administrative agent for the Bank One Company.
Characterization. (g) It is the intention of the parties hereto that each purchase hereunder shall
constitute and be treated as an absolute and irrevocable sale, which purchase shall provide the
applicable Purchaser with the full benefits of ownership of the applicable Purchaser Interest.
Except as specifically provided in this Agreement, each sale of a Purchaser Interest hereunder is
made without recourse to any Seller; provided, however, that (i) each Seller shall be liable to
each Purchaser and the Agent for all representations, warranties, covenants and indemnities made by
such Seller pursuant to the terms of this Agreement, and (ii) such sale does not constitute and is
not intended to result in an assumption by any Purchaser or the Agent or any assignee thereof of
any obligation of any Seller or any Originator or any other Person arising in connection with the
Receivables, the Related Security, or the related Writings or Contracts, or any other obligations
of any Seller or any Originator.
In addition to any ownership interest that the Agent may from time to time acquire pursuant
hereto, each Seller hereby grants to the Agent for the ratable benefit of the Purchasers a valid
and perfected security interest in all of such Seller’s right, title and interest in, to and under
all Receivables now existing or hereafter arising, the Collections, each Lock-Box, each Collection
Account, all Related Security, all other rights and payments relating to such Receivables, and all
proceeds of any thereof prior to all other liens on and security interests therein to secure the
prompt and complete payment of the Aggregate Unpaids. The Agent and the Purchasers shall have, in
addition to the rights and remedies that they may have under this Agreement, all other rights and
remedies provided to a secured creditor under the UCC and other applicable law, which rights and
remedies shall be cumulative.
Withholding. Any Purchaser that is not incorporated under the laws of the United States of
America, or a state thereof, agrees to deliver to the Agent (with copies to Seller) two duly
completed copies of United States Internal Revenue Service Forms W-8BEN or W-8ECI, certifying in
either case that such Purchaser is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes.
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[Intentionally
Omitted].
Confirmation and Ratification of Terms.
Upon the effectiveness of this Agreement, each reference to the Original Agreement in any other
Transaction Document, and any document, instrument or agreement executed and/or delivered in
connection with the Original Agreement or any other Transaction Document, shall mean and be a
reference to this Agreement.
The other Transaction Documents and all agreements, instruments and
documents executed or delivered in connection with the Original Agreement or any other
Transaction Document shall each be deemed to be amended to the extent necessary, if any, to give
effect to the provisions of this Agreement, as the same may be amended, modified, supplemented or
restated from time to time.
The effect of this Agreement is to amend and restate the Original Agreement in its entirety,
and to the extent that any rights, benefits or provisions in favor of the Agent or any Purchaser
existed in the Original Agreement and continue to exist in this Agreement without any written
waiver of any such rights, benefits or provisions prior to the date hereof, then such rights,
benefits or provisions are acknowledged to be and to continue to be effective from and after June
30, 2000. This Agreement is not a novation.
The parties hereto agree and acknowledge that any and all rights, remedies and payment
provisions under the Original Agreement, including, without limitation, any and all rights,
remedies and payment provisions with respect to (i) any representation and warranty made or deemed
to be made pursuant to the Original Agreement, or (ii) any indemnification provision, shall
continue and survive the execution and delivery of this Agreement.
The parties hereto agree and acknowledge that any and all amounts owing as or for Capital,
Yield, CP Costs, fees, expenses or otherwise under or pursuant to the Original Agreement,
immediately prior to the effectiveness of this
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Agreement shall be owing as or for Capital, Yield,
CP Costs, fees, expenses or otherwise, respectively, under or pursuant to this Agreement.
Excess Funds. Each of the Sellers, each Servicer, each Purchaser and the Agent agrees that any
Company shall be liable for any claims that such party may have against such Company only to the
extent that such Company has funds in excess of those funds necessary to pay matured and maturing
Commercial Paper of such Company and to the extent such excess funds are insufficient to satisfy
the obligations of such Company hereunder, such Company shall have no liability with respect to any
amount of such obligations remaining unpaid and such unpaid amount shall not constitute a claim
against such Company. Any and all claims against any Company
shall be subordinate to the
claims against such Company of the holders of such Company’s Commercial Paper and any Person
providing liquidity support to such Company.
Administrative Seller. Each Seller hereby irrevocably appoints Dairy Group as its agent and
attorney-in-fact (the “Administrative Seller”) which appointment shall remain in full force and
effect unless and until the Agent shall have received prior written notice signed by each of the
Sellers that such appointment has been revoked and that another Seller has been appointed the
Administrative Seller. Each Seller hereby irrevocably appoints and authorizes the Administrative
Seller (i) to provide the Agent with all Purchase Notices for the benefit of any Seller and all
other notices and instructions under this Agreement, (ii) to receive all notices and instructions
from the Agent or any Purchaser hereunder and (iii) to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement.
Joint and Several.
Each of the Sellers is accepting joint and several liability hereunder and under the other
Transaction Documents in consideration of the financial accommodations to be provided by the
Purchasers under this Agreement, for the mutual benefit, directly and indirectly, of each of the
Sellers and in consideration of the undertakings of the other Seller to accept joint and several
liability for the Aggregate Unpaids.
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Each of the Sellers, jointly and severally, hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several liability with the other Seller, with
respect to the payment and performance of all of the Aggregate Unpaids, it being the intention of
the parties hereto that all the Aggregate Unpaids shall be the joint and several obligations of
each of the Sellers without preferences or distinction between them.
Except as otherwise expressly provided in this Agreement, each Seller hereby
waives notice of acceptance of its joint and several liability, notice of the occurrence of any
Amortization Event or Potential Amortization Event, or of any demand for any payment under this
Agreement, notice of any action at any time taken or omitted by the Agent or any Purchaser under or
in respect of the Aggregate Unpaids, any requirement of diligence or to mitigate damages and,
generally, to the extent permitted by applicable law, all demands, notices and other formalities of
every kind in connection with this Agreement (except as otherwise provided in this Agreement).
Each Seller hereby assents to, and waives notice of, any extension or postponement of the time for
the payment of any of the Aggregate Unpaids, the acceptance of any payment of any of the Aggregate
Unpaids, the acceptance of any partial payment thereon, any waiver, consent or other action or
acquiescence by the Agent or any Purchaser at any time or times in respect of any default by any
Seller in the performance or satisfaction of any term, covenant, condition or provision of this
Agreement, any and all other indulgences whatsoever by the Agent or any Purchaser in respect of any
of the Aggregate Unpaids, and the taking, addition, substitution or release, in whole or in part,
at any time or times, of any security for any of the Aggregate Unpaids or the addition,
substitution or release, in whole or in part, of any Seller. Without limiting the generality of
the foregoing, each Seller assents to any other action or delay in acting or failure to act on the
part of the Agent or any Purchaser with respect to the failure by any Seller to comply with any of
its respective obligations, it being the intention of each Seller that, so long as any of the
Aggregate Unpaids hereunder remain unsatisfied, the obligations of such Seller under this Section
14.19 shall not be discharged except by performance and then only to the extent of such
performance. The obligations of each Seller under this Section 14.19 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement, liquidation, reconstruction
or similar proceeding with respect to any Seller or the Agent or any Purchaser.
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Each Seller represents and warrants to the Agent and the Purchasers that such Seller is
currently informed of the financial condition of the other Seller and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Aggregate
Unpaids. Each Seller hereby covenants that such Seller will continue to keep informed of the other
Seller’s financial condition, the financial condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the Aggregate
Unpaids.
Each Seller agrees that the Agent and the Purchasers may, in their sole and absolute
discretion, select the Receivables of any one of the Sellers for sale or application to the
Aggregate Unpaids, without regard to the ownership of such Receivables, and shall not be required
to make such selection ratably from the Receivables owned by any of the Sellers.
The provisions of this Section 14.19 are made for the benefit of the Agent, the Purchasers and
their respective successors and assigns, and may be enforced by it or them from time to time
against any or all of the Sellers as often as occasion therefor may arise and without requirement
on the part of the Agent, any Purchasers or any such successor or assign first to marshal any of
its or their claims or to exercise any of its or their rights against any of the other Sellers or
to exhaust any remedies available to it or them against any of the other Sellers or to resort to
any other source or means of obtaining payment of any of the Aggregate Unpaids hereunder or to
elect any other remedy. The provisions of this Section 14.19 shall remain in effect until all of
the Aggregate Unpaids shall have been paid in full or otherwise fully satisfied. If at any time,
any payment, or any part thereof, made in respect of any of the Aggregate Unpaids, is rescinded or
must otherwise be restored or returned by the Agent or any Purchaser upon the insolvency,
bankruptcy or reorganization of any of the Sellers, or otherwise, the provisions of this Section
14.19 will forthwith be reinstated in effect, as though such payment had not been made.
Each Seller hereby agrees that it will not enforce any of its rights of contribution or
subrogation against the other Seller with respect to any liability incurred by it hereunder or
under any of the other Transaction Documents, any payments made by it to the Agent or any Purchaser
with respect to any of the
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Aggregate Unpaids or any collateral security therefor until such time as
all of the Aggregate Unpaids have been paid in full in cash. Any claim which any Seller may have
against any other Seller with respect to any payments to the Agent or any Purchaser hereunder or
under any other Transaction Documents are hereby expressly made subordinate and junior in right of
payment, without limitation as to any increases in the Aggregate Unpaids arising hereunder or
thereunder, to the prior payment in full in cash of the Aggregate Unpaids and, in the event of any
insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under
the laws of any jurisdiction relating to any Seller, its debts or its assets, whether voluntary or
involuntary, all such Aggregate Unpaids shall be paid in full in cash before any payment or distribution of
any character, whether in cash, securities or other property, shall be made to any other Seller
therefor.
Each of the Sellers hereby agrees that, after the occurrence and during the continuance of any
Amortization Event or Potential Amortization Event, the payment of any amounts due with respect to
the indebtedness owing by any Seller to any other Seller is hereby subordinated to the prior
payment in full in cash of the Aggregate Unpaids. Each Seller hereby agrees that after the
occurrence and during the continuance of any Amortization Event or Potential Amortization Event,
such Seller will not demand, xxx for or otherwise attempt to collect any indebtedness of any other
Seller owing to such Seller until the Aggregate Unpaids shall have been paid in full in cash. If,
notwithstanding the foregoing sentence, such Seller shall collect, enforce or receive any amounts
in respect of such indebtedness, such amounts shall be collected, enforced and received by such
Seller as trustee for the Agent and the Purchasers, and such Seller shall deliver any such amounts
to the Agent for application to the Aggregate Unpaids in accordance with Article II.
Assignments by Dairy Group. Notwithstanding the provisions of Section 7.2(d), the Agent and the
Purchasers hereby consent to the assignment by Dairy Group of all of its right, title and interest
in and to the Lock-Boxes and Collection Accounts identified in the Acknowledgments and Amendments
to National Brand Group or Dairy Group II, as applicable, pursuant to such Acknowledgments and
Amendments; provided, that in each case, such property shall be sold and assigned to Dairy Group II
or National Brand Group, as applicable, subject to the Agent’s lien hereunder and such lien shall
continue to be in full force and effect.
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(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized officers as of the date hereof.
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DAIRY GROUP RECEIVABLES, L.P.,
as Seller |
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By:
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Dairy Group Receivables GP, LLC, |
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Its:
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General Partner |
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DAIRY GROUP RECEIVABLES II, L.P.,
as Seller |
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By:
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Dairy Group Receivables XX XX, LLC, |
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Its:
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General Partner |
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SPECIALTY GROUP RECEIVABLES, L.P.,
as Seller |
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By:
Its:
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Specialty Group Receivables GP, LLC,
General Partner |
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XXXX NATIONAL BRAND GROUP, L.P.,
as Seller |
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By:
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Xxxx National Brand Group GP, LLC, |
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Its:
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General Partner |
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By: |
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/s/ Xxxx X. Xxxxx |
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Name: Xxxx X. Xxxxx |
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Title: Authorized Signatory |
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FALCON ASSET SECURITIZATION |
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CORPORATION, as a Company |
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/s/ Xxxxxx Xxxxxx |
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Name:
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Title:
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Authorized Signer |
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BANK ONE, NA (MAIN OFFICE CHICAGO), |
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Name:
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Title:
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Director, Capital Markets |
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S-2
fourth amended and restated
receivables purchase agreement
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ATLANTIC ASSET SECURITIZATION CORP.,
as a Company |
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By:
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Credit Lyonnais New York Branch |
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Its:
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Attorney-In-Fact |
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By: |
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/s/ Xxxxxxx X. Xxxxx Xx. |
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Name: Xxxxxxx X. Xxxxx Xx. |
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Title: Vice President |
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CREDIT LYONNAIS NEW YORK BRANCH,
as a Financial Institution |
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/s/ Xxxxxxx X. Xxxxx Xx. |
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Name: Xxxxxxx X. Xxxxx Xx. |
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Title: Vice President |
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S-3
fourth amended and restated
receivables purchase agreement
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NIEUW AMSTERDAM RECEIVABLES CORPORATION,
as a Company |
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/s/ Xxxx Xxxx |
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COOPERATIEVE CENTRALE RAIFFEISEN —
BOERENLEENBANK B.A. “Rabobank International”, New
York Branch,
as a Financial Institution |
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By: |
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/s/ Xxxxx Xxxxxxx |
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Executive Director |
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S-4
fourth amended and restated
receivables purchase agreement
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BLUE RIDGE ASSET FUNDING CORPORATION,
as a Company |
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Wachovia Capital Markets, LLC |
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Attorney-In-Fact |
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/s/ Xxxxxxx X. Xxxxxx, Xx. |
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Vice President |
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Financial Institution |
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/s/ Xxxxxx Xxxxxxx |
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S-5
fourth amended and restated
receivables purchase agreement
XXXX-XXXX CERTIFIED DAIRY, INC., as a Servicer
XXXXXX MILK, INC., as a Servicer
BERKELEY FARMS, INC., as a Servicer
XXXXXXXXX FOODS, LLC, as a Servicer
COUNTRY DELITE FARMS, LLC, as a Servicer
COUNTRY FRESH, LLC, as a Servicer
CREAMLAND DAIRIES, INC., as a Servicer
DAIRY FRESH, LLC, as a Servicer
XXXX DAIRY PRODUCTS COMPANY, as a Servicer
XXXX FOODS COMPANY OF CALIFORNIA, INC., as a Servicer
XXXX FOODS COMPANY OF INDIANA, INC., as a Servicer
XXXX FOODS NORTH CENTRAL, INC., as a Servicer
XXXX MILK COMPANY, INC., as a Servicer
XXXX NATIONAL BRAND GROUP, INC., as a Servicer
XXXX NORTHEAST, LLC (f/k/a SUIZA GTL, LLC), as a Servicer
XXXX SOCAL, LLC, as a Servicer
XXXX SOUTHWEST, LLC, as a Servicer
XXXX SPECIALTY FOODS GROUP, LLC, as a Servicer
XXXXX’X DAIRIES, INC., as a Servicer
KOHLER MIX SPECIALTIES OF MINNESOTA, LLC, as a Servicer
KOHLER MIX SPECIALTIES, LLC, as a Servicer
LAND-O-SUN DAIRIES, LLC, as a Servicer
LIBERTY DAIRY COMPANY, as a Servicer
XXXXX XXXXXX DAIRY, LLC, as a Servicer
XXXXXXXX DAIRY FARMS, INC., as a Servicer
XXXXXXXX DAIRY, INC., as a Servicer
MEADOW BROOK DAIRY COMPANY, as a Servicer
MIDWEST ICE CREAM COMPANY, as a Servicer
MODEL DAIRY, LLC, as a Servicer
MORNINGSTAR FOODS, LLC, as a Servicer
XXXXXXXXXXX XXXXXXXXX, INC., as a Servicer
PURITY DAIRIES, INCORPORATED, as a Servicer
XXXXXX DAIRY OF AKRON, INC., as a Servicer
S-6
fourth amended and restated
receivables purchase agreement
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By:
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/s/ Xxxx X. Xxxxx |
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Xxxx X. Xxxxx |
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Authorized Signatory |
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XXXXXXXX DAIRY, LLC, as a Servicer |
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XXXXXXXX’X ALL-STAR DAIRY, LLC, as a Servicer |
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SHENANDOAH’S PRIDE, LLC, as a Servicer |
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SULPHUR SPRINGS CULTURED SPECIALTIES, LLC, as a Servicer |
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X. X. XXX FOODS, INC., as a Servicer |
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TUSCAN/LEHIGH DAIRIES, INC., as a Servicer |
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VERIFINE DAIRY PRODUCTS CORPORATION OF SHEBOYGAN, INC.,
as a Servicer |
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/s/ Xxxx X. Xxxxx |
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Authorized Signatory |
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SOUTHERN FOODS GROUP, L.P.,
as a Servicer |
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SFG Management Limited Liability Company |
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General Partner |
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Name:
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Title:
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Authorized Signatory |
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S-7
fourth amended and restated
receivables purchase agreement
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Acknowledgment and Amendment” means an agreement, substantially in the form of
Exhibit IX, by and among one or more Originator(s), one or more Seller(s), a Collection
Bank and the Agent.
“Additional Entity” means each of the entities listed on Schedule G to this
Agreement.
“Additional Servicers” means each of GTL and Tuscan Dairies.
“Administrative Seller” has the meaning set forth in Section 14.18.
“Adverse Claim” means a lien, security interest, charge or encumbrance, or other right
or claim in, of or on any Person’s assets or properties in favor of any other Person.
“Affected Financial Institution” has the meaning specified in Section 12.1(c).
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person or any
Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the management or policies of
the controlled Person, whether through ownership of stock, by contract or otherwise.
“Agent” has the meaning set forth in the preamble to this Agreement.
“Aggregate Capital” means, on any date of determination, the aggregate amount of
Capital of all Purchaser Interests outstanding on such date.
“Aggregate Reduction” has the meaning specified in Section 1.3.
Exh. I-1
fourth amended and restated
receivables purchase agreement
“Aggregate Reserves” means, on any date of determination, the sum of the Loss Reserve,
the Dilution Reserve, and the Yield and Servicer Reserve.
“Aggregate Unpaids” means, at any time, an amount equal to the sum of all, Aggregate
Capital and all other unpaid Obligations (whether due or accrued) at such time.
“Agreement” means this Fourth Amended and Restated Receivables Purchase Agreement, as
it may be amended, restated, supplemented or otherwise modified and in effect from time to time.
“Agreement of General Partner” means that certain agreement dated as of June 30, 2000
between the Agent for the benefit of the Purchasers and Dairy Group Receivables GP, LLC (f/k/a
Suiza Receivables GP, LLC), as general partner of Dairy Group.
“Amortization Date” means the earliest to occur of (i) the day on which any of the
conditions precedent set forth in Section 6.2 are not satisfied, (ii) the Business Day
immediately prior to the occurrence of an Amortization Event set forth in Section
9.1(d)(ii), (iii) the Business Day specified in a written notice from the Agent following the
occurrence of any other Amortization Event, and (iv) the date that is 15 Business Days after the
Agent’s receipt of written notice from the Administrative Seller that it wishes to terminate the
facility evidenced by this Agreement.
“Amortization Event” has the meaning specified in Article IX.
“Applicable Percentage” means, as of any date of determination, the Applicable
Percentage, under and as defined in the Xxxx Credit Agreement (as in effect from time to time
notwithstanding any language to the contrary contained in the definition of “Xxxx Credit
Agreement”), applicable to Revolving-1 Loans under and as defined in the Xxxx Credit Agreement (as
in effect from time to time notwithstanding any language to the contrary contained in the
definition of “Xxxx Credit Agreement”); provided, that, as of any date of determination
that the Xxxx Credit Agreement is not in effect (whether by reason of termination or otherwise),
the Applicable Percentage hereunder shall be the Applicable Percentage under and as defined in the
Xxxx Credit Agreement as in effect immediately prior to such ineffectiveness (notwithstanding any
language to the contrary contained in the definition of “Xxxx Credit Agreement”) applicable to
Revolving-1 Loans under and as defined in the Xxxx Credit Agreement as in effect immediately prior
to such ineffectiveness (notwithstanding any language to the contrary contained in the definition
of “Xxxx Credit Agreement”).
Exh. I-2
fourth amended and restated
receivables purchase agreement
“Assignment Agreement” has the meaning set forth in Section 12.1(b).
“Authorized Officer” means, with respect to any Person, its president, corporate
controller, treasurer or chief financial officer.
“Bank One” means Bank One, NA (Main Office Chicago) in its individual capacity and its
successors.
“Bank One Company” means Falcon Asset Securitization Corporation, a Delaware
corporation, together with its successors and assigns.
“Broken Funding Costs” means for any Purchaser Interest that: (i) has its Capital
reduced (A) without compliance by the Administrative Seller with the notice requirements hereunder
or (B) in the case of any Purchaser Interest of the CL Company or any Purchaser Interest of any
Pool Company other than any Purchaser Interest funded substantially with Pooled Commercial Paper,
on any date other than a Settlement Date hereunder or (ii) does not become subject to an Aggregate
Reduction following the delivery of any Reduction Notice or (iii) is assigned or funded pursuant to
a Funding Agreement or otherwise transferred or terminated prior to the date on which it was
originally scheduled to end; an amount equal to the excess, if any, of (A) the CP Costs or Yield
(as applicable) that would have accrued during the remainder of the Tranche Periods or the tranche
periods for Commercial Paper determined by the applicable Purchaser to relate to such Purchaser
Interest (as applicable) subsequent to the date of such reduction, assignment or termination (or in
respect of clause (ii) above, the date such Aggregate Reduction was designated to occur pursuant to
the Reduction Notice) of the Capital of such Purchaser Interest if such reduction, assignment or
termination had not occurred or such Reduction Notice had not been delivered, over (B) the sum of
(x) to the extent all or a portion of such Capital is allocated to another Purchaser Interest, the
amount of CP Costs or Yield actually accrued during the remainder of such period on such Capital
for the new Purchaser Interest, and (y) to the extent such Capital is not allocated to another
Purchaser Interest, the income, if any, actually received net of any costs of redeployment of funds
during the remainder of such period by the holder of such Purchaser Interest from investing the
portion of such Capital not so allocated. In the event that the amount referred to in clause (B)
exceeds the amount referred to in clause (A), the relevant Purchaser or Purchasers agree to pay to
the Sellers the amount of such excess. All Broken Funding Costs shall be due and payable hereunder
upon demand.
Exh. I-3
fourth amended and restated
receivables purchase agreement
“
Business Day” means any day on which banks are not authorized or required to close in
New York, New York or Chicago,
Illinois or any other city specified in writing by a Purchaser to
the Agent, each other Purchaser and the Administrative Seller, and The Depository Trust Company of
New York is open for business, and, if the applicable Business Day relates to any computation or
payment to be made with respect to the LIBO Rate, any day on which dealings in dollar deposits are
carried on in the London interbank market.
“Capital” of any Purchaser Interest means, at any time, (A) the Purchase Price of such
Purchaser Interest, minus (B) the sum of the aggregate amount of Collections and other payments
received by the Agent or the applicable Purchaser that in each case are applied to reduce such
Capital in accordance with the terms and conditions of this Agreement; provided that such Capital
shall be restored (in accordance with Section 2.5) in the amount of any Collections or
other payments so received and applied if at any time the distribution of such Collections or
payments are rescinded, returned or refunded for any reason.
“Change of Control” means the acquisition by any Person, or two or more Persons acting
in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of voting stock or other equity interest of any Seller Party.
“Charged-Off Receivable” means a Receivable: (i) as to which the Obligor thereof has
taken any action, or suffered any event to occur, of the type described in Section 9.1(d)
(as if references to Seller Party therein refer to such Obligor); (ii) as to which the Obligor
thereof, if a natural person, is deceased, (iii) that has been written off a Seller’s books as
uncollectible, (iv) that, consistent with the applicable Originator’s Credit and Collection Policy,
would be written off a Seller’s books as uncollectible, (v) that has been identified by a Seller as
uncollectible or (vi) as to which any payment, or part thereof, remains unpaid for 90 days or more
from the original invoice date for such payment.
“CL Company” means Atlantic Asset Securitization Corp., a Delaware corporation,
together with its successors and assigns.
“CLNY” means Credit Lyonnais, New York Branch, a French banking corporation duly
licensed under the laws of the State of New York.
Exh. I-4
fourth amended and restated
receivables purchase agreement
“Collateral Agent” means Wachovia Bank, National Association (formerly known as First
Union National Bank), in its capacity as administrative agent under the Xxxx Credit Agreement.
“Collection Account” means each concentration account, depositary account, lock-box
account or similar account in which any Collections are collected or deposited and that is listed
on Exhibit IV.
“Collection Account Agreement” means each agreement substantially in the form of
Exhibit VI, or such other form as may be acceptable to the Agent, among the applicable
Originator, a Seller, Collection Bank and the Agent, as it may be amended, restated, supplemented
or otherwise modified and in effect from time to time.
“Collection Bank” means, at any time, any of the banks holding one or more Collection
Accounts.
“Collection Notice” means a notice, in substantially the form of Annex A to
Exhibit VI, from the Agent to a Collection Bank or any similar or analogous notice from the
Agent to a Collection Bank.
“Collections” means, with respect to any Receivable, all cash collections and other
cash proceeds in respect of such Receivable, including, without limitation, all yield, Finance
Charges or other related amounts accruing in respect thereof and all cash proceeds of Related
Security with respect to such Receivable.
“Commercial Paper” means promissory notes of any Company issued by such Company in the
commercial paper market.
“Commitment” means, for each Financial Institution, the commitment of such Financial
Institution to purchase Purchaser Interests from the Sellers to the extent that the Company in such
Financial Institution’s Purchaser Group declines to purchase such Purchaser Interest, in an amount
not to exceed (i) in the aggregate, the amount set forth opposite such Financial Institution’s name
on Schedule A to this Agreement, as such amount may be modified in accordance with the
terms hereof (including, without limitation, any termination of Commitments pursuant to Section
4.6 hereof) and (ii) with respect to any individual purchase hereunder, its Pro Rata Share of
the Purchase Price therefor.
Exh. I-5
fourth amended and restated
receivables purchase agreement
“Company” has the meaning set forth in the preamble to this Agreement.
“Company Costs” means:
(i) for any Purchaser Interest purchased by the Bank One Company and funded substantially
with Pooled Commercial Paper, for any day, the sum of (i) discount or yield accrued on Pooled
Commercial Paper on such day, plus (ii) any and all accrued commissions in respect of placement
agents and Commercial Paper dealers, and issuing and paying agent fees incurred, in respect of such
Pooled Commercial Paper for such day, plus (iii) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase facilities which are funded by Pooled
Commercial Paper for such day, minus (iv) any accrual of income net of expenses received on such
day from investment of collections received under all receivable purchase facilities funded
substantially with Pooled Commercial Paper, minus (v) any payment received on such day net of
expenses in respect of broken funding costs related to the prepayment of any purchaser interest of
the Bank One Company pursuant to the terms of any receivable purchase facilities funded
substantially with Pooled Commercial Paper. In addition to the foregoing costs, if the
Administrative Seller shall request any Incremental Purchase during any period of time determined
by the Bank One Company (or by the Bank One Company’s agent on its behalf) in its sole discretion
to result in incrementally higher Company Costs with respect to the Bank One Company applicable to
such Incremental Purchase by the Bank One Company, the Capital associated with any such Incremental
Purchase shall, during such period, be deemed to be funded by the Bank One Company in a special
pool (which may include capital associated with other receivable purchase facilities) for purposes
of determining such additional Company Costs applicable only to such special pool and charged each
day during such period against such Capital. Each Purchaser Interest funded substantially with
Pooled Commercial Paper will accrue Company Costs with respect to the Bank One Company each day on
a pro rata basis, based upon the percentage share the Capital in respect of such Purchaser Interest
represents in relation to all assets held by the Bank One Company and funded substantially with
Pooled Commercial Paper. For each Settlement Period, the Bank One Company shall calculate its
aggregate Company Costs for such Settlement Period and report such Company Costs to the
Administrative Seller pursuant to Section 3.3 of this Agreement;
(ii) for any Purchaser Interest purchased by any Pool Company other than any Purchaser
Interest funded substantially with Pooled Commercial Paper, an amount equal to the Capital of such
Purchaser Interest multiplied by a per annum rate equivalent to the “weighted average cost” (as
defined below) related to the issuance of Commercial Paper of such Pool Company that is allocated,
in whole or in part, to fund such Pool Company’s Pro Rata Share of Aggregate Capital (and which may
also be allocated in part to the funding of other assets of such Pool
Exh. I-6
fourth amended and restated
receivables purchase agreement
Company); provided, however, that if any component of such rate is a discount
rate, in calculating such rate for such Pool Company’s Pro Rata Share of the Aggregate Capital for
such date, the rate used to calculate such component of such rate shall be a rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum. As used in this
definition, the “weighted average cost” shall consist of (x) the actual interest rate paid to
purchasers of Commercial Paper issued by such Pool Company, (y) the costs associated with the
issuance of such Commercial Paper (including dealer fees and commissions to placement agents), and
(z) interest on other borrowing or funding sources by such Pool Company, including to fund small or
odd dollar amounts that are not easily accommodated in the commercial paper market;
(iii) for any Purchaser Interest purchased by the CL Company, for any CP (Tranche) Accrual
Period, an amount equal to the Capital of such Purchaser Interest multiplied by a rate per annum
equal to the sum of (i) the rate or, if more than one rate, the weighted average of the rates,
determined by converting to an interest-bearing equivalent rate per annum the discount rate (or
rates) at which Commercial Paper of the CL Company having a term equal to such CP (Tranche) Accrual
Period and to be issued to fund or to maintain such Purchaser Interest by the CL Company
(including, without limitation, the related Capital and accrued and unpaid interest thereon) may be
sold by any placement agent or commercial paper dealer selected by CLNY (or other agent of the CL
Company) for the CL Company, as agreed between each such placement agent or dealer and CLNY (or
such other agent); plus, (ii) the commissions and charges charged by such placement agent
or dealer with respect to such Commercial Paper of the CL Company, expressed as a percentage of
such face amount, converted to an interest-bearing equivalent rate per annum;
(iv) for any Purchaser Interest purchased by the Rabo Company and funded substantially with
Pooled Commercial Paper, for any day, an amount equal to the Capital of such Purchaser Interest
multiplied by a rate per annum equal to the weighted average of the per annum rates paid or payable
by the Rabo Company from time to time as interest on Commercial Paper (by means of interest rate
xxxxxx or otherwise and taking into consideration any incremental carrying costs associated with
Commercial Paper issued by the Rabo Company maturing on dates other than those certain dates on
which the Rabo Company is to receive funds) in respect of Commercial Paper issued by the Rabo
Company that are allocated, in whole or in part, by Rabobank (or other agent of the Rabo Company)
on behalf of the Rabo Company to fund or maintain the Capital of the Rabo Company during such
period, as determined by Rabobank (or other agent of the Rabo Company) on behalf of the Rabo
Company, which rates shall reflect and give effect to (i) the
Exh. I-7
fourth amended and restated
receivables purchase agreement
commissions of placement agents and dealers in respect of such Commercial Paper, to the extent
such commissions are reasonably allocated, in whole or in part, to such Commercial Paper by
Rabobank (or other agent of the Rabo Company) on behalf of the Rabo Company and (ii) other
borrowings by the Rabo Company, including, without limitation, borrowings to fund small or odd
dollar amounts that are not easily accommodated in the commercial paper market; provided
that if any component of such rate is a discount rate, in calculating the Company Costs, Rabobank
(or other agent of the Rabo Company) shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum. In addition to the
foregoing costs, if the Administrative Seller shall request any Purchaser Interest during any
period of time determined by the Rabo Company in its sole discretion to result in incrementally
higher Company Costs with respect to the Rabo Company applicable to such Purchaser Interest, the
Capital associated with any such Purchaser Interest shall, during such period, be deemed to be
funded by the Rabo Company in a special pool (which may include capital associated with other
receivable purchase or financing facilities) for purposes of determining such additional Company
Costs applicable only to such special pool and charged each day during such period against such
Capital. Each Purchaser Interest funded substantially with Pooled Commercial Paper will accrue
Company Costs with respect to the Rabo Company each day on a pro rata basis, based upon the
percentage share the Capital in respect of such Purchaser Interest represents in relation to all
assets held by the Rabo Company and funded substantially with Pooled Commercial Paper. For each
Settlement Period, the Rabo Company shall calculate its aggregate Company Costs for such Settlement
Period and report such Company Costs to the Administrative Seller pursuant to Section 3.3
of this Agreement; and
(v) for any Purchaser Interest purchased by the Wachovia Company and funded substantially with
Pooled Commercial Paper, for any day, the sum of (i) discount or yield accrued on Pooled Commercial
Paper on such day, plus (ii) any and all accrued commissions in respect of placement agents and
Commercial Paper dealers, and issuing and paying agent fees incurred, in respect of such Pooled
Commercial Paper for such day, plus (iii) other costs associated with funding small or odd-lot
amounts with respect to all receivable purchase facilities which are funded by Pooled Commercial
Paper for such day, minus (iv) any accrual of income net of expenses received on such day from
investment of collections received under all receivable purchase facilities funded substantially
with Pooled Commercial Paper, minus (v) any payment received on such day net of expenses in respect
of broken funding costs related to the prepayment of any purchaser interest of the Wachovia Company
pursuant to the terms of any receivable purchase facilities funded substantially with Pooled
Commercial Paper. In addition to the foregoing costs, if
Exh. I-8
fourth amended and restated
receivables purchase agreement
the Administrative Seller shall request any Incremental Purchase during any period of time
determined by the Wachovia Company (or by the Wachovia Company’s agent on its behalf) in its sole
discretion to result in incrementally higher Company Costs with respect to the Wachovia Company
applicable to such Incremental Purchase by the Wachovia Company, the Capital associated with any
such Incremental Purchase shall, during such period, be deemed to be funded by the Wachovia Company
in a special pool (which may include capital associated with other receivable purchase facilities)
for purposes of determining such additional Company Costs applicable only to such special pool and
charged each day during such period against such Capital. Each Purchaser Interest funded
substantially with Pooled Commercial Paper will accrue Company Costs with respect to the Wachovia
Company each day on a pro rata basis, based upon the percentage share the Capital in respect of
such Purchaser Interest represents in relation to all assets held by the Wachovia Company and
funded substantially with Pooled Commercial Paper. For each Settlement Period, the Wachovia
Company shall calculate its aggregate Company Costs for such Settlement Period and report such
Company Costs to the Administrative Seller pursuant to Section 3.3 of this Agreement.
“Company Purchase Limit” means, for each Company, the purchase limit of such Company
with respect to the purchase of Purchaser Interests from the Sellers, in an amount not to exceed
(i) in the aggregate, the amount set forth opposite such Company’s name on Schedule A to
this Agreement, as such amount may be modified in accordance with the terms hereof (including
Section 4.6(b)) and (ii) with respect to any individual purchase hereunder, its Pro Rata
Share of the Purchase Price therefor.
“Concentration Limit” means, at any time, (a) for any Obligor other than an Obligor
for which a Special Concentration Limit has been designated, 3% of the aggregate Outstanding
Balance of all Eligible Receivables, or (b) for Wal-Mart Stores, Inc., 15%, for Albertson’s Inc.,
7%, and for any other Obligor designated by Agent, such other percentage as Agent may designate
(each of the foregoing, a “Special Concentration Limit”); provided, that in the case of an
Obligor and any Affiliate of such Obligor, the Concentration Limit shall be calculated as if such
Obligor and such Affiliate are one Obligor; and provided, further, that the Required Purchasers
may, upon not less than five Business Days’ notice to Seller, cancel any Special Concentration
Limit.
“Consent Notice” has the meaning set forth in Section 4.6(a).
“Consent Period” has the meaning set forth in Section 4.6(a).
Exh. I-9
fourth amended and restated
receivables purchase agreement
“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay
contract or application for a letter of credit.
“Contract” means, with respect to any Receivable, any and all written or oral
agreements pursuant to which such Receivable arises or that evidences such Receivable.
“Country Fresh” means Country Fresh, LLC, a Michigan limited liability company.
“CP (Pool) Accrual Period” means, with respect to any Purchaser Interest held by any
Pool Company and funded substantially with Pooled Commercial Paper, each calendar month.
“CP (Tranche) Accrual Period” means (i) with respect to any Purchaser Interest held by
any Pool Company other than any Purchaser Interest funded substantially with Pooled Commercial
Paper, a period of at least 1 day and not to exceed 90 days as selected by Seller pursuant to
Section 3.4 and approved by the Agent; and (ii) with respect to any Purchaser Interest held
by the CL Company, a period commencing on, and including, the date selected by CLNY (as agent for
the CL Company), or the last day of the immediately preceding CP (Tranche) Accrual Period for such
Purchaser Interest (whichever is latest) and ending on, but excluding, the date that falls such
number of days (of at least one day and not to exceed 90 days) thereafter as CLNY (as agent for the
CL Company) shall select (provided that not more than 10 CP (Tranche) Accrual Periods with respect
to Purchaser Interests of the CL Company shall be in effect at any one time); provided,
however, that (i) any CP (Tranche) Accrual Period (other than of one day) that would
otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business
Day, (ii) in the case of CP (Tranche) Accrual Periods of one day, (A) the initial CP (Tranche)
Accrual Period shall be the day of the related Incremental Purchase; and (B) any subsequently
occurring CP (Tranche) Accrual Period that is one day shall, if the immediately preceding CP
(Tranche) Accrual Period is more than one day, be the last day of such immediately preceding CP
(Tranche) Accrual Period, and if the immediately preceding CP (Tranche) Accrual Period is one day,
be the day next following such immediately preceding CP (Tranche) Accrual Period;
Exh. I-10
fourth amended and restated
receivables purchase agreement
and (iii) in the case of any CP (Tranche) Accrual Period that commences before the
Amortization Date and would otherwise end on a date occurring after the Amortization Date, such CP
(Tranche) Accrual Period shall end on the Amortization Date. The duration of each CP (Tranche)
Accrual Period that commences after the Amortization Date shall be of such duration as selected by
the applicable Company.
“CP Costs” means, for each day, the aggregate discount or yield accrued with respect
to the Purchaser Interests of each respective Company as determined in accordance with the
definition of “Company Costs.”
“Credit Ag” means Credit Agricole Indosuez, a branch of a French banking corporation.
“Credit and Collection Policy” means each Originator’s credit and collection policies
and practices relating to Writings, Contracts and Receivables existing on the date hereof with
respect to each New Entity, on November 20, 2003 with respect to each Additional Entity, and on the
Original Closing Date with respect to each other Originator and summarized in Exhibit VIII
hereto, as modified from time to time in accordance with this Agreement.
“Xxxx Credit Agreement” means that certain Credit Agreement, dated as of July 31,
2001, by and among Provider, certain Subsidiaries of Provider, the financial institutions party
thereto as lenders, Bank One, NA, as syndication agent, Fleet National Bank, Xxxxxx Trust and
Savings Bank and Suntrust Bank, as co-documentation agents, and Wachovia Bank, National Association
(formerly known as First Union National Bank), as administrative agent, as amended by the First
Amendment to Credit Agreement, dated as of December 19, 2001, as further amended by the Second
Amendment to Credit Agreement, dated as of April 30, 2002, as further amended by the Third
Amendment to Credit Agreement, dated as of December 13, 2002, as further amended by the Fourth
Amendment to Credit Agreement, dated as of August 29, 2003, and as further amended by the Fifth
Amendment to Credit Agreement, dated as of December 31, 2003, but without giving effect to any
further amendment or other modification thereof.
“Xxxx Entity” means each of the entities listed on Schedule C to this
Agreement.
“Xxxx Financial Covenants” means the financial covenants set forth in Section 5.9 of
the Xxxx Credit Agreement.
Exh. I-11
fourth amended and restated
receivables purchase agreement
“Xxxx Receivables Sale Agreement” means the Xxxx Receivables Sale Agreement, dated as
of May 15, 2002 and effective for all purposes as of March 31, 2002, by and among the Xxxx
Entities, Xxxx SoCal, LLC, a Delaware limited liability company, and Dairy Group II, as amended by
Amendment No. 1 thereto, dated as of November 20, 2003, and as further amended by Amendment No. 2
thereto, dated as of March 30, 2004, and as the same may be further amended, restated, supplemented
or otherwise modified from time to time.
“Xxxx Specialty” means Xxxx Specialty Foods Group, LLC, a Delaware limited liability
company.
“Deemed Collections” means the aggregate of all amounts the Sellers shall have been
deemed to have received as a Collection of a Receivable. The Sellers shall be deemed to have
received a Collection of a Receivable at any time (i) to the extent that the Outstanding Balance of
any such Receivable is either (x) reduced as a result of any defective or rejected goods or
services, any discount, rebate or any adjustment or otherwise by any Seller (other than cash
Collections on account of the Receivables and other than Receivables that, consistent with the
applicable Originator’s Credit and Collection Policy, have been written off a Seller’s books as
uncollectible other than as a result of any of the other conditions or events set forth in this
definition) or (y) reduced or canceled as a result of a setoff in respect of any claim by any
Person (whether such claim arises out of the same or a related transaction or an unrelated
transaction) or (ii) any of the representations or warranties in Article V are no longer
true with respect to such Receivable or (iii) the failure of any Contract with respect to such
Receivable to create a legal, valid and binding obligation of the related Obligor to pay the
Outstanding Balance of the Receivable created thereunder and any accrued interest thereon or (iv)
the failure of any Writing to give rise to a valid and enforceable Receivable in the amount of the
Outstanding Balance thereof.
“Default Fee” means with respect to any amount due and payable by any Seller in
respect of any Aggregate Unpaids, an amount equal to interest on any such unpaid Aggregate Unpaids
at a rate per annum equal to 2% above the Prime Rate.
“Default Ratio” means, as at the end of any calendar month, a percentage equal to (a)
the sum of (i) the Outstanding Balance of all Receivables as to which any payment, or part
thereof, remains unpaid for 90 days or more from the original invoice date for such payment
plus (ii) the Outstanding Balance of all Receivables that were written off each Seller’s
books as uncollectible during such calendar month, divided by (b) the aggregate Outstanding
Balance of all Receivables.
Exh. I-12
fourth amended and restated
receivables purchase agreement
“Defaulted Receivable” means a Receivable as to which any payment, or part thereof,
remains unpaid for 90 days or more from the original invoice date for such payment.
“Delinquency Ratio” means, for a calendar month, a percentage equal to (a) the
Outstanding Balance of all Delinquent Receivables as at the end of such calendar month divided
by (b) the Outstanding Balance of all Receivables.
“Delinquent Receivable” means a Receivable as to which any payment, or part thereof,
remains unpaid for at least 60 days but not more than 90 days from the original invoice date for
such payment.
“Demand Notes” means each of (i) that certain promissory note, dated as of December
21, 2001, by Xxxx Foods Company (as successor-in-interest to Suiza Foods Corporation) in favor of
Dairy Group, in the maximum principal sum of $21,325,653, as amended, renewed, supplemented or
otherwise modified from time to time, (ii) that certain promissory note, dated as of May 15, 2002
and effective for all purposes as of March 31, 2002, by Xxxx Foods Company in favor of Dairy Group
II, in the maximum principal sum of $13,181,876, as amended, renewed, supplemented or otherwise
modified from time to time, (iii) that certain promissory note, dated as of November 20, 2003, by
Xxxx Foods Company in favor of Specialty Group, in the maximum principal sum of $3,000,000, as
amended, renewed, supplemented or otherwise modified from time to time, and (iv) that certain
promissory note, dated as of March 30, 2004, by Xxxx Foods Company in favor of National Brand
Group, in the maximum principal sum of $3,000,000, as amended, renewed, supplemented or otherwise
modified from time to time.
“Dilution Ratio” means, as at the end of any calendar month, a percentage equal to (i)
the aggregate amount of all Dilutions arising during such calendar month (other than
Rebate/Billbacks) with respect to all Receivables divided by (ii) the aggregate
amount of sales by all Originators for the calendar month ending two months prior to such calendar
month.
“Dilution Reserve” means an amount equal to the result of multiplying the Net
Receivables Balance by the greater of (a) 0.10 and (b) the following:
((2 X ED + ((DS-ED) X (DS/ED))) X DHR) + MRA
where:
Exh. I-13
fourth amended and restated
receivables purchase agreement
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ED
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the average of the Dilution Ratios for the twelve most
recently-ended calendar months. |
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DS
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the highest of the average Dilution Ratios for any
two-calendar-month period occurring during the twelve most recently-ended
calendar months. |
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DHR
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the result of dividing the aggregate amount of
all sales by all Originators during the prior one and a half calendar months
by the aggregate Outstanding Balance of all Eligible Receivables. |
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MRA
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0.03 until such time as the Servicers deliver a
consolidating Monthly Report pursuant to Section 8.5 in form and
substance satisfactory to the Agent, and thereafter, 0.00. |
“Dilutions” means, for each calendar month, the aggregate amount of reductions or
cancellations described in clause (i) of the definition of “Deemed Collections” during such month
(other than Rebate/Billbacks).
“Discount Rate” means, the LIBO Rate or the Prime Rate, as applicable, with respect to
each Purchaser Interest of the Financial Institutions.
“Eligible Receivable” means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is a resident of the United States
or, if a corporation or other business organization, is organized under the laws of the
United States or any political subdivision thereof and has its chief executive office in
the United States; (b) is not an Affiliate of any of the parties hereto; and (c) is not a
federal or state government or a federal or state governmental subdivision or agency,
except as permitted by clause (xxi) of this definition,
(ii) the Obligor of which is not a Top Twenty-Five Obligor or, in the case of any
Receivable the Obligor of which is a Top Twenty-Five Obligor, is not the Obligor of
Defaulted Receivables the aggregate Outstanding Balance of which constitutes more than 25%
of the Outstanding Balance of all Receivables of such Obligor,
(iii) that is not a Charged-Off Receivable or a Delinquent Receivable,
Exh. I-14
fourth amended and restated
receivables purchase agreement
(iv) that (a) by its terms is due and payable within 30 days of the original billing
date therefor and has not had its payment terms extended or (b) that by its terms is due
and payable within 90 days of the original billing date therefor and has not had its
payment terms extended, the Outstanding Balance of which, when combined with all other
Eligible Receivables that are due and payable within 90 days of the original billing date
therefor, does not exceed an amount equal to 5% of the Outstanding Balance of all
Receivables; provided, however, that in the case of the foregoing clauses
(a) and (b), no such Receivable shall be considered an Eligible Receivable to the extent of
the Outstanding Balance relating to any goods giving rise to such Receivable that are
provided on a “xxxx and hold” basis (i.e., are billed but held or stored at a warehouse
prior to shipment to the Obligor of such Receivable) for so long as such goods are so held
are stored;
(v) that is an “account” or “chattel paper” within the meaning of the UCC of all
applicable jurisdictions,
(vi) that is denominated and payable only in United States dollars in the United
States,
(vii) that arises either (A) under a Contract that, together with such Receivable, is
in full force and effect and constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance with its terms or (B) under
a Writing to the extent that such Receivable is the legal, valid and binding obligation of
the related Obligor,
(viii) that arises under a Writing or Contract that (A) does not require the Obligor
under such Writing or Contract to consent to the transfer, sale or assignment of the rights
and duties of the applicable Originator or any of its assignees under such Writing or
Contract and (B) does not contain a confidentiality provision that purports to restrict the
ability of any Purchaser to exercise its rights under this Agreement, including, without
limitation, its right to review the Writing or Contract,
(ix) that arises under a Contract that contains an obligation to pay a specified sum
of money, contingent only upon the sale of goods or the provision of services by the
applicable Originator or pursuant to a Writing that evidences the amount to be paid,
Exh. I-15
fourth amended and restated
receivables purchase agreement
(x) that, together with the Writing or Contract related thereto, does not contravene
any law, rule or regulation applicable thereto (including, without limitation, any law,
rule and regulation relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and privacy) and with
respect to which no part of the Writing or Contract related thereto is in violation of any
such law, rule or regulation,
(xi) that satisfies all applicable requirements of the applicable Credit and
Collection Policy,
(xii) that was generated in the ordinary course of the applicable Originator’s
business,
(xiii) that arises solely from the sale of goods or the provision of services to the
related Obligor by the applicable Originator, and not by any other Person (in whole or in
part),
(xiv) as to which the Agent has not notified the Administrative Seller that the Agent
has determined that such Receivable or class of Receivables is not acceptable as an
Eligible Receivable, including, without limitation, because such Receivable arises under a
Writing or Contract that is not acceptable to the Agent,
(xv) that is not subject to any right of rescission, set-off, counterclaim, any other
defense (including defenses arising out of violations of usury laws) of the applicable
Obligor against the applicable Originator or any other Adverse Claim, and the Obligor
thereon holds no right as against such Originator to cause such Originator to repurchase
the goods or merchandise the sale of which shall have given rise to such Receivable (except
with respect to sale discounts effected pursuant to the Writing or Contract, or defective
goods returned in accordance with the terms of the Writing or Contract); provided,
however, that only that portion of such Receivable that is subject to any such
right of rescission, set-off, counterclaim, other defense or Adverse Claim shall be
considered to be ineligible pursuant to this clause (xv),
(xvi) that is not the subject of a Rebate/Billback; provided,
however, that only that portion of such Receivable that is subject to such
Rebate/Billback shall be considered to be ineligible pursuant to this clause (xvi),
Exh. I-16
fourth amended and restated
receivables purchase agreement
(xvii) as to which the applicable Originators has satisfied and fully performed all
obligations on its part with respect to such Receivable required to be fulfilled by it, and
no further action is required to be performed by any Person with respect thereto other than
payment thereon by the applicable Obligor,
(xviii) all right, title and interest to and in which has been validly transferred by
the applicable Originators directly to a Seller under and in accordance with a Receivables
Sale Agreement, and such Seller has good and marketable title thereto free and clear of any
Adverse Claim,
(xix) that represents all or part of the sales price of merchandise, insurance and
services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as
amended,
(xx) the Obligor of which is a local municipality that, when the Outstanding Balance
of which is aggregated with the Outstanding Balances of all other Eligible Receivables the
Obligors of which are local municipalities, does not exceed 10% of the aggregate
Outstanding Balance of all Eligible Receivables and
(xxi) the Obligor of which is a federal or state government or a federal or state
governmental subdivision or agency that, when the Outstanding Balance of which is
aggregated with the Outstanding Balances of all other Eligible Receivables the Obligors of
which are federal or state governments or a federal or state governmental subdivisions or
agencies, does not exceed 3.0% of the aggregate Outstanding Balance of all Eligible
Receivables.
“Effective Date” means March 30, 2004.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“Extension Notice” has the meaning set forth in Section 4.6(a).
“Facility Account” means Dairy Group’s Account No. 2000013850892 at Wachovia Bank,
National Association (formerly known as First Union National Bank), ABA No. 000000000.
Exh. I-17
fourth amended and restated
receivables purchase agreement
“Facility Termination Date” means the earliest of (i) the Liquidity Termination Date
and (ii) the Amortization Date.
“Federal Bankruptcy Code” means Title 11 of the United States Code entitled
“Bankruptcy,” as amended and any successor statute thereto.
“Fee Letter” means each of (i) that certain letter agreement dated as of November 20,
2003 among each Seller, the Bank One Company and Bank One, as it may be amended, restated,
supplemented or otherwise modified and in effect from time to time, (ii) that certain letter
agreement dated as of November 20, 2003 among each Seller, the CL Company and CLNY, as it may be
amended, restated, supplemented or otherwise modified and in effect from time to time, (iii) that
certain letter agreement dated as of November 20, 2003 among each Seller, the Rabo Company and
Rabobank, as it may be amended, restated, supplemented or otherwise modified and in effect from
time to time and (iv) that certain letter agreement dated as of November 20, 2003 among each
Seller, the Wachovia Company and Wachovia, as it may be amended, restated, supplemented or
otherwise modified and in effect from time to time.
“Finance Charges” means, with respect to a Writing or Contract, any finance, interest,
late payment charges or similar charges owing by an Obligor pursuant to such Writing or Contract.
“Financial Institutions” has the meaning set forth in the preamble in this Agreement.
“Xxxxxxx Receivables” means a Receivable (i) the Obligor of which is Xxxxxxx
Companies, Inc., an Oklahoma corporation, and (ii) which arose or was created prior to the date
that Xxxxxxx Companies, Inc. took any action or suffered any event to occur, of the type described
in Section 9.1(d) (as if references to Seller Party therein refer to Xxxxxxx Companies,
Inc.).
“Funding Agreement” means this Agreement and any agreement or instrument executed by
any Funding Source with or for the benefit of a Company.
“Funding Source” means with respect to any Company (i) such Company’s Related
Financial Institution(s) or (ii) any insurance company, bank or other funding entity providing
liquidity, credit enhancement or back-up purchase support or facilities to such Company.
Exh. I-18
fourth amended and restated
receivables purchase agreement
“GAAP” means generally accepted accounting principles in effect in the United States
of America as of the date of this Agreement.
“GTL” means Xxxx Northeast, LLC (f/ka/ Suiza GTL, LLC), a Delaware limited liability
company.
“Immaterial Originator” means any Originator as to which the aggregate Outstanding
Balance of all Receivables sold by such Originator to the applicable Seller under the applicable
Receivables Sale Agreement as of any date of determination is less than 10% of the aggregate
Outstanding Balance of all Receivables sold by all Originators party thereto to such Seller under
such Receivables Sale Agreement as of such date.
“Incremental Purchase” means a purchase of one or more Purchaser Interests that
increases the total outstanding Aggregate Capital hereunder.
“Initial Servicer” means each of National Brand, Country Fresh, Land-O-Sun and
Southern Foods.
“Indebtedness” of a Person means such Person’s (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of property or services (other than
accounts payable arising in the ordinary course of such Person’s business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by liens or payable out
of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv)
obligations that are evidenced by notes, acceptances, or other instruments, (v) capitalized lease
obligations, (vi) net liabilities under interest rate swap, exchange or cap agreements, (vii)
Contingent Obligations and (viii) liabilities in respect of unfunded vested benefits under plans
covered by Title IV of ERISA.
“Independent Manager” means a manager of the limited liability company that is the
general partner of any Seller who is not at such time, and has not been at any time during the
preceding five (5) years, (A) a director, officer, employee or affiliate of either Seller, any
Originator, or any of their respective Subsidiaries or Affiliates (other than an independent
manager of a special purpose bankruptcy remote entity organized for the purpose of providing
financing to either Seller through the securitization or other similar transfer, pledge or
conveyance of accounts receivable), or (B) the beneficial owner (at the time of such Person’s
appointment as an Independent Manager or at any time thereafter while serving as an Independent
Manager) of any of any partnership interest of either Seller, any Originator, or any of their
respective Subsidiaries or Affiliates, having general voting rights.
Exh. I-19
fourth amended and restated
receivables purchase agreement
“Intercreditor Agreement” means the Third Amended and Restated Intercreditor
Agreement, dated as of the date hereof, by and among the Agent and Wachovia Bank, National
Association (formerly known as First Union National Bank), as administrative agent under the Xxxx
Credit Agreement, as amended, restated, supplemented or otherwise modified from time to time.
“Land-O-Sun” means Land-O-Sun Dairies, LLC, a Delaware limited liability company.
“LIBO Rate” means the rate per annum equal to the sum of (i) (a) the applicable
British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first day of the
relevant Tranche Period, and having a maturity equal to such Tranche Period, provided that,
(i) if Reuters Screen FRBD is not available to the Agent for any reason, the applicable LIBO Rate
for the relevant Tranche Period shall instead be the applicable British Bankers’ Association
Interest Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Tranche Period, and having a maturity equal to such Tranche Period, and (ii) if no such
British Bankers’ Association Interest Settlement Rate is available to the Agent, the applicable
LIBO Rate for the relevant Tranche Period shall instead be the rate determined by the Agent to be
the rate at which Bank One offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Tranche Period, in the approximate amount to be funded at the LIBO Rate and
having a maturity equal to such Tranche Period, divided by (b) one minus the maximum aggregate
reserve requirement (including all basic, supplemental, marginal or other reserves) that is imposed
against the Agent in respect of Eurocurrency liabilities, as defined in Regulation D of the Board
of Governors of the Federal Reserve System as in effect from time to time (expressed as a decimal),
applicable to such Tranche Period plus (ii) the Applicable Percentage. The LIBO Rate shall be
rounded, if necessary, to the next higher 1/16 of 1%.
“Liquidity Termination Date” means November 18, 2004.
“Local Originator” means each of Liberty Dairy Company, Xxxxxxxx Dairy Farms, Inc.,
XxXxxxxx Dairy, Inc., Purity Dairies, Incorporated, Xxxxxx Dairy of Akron, Inc., X.X. Xxx Foods,
Inc., and Verifine Dairy Products Corporation of Sheboygan, Inc.
Exh. I-20
fourth amended and restated
receivables purchase agreement
“Lock-Box” means each locked postal box with respect to which a bank who has executed
a Collection Account Agreement has been granted exclusive access for the purpose of retrieving and
processing payments made on the Receivables and that is listed on Exhibit IV.
“Loss Reserve” means the product of (a) the Net Receivables Balance and (b) 0.09.
“Loss Reserve Percentage” means, for any Purchaser Interest on any date, an amount
equal to the greater of: (i) 2 times the Loss Ratio multiplied by the Loss Horizon Ratio and (ii)
0.09,
where:
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Loss Ratio
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As at the last day of any calendar month, the highest three month
rolling average Aged Receivable Ratio in the most recent twelve months prior to such
month. |
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Aged Receivable Ratio
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As at the last day of any calendar month, (x) the sum of
the Outstanding Balance of all Delinquent Receivables as of such day, plus the
Outstanding Balance of all Charged-Off Receivables (without giving effect to clause
(vi) of the definition of “Charged-Off Receivable”) as of such day, divided by (y) the
aggregate sales for the calendar month occurring two months immediately prior to such
month. |
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Loss Horizon Ratio
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As at the last day of any calendar month, (x) the aggregate
amount of sales of all of the Originators for the two calendar months ending
immediately prior to such month, divided by (y) the aggregate Outstanding Balance of
all Eligible Receivables as of such day. |
“Material Adverse Effect” means a material adverse effect on (i) the financial
condition or operations of any Seller Party and its Subsidiaries taken as a whole, (ii) the ability
of any Seller Party to perform its obligations under this Agreement or
Exh. I-21
fourth amended and restated
receivables purchase agreement
Provider to perform its obligations under any Performance Undertaking, (iii) the legality,
validity or enforceability of this Agreement or any other Transaction Document, (iv) any
Purchaser’s interest in the Receivables generally or in any significant portion of the Receivables,
the Related Security or the Collections with respect thereto, or (v) the collectibility of the
Receivables generally or of any material portion of the Receivables.
“Monthly Report” means a report, in substantially the form of Exhibit X hereto
(appropriately completed), furnished by the Servicers to the Agent pursuant to Section 8.5.
“Morningstar” means Morningstar Foods Inc., a Delaware corporation.
“MRC” means Morningstar Receivables Corp., a Delaware corporation.
“National Brand” means Xxxx National Brand Group, Inc., a Delaware corporation,
formerly known as Morningstar Foods Inc.
“National Brand Receivables Sale Agreement” means the National Brand Group Receivables
Sale Agreement, dated as of March 30, 2004, by and between National Brand and National Brand Group,
as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Net Receivables Balance” means, at any time, the aggregate Outstanding Balance of all
Eligible Receivables at such time reduced by the aggregate amount by which the Outstanding Balance
of all Eligible Receivables of each Obligor and its Affiliates exceeds the Concentration Limit for
such Obligor.
“New Entity” means each of Xxxx Southwest, LLC, a Delaware limited liability, Kohler
Mix Specialties of Minnesota, LLC, a Delaware limited liability company, Kohler Mix Specialties,
LLC, a Delaware limited liability company, Xxxxxxxxxxx Xxxxxxxxx, Inc., a Delaware corporation, and
Morningstar Foods, LLC, a Delaware limited liability company.
“Non-Renewing Financial Institution” has the meaning set forth in Section
4.6(a).
“Obligations” shall have the meaning set forth in Section 2.1.
“Obligor” means a Person obligated to make payments pursuant to a Writing or Contract.
Exh. I-22
fourth amended and restated
receivables purchase agreement
“Original Agreement” has the meaning set forth in the Preliminary Statements to this
Agreement.
“Original Closing Date” means December 21, 2001.
“Original Sale Agreement” means that certain Amended and Restated Receivables Sale
Agreement, dated as of December 21, 2001, among MRC, the Suiza Originators and Dairy Group, as
amended by Amendment No. 1 thereto, dated as of May 15, 2002 and effective for all purposes as of
March 31, 2002, and as further amended by Amendment No. 2 thereto, dated as of November 20, 2003,
without giving effect to any further amendment thereto.
“Originator” means each of the entities listed on Schedule D hereto, in their
respective capacities as sellers under the Receivables Sale Agreements.
“Outstanding Balance” of any Receivable at any time means the then outstanding
principal balance thereof.
“Participant” has the meaning set forth in Section 12.2.
“Performance Undertaking” means each of (i) that certain Third Amended and Restated
Performance Undertaking, dated as of March 30, 2004, by Provider in favor of Dairy Group, (ii) that
certain Second Amended and Restated Xxxx Performance Undertaking, dated as of March 30, 2004, by
Provider in favor of Dairy Group II, (iii) that certain Specialty Performance Undertaking, dated as
of November 20, 2003, by Provider in favor of Specialty Group, and (iv) that certain National Brand
Group Performance Undertaking, dated as of March 30, 2004, by Provider in favor of National Brand
Group, each substantially in the form of Exhibit XI and as each may be further amended,
restated or otherwise modified from time to time.
“Periodic Report” means each Monthly Report and Weekly Report.
“Person” means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency thereof.
“Pool Company” means the Bank One Company, the Rabo Company and the Wachovia Company.
Exh. I-23
fourth amended and restated
receivables purchase agreement
“Pooled Commercial Paper” means Commercial Paper notes of any Pool Company subject to
any particular pooling arrangement by such Pool Company, but excluding Commercial Paper issued by
such Pool Company for a tenor and in an amount specifically requested by any Person in connection
with any agreement effected by such Pool Company.
“Potential Amortization Event” means an event that, with the passage of time or the
giving of notice, or both, would constitute an Amortization Event.
“Prime Rate” means a rate per annum equal to the prime rate of interest announced from
time to time by Bank One or its parent (which is not necessarily the lowest rate charged to any
customer), changing when and as said prime rate changes.
“Proposed Reduction Date” has the meaning set forth in Section 1.3.
“Pro Rata Share” means, (a) for each Financial Institution, a percentage equal to (i)
the Commitment of such Financial Institution, divided by (ii) the aggregate amount
of all Commitments of all Financial Institutions in such Financial Institution’s Purchaser Group,
adjusted as necessary to give effect to the application of the terms of Section 4.6 and (b)
for each Company, a percentage equal to (i) the Company Purchase Limit of such Company,
divided by (ii) the aggregate amount of all Company Purchase Limits of all
Companies hereunder.
“Provider” means Xxxx Foods Company, a Delaware corporation, together with its
successors and assigns.
“Purchase Limit” means $500,000,000, as such amount may be modified in accordance with
the terms of Section 4.6(b).
“Purchase Notice” has the meaning set forth in Section 1.2.
“Purchase Price” means, with respect to any Incremental Purchase of a Purchaser
Interest, the amount paid to the applicable Seller for such Purchaser Interest that shall not
exceed the least of (i) the amount requested by the Administrative Seller in the applicable
Purchase Notice, (ii) the unused portion of the Purchase Limit on the applicable purchase date and
(iii) the excess, if any, of the Net Receivables Balance (less the Aggregate Reserves) on the
applicable purchase date over the aggregate outstanding amount of Aggregate Capital determined as
of the date of the most recent Monthly Report, taking into account such proposed Incremental
Purchase.
Exh. I-24
fourth amended and restated
receivables purchase agreement
“Purchaser Group” means with respect to (i) each Company, a group consisting of such
Company and its Related Financial Institutions and (ii) each Financial Institution, a group
consisting of such Financial Institution, the Company for which such Financial Institution is a
Related Financial Institution and each other Financial Institution that is a Related Financial
Institution for such Company.
“Purchasers” means each Company and each Financial Institution.
“Purchaser Interest” means, at any time, an undivided percentage ownership interest
(computed as set forth below) associated with a designated amount of Capital, selected pursuant to
the terms and conditions hereof in (i) each Receivable arising prior to the time of the most recent
computation or recomputation of such undivided interest, (ii) all Related Security with respect to
each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such
Receivable. Each such undivided percentage interest shall equal:
C
where:
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C
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the Capital of such Purchaser Interest. |
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AR
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the Aggregate Reserves. |
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NRB
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=
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the Net Receivables Balance. |
Such undivided percentage ownership interest shall be initially computed on its date of purchase.
Thereafter, until the Amortization Date, each Purchaser Interest shall be automatically recomputed
(or deemed to be recomputed) on each day prior to the Amortization Date. The variable percentage
represented by any Purchaser Interest as computed (or deemed recomputed) as of the close of the
business day immediately preceding the Amortization Date shall remain constant at all times
thereafter.
“Purchasing Financial Institution” has the meaning set forth in Section
12.1(b).
“Rabo Company” means Nieuw Amsterdam Receivables Corporation, a Delaware corporation,
together with its successors and assigns.
Exh. I-25
fourth amended and restated
receivables purchase agreement
“Rabobank” means Cooperatieve Centrale Raiffeisen — Boerenleenbank B.A. “Rabobank
International”, New York Branch, a Netherlands banking cooperative duly licensed under the laws of
the State of New York.
“Rating Agency” means, collectively, the nationally recognized rating agency or
agencies chosen by each of the Rabo Company the CL Company to rate its respective Commercial Paper
notes at any time, including, as of the date hereof, Xxxxx’x Investors Service, Inc., Fitch Ratings
and Standard and Poor’s Ratings Group.
“Rebate/Billback” means, with respect to any Receivable, any incentives provided to
the Obligor thereof related to volume rebates or price incentives, the dollar amount of which is
known at the time of invoice of such Receivable.
“Receivable” means all indebtedness and other obligations owed to the applicable
Originator (at the time it arises, and before giving effect to any transfer or conveyance under any
Receivables Sale Agreement or hereunder) or owed to any Seller (after giving effect to any transfer
or conveyance under any Receivables Sale Agreement or hereunder) or in which any Seller or such
Originator has a security interest or other interest, including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel paper, instrument or general
intangible, arising in connection with the sale of goods or the rendering of services by such
Originator and further includes, without limitation, the obligation to pay any Finance Charges with
respect thereto. Indebtedness and other rights and obligations arising from any one transaction,
including, without limitation, indebtedness and other rights and obligations represented by an
individual invoice, shall constitute a Receivable separate from a Receivable consisting of the
indebtedness and other rights and obligations arising from any other transaction; provided
that any indebtedness, rights or obligations referred to in the immediately preceding sentence
shall be a Receivable regardless of whether the account debtor or any Seller treats such
indebtedness, rights or obligations as a separate payment obligation.
“Receivables Sale Agreement” means each of the Suiza Receivables Sale Agreement, the
Xxxx Receivables Sale Agreement, the Specialty Receivables Sale Agreement and the National Brand
Receivables Sale Agreement.
“Records” means, with respect to any Receivable, all Writings or Contracts and other
documents, books, records and other information (including, without limitation, computer programs,
tapes, disks, punch cards, data processing software
Exh. I-26
fourth amended and restated
receivables purchase agreement
and related property and rights) relating to such Receivable, any Related Security therefor
and the related Obligor.
“Reduction Notice” has the meaning set forth in Section 1.3.
“Regulatory Change” has the meaning set forth in Section 10.2(a).
“Reinvestment” has the meaning set forth in Section 2.2.
“Related Financial Institution” means with respect to each Company, each Financial
Institution set forth opposite such Company’s name in Schedule A to this Agreement and/or,
in the case of an assignment pursuant to Section 12.1, set forth in the applicable
Assignment Agreement.
“Related Security” means, with respect to any Receivable:
(i) all security interests or liens and property subject thereto from time to time, if
any, purporting to secure payment of such Receivable, whether pursuant to the Writing or
Contract related to such Receivable or otherwise, together with all financing statements
and security agreements describing any collateral securing such Receivable,
(ii) all guaranties, letters of credit, insurance, “supporting obligations” (within
the meaning of Section 9-102(a) of the UCC of all applicable jurisdictions) and other
agreements or arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the Writing or Contract related to such
Receivable or otherwise,
(iii) all service contracts and other contracts and agreements associated with such
Receivable,
(iv) all Records related to such Receivable,
(v) all of the applicable Seller’s right, title and interest in, to and under the
Receivables Sale Agreement to which it is a party in respect of such Receivable and all of
the applicable Seller’s right, title and interest in, to and under the applicable
Performance Undertaking,
(vi) all of the applicable Seller’s right, title and interest in, to and under each
Demand Note, and
Exh. I-27
fourth amended and restated
receivables purchase agreement
(vii) all proceeds of any of the foregoing.
“Required Notice Period” means the number of days required notice set forth below
applicable to the Aggregate Reduction indicated below:
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Aggregate Reduction |
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Required Notice Period |
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£ $100,000,000
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two Business Days |
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>$100,000,000 to $250,000,000
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five Business Days |
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³ $250,000,000
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ten Business Days |
“Required Purchasers” means, at any time, collectively, the Financial Institutions
with Commitments in excess of 66-2/3% of the aggregate Commitments and the Companies with Company
Purchase Limits in excess of 66-2/3% of the aggregate amount of all Company Purchase Limits of all
Companies hereunder.
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of capital stock or other equity interest of any
Seller now or hereafter outstanding, except a dividend or distribution payable solely in shares of
that class of stock or equity interest or in any junior class of stock or other junior equity
interest of such Seller, (ii) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of any class of capital stock or
other equity interest of any Seller now or hereafter outstanding, (iii) any payment or prepayment
of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment and any claim for
rescission with respect to the Subordinated Loans (as defined in the Receivables Sale Agreements),
(iv) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of capital stock or
other equity interest of any Seller now or hereafter outstanding, and (v) any payment of management
fees by any Seller (except for reasonable management fees to the Originators or their respective
Affiliates in reimbursement of actual management services performed).
“Seller” has the meaning set forth in the preamble to this Agreement.
“Seller Parties” has the meaning set forth in the preamble to this Agreement.
Exh. I-28
fourth amended and restated
receivables purchase agreement
“Servicer” means at any time any Person or Persons (which may be the Agent) then
authorized pursuant to Article VIII to service, administer and collect Receivables.
“Servicing Fee” has the meaning set forth in Section 8.6.
“Settlement Date” means (A) the 5th Business Day of each month, (B) the
last day of the relevant CP (Tranche) Accrual Period in respect of each Purchaser Interest held by
the any Pool Company (other than any Purchaser Interest funded substantially with Pooled Commercial
Paper) and in respect of each Purchaser Interest held by the CL Company and (C) the last day of the
relevant Tranche Period in respect of each Purchaser Interest of the Financial Institutions.
“Settlement Period” means (A) in respect of each Purchaser Interest of each Pool
Company that is funded substantially with Pooled Commercial Paper, the immediately preceding CP
(Pool) Accrual Period, (B) in respect of each other Purchaser Interest of any Pool Company and each
Purchaser Interest of the CL Company, the entire CP (Tranche) Accrual Period of such Purchaser
Interest and (C) in respect of each Purchaser Interest of the Financial Institutions, the entire
Tranche Period of such Purchaser Interest.
“Southern Foods” means Southern Foods Group, L.P., a Delaware limited partnership.
“Specialty Receivables Sale Agreement” means the Specialty Receivables Sale Agreement,
dated as of November 20, 2003, by and among Xxxx Specialty and Specialty Group, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, association, limited liability company, joint
venture or similar business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
“Suiza Originator” means each of Southern Foods, Country Fresh, GTL, Land-O-Sun and
Tuscan Dairies.
Exh. I-29
fourth amended and restated
receivables purchase agreement
“Suiza Receivables Sale Agreement” means that certain Amended and Restated Receivables
Sale Agreement, dated as of December 21, 2001, among the Suiza Originators, certain other
Originators and Dairy Group, as amended by Amendment No. 1 thereto, dated as of May 15, 2002 and
effective for all purposes as of March 31, 2002, as further amended by Amendment No. 2 thereto,
dated as of November 20, 2003, and as further amended by Amendment No. 3 thereto, dated as of March
30, 2004, as the same may be further amended, restated, supplemented or otherwise modified from
time to time.
“Terminating Commitment Amount” means, with respect to any Terminating Financial
Institution, an amount equal to the Commitment (without giving effect to clause (iii) of the
proviso to the penultimate sentence of Section 4.6(a)) of such Terminating Financial
Institution, minus, an amount equal to 2% of such Commitment.
“Terminating Commitment Availability” means, with respect to any Terminating Financial
Institution, the positive difference (if any) between (a) an amount equal to the Commitment
(without giving effect to clause (iii) of the proviso to the penultimate sentence of Section
4.6(a)) of such Terminating Financial Institution, minus, an amount equal to 2% of such
Commitment minus (b) the Capital of the Purchaser Interests funded by such Terminating
Financial Institution.
“Termination Date” means, with respect to a Terminating Financial Institution and, if
applicable, each Company in such Terminating Financial Institution’s Purchaser Group, the date on
which such Terminating Financial Institution became a Non-Renewing Financial Institution or, in the
case of Section 9.2, the date such Financial Institution terminates its Commitment in
accordance therewith.
“Termination Percentage” has the meaning set forth in Section 2.2.
“Terminating CP Tranche” has the meaning set forth in Section 3.4(b).
“Terminating Financial Institution” has the meaning set forth in Section
4.6(a).
“Terminating Tranche” has the meaning set forth in Section 4.3(b).
“Top Twenty-Five Obligors” means, of all Obligors of Receivables, the twenty-five
Obligors having the highest aggregate outstanding balances of all Receivables as of the immediately
preceding March 30, provided that until the first
Exh. I-30
fourth amended and restated
receivables purchase agreement
occurrence of such date after the date hereof, the Top Twenty-Five Obligors shall be those
Obligors listed on Schedule F.
“Tranche Period” means, with respect to any Purchaser Interest held by a Financial
Institution:
(a) if Yield for such Purchaser Interest is calculated on the basis of the LIBO Rate,
a period of one, two, three or six months, or such other period as may be mutually
agreeable to the applicable Financial Institution and the Administrative Seller, commencing
on a Business Day selected by the Administrative Seller or the applicable Financial
Institution pursuant to this Agreement. Such Tranche Period shall end on the day in the
applicable succeeding calendar month that corresponds numerically to the beginning day of
such Tranche Period, provided, however, that if there is no such
numerically corresponding day in such succeeding month, such Tranche Period shall end on
the last Business Day of such succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the basis of the Prime
Rate, a period commencing on a Business Day selected by the Administrative Seller and
agreed to by the applicable Financial Institution, provided no such period shall
exceed one month.
If any Tranche Period would end on a day that is not a Business Day, such Tranche Period shall end
on the next succeeding Business Day, provided, however, that in the case of Tranche
Periods corresponding to the LIBO Rate, if such next succeeding Business Day falls in a new month,
such Tranche Period shall end on the immediately preceding Business Day. In the case of any
Tranche Period for any Purchaser Interest that commences before the Amortization Date and would
otherwise end on a date occurring after the Amortization Date, such Tranche Period shall end on the
Amortization Date. The duration of each Tranche Period that commences after the Amortization Date
shall be of such duration as selected by the applicable Financial Institution.
“Transaction Documents” means, collectively, this Agreement, each Purchase Notice,
each Receivables Sale Agreement, each Collection Account Agreement, each Performance Undertaking,
the Intercreditor Agreement, the Fee Letters, the Agreement of General Partner, the Demand Notes,
the Subordinated Notes (as defined in each Receivables Sale Agreement) and all other instruments,
documents and agreements executed and delivered in connection herewith.
Exh. I-31
fourth amended and restated
receivables purchase agreement
“Transfer Agreement” means that certain Amended and Restated Receivables Transfer
Agreement dated as of December 21, 2001, between Morningstar and MRC, as amended, restated,
supplemented or otherwise modified from time to time.
“Tuscan Dairies” means Tuscan/Lehigh Dairies, Inc., a Delaware corporation.
“UCC” means the Uniform Commercial Code as from time to time in effect in the
specified jurisdiction.
“Wachovia Company” means Blue Ridge Asset Funding Corporation, a Delaware corporation,
together with its successors and assigns.
“Wachovia” means Wachovia Bank, National Association, a national banking corporation.
“Weekly Report” has the meaning set forth in Section 8.5.
“White Wave” has the meaning set forth in Section 7.2(d).
“Writing” means, with respect to any Receivable, any and all instruments, invoices,
purchase orders or other writings (which may be electronic) (other than Contracts) pursuant to
which such Receivable arises or that evidences such Receivable.
“Yield” means for each respective Tranche Period relating to Purchaser Interests of
the Financial Institutions, an amount equal to the product of the applicable Discount Rate for each
Purchaser Interest multiplied by the Capital of such Purchaser Interest for each day elapsed during
such Tranche Period, annualized on a 360 day basis.
“Yield and Servicer Reserve” means, on any date, an amount equal to 2.5% of the Net
Receivables Balance as of the close of business of the Servicers on such date.
All accounting terms not specifically defined herein shall be construed in accordance with
GAAP. All terms used in Article 9 of the UCC in the State of
Illinois, and not specifically
defined herein, are used herein as defined in such Article 9.
Exh. I-32
fourth amended and restated
receivables purchase agreement
EXHIBIT II
FORM OF PURCHASE NOTICE
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Bank One, NA (Main Office Chicago),
as Agent
1 Bank One Plaza, 19th Floor
Mail Code IL1-0079
Asset-Backed Finance
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Transaction Management
Credit Lyonnais New York Branch
1301 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx Xx.
Cooperatieve Centrale Raiffeisen -
Boerenleenbank B.A. “Rabobank
International”, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, X.X.
Mail Code GA 8047, 22nd Floor
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
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Falcon Asset Securitization Corporation
c/o Bank One, NA (Main Office
Chicago), as Agent
1 Bank One Plaza
Mail Code IL1-0594
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Falcon Funding Manager
Atlantic Asset Securitization Corp.
c/o Credit Lyonnais New York Branch
1301 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx Xx.
Nieuw Amsterdam Receivables Corporation
c/o Global Securitization Services
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxx
Blue Ridge Asset Funding Corporation
c/o Wachovia Capital Markets, LLC
000 X. Xxxxxxx Xxxxxx
FLR TRW 10 NC0610
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx. |
Re: PURCHASE NOTICE
Ladies and Gentlemen:
Reference is hereby made to the Fourth Amended and Restated Receivables Purchase Agreement,
dated as of March 30, 2004, by and among Dairy Group
Exh. II-1
fourth amended and restated
receivables purchase agreement
Receivables, L.P., Dairy Group Receivables II, L.P., Specialty Group
Receivables, L.P. and Xxxx National Brand Group, L.P., as Sellers, the Servicers party thereto, the
Financial Institutions party thereto, the Companies party thereto, and Bank One, NA (Main Office
Chicago), as Agent (as amended, restated, supplemented or otherwise modified from time to time, the
“Receivables Purchase Agreement”). Capitalized terms used herein shall have the meanings
assigned to such terms in the Receivables Purchase Agreement.
The Agent and the Purchasers are hereby notified of the following Incremental Purchase:
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Purchase Price:
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Date of Purchase: |
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Requested Discount Rate:
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[LIBO Rate] [Prime Rate] [Commercial Paper rate]
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Please credit the Purchase Price in immediately available funds to our Facility Account on the
above-specified date of purchase as set forth below:
[Account Name]
[Account No.]
[Bank Name & Address]
[ABA #]
Reference:
Telephone advice to: [Name] @ tel. No. ( )
Please advise [Name] at telephone no ( ) if any Company will not be making
this purchase.
In connection with the Incremental Purchase to be made on the above listed “Date of Purchase”
(the “Purchase Date”), the Administrative Seller hereby certifies that the following
statements are true on the date hereof, and will be true on the Purchase Date (before and after
giving effect to the proposed Incremental Purchase):
(i) the representations and warranties of each Seller set forth in Section 5.1 of the
Receivables Purchase Agreement are true and correct on and as of the Purchase Date as though made
on and as of such date;
Exh. II-2
fourth amended and restated
receivables purchase agreement
(ii) no event has occurred and is continuing, or would result from the proposed
Incremental Purchase, that will constitute an Amortization Event or a Potential Amortization Event;
(iii) the Facility Termination Date has not occurred, the Aggregate Capital does not exceed
the Purchase Limit and the aggregate Purchaser Interests do not exceed 100%; and
(iv) the amount of Aggregate Capital is $ after giving effect to the Incremental
Purchase to be made on the Purchase Date.
Very truly yours,
DAIRY GROUP RECEIVABLES, L.P.,
as Administrative Seller
By:
Name:
Title:
Exh. II-3
fourth amended and restated
receivables purchase agreement
EXHIBIT III
JURISDICTION OF ORGANIZATION;
PRINCIPAL PLACES OF BUSINESS;
CHIEF EXECUTIVE OFFICES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S);
STATE ORGANIZATIONAL NUMBER;
OTHER NAMES
See Attached.
Exh. II-1
fourth amended and restated
receivables purchase agreement
EXHIBIT IV
NAME OF COLLECTION BANKS; COLLECTION ACCOUNTS
See Attached.
Exh. III-1
fourth amended and restated
receivables purchase agreement
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA (Main Office Chicago), as Agent for the benefit of the Purchasers
This Compliance Certificate is furnished pursuant to that certain Fourth Amended and Restated
Receivables Purchase Agreement dated as of March 30, 2004, among Dairy Group Receivables, L.P.,
Dairy Group Receivables II, L.P., Specialty Group Receivables, L.P. and Xxxx National Brand Group,
L.P., as Sellers, the Servicers party thereto, the Financial Institutions party thereto, the
Companies party thereto, and Bank One, NA (Main Office Chicago), as Agent (as amended, restated,
supplemented, or otherwise modified from time to time, the “Agreement”). Capitalized terms
used and not otherwise defined herein are used with the meanings attributed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of [Insert name of applicable Seller Party or
Originator] (the “Applicable Party”).
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made
under my supervision, a detailed review of the transactions and conditions of the Applicable Party
and its Subsidiaries during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of,
the existence of any condition or event that constitutes an Amortization Event or Potential
Amortization Event during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth in paragraph 5 below.
4. Schedule I attached hereto sets forth financial data and computations evidencing the
compliance with certain covenants of the Agreement, all of which data and computations are true,
complete and correct.
5. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and
the action that the Applicable Party has taken, is taking, or proposes to take with respect to
each such condition or event:
Exh. V-1
fourth amended and restated
receivables purchase agreement
6. As of the date hereof, the jurisdiction of organization of each Seller and each
Servicer is Delaware, each of the Sellers and each Servicer is a “registered organization” (within
the meaning of Section 9-102 of the UCC in effect in such applicable jurisdiction) and neither any
Seller nor any Servicer has changed its jurisdiction of organization since the date of the
Agreement.
Exh. V-2
fourth amended and restated
receivables purchase agreement
he foregoing certifications, together with the computations set forth in Schedule
I hereto and the financial statements delivered with this Certificate in support hereof, are
made and delivered this ___day of , ___.
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Exh. V-3
fourth amended and restated
receivables purchase agreement
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. |
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Schedule of Compliance as of , ___with Section ___of the Agreement. Unless
otherwise defined herein, the terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement. |
This schedule relates to the month ended:
Exh. V-4
fourth amended and restated
receivables purchase agreement
EXHIBIT VI
FORM OF COLLECTION ACCOUNT AGREEMENT
[On letterhead of Originator]
, ___
[Lock-Box Bank/Concentration Bank/Depositary Bank]
Re: [Applicable Originator]
Ladies and Gentlemen:
Reference is hereby made to P.O. Box # in [city, state, zip code] (the
“Lock-Box”) of which you have exclusive control for the purpose of receiving mail and
processing payments therefrom pursuant to that certain [name of lock-box agreement] between you and
[applicable Originator] (the “Company”) dated (the “Agreement”). You hereby
confirm your agreement to perform the services described therein. Among the services you have
agreed to perform therein, is to endorse all checks and other evidences of payment, and credit such
payments to the Company’s checking account no. maintained with you in the name of the Company
(the “Lock-Box Account”).
The Company hereby informs you that pursuant to that certain [Amended and Restated Receivables
Sale Agreement, dated as of December 21, 2001], [Xxxx Receivables Sale Agreement, dated as of May
15, 2002 and effective for all purposes as of March 31, 2002], [Specialty Receivables Sale
Agreement, dated as of November 20, 2003], [National Brand Group Receivables Sale Agreement, dated
as of March 30, 2004], among the Company, the other parties thereto as Originators and [Dairy Group
Receivables, L.P.] [Dairy Group Receivables II, L.P.] [Specialty Group Receivables, L.P.] [Xxxx
National Brand Group, L.P.] (“Seller”), the Company has transferred all of its right, title
and interest in and to, and exclusive ownership and control of, the Lock-Box and the Lock-Box
Account to Seller. The Company and Seller hereby request that the name of the Lock-Box Account be
changed to “[applicable Servicer], as Servicer.”
The Company and Seller hereby irrevocably instruct you, and you hereby agree, that (i) if at
any time you receive any instruction originated by Bank One, NA (Main Office Chicago) (“Bank
One”) directing the disposition of funds in the Lock-
Exh. VI-1
fourth amended and restated
receivables purchase agreement
Box Account you will comply with such instruction without further consent of the Company,
Seller or any other person or entity, provided, that until you receive notice in the form
attached hereto as Annex A (a “Notice”) from Bank One, Seller and the Company, as servicer,
shall be entitled to give instructions directing the disposition of funds in the Lock-Box Account;
(ii) notwithstanding anything to the contrary contained herein, if at any time you receive
conflicting instructions from Bank One and Seller or the Company, you shall follow the instructions
of Bank One and not Seller or the Company; and (iii) upon receiving a Notice, (A) you will take
all instructions regarding the Lock-Box Account and the disposition of funds therein solely from
Bank One, (B) the name of the Lock-Box Account will be changed to Bank One for itself and as agent
(or any designee of Bank One) and Bank One will have exclusive ownership of and access to and sole
control of the Lock-Box and the Lock-Box Account, and neither the Company, Seller, nor any of their
respective affiliates will have any control of the Lock-Box or the Lock-Box Account or any access
thereto, (C) you will either continue to send the funds from the Lock-Box to the Lock-Box Account,
or will redirect the funds as Bank One may otherwise request, (D) you will transfer monies on
deposit in the Lock-Box Account, at any time, as directed by Bank One and otherwise comply with all
instructions received from Bank One with respect to the Lock-Box and the Lock-Box Account without
further consent by the Company, Seller or any other person or entity, (E) all services to be
performed by you under the Agreement will be performed on behalf of Bank One, and (F) all
correspondence or other mail that you have agreed to send to the Company or Seller will be sent to
Bank One at the following address:
Bank One, NA (Main Office Chicago), as Agent
Mail Code IL1- __
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-__
Attention: Credit Manager, Asset Backed
Securities Division
Moreover, upon such notice, Bank One for itself and as agent will have all rights and remedies
given to the Company (and Seller, as the Company’s assignee) under the Agreement. Seller agrees,
however, to continue to pay all fees and other assessments due thereunder at any time.
You hereby acknowledge that monies deposited in the Lock-Box Account or any other account
established with you by Bank One for the purpose of receiving funds from the Lock-Box are subject
to the liens of Bank One for itself and as agent, and will not be subject to deduction, set-off,
recoupment, banker’s lien or any other right you or any other party may have against the Company,
Seller or any
Exh. VI-2
fourth amended and restated
receivables purchase agreement
of their respective affiliates (including, without limitation, any security
interest therein arising by operation of law or otherwise, which security interest is hereby
released and terminated).
You hereby acknowledge and agree that (i) you are executing this letter agreement and agree to
perform hereunder in your capacity as a “bank” as defined in Section 9-102 of the UCC; (ii) the
Lock-Box Account is, and will be maintained as, a “deposit account” as defined in Section 9-102 of
the UCC and shall be governed by the laws of the State of
Illinois; (iii) regardless of any
provision in any other agreement, for purposes of the UCC,
Illinois shall be deemed to be your
jurisdiction (within the meaning of Section 9-304 of the UCC); (iv) there are no agreements entered
into between you and/or the Company or Seller with respect to the Lock-Box Account, except the
Agreement; (v) you have not entered into, and until termination of this letter agreement will not
enter into, any agreement with any other party relating to the Lock-Box Account and/or any
financial assets or funds credited or deposited thereto pursuant to which you have agreed to comply
with instructions (within the meaning of Section 9-104 of the UCC) of such other party; (vi) you
will not change the name or account number of the Lock-Box Account without the prior written
consent of Bank One; (vii) you have not entered into, and until termination of this letter
agreement will not enter into, any agreement purporting to limit or condition your obligation to
comply with instructions; (viii) except for the claims and interest of Bank One and Seller in the
Lock-Box Account, you do not know of any lien on or claim to, or interest in the Lock-Box Account
or funds deposited or credited thereto; and (ix) if any party asserts any lien, encumbrance or
similar process against the Lock-Box Account or funds deposited or credited thereto, you will
promptly notify Bank One and Seller thereof. All references herein to the “UCC” shall mean the
Uniform Commercial Code as in effect from time to time in the State of
Illinois.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS. This letter
agreement may be executed in
any number of counterparts and all of such counterparts taken together will be deemed to
constitute one and the same instrument.
This letter agreement contains the entire agreement between the parties, and may not be
altered, modified, terminated or amended in any respect, nor may any right, power or privilege of
any party hereunder be waived or released or discharged, except upon execution by all parties
hereto of a written instrument so providing. In the event that any provision in this letter
agreement is in conflict with,
Exh. VI-3
fourth amended and restated
receivables purchase agreement
or inconsistent with, any provision of the Agreement or any other agreement now existing or
hereafter entered into, this letter agreement will exclusively govern and control. Each party
agrees to take all actions reasonably requested by any other party to carry out the purposes of
this letter agreement or to preserve and protect the rights of each party hereunder.
Exh. VI–4
fourth amended and restated
receivables purchase agreement
Please indicate your agreement to the terms of this letter agreement by signing in the
space provided below. This letter agreement will become effective immediately upon execution of a
counterpart of this letter agreement by all parties hereto.
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Very truly yours, |
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Exh. VI–5
fourth amended and restated
receivables purchase
agreement
Acknowledged and agreed to
this ___day of
[COLLECTION BANK]
By:
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO), as Agent
By:
Name:
Title:
Exh. VI–6
fourth amended and restated
receivables purchase
agreement
ANNEX A
FORM OF NOTICE
[On letterhead of Bank One]
, ___
[Collection Bank/Depositary Bank/Concentration Bank]
Re: [Applicable Originator]
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights pursuant to that certain letter
agreement among [applicable Originator], [Dairy Group Receivables, L.P.] [Dairy Group Receivables
II, L.P.] [Specialty Group Receivables, L.P.] [Xxxx National Brand Group, L.P.], you and us, to
have the name of, and to have exclusive ownership and sole control of, account number (the
“Lock-Box Account”) maintained with you, transferred to us. You are hereby instructed not
to accept any direction, instructions or entitlement orders with respect to the Lock-Box Account or
the funds credited thereto from any person or entity other than us, unless otherwise ordered by a
court of competent jurisdiction. [The Lock-Box Account will henceforth be a zero-balance account,
and funds deposited in the Lock-Box Account should be sent at the end of each day to .] You
have further agreed to perform all other services you are performing under that certain agreement
dated
between you and [applicable Originator] on our behalf.
We appreciate your cooperation in this matter.
Very truly yours,
BANK ONE, NA (MAIN OFFICE CHICAGO) (for itself and as agent)
By:
Name:
Title:
Exh. VI–7
fourth amended and restated
receivables purchase
agreement
EXHIBIT VII
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this “Assignment Agreement”) is entered into as of the ___
day of , ___, by and between (“Assignor”) and
(“Assignee”).
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered in accordance with Section
12.1(b) of that certain Fourth Amended and Restated Receivables Purchase Agreement, dated as of
March 30, 2004, by and among Dairy Group Receivables, L.P., Dairy Group Receivables II, L.P.,
Specialty Group Receivables, L.P. and Xxxx National Brand Group, L.P., as Sellers, the Servicers
party thereto, the Financial Institutions party thereto, the Companies party thereto, and Bank One,
NA (Main Office Chicago), as Agent (as amended, modified or restated from time to time, the
“Purchase Agreement”). Capitalized terms used and not otherwise defined herein are used
with the meanings set forth or incorporated by reference in the Purchase Agreement.
B. Assignor is a Financial Institution party to the Purchase Agreement, and Assignee wishes to
become a Financial Institution thereunder; and
C. Assignor is selling and assigning to Assignee an undivided % (the
“Transferred Percentage”) interest in all of Assignor’s rights and obligations under the
Purchase Agreement and the Transaction Documents, including, without limitation,
Assignor’s Commitment and (if applicable) the Capital of Assignor’s Purchaser Interests as set
forth herein.
AGREEMENT
The parties hereto hereby agree as follows:
1. The sale, transfer and assignment effected by this Assignment Agreement shall become
effective (the “Effective Date”) two (2) Business Days (or such other date selected by the
Agent in its sole discretion) following the date on which a notice substantially in the form of
Schedule II to this Assignment Agreement (“Effective Notice”) is delivered by the
Agent to the Company in the Assignor’s and
Assignee’s Purchaser Group, Assignor and Assignee. From and after the Effective Date,
Assignee shall be a Financial Institution party to the Purchase Agreement for
Exh. VII–1
fourth amended and restated
receivables purchase
agreement
all purposes thereof as if Assignee were an original party thereto and Assignee agrees to be
bound by all of the terms and provisions contained therein.
2. If Assignor has no outstanding Capital under the Purchase Agreement, on the Effective Date,
Assignor shall be deemed to have hereby transferred and assigned to Assignee, without recourse,
representation or warranty (except as provided in paragraph 6 below), and the Assignee
shall be deemed to have hereby irrevocably taken, received and assumed from Assignor, the
Transferred Percentage of Assignor’s Commitment and all rights and obligations associated therewith
under the terms of the Purchase Agreement, including, without limitation, the
Transferred Percentage of Assignor’s future funding obligations under Article I of the Purchase
Agreement.
3. If Assignor has any outstanding Capital under the Purchase Agreement, at or before 12:00
noon, local time of Assignor, on the Effective Date Assignee shall pay to Assignor, in immediately
available funds, an amount equal to the sum of (i) the Transferred Percentage of the outstanding
Capital of Assignor’s Purchaser Interests (such amount, being hereinafter referred to as the
“Assignee’s Capital”); (ii) all accrued but unpaid (whether or not then due) Yield
attributable to Assignee’s Capital; and (iii) accruing but unpaid fees and other costs and expenses
payable in respect of Assignee’s Capital for the period commencing upon each date such unpaid
amounts commence accruing, to and including the Effective Date (the “Assignee’s Acquisition
Cost”); whereupon, Assignor shall be deemed to have sold, transferred and assigned to Assignee,
without recourse, representation or warranty (except as provided in paragraph 6 below), and
Assignee shall be deemed to have hereby irrevocably taken, received and assumed from Assignor, the
Transferred Percentage of Assignor’s Commitment and the Capital of Assignor’s Purchaser Interests
(if applicable) and all related rights and obligations under the Purchase Agreement and the
Transaction Documents, including, without limitation, the Transferred Percentage of
Assignor’s future funding obligations under Article I of the Purchase Agreement.
4. Concurrently with the execution and delivery hereof, Assignor will provide to Assignee
copies of all documents requested by Assignee that were delivered to Assignor pursuant to the
Purchase Agreement.
5. Each of the parties to this Assignment Agreement agrees that at any time and from time to
time upon the written request of any other party, it will execute and deliver such further
documents and do such further acts and things as
such other party may reasonably request in order to effect the purposes of this Assignment
Agreement.
6. By executing and delivering this Assignment Agreement, Assignor and Assignee confirm to and
agree with each other, the Agent and the other Financial Institutions in the Assignor’s and
Assignee’s Purchaser Group as follows:
Exh. VII–2
fourth amended and restated
receivables purchase
agreement
(a) other than the representation and warranty that it has not created any Adverse Claim upon
any interest being transferred hereunder, Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations made by any other
Person in or in connection with the Purchase Agreement or the Transaction Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of Assignee, the
Purchase Agreement or any other instrument or document furnished pursuant thereto or the
perfection, priority, condition, value or sufficiency of any collateral; (b) Assignor makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
any Seller, any Obligor or any Affiliate thereof or the performance or observance by any Seller,
any Obligor or any Affiliate thereof of any of their respective obligations under the Transaction
Documents or any other instrument or document furnished pursuant thereto or in connection
therewith; (c) Assignee confirms that it has received a copy of the Purchase Agreement and copies
of such other Transaction Documents, and other documents and information as it has requested and
deemed appropriate to make its own credit analysis and decision to enter into this Assignment
Agreement; (d) Assignee will, independently and without reliance upon the Agent, any Company, any
Seller or any other Financial Institution or Purchaser and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Purchase Agreement and the Transaction Documents; (e) Assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to exercise such powers
under the Transaction Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; and (f) Assignee agrees that it will perform in
accordance with their terms all of the obligations that, by the terms of the Purchase Agreement and
the other Transaction Documents, are required to be performed by it as a Financial Institution
(including, without limitation, as a Related Financial Institution) or, when
applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees with the Agent that it is aware of
and will comply with the provisions of the Purchase Agreement, including, without
limitation, Article I and Sections 4.1 and 14.6 thereof.
8. Schedule I hereto sets forth the revised Commitment of Assignor, the Company for
which Assignee shall act as a Related Financial
Institution and the Commitment of Assignee, as well as administrative information with respect
to Assignee.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF ILLINOIS.
10. Assignee hereby covenants and agrees that, prior to the date that is one year and one day
after the payment in full of all senior indebtedness for
Exh. VII–3
fourth amended and restated
receivables purchase
agreement
borrowed money of any Company, it will not institute against, or join any other Person in
instituting against, any Company any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to be executed by
their respective duly authorized officers of the date hereof.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
Exh. VII–4
fourth amended and restated
receivables purchase agreement
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: ,
Transferred Percentage: %
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Assignee is a Related Financial Institution for:
Address for Notices
Attention:
Phone:
Fax:
Exh. VII-5
fourth amended and restated
receivables purchase agreement
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
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TO:
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The undersigned, as Agent under the Fourth Amended and Restated Receivables Purchase Agreement
dated as of March 30, 2004, by and among Dairy Group Receivables, L.P., Dairy Group Receivables II,
L.P., Specialty Group Receivables, L.P. and Xxxx National Brand Group, L.P., as Sellers, the
Servicers party thereto, the Financial Institutions party thereto, the Companies party thereto, and
the undersigned, hereby acknowledges receipt of executed counterparts of a completed Assignment
Agreement dated as of , ___between , as Assignor, and
, as Assignee. Terms defined in such Assignment Agreement are used herein as
therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the Effective Date will be
, ___.
2. Each of the Company in the Assignor’s Purchaser Group and the Administrative Seller hereby
consent to the Assignment Agreement as required by Section 12.1(b) of the Purchase Agreement.
Exh. VII-6
fourth amended and restated
receivables purchase agreement
[3. Pursuant to such Assignment Agreement, the Assignee is required to pay $
to Assignor at or before 12:00 noon (local time of Assignor) on the Effective Date in immediately
available funds.]
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Name: |
|
|
|
|
Title: |
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|
Exh. VII-7
fourth amended and restated
receivables purchase agreement
EXHIBIT VIII
CREDIT AND COLLECTION POLICIES
See Exhibit V to each of the Receivables Sale Agreements
Exh. VIII–1
fourth amended and restated
receivables purchase agreement
EXHIBIT IX
FORM OF ACKNOWLEDGMENT AND
AMENDMENT AGREEMENT
[See attached.]
Xxx. XX-0
fourth amended and restated
receivables purchase agreement
EXHIBIT X
FORM OF MONTHLY REPORT
The above is a true and accurate accounting pursuant to the terms of the Fourth Amended and
Restated Receivables Purchase Agreement dated as of March 30, 2004 (as amended, restated or
otherwise modified from time to time, the “Agreement”), by and among Dairy Group
Receivables, L.P., Dairy Group Receivables II, L.P., Specialty Group Receivables, L.P. and Xxxx
National Brand Group, L.P., as Sellers, the Servicers party thereto, the Financial Institutions
party thereto, the Companies party thereto, and Bank One, NA (Main Office Chicago), as Agent, and I
have no knowledge of the existence of any conditions or events that constitute an Amortization
Event or Potential Amortization Event, as each such term is defined under the Agreement, during or
at the end of the accounting period covered by this monthly report or as of the date of this
certificate, except as set forth below.
Exh. X-1
fourth amended and restated
receivables purchase agreement
EXHIBIT XI
PERFORMANCE UNDERTAKING
Exh. XI-1
fourth amended and restated
receivables purchase agreement
SCHEDULE A
COMMITMENTS, COMPANY PURCHASE LIMITS,
PAYMENT ADDRESSES AND RELATED FINANCIAL INSTITUTIONS
Commitments and Payment Addresses of Financial Institutions
|
|
|
|
|
|
|
Financial Institution |
|
Commitment |
|
Payment Address |
Bank One, NA (Main Office
Chicago)
|
|
$ |
204,000,000 |
|
|
Bank One, NA (Main
Office Chicago)
Asset Backed Finance
Mail Code IL1-0594
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000 |
|
|
|
|
|
|
|
Credit Lyonnais New York
Branch
|
|
$ |
102,000,000 |
|
|
1301 Avenue of the
Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000 |
|
|
|
|
|
|
|
Cooperatieve Centrale
Raiffeisen - Boerenleenbank
B.A. “Rabobank
International”,
New York Branch
|
|
$ |
102,000,000 |
|
|
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 |
|
|
|
|
|
|
|
Wachovia Bank,
National Association
|
|
$ |
102,000,000 |
|
|
000 Xxxxxxxxx Xxxxxx, X.X.
Mail Code GA 8088,
22nd Fl.
Xxxxxxx, XX 00000 |
Sch. A-2
fourth amended and restated
receivables purchase agreement
SCHEDULE A (CONT’D)
Company Purchase Limits, Payment Addresses and
Related Financial Institutions of Companies
|
|
|
|
|
|
|
|
|
|
|
Company |
|
|
|
Related |
|
|
Purchase |
|
|
|
Financial |
Company |
|
Limit |
|
Payment Address |
|
Institution(s) |
Falcon Asset
Securitization
Corporation
|
|
$ |
200,000,000 |
|
|
c/o Bank One, NA (Main
Office Chicago), as Agent
Asset Backed Finance
Mail Code IL1-0594
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
|
|
Bank One, NA
(Main Office
Chicago) |
|
|
|
|
|
|
|
|
|
Atlantic Asset
Securitization
Corp.
|
|
$ |
100,000,000 |
|
|
c/o Credit Lyonnais New
York Branch
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
|
|
Credit
Lyonnais New
York Branch |
|
|
|
|
|
|
|
|
|
Nieuw Amsterdam
Receivables
Corporation
|
|
$ |
100,000,000 |
|
|
c/o Global Securitization
Services
000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000
|
|
Cooperatieve
Centrale
Raiffeisen -
Boerenleenbank B.A.
“Rabobank
International”,
New York
Branch |
|
|
|
|
|
|
|
|
|
Blue Ridge Asset
Funding
Corporation
|
|
$ |
100,000,000 |
|
|
c/o Wachovia Capital
Markets, LLC
000 X. Xxxxxxx Xxxxxx
XXX XXX 00 XX0000
Xxxxxxxxx, XX
00000-0000
|
|
Wachovia
Bank, National
Association |
Sch. A-3
fourth amended and restated
receivables purchase agreement
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE AGENT
ON OR PRIOR TO THE DATE HEREOF
PART I: Documents to be Delivered in Connection with the National Brand Receivables Sale Agreement,
the Amendment No. 2 to the Xxxx Receivables Sale Agreement and the Amendment No. 3 to the Suiza
Receivables Sale Agreement.
1. |
|
Executed copies of the National Brand Receivables Sale Agreement, the Amendment No. 2 to the
Xxxx Receivables Sale Agreement and the Amendment No. 3 to the Suiza Receivables Sale
Agreement, duly executed by the parties thereto. |
|
2. |
|
Copy of the Resolutions of the Board of Directors, members or partners, as applicable, of
each New Entity and each other Originator party to the Amendment No. 2 to Xxxx Receivables
Sale Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement certified by its
Secretary, authorizing such New Entity’s or other Originator party to the Amendment No. 2 to
Xxxx Receivables Sale Agreement’s or the Amendment No. 3 to the Suiza Receivables Sale
Agreement’s execution, delivery and performance of the National Brand Receivables Sale
Agreement, the Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to
the Suzia Receivables Sale Agreement, as applicable, and the other documents to be delivered
by it thereunder. |
|
3. |
|
Articles or Certificate of Incorporation or other formation documents of (i) each New Entity
and (ii) each other Originator party to the Amendment No. 2 to Xxxx Receivables Sale Agreement
or the Amendment No. 3 to the Suiza Receivables Sale Agreement if such Originator’s
organizational documents have changed since November 20, 2003, in each case, certified by the
Secretary of State of the jurisdiction of incorporation or formation of each New Entity and
each such other Originator on or within thirty (30) days prior to the Effective Date. |
Sch. B-1
fourth amended and restated
receivables purchase agreement
4. |
|
Good Standing Certificates for each New Entity and each other Originator party to the
Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza
Receivables Sale Agreement issued by the Secretaries of State of its state of organization and
each jurisdiction where it has material operations, each of which is listed on Attachment
A hereto. |
|
5. |
|
A certificate of the Secretary of each New Entity and each other Originator party to the
Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza
Receivables Sale Agreement certifying: (i) the names and signatures of the officers authorized
on its behalf to execute the National Brand Receivables Sale Agreement, the Amendment No. 2 to
Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza Receivables Sale
Agreement, as applicable, and any other documents to be delivered by it thereunder, (ii) a
copy of each New Entity’s By-Laws or other operating documents and (iii) a copy of the By-Laws
or other operating documents for each other Originator party to the Amendment No. 2 to Xxxx
Receivables Sale Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement if
such Originator’s organizational documents have changed since November 20, 2003 or, if such
Originator’s organizational documents have not changed since November 20, 2003, that there
have been no changes to its organizational documents since November 20, 2003. |
|
6. |
|
Pre-filing state and federal tax lien, judgment lien and UCC lien searches against each New
Entity from the jurisdictions listed on Attachment B hereto. |
Sch. B-2
fourth amended and restated
receivables purchase agreement
7. |
|
Time stamped receipt copies of proper financing statements, duly filed under the UCC on or
before the Effective Date in all jurisdictions as may be necessary or, in the opinion of
Seller (or its assigns), desirable, under the UCC of all appropriate jurisdictions or any
comparable law in order to perfect the ownership interests contemplated by the National Brand
Receivables Sale Agreement, the Amendment No. 2 to Xxxx Receivables Sale Agreement and the
Amendment No. 3 to the Suiza Receivables Sale Agreement and to perfect the assignment or
transfer of such interests to the Agent for the benefit of the Purchasers and time stamped
receipt copies of proper financing statement amendments, duly filed under the UCC on or before
the Effective Date in all jurisdictions as may be necessary or, in the opinion of any Seller
(or of any Seller’s assigns), desirable, under the UCC of all appropriate jurisdictions or any
comparable law in order to continue to perfect the ownership interests contemplated by any
Receivables Sale Agreement and to continue to perfect the assignment or transfer of such
interests to the Agent for the benefit of the Purchasers. |
|
8. |
|
Time stamped receipt copies of proper UCC termination statements, if any, necessary to
release all security interests and other rights of any Person in the Receivables, Contracts or
Related Security previously granted by each New Entity. |
|
9. |
|
Executed Collection Account Agreements for each Lock-Box and Collection Account
used by each New Entity and any other Originator party to the Amendment No. 2 to Xxxx
Receivables Sale Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement, as
required by any Receivables Sale Agreement. |
|
10. |
|
A favorable opinion of legal counsel for each New Entity and each other Originator party to
the Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza
Receivables Sale Agreement reasonably acceptable to Seller (or its assigns) that addresses the
following matters and such other matters as Seller (or its assigns) may reasonably request: |
|
— |
|
Each New Entity and each other Originator party to the
Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to
the Suiza Receivables Sale Agreement is a corporation, limited liability
company or limited partnership
duly incorporated or formed, validly existing, and in good |
Sch. B-3
fourth amended and restated
receivables purchase agreement
|
|
|
standing under
the laws of its state of incorporation or formation. |
|
|
— |
|
Each New Entity and each other Originator party to the
Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to
the Suiza Receivables Sale Agreement has all requisite authority to conduct
its business in each jurisdiction where failure to be so qualified would have
a material adverse effect on such New Entity’s and each other Originator
party to the Amendment No. 2 to Xxxx Receivables Sale Agreement’s or the
Amendment No. 3 to the Suiza Receivables Sale Agreement’s business. |
|
|
— |
|
Each New Entity and each other Originator party to the
Amendment No. 2 to Xxxx Receivables Sale Agreement and the Amendment No. 3 to
the Suiza Receivables Sale Agreement has all requisite power and authority to
execute, deliver and perform all of its obligations under the National Brand
Receivables Sale Agreement, the Amendment No. 2 to Xxxx Receivables Sale
Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement, as
applicable, and each other Transaction Document to which it is a party. |
|
|
— |
|
The execution and delivery by each New Entity and each
other Originator party to the Amendment No. 2 to Xxxx Receivables Sale
Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement of
the National Brand Receivables Sale Agreement, the Amendment No. 2 to Xxxx
Receivables Sale Agreement or the Amendment No 3 to Suiza Receivables Sale
Agreement, as applicable, and each other Transaction Document to which it is
a party and its performance of its obligations thereunder have been duly
authorized by all necessary corporate action and proceedings on the part of
such New Entity and such other Originator party to the Amendment No. 2 to
Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza
Receivables Sale Agreement and will not: |
|
(a) |
|
require any action by or in respect of,
or filing with, or approval or authorization from, any governmental
body, agency or official (other than the filing of UCC financing
statements); |
|
|
(b) |
|
contravene, or constitute a default
under, any provision of applicable law or regulation or of its
articles or |
Sch. B-4
fourth amended and restated
receivables purchase agreement
|
|
|
certificate of incorporation or bylaws (or equivalent
organizational and governing documents) or of any agreement,
judgment, injunction, order, decree or other instrument binding upon
such New Entity or such other Originator party to the Amendment No.
2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to the
Suiza Receivables Sale Agreement; or |
|
|
(c) |
|
result in the creation or imposition of
any Adverse Claim on assets of such New Entity or such other
Originator party to the Amendment No. 2 to Xxxx Receivables Sale
Agreement or the Amendment No. 3 to the Suiza Receivables Sale
Agreement or any of its Subsidiaries (except as contemplated by the
National Brand Receivables Sale Agreement). |
|
— |
|
The National Brand Receivables Sale Agreement, the
Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to
the Suiza Receivables Sale Agreement, as applicable, and each other
Transaction Document to which it is a party has been duly executed and
delivered by each New Entity and each other Originator party to the Amendment
No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza
Receivables Sale Agreement and constitutes the legal, valid, and binding
obligation of each New Entity and each other Originator party to the
Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to
the Suiza Receivables Sale Agreement enforceable in accordance with its
terms, except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and subject also to the availability of equitable
remedies if equitable remedies are sought. |
|
|
— |
|
The provisions of the National Brand Receivables Sale
Agreement, the Amendment No. 2 to Xxxx Receivables Sale Agreement and the
Amendment No. 3 to Suiza Receivables Sale Agreement are sufficient to
constitute authorization by each New Entity for the filing of the financing
statements required under the National Brand Receivables Sale Agreement, the
Xxxx Receivables Sale Agreement and the Suiza Receivables Sale Agreement. |
|
|
— |
|
With respect to each New Entity and each other Originator
party to the Amendment No. 2 to Xxxx Receivables Sale |
Sch. B-5
fourth amended and restated
receivables purchase agreement
|
|
|
Agreement or the
Amendment No. 3 to the Suiza Receivables Sale Agreement, for the purposes of
the Uniform Commercial Code as in effect in its state of organization, such
New Entity is a “registered organization”. |
|
|
— |
|
The provisions of the National Brand Receivables Sale
Agreement, the Amendment No. 2 to Xxxx Receivables Sale Agreement and the
Amendment No. 3 to Suiza Receivables Sale Agreement are effective to create a
valid security interest in favor of Dairy Group, Dairy Group II or National
Brand Group, as applicable, in all Receivables and upon the filing of
financing statements, such Seller shall acquire a first priority, perfected
security interest in such Receivables. |
|
|
— |
|
Bring-down opinion with respect to the Xxxx Receivables
Sale Agreement and the Suiza Receivables Sale Agreement to the effect that
Dairy Group and Dairy Group II, as applicable, continue to have a valid and
perfected security interest in the Receivables of the Originators party
thereto. |
|
|
— |
|
To the best of the opinion giver’s knowledge, there is no
action, suit or other proceeding against any New Entity or any other
Originator party to the Amendment No. 2 to Xxxx Receivables Sale Agreement or
the Amendment No. 3 to the Suiza Receivables Sale Agreement or any Affiliate
of any of the foregoing, which would materially adversely affect the business
or financial condition of such New Entity or such other Originator party to
the Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3
to the Suiza Receivables Sale Agreement and its Affiliates taken as a whole
or which would materially adversely affect the ability of such New Entity or
other Originator party to the Amendment No. 2 to Xxxx Receivables Sale
Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement to
perform its obligations under the National Brand Receivables Sale Agreement,
the Amendment No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3
to the Suiza Receivables Sale Agreement. |
11. |
|
A “true sale” opinion and “substantive consolidation” opinion of counsel for each New Entity
and each other Originator party to the Amendment No. 1 to Xxxx Receivables Sale Agreement or
the Amendment No. 2 to the Suiza
Receivables Sale Agreement with respect to the transactions contemplated by the National
Brand Receivables Sale Agreement, the Amendment No. 2 to |
Sch. B-6
fourth amended and restated
receivables purchase agreement
|
|
Xxxx Receivables Sale Agreement
and the Amendment No. 3 to the Suiza Receivables Sale Agreement. |
|
12. |
|
A Compliance Certificate for each New Entity and each other Originator party to the Amendment
No. 2 to Xxxx Receivables Sale Agreement or the Amendment No. 3 to the Suiza Receivables Sale
Agreement. |
|
13. |
|
Executed copies of (i) all consents from and authorizations by any Persons and (ii) all
waivers and amendments to existing credit facilities, that are necessary in connection with
the National Brand Receivables Sale Agreement, the Amendment No. 2 to Xxxx Receivables Sale
Agreement or the Amendment No. 3 to the Suiza Receivables Sale Agreement, as applicable. |
|
14. |
|
Executed copies of a Subordinated Note (as defined in the applicable Receivables Sale
Agreement) by National Brand Group, Dairy Group II or Dairy Group, as applicable, in favor of
each New Entity. |
|
15. |
|
Executed copies of an Contribution Agreement or similar agreement evidencing the transfer of
certain assets from Morningstar to Morningstar Foods, LLC and Xxxxxxxxxxx Xxxxxxxxx, Inc. |
|
16. |
|
Executed copies of an Assignment and Assumption Agreement or similar agreement between MRC
and Morningstar Foods, LLC evidencing the transfer of any and all assets and liabilities of
MRC to Morningstar Foods, LLC. |
PART II: Documents to Be Delivered in Connection with the Agreement
I. |
|
Executed copies of the Agreement, duly executed by the parties thereto. |
|
II. |
|
Copy of the Resolutions of the Board of Directors, managers or
partners of each Seller Party and Provider certified by its
Secretary, manager or general partner, as applicable, authorizing
such Person’s execution, delivery and performance of this Agreement
and the other documents to be delivered by it
hereunder. |
Sch. B-7
fourth amended and restated
receivables purchase agreement
III. |
|
Articles or Certificate of Incorporation or other formation
documents of each of each Seller Party and Provider, certified by
the Secretary of State of the jurisdiction of incorporation or
formation of such Seller Party or Provider on or within thirty (30)
days prior to the Effective Date.
|
|
IV. |
|
Good Standing Certificate for each Seller Party and Provider issued
by the Secretaries of State of its state of organization and each
jurisdiction where it has material operations, each of which is
listed on Attachment A hereto. |
|
V. |
|
A certificate of the Secretary of each Seller Party and Provider certifying (i) the names and
signatures of the officers authorized on its behalf to execute this Agreement and any other
documents to be delivered by it hereunder and (ii) a copy of such Seller Party’s or Provider’s
By-Laws or other operating document, or if such document has been previously delivered and
certified, that there have been no changes to its By-Laws or other operating documents since
December 21, 2001. |
|
VI. |
|
Pre-filing state and federal tax lien, judgment lien and UCC lien searches against each
Seller Party that is a New Entity from the jurisdictions listed on Attachment B
hereto. |
|
VII. |
|
Time stamped receipt copies of proper financing statements,
duly filed against National Brand Group under the UCC on or
before the Effective Date in all jurisdictions as may be
necessary or, in the opinion of the Agent, desirable, under
the UCC of all appropriate jurisdictions or any comparable law
in order to perfect the ownership interests contemplated by
this Agreement and time stamped receipt copies of proper
financing statements, duly filed against Dairy Group and Dairy
Group II under the UCC on or before the Effective Date in all
jurisdictions as may be necessary or, in the opinion of the
Agent, desirable, under the UCC of all appropriate
jurisdictions or any comparable law in order to continue to
perfect the ownership interests contemplated by this
Agreement.
|
|
VIII. |
|
Time stamped receipt copies of proper UCC termination
statements, if any, necessary to release all security
interests and other rights of any Person in the Receivables,
Contracts or Related Security previously granted by any Seller
Party. |
Sch. B-8
fourth amended and restated
receivables purchase agreement
IX. |
|
Executed Collection Account Agreements for each Lock-Box and
Collection Account used by each New Entity and any other
Seller Party as required by this Agreement. |
|
X. |
|
A favorable opinion of legal counsel for the Seller Parties and Provider reasonably
acceptable to the Agent that addresses the following matters and such other matters as the
Agent may reasonably request: |
— |
|
Each Seller Party and Provider is a corporation, limited partnership
or limited liability company, as applicable, duly incorporated or
organized, validly existing, and in good standing under the laws of
its state of incorporation or organization. |
|
— |
|
Each Seller Party and Provider has all requisite authority to conduct
its business in each jurisdiction where failure to be so qualified
would have a material adverse effect on such Person’s business. |
|
— |
|
Each Seller Party and Provider has all requisite power and authority
to execute, deliver and perform all of its obligations under this
Agreement and each other Transaction Document to which it is a party. |
|
— |
|
The execution and delivery by each Seller Party and Provider of this
Agreement and each other Transaction Document to which it is a party
and its performance of its obligations thereunder have been duly
authorized by all necessary corporate action and proceedings on the
part of such Person and will not: |
|
(a) |
|
require any action by or in respect of,
or filing with, any governmental body, agency or official (other
than the filing of UCC financing statements); |
|
|
(b) |
|
contravene, or constitute a default
under, any provision of applicable law or regulation or of its
articles or certificate of incorporation or bylaws or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon such Person; or |
|
|
(c) |
|
result in the creation or imposition of
any Adverse Claim on assets of such Person or any of its |
Sch. B-9
fourth amended and restated
receivables purchase agreement
|
|
|
Subsidiaries (except as contemplated by this Agreement). |
— |
|
This Agreement and each other Transaction Document to
which such Person is a party has been duly executed and delivered
by such Person and constitutes the legal, valid, and binding
obligation of such Person, enforceable in accordance with its
terms, except to the extent the enforcement thereof may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors’ rights generally and subject also to the availability
of equitable remedies if equitable remedies are sought. |
|
— |
|
The provisions of this Agreement are sufficient to
constitute authorization by each Seller for the filing of the
financing statements required under this Agreement. |
|
— |
|
For the purposes of the Delaware UCC, each Seller is
a “registered organization”. |
|
— |
|
The provisions of this Agreement are effective to
create a valid security interest in favor of the Agent for the
benefit of the Purchasers in all Receivables, and upon the filing
of financing statements, the Agent for the benefit of the
Purchasers shall acquire a first priority, perfected security
interest in such Receivables. |
|
— |
|
To the best of the opinion giver’s knowledge, there
is no action, suit or other proceeding against any Seller Party,
Provider or any of their respective Affiliates, that would
materially adversely affect the business or financial condition of
such Person and its Affiliates taken as a whole or that would
materially adversely affect the ability of such Person to perform
its obligations under any Transaction Document to which it is a
party. |
XI. |
|
If requested by the Company in such Financial Institution’s
Purchaser Group or the Agent, a favorable opinion of legal counsel
for each Financial Institution, reasonably acceptable to such
Company and the Agent that addresses the following matters: |
— |
|
This Agreement has been duly authorized by all
necessary corporate action of such Financial Institution. |
Sch. B-10
fourth amended and restated
receivables purchase agreement
— |
|
This Agreement has been duly executed and delivered
by such Financial Institution and, assuming due authorization,
execution and delivery by each of the other parties thereto,
constitutes a legal, valid and binding obligation of such Financial
Institution, enforceable against such Financial Institution in
accordance with its terms. |
XII. |
|
A Compliance Certificate for each Seller. |
|
XIII. |
|
The Fee Letters. |
|
XIV. |
|
A Monthly Report as at February 29, 2004. |
|
XV. |
|
Executed copies of (i) all consents from and authorizations by any
Persons and (ii) all waivers and amendments to existing credit
facilities, that are necessary in connection with this Agreement. |
|
XVI. |
|
Executed copies of a Demand Note by Xxxx Foods Company in favor of
National Brand Group. |
|
XVII. |
|
Executed copies of each of the documents described in clauses (i),
(ii) and (iv) of the definition of Performance Undertaking
contained herein. |
|
XVIII. |
|
[Intentionally Omitted.] |
|
XIX. |
|
Executed copies of the Third Amended and Restated Intercreditor
Agreement, duly executed by the Seller Parties, Xxxx Foods Company,
the Agent and Wachovia Bank, National Association, as lender agent. |
|
XX. |
|
Documentation evidencing (i) the merger of National Brand Group
with and into Morningstar and (ii) the change in name of
Morningstar from “Morningstar Foods Inc.” to “Xxxx National Brand
Group, Inc.”, in each
case, in form and substance satisfactory to the Agent in its sole discretion. |
|
XXI. |
|
Executed Copy of a Post-Closing Agreement. |
Sch. B-11
fourth amended and restated
receivables purchase agreement
Attachment A to Schedule B
Good Standing Certificates
|
|
|
Entity |
|
Jurisdiction for Good Standing Certificates |
Xxxx-Xxxx Certified Dairy, Inc.
|
|
California
Delaware |
|
|
|
Xxxxxx Milk, Inc.
|
|
Delaware
Alabama
Florida
Georgia
Mississippi
Tennessee |
|
|
|
Berkeley Farms, Inc.
|
|
California
|
|
|
|
Xxxxxxxxx Foods, LLC
|
|
Delaware
Kentucky
Ohio
Tennessee
West Virginia |
|
|
|
Country Delite Farms, LLC
|
|
Delaware
Alabama
Georgia
Tennessee |
|
|
|
Country Fresh, LLC
|
|
Michigan
Indiana
Ohio
Tennessee |
|
|
|
Creamland Dairies, Inc.
|
|
New Mexico
Texas |
|
|
|
Dairy Fresh, LLC
|
|
Delaware
North Carolina |
|
|
|
Dairy Group Receivables, L.P.
|
|
Delaware |
|
|
|
Dairy Group Receivables II, L.P.
|
|
Delaware |
|
|
|
Xxxx SoCal, LLC
|
|
Delaware
Arizona
California
Nevada |
|
|
|
Xxxx Dairy Products Company
|
|
Pennsylvania
New York
Ohio
West Virginia |
Sch. B-12
fourth amended and restated
receivables purchase agreement
|
|
|
Entity |
|
Jurisdiction for Good Standing Certificates |
Xxxx Foods Company
|
|
Delaware |
|
|
|
Xxxx Foods Company of California, Inc.
|
|
Delaware
California
Nevada
Utah |
|
|
|
Xxxx Northeast, LLC
|
|
Delaware
Connecticut
Maine
Massachusetts
New Hampshire
New Jersey
New York
Pennsylvania
Rhode Island
Vermont |
|
|
|
Xxxx Foods Company of Indiana, Inc.
|
|
Delaware
Indiana |
|
|
|
Xxxx Foods North Central, Inc.
|
|
Delaware
Minnesota
North Dakota
South Dakota
Wisconsin |
|
|
|
Xxxx Milk Company, Inc.
|
|
Kentucky |
|
|
|
Xxxx National Brand Group, Inc.
|
|
Delaware |
|
|
|
Xxxx Southwest, LLC
|
|
Delaware |
|
|
|
Xxxx Specialty Foods Group, LLC
|
|
Delaware
Illinois |
|
|
|
Xxxxx’x Dairies, Inc.
|
|
Texas
New Mexico |
|
|
|
Kohler Mix Specialties of Minnesota, LLC
|
|
Delaware
Minnesota |
|
|
|
Kohler Mix Specialties, LLC
|
|
Delaware
Connecticut
Texas |
Sch. B-13
fourth amended and restated
receivables purchase agreement
|
|
|
Entity |
|
Jurisdiction for Good Standing Certificates |
Land-O-Sun Dairies, LLC
|
|
Delaware
Florida
Georgia
Illinois
Kentucky
North Carolina
Ohio
South Carolina
Virginia |
|
|
|
Liberty Dairy Company
|
|
Michigan |
|
|
|
Xxxxx Xxxxxx Dairy, LLC
|
|
Delaware
Indiana
Kentucky
Ohio |
|
|
|
Xxxxxxxx Dairy Farms, Inc.
|
|
Delaware
Alabama
Georgia
Kentucky
North Carolina
South Carolina
Tennessee
Texas
Xxxxxxxx |
|
|
|
XxXxxxxx Dairy, Inc.
|
|
Florida |
|
|
|
Meadow Brook Dairy Company
|
|
Pennsylvania
New York |
|
|
|
Midwest Ice Cream Company
|
|
Delaware
Connecticut
Illinois
Michigan
Wisconsin |
|
|
|
Model Dairy, LLC
|
|
Delaware
California
Nevada |
|
|
|
Morningstar Foods, LLC
|
|
Delaware |
|
|
|
Xxxxxxxxxxx Xxxxxxxxx, Inc.
|
|
Delaware
Maryland |
|
|
|
Xxxx National Brand Group, L.P.
|
|
Delaware |
Sch. B-14
fourth amended and restated
receivables purchase agreement
|
|
|
Entity |
|
Jurisdiction for Good Standing Certificates |
Purity Dairies, Incorporated
|
|
Delaware
Alabama
Kentucky
Tennessee |
|
|
|
Xxxxxx Dairy of Akron, Inc.
|
|
Ohio
Pennsylvania
West Virginia |
|
|
|
Robinson Dairy, LLC
|
|
Delaware
Colorado
Wyoming |
|
|
|
Xxxxxxxx’x All-Star Dairy, LLC
|
|
Delaware
Illinois
Indiana
Kentucky
Michigan |
|
|
|
Shenandoah’s Pride, LLC
|
|
Delaware
Maryland
Virginia
West Virginia |
|
|
|
Southern Foods Group, L.P.
|
|
Delaware
Alabama
Colorado
Hawaii
Idaho
Kansas
Louisiana
Mississippi
Missouri
Montana
Nebraska
Nevada
Oklahoma
Oregon
South Dakota
Texas
Utah
Washington
Wyoming |
|
|
|
Specialty Group Receivables, L.P.
|
|
Delaware |
|
|
|
Sulphur Springs Cultured Specialties,
LLC
|
|
Delaware
California
Nevada
Texas |
Sch. B-15
fourth amended and restated
receivables purchase agreement
|
|
|
Entity |
|
Jurisdiction for Good Standing Certificates |
X. X. Xxx Foods, Inc.
|
|
Florida
Georgia |
|
|
|
Tuscan/Lehigh Dairies, Inc.
|
|
Delaware
Connecticut
Maryland
New Jersey
New York
Pennsylvania
Virginia |
|
|
|
Verifine Dairy Products Corporation of
Sheboygan, Inc.
|
|
Wisconsin |
Sch. B-16
fourth amended and restated
receivables purchase agreement
Attachment B to Schedule B
UCC Searches
|
|
|
Entity |
|
Jurisdiction for UCC Search |
Xxxx National Brand Group, Inc.
(Merged into Originator and New Name of
Originator)
|
|
Delaware
Texas |
|
|
|
Morningstar Foods Holdings, Inc.
(Former Name of Originator)
|
|
Delaware
Texas |
|
|
|
Xxxx Southwest, LLC
(New Originator)
|
|
Delaware
Texas |
|
|
|
Kohler Mix Specialties of Connecticut, Inc.
(Merged into Originator)
|
|
Connecticut
Texas |
|
|
|
Kohler Mix Specialties of Minnesota, LLC
(New Originator)
|
|
Delaware
Minnesota
Texas |
|
|
|
Kohler Mix Specialties, LLC
(New Originator)
|
|
Delaware
Texas |
|
|
|
M-Foods Dairy, LLC
(Former Name of New Originator)
|
|
Delaware
Minnesota
Texas |
|
|
|
M-Foods Dairy TXCT, LLC
(Former name of New Originator)
|
|
Delaware
Texas |
|
|
|
Midwest Mix, Inc.
(Merged into Originator)
|
|
Minnesota
Texas |
|
|
|
Morningstar Foods Inc.
(Former Name of Originator)
|
|
Delaware
Texas |
|
|
|
Morningstar Foods, LLC
(New Originator)
|
|
Delaware
Texas |
|
|
|
Morningstar Receivables Corp.
(Former Originator)
|
|
Delaware
Texas |
|
|
|
Xxxx Foods Regional Business Services, Inc.
(Merged into Originator)
|
|
Delaware
Illinois |
|
|
|
Maplehurst Farms, LLC
(Merged into Originator)
|
|
Illinois
Indiana |
|
|
|
SFG Capital Corporation
(Merged into Originator)
|
|
Delaware
Texas |
Sch. B-17
fourth amended and restated
receivables purchase agreement
|
|
|
Entity |
|
Jurisdiction for UCC Search |
The Xxxxxxx Distributing Company
(Merged into Originator)
|
|
Illinois |
|
|
|
Xxxxxxxxxxx Xxxxxxxxx, Inc.
(New Originator)
|
|
Delaware |
Sch. B-18
fourth amended and restated
receivables purchase agreement
SCHEDULE C
XXXX ENTITIES
XXXX-XXXX CERTIFIED DAIRY, INC.
BERKELEY FARMS, INC.
CREAMLAND DAIRIES, INC.
XXXX FOODS NORTH CENTRAL, INC.
XXXX MILK COMPANY, INC.
XXXX DAIRY PRODUCTS COMPANY
XXXX FOODS COMPANY OF CALIFORNIA, INC.
XXXX FOODS COMPANY OF INDIANA, INC.
XXXXX’X DAIRIES, INC.
LIBERTY DAIRY COMPANY
XXXXXXXX DAIRY FARMS, INC.
XXXXXXXXX DAIRY, INC.
MEADOW BROOK DAIRY COMPANY
MIDWEST ICE CREAM COMPANY
PURITY DAIRIES, INCORPORATED
XXXXXX DAIRY OF AKRON, INC.
X. X. XXX FOODS, INC.
VERIFINE DAIRY PRODUCTS CORPORATION OF SHEBOYGAN, INC.
Sch. C-1
fourth amended and restated
receivables purchase agreement
SCHEDULE D
ORIGINATORS
Xxxx-Xxxx Certified Dairy, Inc.
Xxxxxx Milk, Inc.
Berkeley Farms, Inc.
Xxxxxxxxx Foods, LLC
Country Delite Farms, LLC
Country Fresh, LLC
Creamland Dairies, Inc.
Dairy Fresh, LLC
Xxxx Dairy Products Company
Xxxx Foods Company of California, Inc.
Xxxx Foods Company of Indiana, Inc.
Xxxx Foods North Central, Inc.
Xxxx Milk Company, Inc.
Xxxx National Brand Group, Inc.
Xxxx Northeast, LLC (f/k/a Suiza GTL, LLC)
Xxxx SoCal, LLC
Xxxx Southwest, LLC
Xxxx Specialty Foods Group, LLC
Xxxxx’x Dairies, Inc.
Kohler Mix Specialties of Minnesota, LLC
Kohler Mix Specialties, LLC
Land-O-Sun Dairies, LLC
Liberty Dairy Company
Xxxxx Xxxxxx Dairy, LLC
Xxxxxxxx Dairy Farms, Inc.
XxXxxxxx Dairy, Inc.
Meadow Brook Dairy Company
Midwest Ice Cream Company
Model Dairy, LLC
Morningstar Foods, LLC
Xxxxxxxxxxx Xxxxxxxxx, Inc.
Purity Dairies, Incorporated
Xxxxxx Dairy of Akron, Inc.
Xxxxxxxx Dairy, LLC
Xxxxxxxx’x All-Star Dairy, LLC
Shenandoah’s Pride, LLC
Southern Foods Group, L.P.
Sulphur Springs Cultured Specialties, LLC
X. X. Xxx Foods, Inc.
Tuscan/Lehigh Dairies, Inc.
Verifine Dairy Products Corporation of Sheboygan, Inc.
Sch. D-1
fourth amended and restated
receivables purchase agreement
SCHEDULE E
NOTICE ADDRESSES
|
|
|
The Agent:
|
|
Bank One Company: |
|
|
|
Bank One, NA (Main Office Chicago),
as Agent
1 Bank One Plaza
Mail Code IL1-0079
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Transaction Management
Facsimile: (000) 000-0000
|
|
Falcon Asset Securitization Corporation
c/o Bank One, NA (Main Office
Chicago), as Agent
1 Bank One Plaza
Mail Code IL1-0594
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Falcon Funding Manager
Facsimile: (000) 000-0000 |
|
|
|
CLNY:
|
|
CL Company: |
|
|
|
Credit Lyonnais New York Branch
|
|
c/o Credit Lyonnais New York Branch |
1301 Avenue of the Americas
|
|
1301 Avenue of the Americas |
00xx Xxxxx
|
|
00xx Xxxxx |
Xxx Xxxx, Xxx Xxxx 00000
|
|
Xxx Xxxx, Xxx Xxxx 00000 |
Attention: Xxxxxxx X. Xxxxx Xx.
|
|
Attention: Xxxxxxx X. Xxxxx Xx. |
Facsimile:
|
|
Facsimile: |
|
|
|
Rabobank:
|
|
Rabo Company: |
|
|
|
Cooperatieve Centrale Raiffeisen -
|
|
Nieuw Amsterdam Receivables |
Boerenleenbank B.A. “Rabobank
|
|
Corporation |
International”, New York Branch
|
|
c/o Global Securitization Services |
000 Xxxx Xxxxxx
|
|
000 Xxxxxxxxxxx Xxxx, Xxxxx 000 |
Xxx Xxxx, XX 00000
|
|
Xxxxxxxx, XX 00000 |
Attention: Wing Ng
|
|
Attention: Xxxx Xxxx |
Facsimile:
|
|
Facsimile: |
|
|
|
Wachovia:
|
|
Wachovia Company: |
|
|
|
Wachovia Bank, National Association
|
|
Blue Ridge Asset Funding Corporation |
000 Xxxxxxxxx Xxxxxx, X.X.
|
|
c/o Wachovia Capital Markets, LLC |
Mail Code GA 8088, 22nd Floor
|
|
000 X. Xxxxxxx Xxxxxx |
Xxxxxxx, XX 00000
|
|
XXX XXX 00 XX0000 |
Attention: Xxxxxx X. Xxxxxxx
|
|
Xxxxxxxxx, XX 00000-0000 |
Facsimile:
|
|
Attention: Xxxxxxx X. Xxxxxx, Xx. |
|
|
Facsimile: |
|
|
|
Seller and each Seller Party: |
|
|
|
|
|
See Exhibit III under the heading |
|
|
“Principal Place of Business” |
|
|
Sch. E-1
fourth amended and restated
receivables purchase agreement
SCHEDULE F
TOP TWENTY-FIVE OBLIGORS
|
|
|
|
|
|
|
|
|
Customer |
|
Total Receivable Balance |
1 |
|
Wal-Mart/Xxxx Wholesale |
|
$ |
83,652,730 |
|
2 |
|
Municipalities Balance |
|
$ |
29,175,267 |
|
3 |
|
Albertsons/American Stores |
|
$ |
27,693,486 |
|
4 |
|
Royal Ahold/Stop and Shop |
|
$ |
12,985,350 |
|
5 |
|
Meijers |
|
$ |
12,539,524 |
|
6 |
|
Kroger/Xxxx Xxxxx/Ralphs |
|
$ |
11,909,523 |
|
7 |
|
Food Lion Stores |
|
$ |
10,389,128 |
|
8 |
|
Bi-Lo |
|
$ |
9,252,511 |
|
9 |
|
Sysco |
|
$ |
9,038,110 |
|
10 |
|
Super Value, Inc. |
|
$ |
8,335,610 |
|
11 |
|
Costco Corp. |
|
$ |
8,115,511 |
|
12 |
|
Safeway/Randalls/Xxx Thumb |
|
$ |
7,893,858 |
|
13 |
|
Government AR (Fed and State) |
|
$ |
5,985,375 |
|
14 |
|
C&S/ Pathmark |
|
$ |
5,928,214 |
|
15 |
|
Publix Supermarkets |
|
$ |
4,865,613 |
|
16 |
|
Giant Eagle, Inc. |
|
$ |
4,404,923 |
|
17 |
|
Xxxxxx Food Service |
|
$ |
4,152,272 |
|
18 |
|
Xxxx Xxxxx |
|
$ |
3,903,983 |
|
19 |
|
Xxxxxx Xxxxxxx |
|
$ |
3,595,813 |
|
20 |
|
Alliant |
|
$ |
3,107,488 |
|
21 |
|
Price Choppers |
|
$ |
3,057,143 |
|
22 |
|
Central Grocers |
|
$ |
2,926,000 |
|
23 |
|
Acme Markets |
|
$ |
1,936,908 |
|
24 |
|
A&P Consolidated |
|
$ |
1,626,030 |
|
25 |
|
K-Mart |
|
$ |
1,083,281 |
|
Sch. F-1
fourth amended and restated
receivables purchase agreement
SCHEDULE G
ADDITIONAL ENTITIES
XXXXXX MILK, INC.
XXXXXXXXX FOODS, LLC
COUNTRY DELITE FARMS, LLC
DAIRY FRESH, LLC
XXXX SOCAL, LLC
XXXX SPECIALTY FOODS GROUP, LLC
XXXXX XXXXXX DAIRY, LLC
MODEL DAIRY, LLC
XXXXXXXX DAIRY, LLC
XXXXXXXX’X ALL-STAR DAIRY, LLC
SHENANDOAH’S PRIDE, LLC
SULPHUR SPRINGS CULTURED SPECIALTIES, LLC
Sch. G-1