EXECUTION COPY
Exhibit 10.1
TENTH AMENDMENT TO
RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT
THIS TENTH AMENDMENT TO RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT dated as of September 27, 2022 (this “Amendment”) is entered into among FLOWERS FINANCE II, LLC, a Delaware limited liability company (the “Borrower”), FLOWERS FOODS, INC., a Georgia corporation (the “Servicer”), NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V., COÖPERATIEVE RABOBANK U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank”), as Facility Agent for the Nieuw Amsterdam Lender Group and as a Committed Lender, REGIONS BANK, as Facility Agent for the Regions Bank Lender Group and as a Committed Lender, and COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank”, New York Branch), as administrative agent (the “Administrative Agent”) for each of the Lenders.
RECITALS
WHEREAS, reference is made to that certain Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013, as amended by First Amendment to Receivables Loan, Security and Servicing Agreement dated as of August 7, 2014, by Second Amendment to Receivables Loan, Security and Servicing Agreement dated as of December 17, 2014, by Third Amendment and Waiver to Receivables Loan, Security and Servicing Agreement dated as of August 20, 2015, by Fourth Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 30, 2016, by Fifth Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 28, 2017, by Sixth Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 27, 2018, by Seventh Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 27, 2019, by Eighth Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 23, 2020 and by Ninth Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 23, 2021 (as so amended, the “Existing Loan Agreement” and, as amended by this Amendment and as otherwise amended, supplemented or modified from time to time, the “Loan Agreement”) among the parties to this Amendment. Unless otherwise provided elsewhere herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Loan Agreement; and
WHEREAS, the parties to this Amendment have agreed to amend the Existing Loan Agreement, all on the terms and subject to the conditions set forth in this Amendment;
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
(a) the Administrative Agent shall have received counterpart signature pages to this Amendment executed by each of the parties to this Amendment,
(b) the Administrative Agent shall have received counterpart signature pages to the Sixth Amended and Restated Fee Letter dated as of the date hereof (the “Amended Fee Letter”) between the Borrower and the Administrative Agent executed by each of the parties thereto, and
(c) each Committed Lender shall have received the amendment fee as set forth in the Amended Fee Letter.
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EXECUTION COPY
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent | ||
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| /s/ Erin M. Scott |
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| Name: Erin M. Scott |
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| Title: Executive Director |
| By: |
| /s/ Jinyang Wang |
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| Name: Jinyang Wang |
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| Title: Executive Director |
| COÖPERATIEVE RABOBANK U.A., as Committed Lender and Nieuw Amsterdam Facility Agent | ||
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| By: |
| /s/ Erin M. Scott |
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| Name: Erin M. Scott |
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| Title: Attorney in Fact |
| By: |
| /s/ Jinyang Wang |
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| Name: Jinyang Wang |
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| Title: Attorney in Fact |
[Signature Page to Tenth Amendment to Receivables Loan, Security and Servicing Agreement]
| NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V. | ||
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| By: |
| /s/ Diederick Slotboom |
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| Name: Diederick Slotboom |
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| Title: Proxyholder |
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| /s/ Kristina Adamovich |
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| Name: Kristina Adamovich |
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| Title: Proxyholder |
[Signature Page to Tenth Amendment to Receivables Loan, Security and Servicing Agreement]
| REGIONS BANK, as Committed Lender and Regions Bank Facility Agent | ||
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| By: |
| /s/ Cecil Noble |
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| Name: Cecil Noble |
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| Title: Managing Director |
[Signature Page to Tenth Amendment to Receivables Loan, Security and Servicing Agreement]
| FLOWERS FINANCE II, LLC, | ||
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| /s/ J.T. Rieck |
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| Name: J.T. Rieck |
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| Title: Treasurer |
| FLOWERS FINANCE II, LLC, | ||
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| By: |
| /s/ R. Steve Kinsey |
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| Name: R. Steve Kinsey |
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| Title: Chief Financial & Accounting Officer |
[Signature Page to Tenth Amendment to Receivables Loan, Security and Servicing Agreement]
APPENDIX A
[Signature Page to Tenth Amendment to Receivables Loan, Security and Servicing Agreement]
COMPOSITE COPY
as amended by
First Amendment dated as of August 7, 2014,
Second Amendment dated as of December 17, 2014,
Third Amendment dated as of August 20, 2015,
Fourth Amendment dated as of September 30, 2016,
Fifth Amendment dated as of September 28, 2017,
Sixth Amendment dated as of September 27, 2018,
Seventh Amendment dated as of September 27, 2019,
Eighth Amendment dated as of September 23, 2020, and
Ninth Amendment dated as of September 23, 2021, and
Tenth Amendment dated as of September 27, 2022
RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT
dated as of July 17, 2013
among
FLOWERS FINANCE II, LLC
as Borrower,
FLOWERS FOODS, INC.,
as Servicer,
NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V.,
as a Conduit Lender,
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK NEDERLAND”, NEW YORK BRANCHRABOBANK U.A.,
as Facility Agent for the Nieuw Amsterdam Lender Group and as a Committed Lender,
the other CONDUIT LENDERS, COMMITTED LENDERS and
FACILITY AGENTS from time to time party hereto
and
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK NEDERLAND”,RABOBANK U.A., NEW YORK BRANCH,
as Administrative Agent
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Table of Contents
Page
ARTICLE I DEFINITIONS; CONSTRUCTION | 2 | ||
| SECTION 1.01. | Certain Definitions | 2 |
| SECTION 1.02. | Interpretation and Construction | 2 |
| SECTION 1.03. | Use of Historical Data | 3 |
| SECTION 1.04. | LIBOR NotificationDisclaimer | 4 |
ARTICLE II ADVANCES | 5 | ||
| SECTION 2.01. | Advances | 5 |
| SECTION 2.02. | Optional Principal Prepayments | 7 |
| SECTION 2.03. | Required Principal Repayments | 7 |
| SECTION 2.04. | Notes | 7 |
| SECTION 2.05. | Fees | 8 |
| SECTION 2.06. | Payments, Computations, Etc | 9 |
| SECTION 2.08. | Breakage Costs | 9 |
| SECTION 2.09. | Increased Costs; Capital Adequacy | 10 |
| SECTION 2.10. | Net Payments; Taxes | 13 |
| SECTION 2.11. | Mitigation Obligations | 13 |
| SECTION 2.12. | Priority of Payments | 16 |
| SECTION 2.13. | Reports | 16 |
| SECTION 2.14. | Benchmark Replacement Setting | 16 |
ARTICLE III CLOSING PROCEDURES | 16 | ||
| SECTION 3.01. | Conditions to Closing | 16 |
| SECTION 3.02. | Conditions to Advances | 17 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES | 17 | ||
| SECTION 4.01. | Representations and Warranties of the Borrower | 17 |
| SECTION 4.02. | Representations and Warranties of Servicer | 24 |
ARTICLE V COVENANTS | 27 | ||
| SECTION 5.01. | Affirmative Covenants of the Borrower | 27 |
| SECTION 5.02. | Negative Covenants of the Borrower | 34 |
| SECTION 5.03. | Affirmative Covenants of Servicer | 37 |
| SECTION 5.04. | Negative Covenants of Servicer | 40 |
ARTICLE VI SECURITY INTEREST | 41 | ||
| SECTION 6.01. | Security for Obligations | 41 |
| SECTION 6.02. | Grant of Security | 42 |
| SECTION 6.03. | Administrative Agent Appointment as Attorney-in-Fact | 43 |
| SECTION 6.04. | Administrative Agent May Perform | 44 |
| SECTION 6.05. | Realization upon Collateral, etc | 44 |
| SECTION 6.06. | Application of Proceeds | 45 |
| SECTION 6.07. | Limitation on Administrative Agent’s Duty in Respect of Collateral | 46 |
| SECTION 6.08. | Waiver of Stays, Etc | 46 |
| SECTION 6.09. | Continuing Security Interest | 46 |
| SECTION 6.10. | Security Interest Absolute | 47 |
ARTICLE VII SERVICING | 47 | ||
| SECTION 7.01 | Acceptance of Appointment and Other Matters Relating to Servicer | 47 |
| SECTION 7.02. | Subservicers | 48 |
| SECTION 7.03. | Maintenance of Information and Computer Records | 48 |
| SECTION 7.04. | Protection of the Interests of the Borrower | 48 |
| SECTION 7.05. | Maintenance of Writings and Records | 49 |
| SECTION 7.06. | Information | 49 |
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Table of Contents
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| SECTION 7.07. | Performance of Undertakings Under the Receivables | 49 |
| SECTION 7.08. | Administration and Collections | 49 |
| SECTION 7.09. | Complete Servicing Transfer | 50 |
| SECTION 7.10. | Lockboxes; Collection Accounts; Concentration Account | 52 |
| SECTION 7.11. | Servicer Default | 53 |
| SECTION 7.12. | Servicer Not to Resign | 54 |
ARTICLE VIII AMORTIZATION EVENTS; EVENTS OF DEFAULT; CONSEQUENCES | 55 | ||
| SECTION 8.01. | Amortization Events | 55 |
| SECTION 8.02. | Events of Default | 56 |
| SECTION 8.03. | Consequences of an Amortization Event/Event of Default | 58 |
ARTICLE IX AGENTS | 59 | ||
| SECTION 9.01. | Authorization and Action | 59 |
| SECTION 9.02. | Agents’ Reliance, Etc | 60 |
| SECTION 9.03. | Non-Reliance on the Agents | 61 |
| SECTION 9.04. | Agents and Affiliates | 62 |
| SECTION 9.05. | Indemnification | 62 |
| SECTION 9.06. | Successor Administrative Agent | 53 |
ARTICLE X MISCELLANEOUS | 64 | ||
| SECTION 10.01. | Expenses | 64 |
| SECTION 10.02. | Indemnities | 65 |
| SECTION 10.03. | Holidays | 69 |
| SECTION 10.04. | Records | 69 |
| SECTION 10.05. | Amendments and Waivers | 69 |
| SECTION 10.06. | Term of Agreement | 69 |
| SECTION 10.07. | No Implied Waiver; Cumulative Remedies | 69 |
| SECTION 10.08. | No Discharge | 70 |
| SECTION 10.09. | Notices | 70 |
| SECTION 10.10. | Severability | 70 |
| SECTION 10.11. | Governing Law; Submission to Jurisdiction | 70 |
| SECTION 10.12. | Prior Understandings | 70 |
| SECTION 10.13. | Survival | 70 |
| SECTION 10.14. | Counterparts | 71 |
| SECTION 10.15. | Set-Off | 71 |
| SECTION 10.16. | Successors and Assigns | 71 |
| SECTION 10.17. | Confidentiality | 73 |
| SECTION 10.18. | Payments Set Aside | 74 |
| SECTION 10.19. | No Petition | 75 |
| SECTION 10.20. | Limited Recourse | 75 |
| SECTION 10.21. | Waiver of Jury Trial | 75 |
| SECTION 10.22. | Rabobank Conflict Waiver | 76 |
| SECTION 10.23. | No Recourse | 76 |
| SECTION 10.24. | Patriot Act | 76 |
| SECTION 10.25. | Excluded Originators | 76 |
| SECTION 10.26. | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 77 |
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NAI-1533351021v2
Table of Contents
(con’t)
Page
List of Annexes, Exhibits and Schedules
Annex I |
| Definitions |
Exhibit A |
| Form of Note |
Exhibit B |
| Form of Borrowing Notice |
Exhibit C |
| Form of Prepayment Notice |
Exhibit D |
| Form of Periodic Report |
Exhibit E |
| Form of Assignment and Assumption |
Exhibit F |
| Form of Section 2.10(b)(ii) Certificate |
Exhibit G |
| List of Closing Documents |
Schedule I |
| List of Special Obligors and Special Obligor Concentration Limits |
Schedule II |
| Lockboxes; Collection Accounts; Concentration Account |
Schedule III |
| Location of Records |
Schedule IV |
| List of Responsible Officers |
Schedule V |
| List of Fiscal Periods |
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NAI-1533351021v2
RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT
RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT, dated as of July 17, 2013 (as amended, supplemented or otherwise modified and in effect from time to time, this “Agreement”), among FLOWERS FINANCE II, LLC, a Delaware limited liability company (the “Borrower”), FLOWERS FOODS, INC., a Georgia corporation (the “Servicer”), NIEUW AMSTERDAM RECEIVABLES CORPORATION, a Delaware corporation B.V. (“Nieuw Amsterdam”), COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, asRABOBANK U.A., as facility agent for the Nieuw Amsterdam Lender Group (as defined below) and as a Committed Lender, each of the other CONDUIT LENDERS, COMMITTED LENDERS and FACILITY AGENTS party hereto from time to time, and COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”,RABOBANK U.A., NEW YORK BRANCH, as administrative agent (the “Administrative Agent”) for each of the Lenders (as defined below).
RECITALS
WHEREAS, the Borrower has agreed to purchase Receivables and related rights and interests from the Sellers, each of which purchases such Receivables from one or more Originators pursuant to the Originator Sale Agreements;
WHEREAS, the Lenders will from time to time lend to the Borrower a portion of the funds to pay for such purchases subject to and in accordance with the terms hereof;
WHEREAS, the Servicer has agreed to service the Receivables in accordance with the terms hereof; and
WHEREAS, in order to secure, among other things, its obligations to the Administrative Agent, the Facility Agents and the Lenders hereunder, the Borrower wishes to grant a security interest in all of its assets to the Administrative Agent;
NOW, THEREFORE, the parties hereto hereby agree as follows:
DEFINITIONS; CONSTRUCTION
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ADVANCES
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SECTION 2.14. Benchmark Replacement Setting. On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of the LIBO Rate’s administrator (“IBA”), announced in a public statement the future cessation or loss of representativeness of overnight/Spot
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Next, 1-month, 3-month, 6-month and 12- month LIBO Rate tenor settings. Notwithstanding anything to the contrary herein or in any other Transaction Document,
(a) Replacing LIBO Rate. On the earlier of (i) the date that all Available Tenors of the LIBO Rate have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, if the then-current Benchmark is the LIBO Rate, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Transaction Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a monthly basis.
(b) Replacing Non-LIBO Rate Benchmarks. Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Facility Agents without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Facility Agents comprising the Majority Facility Agents. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Interest Rate shall no longer be determined by reference to the LIBO Rate, and with respect to any outstanding Advances then funded at the LIBO Rate, such Interest Rate shall automatically be converted to Alternate Base Rate.
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CLOSING PROCEDURES
each duly executed where appropriate and in form and substance satisfactory to the Administrative Agent and in sufficient copies for each of the Lenders;
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REPRESENTATIONS AND WARRANTIES
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“Sanctions” shall mean all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”) or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
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“Sanctioned Country” shall mean, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated or blocked Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person organized or resident in a Sanctioned Country if doing business with such Person would be in violation of any applicable Sanctions law required to be observed or (c) any Person owned or controlled by any such Person referred to in preceding clauses (a) or (b).
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COVENANTS
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SECURITY INTEREST
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The foregoing property in which a security interest is purported to be granted hereby is collectively referred to herein as the “Collateral”. The Administrative Agent hereby acknowledges and accepts the grant of the security interest hereunder.
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provided, however, that nothing herein contained shall be construed as requiring or obligating the Administrative Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Administrative Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby, and no action taken or omitted to be taken by the Administrative Agent with respect to the Collateral or any part thereof shall give rise to any defense, counterclaim or offset in favor of the Borrower or to any claim or action against the Administrative Agent.
The Administrative Agent shall not take any such action, execute any such instrument, exercise any such rights, privileges, options, elections or powers or sell or otherwise realize upon any of the Collateral, as hereinafter authorized, except as directed in writing by the Majority Facility Agents and, in the absence of any such written direction, the Administrative Agent shall not be responsible for any failure to do so or delay in so doing. The Administrative Agent shall have no obligation or liability in respect of the filing, refiling, rerecording or monitoring the status of any financing or continuation statements or any other similar documentation relating to the perfection of the security interest granted in the Collateral. All authorizations and agencies contained in this Agreement with respect to the Collateral are by way of security and irrevocable and are powers coupled with an interest.
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The Administrative Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interests in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder for the validity or sufficiency of the title of the Borrower to the Collateral, for insuring the Collateral or for the payment of Taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, except to the extent such foregoing actions or omissions constitute gross negligence, bad faith or willful misconduct on the part of the Administrative Agent.
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SERVICING
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AMORTIZATION EVENTS; EVENTS OF DEFAULT; CONSEQUENCES
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AGENTS
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MISCELLANEOUS
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provided that the Borrower shall not be obligated pursuant to this Section 10.02(a) to indemnify, defend, or save harmless any Indemnified Party for or with respect to (i) credit losses due to Defaulted Receivables or (ii) matters covered pursuant to Section 2.08, 2.09 or 2.10.
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provided that nothing in this Section 10.02(b) shall be deemed to provide indemnity to the Indemnified Parties for (i) credit losses due to Defaulted Receivables or (ii) matters covered pursuant to Section 2.08, 2.09 or 2.10.
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The Borrower and the Servicer each acknowledges and agrees that Rabobank may share information on matters relating to the Borrower or the Servicer or the transactions contemplated by this Agreement and the other Transaction Documents with its affiliates and subsidiaries, and that such affiliates and subsidiaries may likewise share information relating to the Borrower or the Servicer or such transactions with Rabobank. The Borrower and the Servicer each hereby authorizes Rabobank and its affiliates to disclose the existence and principal terms of this Agreement and the other Transaction Documents (including the names and respective roles of the Borrower, the Servicer and Rabobank in connection therewith) for the purpose of conducting and marketing their businesses.
Notwithstanding the foregoing, each of the Lenders, the Facility Agents, the Administrative Agent, the Servicer and the Borrower (and each employee, representative or other agent thereof) may disclose to any and all Persons, without limitation of any kind, the “tax treatment” and “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions described herein and in the other Transaction Documents and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such tax treatment and tax structure, except that, with respect to any document or similar item that in either case contains information concerning the tax treatment or tax structure of such transaction as well as other information, this authorization shall only apply to such portions of the document or similar item that relate to the tax treatment or tax structure of such transactions. Each party shall take reasonable steps to ensure that any such disclosure by it will not result in a violation of applicable securities laws.
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For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.26(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.26(a) or on whether or not an Erroneous Payment has been made.
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[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto, by their duly authorized signatories, have executed and delivered this Agreement as of the date first above written.
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”,RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent, Committed Lender and Nieuw Amsterdam Facility Agent
By:
Name:
Title:
By:
Name:
Title:
Address for Notices: Rabobank Nederland, New York Branch245 Park Avenue, 37th floor
245 Park Avenue, 37th floor
New York, New York 10167
Attention: NYSG
Facsimile No.: (914) 304-9324287-2254
Confirmation No.: (212) 808-6816916-3713
Email: naconduit@rabobank.comtmteam@rabobank.com
COÖPERATIEVE RABOBANK U.A., as Committed Lender and Nieuw Amsterdam Facility Agent
By:
Name:
Title:
By:
Name:
Title:
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NAI-1533351021v2
{B1600932; 4} [Signature Page to Receivables Loan, Security and Servicing Agreement]
NAI-1533351021v2
NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V.
By:
Name:
Title:
Address for Notices: Global Securitization Services, LLCNieuw Amsterdam Receivables Corporation B.V.
Basisweg 10
1043 AP
Amsterdam, The Netherlands
Attention: The Directors
68 South Service Road, Suite 120
Melville, New York 11747
Tel: (631) 930-7266
Fax: (212) 302-8767
Email: nieuwam@gssnyc.comnl-narc@intertrustgroup.com
Facsimile No.: +31 (0)20 521 4888
Confirmation No.: +31 (0)20 521 4777
withWith a copy to:
Rabobank Nederland, New York Branch
Branch, as Administrator
245 Park Avenue, 37th floor
New York, New York 10167
Attention: NYSGTransaction Management Team
Facsimile No.: (914) 304-9324287-2254
Confirmation No.: (212) 808-6816808-6806
Email: naconduit@rabobank.comtmteam@rabobank.com
{B1600932; 4} [Signature Page to Receivables Loan, Security and Servicing Agreement]
NAI-1533351021v2
FLOWERS FOODS, INC.,
as Servicer
By:
Name:
Title:
Address for Notices: Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, GeorgiaGA 31757
Attention: Mr. R. Steve AveraKinsey
Telecopy: 229-225-3808
Telephone: 229-227-2284
Tel: (229) 227-2353
Fax: (229) 205-3808
EmailE-mail: steve.r.averakinsey@flocorp.com
With a copy to:
Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, GA 31757
Attention: James Thomas Rieck
Telecopy: 229-225-5439
Telephone: 229-227-2253
E-mail: jt.rieck@flocorp.com
{B1600932; 4} [Signature Page to Receivables Loan, Security and Servicing Agreement]
NAI-1533351021v2
FLOWERS FINANCE II, LLC,
as Borrower
By:
Name:
Title:
Address for Notices: Flowers Finance II, LLC
c/o Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, GeorgiaGA 31757
Attention: Mr. R. Steve AveraKinsey
Telecopy: 229-225-3808
Telephone: 229-227-2284
Tel: (229) 227-2353
Fax: (229) 205-3808
EmailE-mail: steve.r.averakinsey@flocorp.com
With a copy to:
Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, GA 31757
Attention: James Thomas Rieck
Telecopy: 229-225-5439
Telephone: 229-227-2253
E-mail: jt.rieck@flocorp.com
{B1600932; 4} [Signature Page to Receivables Loan, Security and Servicing Agreement]
NAI-1533351021v2
EXHIBIT A
to
Receivables Loan, Security
and Servicing Agreement
FORM OF NOTE
$______________ [date]
FOR VALUE RECEIVED, the undersigned, FLOWERS FINANCE II, LLC, a Delaware limited liability company (the “Borrower”), promises to pay to the order of _________________________, on the Legal Final Maturity Date or when earlier required to be repaid as provided in the Receivables Loan Agreement (as defined below), the principal sum of ________________________________ ($___________) or, if less, the aggregate unpaid principal amount of all Advances shown on the schedule attached hereto (and any continuation thereof) and/or in the records of holder which are owed to the holder hereof pursuant to that certain Receivables Loan, Security and Servicing Agreement, dated as of July 17, 2013 (as amended, modified, supplemented or restated from time to time, the “Receivables Loan Agreement”), among the Borrower, Flowers Foods, Inc., as Servicer, the Conduit Lenders, Committed Lenders and Facility Agents from time to time party thereto and Coöperatieve Centrale Raiffeisen-Boerenleenbank BRabobank U.A., “Rabobank Nederland”, as Administrative Agent. Unless otherwise defined, capitalized terms used herein have the meanings provided in the Receivables Loan Agreement.
The Borrower also promises to pay Interest on the unpaid principal amount hereof from time to time outstanding from the date hereof until maturity (whether by acceleration or otherwise) and, after maturity, until paid, at the rates per annum and on the dates specified in the Receivables Loan Agreement.
Payments of both principal and Interest are to be made in lawful money of the United States of America in same day or immediately available funds to the account designated by the related Facility Agent pursuant to the Receivables Loan Agreement.
This Note is one of the Notes referred to in, and evidences indebtedness incurred under, the Receivables Loan Agreement, and the holder hereof is entitled to the benefits of the Receivables Loan Agreement, to which reference is made for a description of the security for this Note and for a statement of the terms and conditions on which the Borrower is permitted and required to make prepayments and repayments of principal of the indebtedness evidenced by this Note and on which such indebtedness may be declared to be immediately due and payable.
All parties hereto, whether as makers, endorsers, or otherwise, severally waive presentment for payment, demand, protest and notice of dishonor.
The holder hereof may sell, assign, transfer, negotiate, grant participations in or otherwise dispose of all or any portion of any Advances represented by this Note and the indebtedness evidenced by this Note only as provided in the Receivables Loan Agreement.
{B1600932; 4} A-1
NAI-1533351021v2
Notwithstanding anything to the contrary contained herein or in the other Transaction Documents, the obligations of the Borrower under this Note are limited recourse obligations of the Borrower, secured by and payable solely from the proceeds of the Collateral in accordance with the Priority of Payments, and following realization of the Collateral and the application of the proceeds thereof in accordance with such Priority of Payments, any claims hereunder shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing by the Borrower under this Note or for the payment by the Borrower of any other obligation or claim of or against the Borrower arising out of or based upon this Note against any employee, officer, director, member or other affiliate of the Borrower. The terms of this paragraph shall survive repayment in full and termination of this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above
FLOWERS FINANCE II, LLC
By:______________________________
Name:
Title:
{B1600932; 4} A-2
NAI-1533351021v2
EXHIBIT B
to
Receivables Loan, Security
and Servicing Agreement
FORM OF BORROWING NOTICE
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
“Rabobank Nederland”,Rabobank U.A., New York Branch,
as Administrative Agent and
as Nieuw Amsterdam Facility Agent
245 Park Avenue, 37th floor
New York, New York 10167
Attention: NYSG
Tel: (212) 808-6816916-3713
Fax: (914) 304-9324287-2254
Email: naconduittmteam@rabobank.com
Coöperatieve Rabobank U.A.,
as Nieuw Amsterdam Facility Agent
Croeselaan 18
3521 CB UTRECHT
The Netherlands
[Names and addresses of other Facility Agents]
Ladies and Gentlemen:
Reference is made to the Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013 among Flowers Finance II, LLC, as Borrower (the “Borrower”), Flowers Foods, Inc., as Servicer, Nieuw Amsterdam Receivables Corporation B.V., as Conduit Lender (the “Lender”), Coöperatieve Centrale Raiffeisen-Boerenleenbank BRabobank U.A., “Rabobank Nederland”, New York Branch, as a Committed Lender and a Facility Agent, and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”,Rabobank U.A., New York Branch, as administrative agent (the “Agent”), and the other Conduit Lenders, Committed Lenders and Facility Agents party thereto (as amended, supplemented or otherwise modified from time to time, the “Receivables Loan Agreement”). Capitalized terms defined in the Receivables Loan Agreement are used herein with the same meanings.
{B1600932; 4} B-1
Bank:
[Wiring address]:
Account Name:
Account No.
[For further credit to account:]
Reference:
Telephone Notice to:
Amount: ________________________
Business Day: ________________________
{B1600932; 4} B-2
IN WITNESS WHEREOF, each of the Borrower and the Servicer has caused this Borrowing Notice to be executed and delivered as of this ____ day of ___________, 20__.
FLOWERS FINANCE II, LLC,
as Borrower
By:
Name:
Title:
FLOWERS FOODS, INC.,
as Servicer
By:
Name:
Title:
{B1600932; 4} B-3
EXHIBIT C
to
Receivables Loan, Security
and Servicing Agreement
FORM OF PREPAYMENT NOTICE
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
“Rabobank Nederland”,Rabobank U.A., New York Branch,
as Administrative Agent and
as Nieuw Amsterdam Facility Agent
245 Park Avenue, 37th floor
New York, New York 10167
Attention: NYSG
Tel: (212) 808-6816916-3713
Fax: (914) 304-9324287-2254
Email: naconduittmteam@rabobank.com
Coöperatieve Rabobank U.A.,
as Nieuw Amsterdam Facility Agent
Croeselaan 18
3521 CB UTRECHT
The Netherlands
[Names and addresses of other Facility Agents]
Ladies and Gentlemen:
Reference is made to the Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013 among Flowers Finance II, LLC, as Borrower (the “Borrower”), Flowers Foods, Inc., as Servicer, Nieuw Amsterdam Receivables Corporation B.V., as Conduit Lender (the “Lender”), Coöperatieve Centrale Raiffeisen-Boerenleenbank BRabobank U.A., “Rabobank Nederland”, New York Branch, as a Committed Lender and a Facility Agent, and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”,Rabobank U.A., New York Branch, as administrative agent (the “Agent”), and the other Conduit Lenders, Committed Lenders and Facility Agents party thereto (as amended, supplemented or otherwise modified from time to time, the “Receivables Loan Agreement”). Capitalized terms defined in the Receivables Loan Agreement are used herein with the same meanings.
Business Day: _______________________
{B1600932; 4} C-1
| Total |
Advances outstanding |
|
Advances being prepaid |
|
Advances outstanding after giving effect to requested prepayment |
|
{B1600932; 4} C-2
IN WITNESS WHEREOF, the Borrower has caused this notice of prepayment to be executed and delivered as of this ____ day of ___________, 20__.
FLOWERS FINANCE II, LLC,
as Borrower
By:
Name:
Title:
{B1600932; 4} C-3
EXHIBIT D
to
Receivables Loan, Security
and Servicing Agreement
FORM OF PERIODIC REPORT
(Attached)
{B1600932; 4}D-1
NYI-4519790v6
NAI-1533351021v2
EXHIBIT E
to
Receivables Loan, Security
and Servicing Agreement
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of the date set forth in Item 1 of Schedule I hereto, among the Selling Lender set forth in Item 2 of Schedule I hereto (the “Selling Lender”), the Purchasing Lender set forth in Item 3 of Schedule I hereto (the “Purchasing Lender”), and the Facility Agent(s) set forth in Item 4 of Schedule I hereto (in such capacity, the “Facility Agent”) for the Lender Group(s) set forth in Item 5 of Schedule I hereto.
W I T N E S S E T H:
WHEREAS, this Assignment and Assumption Agreement is being executed and delivered in accordance with the Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013 (as modified, supplemented, amended or restated from time to time, the “Receivables Loan Agreement”; unless otherwise defined herein, terms defined in the Receivables Loan Agreement are used herein as therein defined), among Flowers Finance II, LLC, as Borrower, Flowers Foods, Inc., as Servicer, the Conduit Lenders, Committed Lenders and Facility Agents from time to time party thereto and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”Rabobank U.A., New York Branch, as Administrative Agent;
WHEREAS, the Purchasing Lender wishes to acquire and assume from the Selling Lender certain of the rights, obligations and commitments, if any, under the Receivables Loan Agreement and, if it is not already a Lender party to the Receivables Loan Agreement, to become a Lender party to the Receivables Loan Agreement; and
WHEREAS, the Selling Lender wishes to sell and assign to the Purchasing Lender certain of its rights, obligations and commitments under the Receivables Loan Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Administrative Agent of one or more counterparts of this Assignment and Assumption Agreement, executed by each of the Selling Lender, the Purchasing Lender and the related Facility Agent(s) and, if required pursuant to Section 10.16 of the Receivables Loan Agreement, consented to by the Borrower, to which is attached a fully completed Schedule I and Schedule II, and provided that the Administrative Agent shall have consented thereto as provided in such Section 10.16, the Administrative Agent will promptly execute and transmit to the Borrower and the Servicer and to the Selling Lender, the Purchasing Lender and their respective Facility Agent(s) a notice, substantially in the form of Schedule III to this Assignment and Assumption Agreement (a “Transfer Effective Notice”). Such Transfer Effective Notice shall set forth, inter alia, the date on which the transfer effected by this Assignment and Assumption Agreement shall become effective (the “Transfer Effective Date”). From and after the Transfer Effective Date (i) the Purchasing Lender, if it is not already a Lender party to the Receivables Loan Agreement, shall be a Lender party to the Receivables Loan Agreement for all purposes thereof as a Conduit Lender or a Committed Lender, as specified on
{B1600932; 4} E-1
Schedule II to this Assignment and Assumption Agreement and shall be a member of the Lender Group specified on such Schedule II and (ii) if the Purchasing Lender is not already a member of its Lender Group, the Facility Agent shall be become a party to the Receivables Loan Agreement for all purposes thereof as a Facility Agent for the Lender Group specified on Schedule II to this Assignment and Assumption Agreement.
(b) At or before 12:00 Noon, local time of the Selling Lender (or when otherwise agreed between the Selling Lender and the Purchasing Lender) on the Transfer Effective Date, the Purchasing Lender shall pay to the Selling Lender, in immediately available funds, an amount equal to the purchase price, as agreed between the Selling Lender and the Purchasing Lender (the “Purchase Price”), of the portion set forth on Schedule II hereto being purchased by such Purchasing Lender (the Purchasing Lender’s “Transferred Percentage”) of the outstanding principal balance of the Advances owed to the Selling Lender and, unless otherwise agreed between the Purchasing Lender and the Selling Lender, accrued and unpaid Interest thereon and accrued and unpaid Unused Fees owed to the Selling Lender. Unless otherwise agreed between the Purchasing Lender and the Selling Lender, the Purchasing Lender is not hereby purchasing and shall not be entitled to receive any other amounts due and payable the Selling Lender under or in respect of the Receivables Loan Agreement, the Selling Lender’s Note, if any, or the other Transaction Documents (including without limitation any amounts payable to the Selling Lender pursuant to Section 2.08, 2.09, 2.10, 10.01 or 10.02 of the Receivables Loan Agreement or Section 7.02 of the Receivables Sale Agreement).
Effective upon receipt by the Selling Lender of the Purchase Price from the Purchasing Lender, the Selling Lender hereby irrevocably sells, assigns and transfers to the Purchasing Lender, without recourse, representation or warranty, and the Purchasing Lender hereby irrevocably purchases, takes and assumes from the Selling Lender, (i) (A) the Transferred Percentage of the presently outstanding principal balance of Advances owed to the Selling Lender, (B) unless otherwise agreed between the Purchasing Lender and the Selling Lender, the Transferred Percentage of the accrued and unpaid Interest thereon and accrued and unpaid Unused Fees owed to the Selling Lender and (C) if and to extent agreed between the Purchasing Lender and the Selling Lender, any other amounts due and payable the Selling Lender under or in respect of the Receivables Loan Agreement, the Selling Lender’s Note, if any, or the other Transaction Documents, in each case together with all instruments, documents and collateral security pertaining thereto and (ii) the Transferred Percentage of (A) if the Selling Lender is a Conduit Lender, the Funding Percentage and the Maximum Conduit Lender Advance Amount of the Selling Lender and the other rights and duties of the Selling Lender under the Receivables Loan Agreement, the Selling Lender’s Note, if any, and the other Transaction Documents, or (B) if the Selling Lender is a Committed Lender, the Funding Percentage, the Liquidity Percentage, if any, and the Commitment of the Selling Lender and other rights, duties and obligations of the Selling Lender under the Receivables Loan Agreement, the Selling Lender’s Note, if any, and the other Transaction Documents.
This Assignment and Assumption Agreement is intended by the parties hereto to effect a purchase by the Purchasing Lender and sale by the Selling Lender of interests in the Receivables Loan Agreement, the Selling Lender’s Note, if any, and the other Transaction Documents and amounts payable thereunder, and it is not to be construed as a loan or a commitment to make a loan by the Purchasing Lender to the Selling Lender.
{B1600932; 4} E-2
(c) The Selling Lender has made arrangements with the Purchasing Lender with respect to (i) the portion, if any, to be paid, and the date or dates for payment, by the Selling Lender to the Purchasing Lender of any fees or other amount heretofore received by the Selling Lender pursuant to the Receivables Loan Agreement prior to the Transfer Effective Date and (ii) the portion, if any, to be paid, and the date or dates for payment, by the Purchasing Lender to the Selling Lender of fees or interest received by the Purchasing Lender pursuant to the Receivables Loan Agreement or otherwise in respect of the Selling Lender’s Note, if any, from and after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable from and after the Transfer Effective Date to or for the account of the Selling Lender in respect of the unpaid principal amount the Advances made by the Selling Lender shall, instead, be payable to or for the account of the Selling Lender and the Purchasing Lender, as the case may be, in accordance with their respective interests as reflected in this Assignment and Assumption Agreement.
(ii) All Interest, Unused Fees and other amounts that would otherwise accrue for the account of the Selling Lender from and after the Transfer Effective Date pursuant to the Receivables Loan Agreement, the Selling Lender’s Note, if any, or the other Transaction Documents shall, instead, accrue for the account of, and be payable to or for the account of, the Selling Lender and the Purchasing Lender, as the case may be, in accordance with their respective interests as reflected in this Assignment and Assumption Agreement. In the event that any amount of Interest, Unused Fees or other amounts accruing prior to the Transfer Effective Date was included in the Purchase Price paid by the Purchasing Lender, the Selling Lender and the Purchasing Lender will make appropriate arrangements for payment by the Selling Lender to the Purchasing Lender of such amount upon receipt thereof from the Facility Agent.
(e) Each of the parties to this Assignment and Assumption Agreement agrees and acknowledges that (i) 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 and Assumption Agreement and (ii) each of the Administrative Agent and the Facility Agent(s) shall apply each payment made to it under the Receivables Loan Agreement, in its capacity as Administrative Agent or Facility Agent, as applicable, in accordance with the provisions of the Receivables Loan Agreement, as appropriate.
(f) By executing and delivering this Assignment and Assumption Agreement, the Selling Lender and the Purchasing Lender confirm to and agree with each other and with the Facility Agents, the Administrative Agent and the other Lenders as follows: (i) other than the representation and warranty that the Selling Lender is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, the Selling Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Receivables Loan Agreement or the other Transaction Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Receivables Loan Agreement or any other instrument or document furnished pursuant thereto; (ii) the Selling Lender makes no representation or warranty and assumes no responsibility with respect to the business, operations, property, financial and other condition and creditworthiness of any Company Party (including without limitation with respect
{B1600932; 4} E-3
to the Collateral) or with respect to the performance or observance by any Company Party of any of their respective obligations under the Receivables Loan Agreement or any other Transaction Document or any other instrument or document furnished pursuant hereto; (iii) the Purchasing Lender confirms that it has received a copy of the Receivables Loan Agreement, the other Transaction Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption Agreement; (iv) the Purchasing Lender has, independently and without reliance upon the Administrative Agent, the Selling Lender or any other Lender or any Facility Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of each Company Party and made its own decision to enter into this Assignment and Assumption Agreement; (v) the Purchasing Lender will, independently and without reliance upon the Administrative Agent, the Selling Lender or any other Lender or any Facility Agent, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under the Receivables Loan Agreement and the other Transaction Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of each Company Party; (vi) the Purchasing Lender appoints and authorizes the Facility Agent and the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Receivables Loan Agreement and the other Transaction Documents as are delegated to the Facility Agent or the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (vii) the Purchasing Lender agrees (for the benefit of the Selling Lender, the Administrative Agent, the Facility Agents, the other Lenders and the Borrower) that it will perform in accordance with their terms all of the obligations which by the terms of the Receivables Loan Agreement are required to be performed by it as a Lender.
(g) Upon and after the Transfer Effective Date (until further modified in accordance with the Receivables Loan Agreement), the Funding Percentage and, if applicable, the Liquidity Percentage and the Maximum Conduit Lender Advance Amount or Commitment, as applicable, of the Selling Lender and the Purchasing Lender shall be as set forth in Schedule II to this Assignment and Assumption Agreement. Such Schedule II also sets forth administrative information with respect to the Purchasing Lender.
(h) THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed by their respective duly authorized officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
{B1600932; 4} E-4
SCHEDULE I TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
Re: Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013, among Flowers Finance II, LLC, as Borrower, Flowers Foods, Inc., as Servicer, the Conduit Lenders, Committed Lenders and Facility Agents from time to time party thereto and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”Rabobank U.A., New York Branch , as Administrative Agent
Item 1: Date of Assignment and Assumption Agreement:
Item 2: Selling Lender:
Item 3: Purchasing Lender:
Item 4: Name of Facility Agent for Selling Lender:
Name of Facility Agent for Purchasing Lender (if different):
Item 5: Name of Lender Group of Selling Lender:
Name of Lender Group of Purchasing Lender (if different):
Item 6: Signatures of Parties to Agreement:
as Selling Lender
By:
Name:
Title:
as Purchasing Lender
By:
Name:
Title:
{B1600932; 4} E-5
CONSENTED TO AND ACCEPTED BY:
[NAME OF FACILITY AGENT], as Facility Agent for Selling Lender
By:
Name:
Title:
[NAME OF FACILITY AGENT], as Facility Agent for Purchasing Lender
By:
Name:
Title:
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”,RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
FLOWERS FINANCE II, LLC
By:
Name:
Title:]
{B1600932; 4} E-6
SCHEDULE II TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
LIST OF ADDRESSES
FOR NOTICES, ASSIGNED ADVANCES,
COMMITMENTS AND FUNDING PERCENTAGES
[Selling Lender]
A. Type of Purchaser: Conduit Lender: Yes/No
Committed Lender: Yes/No
B. Transferred Percentage: _____%
C. Funding Percentage:
Selling Lender Funding Percentage
Prior to Sale: _____%
Funding Percentage Sold: _____%
Funding Percentage Retained: _____%
D. Liquidity Percentage (if applicable):
Selling Lender Liquidity Percentage
Prior to Sale: _____%
Liquidity Percentage Sold: _____%
Liquidity Percentage Retained: _____%
E. Commitment (if applicable)
Selling Lender Commitment
Prior to Sale: $________
Commitment Sold: $________
Commitment Retained: $________
Related Conduit Lender (if applicable): ____________
F. Maximum Conduit Lender Advance Amount (applicable to Conduit Lender):
Selling Lender Maximum Conduit Lender Advance Amount
Prior to Sale: $________
Maximum Conduit Lender Advance Amount Sold: $________
{B1600932; 4} E-7
Maximum Conduit Lender Advance Amount Retained: $________
Related Committed Purchaser(s), Commitment(s) and Liquidity Percentage(s) Prior to Sale:
_________________________ $____________ _____%
_________________________ $____________ _____%
_________________________ $____________ _____%
G. Advances:
Selling Lender Advances Prior to Sale: $________
Advances Sold: $________
Advances Retained: $________
[Purchasing Lender]
A. Type of Purchaser: Conduit Lender: Yes/No
Committed Purchaser: Yes/No
C. Funding Percentage:
Purchasing Lender Funding Percentage
Prior to Sale: _____%
Funding Percentage Purchased: _____%
Funding Percentage After Sale: _____%
D. Liquidity Percentage (if applicable):
Purchasing Lender Liquidity Percentage
Prior to Sale: _____%
Liquidity Percentage Purchased: _____%
Liquidity Percentage After Sale: _____%
E. Commitment (if applicable)
Purchasing Lender Commitment
Prior to Sale: $________
Commitment Purchased: $________
{B1600932; 4} E-8
Commitment After Sale: $________
Related Conduit Lender (if applicable): ____________
F. Maximum Conduit Lender Advance Amount (applicable to Conduit Lender):
Purchasing Lender Maximum Conduit Lender Advance Amount
Prior to Sale: $________
Maximum Conduit Lender Advance Amount Purchased: $________
Maximum Conduit Lender Advance Amount After Sale: $________
Related Committed Purchaser(s), Commitment(s) and Liquidity Percentage(s) After Sale:
_________________________ $____________ _____%
_________________________ $____________ _____%
_________________________ $____________ _____%
G. Advances:
Purchasing Lender Advances Prior to Sale: $________
Advances Purchased: $________
Advances After Sale: $________
H. Address for Notices:
I. Address for Funds Transfer:
{B1600932; 4} E-9
SCHEDULE III TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Form of
Transfer Effective Notice
To: [Name and address of Borrower,
Servicer, Facility
Agent(s), Selling Lender and
Purchasing Lender]
The undersigned, as Administrative Agent under the Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013 among Flowers Finance II, LLC, as Borrower, Flowers Foods, Inc., as Servicer, the Conduit Lenders, Committed Lenders and Facility Agents from time to time party thereto and Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”Rabobank U.A., New York Branch, as Administrative Agent, and acknowledges receipt of executed counterparts of a completed Assignment and Assumption Agreement. [Note: attach copies of Schedules I and II from such Agreement.] Terms defined in such Assignment and Assumption Agreement are used herein as therein defined.
Pursuant to such Assignment and Assumption Agreement, you are advised that the Transfer Effective Date will be _____________, ____.
Very truly yours,
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”,RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
{B1600932; 4} E-10
EXHIBIT F
to
Receivables Loan, Security
and Servicing Agreement
FORM OF SECTION 2.10(b)(ii) CERTIFICATE
Reference is made to the Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013 among Flowers Finance II, LLC, as Borrower (the “Borrower”), Flowers Foods, Inc., as Servicer, Nieuw Amsterdam Receivables Corporation B.V., as Conduit Lender (the “Lender”), Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch,Rabobank U.A., as a Committed Lender and a Facility Agent, and Coöperatieve Centrale Raiffeisen-Boerenleenbank BRabobank U.A., “Rabobank Nederland”, New York Branch, as administrative agent (the “Agent”), and the other Conduit Lenders, Committed Lenders and Facility Agents party thereto (as amended, supplemented or otherwise modified from time to time, the “Receivables Loan Agreement”). Pursuant to the provisions of Section 2.10(b)(ii) of the Receivables Loan Agreement, the undersigned hereby certifies that it is not a “bank” as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
The undersigned certifies that it will promptly notify the Borrower and the Administrative Agent if the warranty and representation made herein is no longer true and correct.
[NAME OF LENDER]
By:
Name:
Title:
Date: , 201_
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EXHIBIT G
to
Receivables Loan, Security
and Servicing Agreement
LIST OF CLOSING DOCUMENTS
{B1600932; 4} VI-1
NAI-1533351021v2
SCHEDULE I
to
Receivables Loan, Security
and Servicing Agreement
List of Special Obligors and Special Obligor Concentration Limits
Special Obligor | Special Concentration Limit |
Wal-Mart Stores, Inc. | 20.0% |
Publix Supermarkets Inc. | 7.5% |
{B1600932; 4} VI-1
NAI-1533351021v2
SCHEDULE II
to
Receivables Loan, Security
and Servicing Agreement
Lockboxes; Collection Accounts; Concentration Account
| DEPOSITOR | NAME OF DEPOSITORY INSTITUTION | DEPOSITORY ADDRESS | CONTACT PERSON | ACCOUNT NUMBER(S) | ACCOUNT TYPE |
1. | Flowers Finance II, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 4128270212 | Concentration Account |
2. | Flowers Bakeries, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900119460 | Collection Account |
3. | Flowers Baking Co. of Miami, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900400768 | Collection Account with associated Lockbox |
4. | Flowers Baking Co. of Lynchburg, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900135981 | Collection Account with associated Lockbox |
{B1600932; 4} II-1
5. | Flowers Baking Co. of Bradenton, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900400784 | Collection Account with associated Lockbox |
6. | Franklin Baking Company, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900119431 | Collection Account with associated Lockbox |
7. | Flowers Baking Co. of Morristown, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900400807 | Collection Account with associated Lockbox |
8. | Flowers Baking Co. of Jacksonville, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900400771 | Collection Account with associated Lockbox |
{B1600932; 4} II-2
9. | Flowers Baking Co. of Norfolk, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900135994 | Collection Account with associated Lockbox |
10. | Flowers Baking Co. of Jamestown, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900135978 | Collection Account with associated Lockbox |
11. | Flowers Baking Co. of Baton Rouge, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2000016946208 | Collection Account with associated Lockbox |
12. | Tasty Baking Company | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2000048123963 | Collection Account with associated Lockbox |
{B1600932; 4} II-3
13. | Flowers Baking Co. of Birmingham, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 2079900136294 | Collection Account with associated Lockbox |
1. | Flowers Baking Co. of Portland, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 4123566937 | Collection Account with associated Lockbox |
2. | Flowers Baking Co. of California, LLC | Wells Fargo Bank, National Association | Wells Fargo Bank, N.A. Mail Address Code: G0128-042 301 South Tryon Street, 7th Floor Charlotte, North Carolina 28282 | Chris McDaid 171 17th Street NW, 4th Floor Atlanta, Georgia 30363 F: (404) 214-1681 | 4942518192 | Collection Account with associated Lockbox |
3. | Lepage Bakeries Park Street, LLC | PNC Bank | PNC Bank PO Box 842440 Boston, MA 02284-2440 | Stephen Hatch 1075 Peachtree Street NE Atlanta, GA 30309 (404) 877-5825 | 5303796176 | Collection Account with associated Lockbox |
4. 14. | Flowers Bakeries, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3750892099 | Collection Account |
{B1600932; 4} II-4
5. 15. | Flowers Bakeries, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3751046103 | Collection Account |
6. 16. | Flowers Baking Co. of Houston, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3751051790 | Collection Account with associated Lockbox |
7. 17. | Flowers Baking Co. of Thomasville, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3750201664 | Collection Account with associated Lockbox |
{B1600932; 4} II-5
8. 18. | Flowers Baking Co. of El Paso, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3751051826 | Collection Account with associated Lockbox |
9. 19. | Flowers Baking Co. of Denton, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3756579659 | Collection Account with associated Lockbox |
10. 20. | Flowers Baking Co. of New Orleans, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3751051800 | Collection Account with associated Lockbox |
{B1600932; 4} II-6
11. 21. | Holsum Bakery Inc. | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 4426607559 | Collection Account with associated Lockbox |
12. 22. | Flowers Baking Co. of Tyler, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3751051813 | Collection Account with associated Lockbox |
13. 23. | Flowers Baking Co. of San Antonio, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3750892125 | Collection Account with associated Lockbox |
{B1600932; 4} II-7
14. 24. | Flowers Baking Co. of Batesville, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3751803388 | Collection Account with associated Lockbox |
15. 25. | Flowers Baking Co. of Villa Rica, LLC | Bank of America, National Association | Bank of America, N.A. 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 | Justin Campoli 2001 Clayton Road, Building B Concord, CA 94520 Mail Code: CA4-702-02-37 T: (925) 675-7169 F: (877) 207-2524 | 3750201651 | Collection Account with associated Lockbox |
16. 26. | Flowers Foods Specialty Group, LLC | SunTrust Bank
| SunTrust Robinson Humphrey, Inc. Mail Code GA-ATL-1761 3333 Peachtree Road, NE, 3rd Floor Atlanta, GA 30326 | Michael Stollmack Mail Code GA-ATL-1761 3333 Peachtree Road, NE, 3rd Floor Atlanta, GA 30326 P: (404) 926-5664 F: (404) 926-5654 | 1000018734342 | Collection Account |
1022760 | Lockbox | |||||
17. 28. | Derst Baking Company, LLC | SunTrust Bank.
| SunTrust Robinson Humphrey, Inc. Mail Code GA-ATL-1761 | Michael Stollmack Mail Code GA-ATL-1761 | 1000032708306 | Collection Account |
{B1600932; 4} II-8
|
|
| 3333 Peachtree Road, NE, 3rd Floor Atlanta, GA 30326 | 3333 Peachtree Road, NE, 3rd Floor Atlanta, GA 30326 P: (404) 926-5664 F: (404) 926-5654 |
|
|
1029810 | Lockbox |
{B1600932; 4} II-9
SCHEDULE III
to
Receivables Loan, Security
and Servicing Agreement
Location of Records
Name | Address
|
Flowers Finance II, LLC | 1919 Flowers Circle Thomasville, Georgia 31757
|
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SCHEDULE IV
to
Receivables Loan, Security
and Servicing Agreement
List of Responsible Officers
Flowers Finance II, LLC
Board of ManagersName Officers Title
Ryals McMullian Ryals McMullian—President
Karyl Lauder—Secretary/Treasurer
Linda Jones Secretary
Steve Kinsey President
J. T. Rieck Treasurer
Stephanie Tillman Assistant Secretary
{B1600932; 4} II-1
SCHEDULE V
to
Receivables Loan, Security
and Servicing Agreement
List of Fiscal Periods
(Attached)
{B1600932; 4} II-1
APPENDIX B
{B1600932; 4} II-1
COMPOSITE COPY
as amended by
First Amendment dated as of August 7, 2014,
Second Amendment dated as of December 17, 2014,
Third Amendment dated as of August 20, 2015,
Fourth Amendment dated as of September 30, 2016,
Fifth Amendment dated as of September 28, 2017,
Sixth Amendment dated as of September 27, 2018,
Seventh Amendment dated as of September 27, 2019,
Eighth Amendment dated as of September 23, 2020, and
Ninth Amendment dated as of September 23, 2021, and
Tenth Amendment dated as of September 27, 2022
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ANNEX I
to
Receivables Loan, Security
and Servicing Agreement
DEFINITIONS
As used in this Agreement, the following terms have the following respective meanings:
“Accrual Period” means each Monthly Period; provided that the first Accrual Period shall begin on and include the Closing Date and end on and include the last day of the first Monthly Period and the last Accrual Period shall begin on and include the first day of the last Monthly Period and end on but exclude the last Settlement Date.
“Administrative Agent” has the meaning specified in the preamble to this Agreement.
“Adjusted Commitment” means, on any date of determination, with respect to a Committed Lender for a Conduit Lender, such Committed Lender’s Commitment minus the aggregate outstanding principal amount of its Support Advances to such Conduit Lender.
“Adjusted Dilution Ratio” means, for any Fiscal Period, the Dilution Ratio for such Fiscal Period; provided that so long as Flowers’ long-term senior unsecured debt is rated at least “BB” and “Ba2” by both S&P and Moody’s, respectively, at the date of the determination of the Adjusted Dilution Ratio for a Fiscal Period, the Dilution Ratio will be calculated for such Fiscal Period assuming the amount of Stale Bread Credit Adjustments is zero.
“Advance” has the meaning specified in Section 2.01(a).
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Party” means each Lender, each Facility Agent, each Support Provider, each Funding Source and the Administrative Agent and the parent company of each such Lender, Facility Agent, Support Provider, Funding Source or Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Affiliated Obligor” means any Obligor that is an Affiliate of another Obligor.
“Agent” has the meaning specified in Section 9.01(c).
“Aggregate Unpaids” means, as of any date of determination, an amount equal to the sum of (a) the aggregate accrued and unpaid Interest with respect to all Advances at such time, (b) the Outstanding Borrowings at such time, (c) all Unused Fees and other fees accrued and unpaid hereunder at such time and (d) all other amounts owed (whether due or accrued) hereunder by the
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Borrower to the Lenders, the Facility Agents, the Administrative Agent and the other Indemnified Parties at such time.
“Agreement” has the meaning specified in the preamble to this Agreement.
“Alternate Base Rate” means, as of any date of determination, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the greater of:
(a) the rate of interest announced by Rabobank in New York, New York, from time to time, as Rabobank’s base rate; and
(b) one percent (1.00%) per annum above the Federal Funds Rate.
If for any reason the Administrative Agent has determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any reason, including the inability of the Administrative Agent to obtain sufficient quotations in accordance with the terms hereof, the Alternate Base Rate shall be determined without regard to clause (b) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in Rabobank’s base rate or the Federal Funds Rate shall be effective on the effective date of such change in such base rate or the Federal Funds Rate, respectively.
“Amortization Event” has the meaning specified in Section 8.01.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Company Party concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended.
“Anti-Terrorism Laws” has the meaning specified in Section 4.01(x).
“Applicable Margin” has the meaning specified in the Fee Letter.
“Assignment and Assumption Agreement” means an assignment and assumption agreement in the form of Exhibit E (with such changes as may be appropriate under the specific circumstances) executed and delivered in accordance with Section 10.16.
“Available Collections” has the meaning specified in Section 2.12(b).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-currentsuch Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Accrual Period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date. (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed pursuant to Section 2.14(d).
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“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bailee and Security Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent with respect to one or more Collection Accounts.
“Bakeries” means Flowers Bakeries, LLC, a Georgia limited liability company.
“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any successor statute.
“Benchmark” means, initially, the LIBOTerm SOFR Reference Rate; provided that if a replacement of the Benchmark Transition Event has occurred pursuant to Section 2.14with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof pursuant to Section 2.14(a).
“Benchmark Replacement” means, for any Available Tenor:
(1) For purposes of clause (a) of Section 2.14, the first alternative set forth below that can be determined by the Administrative Agent:
(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration; provided, that if any Available Tenor of the LIBO Rate does not correspond to an Available Tenor of Term SOFR, the Benchmark Replacement for such Available Tenor of the LIBO Rate shall be the closest corresponding Available Tenor (based on length) for Term SOFR and if such Available Tenor of the LIBO Rate equally corresponds to two Available Tenors of Term SOFR, the corresponding tenor of Term SOFR with the shorter duration shall apply, or
(b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of the LIBO Rate with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (a) of this definition (which spread adjustment, for the avoidance of doubt, shall be 0.11448% (11.448 basis points); and
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(2) For purposes of clause (b) of Section 2.14“Benchmark Replacement” means with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such timeand (b) the related Benchmark Replacement Adjustment;
provided that, if thesuch Benchmark Replacement as so determined pursuant to clause (1) or (2) above would be less than the Floor, thesuch Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.
Notwithstanding the foregoing, the Administrative Agent may (in its sole discretion) determine that a Benchmark Replacement pursuant to paragraph 1(a) of this definition is not administratively feasible and shall not be applied, and that either paragraph 1(b) or paragraph 2 of this definition shall automatically be deemed to apply by providing notice to the Borrower and Facility Agents at least 5 Business Days prior to the effective date for the Benchmark Replacement.
“Benchmark Replacement Conforming ChangesAdjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Accrual Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents). the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment,
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for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time in the United States.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
“Benchmark Transition Event” means with respect to any then-current Benchmark other than the LIBO Rate, the occurrence of (b) a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, thethe regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency
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official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, (or such component thereof) permanently or indefinitely,; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored. (or such component thereof); or
(c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 2.14 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 2.14.
“Borrower” has the meaning specified in the preamble to this Agreement.
“Borrowing Date” has the meaning specified in Section 2.01.
“Borrowing Notice” has the meaning specified in Section 2.01.
“Breakage Costs” has the meaning specified in Section 2.08.
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“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York, New York and, if the applicable Business Day relates to any determination of a LIBO Rate, on which dealings are carried on in the London interbank market, London, England.SOFR or Term SOFR or any calculations or notices by reference to SOFR, or Term SOFR, shall exclude Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Calculated Cross-Age Percentage” means, as of any date of determination, the ratio (expressed as a percentage) of (a) the aggregate Outstanding Balance of Receivables of the Obligors with the 30 highest Outstanding Balances of Receivables (for such purpose, each Obligor and its Affiliated Obligors, if any, being treated as a single Obligor) divided by (b) the aggregate Outstanding Balance of all Receivables, in each case, as of the last day of the most recent Fiscal Period.
“Capital Lease” of any Person means any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any Capital Lease, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Change of Control” means (a) all the Equity Interests of the Borrower shall cease to be owned exclusively by both Bakeries and Specialty, (b) Bakeries, Specialty or any Originator shall cease to be a Wholly-Owned Subsidiary of Flowers or (c) (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”), as in effect on the Closing Date), other than Permitted Holders, is or shall (A) be the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), of 30% or more on a fully diluted basis of the voting and/or economic interest in the Borrower’s capital stock or other Equity Interests or (B) have obtained the power (whether or not exercised) to elect a majority of the Borrower’s directors or (ii) the Board of Directors of Flowers shall cease to consist of a majority of Continuing Directors.
“Charge-Off” means a Receivable or any portion thereof which is identified as uncollectible by the Servicer or which, in accordance with the Credit and Collection Policy, has been written off as uncollectible.
“Closing Date” means July 17, 2013.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” has the meaning assigned to such term in Section 6.02.
“Collection Account” means a deposit account identified on Schedule II maintained by an Originator or a Seller with a bank identified on Schedule II for the purpose of receiving Obligor payments by check or electronic transfer and transfers of Obligor payments from the
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Lockboxes, or such other account as Borrower, the Servicer and the Administrative Agent may agree upon from time to time.
“Collections” means, for any Receivable as of any date, the sum of all amounts, whether in the form of wire transfer, cash, checks, drafts, or other instruments, received by or for the account of the Borrower, a Seller, an Originator, a Subservicer or the Servicer or in a Lockbox or a Collection Account in payment of, or applied to, any amount owed by an Obligor on account of such Receivable (including but not limited to all amounts received on account of any Defaulted Receivable) on or before such date, including (i) all amounts received on account of such Receivable and all other fees and charges, (ii) cash proceeds of Related Security with respect to such Receivable, (iii) all amounts deemed to have been received by a Seller, an Originator, a Subservicer or the Servicer as a Collection pursuant to Section 2.03 of the Receivable Sale Agreement, and (iv) the proceeds of a repurchase paid by a Seller pursuant to Section 2.04 of the Receivable Sale Agreement.
“Commercial Paper” means short-term promissory notes of each Conduit Lender or its Funding Source issued in the commercial paper market.
“Commitment” means, as of any date of determination during the Revolving Period, (a) with respect to Coöperatieve Rabobank U.A., in its capacity as a Committed Lender, $200,000,000, and (b) with respect to any Person who becomes a Committed Lender pursuant to an Assignment and Assumption Agreement, the commitment of such Person to fund any Advance to the Borrower in an amount not to exceed the amount set forth in such Assignment and Assumption Agreement, in either case as such amount may be increased or reduced from time to time pursuant to Assignment and Assumption Agreements. After the Revolving Period, for each Committed Lender, the Commitment shall at all times mean the Outstanding Borrowings then funded by such Committed Lender (as such amount may be increased or reduced from time to time pursuant to Assignment and Assumption Agreements) and shall automatically reduce concurrently with each reduction in such Outstanding Borrowings.
“Committed Lenders” means Coöperatieve Rabobank U.A. and any assignee (with respect to the rights in, and the commitment to make, the Advances) that executes an Assignment and Assumption Agreement (other than an assignee designated therein as a Conduit Lender).
“Company Party” means each of the Originators, the Sellers, the Servicer, the Borrower and the Parent Guarantor.
“Complete Servicing Transfer” has the meaning specified in Section 7.09(a).
“Concentration Account” means the deposit account identified as such on Schedule II maintained by the Borrower with the bank identified on Schedule II for the purpose of receiving transfer of funds from the Collection Accounts, or such other account as Borrower, the Servicer and the Administrative Agent may agree upon from time to time.
“Concentration Limit” for any Obligor means, as of any date of determination, the product of (a) the aggregate Outstanding Balances of all Eligible Receivables and (b) the lower of the percentages set forth below opposite the short term unsecured debt rating, if any, currently assigned to such Obligor by S&P and Moody’s at such time (or in the absence of a short term
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unsecured debt rating from any such rating agency, the long term unsecured senior debt rating currently assigned to such Obligor by S&P and Moody’s at such time):
Category | S&P Short Term Rating | S&P Long Term Rating | Moody’s Short Term Rating | Moody’s Long Term Rating | Concentration Limit |
I | A-1+/ A-1 | AAA to A | P-1 | Aaa to A2 | 15.0% |
II | A-2 | A- to BBB+ | P-2 | A3 to Baa1 | 7.5% |
III | A-3 | BBB to BBB- | P-3 | Baa2 to Baa3 | 5.0% |
IV | Below A-3 or Not Rated by S&P | Below BBB- | Below P-3 or Not Rated by Moody’s | Below Baa3 or Not Rated by Moody’s | 4.00% for the two largest Obligors* in this category, 3.00% for the third largest Obligor in this category and 2.00% for all other Obligors in this category |
* Obligors with the two highest Outstanding Balances of Eligible Receivables as of the last day of most recently ended Fiscal Period (for such purpose, each Obligor and its Affiliated Obligors, if any, being treated as a single Obligor) |
or, if such Obligor is a Special Obligor, its Special Obligor Concentration Limit, if higher than as determined above; provided, that in the case of an Obligor with any Affiliated Obligor, the Concentration Limit shall be calculated as if such Obligor and such Affiliated Obligor are one Obligor. For the avoidance of doubt, if any Obligor does not have a short term unsecured debt rating or a long term unsecured senior debt rating from at least one of S&P and Moody’s, such Obligor’s Concentration Limit shall equal the Concentration Limit for Category IV set forth above.
“Conduit Lenders” means Nieuw Amsterdam and any other special purpose vehicle established primarily for the purpose of issuing Commercial Paper (or financing itself through the issuance of Commercial Paper through a Funding Source) to finance the purchase of eligible assets and which executes an Assignment and Assumption Agreement and is designated therein as a “Conduit Lender”.
“Confidential Information” has the meaning assigned to such term in Section 10.17.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of the definition of “Business Day,” the definition of “Accrual Period” or any similar or
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analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.08 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines) that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides] is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Continuing Directors” means the directors of Flowers on April 5, 2013the Tenth Amendment Date and each other director if such director’s nomination for election to the board of directors of Flowers is recommended by a majority of the then Continuing Directors or is recommended by a committee of such board of directors a majority of which is composed of the then Continuing Directors.
“Contra Account” means, in relation to any Obligor, the aggregate of all potential set-off amounts which would be payment obligations of any Originator to such Obligor, together with any other reserves booked by such Originator with respect to payment obligations of such Obligor.
“Contract” means, with respect to a Receivable, any written agreements, invoices, contracts or understandings between the applicable Originator and an Obligor pursuant to which the Receivable arises or is evidenced and under which the Obligor thereof is obligated to pay the Receivable to the applicable Originator.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” has meanings correlative thereto.
“Control Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent with respect to one or more Lockboxes and/or Collection Accounts and/or the Concentration Account.
“Cost of Funds Rate” means, with respect to any Advance funded by a Conduit Lender and each day during an Accrual Period, the per annum rate equivalent to the weighted average of the per annum rates paid or payable by such Conduit Lender on each day during such Accrual Period as interest on or otherwise (by means of interest rate hedges, currency hedges or otherwise) in respect of the Commercial Paper issued by such Conduit Lender or its Funding Source that is allocated, in whole or in part, by the related Facility Agent (on behalf of such Conduit Lender) to fund the making or maintenance of such Advance during such Accrual Period as determined by the related Facility Agent (on behalf of such Conduit Lender), and in each case as reported to the Borrower and the Servicer, which rates shall reflect and give effect to (i) certain
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documentation and transaction costs (including dealer and placement agent commissions) associated with the issuance of such Commercial Paper, (ii) without duplication, incremental carrying costs incurred with respect to Commercial Paper maturing on dates other than those on which corresponding funds are received by such Conduit Lender, and (iii) other borrowings by such Conduit Lender, including borrowings to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market, to the extent such amounts are allocated, in whole or in part, by the related Facility Agent to fund such Conduit Lender’s making or maintenance of such Advance during such Accrual Period; provided, that if any component of such rate is a discount rate, in calculating the “Cost of Funds Rate” for such day, the related Facility Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
“Credit and Collection Policy” has the meaning set forth in Section 1.01 of the Receivables Sale Agreement.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Days Sales Outstanding” means for any Fiscal Period, as of any date of determination, an amount equal to the product of (i) a fraction, the numerator of which is the Outstanding Balance of all Receivables on the last day of such Fiscal Period and the denominator of which is the aggregate amount of Receivables originated by all the Originators during such Fiscal Period and (ii) 28.
“Deemed Collections” has the meaning set forth in Section 2.03 of the Receivables Sale Agreement.
“Default Rate” means, at any time, a rate per annum equal to the sum of (a) 2.00% plus (b) the Applicable Margin plus (c) the Alternate Base Rate.
“Default Ratio” means, for any Fiscal Period, as of any date of determination, the ratio (expressed as a percentage) of (a) the sum of (i) the aggregate Outstanding Balance of all Receivables that were not Defaulted Receivables at the beginning of such Fiscal Period but that became Defaulted Receivables during such Fiscal Period and are categorized as outstanding at least fourteen (14) weeks but less than fifteen (15) weeks from their respective original invoice dates, plus (ii) the aggregate Outstanding Balance of all Receivables that were written-off and that were outstanding fourteen (14) weeks or less from their respective original invoice dates, to (b) an amount equal to the product of (i) the aggregate amount of Receivables generated by all the Originators during the Fiscal Period that occurred three Fiscal Periods prior to the Fiscal Period for which such ratio is being calculated and (ii) 25%; provided that for purposes of Section 8.02(q)(ii), the Default Ratio shall be equivalent to the ratio (expressed as a percentage) of (i) the sum of the aggregate Outstanding Balance of all Receivables that were not Defaulted Receivables at the beginning of such Fiscal Period but that became Defaulted Receivables during such Fiscal
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Period that were unpaid for fourteen (14) weeks or more past their respective original invoice dates (determined without regard to any modification thereof) as of the last day of such Fiscal Period to (ii) the aggregate Outstanding Balance of all Receivables as of the last day of such Fiscal Period.
“Defaulted Receivable” means a Receivable (a) as to which the Obligor has suffered an Insolvency Event, (b) which, consistent with the Credit and Collection Policy, would be a Charge-Off or (c) as to which any payment, or part thereof, becomes unpaid for fourteen (14) weeks or more past its original invoice date (determined without regard to any modification thereof).
“Delinquency Ratio” means, for any Fiscal Period, as of any date of determination, the ratio (expressed as a percentage) of (a) the aggregate Outstanding Balance of all Receivables which were Delinquent Receivables as of the last day of such Fiscal Period to (b) the aggregate Outstanding Balance of all Receivables as of the last day of such Fiscal Period.
“Delinquent Receivable” means a Receivable, other than a Defaulted Receivable, as to which any payment, or part thereof, becomes unpaid for eight (8) or more weeks past its original invoice date (determined without regard to any modification thereof).
“Dilution Factors” means credits, cancellations, debt forgiveness, billing adjustments, cash discounts, retropricing, warranties, allowances, Disputes, rebates, charge backs, returned or repossessed goods, and other allowances, adjustments and deductions (including, without limitation, any special or other discounts or any reconciliations and any set-off in respect of any claim by any Person, whether such claim arises out of the same or a related transaction or an unrelated transaction) that are given by an Originator or any of its Affiliates, the Servicer or a Subservicer to an Obligor, other than (a) payment in cash of the Outstanding Balance of a Receivable by an Obligor or (b) a reduction of the Outstanding Balance of a Receivable as the result of the related Obligor’s inability to pay such Receivable.
“Dilution Ratio” means, for any Fiscal Period, the ratio (expressed as a percentage) of (a) the aggregate amount of Dilution Factors relating to Receivables for such Fiscal Period to (b) the aggregate amount of Receivables generated by all the Originators during the immediately preceding Fiscal Period; provided that in calculating Dilution Factors resulting from Stale Bread Returns, the amount to be included in clause (a) above will be an amount equal to the ratio of (i) the amount of Stale Bread Credit Adjustments for such Fiscal Period divided by (ii) the Stale Bread Factor.
“Dilution Reserve Percentage” means, for any Fiscal Period, as of any date of determination, a percentage equal to:
((SF x AED) + ((ADS– AED) x ADS /AED)) x DHR
where:
SF = a stress factor equal to 2.50;
AED = the average of the Adjusted Dilution Ratios during the 13 consecutive Fiscal Periods ending with the Fiscal Period
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for which such Dilution Reserve Percentage is being determined;
DS = the highest Adjusted Dilution Ratio computed for any Fiscal Period that occurred during the 13 consecutive Fiscal Periods ending with the Fiscal Period for which such Dilution Reserve Percentage is being determined; and
DHR = the Dilution Horizon Ratio, equal to a fraction, (i) the numerator of which is equal to the aggregate amount of all Receivables originated by all the Originators during the Fiscal Period for which such Dilution Reserve Percentage is being determined and (ii) the denominator of which is equal to the Net Receivables Balance as of the last day of the Fiscal Period for which such Dilution Reserve Percentage is being determined.
“Dispute” means any dispute, deduction, claim, offset, defense, counterclaim, or right of set-off, including any dispute relating to goods, purchased or leased equipment, leased real or personal property, or services already paid for.
“Distributor Receivable” mean a Receivable the Obligor of which is a wholesale distributor of an Originator’s goods.
“Dollar” and the symbol “$” means lawful currency of the United States of America.
“Due Diligence Audit” has the meaning assigned to such term in Section 5.01(g).
“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Facility Agents, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Facility Agents, written notice of objection to such Early Opt-in Election from Facility Agents comprising the Majority Facility Agents.
“Early Opt-in Election” means the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
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(2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from the LIBO Rate and the provision by the Administrative Agent of written notice of such election to the Facility Agents.
“Early Termination Date” means the earliest of (a) the Business Day immediately prior to the occurrence of an Insolvency Event with respect to any Company Party, (b) the Business Day specified in a Notice of Termination delivered by the Administrative Agent pursuant to Section 8.03(a) and (c) the Business Day specified by 30 Business Days’ written notice of termination to the Administrative Agent from the Borrower.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Receivable” means, at any time a Receivable that meets each of the following criteria:
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“Equity Interests” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however designated) equity of such Person, including, without limitation, any common stock, preferred
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stock, any limited or general partnership interest and any limited liability company membership interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” shall meanmeans each person (as defined in Section 3(9) of ERISA) which together with any Seller or any Subsidiary of a Seller would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event” means the occurrence of any event or condition which (a) causes a breach of any representation or warranty set forth in Section 7.10 of the Flowers Credit Agreement (as in effect on the Closing Date), (b) requires Flowers to deliver a notice to the administrative agent under the Flowers Credit Agreement under Section 8.07 thereof or (c) would constitute an “Event of Default” under Section 10.06 of the Flowers Credit Agreement.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning ascribed to such term in Section 8.02.
“Excess Payment” has the meaning specified in Section 2.02(g) of the Receivables Sale Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Receivable” means (a) any Distributor Receivable and (b) with respect to any Excluded Originator, any indebtedness of an Obligor to such Excluded Originator otherwise constituting a Receivable that is originated by such Excluded Originator on or after its Exclusion Effective Date.
“Exclusion Effective Date” has the meaning specified in Section 10.25.
“Executive Order” has the meaning specified in Section 4.01(x).
“Facility Agent” means, with respect to any Conduit Lender and Committed Lender, the entity acting as agent for such Conduit Lender and Committed Lender identified on the signature pages hereto and any assignee thereof which executes an Assignment and Assumption Agreement.
“Facility Termination Date” means the earlier to occur of September 27, 20232024 and the Early Termination Date.
“FATCA” means Sections 1471 through 1474 of the Code, as enacted on the Closing Date (and any amended or successor version thereof), and any current or future regulations promulgated thereunder or published administrative guidance implementing such Sections and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
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“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Fee Letter” means the letter agreementSixth Amended and Restated Fee Letter, dated as of the date hereofTenth Amendment Date, between the Borrower and the Administrative Agent.
“Final Date” means the earliest date following the Facility Termination Date on which either of the following occurs: (a) the indefeasible reduction of the Outstanding Borrowings to zero and the indefeasible payment of Advances and other Aggregate Unpaids or (b) all Receivables have either been collected or written-off by the Servicer as being uncollectible in accordance with the Credit and Collection Policy and all recoveries in respect of Charge-Off Receivables have been received and applied in accordance with the Transaction Documents, as reasonably determined by the Servicer and the Administrative Agent.
“Financial Officer” means, with respect to a specified Person, its chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller.
“Financing Parties” means, collectively, the Administrative Agent, each Facility Agent and each Lender.
“Fiscal Period” means, for each calendar year, the relevant four week period specified on Schedule V, as such Schedule may be amended from time to time by the Servicer, with the consent of the Administrative Agent, which consent shall not be unreasonably withheld, to reflect comparable fiscal periods of the Originators.
“Floor” means 0.00%.
“Floor Reserve Percentage” means, for any Fiscal Period, as of any date of determination, a percentage equal to the sum of:
Loss Reserve Floor Percentage + Dilution Reserve Floor Percentage
where:
Loss Reserve Floor Percentage = 15%;
Dilution Reserve Floor Percentage = the average of the Adjusted Dilution Ratios during the preceding 13 Fiscal Periods ending on the last day of the Fiscal Period for which such Floor Reserve Percentage is
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being determined multiplied by the Dilution Horizon Ratio (as such term is used herein in the definition of Dilution Reserve Percentage).
“Flowers” means Flowers Foods, Inc., a Georgia corporation.
“Flowers Credit Agreement” means the Credit Agreement, dated as of April 5, 2013October 24, 2003 and amended and restated as of October 29, 2004, as further amended and restated as of June 6, 2006 and as further amended and restated as of May 20, 2011 and as further amended by First Amendment to Amended and Restated Credit Agreement, dated as of November 16, 2012, Second Amendment to Amended and Restated Credit Agreement, dated as of April 5, 2013, Third Amendment to Amended and Restated Credit Agreement, dated as of February 14, 2014, Fourth Amendment to Amended and Restated Credit Agreement, dated as of April 21, 2015, Fifth Amendment to Amended and Restated Credit Agreement, dated as of April 19, 2016, Sixth Amendment to Amended and Restated Credit Agreement, dated as of November 29, 2017 and Seventh Amendment to Amended and Restated Credit Agreement, dated as of July 30, 2021, among Flowers, the Lenders party hereto from time to time, Rabobank, Branch Banking and Trust Company and Regions Bank, as co-documentation agents, Bank of America, N.A., as syndication agent, and Deutsche Bank AG New York Branch, as administrative agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Foreign Lender” has the meaning specified in Section 2.10(b).
“Funding Base” means, as of any date of determination, an amount equal to (a) the Net Receivables Balance at such time, multiplied by (b) the difference of 100% minus the Required Reserve Percentage at such time.
“Funding Percentage” means with respect to a Committed Lender, its Commitment as a percentage of the aggregate amount of the Commitments of all Committed Lenders, and with respect to a Conduit Lender, its Maximum Conduit Lender Advance Amount as a percentage of the aggregate amount of the Commitments of all Committed Lenders.
“Funding Source” means, with respect to a Conduit Lender, any financing conduit or intermediate special purpose entities from which, directly or indirectly, such Conduit Lender receives funds to finance such Conduit Lender’s making or maintaining its Advances hereunder.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the a government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, stock exchange, regulatory body, securities commission, bureau, board, court, central bank, Person or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Governmental Obligor” means an Obligor which is the United States of America, any territory or possession of the United States of America, any state of the United States of
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America or the District of Columbia, any political subdivision of any of the foregoing, any agency or instrumentality of any of the foregoing, any public school and any public healthcare institution and any military agency or instrumentality or any other Governmental Authority.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Hedging Agreement” means any interest rate protection agreement, foreign currency exchange agreement, commodities price protection agreement or other interest of currency exchange rate or commodity price hedging agreement.
“Indebtedness” means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. For purposes of this Agreement, the Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Parties” means any or all of the Lenders, the Facility Agents, the Support Providers, the Funding Sources and the Administrative Agent and their respective Affiliates and successors and assigns and their respective officers, directors, managers, managing members, partners, employees, agents, advisors and representatives.
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“Independent Manager” means, with respect to the Borrower, a natural person who, for the five-year period prior to his or her appointment as Independent Manager (a) has not been, and during the continuation of his or her service as Independent Manager is not: (i) an employee, director, stockholder, member, manager, partner or officer of the Borrower, the Parent Guarantor or any of its Affiliates (other than his or her service as an Independent Manager of the Borrower), (ii) a customer of, or supplier of goods or services to, the Borrower, Flowers or any of its Affiliates, (iii) a Person controlling or under common control with any partner, stockholder, member, manager, Affiliate or customer or supplier of the Borrower, the Parent Guarantor or any of its Affiliates, or (iv) any member of the immediate family of a Person described in (i), (ii) or (iii); (b) has prior experience as an Independent Manager or an Independent Manager for a corporation or limited liability company whose charter documents require the unanimous consent of all Independent Managers or managers thereof before such corporation or limited liability company may consent to the institution of bankruptcy or insolvency proceedings against it or may file a petition seeking relief under any applicable federal or state law relating to bankruptcy; and (c) has at least five (5) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities; provided that, an individual who otherwise satisfies the foregoing shall not be disqualified from being an Independent Manager of the Borrower if such individual is at the time of initial appointment, or at any time while serving as the Independent Manager of the Borrower, an Independent Manager of a Special Purpose Entity which is an Affiliate or the Borrower or the Parent Guarantor. For purposes of this paragraph only, a “Special Purpose Entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve its separateness that are substantially similar to those of the Borrower and provide, inter alia, that it is (a) organized for a limited purpose; (b) has restrictions on its ability to incur indebtedness, dissolve, liquidate, consolidate, merge and/or sell assets; (c) may not file voluntarily a bankruptcy petition on its own behalf (and/or on behalf of certain Affiliates) without the consent of the Independent Manager; and (d) shall conduct itself (and/or cause certain Affiliates to conduct themselves) in accordance with certain “separateness covenants,” including, but not limited to, the maintenance of books, records, bank accounts and assets separate from those of any other Person.
“Insolvency Event” means, with respect to any Person, the filing by such Person of a notice of intention to make a proposal under applicable insolvency legislation to some or all of its creditors; or the commencement or filing of a petition, notice or application by or against such Person of any proceedings to adjudicate it a bankrupt or insolvent or seeking liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law of any jurisdiction relating to the dissolution, liquidation or winding-up, bankruptcy, insolvency, reorganization of insolvent debtors, arrangement of insolvent debtors, readjustment of debt or moratorium of debts, or to obtain an order for relief by the appointment of a receiver, receiver manager, administrator, inspector, liquidator or trustee or other similar official for it or for any substantial part of its property and, if any such proceeding has been instituted against such Person, either (i) such proceeding has not been stayed or dismissed within 60 days or any of the actions sought in such proceeding (including the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official) are granted in whole or in part; or (ii) such Person has authorized, consented to, approved of or acquiesced in, or such Person has performed any act, or omitted to perform any act, that authorizes or indicates its consent to, approval of or acquiescence in, any such proceeding.
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“Interest” means, as of any date of determination, for any Advance for any Accrual Period:
IR x OB x AD
AP
where:
IR = the Interest Rate applicable to such Advance;
OB = the outstanding principal balance of such Advance;
AD = the actual number of days during such Accrual Period; and
AP = the number of days in the annual period on the basis of which Interest for such Advance is calculated, being 365 or 366, as the case may be, if the Interest Rate for such Advance is calculated by reference to the Alternate Base Rate and otherwise being 360;
provided, however, that no provision of this Agreement shall require the payment or permit the collection of Interest in excess of the maximum permitted by applicable Law; and provided, further, that Interest shall not be considered paid by any distribution if at any time such distribution is rescinded or must be returned to the Borrower or any of its Affiliates for any reason.
“Interest Rate” means, as of any date of determination, with respect to any Advance and each day during an Accrual Period, the sum of (a) the Applicable Margin, plus (b):
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provided, that from and after the occurrence of an Event of Default, the Interest Rate shall be equal to the Default Rate.
“Law” means, in respect of any Person, all provisions of constitutions, statutes, rules, regulations, and orders of Governmental Authorities applicable to such Person, and all orders and decrees of all courts and arbitrators in proceedings or actions to which the Person in question is a party or by which it is bound.
“Legal Final Maturity Date” means the 90th day following the Facility Termination Date (or, if such day is not a Business Day, the next succeeding Business Day).
“Lender” means each Conduit Lender and each Committed Lender.
“Lender Group” means each of the following separate groups of Facility Agents and Lenders: (a) the Nieuw Amsterdam Facility Agent, Nieuw Amsterdam and Coöperatieve Rabobank U.A., together with one or more other Committed Lenders that may hereafter become a party hereto from time to time by the execution of an Assignment and Assumption Agreement by such Conduit Lender or Committed Lender (unless such Assignment and Assumption Agreement designates such Committed Lender to be a member of another Lender Group) and (b) each other related group designated as a Lender Group in the applicable Assignment and Assumption Agreement consisting of a Facility Agent, a Conduit Lender (if any), and one or more Committed Lenders, together with one or more other Committed Lenders that may thereafter become a party hereto from time to time by the execution of an Assignment and Assumption Agreement by such Conduit Lender or Committed Lender (unless such Assignment and Assumption Agreement designates such Committed Lender to be a member of another Lender Group).
“LIBO Rate” means, with respect to an Accrual Period and an Advance, the greater of (i) 0.00% and (ii) (a) the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is 2 Business Days prior to the commencement of such Accrual Period by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) for a period equal to such Interest Period; provided that to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such relevant Accrual Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is 2 Business Days prior to the beginning of such Accrual Period, divided by (b) a percentage equal to 100% minus the then stated maximum rate of all reserve requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves) applicable to any member bank of the Federal Reserve System in respect of Eurocurrency liabilities as defined in Regulation D (or any successor category of liabilities under Regulation D).
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“Lien” means any mortgage, pledge, hypothecation, assignment, encumbrance, lien (statutory or other), preference, priority or other security arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing).
“Liquidity Percentage” means, for a Committed Lender in respect of a Conduit Lender in a Lender Group, such Committed Lender’s Adjusted Commitment with respect to such Conduit Lender as a percentage of the aggregate Adjusted Commitments of all Committed Lenders in such Lender Group.
“Liquidity Provider” means, with respect to a Conduit Lender, any one or more Persons extending credit, or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Lender or its Funding Source with respect to such Conduit Lender’s Advances under this Agreement to provide liquidity support to its obligations arising under or in connection with the commercial paper, variable funding or medium term note program of such Conduit Lender or its Funding Source.
“Lockbox” means a post office box or other mailing location maintained by a Lockbox Bank pursuant to a Lockbox Agreement for the purpose of receiving payments made by the Obligors for subsequent deposit into a Collection Account.
“Lockbox Agreement” means the agreement, if any, that governs the operation of a Lockbox which is in compliance with this agreement and which is in form and substance reasonably satisfactory to the Administrative Agent.
“Lockbox Bank” means one or more banks as to which the Administrative Agent, the Borrower and the Servicer may agree upon from time to time.
“Loss Reserve Percentage” means, for any Fiscal Period, as of any date of determination, the percentage equal to
SF x DR x LHR
where:
SF = a stress factor equal to 2.50;
DR = the highest average of the Default Ratios computed for any three consecutive Fiscal Periods that occurred during the 13 consecutive Fiscal Periods ending with the Fiscal Period for which such Loss Reserve Percentage is being determined; and
LHR = the Loss Horizon Ratio is a fraction, (i) the numerator of which is equal to the aggregate amount of all Receivables originated by all the Originators during the three (3) consecutive Fiscal Periods ending with the Fiscal Period for
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which such Loss Reserve Percentage is being determined, and (ii) the denominator of which is the Net Receivables Balance as of the last day of the Fiscal Period for which such Loss Reserve Percentage is being determined.
“Majority Facility Agents” has the meaning specified in Section 8.03(a).
“Material Adverse Effect” means (a) a material adverse effect on (i) the business, assets, operations or financial condition of the Company Parties considered as a consolidated group, (ii) the ability of any Company Party to perform its obligations under this Agreement or any other Transaction Document to which it is a party, (iii) the validity, enforceability or collectability of this Agreement or any other Transaction Document or the validity, enforceability or collectability of a material portion of the Receivables or other Collateral taken as a whole, (iv) the rights and remedies of the Administrative Agent and the other Secured Parties under this Agreement or any other Transaction Document or (v) the status, existence, perfection, priority or enforceability of the Administrative Agent’s or any Lender’s interest in the Collateral, or (b) any event or condition which constitutes an Amortization Event or results in the imposition of any Lien (other than the Lien in favor of the Administrative Agent pursuant hereto) on 1.00% or more of the aggregate Outstanding Balances of the Eligible Receivables (other than Receivables which have been repurchased from the Borrower by a Seller pursuant to the Receivables Sale Agreement).
“Maximum Advance Amount” means, at any time of determination, the lesser of (a) the aggregate Commitments of all the Committed Lenders and (b) the Funding Base at such time.
“Maximum Conduit Lender Advance Amount” means, for any Conduit Lender which is not a Committed Lender, the aggregate Commitments of the Committed Lenders in its Lender Group.
“Monthly Period” means each calendar month, commencing with the calendar month in which the Closing Date occurs and ending with the calendar month in which the Final Date occurs.
“Moody’s” means Moody’s Investors Service, Inc., together with any successor that is a nationally recognized statistical rating organization.
“Net Receivables Balance” means, at any time, the aggregate Outstanding Balances of the Eligible Receivables (provided that, for purposes of this definition, the aggregate Outstanding Balance of Receivables that are not Eligible Receivables due to their failure to satisfy the requirement set forth in clause (r) of the definition of Eligible Receivables will be calculated as the ratio of (a) the aggregate Outstanding Balance of such Receivables for the Obligors with the 30 highest Outstanding Balances of such Receivables divided by (b) the Calculated Cross-Age Percentage) owned by the Borrower at such time reduced (without duplication) by the sum of:
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The parties hereto agree that in calculating the aggregate Outstanding Balances of Eligible Receivables and the Net Receivables Balance, the Borrower and the Servicer may use estimates of (x) the amount of sales tax payments included in the gross balance of receivables and (y) the aggregate amount of all Contra Accounts; provided that during the period from September 27, 2022 to September 27, 2023, such estimates shall be, respectively, (x) 0.11% of the gross balance of receivables and (y) 0.52% of the gross balance of receivables; and provided, further, that thereafter such estimates shall be mutually agreed by the Borrower and the Administrative Agent.
“Nieuw Amsterdam” means Nieuw Amsterdam Receivables Corporation, a Delaware corporation B.V., together with any of its assigns that is a multi-seller commercial paper conduit administered by the Nieuw Amsterdam Facility Agent or any of its Affiliates and which executes an Assignment and Assumption Agreement.
“Nieuw Amsterdam Facility Agent” means Coöperatieve Rabobank U.A. in its capacity as facility agent to the Nieuw Amsterdam Lender Group under this Agreement.
“Nieuw Amsterdam Lender Group” means the Lender Group described in clause (a) of the definition of “Lender Group” in this Annex I.
“Note” has the meaning specified in Section 2.04(a).
“Notice of Termination” has the meaning specified in Section 8.03(a).
“Obligations” has the meaning specified in Section 6.01.
“Obligor” means with respect to any Receivable, the Person or Persons obligated to make payments with respect to such Receivable.
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“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Originator” means each Subsidiary of a Seller from time to time party to an Originator Sale Agreement with the consent of the Majority Facility Agents, except that no Excluded Originator, starting on the Exclusion Effective Date for such Excluded Originator, shall be an Originator (other than for purposes of any Transaction Document applicable to such Originator which by their terms survive the termination of such Transaction Document).
“Originator Sale Agreement” means each of the Originator Sale Agreement (Bakeries) and the Originator Sale Agreement (Specialty).
“Originator Sale Agreement (Bakeries)” means the Receivables Sale and Distribution Agreement, dated as of July 17, 2013, by and among the Originators party thereto, as sellers, and Bakeries, as purchaser.
“Originator Sale Agreement (Specialty)” means the Receivables Sale and Distribution Agreement, dated as of July 17, 2013, by and among the Originators party thereto, as sellers, and Specialty, as purchaser.
“Other Taxes” has the meaning specified in Section 10.01.
“Outstanding Balance” of any Receivable means, at any time, the excess of (a) the principal balance of such Receivable on the date on which it arose over (b) the aggregate Collections (including Deemed Collections) received by or for the account of the Borrower in respect of such Receivable prior to such time.
“Outstanding Borrowings” means, at any time, the aggregate principal amount of Advances outstanding on such day, after giving effect to all repayments of Advances and makings of new Advances on such day; provided that the Outstanding Borrowings shall be increased by the amount of any payment applied to reduce Outstanding Borrowings if at any time the distribution of such payment is rescinded or must otherwise be returned or restored to the payor thereof for any reason.
“Parent Guarantor” means Flowers.
“Participant” has the meaning specified in Section 10.16.
“Patriot Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“Performance Undertaking Agreement” means the Performance Undertaking Agreement, dated as of the date hereof, by the Parent Guarantor in favor of the Administrative Agent.
“Periodic Report” has the meaning specified in Section 2.13.
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“Permitted Holders” means the descendants of William H. Flowers, Sr. and members of their immediate families.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Potential Amortization Event” means any event that, with the giving of notice or the passage of time, or both, would constitute an Amortization Event or an Event of Default.
“Potential Set-offs” means with respect to each Obligor which is also a supplier to the relevant Originator, the lower of (a) the Outstanding Balance of Receivables originated by such Obligor and (b) the amount that is owed by the applicable Originator to such Obligor, in each case, as of the last day of the most recently ended Fiscal Period.
“Potential Servicer Default” means any event that, with the giving of notice or the passage of time, or both, would constitute a Servicer Default.
“Priority of Payments” means, as of any date of determination, the provisions of Section 2.12(a), Section 2.12(b) or Section 2.12(c) which are applicable on such date.
“Purchase Price” has the meaning specified in Section 2.02(c) of the Receivables Sale Agreement.
“Purchased Assets” has the meaning specified in Section 2.01(a) of the Receivables Sale Agreement.
“Rabobank” means Coöperatieve Centrale Raiffeisen-Boerenleenbank BRabobank U.A., “Rabobank Nederland”, New York Branch.
“Rabobank Roles” has the meaning specified in Section 10.22.
“Rating Agency” means Moody’s, S&P or any other nationally recognized statistical rating organization.
“Receivable” means, collectively, all indebtedness owed to the applicable Originator by any Obligor (without giving effect to any purchase under the Receivables Sale Agreement by the Borrower at any time), whether or not constituting an account, a payment intangible or a general intangible and whether or not evidenced by chattel paper or an instrument, whether now existing or hereafter arising and wherever located, arising in connection with the sale of goods by the applicable Originator to an Obligor under an invoice between the applicable Originator and such Obligor, all monies due or to become due under such indebtedness, and including the right to payment of any other obligations of such Obligor with respect thereto. Notwithstanding the foregoing, the term “Receivable” shall not include Excluded Receivables.
“Receivables Sale Agreement” means the Receivables Sale and Contribution Agreement, dated as of July 17, 2013, by and among the Borrower, as purchaser, and Bakeries and Specialty, each as a seller.
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“Records” means correspondence, memoranda, computer programs, tapes, discs, papers, books or other documents or transcribed information of any type whether expressed in ordinary or machine readable language.
“Related Security” means with respect to any Receivable:
(a) all of the applicable Originator’s interest, if any, in the goods (including returned goods), the sale of which by the applicable Originator gave rise to such Receivable;
(b) all other security interests or Liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, together with all financing statements signed or authorized by an Obligor describing any collateral securing such Receivable;
(c) all guarantees, indemnities, letters of credit, letter of credit rights, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable;
(d) all Records relating to, and all service contracts and any other contracts associated with, such Receivable; and
(e) all Proceeds of the foregoing.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Reporting Date” means (a) during the Revolving Period, with respect to each Fiscal Period, the 15th day following the last day of such Fiscal Period (or, if such day is not a Business Day, the next succeeding Business Day); provided that for the Fiscal Periods ending in July, August and September, 2013, the applicable Reporting Date shall be the 20th day following the last day of such Fiscal Period (or, if such day is not a Business Day, the next succeeding Business Day), and (b) after the Revolving Period, with respect to such periods as Administrative Agent, in its sole discretion, may select, the number of Business Day(s) after the last day of the applicable period as the Administrative Agent, in its sole discretion, may select.
“Required Reserve Percentage” means, at any time, the sum of:
(a) the greater at the time of such determination of (i) the sum of (A) the Loss Reserve Percentage plus (B) the Dilution Reserve Percentage, and (ii) the Floor Reserve Percentage; plus
(b) the Yield and Fee Reserve Percentage at the time of such determination.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
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“Responsible Officer” means, with respect to the Borrower, a Seller, an Originator or the Servicer, the chief financial officer, principal accounting officer, controller or treasurer of such Person and any other Person designated as a Responsible Officer by any such officers, identified on the list of Responsible Officers attached as Schedule IV (as such list may be amended or supplemented from time to time).
“Return” means any federal, state, foreign and other material return, statement, form or report for Taxes.
“Revolving Period” means the period commencing on the Closing Date and ending on the Facility Termination Date.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, together with any successor that is a nationally recognized statistical rating organization.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated or blocked Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person organized or resident in a Sanctioned Country if doing business with such Person would be in violation of any applicable Sanctions law required to be observed or (c) any Person owned or controlled by any such Person referred to in preceding clauses (a) or (b).
“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”) or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“Secured Parties” means, collectively, the Lenders, the Facility Agent, the Administrative Agent, any Indemnified Parties and any Affected Parties.
“Seller” has the meaning assigned in the Receivables Sale Agreement.
“Servicer” means Flowers.
“Servicer Default” has the meaning assigned in Section 7.11.
“Servicer Due Diligence Audit” has the meaning assigned to such term in Section 5.03(j).
“Servicing Fee” has the meaning assigned in Section 7.08(e).
“Servicing Fee Rate” means a per annum rate equal to 1.00%.
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“Settlement Date” means (a) during the Revolving Period, with respect to each Fiscal Period, the day which is two Business Days following the Reporting Date for such Fiscal Period and (b) after the Revolving Period, with respect to such periods as the Administrative Agent, in its sole discretion, may select, the number of Business Day(s) after the last day of the applicable period as the Administrative Agent, in its sole discretion, may select.
“SOFR” means a rate per annum equal to the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time).
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“Solvent” means, with respect to any Person at any time, that (a) the fair value of the property of such Person is greater than the total amount of liabilities (including without limitation contingent liabilities) of such Person, (b) the present fair saleable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in a business and is not about to engage in a business for which such Person’s property would constitute an unreasonably small capital.
“Special Obligor” means (a) each Obligor, if any, listed on Schedule I and (b) any Obligor designated in writing by the Administrative Agent with the consent of the Majority Facility Agents as a “Special Obligor”; provided that, in each case, such designation may be withdrawn at any time by the Administrative Agent or by the Majority Facility Agents, with notice to the Borrower.
“Special Obligor Concentration Limit” means, with respect to a Special Obligor, the percentage specified with respect to such Special Obligor in Schedule I or such other percentage as agreed by the Administrative Agent in writing, subject to any increases in the Floor Reserve Percentage as determined by the Administrative Agent in its sole discretion; provided that the Administrative Agent or the Majority Facility Agents may at any time reduce or cancel any such Special Concentration Limit by notice to the Borrower.
“Specialty” means Flowers Foods Specialty Group, LLC, a Georgia limited liability company.
“Stale Bread Return” means the return by an Obligor of bread deliveries which have not been sold by such Obligor by the suggested “Sale By” date.
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“Stale Bread Credit Adjustments” means any credit adjustments issued by an Originator to the related Obligor in connection with any Stale Bread Return.
“Stale Bread Factor” means, for any Fiscal Period, the greater of (a) four (4) or (b) such number of weeks which either (i) represents the Servicer’s reasonable estimate of the number of weeks of sales that are subject to Stale Bread Credit Adjustments as of the last day of such Fiscal Period or (ii) is determined from time to time by the Administrative Agent to represent such number of weeks based on a Due Diligence Audit or Servicer Due Diligence Audit.
“Subordinated Note” has the meaning ascribed to such term in the Receivables Sale Agreement.
“Subservicer” means any Originator in its capacity as a “Subservicer” appointed pursuant to this Agreement.
“Subsidiary” means, as to any Person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation has or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person and (b) any partnership, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% Equity Interest at the time.
“Support Advances” means, with respect to a Conduit Lender, any loans, drawings or other extensions of credit to or for the account of such Conduit Lender or its Funding Source, or any purchases from such Conduit Lender or its Funding Source (to the extent such purchases do not constitute assignments of Advances hereunder), under any Support Facility to finance such Conduit Lender’s making or maintaining its Advances hereunder.
“Support Facility” means any liquidity or credit support facility or instrument (including any loan agreement, asset purchase agreement, participation agreement, swap agreement, letter of credit or surety bond) to which a Conduit Lender or its Funding Source is a party or under which it has rights and under which such Conduit Lender or Funding Source may receive financing for such Conduit Lender’s making or maintaining its Advances hereunder.
“Support Provider” means, with respect to a Conduit Lender, any one or more Persons extending credit, or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Lender or its Funding Source or issuing a letter of credit, surety bond, swap agreement or other instrument to support any obligations arising under or in connection with the commercial paper, variable funding or medium term note program of such Conduit Lender or its Funding Source or any administrative agent under a security agreement to which such Conduit Lender is a party.
“Tax Benefit” has the meaning specified in Section 2.10(c).
“Taxes” means all taxes, assessments, charges, duties, fees, levies or other governmental charges, including, without limitation, all federal, state, local, foreign and other income, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property,
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excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes, assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall include any liability for such amounts as a result either of being a member of a combined, consolidated, unitary or affiliated group or of a contractual obligation to indemnify any person or other entity.
“Tenth Amendment Date” means September 27, 2022.
“Term SOFR” means, with respect to any Accrual Period, the Term SOFR Reference Rate for a tenor comparable to the applicable Accrual Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Accrual Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR” means, for the applicable corresponding tenor, Reference Rate” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Adjustment” means, 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration.
“Term SOFR Notice” means a notification by the Administrative Agent to the Facility Agents and the Borrower of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event Effective Date” means, with respect to a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Facility Agents and the Borrower pursuant to subsection (c) of Section 2.14.
“Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent in its sole discretion, and (c) either (1) the LIBO Rate is permanently unavailable or is no longer representative and a new Benchmark Replacement has been adopted in accordance with Section
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2.14(a) that is not Term SOFR or (2) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.14(b) that is not Term SOFR.
“Transaction Documents” means this Agreement, the Receivables Sale Agreement, the Originator Sale Agreements, the Performance Undertaking Agreement, the Fee Letter, the Lockbox Agreements, the Control Agreements, and all other agreements, instruments, documents and certificates identified on Exhibit H or otherwise required by Section 3.01 (in each case, excluding the legal opinions so identified or required) and such other agreements, documents and instruments entered into and delivered by any Company Party in connection with the transactions contemplated by this Agreement.
“UCC” means, with respect to any United States or foreign jurisdiction, the Uniform Commercial Code or any comparable law in effect in such jurisdiction.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unused Fee” has the meaning specified in Section 2.06(b).
“Unused Fee Rate” has the meaning specified in the Fee Letter.
“Upfront Fee” has the meaning specified in Section 2.06(a).
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
“Voting Block” has the meaning specified in Section 9.02(b).
“Wholly-Owned Subsidiary” means, means, as to any Person, (a) any corporation 100% of whose capital stock (other than director’s qualifying shares) is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership,
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association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% Equity Interest at such time.
“Withholding Taxes” has the meaning specified in Section 2.10(a).
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
“Yield and Fee Reserve Percentage” means, as of any date of determination, an amount equal to the following:
(ABR + AM + SFR) x DSO
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where:
ABR = the Alternate Base Rate in effect for the current Accrual Period;
AM = the Applicable Margin;
SFR = Servicing Fee Rate; and
DSO = the average of the Days Sales Outstanding for the three most recently ended Fiscal Periods.
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