Exhibit 10.3
Execution Version
MASTER FRAMEWORK AGREEMENT
This MASTER FRAMEWORK AGREEMENT (this “Framework Agreement”), is made and entered into as of April 14, 2023 (the “Effective Date”), by and among:
Each of Buyer, the Buyer Funding Parties, Originators and Seller may also be referred to herein individually as a “Party”, and collectively as the “Parties”.
RECITALS
WHEREAS, Buyer, on behalf of the Buyer Funding Parties, has agreed to provide Seller with a facility under which Buyer and Seller will enter into certain sale and repurchase agreements with respect to Receivables originated by certain Originators and previously transferred to Seller pursuant to the Receivables Distribution Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, agreements and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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(b) On the Effective Date, Seller shall pay to Buyer a fee (the “Upfront Fee”) in the amount set forth in the Fee Letter.
(c) The Upfront Fee and Unused Fees shall be fully earned on the date on which payment thereof is required to be made by Seller and, once paid, shall not be refundable under any circumstances.
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provided, that notwithstanding the foregoing, in no event shall the Seller Entities be liable hereunder to any Indemnified Party or any other Person for (A) any special, indirect, consequential or punitive damages, even if the Seller Entities has been advised of the likelihood of such loss or damage and regardless of the form of action or (B) claims to the extent arising from any Indemnified Party’s gross negligence or willful misconduct.
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For the avoidance of doubt, the obligations of Seller Entities under this Section 5.4(b) shall be absolute and unconditional, irrespective of any limitation imposed upon Seller Entities or any Affiliates thereof on distributions from any other account into which a payment on such a Receivable is made.
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Except as otherwise expressly set forth in a Transaction Agreement, the following will apply to all Transaction Agreements:
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If to Buyer or Rabobank:
Coöperatieve Rabobank U.A., New York Branch
245 Park Avenue
New York, New York 10167
Attention: Thomas McNamara
E-Mail: TMTeam@rabobank.com
With copy to:
Coöperatieve Rabobank U.A., New York Branch
245 Park Avenue
New York, New York 10167
Attention: SecMo
E-Mail: SecMo@rabobank.com
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If to Seller or any Originator:
Flowers Foods, Inc.
1919 Flowers Circle
Thomasville, GA 31757
Attention: Mr. R. Steve Kinsey
E-mail: steve.kinsey@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
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The Seller Entities each acknowledges and agrees that Buyer may share information on matters relating to the Seller Entities or the transactions contemplated by this Framework Agreement and the other Transaction Agreements with its affiliates and subsidiaries, and that such affiliates and subsidiaries may likewise share information relating to the Seller Entities or such transactions with Buyer. The Seller Entities each hereby authorize Buyer and its affiliates to disclose the existence and principal terms of this Framework Agreement and the other Transaction Agreements (other than the Fee Letter) (including the names and respective roles of the Seller Entities and Buyer in connection therewith) for the purpose of conducting and marketing their businesses.
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[SIGNATURE PAGES FOLLOW]
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Buyer: | ||
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Coöperatieve Rabobank U.A., New York Branch | ||
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By: |
| /s/ Jinyang Wang |
Name: |
| Jinyang Wang |
Title: |
| Executive Director |
By: |
| /s/ Erin M. Scott |
Name: |
| Erin M. Scott |
Title: |
| Executive Director |
Seller: | ||
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Flowers Foods, Inc. | ||
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By: |
| /s/ R. Steve Kinsey |
Name: |
| R. Steve Kinsey |
Title: |
| Chief Financial Officer and Chief Accounting Officer |
Originators:
Mesa Organic Baking Co., Inc. |
| Tuscaloosa Organic Baking Co., LLC |
C&G Holdings Inc. |
| Flowers Baking Co. of Villa Rica, LLC |
Dave’s Killer Bread, Inc. |
| Flowers Foods Specialty Group, LLC |
Derst Baking Company, LLC |
| Flowers Specialty Snack Sales, Inc. |
Flowers Baking Co. of Bardstown, LLC |
| Franklin Baking Company, LLC |
Flowers Baking Co. of Batesville, LLC |
| Holsum Bakery, Inc. |
Flowers Baking Co. of Baton Rouge, LLC |
| Lepage Bakeries Park Street, LLC |
Flowers Baking Co. of Birmingham, LLC |
| Lepage Bakeries Brattleboro, LLC |
Flowers Baking Co. of Bradenton, LLC |
| Flowers Baking Co. of Lakeland, Inc. |
Flowers Baking Co. of California, LLC |
| Tasty Baking Company |
Flowers Baking Co. of Denton, LLC |
| Flowers Bakeries Sales of Alabama, LLC |
Flowers Baking Co. of Denver, LLC |
| Flowers Bakeries Sales of Desert Southwest, LLC |
Flowers Baking Co. of El Paso, LLC |
| Flowers Bakeries Sales of Florida, LLC |
Flowers Baking Co. of Florida, LLC |
| Flowers Bakeries Sales of Georgia, LLC |
Flowers Baking Co. of Henderson, LLC |
| Flowers Bakeries Sales of Louisiana, LLC |
Flowers Baking Co. of Houston, LLC |
| Flowers Bakeries Sales of Mid Atlantic, LLC |
Flowers Baking Co. of Jacksonville, LLC |
| Flowers Bakeries Sales of Midwest, LLC |
Flowers Baking Co. of Jamestown, LLC |
| Flowers Bakeries Sales of NE Metro North, LLC |
Flowers Baking Co. of Lafayette, LLC |
| Flowers Bakeries Sales of NE Metro South, LLC |
Flowers Baking Co. of Lenexa, LLC |
| Flowers Bakeries Sales of New England, LLC |
Lynchburg Organic Baking Co., LLC |
| Flowers Bakeries Sales of NorCal, LLC |
Flowers Baking Co. of Miami, LLC |
| Flowers Bakeries Sales of North Texas, LLC |
Flowers Baking Co. of Modesto, LLC |
| Flowers Bakeries Sales of SoCal, LLC |
Flowers Baking Co. of Morristown, LLC |
| Flowers Bakeries Sales of South Texas, LLC |
Flowers Baking Co. of New Orleans, LLC |
| Flowers Bakeries Sales of Tennessee, LLC |
Flowers Baking Co. of Norfolk, LLC |
| Tasty Baking Sales, LLC |
Flowers Baking Co. of Ohio, LLC |
| Flowers Bakeries Sales, LLC |
Flowers Baking Co. of Oxford, Inc. |
| Holsum Holdings, LLC |
Flowers Baking Co. of Portland, LLC |
| DKB Organic Bakeries, LLC |
Flowers Baking Co. of San Antonio, LLC |
| Flowers Baking Co. of Tyler, LLC |
Flowers Baking Co. of Texas, LLC |
| Flowers Bakeries Sales of Utah, LLC |
Flowers Baking Co. of Thomasville, LLC |
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By: |
/s/ J.T. Rieck |
Name: J.T. Rieck |
Title: Secretary and Treasurer |
Flowers Bakeries, LLC |
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By: |
/s/ J.T. Rieck |
Name: J.T. Rieck |
Title: Treasurer |
ANNEX I
ORIGINATORS
Mesa Organic Baking Co., Inc. | Tuscaloosa Organic Baking Co., LLC |
C&G Holdings Inc. | Flowers Baking Co. of Villa Rica, LLC |
Dave’s Killer Bread, Inc. | Flowers Foods Specialty Group, LLC |
Derst Baking Company, LLC | Flowers Specialty Snack Sales, Inc. |
Flowers Baking Co. of Bardstown, LLC | Franklin Baking Company, LLC |
Flowers Baking Co. of Batesville, LLC | Holsum Bakery, Inc. |
Flowers Baking Co. of Baton Rouge, LLC | Lepage Bakeries Park Street, LLC |
Flowers Baking Co. of Birmingham, LLC | Lepage Bakeries Brattleboro, LLC |
Flowers Baking Co. of Bradenton, LLC | Flowers Baking Co. of Lakeland, Inc. |
Flowers Baking Co. of California, LLC | Tasty Baking Company |
Flowers Baking Co. of Denton, LLC | Flowers Bakeries Sales of Alabama, LLC |
Flowers Baking Co. of Denver, LLC | Flowers Bakeries Sales of Desert Southwest, LLC |
Flowers Baking Co. of El Paso, LLC | Flowers Bakeries Sales of Florida, LLC |
Flowers Baking Co. of Florida, LLC | Flowers Bakeries Sales of Georgia, LLC |
Flowers Baking Co. of Henderson, LLC | Flowers Bakeries Sales of Louisiana, LLC |
Flowers Baking Co. of Houston, LLC | Flowers Bakeries Sales of Mid Atlantic, LLC |
Flowers Baking Co. of Jacksonville, LLC | Flowers Bakeries Sales of Midwest, LLC |
Flowers Baking Co. of Jamestown, LLC | Flowers Bakeries Sales of NE Metro North, LLC |
Flowers Baking Co. of Lafayette, LLC | Flowers Bakeries Sales of NE Metro South, LLC |
Flowers Baking Co. of Lenexa, LLC | Flowers Bakeries Sales of New England, LLC |
Lynchburg Organic Baking Co., LLC | Flowers Bakeries Sales of NorCal, LLC |
Flowers Baking Co. of Miami, LLC | Flowers Bakeries Sales of North Texas, LLC |
Flowers Baking Co. of Modesto, LLC | Flowers Bakeries Sales of SoCal, LLC |
Flowers Baking Co. of Morristown, LLC | Flowers Bakeries Sales of South Texas, LLC |
Flowers Baking Co. of New Orleans, LLC | Flowers Bakeries Sales of Tennessee, LLC |
Flowers Baking Co. of Norfolk, LLC | Tasty Baking Sales, LLC |
Flowers Baking Co. of Ohio, LLC | Flowers Bakeries Sales, LLC |
Flowers Baking Co. of Oxford, Inc. | Holsum Holdings, LLC |
Flowers Baking Co. of Portland, LLC | DKB Organic Bakeries, LLC |
Flowers Baking Co. of San Antonio, LLC | Flowers Baking Co. of Tyler, LLC |
Flowers Baking Co. of Texas, LLC | Flowers Bakeries, LLC |
Flowers Baking Co. of Thomasville, LLC | Flowers Bakeries Sales of Utah, LLC |
Annex I to Master Framework Agreement
SCHEDULE 1
DEFINITIONS
As used in the Transaction Agreements, the following terms have the following meanings unless otherwise defined in any Transaction Agreement:
“Accrual Period” has the meaning specified in Section 4.7.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“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.
“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 Buyer 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 Buyer 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.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Seller Entity 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(t).
Schedule 1 to Master Framework Agreement – page 1
“Attributable Debt” means as of the date of determination thereof, without duplication, (i) in connection with a Sale and Leaseback Transaction, the net present value (discounted according to GAAP at the cost of debt implied in the lease) of the obligations of the lessee for rental payments during the then remaining term of any applicable lease, and (ii) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebted ness for tax purposes but is classified as an operating lease in accordance with GAAP.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of a Transaction Period pursuant to this Framework Agreement or any other Transaction Agreement or (y) otherwise, any payment period for Price Differential calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of Price Differential 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 4.8(d).
“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.
“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any successor statute.
“Benchmark” means the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with 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 pursuant to Section 4.8(a).
“Benchmark Replacement” means with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Buyer and Seller 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 for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated repurchase facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Agreements.
Schedule 1 to Master Framework Agreement – page 2
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, 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 Buyer and Seller 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, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated repurchase 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:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (A) the date of the public statement or publication of information referenced therein and (B) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
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);
Schedule 1 to Master Framework Agreement – page 3
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency 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 (or such component), which states that the administrator of such Benchmark (or such component) 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); 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 Agreement in accordance with Section 4.8 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Agreement in accordance with Section 4.8.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Schedule 1 to Master Framework Agreement – page 4
“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 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.
“Buyer” has the meaning set forth in the Preamble.
“Buyer Balance” means, as of any time of determination, the excess, if any, of (x) the aggregate Funded Purchase Price funded by Buyer and applied to the Purchase Price under the Master Receivables Financing Agreement over (y) the aggregate Funded Repurchase Price received by Buyer (excluding any such amounts of Funded Repurchase Price attributable to payments of Price Differential) in connection with the outstanding Transaction (if any) and all prior Transactions as of such time of determination, subject to transfer or adjustment in accordance with the terms hereof.
“Buyer Funding Limit” means, (a) with respect to Rabobank on the Effective Date, $200,000,000 and (b) with respect to any Person who becomes a Buyer Funding Party by assignment from an existing Buyer Funding Party, the amount set forth in the related assignment documentation, in either case as such amount may be increased or reduced from time to time pursuant to assignments permitted hereunder.
“Buyer Funding Party” has the meaning set forth in the Preamble.
“Change of Control” means (a) any Originator shall cease to be a Wholly-Owned Subsidiary of Flowers or (b) (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), 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 Flower’s capital stock or other Equity Interests or (B) have obtained the power (whether or not exercised) to elect a majority of Flower’s directors or (ii) the Board of Directors of Flowers shall cease to consist of a majority of Continuing Directors.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning set forth in Section 4.6(a).
“Collection Account” means any of the accounts specified on Schedule 5 hereto (as such Schedule 5 may be updated from time to time with the written consent of Seller and Buyer) and includes any associated Lockbox; provided, Schedule 5 shall be deemed automatically updated without the written consent of Seller or Buyer upon the establishment of each deposit account for each of the New Sales Originators.
Schedule 1 to Master Framework Agreement – page 5
“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 any Seller Entity or in a Collection Account in payment of, or applied to, any amount owed by an Obligor on account of such 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 any Seller Entity as a Collection pursuant to Section 2.03 of the Receivables Distribution Agreement, and (iv) the proceeds of a repurchase paid by an Originator pursuant to Section 2.04 of the Receivables Distribution Agreement.
“Confidential Information” has the meaning set forth in Section 7.20.
“Confirmation” has the meaning set forth in the Master Receivables Financing Agreement.
“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 “Transaction Period” or any similar or 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, and other technical, administrative or operational matters) that Buyer decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Buyer in a manner substantially consistent with market practice (or, if Buyer decides that adoption of any portion of such market practice is not administratively feasible or if Buyer determines) that no market practice for the administration of any such rate exists, in such other manner of administration as Buyer decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Agreements.
Schedule 1 to Master Framework Agreement – page 6
“Contingent Obligation” means, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include (x) endorsements of instruments for deposit or collection or product warranties extended, in each case, in the ordinary course of business and (y) the guarantee by Flowers of any operating lease of any Subsidiary of Flowers. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Continuing Directors” means the directors of Flowers on the Effective 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.
“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 each Existing Control Agreement (as may be terminated or replaced in accordance with Section 5.4(a)(iv)) and any other agreement in form and substance reasonably satisfactory to Buyer with respect to one or more Collection Accounts.
“Credit and Collection Policy” means each of the credit, collection, enforcement and other policies and practices of the Seller Parties relating to Receivables existing on the date hereof, copies of which have previously been delivered to Buyer and each Buyer Funding Party.
Schedule 1 to Master Framework Agreement – page 7
“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 written off as uncollectible or (c) as to which any payment, or part thereof, becomes unpaid for more than eight (8) weeks past its original invoice date (determined without regard to any modification thereof).
“Diligence Audit” has the meaning specified in Section 5.3.
“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.
“Disqualified Preferred Stock” means any Equity Interest that by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interest that would constitute Disqualified Preferred Stock, in each case, on or prior to the 91st day following the Maturity Date; provided that (i) any Equity Interests that would constitute Disqualified Preferred Stock solely because the holders thereof have the right to require Flowers to repurchase such Disqualified Preferred Stock upon the occurrence of a change of control or asset sale shall not constitute Disqualified Preferred Stock if the terms of such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) provide that Flowers may not repurchase or redeem any such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) pursuant to such provision unless the obligations (other than contingent indemnification claims) of Flowers and its Subsidiaries under the Flowers Credit Agreement are fully satisfied prior thereto or simultaneously therewith and (ii) only the portion of the Equity Interests meeting one of the foregoing clauses (a) through (d) prior to the date that is ninety-one (91) days after the Maturity Date will be deemed to be Disqualified Preferred Stock. Notwithstanding the preceding sentence, (A) if such Equity Interest is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of Flowers or any Subsidiary, such Equity Interest shall not constitute Disqualified Preferred Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Equity Interest held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of Flowers (or any Subsidiary) shall be considered Disqualified Preferred Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Distributor Receivable” mean a Receivable the Obligor of which is a wholesale distributor of an Originator’s goods.
Schedule 1 to Master Framework Agreement – page 8
“Domestic Subsidiary” means each Subsidiary of Flowers that is incorporated under the laws of the United States, any State or territory thereof or the District of Columbia.
“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.
“Effective Date” has the meaning set forth in the Preamble.
“Eligibility Criteria” means the criteria set forth in Schedule 3.
“Eligible Receivable” means, for purposes of any Transaction, a Receivable that meets all of the Eligibility Criteria in connection with such Transaction.
“Equity Interest” of any Person means any and all shares, interests, non-contingent 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 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” means each person (as defined in Section 3(9) of ERISA) which together with any Seller Entity or any Subsidiary of a Seller Entity would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“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” means any of the following:
(a) Seller shall have failed to pay any Repurchase Price in respect of any Transaction (other than the portion thereof attributable to Price Differential) when and as the same shall become due and payable and such failure shall continue unremedied for a period of one or more Business Days;
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(b) Seller shall have failed to pay any portion of Repurchase Price attributable to Price Differential or any other amounts owing under any Transaction Agreement (other than amounts specified in clause (a) of this definition), in each case, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of two (2) or more Business Days;
(c) Any Seller Entity shall fail to observe or perform any covenant or agreement set forth in Sections 5.3(a), 5.3(m), 5.3(o), 5.3(s), or 5.3(u) of this Framework Agreement.
(d) Any Seller Entity shall fail to observe or perform any covenant, condition or agreement contained in this Framework Agreement or any other Transaction Agreement (excluding any covenants, conditions or agreements specified in clauses (a), (b) or (c) of this definition) and such failure shall continue unremedied for a period of thirty (30) or more days following the earlier of knowledge of by a Responsible Officer or notice to Seller of such failure;
(e) any representation or warranty made or deemed made by or on behalf of any Seller Entity in or in connection with this Framework Agreement or any other Transaction Agreement shall prove to have been incorrect in any material respect when made or deemed made, and such failure to be correct shall continue unremedied for a period of thirty (30) or more days, unless such representation or warranty relates solely to one or more specific Receivables and any Seller Entity makes a deemed collection payment with respect to such Pool Receivable when and to the extent required by the Transaction Agreements;
(f) Buyer shall cease to have a perfected Security Interest in all or any portion of the Collateral granted by Seller Entities pursuant to the Transaction Agreements and such cessation shall have a Material Adverse Effect, except to the extent released in accordance with, or in connection with a disposition permitted under, the Transaction Agreements;
(g) an Insolvency Event shall occur with respect to any Seller Entity;
(h) (i)Flowers or any of its Subsidiaries shall default in any payment of any Indebtedness (other than the Repurchase Prices) beyond the period of grace or cure, if any, provided in the instrument or agreement under which such Indebtedness was created; or (ii) Flowers or any of its Subsidiaries shall default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Repurchase Prices and a default specified under clause (m)) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (after giving effect to any grace or cure period, but determined without regard to whether any notice is required), any such Indebtedness to become due or, in the case of a Permitted Securitization (as defined in the Flowers Credit Agreement), terminating (except voluntary terminations by Flowers or any of its Subsidiaries), prior to its stated maturity;
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or (iii) any Indebtedness (other than the Repurchase Prices) of Flowers or any of its Subsidiaries shall be declared to be due and payable, or required to be prepaid (other than (x) by a regularly scheduled required prepayment or (y) as a mandatory prepayment (unless such required prepayment or mandatory prepayment results from a default thereunder or an event of the type that constitutes an Event of Default)) or, in the case of a Permitted Securitization, shall be terminated (except voluntary terminations by Flowers or any of its Subsidiaries), prior to the stated maturity thereof, provided that it shall not be an Event of Default under this clause (h) unless the aggregate principal amount of all Indebtedness as described in preceding clauses (i) through (iii), inclusive, is at least $75,000,000 or if any such default shall have been waived in writing by the holder or holders of such Indebtedness;
(i) one or more judgments or decrees shall be entered against Flowers or any other Seller Entity involving in the aggregate for Flowers and the other Seller Entities a liability (not paid or fully covered by a reputable and solvent insurance company) and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed or bonded pending appeal for any period of 60 consecutive days, and the aggregate amount of all such judgments exceeds $75,000,000;
(j) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect or in the imposition of a Lien on any assets of any Seller Entity or ERISA Affiliate under Sections 436(f) or 430(k) of the Code or under Section 4068 of ERISA;
(k) the Master Receivables Financing Agreement or, after the Post-Closing Effective Date, the Control Agreements shall cease to be in full force and effect (except to the extent such agreement is terminated in accordance with its terms), or the validity or enforceability of any thereof shall be disputed by any Seller Entity;
(l) the occurrence of a Change of Control;
(m) the Flowers Credit Agreement Financial Covenant shall at any time be breached; provided, if, after the Effective Date, the Flowers Credit Agreement Financial Covenant (or any of the defined terms used in connection with such covenant) is amended, amended and restated, modified or waived, then the test set forth in this clause (m) or the defined terms used therein, as applicable, shall, for all purposes of this Framework Agreement, automatically and without further action on the part of any Person, be deemed to be also so amended, modified or waived, if at the time of the effectiveness of such amendment, amendment and restatement, modification or waiver, (i) Rabobank (or an Affiliate thereof) is a party to the Flowers Credit Agreement and (ii) Rabobank (or an Affiliate thereof) consented in writing to such amendment, amendment and restatement, modification or waiver under the Flowers Credit Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Originator” has the meaning specified in Section 7.19.
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“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 7.19.
“Executive Order” has the meaning specified in Section 5.1.
“Existing Control Agreement” means (a) that certain Restricted Non-Blocked Account Agreement, dated as of July 16, 2013; among Derst Baking Company, LLC, SunTrust Bank (the “SunTrust Depositary Bank”) and Rabobank; (b) that certain Deposit Account Control Agreement, dated as of July 17, 2013, among Flowers Foods Specialty Group, LLC, SunTrust Depositary Bank and Rabobank and (c) that certain Restricted Non-Blocked Account Agreement, dated as of July 16, 2013, among Flowers Bakeries LLC, Flowers Baking Co of New Orleans, LLC, Flowers Baking Co of Thomasville, LLC, Flowers Baking Co of Batesville, LLC, Flowers Baking Co of Denton, LLC, Flowers Baking Co of El Paso, LLC, Flowers Baking Co of Houston, LLC, Flowers Baking Co of San Antonio, LLC, Flowers Baking Co of Tyler, LLC, Flowers Baking Co of Villa Rica, LLC, Holsum Bakery Inc., Bank of America, N.A. and Rabobank as amended by Amendment No. 1 dated October 9, 2018.
“Face Amount” means, with respect to any Receivable at any given time, the gross amount (if any) outstanding in respect of such Receivable at such time.
“Facility Expiration Date” means the Scheduled Facility Expiration Date; provided, that (i) the Facility Expiration Date shall be deemed to have occurred on the first date (if any) upon which an Insolvency Event shall occur with respect to any Seller Entity, (ii) on any Business Day during which an Event of Default has occurred and is continuing, Buyer may deliver a written notice to Seller terminating the Facility Term, in which case the Facility Expiration Date shall be deemed to occur on the date of such delivery and (iii) on any Business Day during the Facility Term, Seller may deliver a written notice to the Buyer terminating the Facility Term effective as of the first Settlement Date to occur that is at least three (3) Business Days following the date of such delivery.
“Facility Term” means the period beginning on the Effective Date and ending on the Facility Expiration Date.
“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 Buyer from three federal funds brokers of recognized standing selected by it.
“Fee Letter” means the fee letter agreement dated as of the date hereof between the Seller and the Buyer.
Schedule 1 to Master Framework Agreement – page 12
“Fiscal Period” means, for each calendar year, the relevant four week period specified on Schedule 6, as such Schedule may be amended from time to time by the Seller, with the consent of the Buyer, which consent shall not be unreasonably withheld, to reflect comparable fiscal periods of the Seller Entities.
“Floor” means 0.00%.
“Flowers Credit Agreement” means the Credit Agreement, dated as of October 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, Seventh Amendment to Amended and Restated Credit Agreement, dated as of July 30, 2021 and as amended by Eighth Amendment to Amended and Restated Credit Agreement, dated as of April 12, 2023, among Flowers, the Lenders party thereto 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.
“Flowers Credit Agreement Financial Covenant” means the financial covenants set forth in Sections 10.07 and 10.08 of the Flowers Credit Agreement as in effect on the Effective Date and without giving effect to any amendment, restatement, supplement, modification, waiver or termination thereof (unless otherwise agreed to in writing by the Required Buyer Funding Parties in their sole discretion), i.e., the covenants that the “Consolidated Interest Coverage Ratio” on the last day of any fiscal quarter of Flowers may not be less than 4.50 to 1.00 and that the “Leverage Ratio” on the last day of any fiscal quarter of Flowers may not be greater than 3.75 to 1.00 (or, in certain circumstances set forth in the Flowers Credit Agreement, greater than 4.00 to 1.00).
“Foreign Official” has the meaning set forth in Section 5.1(p).
“Foreign Subsidiary” means, as to any Person, each Subsidiary of such Person which is not a Domestic Subsidiary.
“Framework Agreement” has the meaning set forth in the Preamble.
“Funded Purchase Price” means, with respect to any Transaction entered into (or proposed to be entered into) on any Purchase Date, the excess of (a) the Purchase Price for such Transaction over (b) the amount of Repurchase Price under any Transaction whose Repurchase Date coincides with such Purchase Date which is netted against such Purchase Price in accordance with Paragraph 12 of the Master Receivables Financing Agreement (any such netting being subject to Paragraph 12 of Annex I to the Master Receivables Financing Agreement).
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“Funded Repurchase Price” means, with respect to any Transaction expiring on any Repurchase Date, the excess of (a) the Repurchase Price for such Transaction over (b) the amount of any Purchase Price under any other Transaction whose Purchase Date coincides with such Repurchase Date which is netted against such Repurchase Price in accordance with Paragraph 12 of the Master Receivables Financing Agreement (any such netting being subject to Paragraph 12 of Annex I to the Master Receivables Financing Agreement).
“Funding Conditions” has the meaning set forth in Section 4.3(a).
“Funding Limit” means $200,000,000.
“Funding Percentage” means, with respect to any Buyer Funding Party, its Buyer Funding Limit as a percentage of the Funding Limit.
“GAAP” means generally accepted accounting principles as applied in the United States as in effect from time to time.
“Governmental Authority” means the 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.
“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.
“Indebtedness” means, with respect to any Person, without duplication, (i) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services, (ii) the maximum amount available to be drawn under all letters of credit issued for the account of such Person and all unpaid drawings in respect of such letters of credit, (iii) all Indebtedness of the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person; provided that, if such Person has not assumed such obligations, then the amount of Indebtedness of such Person for purposes of this clause (iii) shall be equal to the lesser of the aggregate unpaid amount of such Indebtedness and the fair market value of the assets of such Person which secure such Indebtedness, (iv) the
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aggregate amount required to be capitalized under leases under which such Person is the lessee, (v) all obligations of such person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent Obligations of such Person in respect of Indebtedness of another Person, (vii) all obligations under any Interest Rate Protection Agreement, Other Hedging Agreement or under any similar type of agreement, (viii) all Attributable Debt of such Person, (ix) the amount of any Permitted Repurchase Facilities and Permitted Securitizations of such Person, and (x) the greater of the aggregate liquidation value or the maximum fixed repurchase price of all Disqualified Preferred Stock, provided that, notwithstanding the foregoing, (x) Indebtedness outstanding (a) pursuant to trade payables and accrued expenses incurred in the ordinary course of business and earn outs and other similar contingent payments, and (b) under leases shall continue to be classified and accounted for on a basis consistent with that reflected in the audited financial statements of Flowers delivered pursuant to Section 5.1(j) for all purposes notwithstanding any change in GAAP relating thereto and (y) liabilities presented on the balance sheet of Flowers or any Subsidiary shall not constitute Indebtedness to the extent attributable to, or arising because of, a VIE Transaction not prohibited hereunder.
“Indemnified Parties” means the Buyer, the Buyer Funding Parties and their respective Affiliates and successors and assigns and their respective officers, directors, managers, managing members, partners, employees, agents, advisors and representatives.
“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.
“Interest Rate Protection Agreement” means any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement, interest rate floor agreement or other similar agreement or arrangement.
“Joinder Agreement” means a joinder agreement in the form of Exhibit B hereto.
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“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.
“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).
“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 Buyer.
“Lockbox Bank” means one or more banks as to which the Buyer and the Seller may agree upon from time to time.
“Market Value” means, with respect to any Eligible Receivable as of any date of determination, the product of (x) the Face Amount of such Eligible Receivable as of such date of determination multiplied by (y) ninety percent (90%).
“Master Receivables Financing Agreement” means that certain 1996 SIFMA Master Repurchase Agreement dated as of the Effective Date, between Seller and Buyer, including Annex I thereto (and as amended thereby).
“Material Adverse Effect” means (a) a material adverse effect on (i) the business, assets, operations or financial condition of the Seller Entities considered as a consolidated group, (ii) the ability of any Seller Entity to perform its obligations under this Framework Agreement or any other Transaction Agreement to which it is a party, (iii) the validity, enforceability or collectability of this Framework Agreement or any other Transaction Agreement 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 Buyer under this Agreement or any other Transaction Agreement or (v) the status, existence, perfection, priority or enforceability of the Buyer’s interest in the Collateral, or (b) any event or condition which constitutes an Event of Default or results in the imposition of any Lien (other than the Lien in favor of the Buyer pursuant hereto or Permitted Liens) on 1.00% or more of the aggregate Face Amount of the Eligible Receivables.
“Maturity Date” means the “Maturity Date” set forth in the Flowers Credit Agreement.
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“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of) any Seller Entity or any Subsidiary of a Seller Entity or an ERISA Affiliate and each such plan for the five year period immediately following the latest date on which any Seller Entity, any Subsidiary of a Seller Entity or any ERISA Affiliates maintained, contributed to or had an obligation to contribute to such plan.
“New Sales Originators” means Flowers Bakeries Sales of Alabama, LLC, an Alabama limited liability company, Flowers Bakeries Sales of Desert Southwest, LLC, an Arizona limited liability company, Flowers Bakeries Sales of Florida, LLC, a Florida limited liability company, Flowers Bakeries Sales of Georgia, LLC, a Georgia limited liability company, Flowers Bakeries Sales of Louisiana, LLC, a Louisiana limited liability company, Flowers Bakeries Sales of Mid Atlantic, LLC, a North Carolina limited liability company, Flowers Bakeries Sales of Midwest, LLC, an Ohio limited liability company, Flowers Bakeries Sales of NE Metro North, LLC, a New Jersey limited liability company, Flowers Bakeries Sales of NE Metro South, LLC, a Pennsylvania limited liability company, Flowers Bakeries Sales of New England, LLC, a Maine limited liability company, Flowers Bakeries Sales of NorCal, LLC, a California limited liability company, Flowers Bakeries Sales of North Texas, LLC, a Texas limited liability company, Flowers Bakeries Sales of SoCal, LLC, a Nevada limited liability company, Flowers Bakeries Sales of South Texas, LLC, a Texas limited liability company, Flowers Bakeries Sales of Tennessee, LLC, a Tennessee limited liability company, Flowers Bakeries Sales of Utah, LLC, a Utah limited liability company and Tasty Baking Sales, LLC, a Pennsylvania limited liability company.
“Obligor” means with respect to any Receivable, the Person or Persons obligated to make payments with respect to such Receivable.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Organizational Documents” means a Party’s articles or certificate of incorporation or formation and its by-laws, operating agreement or similar governing instruments required by the laws of its jurisdiction of formation or organization.
“Originator” has the meaning set forth in the Preamble.
“Other Hedging Agreements” means any foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency or commodity values.
“Party” and “Parties” have the meaning set forth in the Preamble.
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Permitted Holders” means the descendants of William H. Flowers, Sr. and members of their immediate families.
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“Permitted Liens” means (a) any Security Interest in the Collateral granted by a Seller in favor of Buyer under any Transaction Agreement, (b) any inchoate liens for current Taxes not yet due and payable or for which the validity or amount thereof is being contested in good faith by appropriate proceedings and as to which adequate reserves are set aside in accordance with GAAP, but only so long as foreclosure with respect to such lien is not imminent and the use and value of the property to which the liens attach are not impaired during the pendency of such proceedings and (c) bankers’ liens, rights of setoff and other similar liens existing solely with respect to cash or instruments on deposit in a Collection Account.
“Permitted Repurchase Facility” has the meaning set forth in the Flowers Credit Agreement.
“Permitted Securitization” has the meaning set forth in the Flowers Credit Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association, or other entity.
“Plan” means any single-employer plan, as defined in Section 4001 of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute of), any Seller Entity or any Subsidiary of a Seller Entity or an ERISA Affiliate and each such plan for the five year period immediately following the latest date on which any Seller Entity, any Subsidiary of a Seller Entity or an ERISA Affiliate maintained, contributed or had an obligation to contribute to such plan.
“Portfolio Report” means a report updated and delivered on the date that is two (2) Business Days prior to any proposed Purchase Date for such proposed Transaction with respect to the Receivables in substantially the form attached hereto as Schedule 4.
“Post-Closing Effective Date” means the date occurring one-hundred and twenty (120) days following the Effective Date (or such later date, if any, consented to in writing by the Required Buyer Funding Parties in their sole discretion).
“Potential Event of Default” means the occurrence of any event that, with the giving of notice or lapse of time, would become an Event of Default.
“Price Differential” has the meaning set forth in the Master Receivables Financing Agreement.
“Pricing Rate” has the meaning set forth in the Master Receivables Financing Agreement.
“Pricing Schedule” has the meaning set forth in the Master Receivables Financing Agreement.
“Purchase Date” has the meaning set forth in the Master Receivables Financing Agreement.
“Purchase Price” has the meaning set forth in the Master Receivables Financing Agreement.
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“Purchased Securities” has the meaning set forth in the Master Receivables Financing Agreement.
“Rabobank” has the meaning set forth in the Preamble.
“Receivable” means, collectively, all indebtedness owed to the applicable Originator by any Obligor (without giving effect to any purchase or distribution under the Receivables Distribution Agreement or any other Transaction Agreement), 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 Distribution Agreement” means the Receivables Sale and Distribution Agreement dated as of the date hereof among the Seller and the Originators from time to time party thereto.
“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 Contract Rights” means, in relation to any Receivable, any rights of Originator under or relating to the Contract to the extent necessary to enforce collection of the Receivable.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, sub-agents, trustees and advisors of such Person and of such Person’s Affiliates.
“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.
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“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.
“Repurchase Date” has the meaning set forth in the Master Receivables Financing Agreement.
“Repurchase Price” has the meaning set forth in the Master Receivables Financing Agreement.
“Required Buyer Funding Parties” means Buyer Funding Parties holding Funding Percentages aggregating more than 50%.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, as to any Person, the Chairman, Chief Executive Officer, President, Chief Financial Officer, Treasurer, Controller or an Executive or Senior Vice President of such Person.
“Return” means any federal, state, foreign and other material return, statement, form or report for Taxes required to be filed with any Governmental Authority.
“Sale and Leaseback Transaction” means any arrangement, directly or indirectly, whereby a Seller Entity or transferor shall sell or otherwise transfer any real or personal property and then or thereafter lease, or repurchase under an extended purchase contract, conditional sales or other title retention agreement, the same or similar property.
“Sanctioned Country” means, 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 His 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 OFAC or the U.S. Department of State or (b) the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom.
“Scheduled Facility Expiration Date” means April 14, 2025.
Schedule 1 to Master Framework Agreement – page 20
“Secured Obligations” means (a) all of the payment obligations of the Originators and the Seller to Buyer, Buyer Funding Parties and any Indemnified Party under the Transaction Agreements, including obligations to pay any Repurchase Price, Price Differential, fees, expense reimbursement obligations and indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and (b) all other obligations of Originators and Seller required to be performed under or pursuant to the Transaction Agreements.
“Security Interest” means any pledge, charge, lien, assignment by way of security, retention of title and any other encumbrance or security interest whatsoever created or arising under any relevant Law, as well as any other agreement or arrangement having the effect of or performing the economic function of the same.
“Seller” has the meaning set forth in the Preamble.
“Seller Entity” means each of the Originators and the Seller.
“Settlement Date” means, with respect to each Fiscal Period, the 17th day following the last day of such Fiscal Period (or, if such day is not a Business Day, the next succeeding Business Day)
“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.
“Specified Event of Default” means the any of the following:
(a) an Event of Default of the kind specified in clause (a) or (b) of the definition thereof shall have occurred and be continuing; or
(b) an Insolvency Event shall occur with respect to any Seller Entity.
Schedule 1 to Master Framework Agreement – page 21
“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.
“Taxes” means all taxes, assessments, charges, duties, fees, levies or other governmental charges imposed by any Governmental Authority, including, without limitation, all federal, state, local, foreign and other income, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property, 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.
“Term SOFR” means, with respect to any Transaction Period, the Term SOFR Reference Rate for a tenor comparable to the applicable Transaction 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 Transaction 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 Buyer in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Transaction” has the meaning set forth in the Master Receivables Financing Agreement.
“Transaction Agreements” has the meaning set forth in Section 2.1.
“Transaction Notice” has the meaning set forth in Section 4.1.
“UCC” means, with respect to any United States or foreign jurisdiction, the Uniform Commercial Code or any comparable law in effect in such jurisdiction.
Schedule 1 to Master Framework Agreement – page 22
“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 3.2.
“Unused Fee Rate” has the meaning specified in the Fee Letter.
“Upfront Fee” has the meaning specified in Section 4.7.
“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.
“VIE Transaction” means a transaction between Flowers or any Subsidiary and a Person where such Person is, because of the nature of such transaction and the relationship of the parties, a variable interest entity under FIN 46(r).
“Wholly-Owned Subsidiary” means, means, as to any Person, (a) any corporation 100% of whose capital stock (other than director’s qualifying shares and shares of a Foreign Subsidiary required to be held by a citizen or resident of the jurisdiction of organization thereof) is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, 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.
“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.
Schedule 1 to Master Framework Agreement – page 23
SCHEDULE 2
BANK ACCOUNTS
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Schedule 2 to Master Framework Agreement
SCHEDULE 3
ELIGIBILITY CRITERIA
In order for a Receivable to meet the Eligibility Criteria in connection with any Transaction, it must satisfy all of the following:
Schedule 3 to Master Framework Agreement
Schedule 3 to Master Framework Agreement
SCHEDULE 4
FORM OF PORTFOLIO REPORT
(Attached.)
Schedule 4 to Master Framework Agreement
SCHEDULE 5
COLLECTION ACCOUNTS
Schedule 5 to Master Framework Agreement
SCHEDULE 6
FISCAL PERIODS
(See attached.)
Schedule 6 to Master Framework Agreement
Exhibit A
Form of Transaction Notice
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Buyer
[Names of any other Buyer Funding Parties]
RE: Transaction under the Framework Agreement and the Master Receivables Financing Agreement
Ladies and Gentlemen:
This Transaction Notice is delivered to you pursuant to Section 4.1(a) of the Master Framework Agreement, dated as of April 14, 2023 (the “Framework Agreement”), by and among Flowers Foods, Inc., a Delaware corporation (“Seller”), the subsidiaries of Flowers party thereto as Originators, the “Buyer Funding Parties” party thereto and Coöperatieve Rabobank U.A., as buyer (“Buyer”), relating to receivables financing transactions to be entered into pursuant to the terms of the 1996 SIFMA Master Repurchase Agreement, dated as of April 14, 2023, including Annex I thereto (the “Master Receivables Financing Agreement”) by and among Seller and Buyer. Capitalized terms used but not defined herein have the meanings set forth in the Framework Agreement, or if not defined therein, in the Master Receivables Financing Agreement.
Seller hereby requests, in accordance with the terms of the Framework Agreement, a Transaction under the Master Receivables Financing Agreement. The relevant terms of such Transaction are as follows:
Exhibit A to Master Framework Agreement – page 1
Included herewith are a completed draft Confirmation and proposed Portfolio Report setting forth information with respect to the proposed Eligible Receivables to be included in the Transaction as the Purchased Securities for such Transaction. Seller hereby certifies that the information set forth on such Portfolio Report is true and correct in all material respects, and that all Funding Conditions set forth in Section 4.3 of the Framework Agreement have been (or will be) satisfied as of the proposed Purchase Date.
FLOWERS FOODS, INC. | ||
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Exhibit A to Master Framework Agreement – page 2
FORM OF CONFIRMATION
Dated: |
| [Date] |
To: |
| Flowers Foods, Inc., as Seller (“Counterparty”) |
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| [_____] |
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| [_____] |
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| [_____] |
Attention: |
| Documentation |
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| Email: [ ] |
From: |
| Coöperatieve Rabobank U.A., New York Branch (“Rabobank”) |
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| Tel: Fax: |
Re: |
| Confirmation of a Repurchase Transaction |
Dear Flowers Foods, Inc.:
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the above referenced transaction entered into between Counterparty and Rabobank on the Purchase Date specified below (the “Transaction”)
This Confirmation constitutes a “Confirmation” as referred to in the Master Receivables Financing Agreement specified below. The definitions and provisions contained in the Master Receivables Financing Agreement are incorporated into this Confirmation. Subject to the proviso to the definition of Repurchase Price set forth in the Master Receivables Financing Agreement, in the event of any inconsistency between the Master Receivables Financing Agreement and this Confirmation, this Confirmation will govern.
The terms of the particular Transaction to which this Confirmation relates are as follows:
Exhibit A to Master Framework Agreement – page 3
Purchase Date: |
| [Date] |
Purchase Price: |
| $[ ] |
Buyer: |
| Rabobank |
Seller: |
| Counterparty |
Purchased Securities: |
| Set forth on attached Portfolio Report. |
Pricing Rate: |
| The rate set forth on the attached Pricing Schedule under the heading “All-in Rate” that appears in the row immediately above the reference to “Global Projected Interest” or “Projected Global Interest”, as the case may be |
Repurchase Date: |
| [Date] |
Repurchase Price: |
| The sum of (x) the Purchase Price plus (y) the Price Differential |
Price Differential |
| The amount set forth on the attached Pricing Schedule as the “Global Projected Interest” or “Projected Global Interest”, as the case may be, on the date that is the Repurchase Date |
[Remainder of page intentionally left blank]
Exhibit A to Master Framework Agreement – page 4
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us by electronic mail.
Very truly yours,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH
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By: |
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| Name: |
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Confirmed as of the date first above written:
FLOWERS FOODS, INC.
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| Name: |
| Title: |
Exhibit A to Master Framework Agreement – page 5
Exhibit B
Form of Joinder Agreement
B-1
IN WITNESS WHEREOF, New Originator has executed this Joinder Agreement as of the _____ day of _____________.
[NAME OF NEW ORIGINATOR] | ||
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Title: |
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Each of the undersigned hereby consents
to New Originator’s joinder in the Master Framework Agreement and
Receivables Distribution Agreement:
COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH
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FLOWERS FOODS, INC.
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B-2
SCHEDULE 5
to Joinder Agreement
New Originator -- Collection Accounts
| DEPOSITOR | NAME OF DEPOSITORY INSTITUTION | DEPOSITORY ADDRESS | CONTACT PERSON | ACCOUNT NUMBER(S) | ACCOUNT TYPE |
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