EXHIBIT 10.30
EXECUTION COPY
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
FIRST AMENDMENT, dated as of March 31, 2004 (this "Amendment"), to that certain
Purchase and Sale Agreement dated as of December 18, 2001 (the "Purchase and
Sale Agreement"), by and between LAND O'LAKES, INC., a Minnesota cooperative
corporation, LAND O'LAKES FARMLAND FEED LLC, a Delaware limited liability
company ("Feed"), and PURINA MILLS, LLC, a Delaware limited liability company,
as originators (each an "Originator" and collectively, the "Originators"), Feed,
as initial Servicer, and LOL Farmland Feed SPV, LLC, a Delaware limited
liability company, as purchaser (the "SPV Purchaser").
WITNESSETH:
WHEREAS, pursuant to the Purchase and Sale Agreement, each of the
Originators has sold or contributed, and will continue to sell or contribute,
all of the Receivables and Related Rights that it owns, and from time to time
hereafter will own or that it will from time to time hereafter originate in the
ordinary course of each Originator's respective businesses, to the SPV
Purchaser;
WHEREAS, the SPV Purchaser has entered into a Receivables Purchase
Agreement, dated as of December 18, 2001 (the "Existing Receivables Purchase
Agreement"), by and among the SPV Purchaser, as Seller, Feed, as initial
Servicer, CoBank, ACB, as Administrator, and any other Persons that may, from
time to time, be party thereto as Purchasers, pursuant to which, among other
things, the SPV Purchaser may sell to the Administrator, for the benefit of the
Purchasers, undivided interests in the Receivables and Related Rights;
WHEREAS, the parties to the Existing Receivables Purchase Agreement
desire to amend and restate the Existing Receivables Purchase Agreement on the
terms and conditions set forth in that certain Amended and Restated Receivables
Purchase Agreement, dated as of March 31, 2004 (the "Amended and Restated
Receivables Purchase Agreement"), by and among the SPV Purchaser, as Seller,
Feed, as initial Servicer, CoBank, ACB, as Administrator, and any other Persons
that may, from time to time, be party thereto as Purchasers;
WHEREAS, the amendment and restatement of the Existing Receivables
Purchase Agreement also requires certain conforming amendments to the Purchase
and Sale Agreement; and
WHEREAS, the parties to the Purchase and Sale Agreement desire to amend
the Purchase and Sale Agreement in the manner set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Purchase and Sale Agreement and
used herein shall have the meanings given to them in the Purchase and Sale
Agreement (as the same may be amended hereby).
2. Acknowledgment of and Consent to Amended and Restated Receivables
Purchase Agreement. Each of the parties hereto acknowledges and consents to the
amendment and restatement of the Existing Receivables Purchase Agreement on the
terms and conditions set forth in the Amended and Restated Receivables Purchase
Agreement
3. Amendment to Definition of "Receivables Purchase Agreement" under
the Purchase and Sale Agreement. Each of the parties hereto agrees that all
references to the "Receivables Purchase Agreement" contained in the Purchase and
Sale Agreement shall be deemed to be references to the Amended and Restated
Receivables Agreement (as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time).
4. Amendment to Definition of "Chase Credit Documents" under the
Purchase and Sale Agreement. The Purchase and Sale Agreement is hereby amended
by changing all references to "Chase Credit Documents" to "JP Morgan Credit
Documents".
5. Amendment to Section 2.1(c) of the Purchase and Sale Agreement. The
Purchase and Sale Agreement is hereby amended by deleting clause (ii) in the
definition of "Cost Rate" contained in Section 2.1(c) of the Purchase and Sale
Agreement and replacing it with the following:
"(ii) one hundred thirty-seven and one half (137.5) basis points."
6. Amendment to Section 4.1(h) of the Purchase and Sale Agreement.
Section 4.1(h) of the Credit Agreement is hereby amended by deleting the legend
set forth therein and replacing it with the following legend:
THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD OR CONTRIBUTED TO LOL
FARMLAND FEED SPV, LLC, PURSUANT TO A PURCHASE AND SALE AGREEMENT,
DATED AS OF DECEMBER 18, 2001, AS AMENDED FROM TIME TO TIME, BY AND
BETWEEN LOL FARMLAND FEED SPV, LLC, LAND O'LAKES, INC., LAND O'LAKES
FARMLAND FEED LLC, AND PURINA MILLS, LLC; AN OWNERSHIP AND SECURITY
INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND
ASSIGNED TO COBANK, ACB, AS ADMINISTRATOR, PURSUANT TO AN AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT DATED AS OF MARCH 31, 2004, AS
AMENDED FROM TIME TO TIME, BY AND AMONG LOL FARMLAND FEED SPV, LLC (AS
SELLER), LAND O'LAKES FARMLAND FEED LLC (AS INITIAL SERVICER), COBANK,
ACB, AND THE OTHER PURCHASERS FROM TIME TO TIME PARTY THERETO; AND
COBANK, ACB (AS ADMINISTRATOR);
7. Amendment to Section 6.1(c) of the Purchase and Sale Agreement.
Section 6.1(c) of the Credit Agreement is hereby amended by deleting the last
proviso thereof in its entirety and replacing it with the following proviso:
"provided, however, that unless a termination event has occurred and is
continuing, Seller and/or Servicer shall not be obligated to pay for more than
two (2) such audits in any calendar year."
8. Conditions to Effectiveness. This Amendment shall become effective
on the date (the "Amendment Effective Date") on which the following conditions
have been satisfied:
(a) Execution and Delivery of Documents. Each of the Originators shall
have executed and delivered this Amendment to SPV Purchaser, and the
Administrator shall have received a copy of this Amendment executed by
each of the Originators and the SPV Purchaser.
(b) Effectiveness of Amended and Restated Receivables Purchase
Agreement. The SPV Purchaser and the Administrator shall have received
reasonably satisfactory evidence that the Amended and Restated
Receivables Purchase Agreement has become effective.
(c) Filing of UCC-3 Amendments. Acknowledgment or time-stamped receipt
copies of UCC-3 financing statement amendments, amending the existing
UCC-1 financing statements that were filed in
connection with the Purchase and Sale Agreement to include additional
collateral in the form of Dairy Receivables, shall have been delivered
to each of the SPV Purchaser and the Administrator.
(d) Representations and Warranties. The SPV Purchaser shall be
satisfied that the representations and warranties set forth in Section
9 hereof are true and correct on and as of the Amendment Effective
Date.
9. Representations and Warranties. To induce the SPV Purchaser to enter
into this Amendment, by its signature below, each of the Originators hereby
represents and warrants to the SPV Purchaser that:
(a) This Amendment has been duly executed and delivered by each of the
Originators. The execution and delivery by each of the Originators of
this Amendment has been duly authorized by proper proceedings, and this
Amendment constitutes the legal, valid and binding obligation of each
of the Originators, enforceable against each Originator in accordance
with its terms.
(b) The execution and delivery by each of the Originators of this
Amendment and the performance by each of the Originators of this
Amendment and the Purchase and Sale Agreement, as amended hereby, (i)
are within the corporate or other legal authority of such Person, (ii)
have been duly authorized by all necessary corporate or other
proceedings and (iii) do not and will not conflict with or result in
any breach or contravention of any Applicable Law or any Contractual
Obligation or operating agreement or other governing document of each
Originator.
(c) After giving effect to this Amendment, each of the representations
and warranties of each of the Originators contained in Article V of the
Purchase and Sale Agreement or in any certificate or report delivered
pursuant to or in connection with the Purchase and Sale Agreement was
true in all respects as of the date as of which it was made and is true
in all respects on the date hereof (except to the extent that such
representations and warranties relate expressly to an earlier date).
(d) After giving effect to this Amendment, no Unmatured Termination
Event or Termination Event has occurred and is continuing.
(e) Each of the Originators' obligations and liabilities to the SPV
Purchaser and the Adminstrator, as evidenced by or otherwise arising
under the Purchase and Sale Agreement or the Transaction Documents, are
hereby ratified and confirmed in all respects.
10. Severability; Headings. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. The section and
subjection headings used in this Amendment are for convenience of reference only
and are not to affect the construction hereof or to be taken into consideration
in the interpretation hereof.
11. Continuing Effect of Other Documents. This Amendment shall not
constitute an amendment or waiver of any other provision of the Purchase and
Sale Agreement not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of any that would
require a waiver or consent of the SPV Purchaser (with the consent of the
Administrator). Except as expressly amended, modified and supplemented hereby,
the provisions of the Purchase and Sale Agreement are and shall remain in full
force and effect.
12. GOVERNING LAW. THIS AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF
THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF MINNESOTA (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF).
13. Miscellaneous. From and after the date hereof, each reference to
the Purchase and Sale Agreement in the Purchase and Sale Agreement and the other
Transaction Documents shall be deemed to be a reference to the Purchase and Sale
Agreement as modified by this Amendment. This Amendment may be executed in any
number of counterparts, but all of such counterparts shall together constitute
but one and the same agreement. Delivery of an executed counterpart of a
signature page by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Amendment. In making proof of this
Amendment, it shall not be necessary to produce or account for more than one
such counterpart.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
LAND O'LAKES INC., as Originator
By: /s/ DANIEL KNUTSON
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Name: Daniel Knutson
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Title: Senior VP and CFO
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LAND O'LAKES FARMLAND FEED LLC,
as Originator and initial Servicer
By: /s/ DANIEL KNUTSON
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Name: Daniel Knutson
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Title: Senior VP and CFO
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PURINA MILLS, LLC, as Originator
By: /s/ DANIEL KNUTSON
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Name: Daniel Knutson
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Title: Senior VP and CFO
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LOL Farmland Feed SPV, LLC, as SPV
Purchaser
By: /s/ DANIEL KNUTSON
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Name: Daniel Knutson
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Title: Chief Financial Officer
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ACKNOWLEDGED AND CONSENTED TO:
COBANK, ACB, as Administrator
By: /s/ MICHAEL TOUSIGNANT
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Name: Michael Tousignant
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Title: Vice President
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