FIRST AMENDMENT TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION VERSION
FIRST AMENDMENT, dated as of March 13, 2008 (this “Amendment”), to that certain Third
Amended and Restated Receivables Purchase Agreement, dated as of September 4, 2007 (the
“Receivables Purchase Agreement”), by and among LOL SPV, LLC, a Delaware limited liability
company, as Seller (“Seller”), LAND O’LAKES, INC., a Minnesota cooperative corporation
(“LOL”), as initial Servicer (“Servicer”), COBANK, ACB, a federally chartered
instrumentality of the United States (“CoBank”), and any other Persons that may, from time to time,
be party hereto as Purchasers (each, a “Purchaser”), and CoBank as administrator for the Purchasers
(in such capacity, “Administrator”).
WITNESSETH:
WHEREAS, the parties to the Receivables Purchase Agreement desire to amend the Receivables
Purchase Agreement to increase the Facility Limit and to make certain other changes as set forth
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Receivables Purchase Agreement and used herein
shall have the meanings given to them in the Receivables Purchase Agreement (as the same may be
amended hereby).
2. Amendment to Section 1.1. of the Receivables Purchase Agreement.
Effective as of the Amendment Effective Date (as defined in Section 6 below), each of the parties
hereto agrees to amend Section 1.1 of the Receivables Purchase Agreement by deleting the dollar
amount $300,000,000 in clause (y) thereof and inserting in lieu thereof the dollar amount
$400,000,000.
3. Amendment to Section 4.1(a) of the Receivables Purchase Agreement.
Effective as of the Amendment Effective Date, each of the parties hereto agrees to amend Section 4.1(a) of the Receivables Purchase Agreement by deleting the date July 27, 2007 in Section 4.1(a)
and inserting in lieu thereof the date February 15, 2008.
4. Amendment to Schedule 1 to the Receivables Purchase Agreement.
Effective as of the Amendment Effective Date, each of the parties hereto agrees to amend Schedule 1
of the Receivables Purchase Agreement by deleting the existing Schedule 1 and replacing it in its
entirety with the new Schedule 1 attached hereto as Amendment Exhibit A.
5. Amendment to Schedule 12.3(b) to the Receivables Purchase Agreement.
Effective as of the Amendment Effective Date, each of the parties hereto agrees to
amend
Schedule 12.3(b) of the Receivables Purchase Agreement by deleting the existing
Schedule 12.3(b) and replacing it in its entirety with the new Schedule 12.3(b) attached
hereto as Amendment Exhibit B.
6. Conditions to Effectiveness. This Amendment shall become effective on the date (the
“Amendment Effective Date”) on which the following conditions have been satisfied:
(a) each of the signatories to this document shall have delivered, and the Administrator shall
have received, an executed copy of this Amendment;
(b) the Administrator shall have received good standing (and foreign qualification, as
applicable) certificates for Seller and each Originator issued by the Secretaries of State of the
jurisdictions of their incorporation or formation and their respective principal places of
business;
(c) the Administrator shall have received a certificate of the Secretaries of Seller and each
Originator in form and substance reasonably satisfactory to the Administrator certifying (i) a copy
of the resolutions of its Board of Directors or Board of Managers, as applicable, approving this
Amendment and the transactions contemplated hereby; (ii) the names and true signatures of the
officers authorized on its behalf to sign this Amendment (on which certificate the Administrator
and the Purchasers may conclusively rely until such time as the Administrator shall receive from
Seller or any Originator, as the case may be, a revised certificate meeting the requirements of
this Section 6(c)); (iii) a copy of its by-laws, operating agreement or equivalent organizational
document(s); and (iv) all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Amendment;
(d) the Administrator shall have received the Certificate of Formation or the Certificate of
Incorporation, as applicable, of Seller and each Originator, duly certified by the Secretary of
State of the jurisdiction of its formation, as of a recent date reasonably acceptable to
Administrator;
(e) the Administrator shall have received favorable opinions of (i) in-house counsel to each
of Servicer, Winfield and Seller as to corporate authority and (ii) Xxxxxxxxx and Xxxxxx LLP,
special counsel to Seller and the Originators as to all other legal matters, in form and substance
reasonably satisfactory to the Administrator and its counsel;
(f) Xxxxxxxxx and Xxxxxx LLP, special counsel to each of the Originators and Seller, shall
have confirmed in writing, in form and substance reasonable satisfactory to the Administrator and
its counsel, that the that the execution, delivery and performance of this Amendment by the parties
thereto do not adversely affect the conclusions reached in their True Sale/Capital Contribution
Opinion dated September 4, 2007;
(g) the Administrator shall have received evidence of payment by the Seller of all accrued and
unpaid Fees (including those contemplated by the Fee Letter),
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all of the costs and expenses of
this transaction accrued or received
prior to the date hereof, including, without limitation, attorneys’ fees of the Administrator,
plus such additional amounts of attorneys’ fees as shall constitute the Administrator’s reasonable
estimate of attorneys’ fees incurred or to be incurred by it through the closing proceedings,
including any such costs, fees and expenses payable in accordance with Section 14.5; and
(h) the Administrator shall be satisfied that the representations and warranties set forth in
Section 7 hereof are true and correct on and as of the Amendment Effective Date.
7. Representations and Warranties. To induce the Purchasers to enter into this
Amendment, by its signature below, each of LOL and Seller hereby represents and warrants to each of
the Purchasers that:
(a) This Amendment has been duly executed and delivered by Seller and LOL. The execution and
delivery by Seller and LOL of this Amendment has been duly authorized by proper proceedings, and
this Amendment constitutes the legal, valid and binding obligation of Seller and LOL, enforceable
against Seller and LOL in accordance with its terms.
(b) The execution and delivery by Seller and LOL of this Amendment and the performance by
Seller and LOL of this Amendment and the Receivables Purchase 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 Seller or LOL.
(c) After giving effect to this Amendment, each of the representations and warranties of each
of Seller and LOL contained in Article VI of the Receivables Purchase Agreement or in any
certificate or report delivered pursuant to or in connection with the Receivables Purchase
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 Seller’s and LOL’s obligations and liabilities to the Purchasers and the
Administrator, as evidenced by or otherwise arising under the Receivables Purchase Agreement or the
Transaction Documents, are hereby ratified and confirmed in all respects.
8. 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
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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.
9. Continuing Effect of Other Documents. This Amendment shall not constitute an
amendment or waiver of any other provision of the Receivables Purchase 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 Purchasers. Except as
expressly amended, modified and supplemented hereby, the provisions of the Receivables Purchase
Agreement are and shall remain in full force and effect.
10. 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
COLORADO (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
11. Miscellaneous. From and after the date hereof, each reference to the Receivables
Purchase Agreement in the Receivables Purchase Agreement and the other Transaction Documents shall
be deemed to be a reference to the Receivables Purchase 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.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| LOL SPV, LLC, as Seller |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name Printed: | Xxxxxx Xxxxxxx | |||
| Title: | Senior VP & Chief Financial Officer | |||
| LAND O’LAKES, INC., as Servicer |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name Printed: | Xxxxxx Xxxxxxx | |||
| Title: | Senior VP & Chief Financial Officer | |||
| COBANK, ACB, as a Purchaser and as Administrator |
||||
| By: | ||||
| Name Printed: | ||||
| Title: | ||||
[Signature Page to First Amendment to Third Amended and Restated RPA]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| LOL SPV, LLC, as Seller |
||||
| By: | ||||
| Name Printed: | ||||
| Title: | ||||
| LAND O’LAKES, INC., as Servicer |
||||
| By: | ||||
| Name Printed: | ||||
| Title: | ||||
| COBANK, ACB, as a Purchaser and as
Administrator |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name Printed: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Third Amended and Restated RPA]
Amendment Exhibit A
Schedule 1
Purchasers and Pro Rata Shares
| Purchaser | Pro Rata Share | Facility Limit | ||||||
CoBank, ACB |
100 | % | $ | 400,000,000 | ||||
TOTAL |
100 | % | $ | 400,000,000 | ||||
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Amendment Exhibit B
Schedule 12.3(b)
Participants
| Participant | Amount of Participation | |||
CoBank |
$ | 145,000,000 | ||
US AgBank |
$ | 40,000,000 | ||
FCB Texas |
$ | 35,000,000 | ||
FCS WNY |
$ | 25,000,000 | ||
NWFCS |
$ | 25,000,000 | ||
Commercial Finance Group |
$ | 25,000,000 | ||
AgFirst |
$ | 22,500,000 | ||
First Pioneer |
$ | 15,000,000 | ||
Greenstone |
$ | 15,000,000 | ||
Mid-Atlantic |
$ | 15,000,000 | ||
FCS Financial |
$ | 12,500,000 | ||
AgStar |
$ | 10,000,000 | ||
FCSA |
$ | 10,000,000 | ||
FC Maine |
$ | 5,000,000 | ||
Total |
$ | 400,000,000 | ||
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