Exhibit 10.26
Amendment No. 2 to Fourth Amended and Restated
Receivables Purchase Agreement
and
Reaffirmation of Performance Undertakings
This Amendment No. 2 to Fourth Amended and Restated
Receivables Purchase Agreement and Reaffirmation of Performance Undertakings
(this "AMENDMENT") is entered into as of June 3, 2004, among Dairy Group
Receivables, L.P. ("DAIRY I"), Dairy Group Receivables II, L.P. ("DAIRY II"),
Specialty Group Receivables, L.P. ("SPECIALTY"), Xxxx National Brand Group, L.P.
("NATIONAL BRAND" and together with Dairy I, Dairy II and Specialty, the
"SELLERS" and each a "SELLER"), each entity signatory hereto as a Financial
Institution (each a "FINANCIAL INSTITUTION" and collectively, the "FINANCIAL
INSTITUTIONS"), each entity signatory hereto as a Company (each a "COMPANY" and
collectively, the "COMPANIES"), Bank One, NA (Main Office Chicago), as Agent
(the "AGENT"), and Xxxx Foods Company, as Provider ("PROVIDER"). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Fourth Amended and Restated Receivables Purchase Agreement,
dated as March 30, 2004, among the Sellers, the Servicers party thereto, the
Financial Institutions, the Companies and the Agent (as amended or otherwise
modified, as of the date hereof, the "RECEIVABLES PURCHASE AGREEMENT").
R E C I T A L S:
- - - - - - - -
The Sellers, the Financial Institutions, the Companies, the
Servicers and the Agent are parties to the Receivables Purchase Agreement.
In connection with the Receivables Purchase Agreement,
Provider entered into each of (i) that certain Third Amended and Restated
Performance Undertaking, dated as of March 30, 2004, by Provider in favor of
Dairy I, (ii) that certain Second Amended and Restated Performance Undertaking,
dated as of March 30, 2004, by Provider in favor of Dairy II, (iii) that certain
Specialty Performance Undertaking, dated as of November 20, 2003, by Provider in
favor of Specialty and (iv) that certain National Brand Performance Undertaking,
dated as of March 30, 2004, by Provider in favor of National Brand
(collectively, the "PERFORMANCE UNDERTAKINGS").
The Sellers, Companies, Financial Institutions and the Agent
desire to amend the Receivables Purchase Agreement, and Provider desires to
reaffirm its obligations under the Performance Undertakings, all as more fully
described herein.
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment. Immediately upon the satisfaction of
each of the conditions precedent set forth in Section 3 of this Amendment, the
Receivables Purchase Agreement is hereby amended as follows:
(a) Section 7.2(d) of the Receivables Purchase
Agreement is hereby amended by adding the following new sentences to the end of
such section:
In addition, notwithstanding this Section 7.2(d), so long as no
Amortization Event or Potential Amortization Event exists, Dairy Group
may sell the Subject Receivables to Northern Falls, LLC, a Michigan
limited liability company, pursuant to the Subject Receivables Sale
Agreement; provided that in connection with such sale the following
representations and warranties are true: each Seller and each Servicer,
hereby represent and warrant to the Agent and each Purchaser, as to
itself, that, in connection with such sale, (i) no Seller made, and no
Seller will make, representations or warranties in connection with such
sale of Subject Receivables, (ii) both before and after giving effect
to such sale, no Amortization Event or Potential Amortization Event
exists, (iii) the purchaser of the Subject Receivables has no, and will
have no, recourse to any Seller or the assets of any Seller (other than
the Subject Receivables subject to such sale), (iv) as of the date of
such sale, the aggregate Outstanding Balance of all Subject Receivables
is estimated to be $275,000, which amount is subject to post-closing
adjustment which post-closing adjustment shall be completed by August
2, 2004 with notice regarding the outcome thereof to be provided to the
Agent by Dairy Group by such date, (v) the aggregate purchase price for
all Subject Receivables is estimated to be $275,000, which purchase
price is subject to post-closing adjustment which post-closing
adjustment shall be completed by August 2, 2004 with notice regarding
the outcome thereof to be provided to the Agent by Dairy Group by such
date, which purchase price constitutes reasonably equivalent value and
fair consideration for, and reflects an arm's length sale of, such
Subject Receivables, (vi) the Subject Receivables have not been
selected or identified in any manner that materially adversely affects
the Agent or any Purchaser and (vii) each Subject Receivable and all
Collections and Related Security with respect
2
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
thereto, immediately before such sale are, and at all times after such
sale will continue to be, readily identifiable and distinguishable from
all other Receivables and all Collections and Related Security with
respect thereto. Upon the sale of the Subject Receivables in accordance
with the terms of this Section 7.2(d) and Dairy Group's receipt of the
purchase price therefor in immediately available funds in a Collection
Account, the Subject Receivables and the Collections and Related
Security relating solely thereto shall be released from the security
interest granted to the Agent for the ratable benefit of the Purchasers
pursuant to Section 14.14(b). For the avoidance of doubt, each party
hereto agrees that the purchase price paid upon the sale of the Subject
Receivables shall constitute Collections hereunder and shall be applied
in accordance with the terms hereof, including, without limitation,
Article II.
(b) Exhibit I to the Receivables Purchase Agreement
is hereby amended by adding, in appropriate alphabetical order, the following
new definitions to such exhibit:
"Subject Receivables" means those Receivables in existence on
June 3, 2004 which were originated by Country Fresh, LLC and which are
identified and designated in the books and records of Country Fresh,
LLC, as Servicer, with the related Obligors listed on Schedule H;
provided, however, that "Subject Receivables" shall not include those
Receivables in existence on June 3, 2004 which were originated by
Country Fresh, LLC and which are identified and designated in the books
and records of Country Fresh, LLC, as Servicer, with the related
Obligor "Xxxxxx Xxxx, #83342" and the invoice numbers listed on
Schedule I.
"Subject Receivables Sale Agreement" means that certain Sale
and Assignment, dated as of June 3, 2004, among Dairy Group, Country
Fresh, LLC and Northern Falls, LLC, a Michigan limited liability
company, in form and substance satisfactory to the Agent, in its sole
and absolute discretion.
(c) The Receivables Purchase Agreement is hereby
amended by adding Annexes A and B hereto as Schedules H and I, respectively, to
the Receivables Purchase Agreement.
3
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
Section 2. Reaffirmation of Performance Guaranty. Provider
acknowledges the amendments to the Receivables Purchase Agreement effected
hereby and reaffirms that its obligations under each of the Performance
Undertakings and each other Transaction Document to which it is a party continue
in full force and effect with respect to the Receivables Purchase Agreement.
Section 3. Conditions to Effectiveness of Amendment. This
Amendment shall become effective as of the date hereof upon the satisfaction of
the following conditions precedent:
(a) Amendment. This Amendment shall have been duly
executed and delivered by each of the parties hereto.
(b) Representations and Warranties. As of the date
hereof, both before and after giving effect to this Amendment, all of the
representations and warranties contained in the Receivables Purchase Agreement
and in each other Transaction Document shall be true and correct as though made
on and as of the date hereof (and by its execution hereof, each Seller shall be
deemed to have represented and warranted such).
(c) No Amortization Event or Potential Amortization
Event. As of the date hereof, both before and after giving effect to this
Amendment, no Amortization Event or Potential Amortization Event shall have
occurred and be continuing (and by its execution hereof, each Seller shall be
deemed to have represented and warranted such).
(d) Bring-Down Opinion. The Agent and each Purchaser
shall have received a bring-down opinion (in form and substance satisfactory to
the Agent and each Purchaser) from counsel for each Originator, stating that the
transactions contemplated by Section 7.2(d) of the Receivables Purchase
Agreement do not adversely affect the validity or change the "true sale" and
"substantive consolidation" opinions delivered by such counsel on March 30,
2004.
(e) Subject Receivables Sale Agreement. The Agent
shall have received a duly executed copy of that certain Sale and Assignment,
dated the date hereof, among Dairy Group, Country Fresh, LLC, and Northern
Falls, LLC, a Michigan limited liability company, in form and substance
satisfactory to the Agent, in its sole and absolute discretion.
Section 4. Miscellaneous.
4
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
(a) Effect; Ratification. The amendments set forth
herein are effective solely for the purposes set forth herein and shall be
limited precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the
Receivables Purchase Agreement or of any other instrument or agreement referred
to therein; or (ii) prejudice any right or remedy which the Companies, the
Financial Institutions or the Agent may now have or may have in the future under
or in connection with the Receivables Purchase Agreement or any other instrument
or agreement referred to therein. Each reference in the Receivables Purchase
Agreement to "this Agreement," "herein," "hereof" and words of like import and
each reference in the other Transaction Documents to the "Receivables Purchase
Agreement" or to the "Purchase Agreement" or to the Receivables Purchase
Agreement shall mean the Receivables Purchase Agreement as amended hereby. This
Amendment shall be construed in connection with and as part of the Receivables
Purchase Agreement and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Receivables Purchase Agreement and
each other instrument or agreement referred to therein, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
(b) Transaction Documents. This Amendment is a
Transaction Document executed pursuant to the Receivables Purchase Agreement and
shall be construed, administered and applied in accordance with the terms and
provisions thereof.
(c) Costs, Fees and Expenses. Each Seller agrees to
reimburse the Agent and the Purchasers upon demand for all costs, fees and
expenses (including the reasonable fees and expenses of counsels to the Agent
and the Purchasers) incurred in connection with the preparation, execution and
delivery of this Amendment.
(d) Counterparts. This Amendment may be executed in
any number of counterparts, each such counterpart constituting an original and
all of which when taken together shall constitute one and the same instrument.
(e) Severability. Any provision contained in this
Amendment which is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions of this Amendment in that
jurisdiction or the operation, enforceability or validity of such provision in
any other jurisdiction.
5
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS.
(g) Confirmation of Ownership and/or Security
Interest. Each Seller hereby confirms (i) the sale and assignment of Purchaser
Interests pursuant to Sections 1.1 and/or 1.2 of the Receivables Purchase
Agreement and (ii) the grant of security interest pursuant to Section 14.14(b)
of the Receivables Purchase Agreement to the Agent for the ratable benefit of
the Purchasers in all of such Seller's right, title and interest in, to and
under all Receivables, the Collections, each Lock-Box, each Collection Account,
all Related Security, all other rights and payments relating to such
Receivables, and all proceeds of any thereof.
(Signature Pages Follow)
6
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
DAIRY GROUP RECEIVABLES, L.P.,
as a Seller
By: Dairy Group Receivables GP, LLC,
Its: General Partner
DAIRY GROUP RECEIVABLES II, L.P.,
as a Seller
By: Dairy Group Receivables XX XX, LLC,
Its: General Partner
SPECIALTY GROUP RECEIVABLES, L.P.,
as a Seller
By: Specialty Group Receivables GP, LLC,
Its: General Partner
XXXX NATIONAL BRAND GROUP, L.P.,
as a Seller
By: Xxxx National Brand Group GP, LLC,
Its: General Partner
By:
-------------------------------
Name:
Title:
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
FALCON ASSET SECURITIZATION
CORPORATION, as a Company
By:
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By:
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director, Capital Markets
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
ATLANTIC ASSET SECURITIZATION CORP.,
as a Company
By: Calyon New York Branch (successor to
Credit Lyonnais New York Branch)
Its: Attorney-In-Fact
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
CALYON NEW YORK BRANCH (successor to
Credit Lyonnais New York Branch), as a
Financial Institution
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
NIEUW AMSTERDAM RECEIVABLES CORPORATION,
as a Company
By:
-----------------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A. "Rabobank International",
New York Branch,
as a Financial Institution
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
BLUE RIDGE ASSET FUNDING CORPORATION,
as a Company
By: Wachovia Capital Markets, LLC
Its: Attorney-In-Fact
By:
----------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Financial Institution
By:
-----------------------------------------
Name:
Title:
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
XXXX FOODS COMPANY,
as Provider
By:
-----------------------------------------
Name:
Title:
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
ANNEX A
SCHEDULE H
OBLIGORS OF SUBJECT RECEIVABLES
AMWAY GRAND PLAZA
CRYSTAL MOUNTAIN, INC.
S XXXXXXX & SONS
RWI RESOURCES
AQUA SYSTEMS, INC.
BESCO WATER TREATMENT
CLOVERTREE
DU-MOR WATER
FELPAUSCH
GREAT LAKES WHOLESALE
HJR SALES INTERNATIONAL
KEHE FOOD DISTRIBUTORS
X X XXXXXXX CO.GRND RPDS
MICHIGAN WATER CONDITIONIN
PURE FACT WATER
ST. IVES / CANADIAN LAKES
DEARBORN WHOLESALE GROCERS
CASH SALES ONLY
XXXXXX GROOTERSDEVELOPMEN
DRINKMORE DELIVERY
XXXXX FOOD SERVICE/RWI RES
XXXXXX XXXX
MIDWAY WHOLESALERS, INC.
MILL BROOK WATERCOMPANY
ULTIMATE FITNESSOF GRND R
CEDAR CREST
XXXXXX PLUMBING
GREAT NORTH FOODS
LITESPA
XXXX XXXXXXXX
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
CITY OF WYOMING
RWDSU LOCAL 386
XXXXX FOODSERVICE, INC
CITY OF GRAND RAPIDS
ROCKFORD CONSTRUCTION
EMPLOYEE SALES
COOLER IMAGE
XXXXX BROTHERS
HIGHLAND DISTTIBUTOR COMPA
U.S. FOODS SERVICE
U.S. FOODS SERVICE
QCD FOODSERVICE
U.S. FOODSERVICE
SILVER CREEK DIV- ACE COFF
KEYSTRAW LLC
ALPINE SPRINGS
CCC VENDING
AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
ANNEX B
SCHEDULE I
INVOICE NUMBERS
INVOICE DATE INVOICE # AMOUNT
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10/31/03 4230386 $7,058.15
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10/31/03 4230408 $6,332.35
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10/31/03 4230426 $5,996.82
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$19,387.32
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