Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 7 TO FIFTH AMENDED
AND RESTATED
RECEIVABLES PURCHASE
AGREEMENT
AND
REAFFIRMATION OF PERFORMANCE
UNDERTAKING
This Amendment No. 7 to Fifth
Amended and Restated Receivables Purchase Agreement (this “
Amendment ”) is entered into as of March 30,
2009, among Dairy Group Receivables, L.P., a Delaware limited
partnership (“ Dairy Group ”), Dairy Group
Receivables II, L.P., a Delaware limited partnership (“
Dairy Group II ”), WhiteWave Receivables, L.P., a
Delaware limited partnership (“ WhiteWave ” and,
together with Dairy Group and Dairy Group II, the “
Sellers ” and each, a “ Seller ”),
each of the parties listed on the signature pages hereof as a
Servicer (each, a “ Servicer ” and collectively,
the “ Servicers ”), each of the parties listed
on the signature pages hereof as a Financial Institution (each, a
“ Financial Institution ” and collectively, the
“ Financial Institutions ”), each of the parties
listed on the signature pages hereof as a Company (each, a “
Company ” and collectively, the “
Companies ”), JPMorgan Chase Bank, N.A. (successor by
merger to Bank One, NA (Main Office Chicago)), as Agent (the
“ Agent ”), and Dean Foods Company, as Provider
(“ Provider ”). Capitalized terms used herein
and not otherwise defined shall have the respective meanings set
forth in the Fifth Amended and Restated Receivables Purchase
Agreement, dated as of April 2, 2007, among the Sellers, the
Servicers party thereto, the Financial Institutions, the Companies
and the Agent as amended to the date hereof (the “
Receivables Purchase Agreement ”).
R E C I T A
L S:
WHEREAS, 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, in favor of Dairy
Group, (ii) that certain Second Amended and Restated
Performance Undertaking, dated as of March 30, 2004, in favor
of Dairy Group II and (iii) that certain National Brand Group
Performance Undertaking, dated as of March 30, 2004, in favor
of WhiteWave (successor to National Brand Group, L.P.)
(collectively, the “ Performance Undertakings
”);
WHEREAS, SunTrust Bank (“
SunTrust ”) and Three Pillars Funding (“
SunTrust Company ”) have entered into an Assignment
Agreement with JPMorgan Chase, Bank, N.A. (“ JPM
”), JS Siloed Trust (“ JPM Company ”),
Cooperatieve Centrale Raiffeisen – Boerenleenbank B.A.
“Rabobank International”, New York Branch (“
Rabobank ”) and Nieuw Amsterdam Receivables
Corporation (“ Rabobank Company ”), dated the
date hereof (the “ Assignment Agreement ”),
pursuant to which (i) JPM has transferred and assigned to
SunTrust, and SunTrust has taken and assumed, interest in a portion
of JPM’s rights and obligations under the Receivables
Purchase Agreement and the other Transaction Documents,
(ii) JPM Company has transferred and assigned to SunTrust
Company, and SunTrust Company has taken and assumed, interest in a
portion of the JPM Company’s rights and obligations under the
Receivables Purchase Agreement and the other Transaction Documents,
(iii) Rabobank has transferred and assigned to SunTrust, and
SunTrust has taken and assumed, interest in a portion of
Rabobank’s rights and obligations under the Receivables
Purchase Agreement and the other Transaction
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Documents, and (iv) Rabobank Company has
transferred and assigned to SunTrust Company, and SunTrust Company
has taken and assumed, interest in a portion of the Rabobank
Company’s rights and obligations under the Receivables
Purchase Agreement and the other Transaction Documents;
WHEREAS, the Sellers, the Servicers,
the Companies, the 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.
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 to
Receivables Purchase Agreement . Subject to the terms and
conditions set forth herein and upon satisfaction of the conditions
precedent set forth in Section 3 hereof, the
Receivables Purchase Agreement is hereby amended as
follows:
(a) Section 1.1(b) of the
Receivables Purchase Agreement is hereby amended by deleting such
section in its entirety.
(b) Section 1.1 of the
Receivables Purchase Agreement is hereby further amended by
redesignating Section 1.1(c) thereof as
Section 1.1(b).
(c) Section 1.2 of the
Receivables Purchase Agreement is hereby amended by deleting in its
entirety the phrase “the CL Company or by” where such
phrase appears in clause (iv) of such section.
(d) Section 1.5 of the
Receivables Purchase Agreement is hereby amended by deleting such
section in its entirety.
(e) Section 2.2 of the
Receivables Purchase Agreement is hereby amended by amending and
restating such section in its entirety to read as
follows:
Section 2.2 Collections
Prior to Amortization . Prior to the Amortization Date, any
Collections and/or Deemed Collections received by each Servicer
shall be set aside and held in trust by such Servicer for the
benefit of the Agent and the Purchasers for the payment of any
accrued and unpaid Aggregate Unpaids or for a Reinvestment as
provided in this Section 2.2 . If at any time any
Collections and/or Deemed Collections are received by any Servicer
prior to the Amortization Date, (i) such Servicer shall set
aside the Termination Percentage (hereinafter defined) of
Collections and/or Deemed Collections evidenced by the Purchaser
Interests of each Terminating Financial Institution and of each
Company in a Terminating Financial Institution’s Purchaser
Group, shall set aside Collections to be used to effect any
Aggregate Reduction in accordance with Section 1.3 and
shall set aside amounts necessary to pay Obligations due on the
next succeeding Settlement Date and (ii) each Seller hereby
requests and the Purchasers (other than any Terminating Financial
Institutions and, to the extent
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applicable, any Company in a
Terminating Financial Institution’s Purchaser Group) hereby
agree to make, simultaneously with such receipt, a reinvestment
(each a “ Reinvestment ”) with that portion of
the balance of each and every Collection and Deemed Collection
received by any Servicer that is part of any Purchaser Interest
(other than any Purchaser Interests of Terminating Financial
Institutions and, to the extent applicable, of any Company in a
Terminating Financial Institution’s Purchaser Group), such
that after giving effect to such Reinvestment, the amount of
Capital of such Purchaser Interest immediately after such receipt
and corresponding Reinvestment shall be equal to the amount of
Capital immediately prior to such receipt (but giving effect to any
ratable reduction thereof pursuant to application of an Aggregate
Reduction). On each Settlement Date prior to the occurrence of the
Amortization Date, the Servicers shall remit to the Agent’s
or applicable Purchaser’s account the amounts set aside
during the preceding Settlement Period that have not been subject
to a Reinvestment and apply such amounts (if not previously paid in
accordance with Section 2.1 ) first , to reduce
unpaid CP Costs, Yield and other Obligations and second , to
reduce the Capital of all Purchaser Interests of Terminating
Financial Institutions and, to the extent applicable, of each
Company in a Terminating Financial Institution’s Purchaser
Group, applied ratably to such Terminating Financial Institution
and each such Company according to its respective Termination
Percentage. If such Capital, CP Costs, Yield and other Obligations
shall be reduced to zero, any additional Collections received by
any Servicer (i) if applicable, shall be remitted to the
Agent’s or applicable Purchaser’s account to the extent
required to fund any Aggregate Reduction on such Settlement Date
and (ii) any balance remaining thereafter shall be remitted
from such Servicer to the Sellers on such Settlement Date. Such
Servicer shall use its reasonable best efforts to remit all deposit
amounts to the Agent’s or applicable Purchaser’s
account no later than 12:00 noon (Chicago time) on such Settlement
Date. Any such amounts not received by Agent or the applicable
Purchaser by 1:00 pm (Chicago time) shall be deemed to be received
on the next succeeding Business Day. Each Terminating Financial
Institution and each Company in such Terminating Financial
Institution’s Purchaser Group shall be allocated a ratable
portion of Collections from its Termination Date until, with
respect to a Terminating Financial Institution, such Terminating
Financial Institution’s Capital, if any, shall be paid in
full and, with respect to a related Company (i) if any Related
Financial Institution with respect to such Company continues to
exist, the Capital of such Company is equal to the Company Purchase
Limit (as reduced pursuant to Section 4.6(a) ) of such
Company or (ii) if there are no Related Financial Institutions
with respect to such Company, the Capital of such Company shall be
paid in full. The applicable ratable portion shall be calculated,
with respect to any Terminating Financial Institution or applicable
Company, on the Termination Date of each Terminating Financial
Institution or applicable Company as a percentage equal to
(i) the Capital of such Terminating Financial Institution or
applicable Company outstanding on its Termination Date, divided by
(ii) the Aggregate Capital outstanding on such Termination
Date (the “ Termination Percentage ”). Each
Terminating Financial Institution’s and
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applicable Company’s
Termination Percentage shall remain constant prior to the
Amortization Date. On and after the Amortization Date, each
Termination Percentage shall be disregarded, and each Terminating
Financial Institution’s and each applicable Company’s
Capital shall be reduced ratably with all Financial Institutions
and Companies in accordance with Section 2.3
.
(f) Section 2.4 of the
Receivables Purchase Agreement is hereby amended by deleting in its
entirety the phrase “and the Term-out Period Advances”
where such phrase appears at the end of the fourth paragraph of
such section.
(g) Section 2.8 of the
Receivables Purchase Agreement is hereby amended by deleting such
section in its entirety.
(h) Section 3.1 of the
Receivables Purchase Agreement is hereby amended by deleting in its
entirety the phrase “the CL Company and each Purchaser
Interest of” where such phrase appears in the third sentence
of such section.
(i) Section 3.2 of the
Receivables Purchase Agreement is hereby amended by amending and
restating such section in its entirety to read as
follows:
Section 3.2 CP Costs
Payments . On each Settlement Date, the Sellers shall pay to
the applicable Company an aggregate amount equal to all accrued and
unpaid CP Costs in respect of the Capital associated with all
Purchaser Interests of such Company due and payable on such
Settlement Date.
(j) Section 3.4(a) of the
Receivables Purchase Agreement is hereby amended by deleting in its
entirety the last sentence of such section that states: “In
the case of Purchaser Interests of the CL Company, the
Administrative Seller shall, with consultation from, and approval
by, the CL Company (such approval not to be unreasonably withheld),
from time to time request CP (Tranche) Accrual Periods for the
Purchaser Interests of the CL Company.”
(k) Section 4.1 of the
Receivables Purchase Agreement is hereby amended by deleting in its
entirety the second sentence of such section that states:
“Each Term-out Period Advance shall accrue Yield for each day
during its Tranche Period at either the Term-out Period Advance
Rate or the Alternate Base Rate in accordance with the terms
hereof.”
(l) Section 4.2 of the
Receivables Purchase Agreement is hereby amended by
(i) deleting in its entirety the phrase “and each
Term-out Period Advance of the Nonrenewing Financial
Institutions” where such phrase appears therein and
(ii) deleting its entirety the phrase “and Term-out
Period Advance” where such phrase appears therein.
(m) Section 4.3 is hereby
amended by amending and restating such section in its entirety to
read as follows:
Section 4.3 Selection and
Continuation of Tranche Periods .
(a) In the case of Purchaser
Interests of any Financial Institution in the Purchaser Group of
the JPMorgan Company, the Administrative Seller shall
(and
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following the occurrence and during
the continuance of a Potential Amortization Event or an
Amortization Event, shall with consultation from, and approval by,
the applicable Financial Institution), from time to time request
Tranche Periods for the Purchaser Interests of such Financial
Institutions. In the case of Purchaser Interests of any Financial
Institution in the Purchaser Group of any Company other than the
JPMorgan Company, the Administrative Seller shall, with
consultation from, and approval by, the applicable Financial
Institution (such approval not to be unreasonably withheld), from
time to time request Tranche Periods for the Purchaser Interests of
such Financial Institution. Notwithstanding the foregoing
provisions of this subsection (a), if at any time the Financial
Institutions shall have a Purchaser Interest, the Administrative
Seller shall always request Tranche Periods such that at least one
Tranche Period shall end on the date specified in clause
(A) of the definition of Settlement Date.
(b) The Administrative Seller or the
applicable Financial Institution, upon notice to and consent by the
other received at least three (3) Business Days prior to the
end of a Tranche Period (the “ Terminating Tranche
”) for any Purchaser Interest, may, effective on the last day
of the Terminating Tranche: (i) divide any such Purchaser
Interest into multiple Purchaser Interests, (ii) combine any
such Purchaser Interest with one or more other Purchaser Interests
that have a Terminating Tranche ending on the same day as such
Terminating Tranche or (iii) combine any such Purchaser
Interest with a new Purchaser Interest to be purchased on the day
such Terminating Tranche ends, provided , that in no event
may a Purchaser Interest of any Purchasers be combined with a
Purchaser Interest of any other Purchaser.
(n) Section 4.4 is hereby
amended by amending and restating such section in its entirety to
read as follows:
Section 4.4 Financial
Institution Discount Rates . The Administrative Seller may
select the LIBO Rate or the Alternate Base Rate for each Purchaser
Interest of the Financial Institutions. The Administrative Seller
shall: (i) at least three (3) Business Days prior to the
expiration of any Terminating Tranche with respect to which the
LIBO Rate is being requested as a new Discount Rate and
(ii) at least one (1) Business Day prior to the
expiration of any Terminating Tranche with respect to which the
Alternate Base Rate is being requested as a new Discount Rate, give
the applicable Financial Institution irrevocable notice of the new
Discount Rate for the Purchaser Interest associated with such
Terminating Tranche. The Administrative Seller shall use its
reasonable best efforts to give such notice such that the
applicable Financial Institution receives it no later than 12:00
noon (Chicago time) on the day such request is being made. Any such
request not received by the applicable Financial Institution by
1:00 pm (Chicago time) shall be deemed to be received on the next
succeeding Business Day. Until the Administrative Seller gives
notice to the applicable Financial Institution of another Discount
Rate, the initial Discount Rate for any Purchaser Interest
transferred to the Financial Institutions pursuant to the terms and
conditions
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hereof (or transferred to, or funded
by, any Funding Source pursuant to any Funding Agreement or to or
by any other Person) shall be the Alternate Base Rate.
(o) Section 4.5 is hereby
amended by amending and restating such section in its entirety to
read as follows:
Section 4.5 Suspension of
the LIBO Rate .
(a) If any Financial Institution
notifies the Agent that it has determined that funding its Pro Rata
Share of the Purchaser Interests of the Financial Institutions in
such Financial Institution’s Purchaser Group at the LIBO Rate
would violate any applicable law, rule, regulation or directive of
any governmental or regulatory authority, whether or not having the
force of law, or that (i) deposits of a type and maturity
appropriate to match fund its Purchaser Interests at the LIBO Rate
are not available or (ii) the LIBO Rate does not accurately
reflect the cost of acquiring or maintaining a Purchaser Interest
at the LIBO Rate, then the Agent shall suspend the availability of
the LIBO Rate for the Financial Institutions in such Financial
Institution’s Purchaser Group and require Seller to select
the Alternate Base Rate for any Purchaser Interest funded by the
Financial Institutions in such Financial Institution’s
Purchaser Group accruing Yield at the LIBO Rate.
(b) If less than all of the
Financial Institutions in such Financial Institution’s
Purchaser Group give a notice to the Agent pursuant to
Section 4.5(a) , each Financial Institution which gave
such a notice shall be obliged, at the request of the
Administrative Seller, the Company in such Financial
Institution’s Purchaser Group or the Agent, to assign all of
its rights and obligations hereunder to (i) another Financial
Institution in such Financial Institution’s Purchaser Group
or (ii) another funding entity nominated by the Administrative
Seller or the Agent that is acceptable to the Company in such
Financial Institution’s Purchaser Group and willing to
participate in this Agreement through the Liquidity Termination
Date in the place of such notifying Financial Institution;
provided that (i) the notifying Financial Institution
receives payment in full, pursuant to an Assignment Agreement, of
an amount equal to such notifying Financial Institution’s Pro
Rata Share of the Capital and Yield owing to all of the Financial
Institutions in such Financial Institution’s Purchaser Group
and all accrued but unpaid fees and other costs and expenses
payable in respect of its Pro Rata Share of the Purchaser Interests
of the Financial Institutions in such Financial Institution’s
Purchaser Group, and (ii) the replacement Financial
Institution otherwise satisfies the requirements of
Section 12.1(b) .
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(p) Section 4.6 of the
Receivables Purchase Agreement is hereby amended by amending and
restating such section in its entirety to read as
follows:
Section 4.6 Extension of
Liquidity Termination Date .
(a) The Administrative Seller may
request one or more 364-day extensions of the Liquidity Termination
Date then in effect by giving written notice of such request to the
Agent (each such notice an “ Extension Notice ”)
at least 90 days prior to the Liquidity Termination Date then in
effect. After the Agent’s receipt of any Extension Notice,
the Agent shall promptly advise each Financial Institution of such
Extension Notice. Each Financial Institution may, in its sole
discretion, by a written irrevocable notice (a “ Consent
Notice ”) given to the Agent on or prior to the 30th day
prior to the Liquidity Termination Date then in effect (such period
from the date of the Extension Notice to such 30th day being
referred to herein as the “ Consent Period ”),
consent to such extension of such Liquidity Termination Date;
provided , however , that such extension shall not be
effective with respect to a Financial Institution if such Financial
Institution: (i) notifies the Agent during the Consent Period
that such Financial Institution does not wish to consent to such
extension or (ii) fails to respond to the Agent within the
Consent Period (each Financial Institution that does not wish to
consent to such extension or fails to respond to the Agent within
the Consent Period is herein referred to as a “
Nonrenewing Financial Institution ”). If at the end of
the Consent Period, there is no Nonrenewing Financial Institution
then, the Liquidity Termination Date shall be irrevocably extended
until the date that is 364 days after the Liquidity Termination
Date then in effect. If at the end of the Consent Period there is a
Nonrenewing Financial Institution, then unless such Nonrenewing
Financial Institution assigns its rights and obligations hereunder
pursuant to Section 4.6(b) (each such Nonrenewing
Financial Institution whose rights and obligations under this
Agreement and the other applicable Transaction Documents are not so
assigned is herein referred to as a “ Terminating
Financial Institution ”), the then existing Liquidity
Termination Date shall be extended for an additional 364 days with
respect to all Financial Institutions other than the Terminating
Financial Institution; provided , however , that
(i) the Purchase Limit shall be reduced on the Termination
Date applicable to each Terminating Financial Institution by an
aggregate amount equal to the Terminating Commitment Availability
of each Terminating Financial Institution and shall thereafter
continue to be reduced by amounts equal to any reduction in the
Capital of any Terminating Financial Institution (after application
of Collections pursuant to Sections 2.2 and 2.3 ),
(ii) the Company Purchase Limit of each Company shall be
reduced by the aggregate amount of the Terminating Commitment
Amount of each Terminating Financial Institution in such
Company’s Purchaser Group and (iii) the Commitment of
each Terminating Financial Institution shall be reduced to zero on
the Termination Date applicable to such Terminating Financial
Institution. Upon reduction to zero of the Capital of all of the
Purchaser Interests of a Terminating Financial Institution (after
application of Collections thereto pursuant to Sections 2.2
and 2.3 ) all rights and obligations of such Terminating
Financial Institution hereunder shall be terminated and such
Terminating Financial Institution shall no longer be a
“Financial Institution”; provided ,
however , that the provisions of Article X shall
continue in effect for its benefit with respect to Purchaser
Interests held by such Terminating Financial Institution prior to
its termination as a Financial Institution.
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(b) Upon receipt of notice from the
Agent pursuant to Section 4.6(a) of any Nonrenewing
Financial Institution, one or more of the Financial Institutions
(including any Nonrenewing Financial Institution) may proffer to
the Agent and the Company in such Nonrenewing Financial
Institution’s Purchaser Group the names of one or more
institutions meeting the criteria set forth in
Section 12.1(b)(i) that are willing to accept
assignments of and assume the rights and obligations under this
Agreement and the other applicable Transaction Documents of the
Nonrenewing Financial Institution. Provided the proffered name(s)
are acceptable to the Agent and the Company in such Nonrenewing
Financial Institution’s Purchaser Group, the Agent shall
notify the remaining Financial Institutions of such fact, and the
then existing Liquidity Termination Date shall be extended for an
additional 364 days upon satisfaction of the conditions for an
assignment in accordance with Section 12.1 , and the
Commitment of each Nonrenewing Financial Institution shall be
reduced to zero.
(c) Any requested extension may be
approved or disapproved by a Financial Institution in its sole
discretion. In the event that the Commitments are not extended in
accordance with the provisions of this Section 4.6 ,
the Commitment of each Financial Institution shall be reduced to
zero on the Liquidity Termination Date. Upon reduction to zero of
the Commitment of a Financial Institution and upon reduction to
zero of the Capital of all of the Purchaser Interests of such
Financial Institution all rights and obligations of such Financial
Institution hereunder shall be terminated and such Financial
Institution shall no longer be a “Financial
Institution”; provided , however , that the
provisions of Article X shall continue in effect for its benefit
with respect to Purchaser Interests held by such Financial
Institution prior to its termination as a Financial
Institution.
(q) Section 7.2(d) of the
Receivables Purchase Agreement is hereby amended by deleting in its
entirety the phrase “upon or with respect to any Term-out
Period Advance Account or any amounts from time to time on deposit
therein or credited thereto,” where it appears in the first
sentence therein.
(r) Section 9.1(c) of the
Receivables Purchase Agreement is hereby amended by amending and
restating such section in its entirety to read as
follows:
(c) Failure of any Seller to pay any
Indebtedness when due or the failure of any other Seller Party or
Provider to pay Indebtedness when due in excess of $50,000,000 or
the default by any Seller Party or Provider in the performance of
any term, provision or condition contained in any agreement under
which any such Indebtedness was created or is governed, the effect
of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its
stated maturity or any such Indebtedness of any Seller Party or
Provider shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to the
date of maturity thereof.
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(s) Section 9.2(a) of the
Receivables Purchase Agreement is hereby amended by
(i) deleting in its entirety the text “(a)” where
it appears at the beginning of such section and (ii) inserting
the phrase “whereupon such Financial Institution shall be
deemed to be a “Terminating Financial Institution” for
all purposes hereof,” after the phrase “may terminate
its Commitment hereunder,” where such phrase appears in
clause (B) therein.
(t) Section 9.2(b) of the
Receivables Purchase Agreement is hereby amended by deleting such
section in its entirety.
(u) Section 10.2 of the
Receivables Purchase Agreement is hereby amended by inserting the
phrase “, after March 30, 2009 with respect to any
Funding Source relating to the SunTrust Company,” immediately
after the phrase “after November 20, 2003 with respect
to any Funding Source relating to the Rabo
Company.”
(v) Section 12.1(c) of the
Receivables Purchase Agreement is hereby amended by
(i) deleting in its entirety the phrase “, Term-out
Period Advances” where such phrase appears therein,
(ii) deleting in its entirety the phrase “or the
Term-out Period Advances” where such phrase appears therein
and (iii) deleting in its entirety the phrase “Facility
Termination Date” and replacing it with the phrase
“Liquidity Termination Date.”
(w) Section 14.1 of the
Receivables Purchase Agreement is hereby amended by
(i) inserting the phrase “, the SunTrust Company”
immediately after the phrase “the commercial paper notes of
the Rabo Company” every time such phrase appears therein and
(ii) amending and restating clause (b)(i) of such section in
its entirety to read as follows:
(i) without the consent of each
affected Purchaser, (A) extend the Liquidity Termination Date
or the date of any payment or deposit of Collections by any Seller
or any Servicer, (B) reduce the rate or extend the time of
payment of Yield or any CP Costs (or any component of Yield or CP
Costs), (C) reduce any fee payable to the Agent for the
benefit of the Purchasers, (D) except pursuant to Article
XII hereof, change the amount of the Capital of any Purchaser,
any Financial Institution’s Pro Rata Share, any
Company’s Pro Rata Share, any Financial Institution’s
Commitment or any Company’s Company Purchase Limit (other
than, to the extent applicable, pursuant to Section 4.6
), (E) amend, modify or waive any provision of the definition
of Required Purchasers or this Section 14.1(b) ,
(F) consent to or permit the assignment or transfer by any
Seller of any of its rights and obligations under this Agreement,
(G) change the definition of “ Eligible
Receivable ,” “ Loss Reserve ,”
“ Yield and Servicer Reserve ,” “
Default Ratio ,” “ Delinquency Ratio
,” “ Dilution Reserve ,” or “
Dilution Ratio ” or amend or modify
Section 9.1(f) or (H) amend or modify any defined
term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through (G) above in a
manner that would circumvent the intention of the restrictions set
forth in such clauses; or
(x) Section 14.5(b) of the
Receivables Purchase Agreement is hereby amended by
(i) inserting the phrase “, the SunTrust Company
Agent” immediately after the phrase “financial assets
for which JPMorgan, Rabobank” where such phrase appears in
clause (iii) of such section and (ii) inserting the
following sentence at the end of such section:
Notwithstanding any other express or
implied agreement to the contrary, the parties agree and
acknowledge that each of them and each of their employees,
representatives, and other agents may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax
structure of the transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any
of them relating to such tax treatment and tax structure, except to
the extent that confidentiality is reasonably necessary to comply
with U.S. federal or state securities laws. For purposes of this
paragraph, the terms “tax treatment” and “tax
structure” have the meanings specified in Treasury Regulation
Section 1.6011-4(c).
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(y) Exhibit I to the Receivables
Purchase Agreement is hereby amended as follows:
(i) by deleting in their entirety
the definitions of “Applicable Percentage,”
“Applicable Term-out Period Advance Margin,”
“Eligible Investments,&rd
