Execution
version
AMENDMENT NO. 9 TO
RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 9 TO RECEIVABLES PURCHASE
AGREEMENT, dated as
of October 16, 2008 (this “ Amendment ”), is by
and among Ralcorp Holdings, Inc., a Missouri corporation, as Master
Servicer (the “ Master Servicer ”), Ralcorp
Receivables Corporation, a Nevada corporation (“
Seller ”), Falcon Asset Securitization Company LLC, a
Delaware limited liability company formerly known as Falcon Asset
Securitization Corporation (together with its successors and
assigns, “ Conduit ”), and JPMorgan Chase Bank,
N.A., successor by merger to Bank One, NA (Main Office Chicago),
individually and as Agent under the Existing Agreement (as defined
below) (in such capacity, the “ Agent ”), and
pertains to that certain Receivables Purchase Agreement dated as of
September 25, 2001 by and among the parties hereto, as heretofore
amended (the “ Existing Agreement
”). Unless defined elsewhere herein, capitalized
terms used in this Amendment shall have the meanings assigned to
such terms in the Existing Agreement.
PRELIMINARY
STATEMENT
The parties wish to amend the Existing Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.1. Each of the following definitions in the Existing
Agreement is hereby amended and restated in its entirety to read,
respectively, as follows:
“Collection Account
Agreement” means an agreement substantially in the form of
Exhibit VI (or otherwise agreed to by the Agent in its reasonable
discretion) among a Collection Bank, the Agent and, as applicable,
an Originator and/or Seller.
“Concentration Limit”
means, at any time, for any Obligor,
3.33% of the aggregate Outstanding Balance of all Eligible
Receivables, or such higher or lower amount (a “Special
Concentration Limit” ) for such Obligor designated by
the Agent, upon not less than three Business Days’ notice to
Seller; provided , that in the case of an Obligor and
any Affiliate of such Obligor, the Concentration Limit shall be
calculated as if such Obligor and such Affiliate are one Obligor;
and provided, further, that Conduit or the Required
Financial Institutions may, upon not less than three Business
Days’ notice to Seller, cancel any Special Concentration
Limit. As of the date hereof, until notice from the
Agent to the contrary in accordance with the preceding sentence,
the following Special Concentration Limits shall be in
effect:
|
Obligor
|
Percentage
of
Eligible
Receivables
|
|
CVS/Caremark
and Affiliates
|
7.50%
|
|
Kroger and
Affiliates
|
5.00%
|
|
Walgreen’s and Affiliates
|
7.50%
|
|
Wal-Mart and
Affiliates
|
14.00%
|
“Default Fee”
means with respect to any amount due
and payable by Seller in respect of any Aggregate Unpaids, interest
on any such unpaid Aggregate Unpaids at a rate per annum equal to
2.25% above the Base Rate.
“Dilution Horizon
Ratio” means,
on any date of determination, an amount calculated by dividing (a)
cumulative sales generated by the Originators during the most
recent 30 days by (b) the Net Receivables Balance as of the last
day of the month then most recently ended.
“Dilution Percentage”
means, on any date of determination,
a percentage equal to:
{ (2 x ED) + [ (DS – ED) x (DS / ED) ] } x
DHR
ED = Expected
Dilution as of such date;
DS = the
Dilution Spike on such date; and
DHR = the
Dilution Horizon Ratio.
“LIBO Rate”
means the rate per annum equal to
the sum of (i) (a) the offered rate for deposits in U.S. dollars of
amounts equal or comparable to the principal amount of the related
Liquidity Funding offered for a term comparable to such Interest
Period, which rates appear on a Bloomberg L.P. terminal, displayed
under the address “US0001M <Index> Q
<Go>” effective as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Tranche Period, and
having a maturity equal to such Tranche Period,
provided that, (i) if such Bloomberg L.P. address is
not available to the Agent for any reason, the applicable LIBO Rate
for the relevant Tranche Period shall instead be the applicable
British Bankers’ Association Interest Settlement Rate for
deposits in U.S. dollars as reported by any other generally
recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Tranche
Period, and having a maturity equal to such Tranche Period, and
(ii) if no such British Bankers’ Association Interest
Settlement Rate is available to the Agent, the applicable LIBO Rate
for the relevant Tranche Period shall instead be the rate
determined by the Agent to be the rate at which JPMorgan offers to
place deposits in U.S. dollars with first-class banks in the London
interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Tranche Period, in the
approximate amount to be funded at the LIBO Rate and having a
maturity equal to such Tranche Period, divided by (b) one minus the
maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against
the Agent in respect of Eurocurrency liabilities, as defined in
Regulation D of the Board of Governors of the Federal Reserve
System as in effect from time to time (expressed as a decimal),
applicable to such Tranche Period plus (ii) 2.50% per
annum. The LIBO Rate shall be rounded, if necessary, to
the next higher 1/16 of 1%.
“Liquidity Termination
Date” means
October 15, 2009.
“Loss Horizon Ratio”
means, on any date of determination,
the percentage equal to (i) gross sales of the Originators in the
three calendar months then most recently ended, divided by (ii) the
Net Receivables Balance as of the last day of the calendar month
then most recently ended.
“Net Receivables
Balance” means,
at any time, the aggregate Outstanding Balance of all Eligible
Receivables at such time reduced by (i) the aggregate amount by
which the Outstanding Balance of all Eligible Receivables of each
Obligor and its Affiliates exceeds the Concentration Limit for such
Obligor, (ii) the aggregate amount of Unallocated Cash, and (iii)
the product of (a) 1.5 and (b) the aggregate amount of Accrued
Sales Discount.
“Purchase Limit”
means $75,000,000.
1.2. Each
of the following definitions is hereby inserted in the appropriate
alphabetical order in Exhibit I of the Existing
Agreement:
“Ralcorp Credit
Agreement” means that certain Credit Agreement, dated as of
July 18, 2008, among Ralcorp, as Borrower thereunder, the Lenders
party thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent, Swingline Lender and Issuing Bank thereunder, as amended,
restated or otherwise modified from time to time unless otherwise
specified herein and whether or not the same remains in
effect.
1.3. Section
9.1(c) of the Existing Agreement is hereby amended and restated in
its entirety to read as follows:
(c) (i)
Failure of the Master Servicer to pay any Indebtedness when due in
excess of $35,000,000 in principal amount ( “Material
Indebtedness” ); or the default by the Master
Servicer in the performance of any term, provision or condition
contained in any agreement under which any Material Indebtedness
was created or is governed, the effect of which is to cause, or to
permit the holder or holders of such Material Indebtedness to
cause, such Material Indebtedness to become due prior to its stated
maturity; or any Material Indebtedness of the Master Servicer 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; or
(ii) Failure of Seller to pay any Indebtedness
when due in an aggregate principal amount of $10,750 or more; or
the default by Seller in the performance of any term, provision or
condition contained in any agreem
