EX-10.1 2 flo-ex101_185.htm EX-10.1

Exhibit 10.1

FIFTH AMENDMENT TO
RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT

THIS FIFTH AMENDMENT TO RECEIVABLES LOAN, SECURITY AND SERVICING AGREEMENT dated as of September 28, 2017 (this “Amendment”) is entered into among FLOWERS FINANCE II, LLC, a Delaware limited liability company (the “Borrower”), FLOWERS FOODS, INC., a Georgia corporation (the “Servicer”), NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V., COÖPERATIEVE RABOBANK U.A. (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank”), as Facility Agent for the Nieuw Amsterdam Lender Group and as a Committed Lender, PNC BANK, NATIONAL ASSOCIATION, as Facility Agent for the PNC Bank Lender Group and as a Committed Lender, and COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH (f/k/a Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank”, New York Branch), as administrative agent (the “Administrative Agent”) for each of the Lenders.

RECITALS

WHEREAS, reference is made to that certain Receivables Loan, Security and Servicing Agreement dated as of July 17, 2013, as amended by First Amendment to Receivables Loan, Security and Servicing Agreement dated as of August 7, 2014, by Second Amendment to Receivables Loan, Security and Servicing Agreement dated as of December 17, 2014, by Third Amendment and Waiver to Receivables Loan, Security and Servicing Agreement dated as of August 20, 2015 and by Fourth Amendment to Receivables Loan, Security and Servicing Agreement dated as of September 30, 2016 (as so amended, the “Existing Loan Agreement” and, as amended by this Amendment and as otherwise amended, supplemented or modified from time to time, the “Loan Agreement”) among the parties to this Amendment. Unless otherwise provided elsewhere herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Loan Agreement; and

WHEREAS, the parties to this Amendment have agreed to amend the Existing Loan Agreement, all on the terms and subject to the conditions set forth in this Amendment;

NOW, THEREFORE, the parties to this Amendment hereby agree as follows:

SECTION 1.Amendments to Existing Loan Agreement. Effective as of the Effective Date (as defined below), subject to the satisfaction of the conditions precedent set forth in Section 2 below, the Existing Loan Agreement is hereby amended as follows:

(a)effective as of first day of the September 2017 Monthly Period, the definition of “Accrual Period” appearing in Annex I to the Existing Loan Agreement is hereby amended and restated as follows:

“Accrual Period” means each Monthly Period; provided that the first Accrual Period shall begin on and include the Closing Date and end on and include the last day of the first Monthly Period and the last Accrual Period shall begin on and include the first day of the last Monthly Period and end on but exclude the last Settlement Date.

(b)the definition of “Facility Termination Date” appearing in Annex I to the Existing Loan Agreement is hereby amended and restated as follows:

“Facility Termination Date” means the earlier to occur of September 28, 2019 and the Early Termination Date.

(c)Annex I to the Existing Loan Agreement is hereby amended by adding the following definitions in the appropriate alphabetical order:

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Company Party concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended.

(d)Section 4.01 of the Existing Loan Agreement is hereby amended by adding the following as a new subsection (y) at the end thereof:

(y) Anti-Corruption Laws. Policies and procedures have been implemented and maintained by or on behalf of the Borrower and the Company Parties that are designed to achieve compliance by the Company Parties and their respective directors, officers, employees and agents with Anti-Corruption Laws, and, to the knowledge of the Borrower, the Company Parties and their respective officers, employees, directors and agents acting in any capacity in connection with or directly benefitting from the facility established hereby, are in compliance with Anti-Corruption Laws. None of the Company Parties has violated, been found in violation of or is under investigation by any governmental authority for possible violation of any Anti-Corruption Laws.

(e)Section 5.01 of the Existing Loan Agreement is hereby amended by adding the following as a new subsection (v) at the end thereof:

(v) Anti-Corruption Laws. Policies and procedures will be maintained and enforced by or on behalf of the Borrower and the Company Parties that are designed to promote and achieve compliance, by the Company Parties and their respective directors, officers, employees and agents with Anti-Corruption Laws.

SECTION 2.Conditions Precedent. The amendments set forth in Section 1 above shall become effective as of the date hereof (the “Effective Date”) upon (a) the receipt by the Administrative Agent of counterpart signature pages to this Amendment executed by each of the parties to this Amendment, (b) the receipt by the Administrative Agent of counterpart signature pages to the Amendment Fee Letter dated as of the date hereof (the “Amendment Fee Letter”) between the Borrower and the Administrative Agent executed by each of the parties thereto, (c) the receipt by each Committed Lender of the amendment fee as set forth in the Amendment Fee Letter and (d) the receipt by the Administrative Agent of officer’s certificates from each of the Borrower and Servicer certifying the identity and signatures of the officers thereof authorized to execute, deliver and perform this Amendment and the other Transaction Documents.

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SECTION 3.Representations and Warranties of the Borrower. Each of the Borrower and the Servicer hereby represents and warrants to each Lender, each Facility Agent and the Administr ative Agent that, on and as of the date hereof:

(a)this Amendment has been duly executed and delivered by it, and this Amendment and the Existing Loan Agreement as amended hereby constitute, the legal, valid and binding obligations of it enforceable against it in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law); and

(b)the representations and warranties of it contained in the Loan Agreement or in the other Transaction Documents to which it is a party are true and correct in all material respects as of the date hereof, with the same effect as though made on such date (after giving effect to this Amendment), except to the extent such representation or warranty expressly relates only to a prior date; and

(c)immediately after giving effect to this Amendment, no Amortization Event or Event of Default shall have occurred and be continuing.

SECTION 4.Miscellaneous.

(a)This Amendment may be amended, modified, terminated or waived only as provided in Section 10.05 of the Loan Agreement.

(b)Except as expressly modified as contemplated hereby, the Loan Agreement is hereby confirmed to be in full force and effect in accordance with its terms and is hereby ratified and confirmed. This Amendment is intended by the parties to constitute an amendment and modification to, and otherwise to constitute a continuation of, the Loan Agreement, and is not intended by any party and shall not be construed to constitute a novation thereof or of any obligation of any party thereunder. This Amendment shall constitute a Transaction Document.

(c)This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns under the Loan Agreement.

(d)This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed signature page to this Amendment by facsimile transmission or other electronic image scan transmission shall be effective as delivery of a manually signed counterpart of this Amendment.

(e)The provisions of this Amendment are intended to be severable. If any provision of this Amendment shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability of such provision in any other jurisdiction or the remaining provisions hereof in any jurisdiction.

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(f)THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in Ne w York City in any action or proceeding arising out of or relating to this Amendment, and each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or, to th e extent permitted by law, in such Federal court. The parties hereto hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties hereto agre e that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(g)EACH OF THE BORROWER, THE SERVICER, THE ADMINISTRATIVE AGENT, THE FACILITY AGENTS AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OF THE OTHER TRANSACTION DOCUMENTS OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.

[Signature pages follow]

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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

| COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent
| By: | /s/ THOMAS MCNAMARA
|  | Name: Thomas McNamara
|  | Title: Vice President

| By: | /s/ CHRISTOPHER LEW
|  | Name: Christopher Lew
|  | Title: Executive Director

| COÖPERATIEVE RABOBANK U.A., as Committed Lender and Nieuw Amsterdam Facility Agent
| By: | /s/ JENNIFER VERVOORN
|  | Name: Jennifer Vervoorn
|  | Title: Director

| By: | /s/ E. VAN ESVELD
|  | Name: E. van Esveld
|  | Title: Managing Director

| NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V.
| By: | /s/ E.M.VAN ANKEREN
|  | Name: E.M. van Ankeren
|  | Title: Managing Director

| PNC BANK, NATIONAL ASSOCIATION, as Committed Lender and PNC Bank Facility Agent
| By: | /s/ MICHAEL BROWN
|  | Name: Michael Brown
|  | Title: Senior Vice President

| FLOWERS FINANCE II, LLC, as Borrower
| By: | /s/ KARYL H. LAUDER
|  | Name: Karyl H. Lauder
|  | Title: Treasurer

| FLOWERS FOODS, INC., as Servicer
| By: | /s/ R. STEVE KINSEY
|  | Name: R. Steve Kinsey
|  | Title: Chief Financial Officer and Chief Administrative Officer