Exhibit 10.5
Master Repurchase
Agreement
September 1996 Version
Dated as of April 14, 2023
Between: Flowers Foods, Inc.
and Coöperatieve Rabobank U.A., New York Branch
From time to time the parties hereto may enter into transactions in which one party (“Seller”) agrees to transfer to the other (“Buyer”) securities or other assets (“Securities”) against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Securities at a date certain or on demand, against the transfer of funds by Seller. Each such transaction shall be referred to herein as a “Transaction” and, unless otherwise agreed in writing, shall be governed by this Agreement, including any supplemental terms or conditions contained in Annex I hereto and in any other annexes identified herein or therein as applicable hereunder.
2
3
4
5
Seller shall be entitled to receive an amount equal to all Income paid or distributed on or in respect of the Securities that is not otherwise received by Seller, to the full extent it would be so entitled if the Securities had not been sold to Buyer. Buyer shall, as the parties may agree with respect to any Transaction (or, in the absence of any such agreement, as Buyer shall reasonably determine in its discretion), on the date such Income is paid or distributed either (i) transfer to or credit to the account of Seller such Income with respect to any Purchased Securities subject to such Transaction or (ii) with respect to Income paid in cash, apply the Income payment or payments to reduce the amount, if any, to be transferred to Buyer by Seller upon termination of such Transaction. Buyer shall not be obligated to take any action pursuant to the preceding sentence (A) to the extent that such action would result in the creation of a Margin Deficit, unless prior thereto or simultaneously therewith Seller transfers to Buyer cash or Additional Purchased Securities sufficient to eliminate such Margin Deficit, or (B) if an Event of Default with respect to Seller has occurred and is then continuing at the time such Income is paid or distributed.
Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged to Buyer as security for the performance by Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in, all of the Purchased Securities with respect to all Transactions hereunder and all Income thereon and other proceeds thereof.
Unless otherwise mutually agreed, all transfers of funds hereunder shall be in immediately available funds. All Securities transferred by one party hereto to the other party (i) shall be in suitable form for transfer or shall be accompanied by duly executed instruments of transfer or assignment in blank and such other documentation as the party receiving possession may reasonably request, (ii) shall be transferred on the book-entry system of a Federal Reserve Bank, or (iii) shall be transferred by any other method mutually acceptable to Seller and Buyer.
To the extent required by applicable law, all Purchased Securities in the possession of Seller shall be segregated from other securities in its possession and shall be identified as subject to this Agreement. Segregation may be accomplished by appropriate identification on the books and records of the holder, including a financial or securities intermediary or a clearing corporation. All of Seller’s interest in the Purchased Securities shall pass to Buyer on the Purchase Date and, unless otherwise agreed by Buyer and Seller, nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with the Purchased Securities or otherwise selling, transferring, pledging or hypothecating the Purchased Securities, but no such transaction shall relieve Buyer of its obligations to transfer Purchased Securities to Seller pursuant to Paragraph 3, 4 or 11 hereof, or of Buyer’s obligation to credit or pay Income to, or apply Income to the obligations of, Seller pursuant to Paragraph 5 hereof.
6
Required Disclosure for Transactions in Which the Seller Retains Custody of the Purchased Securities Seller is not permitted to substitute other securities for those subject to this Agreement and therefore must keep Buyer’s securities segregated at all times, unless in this Agreement Buyer grants Seller the right to substitute other securities. If Buyer grants the right to substitute, this means that Buyer’s securities will likely be commingled with Seller’s own securities during the trading day. Buyer is advised that, during any trading day that Buyer’s securities are commingled with Seller’s securities, they [will]* [may]** be subject to liens granted by Seller to [its clearing bank]* [third parties]** and may be used by Seller for deliveries on other securities transactions. Whenever the securities are commingled, Seller’s ability to resegregate substitute securities for Buyer will be subject to Seller’s ability to satisfy [the clearing]* [any]** lien or to obtain substitute securities. * Language to be used under 17 C.F.R. ß403.4(e) if Seller is a government securities broker or dealer other than a financial institution. ** Language to be used under 17 C.F.R. ß403.5(d) if Seller is a financial institution. |
Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing, in the form of an annex hereto or otherwise, in advance of any Transaction by the other party hereto, as agent for a disclosed principal), (iii) the person signing this Agreement on its behalf is duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and (v) the execution, delivery
7
and performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, bylaw or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected. On the Purchase Date for any Transaction Buyer and Seller shall each be deemed to repeat all the foregoing representations made by it.
In the event that (i) Seller fails to transfer or Buyer fails to purchase Purchased Securities upon the applicable Purchase Date, (ii) Seller fails to repurchase or Buyer fails to transfer Purchased Securities upon the applicable Repurchase Date, (iii) Seller or Buyer fails to comply with Paragraph 4 hereof, (iv) Buyer fails, after one business day’s notice, to comply with Paragraph 5 hereof, (v) an Act of Insolvency occurs with respect to Seller or Buyer, (vi) any representation made by Seller or Buyer shall have been incorrect or untrue in any material respect when made or repeated or deemed to have been made or repeated, or (vii) Seller or Buyer shall admit to the other its inability to, or its intention not to, perform any of its obligations hereunder (each an “Event of Default”):
8
Unless otherwise provided in Annex I, the parties acknowledge and agree that (1) the Securities subject to any Transaction hereunder are instruments traded in a recognized market, (2) in the absence of a generally recognized source for prices or bid or offer quotations for any Security, the nondefaulting party may establish the source therefor in its sole discretion and (3) all prices, bids and offers shall be determined together with accrued Income (except to the extent contrary to market practice with respect to the relevant Securities).
9
10
Buyer and Seller acknowledge that, and have entered hereinto and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transactions hereunder and (iii) that payments, deliveries and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted.
Any and all notices, statements, demands or other communications hereunder may be given by a party to the other by mail, facsimile, telegraph, messenger or otherwise to the address specified in Annex II hereto, or so sent to such party at any other place specified in a notice of change of address hereafter received by the other. All notices, demands and requests hereunder may be made orally, to be confirmed promptly in writing, or by other communication as specified in the preceding sentence.
This Agreement shall supersede any existing agreements between the parties containing general terms and conditions for repurchase transactions. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
11
This Agreement shall be governed by the laws of the State of New York without giving effect to the conflict of law principles thereof.
No express or implied waiver of any Event of Default by either party shall constitute a waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall constitute a waiver of its right to exercise any other remedy hereunder. No modification or waiver of any provision of this Agreement and no consent by any party to a departure herefrom shall be effective unless and until such shall be in writing and duly executed by both of the parties hereto. Without limitation on any of the foregoing, the failure to give a notice pursuant to Paragraph 4(a) or 4(b) hereof will not constitute a waiver of any right to do so at a later date.
12
The parties acknowledge that they have been advised that:
[Signature Pages Follow]
13
COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH | |
| |
| |
By: | /s/ Jinyang Wang |
Name: | Jinyang Wang |
Title: | Executive Director |
Date: |
|
By: | /s/ Erin M. Scott |
Name: | Erin M. Scott |
Title: | Executive Director |
Date: |
|
|
|
[SIGNATURE PAGES CONTINUE ON FOLLOWING PAGE] |
[Signature Page to 1996 SIFMA Master Repurchase Agreement]
FLOWERS FOODS, INC. | |
| |
| |
By: | /s/ R. Steve Kinsey |
Name: | R. Steve Kinsey |
Title: | Chief Financial Officer and Chief Accounting Officer |
Date: |
|
|
|
[Signature Page to 1996 SIFMA Master Repurchase Agreement]
Annex I
Supplemental Terms and Conditions
This Annex I forms a part of the 1996 SIFMA Master Repurchase Agreement dated as of April 14, 2023 (the “SIFMA Master”, and as amended by this Annex I, this or the “Agreement”) between Flowers Foods, Inc. (“Flowers”), as Seller under the Framework Agreement (as defined below), and Coöperatieve Rabobank U.A., New York Branch (“Rabobank”) as Buyer under the Framework Agreement. Subject to the provisions of Paragraph 1 of this Annex I, (a) capitalized terms used but not defined in this Annex I shall have the meanings ascribed to them in the SIFMA Master, and (b) aside from this Annex I, including all exhibits and schedules attached hereto and thereto, no other Annexes or Schedules thereto shall form a part of the SIFMA Master or be applicable thereunder.
of this Annex I;
-2-
-3-
“Transactions hereunder shall terminate upon the earlier of (i) the date determined pursuant to the definition of Repurchase Date (without regard to this Paragraph 3(c)) or (ii) a date specified upon demand by Seller, which demand shall be made by Seller in writing no later than 5:00 p.m. (New York City time) on the third Business Day prior to the Business Day on which such termination will be effective. On such earlier date, termination of the Transaction will be effected by transfer to Seller of the Purchased Securities (except as otherwise provided in Paragraph 7 of Annex I) against the payment of the related Repurchase Price by Seller (which may, to the extent permitted under Paragraph 12 of Annex I hereto, be netted against the Purchase Price payable in respect of any new Transaction) in accordance with the Framework Agreement.”
-4-
“(a) Seller hereby grants to Buyer a security interest in all of Seller’s right, title, benefit and interest in and to all Purchased Securities applicable to each Transaction entered into under this Agreement, all Related Security with respect to such Purchased Securities and all Related Contract Rights with respect to such Purchased Securities, whether now existing or hereafter arising, and all proceeds thereof (collectively, the “Collateral”), to secure the Seller’s obligations under the Transaction Agreements (the “Secured Obligations”). This Agreement shall create a continuing security interest in the Collateral (including all Roll-Over Securities notwithstanding any repurchase by Seller of any such Roll-Over Security under an expiring Transaction and simultaneous purchase by Buyer of such Roll-Over Security under a subsequent Transaction) and shall remain in full force and effect until such security interest is released pursuant to (and to the extent provided in) Paragraph 6(c) below or until all unpaid Repurchase Price with respect to outstanding Transactions under this Agreement have been indefeasibly paid in full (without application of any set off or netting) (other than contingent indemnification claims). Buyer shall have, with respect to the Collateral, in addition to all other rights and remedies available to Buyer under the Transaction Agreements, all the rights and remedies of a secured party under the Uniform Commercial Code as in effect in any applicable jurisdiction.
(b) Seller hereby authorizes Buyer to file such financing statements (and continuation statements with respect to such financing statements when applicable) as may be necessary to perfect the security interest granted pursuant to the foregoing Paragraph 6(a) under the Uniform Commercial Code of the relevant jurisdiction (which financing statements may describe the collateral as “All of Debtor’s right, title, benefit and interest in and to all Purchased Securities, together with all Related Security and Related Contract Rights with respect to such Purchased Securities, whether now existing or hereafter arising, and all proceeds thereof.”).
-5-
(c) The security interest granted pursuant to the foregoing Paragraph 6(a) in connection with any Transaction shall be released by Buyer upon the termination of each Transaction Agreement in accordance with its terms. Buyer hereby agrees, at Seller’s expense, to (x) file appropriate financing statement amendments to reflect such release and (y) execute and deliver such other documents as Seller may reasonably request to further evidence such release.”
“Notwithstanding anything herein to the contrary, unless an Event of Default shall have occurred and be continuing, Buyer shall be prohibited from engaging in repurchase transactions with the Purchased Securities or otherwise selling, transferring, pledging or granting any liens or encumbrances on, or hypothecating the Purchased Securities.”
-6-
“If Buyer exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, Buyer may at its discretion and with such notice to Seller as may be required by applicable law, immediately (i) take possession of any or all Purchased Securities subject to any outstanding Transactions, at its discretion, (ii) deliver a Shifting Control Notice under any Control Agreement, (iii) subject to the requirements of applicable law, sell any or all such Purchased Securities, at such price or prices as Buyer may reasonably deem satisfactory, and apply the proceeds thereof to amounts owing by Seller hereunder or under any of the other Transaction Agreements (it being understood, for the avoidance of doubt, that Seller shall remain liable to Buyer for the excess of such amounts owing by Seller over any sale proceeds so applied); and (iv) generally exercise any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law.”
“This Agreement shall terminate on the Facility Expiration Date, except that this Agreement shall, notwithstanding such termination, remain applicable to any Transactions then outstanding.”
-7-
-8-
EXHIBIT A
FORM OF CONFIRMATION
Dated: |
| [Date] |
To: |
| Flowers Foods, Inc., as Seller (“Counterparty”) |
|
|
|
|
| [_____] |
|
| [_____] |
|
| [_____] |
|
|
|
Attention: |
| Documentation |
|
| Email: [ ] |
|
|
|
From: |
| Coöperatieve Rabobank U.A., New York Branch (“Rabobank”) |
|
|
|
|
| Tel: |
|
| Fax: |
|
|
|
Re: |
| Confirmation of a Repurchase Transaction |
Dear Flowers Foods, Inc.:
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions of the above referenced transaction entered into between Counterparty and Rabobank on the Purchase Date specified below (the “Transaction”).
This Confirmation constitutes a “Confirmation” as referred to in the Master Receivables Financing Agreement specified below. The definitions and provisions contained in the Master Receivables Financing Agreement are incorporated into this Confirmation. Subject to the proviso to the definition of Repurchase Price set forth in the Master Receivables Financing Agreement, in the event of any inconsistency between the Master Receivables Financing Agreement and this Confirmation, this Confirmation will govern.
The terms of the particular Transaction to which this Confirmation relates are as follows:
Purchase Date: |
| [Date] |
Purchase Price: |
| $[ ] |
Buyer: |
| Rabobank |
Seller: |
| Counterparty |
Purchased Securities: |
| Set forth on attached Portfolio Report |
Pricing Rate: |
| The rate set forth on the attached Pricing Schedule under the heading “All-in Rate” that appears in the row immediately above the reference to “Global Projected Interest” or “Projected Global Interest”, as the case may be |
Repurchase Date: |
| [Date] |
Repurchase Price: |
| The sum of (x) the Purchase Price plus (y) the Price Differential |
Price Differential |
| The amount set forth on the attached Pricing Schedule as the “Global Projected Interest” or “Projected Global Interest”, as the case may be, on the date that is the Repurchase Date |
[Remainder of page intentionally left blank]
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us by electronic mail.
Very truly yours,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH
By: |
|
| Name: |
| Title: |
By: |
|
| Name: |
| Title: |
Confirmed as of the date first above written:
FLOWERS FOODS, INC.
By: |
|
| Name: |
| Title: |
EXHIBIT B
FORM OF PRICING SCHEDULE
(EXPIRING TRANSACTION)
EXHIBIT C
FORM OF PRICING SCHEDULE
(NO EXPIRING TRANSACTION)