exhibit_10-1.htm


     

     

     

     

     

     

    Exhibit 10.1

     

     

                 
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.  

            	
              Amendments.

            


    

     

            
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:

     

     

     

     

     

    
      
         

      

      
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              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

     

    where:

     

    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%.

     

     

     

    
      
         

      

      
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    “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

     

     

     

    
      
         

      

      
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    (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 agreement under which any Indebtedness in an aggregate
principal amount of $10,750 or more 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
Indebtedness of Seller in an aggregate principal amount of $10,750 or more 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

     

    (iii) Failure of Ralcorp to observe any
covenant contained in Section 6.17 of the Ralcorp Credit Agreement without
regard to any subsequent amendment unless the Agent gives its written consent to
such amendment.

     

    1.4.           Section
9.1(f) of the Existing Agreement is hereby amended and restated in its entirety
to read as follows:

     

    (f)           As
at the end of any calendar month:

     

    (i)           the
3-month rolling average of the Delinquency Ratio shall exceed 5.0%;

     

    (ii)           the
3-month rolling average of the Default Ratio shall exceed 1.25%; or

     

    (iii)           the
3-month rolling average of the Dilution Ratio shall exceed 7.0%.

     

    1.5.           Article
X of the Existing Agreement is hereby amended by inserting at the end thereof
Section 10.4 as follows:

     

    Section
10.4          Accounting Based
Consolidation Event.

     

    (a)           If
an Accounting Based Consolidation Event shall at any time occur, then, upon
demand by the Agent, Seller shall pay to the Agent, for the benefit of the
relevant Affected Entity, such amounts as such Affected Entity reasonably
determines will compensate or reimburse such Affected Entity for any resulting
(i) fee, expense or increased cost charged to, incurred or otherwise suffered by
such Affected Entity, (ii) reduction in the rate of return on such Affected
Entity's capital or reduction in the amount of any sum received or receivable by
such Affected Entity or (iii) internal capital charge or other imputed cost
determined by such Affected Entity to be allocable to Seller or the transactions
contemplated in this Agreement in connection therewith.  Amounts under
this Section 10.4 may be demanded at any time without regard to the timing of
issuance of any financial statement by Conduit or by any Affected Entity; provided, that the
Agent shall have notified Seller of the occurrence of an Accounting Based
Consolidation Event within 30 days after the Agent has become aware of the
occurrence thereof; provided, further, that
Seller’s reimbursement liabilities in respect of an Account Based Consolidation
Event for any Accrual Period shall not exceed the Maximum Reimbursement Amount
in respect of such Accrual Period.

     

     

     

    
      
         

      

      
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    (b)           For
the purposes of this Section 10.4, the following terms shall have the following
meanings:

     

    “Accounting Based
Consolidation Event” means the consolidation, for financial and/or
regulatory accounting purposes, of all or any portion of the assets and
liabilities of Conduit that are subject to this Agreement or any other
Transaction Document with all or any portion of the assets and liabilities of an
Affected Entity.  An Accounting Based Consolidation Event shall be
deemed to occur on the date any Affected Entity shall acknowledge in writing
that any such consolidation of the assets and liabilities of Conduit shall
occur.

     

    “Affected
Entity” means (i) any Financial Institution, (ii) any insurance company,
bank or other funding entity providing liquidity, credit enhancement or back-up
purchase support or facilities to Conduit, (iii) any agent, administrator or
manager of Conduit, or (iv) any bank holding company in respect of any of the
foregoing.

     

    “Maximum
Reimbursement Amount” means, in respect of any Accrual Period, an amount
equal to the aggregate amount of Yield that would be payable to the Financial
Institutions for such Accrual Period if the Purchaser Interests were funded by
the Financial Institutions at a rate equal to the LIBO Rate for a Tranche Period
equal to such Accrual Period.

     

    1.6.           Article
XII of the Existing Agreement is hereby amended by inserting at the end thereof
Section 12.3 as follows:

     

    Section
12.3          Federal
Reserve.  Any Financial Institution may at any time pledge or
grant a security interest in all or any portion of its rights (including,
without  limitation, any Purchaser Interest and any rights to payment
of Capital and Yield) under this Agreement to secure obligations of such
Financial Institution to a Federal Reserve Bank, and the foregoing provisions of
this Article XII shall not apply to any such pledge or grant of a security
interest; provided
that no such pledge or grant of a security interest shall release a Financial
Institution from any of its obligations hereunder, or substitute any such
pledgee or grantee for such Financial Institution as a party
hereto.

     

    1.7.           Section
14.14 of the Existing Agreement is hereby amended and restated in its entirety
to read as follows:

     

    Section
14.14        Characterization.

     

    (a)           It
is the intention of the parties hereto that each purchase hereunder shall
constitute and be treated as an absolute and irrevocable sale, which purchase
shall provide the applicable Purchaser with the full benefits of ownership of
the applicable Purchaser Interest.  Except as specifically provided in
this Agreement, each sale of a Purchaser Interest hereunder is made without
recourse to Seller; provided,
however,
that (i) Seller shall be liable to each Purchaser and the Agent for all
representations, warranties, covenants and indemnities made by Seller pursuant
to the terms of this Agreement, and (ii) such sale does not constitute and is
not intended to result in an assumption by any Purchaser or the Agent or any
assignee thereof of any obligation of Seller or any Originator or any other
Person arising in connection with the Receivables, the Related Security, or the
related Contracts, or any other obligations of Seller or any
Originator.

     

     

     

    
      
         

      

      
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    (b)           In
addition to any ownership interest which the Agent may from time to time acquire
pursuant hereto, Seller hereby grants to the Agent for the ratable benefit of
the Purchasers a valid and perfected security interest in all of Seller’s right,
title and interest in, to and under all Receivables now existing or hereafter
arising, 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 prior to all other liens on and security interests
therein to secure the prompt and complete payment of the Aggregate
Unpaids.  The Agent and the Purchasers shall have, in addition to the
rights and remedies that they may have under this Agreement, all other rights
and remedies provided to a secured creditor under the UCC and other applicable
law, which rights and remedies shall be cumulative.

     

    (c)           If,
notwithstanding the intention of the parties expressed above, any sale or
transfer by Seller hereunder shall be characterized as a secured loan and not a
sale or such sale shall for any reason be ineffective or unenforceable (any of
the foregoing being a “Recharacterization”)
, then this Agreement shall be deemed to constitute a security agreement under
the UCC and other applicable law.  In the case of any
Recharacterization, Seller represents and warrants that each remittance of
Collections to the Agent or the Purchasers hereunder will have been (i) in
payment of a debt incurred in the ordinary course of business or financial
affairs and (ii) made in the ordinary course of business or financial
affairs.

     

    (d)           Seller
hereby authorizes the Agent to file a financing statement naming Seller as
debtor or seller that describes the collateral as “all assets whether now
existing or hereafter arising” or words of similar effect.

     

    1.8.           Each
of Exhibits III, IV and X and Schedule A to the Existing Agreement is hereby
amended and restated in its entirety to read as set forth in such Exhibit or
Schedule attached to this Amendment.

     

    1.9.           (a)  Each
reference to Bank One, NA (Main Office Chicago) in the Existing Agreement and
the other Transaction Documents is hereby deemed to refer to JPMorgan Chase
Bank, N.A., successor by merger to Bank One, NA (Main Office
Chicago).

     

     

     

    
      
         

      

      
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    (b)  Each
occurrence of “Bank One” in any defined term in the Existing Agreement and the
other Transaction Documents is hereby replaced by “JPMorgan”.

     

    (c)  The
definition of “Bank One” appearing in Exhibit I to the Existing Agreement is
hereby amended and restated in its entirety as follows:

     

    “JPMorgan”
means JPMorgan Chase Bank, N.A., successor by merger to Bank One, N.A. (Main
Office Chicago), in its individual capacity, and its successors.

     

    (d)  Each
reference to Falcon Asset Securitization Corporation, a Delaware corporation, as
“Conduit” in the Existing Agreement and the other Transaction Documents is
hereby deemed to refer to Falcon Asset Securitization Company LLC, a Delaware
limited liability company formerly known as Falcon Asset Securitization
Corporation.

     

    (e)  The
notice information applicable to JPMorgan Chase Bank in the Existing Agreement
and any other Transaction Document shall be as follows:

     

    10 South
Dearborn Street, Floor 13

    Chicago,
IL 60603

    Attn:  ABS
Conduit Portfolio Management

    Phone:  (312)
732-1845

    Fax:  (312)732-3600

     

    (f)  The
notice information applicable to Conduit in the Existing Agreement and any other
Transaction Document shall be as follows:

     

    c/o
JPMorgan Chase Bank, N.A.

    10 South
Dearborn Street, Floor 13

    Chicago,
IL 60603

    Attn:  ABS
Conduit Portfolio Management

    Phone:  (312)
732-1845

    Fax:  (312)732-3600

     

    2.           Representations.  In
order to induce the Agent and the Purchasers to agree to this Amendment, each
Seller Party hereby makes as of the date hereof each of the representations and
warranties contained in Section 5.1 of the Existing Agreement.

     

    3.           Condition
Precedent.  This Amendment shall become effective as of the
date hereof, upon satisfaction of all of the following conditions
precedent:

     

    3.1.           The
Agent shall have received counterparts of this Amendment, duly executed by each
of the other parties hereto.

     

    3.2.           The
Agent shall have received each of the documents listed on Exhibit I to that
certain Amendment No. 3 to Receivables Sale Agreement, dated as of the date
hereof, by and among the Originators (as defined therein), and Ralcorp
Receivables Corporation, a Nevada corporation, as Buyer thereunder.

     

     

     

    
      
         

      

      
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    3.3           The
receipt by each applicable Person of all fees that are described in the Fee
Letter and that are due and payable on or prior to the date hereof.

     

    4.           Miscellaneous.

     

    4.1.           CHOICE OF
LAW.  THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.

     

    4.2.           Binding
Effect.  This Amendment shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns
(including any trustee in bankruptcy and the Agent).

     

    4.3.           Counterparts;
Severability.  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, taken
together, shall constitute one and the same agreement.  Any provisions
of this Amendment which are prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.

     

    


    <Signature
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    IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date hereof.

    


    RALCORP HOLDINGS,
INC.,

    as
Master Servicer

    


    


    By:   /s/
S.
Monette                                                             

    Name:   
S. Monette

    Title:     
Corporate Vice President and Treasurer

    


    


    


    RALCORP RECEIVABLES
CORPORATION,

    as
Seller

    


    


    By:    /s/
S.
Monette                                                            

    Name:    
S. Monette

    Title:     
Treasurer

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    


    
      
        
          
             

          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


     

     

     

     

     

     

     

     

    
 

    FALCON
ASSET SECURITIZATION COMPANY LLC

    


    By:
JPMorgan Chase Bank, N.A., its attorney-in-fact

    


    


    By:   /s/
Joel
Gedroic                                                                          

    Name: 
 Joel Gedroic

    Title:    
Executive Director

    


    


    


    JPMORGAN CHASE BANK,
N.A.,

    individually
and as Agent

    


    


    By:   /s/
Joel
Gedroic                                                                          

    Name:  
 Joel Gedroic

    Title:     
Executive Director