Exhibit 10.1
AMENDMENT NO. 3 TO FIFTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND LIMITED WAIVER
This Amendment No. 3 to Fifth
Amended and Restated Receivables Purchase Agreement and Limited
Waiver (this “ Amendment ”) is entered into as
of March 31, 2008, 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
”).
RECITALS :
WHEREAS, in connection with certain
mergers and acquisitions the Sellers, the Financial Institutions,
the Companies, the Servicers and the Agent as parties to the
Receivables Purchase Agreement desire to amend the Receivables
Purchase Agreement as described herein, and waive certain rights
and liabilities thereunder, effective as of the date hereof.
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 Definitions.
(a) Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth for such terms
in, or incorporated by reference into, the Receivables Purchase
Agreement, as amended hereby.
(b) The following capitalized
terms used herein shall have the respective meanings set forth
below:
Amendment no. 3 to fifth
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receivables purchase agreement and limited waiver
“ Non-Collection Account
” means each concentration account, depository account,
lock-box account or similar account in which any Collections are
collected or deposited and which is not governed by any Collection
Account Agreement with a Collection Bank.
“ Non-Collection Bank
” means Bank of America, NA in its capacity as a bank holding
account no 100101176809 with Pet O’Fallon as depositor.
“ Non-Lock-Box ”
means each locked postal box with respect to which a bank which has
not executed a Collection Account Agreement has been granted access
for the purposes of retrieving and processing payments made on the
Receivables.
Section 2. Acknowledgement
of Merger between Country Fresh, LLC and Melody Farms, LLC.
Subject to the terms and conditions set forth herein, each party
hereto hereby acknowledges that all of the rights, obligations,
liabilities and duties of Melody Farms, LLC under the Transaction
Documents shall be and remain the rights, obligation, liabilities
and duties of Country Fresh, LLC.
Section 3. Amendment
to Receivables Purchase Agreement . Subject to the terms and
conditions herein and immediately upon the satisfaction of each of
the conditions precedent set forth in Section 7 of this
Amendment, the Receivables Purchase Agreement is amended as
follows:
(a) Exhibit IV to the
Receivables Purchase Agreement is hereby amended and restated in
its entirety to read as set forth on Annex A hereto.
(b) Schedule D to the
Receivables Purchase Agreement is hereby amended and restated in
its entirety to read as set forth on Annex E hereto.
(c) Schedule F to the
Receivables Purchase Agreement is hereby amended and restated in
its entirety to read as set forth on Annex B hereto.
(d) The definition of
“Liquidity Termination Date” is hereby amended and
restated in its entirety to read as set forth immediately
below.
““ Liquidity
Termination Date ” means May 30, 2008 (as may be
extended for an additional period of time up to 364 days from
time to time in accordance with Section 1.5
hereof).”
(e) Section 1.5(c) of the
Receivables Purchase Agreement is hereby amended and restated in
its entirety to read as set forth immediately below:
“ Term-out Period Account
Funded Advances . On the Scheduled Liquidity Termination Date
on which the Nonrenewing Financial Institutions make the initial
deposit into the related Term-out Period Accounts in accordance
with Section 1.5(b) , the Agent shall withdraw from
each Financial Institution’s Term-out Period Account, such
amount as shall be required to purchase, and shall cause such funds
to be immediately applied to purchase, such
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receivables purchase agreement and limited waiver
Financial Institution’s Pro Rata Share of the Capital of such
Financial Institution’s related Company, in accordance with
the Funding Agreement between such Financial Institution and such
Company, whereupon the Company Purchase Limit for such Financial
Institution’s related Company shall be zero. The Agent shall
use its reasonable best efforts to deposit such funds in the
Facility Account no later than 12:00 noon (Chicago time), and in
any event no later than 2:00 pm (Chicago time). During the Term-out
Period, all additional Incremental Purchases to be made by any
Nonrenewing Financial Institution pursuant to
Section 1.2 shall be made by such Nonrenewing Financial
Institution by withdrawing funds from such Financial
Institution’s Term-out Period Account.”
Section 4 . Limited
Waiver . (a) Change in Corporate Structure . Subject to
the terms and conditions set forth herein, the Agent, at the
direction of the Required Purchasers, hereby waives any
Amortization Event or Potential Amortization Event that has
occurred prior to the date hereof with respect to
Section 7.2(a)(i) of the Receivables Purchase Agreement solely
as a result of the failure of a Seller Party to give the Agent at
least 30 days’ prior written notice of a change in name,
identity, organizational structure or jurisdiction of location in
connection with the merger of Melody Farms, LLC and Country Fresh,
LLC.
(b) Breaches under other
Transaction Documents . Subject to the terms and conditions set
forth herein, the Agent, at the direction of the Required
Purchasers, hereby waives any Amortization Event or Potential
Amortization Event that has occurred prior to the date hereof
solely with respect to:
(i) Section 4.2(a)
of the Suiza Receivables Sale Agreement solely as a result of the
failure of any Originator to give Dairy Group at least
30 days’ prior written notice of a change in name,
identity, organizational structure or jurisdiction of location in
connection with the merger of Melody Farms, LLC and Country Fresh,
LLC;
(ii) Section 4.1(c)
and Section 4.2(d) of the Suiza Receivables Sale Agreement
solely as a result of the merger of Melody Farms, LLC with Country
Fresh, LLC;
(iii) Section 4.2(b)
of the Suiza Receivables Sale Agreement solely as a result of the
failure of an Originator to give the Buyer at least
10 days’ prior written notice of any addition,
termination or change to the Collection Accounts or any change in
the instructions to Obligors regarding payments to be made into any
Lock-Box or Collection Account, provided, however that ,
such limited waiver granted herein shall be valid solely in respect
of a failure which arises solely as a direct result of the use of
any Non-Collection Account listed on Annex C as if it were a
Collection Account, Non-Lock-Box listed on Annex C as if it were a
Lock-Box or Non-Collection Bank listed on Annex C as if it were a
Collection Bank, and shall be valid for only sixty (60) days
from the date hereof;
(iv) the
failure of an Originator to perform or observe the affirmative
covenants under Section 4.1(i) (first sentence only) and
Section 4.1(k) of the Suiza Receivables Sale Agreement and
such failure shall have continued for five (5) consecutive
Business Days, provided, however that , such limited waiver
granted herein shall be valid solely in respect of a failure which
arises solely as a direct result of the use of any Non-Collection
Account listed on Annex C as if it were a Collection Account,
Non-Lock-Box listed on Annex C as if it were a Lock-Box or
Non-Collection Bank listed on Annex C as if it were a Collection
Bank, and shall be valid for only sixty (60) days from the
date hereof;
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(v) the
breach by any Originator of the representations and warranties
contained in Section 2.1(l) (first and second sentences only) of
the Suiza Receivables Sale Agreement, provided, however that
, such limited waiver granted herein shall be valid solely in
respect of a failure which arises solely as a direct result of the
use of any Non-Collection Account listed on Annex C as if it were a
Collection Account, Non-Lock-Box listed on Annex C as if it were a
Lock-Box or Non-Collection Bank listed on Annex C as if it were a
Collection Bank, and shall be valid for only sixty (60) days
from the date hereof;
(vi) Section 4.2(b)
of the Dean Receivables Sale Agreement solely as a result of the
failure of an Originator to give the Buyer at least
10 days’ prior written notice of any addition,
termination or change to the Collection Accounts or any change in
the instructions to Obligors regarding payments to be made into any
Lock-Box or Collection Account, provided, however that ,
such limited waiver granted herein shall be valid solely in respect
of a failure which arises solely as a direct result of the use of
any Non-Collection Account listed on Annex C as if it were a
Collection Account, Non-Lock-Box listed on Annex C as if it were a
Lock-Box or Non-Collection Bank listed on Annex C as if it were a
Collection Bank, and shall be valid for only sixty (60) days
from the date hereof;
(vii) the
failure of an Originator to perform or observe the affirmative
covenants under Section 4.1(i) (first sentence only) and
Section 4.1(k) of the Dean Receivables Sale Agreement and such
failure shall have continued for five (5) consecutive Business
Days, provided, however that , such limited waiver granted
herein shall be valid solely in respect of a failure which arises
solely as a direct result of the use of any Non-Collection Account
listed on Annex C as if it were a Collection Account, Non-Lock-Box
listed on Annex C as if it were a Lock-Box or Non-Collection Bank
listed on Annex C as if it were a Collection Bank, and shall be
valid for only sixty (60) days from the date hereof;
(viii) the
breach by any Originator of the representations and warranties
contained in Section 2.1(l) (first and second sentences only) of
the Dean Receivables Sale Agreement, provided, however that
, such limited waiver granted herein shall be valid solely in
respect of a failure which arises solely as a direct result of the
use of any Non-Collection Account listed on Annex C as if it were a
Collection Account, Non-Lock-Box listed on Annex C as if it were a
Lock-Box or Non-Collection Bank listed on Annex C as if it were a
Collection Bank, and shall be valid for only sixty (60) days
from the date hereof.
(c) Waivers under Sale
Agreements . Subject to the terms and conditions set forth
herein, the Agent, at the direction of the Required Purchasers,
hereby waives any Amortization Event or Potential Amortization
Event that has occurred on the date hereof, solely as a result of
the limited waivers granted under (i) Amendment No. 7 to
the Amended and Restated Receivables Sale Agreement and Limited
Waiver, and (ii) Amendment No. 6 to Dean Receivables Sale
Agreement and Limited Waiver, dated as of the date hereof.
(d) Change in Collection
Accounts . Subject to the terms and conditions set forth
herein, the Agent, at the direction of the Required Purchasers,
hereby waives any Amortization Event or Potential Amortization
Event that has occurred prior to the date hereof, with respect to
Section 7.2(b) of the Receivables Purchase Agreement solely as
a result of the failure of a Seller Party to give the Agent at
least 10 days’ prior written notice of addition,
termination or change of Collection Accounts or any change in the
instructions to Obligors regarding payments to be made into any
Lock-Box or Collection Account, provided, however that ,
such limited waiver
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granted
herein shall be valid solely in respect of a failure which arises
solely as a direct result of the use of any Non-Collection Account
listed on Annex C as if it were a Collection Account, Non-Lock-Box
listed on Annex C as if it were a Lock-Box or Non-Collection Bank
listed on Annex C as if it were a Collection Bank, and shall be
valid for only sixty (60) days from the date hereof.
(e)
Collection Account Agreements . Subject to the terms and
conditions set forth herein, the Agent, at the direction of the
Required Purchasers, hereby waives any Amortization Event or
Potential Amortization Event that has occurred prior to the date
hereof solely as a result of the failure of any Seller Party to
perform or observe the affirmative covenants under Section 7.1(j)
of the Receivables Purchase Agreement and such failure shall have
continued for five (5) consecutive Business Days, provided,
however that , such limited waiver granted herein shall be
valid solely in respect of a failure which arises solely as a
direct result of the use of any Non-Collection Account listed on
Annex C as if it were a Collection Account, Non-Lock-Box listed on
Annex C as if it were a Lock-Box or Non-Collection Bank listed on
Annex C as if it were a Collection Bank, and shall be valid for
only sixty (60) days from the date hereof.
(f)
Breaches of Representations and Warranties . Subject to the
terms and conditions set forth herein, the Agent, at the direction
of the Required Purchasers, hereby waives any Amortization Event or
Potential Amortization Event that has occurred prior to the date
hereof, solely with respect to the breach by any Seller of the
representations and warranties contained in Section 5.1(l)
(first and second sentences only) provided, however that ,
such limited waiver granted herein shall be valid solely in respect
of a failure which arises solely as a direct result of the use of
any Non-Collection Account listed on Annex C as if it were a
Collection Account, Non-Lock-Box listed on Annex C as if it were a
Lock-Box or Non-Collection Bank listed on Annex C as if it were a
Collection Bank, and shall be valid for only sixty (60) days
from the date hereof.
Section 5 . Deemed Amendment of Exhibit IV
. On any date occurring prior to the expiry of sixty (60) days
from the date hereof, that all Non-Collection Accounts shall have
become Collection Accounts, and all Non-Collection Banks shall have
become Collection Banks and all Non-Lock-Boxes shall have become
Lock-Boxes, the parties to this agreement agree that
Exhibit IV to the Receivables Purchase Agreement shall be
deemed amended and restated to read in its entirety as set forth on
Annex D hereof.
Section 6. Representations and Warranties . Each
of the Seller Parties represents and warrants on the date hereof:
(a) that it does not use or cause to be used any
Non-Collection Account, Non-Collection Bank or any Non-Lock-Box
other than those listed on Annex C hereof; and (b) that it
does not use or cause to be used any Collection Account, any
Collection Bank or any Lock-Box other than those listed on Annex A
hereof.
Section 7 . Conditions to Effectiveness of
Amendment . This Amendment shall become effective as of the
date hereof upon the satisfaction of the following conditions
precedent:
(a)
Documentation . The Agent shall have received each of the
documents listed immediately below, each in form and substance
satisfactory to the Agent.
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(i) Executed
copies of this Amendment;
(ii) Executed
copies of Amendment No. 7 to the Amended and Restated
Receivables Sale Agreement and Limited Waiver, dated as of the date
hereof;
(iii) Executed
copies of Amendment No. 6 to Dean Receivables Sale Agreement
and Limited Waiver.
(b) Representations and
Warranties . (i) As of the date hereof, both before and
after giving effect to this Amendment, except as otherwise set
forth herein, all of the representations and warranties contained
in this Amendment, the Receivables Purchase Agreement and in each
other Transaction Document shall be true and correct as though made
on and as of the date hereof (and by its execution hereof, each
Seller shall be deemed to have represented and warranted
such).
(c) No Amortization Event or
Potential Amortization Event . As of the date hereof, both
before and after giving effect to this Amendment, no Amortization
Event or Potential Amortization Event shall have occurred and be
continuing which has not been expressly waived by this Amendment
(and by its execution hereof, each Seller shall be deemed to have
represented and warranted such).
Section 8.
Miscellaneous .
(a)
Effect; Ratification . The amendments and waivers set forth
herein are effective solely for the purposes set forth herein and
shall be limited precisely as written, and shall not be deemed to
(i) be a consent to any amendment, waiver or modification of
any other term or condition of the Receivables Purchase Agreement
or of any other instrument or agreement referred to therein; or
(ii) prejudice any right or remedy which the Companies, the
Financial Institutions or the Agent may now have or may have in the
future under or in connection with the Receivables Purchase
Agreement or any other instrument or agreement referred to therein.
Each reference in the Receivables Purchase Agreement to “this
Agreement,” “herein,” “hereof” and
words of like import and each reference in the other Transaction
Documents to the “Receivables Purchase Agreement” or to
the “Purchase Agreement” or to the Receivables Purchase
Agreement shall mean the Receivables Purchase Agreement, as amended
and modified hereby. This Amendment shall be construed in
connection with and as part of the Receivables Purchase Agreement
and all terms, conditions, representations, warranties, covenants
and agreements set forth in the Receivables Purchase Agreement and
each other instrument or agreement referred to therein, except as
herein amended, waived or modified, are hereby ratified and
confirmed and shall remain in full force and effect.
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(b)
Transaction Documents . This Amendment is a Transaction
Document executed pursuant to the Receivables Purchase Agreement
and shall be construed, administered and applied in accordance with
the terms and provisions thereof.
(c)
Costs, Fees and Expenses . Each Seller agrees to reimburse
the Agent and the Purchasers upon demand for all costs, fees and
expenses (including the reasonable fees and expenses of counsels to
the Agent and the Purchasers) incurred in connection with the
preparation, execution and delivery of this Amendment.
(d)
Counterparts . This Amendment may be executed in any number
of counterparts, each such counterpart constituting an original and
all of which when taken together shall constitute one and the same
instrument.
(e)
Severability . Any provision contained in this Amendment
which is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions
of this Amendment in that jurisdiction or the operation,
enforceability or validity of such provision in any other
jurisdiction.
(f)
GOVERNING LAW . THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF ILLINOIS.
(Signature Pages Follow)
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IN WITNESS WHEREOF , the
parties hereto have executed this Amendment as of the date first
written above.
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DAIRY GROUP RECEIVABLES,
L.P., |
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as a Seller |
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By: |
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Dairy Group Receivables GP, LLC, |
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Its: |
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General Partner |
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DAIRY GROUP II
RECEIVABLES II, L.P., |
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as a Seller |
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By: |
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Dairy Group Receivables GP II,
LLC. |
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Its: |
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General Partner |
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WHITEWAVE RECEIVABLES,
L.P., |
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as a Seller |
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By: |
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WhiteWave Receivables GP, LLC, |
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General Partner |
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By: |
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/s/ Tim Smith |
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Name: |
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Tim Smith |
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Title: |
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President and Treasurer |
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JS SILOED TRUST, as a
Company |
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By: JPMorgan Chase Bank,
N.A. (successor by merger to Bank One, NA (Main Office
Chicago)),
Its: Attorney-In-Fact |
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/s/ David Whiting |
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Name: |
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David Whiting |
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Vice President |
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JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main Office Chicago)), as a
Financial Institution and as Agent |
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/s/ David Whiting |
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Name: |
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David Whiting |
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Vice President |
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ATLANTIC ASSET
SECURITIZATION LLC (formerly Atlantic Asset Securitization Corp.),
as a Company |
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Calyon New York Branch (successor to
Credit Lyonnais New York Branch) |
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Attorney-In-Fact |
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/s/ Konstantina Kourmpetis
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Konstantina Kourmpetis |
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Managing Director |
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/s/ Sam Pilcer |
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Name: |
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Sam Pilcer |
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Managing Director |
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CALYON NEW YORK BRANCH
(successor to Credit Lyonnais New York Branch), |
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as a Financial
Institution |
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By: |
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/s/ Konstantina Kourmpetis |
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Name: |
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Konstantina Kourmpetis |
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Managing Director |
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By: |
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/s/ Sam Pilcer |
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Name: |
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Sam Pilce |
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