Exhibit 10.2
AMENDMENT NO. 4 TO FIFTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This
Amendment No. 4 to Fifth Amended and Restated Receivables
Purchase Agreement (this “ Amendment ”) is
entered into as of April 4, 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 :
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. 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.
Section 2. 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 3 of this Amendment, the
Receivables Purchase Agreement is hereby amended as follows:
(a) Section 1.5(f)
of the Receivables Purchase agreement is hereby amended and
restated in its entirety to read as set forth immediately
below:
“
Nonrenewing Financial Institutions; Decreases .
Notwithstanding anything to the contrary set forth in
Section 1.3 or Section 1.5(b) or
1.5(c) hereof, in accordance with the
Amendment no. 4 to fifth
amended and restated
receivables purchase
agreement
provisions of Section 1.5(a), the Administrative Seller may,
with the prior written consent of all Financial Institutions other
than the Nonrenewing Financial Institution, either (i) with the
prior written consent of all Financial Institutions other than the
Nonrenewing Financial Institution or (ii) without such consent if
the Facility Limit hereunder (being reduced for this purpose by the
Commitment of the Nonrenewing Financial Institution and after
giving effect any increased amount of Commitment or replacement or
substitute financial institutions becoming a party hereto) would
remain at or above $600 million provide the Agent with an
irrevocable prior written notice in conformity with the Required
Notice Period (a “ Nonrenewing Financial Institution
Reduction Notice ”) to reduce in its entirety all of the
Capital of a Nonrenewing Financial Institution on or prior to the
Scheduled Liquidity Termination Date, and the Agent shall promptly
notify each Purchaser of such Nonrenewing Financial Institution
Reduction Notice after the Agent’s receipt thereof. Such
Nonrenewing Financial Institution Reduction Notice shall designate
(i) the date (the “ Nonrenewing Financial Institution
Termination Date ”) upon which any such reduction of such
Capital and termination of such Commitment shall occur (which date
shall give effect to the applicable Required Notice Period and
shall be on or prior to the Scheduled Liquidity Termination Date)
and (ii) the total amount of such Capital to be reduced in its
entirety, which shall be applied to the Purchaser Interests of the
Nonrenewing Financial Institution and its related Company in
accordance with the amount of Capital (if any) owing to such
Nonrenewing Financial Institution, on the one hand, and the amount
of Capital (if any) owing to such Company, on the other hand (the
“ Nonrenewing Financial Institution Reduction
”). On and after the Nonrenewing Financial Institution
Termination Date (after giving effect to the payment to reduce in
its entirety its Capital), the Nonrenewing Financial Institution
and its related Company shall no longer purchase or hold any
Purchaser Interests or have any Commitment hereunder, and such
Nonrenewing Financial Institution and its related Company shall
duly execute a termination agreement in form and substance
requested by the Agent to effect the foregoing. Only one
(1) Nonrenewing Financial Institution Reduction Notice shall
be outstanding at any time. Concurrently with any reduction of
Capital pursuant to this Section 1.5(f) , the Sellers
shall pay to the applicable Purchaser all Broken Funding Costs
arising as a result of such reduction.”
(b) Section 2.2
of the Receivables Purchase agreement is hereby amended and
restated in its entirety to read as set forth immediately below
(solely for purposes of convenience, modified language is
italicized):
“Prior
to the Amortization Date, any Collections and/or Deemed Collections
received by each Servicer shall be set aside and held in trust by
such Servicer for the benefit of the Agent and the Purchasers for
the payment of any accrued and unpaid Aggregate Unpaids or for a
Reinvestment as provided in this Section 2.2 or for
payment to a Nonrenewing Financial Institution as provided in
Section 1.5(f) hereof. If at any time any
Collections and/or Deemed Collections are received by any Servicer
prior to the Amortization Date, each Seller hereby requests and the
Purchasers hereby agree to make, simultaneously with such receipt,
a reinvestment (each a “ Reinvestment ”) with
that portion of the balance of each and every Collection and Deemed
Collection received by any Servicer that is part of any Purchaser
Interest, such that after giving effect to such Reinvestment, the
amount of Capital of such Purchaser Interest immediately after such
receipt and corresponding Reinvestment shall be equal to the amount
of Capital immediately prior to such receipt (but giving effect to
any ratable reduction thereof pursuant to application of an
Aggregate Reduction). On each Settlement Date prior to the
occurrence of the Amortization Date, the Servicers shall remit to
the Agent’s or applicable Purchaser’s account the
amounts set aside during the preceding Settlement Period that have
not been subject to a Reinvestment and
