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EXHIBIT 10.12
Amendment No. 1 to Third Amended and Restated
Receivables Purchase Agreement
and
Reaffirmation of Performance Undertakings
This Amendment No. 1 to Third Amended and Restated Receivables
Purchase Agreement and Reaffirmation of
Performance Undertakings (this
"AMENDMENT") is entered into as of December
31, 2003, among Dairy Group
Receivables, L.P. ("DAIRY I"), Dairy Group
Receivables II, L.P. ("DAIRY II") and
Specialty Group Receivables, L.P.
("SPECIALTY" and together with Dairy I and
Dairy II, the "SELLERS" and each a
"SELLER"), each entity signatory hereto as a
Financial Institution (each a "FINANCIAL
INSTITUTION" and collectively, the
"FINANCIAL INSTITUTIONS"), each entity
signatory hereto as a Company (each a
"COMPANY" and collectively, the
"COMPANIES"), 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
Third Amended and Restated Receivables
Purchase Agreement, dated as of November
20, 2003, among the Sellers, the
Servicers party thereto, the Financial
Institutions, the Companies, Credit
Agricole Indosuez and the Agent (as amended
or otherwise modified, as of the
date hereof, the "RECEIVABLES PURCHASE
AGREEMENT").
RECITALS:
The Sellers, the Financial Institutions, the Companies, the
Servicers and the Agent are parties to the
Receivables Purchase Agreement.
In connection with the Receivables Purchase Agreement,
Provider entered into each of (i) that
certain Second Amended and Restated
Performance Undertaking, dated as of
November 20, 2003, by Provider in favor of
Dairy I, (ii) that certain Amended and
Restated Performance Undertaking, dated
as of November 20, 2003, by Provider in
favor of Dairy II, and (iii) that
certain Performance Undertaking, dated as
of November 20, 2003, by Provider in
favor of Specialty (collectively, the
"PERFORMANCE UNDERTAKINGS").
The Sellers, the Companies, the Financial Institutions and the
Agent desire to amend the Receivables
Purchase Agreement, and Provider desires
to reaffirm its obligations under the
Performance Undertakings, all as more
fully described herein.
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. Amendment. 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:
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AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
(a) Exhibit I to the Receivables Purchase Agreement is hereby
amended by amending and restating, in its
entirety, the definition of "Dean
Credit Agreement" appearing in such exhibit
to read as follows:
"Dean Credit Agreement" means that certain Credit Agreement,
dated as of July 31, 2001, by and among Provider, certain
Subsidiaries
of Provider, the financial institutions party thereto as lenders,
Bank
One, NA, as syndication agent, Fleet National Bank, Harris Trust
and
Savings Bank and Suntrust Bank, as co- documentation agents,
and
Wachovia Bank, National Association (formerly known as First
Union
National Bank), as administrative agent, as amended by the
First
Amendment to Credit Agreement, dated as of December 19, 2001,
as
further amended by the Second Amendment to Credit Agreement, dated
as
of April 30, 2002, as further amended by the Third Amendment to
Credit
Agreement, dated as of December 13, 2002, as further amended by
the
Fourth Amendment to Credit Agreement, dated as of August 29, 2003,
and
as further
amended by the Fifth Amendment to Credit Agreement, dated as
of December 31, 2003, but without giving effect to any further
amendment or other modification thereof.
Section 2. Reaffirmation of Performance Guaranty. Provider (a)
acknowledges the amendment to the
Receivables Purchase Agreement effected hereby
and
(b) reaffirms that its obligations under each of the
Performance Undertakings and each other
Transaction Document to which it is a
party continue in full force and effect
with respect to the Receivables Purchase
Agreement.
Section 3. Conditions to Effectiveness of Amendment. This
Amendment shall become effective as of the
date hereof upon the satisfaction of
the following conditions precedent:
(a) Amendment. This Amendment shall have been duly
executed and delivered by each of the
parties hereto.
(b) Amendment to Credit Agreement. The Agent shall have
received executed counterparts of that
certain Fifth Amendment to Credit
Agreement among Provider, certain
subsidiaries of Provider party thereto, the
lenders party thereto, Wachovia Bank,
National Association, as administrative
agent for the lenders, and Bank One, NA, as
syndication agent for the lenders,
duly executed by each of the parties
thereto.
2
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AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
(c) Representations and Warranties. As of the date
hereof, both before and after giving effect
to this Amendment, all of the
representations and warranti
