EXHIBIT 10.11 THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT

 

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                                                                   EXHIBIT 10.11

 

 

                           THIRD AMENDED AND RESTATED

                         RECEIVABLES PURCHASE AGREEMENT

 

 

                          dated as of November 20, 2003

 

                                      Among

 

                   DAIRY GROUP RECEIVABLES, L.P., as a Seller,

 

                 DAIRY GROUP RECEIVABLES II, L.P., as a Seller,

 

                 SPECIALTY GROUP RECEIVABLES, L.P., as a Seller,

 

 

                                  THE SERVICERS,

 

                                 THE COMPANIES,

 

                           THE FINANCIAL INSTITUTIONS

 

                                       and

 

                       BANK ONE, NA (MAIN OFFICE CHICAGO),

                                     as Agent

 

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                           THIRD AMENDED AND RESTATED

                         RECEIVABLES PURCHASE AGREEMENT

 

 

         This Third Amended and Restated Receivables Purchase Agreement, dated

as of November 20, 2003, is 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"), Specialty Group Receivables,

L.P., a Delaware limited partnership ("Specialty Group" 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 (the Servicers,

together with the Sellers, the "Seller Parties," and each a "Seller Party"), the

entities listed on Schedule A to this Agreement under the heading "Financial

Institution" (together with any of their respective successors and assigns

hereunder, the "Financial Institutions"), the entities listed on Schedule A to

this Agreement under the heading "Company" (together with any of their

respective successors and assigns hereunder, the "Companies") and Bank One, NA

(Main Office Chicago), as agent for the Purchasers hereunder or any successor

agent hereunder (together with its successors and assigns hereunder, the

"Agent"). Unless defined elsewhere herein, capitalized terms used in this

Agreement shall have the meanings assigned to such terms in Exhibit I.

 

 

                             PRELIMINARY STATEMENTS

 

         Certain Seller Parties, certain Financial Institutions, certain

Companies and the Agent are parties to that certain Receivables Purchase

Agreement, dated as of June 30, 2000, as amended and restated by that certain

Amended and Restated Receivables Purchase Agreement, dated as of December 21,

2001, and as further amended and restated by that certain Second Amended and

Restated Receivables Purchase Agreement, dated as of May 15, 2002 and effective

for all purposes as of March 31, 2002, as amended by the Amendment No. 1 thereto

and Reaffirmation of Performance Undertakings, dated as of December 17, 2002, as

further amended by the Amendment No. 2 thereto and Reaffirmation of Performance

Undertakings, dated as of July 31, 2003, and as further amended by the Amendment

No. 3 thereto and Reaffirmation of Performance Undertakings, dated as of

September 2, 2003 (the "Original Agreement").

 

         Dairy Group and Dairy Group II have transferred and assigned pursuant

to the Original Agreement, and desire to continue to transfer and assign

Purchaser Interests to the Purchasers from time to time.

 

         Specialty Group desires to become a party to the Original Agreement as

a seller and to transfer and assign Purchaser Interests to the Purchasers from

time to time.

 

         Each of Rabobank and Wachovia desire to become a party to the Original

Agreement as a Financial Institution and each of the Rabo Company and the

Wachovia Company

 

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                                                      THIRD AMENDED AND RESTATED

                                                   RECEIVABLES PURCHASE AGREEMENT

 

desire to become a party to the Original Agreement as a Company. Credit Ag

desires to no longer be a party to the Original Agreement as a Financial

Institution.

 

         The Bank One Company desires to assign and transfer an undivided 20%

interest in its, and the Wachovia Company desires to acquire an undivided 20%

interest in the Bank One Company's, rights and obligations under the Original

Agreement and the other Transaction Documents (including, without limitation,

the Capital of the Bank One Company's Purchaser Interests) as set forth herein.

The CL Company desires to assign and transfer an undivided 60% interest in its,

and the Wachovia Company desires to acquire an undivided 20% interest in and the

Rabo Company desires to acquire an undivided 40% interest in the CL Company's,

rights and obligations under the Original Agreement and the other Transaction

Documents (including, without limitation, the Capital of the CL Company's

purchaser interests) as set forth herein.

 

         Bank One, in its capacity as a Financial Institution, desires to assign

and transfer an undivided 20% interest in its, and each of Rabobank and Wachovia

desires to acquire an undivided 10% interest in Bank One's, rights and

obligations as a Financial Institution under the Original Agreement and the

other Transaction Documents (including, without limitation, Bank One's

Commitment) as set forth herein. CLNY, in its capacity as a Financial

Institution, desires to assign and transfer an undivided 20% interest in its,

and each of Rabobank and Wachovia desires to acquire an undivided 10% interest

in CLNY's, rights and obligations as a Financial Institution under the Original

Agreement and the other Transaction Documents (including, without limitation,

CLNY's Commitment) as set forth herein. Credit Ag, in its capacity as a

Financial Institution, desires to assign and transfer an undivided 100% interest

in its, and each of Rabobank and Wachovia desires to acquire an undivided 50%

interest in Credit Ag's, rights and obligations as a Financial Institution under

the Original Agreement and the other Transaction Documents (including, without

limitation, Credit Ag's Commitment) as set forth herein.

 

         Each of the parties hereto desires to increase the Purchase Limit under

the Original Agreement from $400,000,000 to $500,000,000 and to increase the

aggregate amount of the Commitments under the Original Agreement from

$408,000,000 to $510,000,000.

 

         Each Company may, in its absolute and sole discretion, purchase the

Purchaser Interests from the Sellers from time to time.

 

         In the event that any Company declines to make any purchase, such

Company's Related Financial Institutions shall, at the request of the

Administrative Seller, purchase Purchaser Interests that such Company declined

to purchase from time to time.

 

 

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                                                      THIRD AMENDED AND RESTATED

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         Bank One, NA (Main Office Chicago) has been requested and is willing to

act as Agent on behalf of the Companies and the Financial Institutions in

accordance with the terms hereof.

 

         The parties hereto now desire to amend and restate the Original

Agreement in its entirety to read as set forth herein.

 

 

                                    AGREEMENT

 

         Now Therefore, in consideration of the foregoing and for other valuable

consideration, the receipt and adequacy of which are hereby acknowledged, the

parties hereto hereby agree that, subject to satisfaction of the conditions

precedent set forth in Section 6.1 hereof, the Original Agreement is hereby

amended and restated in its entirety to read as follows:

 

                                    ARTICLE I

                              PURCHASE ARRANGEMENTS

 

         Section 1.1 Purchase Facility.

 

                  (a) Upon the terms and subject to the conditions hereof, each

Seller may, at its option, sell and assign Purchaser Interests to the Agent for

the benefit of one or more of the Purchasers. In accordance with the terms and

conditions set forth herein, each Company may, at its option, instruct the Agent

to purchase on behalf of such Company, or if any Company shall decline to

purchase, the Agent shall purchase, on behalf of such declining Company's

Related Financial Institutions, Purchaser Interests from time to time in an

amount not to exceed in the aggregate for all Sellers at such time (i) in the

case of each Company, its Company Purchase Limit and (ii) in the aggregate, the

lesser of (A) the Purchase Limit and (B) the aggregate amount of the Commitments

during the period from the date hereof to but not including the Facility

Termination Date.

 

                  (b) The Administrative Seller may, upon at least 10 Business

Days' notice to the Agent, each Company and each Financial Institution,

terminate in whole or reduce in part, ratably among the Financial Institutions,

the unused portion of the Purchase Limit; provided that (i) any such notice

shall be irrevocable, (ii) each partial reduction of the Purchase Limit shall be

in an amount equal to $5,000,000 or an integral multiple thereof and (iii) the

aggregate of the Company Purchase Limits for all of the Companies shall also be

terminated in whole or reduced in part, ratably among the Companies, by an

amount equal to such termination or reduction in the Purchase Limit.

 

 

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                                                       THIRD AMENDED AND RESTATED

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         Section 1.2 Increases.

 

                  The Administrative Seller shall provide the Agent and each

Purchaser with at least two Business Days' prior notice in a form set forth as

Exhibit II hereto of each Incremental Purchase (a "Purchase Notice") to be made

by a Seller. Each Purchase Notice shall be subject to Section 6.2 hereof and,

except as set forth below, (i) shall be irrevocable and shall specify the

requested Purchase Price (which, in the case of the initial Incremental Purchase

hereunder shall not be less than $10,000,000 and in the case of subsequent

Incremental Purchases shall not be less than $1,000,000), (ii) the date of

purchase (which, in the case of Incremental Purchases after the initial

Incremental Purchase hereunder, shall not exceed four per calendar month), (iii)

in the case of an Incremental Purchase to be funded by any of the Financial

Institutions, the requested Discount Rate and Tranche Period and (iv) in the

case of an Incremental Purchase to be funded by the CL Company or by any Pool

Company (other than an Incremental Purchase funded by such Pool Company

substantially with Pooled Commercial Paper), the requested CP (Tranche) Accrual

Period. Following receipt of a Purchase Notice, the Agent will promptly notify

each Company of such Purchase Notice and the Agent will identify the Companies

that agree to make the purchase. If any Company declines to make a proposed

purchase, the Administrative Seller may cancel the Purchase Notice as to all

purchasers no later than 2:00 p.m. (Chicago time) on the Business Day

immediately prior to the date of purchase specified in the Purchase Notice or,

in the absence of such a cancellation, the Incremental Purchase Of the Purchaser

Interest, which such Company has declined to purchase, will be made by such

declining Company's related Financial Institutions in accordance with the rest

of this Section 1.2. If the proposed Incremental Purchase or any portion thereof

is to be made by any of the Financial Institutions, the Agent shall send notice

of the Proposed Incremental Purchase to the applicable Financial Institutions

concurrently by telecopier, telex or cable specifying (i) the date of such

Incremental Purchase, which date must be at least one Business Day after such

notice is received by the applicable Financial Institutions, (ii) each Financial

Institution's Pro Rata Share of the aggregate Purchase Price of the Purchaser

Interests the Financial Institutions in such Financial Institution's Purchaser

Group are then purchasing and (iii) the requested Discount Rate and Tranche

Period. On the date of each Incremental Purchase, upon satisfaction of the

applicable conditions precedent set forth in Article VI and the conditions set

forth in this Section 1.2, the Companies and/or the Financial Institutions, as

applicable, shall use their reasonable best efforts to deposit to the Facility

Account, in immediately available funds, no later than 12:00 noon (Chicago

time), and in any event no later than 2:00 pm (Chicago time), an amount equal to

(i) in the case of a Company that has agreed to make such Incremental Purchase,

such Company's Pro Rata Share of the aggregate Purchase Price of the Purchaser

Interests of such Incremental Purchase or (ii) in the case of a Financial

Institution, such Financial Institution's Pro Rata Share of the aggregate

Purchase Price of the Purchaser Interests the Financial Institutions in such

Financial Institution's Purchaser Group are then purchasing. Each Financial

Institution's Commitment hereunder

 

 

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                                                   RECEIVABLES PURCHASE AGREEMENT

 

shall be limited to purchasing Purchaser Interests that the Company in such

Financial Institution's Purchaser Group has declined to purchase. Each Financial

Institution's obligation shall be several, such that the failure of any

Financial Institution to make available to any Seller any funds in connection

with any purchase shall not relieve any other Financial Institution of its

obligation, if any, hereunder to make funds available on the date of such

purchase, but no Financial Institution shall be responsible for the failure of

any other Financial Institution to make funds available in connection with any

purchase.

 

         Section 1.3 Decreases. The Administrative Seller shall provide the

Agent with an irrevocable prior written notice in conformity with the Required

Notice Period (a "Reduction Notice") of any proposed reduction of Aggregate

Capital from Collections and the Agent will promptly notify each Purchaser of

such Reduction Notice after Agent's receipt thereof. Such Reduction Notice shall

designate (i) the date (the "Proposed Reduction Date") upon which any such

reduction of Aggregate Capital shall occur (which date shall give effect to the

applicable Required Notice Period), and (ii) the amount of Aggregate Capital to

be reduced that shall be applied ratably to the Purchaser Interests of the

Companies and the Financial Institutions in accordance with the amount of

Capital (if any) owing to the Companies (ratably to each Company, based on the

ratio of such Company's Capital at such time to the aggregate Capital of all the

Companies at such time), on the one hand, and the amount of Capital (if any)

owing to the Financial Institutions (ratably to each Financial Institution,

based on the ratio of such Financial Institution's Capital at such time to the

aggregate Capital of all of the Financial Institutions at such time), on the

other hand (the "Aggregate Reduction"). Only one (1) Reduction Notice shall be

outstanding at any time. Concurrently with any reduction of Aggregate Capital

pursuant to this Section, the Sellers shall pay to the applicable Purchaser all

Broken Funding Costs arising as a result of such reduction. No Aggregate

Reduction will be made following the occurrence of the Amortization Date without

the prior written consent of the Agent.

 

         Section 1.4 Payment Requirements. All amounts to be paid or deposited

by any Seller Party pursuant to any provision of this Agreement or any other

Transaction Documents shall be paid or deposited in immediately available funds

in accordance with the terms hereof. Such Seller Party shall use its reasonable

best efforts to pay or deposit all such amounts no later than 12:00 noon

(Chicago time) on the day when due. Any such payment or deposit not received by

1:00 pm (Chicago time) shall be deemed to be received on the next succeeding

Business Day. If such amounts are payable to a Purchaser, they shall be paid to

such Purchaser at the "Payment Address" specified for such Purchaser on Schedule

A or such other address specified in writing to each other party hereto. If such

amounts are payable to the Agent, they shall be paid to the Agent at 1 Bank One

Plaza, Chicago, Illinois 60670 until otherwise notified by the Agent. Upon

notice to the Administrative Seller, the Agent may debit the Facility Account

for all amounts due and payable hereunder. All computations of Yield, per annum

fees or discount calculated as part of any

 

 

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CP Costs, per annum fees hereunder and per annum fees under any Fee Letter shall

be made on the basis of a year of 360 days for the actual number of days

elapsed. If any amount hereunder or under any other Transaction Document shall

be payable on a day that is not a Business Day, such amount shall be payable on

the next succeeding Business Day.

 

 

                                    ARTICLE II

                            PAYMENTS AND COLLECTIONS

 

         Section 2.1 Payments. Notwithstanding any limitation on recourse

contained in this Agreement, the Sellers shall immediately pay to the Agent or

relevant Purchaser, as applicable, when due, for the account of the relevant

Purchaser or Purchasers on a full recourse basis, (i) such fees as set forth in

each Fee Letter (which fees collectively shall be sufficient to pay all fees

owing to the Financial Institutions and other Funding Sources), (ii) all CP

Costs, (iii) all amounts payable as Yield, (iv) all amounts payable as Deemed

Collections (which shall be immediately due and payable by the Sellers and

applied to reduce outstanding Aggregate Capital hereunder in accordance with

Sections 2.2 and 2.3 hereof), (v) all amounts required pursuant to Section 2.6,

(vi) all amounts payable pursuant to Article X, if any, (vii) all Servicer costs

and expenses, including the Servicing Fee, in connection with servicing,

administering and collecting the Receivables, (viii) all Broken Funding Costs

(any request for reimbursement of which shall be accompanied by a certificate in

reasonable detail demonstrating the reasonable calculation of ay such amount)

and (ix) all Default Fees (collectively, the "Obligations"). If any Person fails

to pay any of the Obligations (other than the Default Fee) when due, such Person

agrees to pay, on demand, the Default Fee in respect thereof until paid.

Notwithstanding the foregoing, no provision of this Agreement or any Fee Letter

shall require the payment or permit the collection of any amounts hereunder in

excess of the maximum permitted by applicable law. If at any time any Seller

receives any Collections or is deemed to receive any Collections, such Seller

shall immediately pay such Collections or Deemed Collections to the applicable

Servicer for application in accordance with the terms and conditions hereof and,

at all times prior to such payment, such Collections or Deemed Collections shall

be held in trust by such Seller for the exclusive benefit of the Purchasers and

the Agent.

 

         Section 2.2 Collections Prior to Amortization. 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. If at

any time any Collections and/or Deemed Collections are received by any Servicer

prior to the Amortization Date, (i) such Servicer shall set aside the

Termination Percentage (hereinafter defined) of Collections and/or Deemed

Collections evidenced by the Purchaser Interests of each Terminating Financial

Institution and of each Company in

 

 

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                                                      THIRD AMENDED AND RESTATED

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a Terminating Financial Institution's Purchaser Group, shall set aside

Collections to be used to effect any Aggregate Reduction in accordance with

Section 1.3 and shall set aside amounts necessary to pay Obligations due on the

next succeeding Settlement Date and (ii) each Seller hereby requests and the

Purchasers (other than any Terminating Financial Institutions and, to the extent

applicable, any Company in a Terminating Financial Institution's Purchaser

Group) 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 (other than any Purchaser Interests of Terminating Financial

Institutions and, to the extent applicable, of any Company in a Terminating

Financial Institution's Purchaser Group), 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 apply such amounts (if not previously paid in accordance with

Section 2.1) first, to reduce unpaid CP Costs, Yield and other Obligations and

second, to reduce the Capital of all Purchaser Interests of Terminating

Financial Institutions and, to the extent applicable, of each Company in a

Terminating Financial Institution's Purchaser Group, applied ratably to such

Terminating Financial Institution and each such Company according to its

respective Termination Percentage. If such Capital, CP Costs, Yield and other

Obligations shall be reduced to zero, any additional Collections received by any

Servicer (i) if applicable, shall be remitted to the Agent's or applicable

Purchaser's account to the extent required to fund any Aggregate Reduction on

such Settlement Date and (ii) any balance remaining thereafter shall be remitted

from such Servicer to the Sellers on such Settlement Date. Such Servicer shall

use its reasonable best efforts to remit all deposit amounts in the Agent's or

applicable Purchaser's account no later than 12:00 noon (Chicago time) on such

Settlement Date. Any such amounts not received by Agent or the applicable

Purchaser by 1:00 pm (Chicago time) shall be deemed to be received on the next

succeeding Business Day. Each Terminating Financial Institution and each Company

in such Terminating Financial Institution's Purchaser Group shall be allocated a

ratable portion of Collections from its Termination Date until, with respect to

a Terminating Financial Institution, such Terminating Financial Institution's

Capital, if any, shall be paid in full and, with respect to a related Company

(i) if any Related Financial Institution with respect to such Company continues

to exist, the Capital of such Company is equal to the Company Purchase Limit (as

reduced pursuant to Section 4.6(b)) of such Company or (ii) if there are no

Related Financial Institutions with respect to such Company, the Capital of such

Company shall be paid in full. The applicable ratable portion shall be

calculated, with respect to any Terminating Financial Institution or applicable

Company, on the Termination Date of each Terminating Financial Institution or

 

 

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                                                      THIRD AMENDED AND RESTATED

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applicable Company as a percentage equal to (i) the Capital of such Terminating

Financial Institution or applicable Company outstanding on its Termination Date,

divided by (ii) the Aggregate Capital outstanding on such Termination Date (the

"Termination Percentage"). Each Terminating Financial Institution's and

applicable Company's Termination Percentage shall remain constant prior to the

Amortization Date. On and after the Amortization Date, each Termination

Percentage shall be disregarded, and each Terminating Financial Institution's

and each applicable Company's Capital shall be reduced ratably with all

Financial Institutions and Companies in accordance with Section 2.3.

 

         Section 2.3 Collections Following Amortization. On the Amortization

Date and on each day thereafter, the Servicers shall set aside and hold in

trust, for the holder of each Purchaser Interest, all Collections received on

such day and an additional amount for the payment of any accrued and unpaid

Aggregate Unpaids owed by the Sellers and not previously paid by the Sellers in

accordance with Section 2.1. On and after the Amortization Date, the Servicers

shall, at any time upon the request from time to time by (or pursuant to

standing instructions from) the Agent (i) remit to the Agent's or applicable

Purchaser's account the amounts set aside pursuant to the preceding sentence,

and (ii) apply such amounts to reduce the Capital associated with each such

Purchaser Interest and any other Aggregate Unpaids.

 

          Section 2.4 Application of Collections. If there shall be insufficient

funds on deposit for the Servicers to distribute funds in payment in full of the

aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable), the

Servicers shall distribute funds to the applicable payee:

 

                  first, to the payment of each Servicer's reasonable actual

         out-of-pocket costs and expenses in connection with servicing,

         administering and collecting the Receivables, including the Servicing

         Fee, provided no Seller nor any of its Affiliates is then acting as a

         Servicer,

 

                  second, to the reimbursement of the Agent's and the

         Purchasers' costs of collection and enforcement of this Agreement,

 

                   third, ratably to the payment of all accrued and unpaid fees

         under the Fee Letters, CP Costs and Yield,

 

                  fourth, (to the extent applicable) to the ratable reduction of

         the Aggregate Capital (without regard to any Termination Percentage),

 

                  fifth, for the ratable payment of all other unpaid

         Obligations, provided that to the extent such Obligations relate to the

         payment of Servicer costs and expenses,

 

 

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                                                      THIRD AMENDED AND RESTATED

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         including the Servicing Fee, when any Seller or any of its Affiliates

         is acting as a Servicer, such costs and expenses will not be paid until

         after the payment in full of all other Obligations, and

 

                  sixth, after the Aggregate Unpaids have been indefeasibly

         reduced to zero, to the Administrative Seller for ratable distribution

         to the Sellers.

 

                  Collections applied to the payment of Aggregate Unpaids shall

be distributed in accordance with the aforementioned provisions, and, giving

effect to each of the priorities set forth in Section 2.4 above, shall be shared

ratably (within each priority) among the Agent and the Purchasers in accordance

with the amount of such Aggregate Unpaids owing to each of them in respect of

each such priority.

 

          Section 2.5 Payment Rescission. No payment of any of the Aggregate

Unpaids shall be considered paid or applied hereunder to the extent that, at any

time, all or any portion of such payment or application is rescinded by

application of law or judicial authority, or must otherwise be returned or

refunded for any reason. Each Seller shall remain obligated for the amount of

any payment or application so rescinded, returned or refunded, and shall

promptly pay to the Agent (for application to the Person or Persons who suffered

such rescission, return or refund) the full amount thereof, plus the Default Fee

from the date of any such rescission, return or refunding.

 

         Section 2.6 Maximum Purchaser Interests. Each Seller shall ensure that

the Purchaser Interests of the Purchasers shall at no time exceed in the

aggregate 100%. If the aggregate of the Purchaser Interests of the Purchasers

exceeds 100%, the Sellers shall pay to the Purchasers (ratably based on the

ratio of each Purchaser's Capital at such time to the Aggregate Capital at such

time) within one (1) Business Day an amount to be applied to reduce the

Aggregate Capital, such that after giving effect to such payment the aggregate

of the Purchaser Interests equals or is less than 100%.

 

         Section 2.7 Clean Up Call. In addition to the Sellers' rights pursuant

to Section 1.3, the Sellers shall have the right, upon two Business Days' prior

written notice to the Agent and the Purchasers, at any time following the

reduction of the Aggregate Capital to a level that is less than 20.0% of the

original Purchase Limit hereunder, to repurchase from the Purchasers all, but

not less than all, of the then outstanding Purchaser Interests. The purchase

price in respect thereof shall be an amount equal to the Aggregate Unpaids

(including any Broken Funding Costs arising as a result of such repurchase)

through the date of such repurchase, payable in immediately available funds.

Such repurchase shall be without representation, warranty or recourse of any

kind by, on the part of, or against any Purchaser or the Agent.

 

 

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                                   ARTICLE III

                                 COMPANY FUNDING

 

         Section 3.1 CP Costs. The Sellers shall pay CP Costs with respect to

the Capital associated with each Purchaser Interest of the Companies for each

day that any Capital in respect of any such Purchaser Interest is outstanding.

Each Purchaser Interest of any Pool Company funded substantially with Pooled

Commercial Paper will accrue CP Costs each day on a pro rata basis, based upon

the percentage share the Capital in respect of such Purchaser Interest

represents in relation to all assets held by the applicable Pool Company and

funded substantially with Pooled Commercial Paper. Each Purchaser Interest of

the CL Company and each Purchaser Interest of any Pool Company not funded

substantially with Pooled Commercial Paper shall accrue CP Costs for each day

during its CP (Tranche) Accrual Period at the rate determined in accordance with

the definition of "Company Costs" set forth in Exhibit I.

 

          Section 3.2 CP Costs Payments. On each Settlement Date relating to a CP

(Tranche) Accrual Period, the Sellers shall pay to the applicable Company an

aggregate amount equal to all accrued and unpaid CP Costs in respect of the

Capital associated with all Purchaser Interests of such Company for the related

CP (Tranche) Accrual Period in accordance with Article II.

 

         Section 3.3 Calculation of Pool Company Costs. On the third Business

Day immediately preceding each Settlement Date relating to a CP (Pool) Accrual

Period, each Pool Company shall calculate the aggregate amount of its Company

Costs with respect to all Purchaser Interests funded substantially with Pooled

Commercial Paper for the applicable CP (Pool) Accrual Period and shall notify

the Administrative Seller of such aggregate amount of such Company Costs due and

payable on such Settlement Date.

 

         Section 3.4 Selection and Calculation of CP (Tranche) Accrual Periods.

 

                  (a) In the case of Purchaser Interests of each Pool Company,

the Administrative Seller shall (and following the occurrence and during the

continuance of a Potential Amortization Event or an Amortization Event, shall

with consultation from, and approval by, each Pool Company), from time to time

request CP (Tranche) Accrual Periods for the Purchaser Interests of each Pool

Company other than those funded substantially with Pooled Commercial Paper,

provided, that (i) the consent of the Agent and each Purchaser shall be

required, (ii) the Administrative Seller must elect CP (Tranche) Accrual Periods

for all Purchaser Interests of each Pool Company, such that after giving effect

to such election, no Purchaser Interest of any Pool Company is funded with

Pooled Commercial Paper and (iii) the Administrative Seller may only make such

election once hereunder. In the case of

 

 

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                                                      THIRD AMENDED AND RESTATED

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Purchaser Interests of the CL Company, the Administrative Seller shall, with

consultation from, and approval by, the CL Company (such approval not to be

unreasonably withheld), from time to time request CP (Tranche) Accrual Periods

for the Purchaser Interests of the CL Company.

 

                  (b) The Administrative Seller or the applicable Company, upon

notice to and consent by the other received at least three (3) Business Days

prior to the end of a CP (Tranche) Accrual Period (the "Terminating CP Tranche")

for any Purchaser Interest, may, effective on the last day of the Terminating CP

Tranche: (i) divide any such Purchaser Interest into multiple Purchaser

Interests, (ii) combine any such Purchaser Interest with one or more other

Purchaser Interests that have a Terminating CP Tranche ending on the same day as

such Terminating CP Tranche or (iii) combine any such Purchaser Interest with a

new Purchaser Interest (other than a Purchaser Interest funded substantially

with Pooled Commercial Paper) to be purchased on the day such Terminating CP

Tranche ends, provided, that in no event may a Purchaser Interest of any

Purchasers be combined with a Purchaser Interest of any other Purchaser.

 

                  (c) The Administrative Seller shall, at least three (3)

Business Days prior to the expiration of any Terminating CP Tranche, give the

applicable Company (or its agent) irrevocable notice of the new CP (Tranche)

Accrual Period associated with such Terminating CP Tranche and the amount of

Capital to be allocated to such new CP (Tranche) Accrual Period. The

Administrative Seller shall use its reasonable best efforts to give such notice

such that the applicable Company (or its agent) receives it no later than 12:00

noon (Chicago time) on the day such request is being made. Any such request not

received by the applicable Company by 1:00 pm (Chicago time) shall be deemed to

be received on the next succeeding Business Day.

 

                                   ARTICLE IV

                          FINANCIAL INSTITUTION FUNDING

 

 

         Section 4.1 Financial Institution Funding. Each Purchaser Interest of

the Financial Institutions shall accrue Yield for each day during its Tranche

Period at either the LIBO Rate or the Prime Rate in accordance with the terms

and conditions hereof. Until the Administrative Seller gives notice to the Agent

of another Discount Rate in accordance with Section 4.4, the initial Discount

Rate for any Purchaser Interest transferred to the Financial Institutions

pursuant to the terms and conditions hereof shall be the Prime Rate. If any

Purchaser Interest of any Company is assigned or transferred to, or funded by,

any Funding Source of such Company pursuant to any Funding Agreement or to or by

any other Person, each such Purchaser Interest so assigned, transferred or

funded shall each be deemed to have a new Tranche Period commencing on the date

of any such transfer or funding and shall accrue Yield for each day during its

Tranche Period at either the LIBO Rate or the

 

 

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Prime Rate in accordance with the terms and conditions hereof as if each such

Purchaser Interest was held by a Financial Institution, and with respect to each

such Purchaser Interest, the transferee thereof or lender with respect thereto

shall be deemed to be a Financial Institution in the transferring Company's

Purchaser Group for purposes hereof; provided that until the Administrative

Seller gives notice to the Agent of another Discount Rate in accordance with

Section 4.4, the initial Discount Rate for any Purchaser Interest so transferred

shall be the Prime Rate.

 

         Section 4.2 Yield Payments. On the Settlement Date for each Purchaser

Interest of the Financial Institutions, the Sellers shall pay to the applicable

Financial Institutions an aggregate amount equal to the accrued and unpaid Yield

for the entire Tranche Period of each such Purchaser Interest in accordance with

Article II.

 

         Section 4.3 Selection and Continuation of Tranche Periods.

 

                  (a) In the case of Purchaser Interests of any Financial

Institution in the Purchaser Group of the Bank One Company, the Administrative

Seller shall (and following the occurrence and during the continuance of a

Potential Amortization Event or an Amortization Event, shall with consultation

from, and approval by, the applicable Financial Institution), from time to time

request Tranche Periods for the Purchaser Interests of such Financial

Institutions. In the case of Purchaser Interests of any Financial Institution in

the Purchaser Group of any Company other than the Bank One Company, the

Administrative Seller shall, with consultation from, and approval by, the

applicable Financial Institution (such approval not to be unreasonably

withheld), from time to time request Tranche Periods for the Purchaser Interests

of such Financial Institution. Notwithstanding the foregoing provisions of this

subsection (a), if at any time the Financial Institutions shall have a Purchaser

Interest, the Administrative Seller shall always request Tranche Periods such

that at least one Tranche Period shall end on the date specified in clause (A)

of the definition of Settlement Date.

 

                  (b) The Administrative Seller or the applicable Financial

Institution, upon notice to and consent by the other received at least three (3)

Business Days prior to the end of a Tranche Period (the "Terminating Tranche")

for any Purchaser Interest, may, effective on the last day of the Terminating

Tranche: (i) divide any such Purchaser Interest into multiple Purchaser

Interests, (ii) combine any such Purchaser Interest with one or more other

Purchaser Interests that have a Terminating Tranche ending on the same day as

such Terminating Tranche or (iii) combine any such Purchaser Interest with a new

Purchaser Interest to be purchased on the day such Terminating Tranche ends,

provided, that in no event may a Purchaser Interest of any Purchasers be

combined with a Purchaser Interest of any other Purchaser.

 

 

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         Section 4.4 Financial Institution Discount Rates. The Administrative

Seller may select the LIBO Rate or the Prime Rate for each Purchaser Interest of

the Financial Institutions. The Administrative Seller shall: (i) at least three

(3) Business Days prior to the expiration of any Terminating Tranche with

respect to which the LIBO Rate is being requested as a new Discount Rate and

(ii) at least one (1) Business Day prior to the expiration of any Terminating

Tranche with respect to which the Prime Rate is being requested as a new

Discount Rate, give the applicable Financial Institution irrevocable notice of

the new Discount Rate for the Purchaser Interest associated with such

Terminating Tranche. The Administrative Seller shall use its reasonable best

efforts to give such notice such that the applicable Financial Institution

receives it no later than 12:00 noon (Chicago time) on the day such request is

being made. Any such request not received by the applicable Financial

Institution by 1:00 pm (Chicago time) shall be deemed to be received on the next

succeeding Business Day. Until the Administrative Seller gives notice to the

applicable Financial Institution of another Discount Rate, the initial Discount

Rate for any Purchaser Interest transferred to the Financial Institutions

pursuant to the terms and conditions hereof (or transferred to, or funded by,

any Funding Source pursuant to any Funding Agreement or to or by any other

Person) shall be the Prime Rate.

 

         Section 4.5 Suspension of the LIBO Rate.

 

                  (a) If any Financial Institution notifies the Agent that it

has determined that funding its Pro Rata Share of the Purchaser Interests of the

Financial Institutions in such Financial Institution's Purchaser Group at the

LIBO Rate would violate any applicable law, rule, regulation or directive of any

governmental or regulatory authority, whether or not having the force of law, or

that (i) deposits of a type and maturity appropriate to match fund its Purchaser

Interests at the LIBO Rate are not available or (ii) the LIBO Rate does not

accurately reflect the cost of acquiring or maintaining a Purchaser Interest at

the LIBO Rate, then the Agent shall suspend the availability of the LIBO Rate

for the Financial Institutions in such Financial Institution's Purchaser Group

and require Seller to select the Prime Rate for any Purchaser Interest funded by

the Financial Institutions in such Financial Institution's Purchaser Group

accruing Yield at the LIBO Rate.

 

                  (b) If less than all of the Financial Institutions in such

Financial Institution's Purchaser Group give a notice to the Agent pursuant to

Section 4.5(a), each Financial Institution which gave such a notice shall be

obliged, at the request of the Administrative Seller, the Company in such

Financial Institution's Purchaser Group or the Agent, to assign all of its

rights and obligations hereunder to (i) another Financial Institution in such

Financial Institution's Purchaser Group or (ii) another funding entity nominated

by the Administrative Seller or the Agent that is acceptable to the Company in

such Financial Institution's Purchaser Group and willing to participate in this

Agreement through the Liquidity Termination Date in the place of such notifying

Financial Institution; provided

 

 

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that (i) the notifying Financial Institution receives payment in full, pursuant

to an Assignment Agreement, of an amount equal to such notifying Financial

Institution's Pro Rata Share of the Capital and Yield owing to all of the

Financial Institutions in such Financial Institution's Purchaser Group and all

accrued but unpaid fees and other costs and expenses payable in respect of its

Pro Rata Share of the Purchaser Interests of the Financial Institutions in such

Financial Institution's Purchaser Group, and (ii) the replacement Financial

Institution otherwise satisfies the requirements of Section 12.1(b).

 

         Section 4.6 Extension of Liquidity Termination Date.

 

                  (a) The Administrative Seller may request one or more 364-day

extensions of the Liquidity Termination Date then in effect by giving written

notice of such request to the Agent (each such notice an "Extension Notice") at

least 60 days prior to the Liquidity Termination Date then in effect. After the

Agent's receipt of any Extension Notice, the Agent shall promptly advise each

Financial Institution of such Extension Notice. Each Financial Institution may,

in its sole discretion, by a written irrevocable notice (a "Consent Notice")

given to the Agent on or prior to the 30th day prior to the Liquidity

Termination Date then in effect (such period from the date of the Extension

Notice to such 30th day being referred to herein as the "Consent Period"),

consent to such extension of such Liquidity Termination Date; provided, however,

that such extension shall not be effective with respect to a Financial

Institution if such Financial Institution: (i) notifies the Agent during the

Consent Period that such Financial Institution does not wish to consent to such

extension or (ii) fails to respond to the Agent within the Consent Period (each

Financial Institution that does not wish to consent to such extension or fails

to respond to the Agent within the Consent Period is herein referred to as a

"Non-Renewing Financial Institution"). If at the end of the Consent Period,

there is no Non-Renewing Financial Institution then, the Liquidity Termination

Date shall be irrevocably extended until the date that is 364 days after the

Liquidity Termination Date then in effect. If at the end of the Consent Period

there is a Non-Renewing Financial Institution, then unless such Non-Renewing

Financial Institution assigns its rights and obligations hereunder pursuant to

Section 4.6(b) (each such Non-Renewing Financial Institution whose rights and

obligations under this Agreement and the other applicable Transaction Documents

are not so assigned is herein referred to as a "Terminating Financial

Institution"), the then existing Liquidity Termination Date shall be extended

for an additional 364 days with respect to all Financial Institutions other than

the Terminating Financial Institution; provided, however, that (i) the Purchase

Limit shall be reduced on the Termination Date applicable to each Terminating

Financial Institution by an aggregate amount equal to the Terminating Commitment

Availability of each Terminating Financial Institution and shall thereafter

continue to be reduced by amounts equal to any reduction in the Capital of any

Terminating Financial Institution (after application of Collections pursuant to

Sections 2.2 and 2.3), (ii) the Company Purchase Limit of each Company shall be

reduced by the aggregate amount of the Terminating Commitment

 

 

 

                                       14

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Amount of each Terminating Financial Institution in such Company's Purchaser

Group and (iii) the Commitment of each Terminating Financial Institution shall

be reduced to zero on the Termination Date applicable to such Terminating

Financial Institution. Upon reduction to zero of the Capital of all of the

Purchaser Interests of a Terminating Financial Institution (after application of

Collections thereto pursuant to Sections 2.2 and 2.3) all rights and obligations

of such Terminating Financial Institution hereunder shall be terminated and such

Terminating Financial Institution shall no longer be a "Financial Institution";

provided, however, that the provisions of Article X shall continue in effect for

its benefit with respect to Purchaser Interests held by such Terminating

Financial Institution prior to its termination as a Financial Institution.

 

                   (b) Upon receipt of notice from the Agent pursuant to Section

4.6(a) of any Non-Renewing Financial Institution, one or more of the Financial

Institutions (including any Non-Renewing Financial Institution) may proffer to

the Agent and the Company in such Non-Renewing Financial Institution's Purchaser

Group the names of one or more institutions meeting the criteria set forth in

Section 12.1(b)(i) that are willing to accept assignments of and assume the

rights and obligations under this Agreement and the other applicable Transaction

Documents of the Non-Renewing Financial Institution. Provided the proffered

name(s) are acceptable to the Agent and the Company in such Non-Renewing

Financial Institution's Purchaser Group, the Agent shall notify the remaining

Financial Institutions of such fact, and the then existing Liquidity Termination

Date shall be extended for an additional 364 days upon satisfaction of the

conditions for an assignment in accordance with Section 12.1, and the Commitment

of each Non-Renewing Financial Institution shall be reduced to zero.

 

                  (c) Any requested extension may be approved or disapproved by

a Financial Institution in its sole discretion. In the event that the

Commitments are not extended in accordance with the provisions of this Section

4.6, the Commitment of each Financial Institution shall be reduced to zero on

the Liquidity Termination Date. Upon reduction to zero of the Commitment of a

Financial Institution and upon reduction to zero of the Capital of all of the

Purchaser Interests of such Financial Institution all rights and obligations of

such Financial Institution hereunder shall be terminated and such Financial

Institution shall no longer be a "Financial Institution"; provided, however,

that the provisions of Article X shall continue in effect for its benefit with

respect to Purchaser Interests held by such Financial Institution prior to its

termination as a Financial Institution.

 

 

                                    ARTICLE V

                         REPRESENTATIONS AND WARRANTIES

 

 

 

                                       15

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                                                      THIRD AMENDED AND RESTATED

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         Section 5.1 Representations and Warranties of the Seller Parties. Each

Seller Party hereby represents and warrants to the Agent and the Purchasers, as

to itself, as of the date hereof and as of the date of each Incremental Purchase

and the date of each Reinvestment that:

 

                  (a) Corporate Existence and Power. Such Seller Party is a

corporation, limited liability company or limited partnership duly organized and

validly existing in good standing under the laws of its state of organization.

Each such Seller Party is duly qualified to do business and is in good standing

as a foreign corporation or entity, and has and holds all corporate or other

power and all governmental licenses, authorizations, consents and approvals

required to carry on its business in each jurisdiction in which its business is

conducted except to the extent that the failure to so qualify or hold could not

reasonably be expected to have a Material Adverse Effect.

 

                  (b) Power and Authority; Due Authorization, Execution and

Delivery. The execution and delivery by such Seller Party of this Agreement and

each other Transaction Document to which it is a party, and the performance of

its obligations hereunder and thereunder and, in the case of each Seller, such

Seller's use of the proceeds of purchases made hereunder, are within its

corporate or other powers and authority and have been duly authorized by all

necessary corporate or other action on its part. This Agreement and each other

Transaction Document to which such Seller Party is a party has been duly

executed and delivered by such Seller Party.

 

                  (c) No Conflict. The execution and delivery by such Seller

Party of this Agreement and each other Transaction Document to which it is a

party, and the performance of its obligations hereunder and thereunder do not

contravene or violate (i) its certificate or articles of incorporation or

by-laws (or equivalent organizational documents) or any shareholder agreements,

voting trusts or similar arrangements applicable to its authorized shares or

other equity interests, (ii) any law, rule or regulation applicable to it, (iii)

any restrictions under any material agreement, contract or instrument to which

it is a party or by which it or any of its property is bound or (iv) any order,

writ, judgment, award, injunction or decree binding on or affecting it or its

property, and do not result in the creation or imposition of any Adverse Claim

on assets of such Seller Party or its Subsidiaries (except as created

hereunder); and no transaction contemplated hereby requires compliance with any

bulk sales act or similar law.

 

                  (d) Governmental Authorization. Other than the filing of the

financing statements required hereunder, no authorization or approval or other

action by, and no notice to or filing with, any governmental authority or

regulatory body is required for the due execution and delivery by such Seller

Party of this Agreement and each other Transaction

 

 

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                                                      THIRD AMENDED AND RESTATED

                                                  RECEIVABLES PURCHASE AGREEMENT

 

Document to which it is a party and the performance of its obligations hereunder

and thereunder.

 

                  (e) Actions, Suits. There are no actions, suits or proceedings

pending, or to the best of such Seller Party's knowledge, threatened, against or

affecting such Seller Party, or any of its properties, in or before any court,

arbitrator or other body, that could reasonably be expected to have a Material

Adverse Effect. Such Seller Party is not in default with respect to any order of

any court, arbitrator or governmental body.

 

                  (f) Binding Effect. This Agreement and each other Transaction

Document to which such Seller Party is a party constitute the legal, valid and

binding obligations of such Seller Party enforceable against such Seller Party

in accordance with their respective terms, except as such enforcement may be

limited by applicable bankruptcy, insolvency, reorganization or other similar

laws relating to or limiting creditors' rights generally and by general

principles of equity (regardless of whether enforcement is sought in a

proceeding in equity or at law).

 

                   (g) Accuracy of Information. All information heretofore

furnished by or on behalf of such Seller Party or any of its Affiliates to the

Agent or the Purchasers for purposes of or in connection with this Agreement,

any of the other Transaction Documents or any transaction contemplated hereby or

thereby is, and all such information hereafter furnished by or on behalf of such

Seller Party or any of its Affiliates to the Agent or the Purchasers will be,

true and accurate in every material respect on the date such information is

stated or certified and does not and will not contain any material misstatement

of fact or omit to state a material fact or any fact necessary to make the

statements contained therein not misleading in light of the circumstances made

or presented.

 

                  (h) Use of Proceeds. No proceeds of any purchase hereunder

will be used (i) for a purpose that violates, or would be inconsistent with,

Regulation T, U or X promulgated by the Board of Governors of the Federal

Reserve System from time to time or (ii) to acquire any security in any

transaction that is subject to Section 12, 13 or 14 of the Securities Exchange

Act of 1934, as amended.

 

                  (i) Good Title. Immediately prior to each purchase hereunder,

each Seller shall be the legal and beneficial owner of the Receivables and

Related Security with respect thereto, free and clear of any Adverse Claim,

except as created by the Transaction Documents. There have been duly filed all

financing statements or other similar instruments or documents necessary under

the UCC (or any comparable law) of all appropriate jurisdictions to perfect each

Seller's ownership interest in each of its Receivables, its Collections and the

Related Security.

 

 

 

                                        17

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                                                      THIRD AMENDED AND RESTATED

                                                  RECEIVABLES PURCHASE AGREEMENT

 

                  (j) Perfection. This Agreement, together with the filing of

the financing statements contemplated hereby, is effective to, and shall, upon

each purchase hereunder, transfer to the Agent for the benefit of the relevant

Purchaser or Purchasers (and the Agent for the benefit of such Purchaser or

Purchasers shall acquire from each Seller) a valid and perfected first priority

undivided percentage ownership or security interest in each Receivable existing

or hereafter arising and in the Related Security and Collections with respect

thereto, free and clear of any Adverse Claim, except as created by the

Transactions Documents. There have been duly filed all financing statements or

other similar instruments or documents necessary under the UCC (or any

comparable law) of all appropriate jurisdictions to perfect the Agent's (on

behalf of the Purchasers) ownership or security interest in the Receivables, the

Related Security and the Collections.

 

                  (k) Jurisdiction of Organization; Places of Business, etc.

Exhibit III correctly sets forth such Seller Party's legal name, jurisdiction of

organization, Federal Employer's Identification Number and State Organizational

Identification Number. Such Seller Party's principal places of business and

chief executive office and the offices where such Seller Party keeps all of its

Records are located at the address(es) listed on Exhibit III, or such other

locations of which the Agent has been notified in accordance with Section 7.2(a)

in jurisdictions where all action required by Section 14.4(a) has been taken and

completed. Such Seller Party has not within the period of six months prior to

the date hereof, (i) changed its location (as defined in Section 9-307 of the

UCC), except as set forth on Exhibit III or (ii) changed its legal name (except

as set forth on Exhibit III), corporate structure or become a "new debtor" (as

defined in Section 9-102(a)(56) of the UCC) with respect to a currently

effective security agreement previously entered into by any other Person. Each

Seller is a Delaware limited partnership and is a "registered organization"

(within the meaning of Section 9-102 of the UCC in effect in the State of

Delaware).

 

                  (l) Collections. the conditions and requirements set forth in

Section 7.1(j) and Section 8.2 have at all times been satisfied and duly

performed. the names and addresses of all Collection Banks, together with the

account numbers of the Collection Accounts of each seller at each Collection

Bank and the post office box number of each Lock-box, are listed on Exhibit IV.

No Seller has granted any Person, other than the Agent as contemplated by this

Agreement, dominion and control or "control" (within the meaning of Section

9-104 of the UCC of all applicable jurisdictions) of any Lock-box or Collection

Account, or the right to take dominion and control or "control" (within the

meaning of Section 9-104 of the UCC of all applicable jurisdictions) of any such

Lock-Box or Collection Account at a future time or upon the occurrence of a

future event.

 

                  (m) Material Adverse Effect. (i) Each of the Initial Servicers

represents and warrants that since December 31, 1999, and each of the Additional

Servicers represents and warrants that since December 31, 2000, and each of the

Dean Entities represents and

 

 

                                        18

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                                                      THIRD AMENDED AND RESTATED

                                                  RECEIVABLES PURCHASE AGREEMENT

 

warrants that since May 31, 2001, and each of the New Entities represents and

warrants that since December 31, 2002, no event has occurred that would have a

material adverse effect on the financial condition or operations of such

Servicer and its Subsidiaries taken as a whole, or the ability of such Servicer

to perform its obligations under this Agreement, and (ii) Dairy Group represents

and warrants that since June 30, 2000, and Dairy Group II represents and

warrants that since May 14, 2002, and Specialty Group represents and warrants

that since November 20, 2003, no event has occurred that would have a material

adverse effect on (A) the financial condition or operations of such Seller, (B)

the ability of such Seller to perform its obligations under the Transaction

Documents or (C) the collectibility of the Receivables generally or of any

material portion of the Receivables.

 

                  (n) Names. In the past five (5) years, no Seller has used any

corporate names, trade names or assumed names other than the name in which it

has executed this Agreement and, in the case of Dairy Group, other than Suiza

Receivables, L.P.

 

                  (o) Ownership of Sellers. (i) Suiza Dairy Group, L.P. and

Provider own, directly or indirectly, 100% of the limited partnership interests

and 99.9% of the partnership interests of Dairy Group, free and clear of any

Adverse Claim (except any Adverse Claim in favor of the Collateral Agent in

accordance with the Dean Credit Agreement). Dairy Group Receivables GP, LLC

(f/k/a Suiza Receivables GP, LLC) is the general partner of Dairy Group and

owns, directly or indirectly, 100% of the general partnership interests and 0.1%

of the partnership interests of Dairy Group, free and clear of any Adverse Claim

(except any Adverse Claim in favor of the Collateral Agent in accordance with

the Dean Credit Agreement). There are no options or other rights to acquire any

partnership interest of Dairy Group. 100% of the membership interests of Dairy

Group Receivables GP, LLC are owned, directly or indirectly by Provider.

 

                           (ii) Dean Holding Company and Provider own, directly

or indirectly, 100% of the limited partnership interests and 99.9% of the

partnership interests of Dairy Group II, free and clear of any Adverse Claim

(except any Adverse Claim in favor of the Collateral Agent in accordance with

the Dean Credit Agreement). Dairy Group Receivables GP II, LLC is the general

partner of Dairy Group II and owns, directly or indirectly, 100% of the general

partnership interests and 0.1% of the partnership interests of Dairy Group II,

free and clear of any Adverse Claim (except any Adverse Claim in favor of the

Collateral Agent in accordance with the Dean Credit Agreement). There are no

options or other rights to acquire any partnership interest of Dairy Group II.

100% of the membership interests of Dairy Group Receivables GP II, LLC are

owned, directly or indirectly by Provider.

 

                           (iii) Dean Holding Company and Provider own, directly

or indirectly, 100% of the limited partnership interests and 99.9% of the

partnership interests

 

 

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                                                      THIRD AMENDED AND RESTATED

                                                  RECEIVABLES PURCHASE AGREEMENT

 

of Specialty Group, free and clear of any Adverse Claim (except any Adverse

Claim in favor of the Collateral Agent in accordance with the Dean Credit

Agreement). Specialty Group Receivables GP, LLC is the general partner of

Specialty Group and owns, directly or indirectly, 100% of the general

partnership interests and 0.1% of the partnership interests of Specialty Group,

free and clear of any Adverse Claim (except any Adverse Claim in favor of the

Collateral Agent in accordance with the Dean Credit Agreement). There are no

options or other rights to acquire any partnership interest of Specialty Group.

100% of the membership interests of Specialty Group Receivables GP, LLC are

owned, directly or indirectly by Provider.

 

                  (p) Not a Holding Company or an Investment Company. Such

Seller Party is not a "holding company" or a "subsidiary holding company" of a

"holding company" within the meaning of the Public Utility Holding Company Act

of 1935, as amended, or any successor statute. Such Seller Party is not an

"investment company" within the meaning of the Investment Company Act of 1940,

as amended, or any successor statute.

 

                  (q) Compliance with Law. Such Seller Party has complied in all

respects with all applicable laws, rules, regulations, orders, writs, judgments,

injunctions, decrees or awards to which it may be subject, except where the

failure to so comply could not reasonably be expected to have a Material Adverse

Effect. Each Receivable, together with any Writing or Contract related thereto,

does not contravene any laws, rules or regulations applicable thereto

(including, without limitation, laws, rules and regulations relating to truth in

lending, fair credit billing, fair credit reporting, equal credit opportunity,

fair debt collection practices and privacy), and no part of such Writing or

Contract is in violation of any such law, rule or regulation.

 

                  (r) Compliance with Credit and Collection Policies. Such

Seller Party has complied in all material respects with its Credit and

Collection Policy with regard to each Receivable and any related Writing or

Contract, and has not made any material change to such Credit and Collection

Policy, except such material change as to which the Agent has been notified in

accordance with Section 7.1(a)(vii).

 

                  (s) Payments to Originators and Morningstar. With respect to

each Receivable transferred to the applicable Seller by each Originator under

the Receivables Sale Agreement to which it is a party, such Seller has given

reasonably equivalent value to such Originator in consideration therefor and

such transfer was not made for or on account of an antecedent debt. No transfer

by any Originator of any Receivable under any Receivables Sale Agreement is or

may be voidable under any section of the Bankruptcy Reform Act of 1978 (11

U.S.C. ss.ss. 101 et seq.), as amended. With respect to each Receivable

transferred to MRC by Morningstar under the Transfer Agreement, MRC has given

reasonably equivalent value to Morningstar in consideration therefor and such

transfer was

 

 

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                                                      THIRD AMENDED AND RESTATED

                                                  RECEIVABLES PURCHASE AGREEMENT

 

not made for or on account of an antecedent debt. No transfer by Morningstar of

any Receivable under the Transfer Agreement is or may be voidable under any

section of the Bankruptcy Reform Act of 1978 (11 U.S.C. ss.ss. 101 et seq.), as

amended.

 

                  (t) Enforceability of Contracts. Each Contract, if any, with

respect to each Receivable is effective to create, and has created, a legal,

valid and binding obligation of the related Obligor to pay the Outstanding

Balance of the Receivable created thereunder and any accrued interest thereon,

enforceable against the Obligor in accordance with its terms, except as such

enforcement may be limited by applicable bankruptcy, insolvency, reorganization

or other similar laws relating to or limiting creditors' rights generally and by

general principles of equity (regardless of whether enforcement is sought in a

proceeding in equity or at law).

 

                  (u) Eligible Receivables. Each Receivable included in the Net

Receivables Balance as an Eligible Receivable on the date of its purchase under

the applicable Receivables Sale Agreement was an Eligible Receivable on such

purchase date.

 

                  (v) Net Receivables Balance. Each Seller has determined that,

immediately after giving effect to each purchase hereunder, the Net Receivables

Balance is at least equal to the sum of (i) the Aggregate Capital, plus (ii) the

Aggregate Reserves.

 

                  (w) Accounting. The manner in which such Seller Party accounts

for the transactions contemplated by this Agreement, each Receivables Sale

Agreement and the Transfer Agreement does not jeopardize the true sale analysis.

 

         Section 5.2 Financial Institution Representations and Warranties. Each

Financial Institution hereby represents and warrants to the Agent and the

Company in such Financial Institution's Purchaser Group that:

 

                  (a) Existence and Power. Such Financial Institution is a

corporation or a banking association duly organized, validly existing and in

good standing under the laws of its jurisdiction of incorporation or

organization, and has all corporate power to perform its obligations hereunder.

 

                  (b) No Conflict. The execution and delivery by such Financial

Institution of this Agreement and the performance of its obligations hereunder

are within its corporate powers, have been duly authorized by all necessary

corporate action, do not contravene or violate (i) its certificate or articles

of incorporation or association or by-laws, (ii) any law, rule or regulation

applicable to it, (iii) any restrictions under any material agreement, contract

or instrument to which it is a party or by which it or any of its property is

bound, or (iv) any order, writ, judgment, award, injunction or decree binding on

or

 

 

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affecting it or its property, and do not result in the creation or imposition of

any Adverse Claim on its assets, except, in any case, where such contravention

or violation could not reasonably be expected to have a material adverse effect

on (i) the financial condition or operations of such Financial Institution, (ii)

the ability of such Financial Institution to perform its obligations under this

Agreement or (iii) the legality, validity or enforceability of this Agreement.

This Agreement has been duly authorized, executed and delivered by such

Financial Institution.

 

                  (c) Governmental Authorization. No authorization or approval

or other action by, and no notice to or filing with, any governmental authority

or regulatory body is required for the due execution and delivery by such

Financial Institution of this Agreement and the performance of its obligations

hereunder, except that has already been received.

 

                  (d) Binding Effect. This Agreement constitutes the legal,

valid and binding obligation of such Financial Institution enforceable against

such Financial Institution in accordance with its terms, except as such

enforcement may be limited by applicable bankruptcy, insolvency, reorganization

or other similar laws relating to or limiting creditors' rights generally and by

general principles of equity (regardless of whether such enforcement is sought

in a proceeding in equity or at law).

 

 

                                   ARTICLE VI

                             CONDITIONS OF PURCHASES

 

         Section 6.1 Conditions Precedent to Initial Incremental Purchase. The

effectiveness of this Agreement is subject to the conditions precedent that (a)

the Agent shall have received on or before the date hereof those documents

listed on Schedule B and (b) the Agent and the Purchasers shall have received

all fees and expenses required to be paid on or prior to the date hereof

pursuant to the terms of this Agreement and the Fee Letters.

 

         Section 6.2 Conditions Precedent to All Purchases and Reinvestments.

Each purchase of a Purchaser Interest and each Reinvestment shall be subject to

the further conditions precedent that (a) in the case of each such purchase or

Reinvestment: (i) the Servicers shall have delivered to the Agent on or prior to

the date of such purchase, in form and substance satisfactory to the Agent, all

Periodic Reports, including, without limitation, the most recent Periodic Report

as and when due under Section 8.5, and (ii) upon the Agent's request, the

Servicers shall have delivered to the Agent at least three (3) days prior to

such purchase or Reinvestment an interim Monthly Report showing the amount of

Eligible Receivables; (b) the Facility Termination Date shall not have occurred;

(c) the Agent shall have received such other approvals, opinions or documents as

it may reasonably

 

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request and (d) on the date of each such Incremental Purchase or Reinvestment,

the following statements shall be true (and acceptance of the proceeds of such

Incremental Purchase or Reinvestment shall be deemed a representation and

warranty by Seller that such statements are then true):

 

                  (i) the representations and warranties set forth in Section

5.1 are true and correct on and as of the date of such Incremental Purchase or

Reinvestment as though made on and as of such date;

 

                  (ii) no event has occurred and is continuing, or would result

from such Incremental Purchase or Reinvestment, that will constitute an

Amortization Event, and no event has occurred and is continuing, or would result

from such Incremental Purchase or Reinvestment, that would constitute a

Potential Amortization Event; and

 

                  (iii) the Aggregate Capital does not exceed the Purchase Limit

and the aggregate Purchaser Interests do not exceed 100%.

 

It is expressly understood that each Reinvestment shall, unless otherwise

directed by the Agent or any Purchaser, occur automatically on each day that any

Servicer shall receive any Collections without the requirement that any further

action be taken on the part of any Person and notwithstanding the failure of any

Seller to satisfy any of the foregoing conditions precedent in respect of such

Reinvestment. The failure of any Seller to satisfy any of the foregoing

conditions precedent in respect of any Reinvestment shall give rise to a right

of the Agent, which right may be exercised at any time on demand of the Agent,

to rescind the related purchase and direct the Sellers to pay to the Agent for

the benefit of the Purchasers an amount equal to the Collections prior to the

Amortization Date that shall have been applied to the affected Reinvestment.

 

 

                                   ARTICLE VII

                                    COVENANTS

 

         Section 7.1 Affirmative Covenants of the Seller Parties. Until the date

on which the Aggregate Unpaids have been indefeasibly paid in full and this

Agreement terminates in accordance with its terms, each Seller Party hereby

covenants, as to itself, as set forth below:

 

                  (a) Financial Reporting. Such Seller Party will maintain, for

itself and each of its Subsidiaries, a system of accounting established and

administered in accordance with GAAP, and furnish or cause to be furnished to

the Agent and each Financial Institution:

 

 

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                                                       THIRD AMENDED AND RESTATED

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                           (i) Annual Reporting. Within 90 days after the close

         of each of its respective fiscal years, audited, unqualified

         consolidated financial statements (which shall include balance sheets,

         statements of income and retained earnings and a statement of cash

         flows) for Provider for such fiscal year certified in a manner

         acceptable to the Agent by independent public accountants acceptable to

         the Agent.

 

                           (ii) Quarterly Reporting. Within 45 days after the

         close of the first three (3) quarterly periods of each of its

         respective fiscal years, (A) consolidated balance sheets of Provider

         and its Subsidiaries as at the close of each such period, (B)

         consolidated statements of income and retained earnings and a statement

         of cash flows for Provider for the period from the beginning of such

         fiscal year to the end of such quarter, (C) the balance sheet of each

         Seller as at the close of each such period and (D) statements of income

         and retained earnings and a statement of cash flows for each Seller,

         all certified by its respective chief financial officer or treasurer.

 

                           (iii) Compliance Certificate. Together with the

         financial statements required hereunder, a compliance certificate in

         substantially the form of Exhibit V signed by an Authorized Officer of

         the Seller Parties and dated the date of such annual financial

         statement or such quarterly financial statement, as the case may be.

 

                           (iv) Shareholders Statements and Reports. Promptly

         upon the furnishing thereof to the shareholders of such Seller Party,

         to the extent not available electronically, copies of all financial

         statements, reports and proxy statements so furnished.

 

                           (v) S.E.C. Filings. Promptly upon the filing thereof,

         to the extent not available electronically, copies of all annual,

         quarterly, monthly or other regular reports that Provider or any of its

         Subsidiaries files with the Securities and Exchange Commission.

 

                           (vi) Copies of Notices. Promptly upon its receipt of

         any notice, request for consent, financial statements, certification,

         report or other communication under or in connection with any

         Transaction Document from any Person other than the Agent, copies of

         the same.

 

 

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                                                      THIRD AMENDED AND RESTATED

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                           (vii) Change in Credit and Collection Policies. At

         least thirty (30) days prior to the effectiveness of any material

         change in or material amendment to any Credit and Collection Policy, a

         copy of such Credit and Collection Policy then in effect and a notice

         (A) indicating such change or amendment, and (B) if such proposed

         change or amendment would be reasonably likely to adversely affect the

         collectibility of the Receivables or decrease the credit quality of any

         newly created Receivables, requesting the Agent's and the Required

         Purchasers' consent thereto.

 

                            (viii) Copies of Dean Credit Agreement Amendments.

         Promptly after execution thereof, copies of each amendment to the Dean

         Credit Agreement as in effect from time to time notwithstanding any

         language to the contrary contained in the definition of "Dean Credit

         Agreement."

 

                           (ix) Other Information. Promptly, from time to time,

         such other information, documents, records or reports relating to the

         Receivables or the condition or operations, financial or otherwise, of

         such Seller Party as the Agent may from time to time reasonably request

         in order to protect the interests of the Agent and the Purchasers under

         or as contemplated by this Agreement.

 

                  (b) Notices. Such Seller Party will notify the Agent and each

Financial Institution in writing of any of the following promptly upon learning

of the occurrence thereof, describing the same and, if applicable, the steps

being taken with respect thereto:

 

                           (i) Amortization Events or Potential Amortization

         Events. The occurrence of each Amortization Event and each Potential

         Amortization Event, by a statement of an Authorized Officer of such

          Seller Party.

 

                           (ii) Judgment and Proceedings. (A) (1) The entry of

         any judgment or decree against Provider or any Servicer or any of its

         respective Subsidiaries if the aggregate amount of all judgments and

          decrees then outstanding against Provider or such Servicer and its

         respective Subsidiaries could reasonably be expected to have a Material

         Adverse Effect, and (2) the institution of any litigation, arbitration

         proceeding or governmental proceeding against Provider that, if

         adversely determined, could reasonably be expected to have a Material

         Adverse Effect, or against any Servicer; and (B) the entry of any

         judgment or decree or the institution

 

 

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                                                      THIRD AMENDED AND RESTATED

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         of any litigation, arbitration proceeding or governmental proceeding

         against any Seller.

 

                           (iii) Material Adverse Effect. The occurrence of any

         event or condition that has had, or could reasonably be expected to

         have, a Material Adverse Effect.

 

                           (iv) Termination Date. The occurrence of the

         "Termination Date" under and as defined in each Receivables Sale

         Agreement.

 

                           (v) Defaults Under Other Agreements. The occurrence

          of a default or an event of default under any other financing

         arrangement pursuant to which such Seller Party is a debtor or an

         obligor that could reasonably be expected to have a Material Adverse

         Effect.

 

 

                   (c) Compliance with Laws and Preservation of Corporate

Existence. Such Seller Party will comply in all respects with all applicable

laws, rules, regulations, orders, writs, judgments, injunctions, decrees or

awards to which it may be subject if noncompliance with any such law, rule,

regulation, order, writ, judgment, injunction, decree or award could reasonably

be expected to have a Material Adverse Effect. Such Seller Party will preserve

and maintain its legal existence, rights, franchises and privileges in the

jurisdiction of its organization, and qualify and remain qualified in good

standing as a foreign entity in each jurisdiction where its business is

conducted, except where the failure to so qualify or remain qualified could not

reasonably be expected, either individually or in the aggregate, to have a

Material Adverse Effect.

 

 

                  (d) Audits. Such Seller Party will furnish to the Agent (with

the Agent providing copies thereof to each Financial Institution, subject to the

Agent receiving any necessary consents to disclosure) from time to time such

information with respect to it and the Receivables as the Agent or the Required

Purchasers may reasonably request. Such Seller Party will, from time to time

during regular business hours as requested by the Agent upon reasonable notice,

permit the Agent, or its agents or representatives (and shall cause each

Originator and Morningstar) to permit the Agent or its agents or

representatives), (i) to examine and make copies of and abstracts from all

Records in the possession or under the control of such Person relating to the

Receivables and the Related Security, including, without limitation, the related

Writings or Contracts, and (ii) to visit the offices and properties of such

Person for the purpose of examining such materials described in clause (i)

above, and to discuss matters relating to such Person's financial condition or

the Receivables and the Related Security or any Person's performance under any

of the

 

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                                                      THIRD AMENDED AND RESTATED

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Transaction Documents or any Person's performance under the Writings or

Contracts and, in each case, with any of the officers or employees of any Seller

Party having knowledge of such matters. All such examinations and visits shall

be at the sole cost of such Seller Party; provided, however, that (i) for so

long as no Amortization Event or Potential Amortization Event shall have

occurred and be continuing and (ii) the result of the immediately preceding

examination and/or visit of such Seller Party shall have been reasonably

satisfactory to the Agent, such cost shall be borne by such Seller Party not

more than twice per calendar year in 2004 and once per calendar year thereafter

(although in no event shall the foregoing be construed to limit the Agent or its

agents or representatives to one such examination and/or visit during such

calendar year period with respect to such Seller Party, provided, that if the

Agent or its agents or representatives fails to make any such examination and/or

visit during any calendar year period, any Financial Institution or its agent or

representatives may make such examination and/or visit in the Agent's stead).

Such Seller Party agrees that one of the two audits to be completed in calender

year 2004 shall be completed by March 31, 2004.

 

                  (e) Keeping and Marking of Records and Books.

 

                            (i) The Servicers will (and will cause each

         Originator and Morningstar to) maintain and implement administrative

         and operating procedures (including, without limitation, an ability to

         recreate records evidencing Receivables in the event of the destruction

         of the originals thereof), and keep and maintain all documents, books,

         records and other information reasonably necessary or advisable for the

         collection of all Receivables (including, without limitation, records

         adequate to permit the immediate identification of each new Receivable

         and all Collections of and adjustments to each existing Receivable).

         The Servicers will (and will cause each Originator and Morningstar to)

         give the Agent notice of any material change in the administrative and

         operating procedures referred to in the previous sentence.

 

                           (ii) Such Seller Party will (and will cause each

         Originator and Morningstar to) (A) on or prior to June 30, 2000 with

         respect to any Seller Party or Originator (other than GTL, Tuscan

         Dairies, each Dean Entity, each New Entity, Dairy Group II and

         Specialty Group), on or prior to June 28, 2001 with respect to GTL and

         Tuscan Dairies, on or prior to December 21, 2001 with respect to any

         Seller Party or Originator that is a Dean Entity, on or prior to May

         15, 2002 with respect to Dairy Group II, and on and prior to the date

         hereof with respect to each New Entity and Specialty Group mark its

         master data processing records and other books and records relating to

         the Purchaser Interests with a legend, acceptable to the Agent,

         describing the Purchaser Interests and (B) upon the

 

 

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                                                      THIRD AMENDED AND RESTATED

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         request of the Agent following the occurrence and during the

         continuance of an Amortization Event (x) mark each Writing or Contract

         with a legend describing the Purchaser Interests and (y) deliver to the

         Agent all Writings and Contracts (including, without limitation, all

         multiple originals of any such Writing or Contract) relating to the

         Receivables.

 

                  (f) Compliance with Contracts and Credit and Collection

Policies. Such Seller Party will timely and fully (i) perform and comply with

all provisions, covenants and other promises required to be observed by it under

the Contracts related to the Receivables, and (ii) comply in all material

respects with its respective Credit and Collection Policy in regard to each

Receivable and any related Contract.

 

                  (g) Performance and Enforcement of Receivables Sale

Agreements. Each Seller will, and will require each Originator party thereto to,

perform each of their respective obligations and undertakings under and pursuant

to the Receivables Sale Agreement to which it is a party, will purchase

Receivables thereunder in strict compliance with the terms thereof and will

vigorously enforce the rights and remedies accorded to such Seller under such

Receivables Sale Agreement. Each Seller will require MRC to perform its

obligations and undertakings under the Transfer Agreement, to purchase

Receivables thereunder in strict compliance with the terms thereof and to

vigorously enforce the rights and remedies accorded to it under the Transfer

Agreement. Each Seller will take all actions to perfect and enforce its rights

and interests (and the rights and interests of the Agent and the Purchasers as

assignees of Seller) under the Receivables Sale Agreement to which it is a party

as the Agent may from time to time reasonably request, including, without

limitation, making claims to which it may be entitled under any indemnity,

reimbursement or similar provision contained in such Receivables Sale Agreement

and requiring MRC to make claims to which it may be entitled under any

indemnity, reimbursement or similar provision contained in the Transfer

Agreement.

 

                  (h) Ownership. Each Seller will (or will cause each Originator

to) take all necessary action to (i) vest legal and equitable title to the

Receivables, the Related Security and the Collections purchased under the

Receivables Sale Agreement to which it is a party irrevocably in such Seller,

free and clear of any Adverse Claims other than Adverse Claims in favor of the

Agent and the Purchasers (including, without limitation, the filing of all

financing statements or other similar instruments or documents necessary under

the UCC (or any comparable law) of all appropriate jurisdictions to perfect such

Seller's interest in such Receivables, Related Security and Collections and such

other action to perfect, protect or more fully evidence the interest of such

Seller therein as the Agent may reasonably request), and (ii) establish and

maintain, in favor of the Agent, for the benefit of the Purchasers, a valid and

perfected first priority undivided percentage ownership interest (and/or a valid

and perfected first priority security interest) in all Receivables, Related

 

 

 

                                        28

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                                                      THIRD AMENDED AND RESTATED

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Security and Collections to the full extent contemplated herein, free and clear

of any Adverse Claims other than Adverse Claims in favor of the Agent for the

benefit of the Purchasers (including, without limitation, the filing of all

financing statements or other similar instruments or documents necessary under

the UCC (or any comparable law) of all appropriate jurisdictions to perfect the

Agent's (for the benefit of the Purchasers) interest in such Receivables,

Related Security and Collections and such other action to perfect, protect or

more fully evidence the interest of the Agent for the benefit of the Purchasers

as the Agent may reasonably request).

 

                  (i) Purchasers' Reliance. Each Seller acknowledges that the

Purchasers are entering into the transactions contemplated by this Agreement in

reliance upon such Seller's identity as a legal entity that is separate from the

Originators. Therefore, from and after June 30, 2000 (or, May 15, 2002, in the

case of Dairy Group II and the date hereof, in the case of Specialty Group),

each Seller shall take all reasonable steps, including, without limitation, all

steps that the Agent or any Purchaser may from time to time reasonably request,

to maintain such Seller's identity as a separate legal entity and to make it

manifest to third parties that such Seller is an entity with assets and

liabilities distinct from those of the Originators and any Affiliates thereof

and not just a division of an Originator or any such Affiliate. Without limiting

the generality of the foregoing and in addition to the other covenants set forth

herein, each Seller will:

 

                                    (A) conduct its own business in its own name

         and require that all full-time employees of such Seller, if any,

         identify themselves as such and not as employees of any Originator or

         any Affiliate thereof (including, without limitation, by means of

         providing appropriate employees with business or identification cards

         identifying such employees as such Seller's employees);

 

                                     (B) compensate all employees, consultants

         and agents directly, from such Seller's own funds, for services

         provided to such Seller by such employees, consultants and agents and,

         to the extent any employee, consultant or agent of such Seller is also

         an employee, consultant or agent of any Originator or any Affiliate

         thereof, allocate the compensation of such employee, consultant or

         agent between such Seller and Originator or such Affiliate, as

         applicable, on a basis that reflects the services rendered to such

         Seller and such Originator or such Affiliate, as applicable;

 

                                    (C) clearly identify its offices (by signage

         or otherwise) as its offices and, if such office is located in the

 

 

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                                                      THIRD AMENDED AND RESTATED

                                                  RECEIVABLES PURCHASE AGREEMENT

 

         offices of any Originator or any Affiliate thereof, allocate fairly any

         overhead for shared office space;

 

                                    (D) have a separate telephone number or

         extension, which will be answered only in its name and separate

         stationery, invoices and checks in its own name;

 

                                    (E) conduct all transactions with the

         Originators and the Servicers (including, without limitation, any

         delegation of its obligations hereunder as Servicers) strictly on an

         arm's-length basis, allocate all overhead expenses (including, without

         limitation, telephone and other utility charges) for items shared

         between such Seller and each Originator (or any Affiliate thereof) on

         the basis of actual use to the extent practicable and, to the extent

         such allocation is not practicable, on a basis reasonably related to

         actual use;

 

                                    (F) at all times have as its general partner

         a limited liability company having at least one Independent Manager;

 

                                    (G) observe all corporate and/or limited

         partnership formalities as a distinct entity, and ensure that all

         corporate and/or limited partnership actions relating to (A) the

         selection, maintenance or replacement of the general partner, (B) the

         dissolution or liquidation of such Seller or (C) the initiation of,

         participation in, acquiescence in or consent to any bankruptcy,

         insolvency, reorganization or similar proceeding involving Seller, are

         duly authorized by the Independent Manager of the general partner;

 

                                    (H) maintain such Seller's books and records

         separate from those of each Originator and any Affiliate thereof and

         otherwise readily identifiable as its own assets rather than assets of

         such Originator and any Affiliate thereof;

 

                                    (I) prepare its financial statements

         separately from those of each Originator and Morningstar and insure

         that any consolidated financial statements of such Originator or any

         Affiliate thereof that include such Seller and that are filed with the

         Securities and Exchange Commission or any other governmental agency

         have notes clearly stating that such Seller is a separate corporate

         entity and that its

 

 

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                                                      THIRD AMENDED AND RESTATED

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         assets will be available first and foremost to satisfy the claims of

         the creditors of such Seller;

 

                                    (J) except as herein specifically otherwise

         provided, maintain the funds or other assets of such Seller separate

         from, and not commingled with, those of any Originator or any Affiliate

         thereof and only maintain bank accounts or other depository accounts to

         which such Seller alone is the account party and from which such Seller

         alone (or the Agent hereunder) has the sole power to make withdrawals;

 

                                    (K) pay all of such Seller's operating

         expenses from such Seller's own assets (except for certain payments by

         the Originators or other Persons pursuant to allocation arrangements

         that comply with the requirements of this Section 7.1(i));

 

                                    (L) operate its business and activities such

         that: it does not engage in any business or activity of any kind, or

         enter into any transaction or indenture, mortgage, instrument,

         agreement, contract, lease or other undertaking, other than the

         transactions contemplated and authorized by this Agreement and the

         Receivables Sale Agreement to which it is a party (it being understood

         that Dairy Group, Dairy Group Ii and Specialty Group may enter into the

         transactions contemplated by the respective Demand Notes); and does not

         create, incur, guarantee, assume or suffer to exist any indebtedness or

         other liabilities, whether direct or contingent, other than (1) as a

         result of the endorsement of negotiable instruments for deposit or

         collection or similar transactions in the ordinary course of business,

         (2) the incurrence of obligations under this Agreement, (3) the

         incurrence of obligations, as expressly contemplated in the Receivables

         Sale Agreement to which it is a party, to make payment to each

         Originator thereunder for the purchase of Receivables from any

         Originator under such Receivables Sale Agreement, and (4) the

         incurrence of operating expenses in the ordinary course of business of

         the type otherwise contemplated by this Agreement;

 

                                     (M) maintain its limited partnership

         agreement in conformity with this Agreement, such that it does not

         amend, restate, supplement or otherwise modify its limited partnership

         agreement in any respect that would impair its ability to comply with

         the terms or provisions of any of the Transaction Documents, including,

         without limitation, Section 7.1(i) of this Agreement;

 

 

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                                                       THIRD AMENDED AND RESTATED

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                                    (N) maintain the effectiveness of, and

         continue to perform under the Receivables Sale Agreement to which it is

         a party (and, in the case of Dairy Group, Dairy Group II and Specialty

         Group, the respective Demand Notes), such that it does not amend,

         restate, supplement, cancel, terminate or otherwise modify such

         Receivables Sale Agreement or the Demand Notes, or give any consent,

         waiver, directive or approval under such Receivables Sale Agreement or

         the Demand Notes, or waive any default, action, omission or breach

         under such Receivables Sale Agreement or under the Demand Notes, or

         otherwise grant any indulgence under such Receivables Sale Agreement or

         the Demand Notes, without (in each case) the prior written consent of

         the Agent and the Required Purchasers;

 

                                    (O) maintain its limited partnership

         separateness such that it does not merge or consolidate with or into,

         or convey, transfer, lease or otherwise dispose of (whether in one

         transaction or in a series of transactions, and except as otherwise

         contemplated herein) all or substantially all of its assets (whether

         now owned or hereafter acquired) to, or acquire all or substantially

         all of the assets of, any Person, nor at any time create, have,

         acquire, maintain or hold any interest in any Subsidiary;

 

                                    (P) maintain at all times the Required

         Capital Amount (as defined in the Receivables Sale Agreement to which

         it is a party) and refrain from making any dividend, distribution,

         redemption of capital stock or partnership interest or payment of any

         subordinated indebtedness that would cause such Required Capital Amount

         to cease to be so maintained;

 

                                    (Q) take such other actions as are necessary

         on its part to ensure that the facts and assumptions set forth in the

         opinion issued by Locke & Liddell & Sapp LLP, as counsel for such

         Seller, in connection with the closing or initial Incremental Purchase

         or initial Reinvestment under this Agreement and relating to

         substantive consolidation issues, and in the certificates accompanying

         such opinion, remain true and correct in all material respects at all

         times.

 

 

                  (j) Collections. Such Seller Party will cause (1) all proceeds

from all Lock-Boxes to be directly deposited by a Collection Bank into a

Collection Account and (2) each Lock-Box and Collection Account

 

 

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                                                      THIRD AMENDED AND RESTATED

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to be subject at all times to a Collection Account Agreement that is in full

force and effect. In the event any payments relating to Receivables are remitted

directly to any Seller or any Affiliate of any Seller, such Seller will (except

as otherwise specified in Section 8.2(b)) remit (or will cause all such payments

to be remitted) directly to a Collection Bank and deposited into a Collection

Account within two (2) Business Days following receipt thereof, and, at all

times prior to such remittance, such Seller will itself hold or, if applicable,

will cause such payments to be held in trust for the exclusive benefit of the

Agent and the Purchasers. Each Seller will maintain exclusive ownership,

dominion and control (subject to the terms of this Agreement) of each applicable

Lock-Box and Collection Account and shall not grant the right to take dominion

and control or grant "control" (within the meaning of Section 9-104 of the UCC

of all applicable jurisdictions) of any such Lock-Box or Collection Account at a

future time or upon the occurrence of a future event to any Person, except to

the Agent as contemplated by this Agreement.

 

                  (k) Taxes. Such Seller Party will file all tax returns and

reports required by law to be filed by it and will promptly pay all taxes and

governmental charges at any time owing except, in the case of each Seller Party

other than the Sellers, for taxes not yet due or that are being diligently

contested in good faith by appropriate proceedings and that have been adequately

reserved against in accordance with GAAP. Each Seller will pay when due any

taxes payable in connection with the Receivables, exclusive of taxes on or

measured by income or gross receipts of any Company, the Agent or any Financial

Institution.

 

                   (l) Payment to Originators and Morningstar. With respect to

any Receivable purchased by any Seller from any Originator, such sale shall be

effected under, and in strict compliance with the terms of, the Receivables Sale

Agreement to which such Seller is a party, including, without limitation, the

terms relating to the amount and timing of payments to be made to such

Originator in respect of the purchase price for such Receivable. With respect to

any Receivable purchased by MRC from Morningstar, such sale shall be effected

under, and in strict compliance with the terms of, the Transfer Agreement,

including, without limitation, the terms relating to the amount and timing of

payments to be made to MRC in respect of the purchase price for such Receivable.

 

         Section 7.2 Negative Covenants of The Seller Parties. Until the date on

which the Aggregate Unpaids have been indefeasibly paid in full and this

Agreement terminates in accordance with its terms, each Seller Party hereby

covenants, as to itself, that:

 

                  (a) Name Change, Jurisdiction of Organization, Offices,

Records and Books of Accounts. Such Seller Party will not change its name,

identity, corporate or other organizational structure or jurisdiction of

organization (within the meaning of Sections 9-503 and/or 9-507 of the UCC of

all applicable jurisdictions) or relocate its chief executive

 

 

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office, principal place of business or any office where Records are kept unless

it shall have: (i) given the Agent at least thirty (30) days' prior written

notice thereof and (ii) delivered to the Agent all financing statements,

instruments and other documents requested by the Agent in connection with such

change or relocation.

 

                  (b) Change in Payment Instructions to Obligors. Except as may

be required by Section 7.1(m) or by the Agent pursuant to Section 8.2(b), such

Seller Party will not add or terminate any bank as a Collection Bank, or make

any change in the instructions to Obligors regarding payments to be made to any

Lock-Box or Collection Account, unless the Agent shall have received, at least

ten (10) days before the proposed effective date therefor, (i) written notice of

such addition, termination or change and (ii) with respect to the addition of a

Collection Bank or a Collection Account or Lock-Box, an executed Collection

Account Agreement acceptable to the Agent with respect to the new Collection

Account or Lock-Box; provided, however, that the Servicers may make changes in

instructions to Obligors regarding payments if such new instructions require

such Obligor to make payments to another existing Collection Account.

 

                  (c) Modifications to Writings, Contracts and Credit and

Collection Policies. Such Seller Party will not, and will not permit any

Originator or Morningstar to, make any change to such Originator's or

Morningstar's Credit and Collection Policy that could materially (either

individually or in the aggregate) adversely affect the collectibility of the

Receivables or materially (either individually or in the aggregate) decrease the

credit quality of any newly created Receivables. Except as provided in Section

8.2(d), the Servicers will not, and will not permit any Originator or

Morningstar to, extend, amend or otherwise modify the terms of any Receivable or

the Writing or Contract related thereto other than in accordance with such

Originator's or Morningstar's Credit and Collection Policy.

 

                  (d) Sales, Liens. No Seller will sell, assign (by operation of

law or otherwise) or otherwise dispose of, or grant any option with respect to,

or create or suffer to exist any Adverse Claim upon (including, without

limitation, the filing of any financing statement) or with respect to, any

Receivable, Related Security or Collections, or upon or with respect to the

Writing or Contract under which any Receivable arises, or any Lock-Box or

Collection Account, or assign any right to receive income with respect thereto

(other than, in each case, the creation of the interests therein in favor of the

Agent and the Purchasers provided for herein), and each Seller will defend the

right, title and interest of the Agent and the Purchasers in, to and under any

of the foregoing property, against all claims of third parties claiming through

or under such Seller or any Originator or Morningstar. No Seller will create or

suffer to exist any mortgage, pledge, security interest, encumbrance, lien,

charge or other similar arrangement on any of its inventory, the financing or

lease of which gives rise to any Receivable. Notwithstanding this Section

7.2(d), so

 

 

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long as no Amortization Event or Potential Amortization Event exists, the

Sellers collectively may, at their discretion and in a single transaction

occurring on a single day, sell all of the Fleming Receivables to White Wave,

Inc., a Delaware corporation ("White Wave"); provided that no later than 3

Business Days after such sale, each Seller shall deliver to the Agent a

certificate executed by an Authorized Officer of such Seller (A) stating that,

with respect to all Fleming Receivables sold in such sale, (I) neither Seller

nor any Servicer (in its capacity as Servicer hereunder) has made, and neither

Seller nor the Servicer (in its capacity as Servicer hereunder) will make, any

representations or warranties in connection with such sale of Fleming

Receivables, (II) both before and after giving effect to such sale, no

Amortization Event or Potential Amortization Event exists, (III) White Wave has,

and will have, no recourse to the Seller or the assets of the Seller (other than

the Fleming Receivables subject to such sale), (IV) such sale is solely to (x)

enable White Wave to further sell such Fleming Receivables through an

arm's-length, fair market transaction to a purchaser that is not an Affiliate of

any Seller Party, Morningstar or Provider and (y) to receive advertising trade

credits in exchange for such Fleming Receivables, (V) such Fleming Receivables

have been or will be included as Charged-Off Receivables in at least one Monthly

Report and (VI) White Wave has given fair consideration and reasonably

equivalent value to each Seller in consideration of such sale of the Fleming

Receivables, the cash purchase price for such Fleming Receivables is no less

than the fair market value to be paid to White Wave upon White Wave's subsequent

transfer of such Fleming Receivables and the sale of such Fleming Receivables to

White Wave was not made for or on account of an antecedent debt, (B) setting

forth the aggregate Outstanding Balance of all such Fleming Receivables and (C)

setting forth the aggregate purchase price paid for all such Fleming

Receivables. Upon any such sale of the Fleming Receivables in accordance with

the terms of this Section 7.2(d) and the Sellers' receipt of the purchase price

therefor in immediately available funds in a Collection Account and Agent's

receipt of the certificate described above, such Fleming Receivables shall be

automatically released without any further action by any party hereto from the

security interest granted to the Agent for the ratable benefit of the Purchasers

pursuant to Section 14.14(b). For the avoidance of doubt, each party hereto

agrees that the purchase price paid upon any such sale of Fleming Receivables

shall constitute Collections hereunder and shall be applied in accordance with

the terms hereof, including, without limitation, Article II.

 

                   (e) Net Receivables Balance. At no time prior to the

Amortization Date shall any Seller permit the Net Receivables Balance to be less

than an amount equal to the sum of (i) the Aggregate Capital plus (ii) the

Aggregate Reserves.

 

                  (f) Termination Date Determination. No Seller will designate

the Termination Date (as defined in each Receivables Sale Agreement) under the

Receivables Sale Agreement to which it is a party, or send any written notice to

any Originator in respect thereof, without the prior written consent of the

Agent and the Required Purchasers, except

 

 

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with respect to the occurrence of such Termination Date arising pursuant to

Section 5.1(d) of such Receivables Sale Agreement.

 

                  (g) Restricted Junior Payments. From and after the occurrence

of any Amortization Event, no Seller will make any Restricted Junior Payment if,

after giving effect thereto, such Seller would fail to meet its obligations set

forth in Section 7.2(e).

 

                  (h) Demand Notes. At no time shall (i) Dairy Group cause or

permit the aggregate outstanding principal balance of its Demand Note to exceed

$21,325,653, (ii) Dairy Group II cause or permit the aggregate outstanding

principal balance of its Demand Note to exceed $13,181,876, and (iii) Specialty

Group cause or permit the aggregate outstanding principal balance of its Demand

Note to exceed $3,000,000.

 

 

                                  ARTICLE VIII

                          ADMINISTRATION AND COLLECTION

 

         Section 8.1 Designation of Servicers. (a) The servicing, administration

and collection of the Receivables shall be conducted by such Person or Persons

(each such Person, a "Servicer") so designated from time to time in accordance

with this Section 8.1. Each of Morningstar, Country Fresh, Land-O-Sun, Southern

Foods, GTL, Tuscan Dairies, each Dean Entity and each New Entity is hereby

designated as, and hereby agrees to perform the duties and obligations of,

Servicer pursuant to the terms of this Agreement with respect to the Receivables

originated by such entity. The Agent may, and at the direction of the Required

Purchasers shall, at any time following an Amortization Event, designate as

Servicer any Person to succeed Morningstar, Country Fresh, Land-O-Sun, Southern

Foods, GTL, Tuscan Dairies, any Dean Entity or any New Entity, or any successor

Servicer.

 

 

                  (b) Without the prior written consent of the Agent and the

Required Purchasers, neither Morningstar, Country Fresh, Land-O-Sun, Southern

Foods, GTL, Tuscan Dairies, any Dean Entity nor any New Entity shall be

permitted to delegate any of its duties or responsibilities as Servicer to any

Person other than (i) a Seller and (ii) with respect to certain Charged-Off

Receivables, outside collection agencies in accordance with its customary

practices. No Seller shall be permitted to further delegate to any other Person

any of the duties or responsibilities of a Servicer delegated to it by

Morningstar, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any

Dean Entity or any New Entity. If at any time following an Amortization Event

the Agent shall designate as Servicer any Person other than Morningstar, Country

Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any Dean Entity or any

New Entity, all duties and responsibilities theretofore delegated by

Morningstar, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any

Dean Entity or any New Entity to any Seller may, at the discretion of the

 

 

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                                                       THIRD AMENDED AND RESTATED

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Agent, be terminated forthwith on notice given by the Agent to Morningstar,

Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, any Dean Entity

or any New Entity, as applicable, and to the Administrative Seller.

 

                  (c) Notwithstanding the foregoing subsection (b), (i) each of

Morningstar, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies,

each Dean Entity and each New Entity shall be and remain primarily liable to the

Agent and the Purchasers for the full and prompt performance of all of its

duties and responsibilities as a Servicer hereunder and (ii) the Agent and the

Purchasers shall be entitled to deal exclusively with Morningstar, Country

Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies, each Dean Entity and

each New Entity in matters relating to the discharge by a Servicer of its duties

and responsibilities hereunder. The Agent and the Purchasers shall not be

required to give notice, demand or other communication to any Person other than

Morningstar, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies,

each Dean Entity or each New Entity in order for communication to a Servicer and

its sub-servicer or other delegate with respect thereto to be accomplished. Each

of Morningstar, Country Fresh, Land-O-Sun, Southern Foods, GTL, Tuscan Dairies,

each Dean Entity and each New Entity, at all times that it is a Servicer, shall

be responsible for providing any sub-servicer or other delegate of a Servicer

with any notice given to a Servicer under this Agreement.

 

         Section 8.2 Duties of Servicer. (a) Each Servicer shall take or cause

to be taken all such actions as may be necessary or advisable to collect each

Receivable originated by such entity from time to time, all in accordance in all

material respects with applicable laws, rules and regulations, with reasonable

care and diligence, and in accordance in all material respects with the

applicable Originator's or Morningstar's Credit and Collection Policy.

 

                  (b) Each Servicer will instruct all Obligors to pay all

Collections with respect to the Receivables originated by such entity directly

to a Lock-Box or Collection Account; provided, however, that to the extent that

the Originator (other than a Local Originator) of the Receivable giving rise to

such Collections or Morningstar, as applicable, currently permits the Obligor of

such Receivable to pay such Collections to a local employee of such Originator

or Morningstar, as applicable, such Servicer will insure that such local

employees remit such Collections to a local depository account no less

frequently than weekly, and within two (2) Business Days of such local

employee's deposit of such Collections, such Servicer will cause such

Collections to be deposited directly to a Lock-Box or Collection Account. With

respect to payments relating to Receivables that are remitted directly to any

Servicer, such Servicer will remit such payments (or will cause all such

payments to be remitted) directly to a Collection Bank and deposited into a

Collection Account within two (2) Business Days following receipt thereof, and,

at all times prior to

 

 

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                                                      THIRD AMENDED AND RESTATED

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such remittance, such Servicer will itself hold or, if applicable, will cause

such payments to be held in trust for the exclusive benefit of the Agent and the

Purchasers. Each Servicer shall effect a Collection Account Agreement

substantially in the form of Exhibit VI with each bank party to a Collection

Account at any time. Prior to the delivery of any Collection Notice to any

Collection Bank, in the case of any remittances received in any Lock-Box or

Collection Account that shall have been identified, to the satisfaction of the

applicable Servicer, to not constitute Collections or other proceeds of the

Receivables or the Related Security (which identification shall occur no later

than two (2) Business Days after such amounts are received therein), such

Servicer shall promptly (and, in any event, no later than one (1) Business Day

after such identification) remit such items to the Person identified to it as

being the owner of such remittances and cause such amounts to be removed from

such Lock-Box or Collection Account. From and after the date the Agent delivers

to any Collection Bank a Collection Notice pursuant to Section 8.3, the Agent

may request that the Servicers, and the Servicers thereupon promptly shall

instruct all Obligors with respect to the Receivables, to remit all payments

thereon to a new depositary account specified by the Agent and, at all times

thereafter, each Seller and the Servicers shall not deposit or otherwise credit,

and shall not permit any other Person to deposit or otherwise credit to such new

depositary account any cash or payment item other than Collections.

 

                  (c) The Servicers shall administer the Collections with

respect to the Receivables originated by each such entity in accordance with the

procedures described herein and in Article II. The Servicers shall set aside and

hold in trust for the account of Seller and the Purchasers their respective

shares of the Collections in accordance with Article II. The Servicers shall,

upon the request of the Agent, segregate, in a manner acceptable to the Agent,

all cash, checks and other instruments received by it from time to time

constituting Collections from the general funds of each of the Servicers or the

Sellers prior to the remittance thereof in accordance with Article II. If the

Servicers shall be required to segregate Collections pursuant to the preceding

sentence, the Servicers shall segregate and deposit with a bank designated by

the Agent such allocable share of Collections of Receivables set aside for the

Purchasers on the second Business Day following receipt by any Servicer of such

Collections, duly endorsed or with duly executed instruments of transfer.

 

                  (d) The Servicers may, in accordance with the applicable

Originator's or Morningstar's Credit and Collection Policy, extend the maturity

of any Receivable or adjust the Outstanding Balance of any Receivable as the

Servicers determine to be appropriate to maximize Collections thereof; provided,

however, that such extension or adjustment shall not alter the status of such

Receivable as a Delinquent Receivable or Charged-Off Receivable or limit the

rights of the Agent or the Purchasers under this Agreement. Notwithstanding

anything to the contrary contained herein, upon the occurrence and during the

continuance of an Amortization Event and until such time as the Aggregate

Unpaids

 

 

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                                                      THIRD AMENDED AND RESTATED

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have been indefeasibly paid in full, the Agent shall have the absolute and

unlimited right to direct the Servicers to commence or settle any legal action

with respect to any Receivable or to foreclose upon or repossess any Related

Security.

 

                  (e) The Servicers shall hold in trust for the Sellers and the

Purchasers all Records that (i) evidence or relate to the Receivables, the

related Writings and Contracts and Related Security or (ii) are otherwise

necessary or desirable to collect the Receivables and shall, as soon as

reasonably practicable upon demand of the Agent, deliver or make available to

the Agent all such Records, at a place selected by the Agent. The Servicers

shal