Exhibit 10.27
Amendment No. 3 to Fourth Amended and Restated
Receivables Purchase Agreement
and
Reaffirmation of Performance Undertakings
This Amendment No. 3 to Fourth Amended and Restated
Receivables Purchase Agreement and Reaffirmation of Performance Undertakings
(this "AMENDMENT") is entered into as of August 13, 2004, among Dairy Group
Receivables, L.P. ("DAIRY I"), Dairy Group Receivables II, L.P. ("DAIRY II"),
Specialty Group Receivables, L.P. ("SPECIALTY"), Dean National Brand Group, L.P.
("NATIONAL BRAND" and together with Dairy I, Dairy II and Specialty, the
"SELLERS" and each a "SELLER"), each entity signatory hereto as a Financial
Institution (each a "FINANCIAL INSTITUTION" and collectively, the "FINANCIAL
INSTITUTIONS"), each entity signatory hereto as a Company (each a "COMPANY" and
collectively, the "COMPANIES"), Bank One, NA (Main Office Chicago), as Agent
(the "AGENT"), and Dean Foods Company, as Provider ("PROVIDER"). Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Fourth Amended and Restated Receivables Purchase Agreement,
dated as of March 30, 2004, among the Sellers, the Servicers party thereto, the
Financial Institutions, the Companies and the Agent (as amended by Amendment No.
1 thereto, dated as of April 5, 2004, and as further amended by Amendment No. 2
thereto, dated as of June 3, 2004, the "RECEIVABLES PURCHASE AGREEMENT").
R E C I T A L S:
The Sellers, the Financial Institutions, the Companies, the
Servicers and the Agent are parties to the Receivables Purchase Agreement.
In connection with the Receivables Purchase Agreement,
Provider entered into each of (i) that certain Third Amended and Restated
Performance Undertaking, dated as of March 30, 2004, by Provider in favor of
Dairy I, (ii) that certain Second Amended and Restated Performance Undertaking,
dated as of March 30, 2004, by Provider in favor of Dairy II, (iii) that certain
Specialty Performance Undertaking, dated as of November 20, 2003, by Provider in
favor of Specialty and (iv) that certain National Brand Performance Undertaking,
dated as of March 30, 2004, by Provider in favor of National Brand
(collectively, the "PERFORMANCE UNDERTAKINGS").
The Sellers, Companies, Financial Institutions and the Agent
desire to amend the Receivables Purchase Agreement, and Provider desires to
reaffirm its obligations under the Performance Undertakings, all as more fully
described herein.
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment. Immediately upon the satisfaction of
each of the conditions precedent set forth in Section 3 of this Amendment,
Exhibit I to the Receivables Purchase Agreement is hereby amended by amending
and restating, in their entirety, the definitions of "Applicable Percentage",
"Dean Credit Agreement" and "Intercreditor Agreement" where each such definition
appears therein to read as follows:
"Applicable Percentage" means, as of any date of
determination, the Applicable Percentage, under and as defined in 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"), applicable to Revolving-1 Loans, under and as
defined in 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"), which are LIBOR Rate Loans,
under and as defined in 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"); provided, that, as of any
date of determination that the Dean Credit Agreement is not in effect
(whether by reason of termination or otherwise), the Applicable
Percentage hereunder shall be the Applicable Percentage under and as
defined in the Dean Credit Agreement as in effect immediately prior to
such ineffectiveness (notwithstanding any language to the contrary
contained in the definition of "Dean Credit Agreement"), applicable to
Revolving-1 Loans, under and as defined in the Dean Credit Agreement as
in effect immediately prior to such ineffectiveness (notwithstanding
any language to the contrary contained in the definition of "Dean
Credit Agreement"), which are LIBOR Rate Loans, under and as defined in
the Dean Credit Agreement as in effect immediately prior to such
ineffectiveness (notwithstanding any language to the contrary contained
in the definition of "Dean Credit Agreement").
"Dean Credit Agreement" means that certain Amended and
Restated Credit Agreement, dated as of August 13, 2004, by and among
Provider, certain Subsidiaries of Provider, the financial institutions
party thereto as lenders, Bank One, NA, as syndication agent, Bank of
America, N.A., Harris Trust and
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AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
Savings Bank and SunTrust Bank, as documentation agents, and Wachovia
Bank, National Association, as administrative agent, without giving
effect to any amendment or other modification thereof.
"Intercreditor Agreement" means the Fourth Amended and
Restated Intercreditor Agreement, dated as of August 13, 2004, by and
between the Agent and Wachovia Bank, National Association, as
administrative agent under the Dean Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to time.
Section 2. Reaffirmation of Performance Guaranty. Provider
acknowledges the amendments to the Receivables Purchase Agreement effected
hereby and reaffirms that its obligations under each of the Performance
Undertakings and each other Transaction Document to which it is a party continue
in full force and effect with respect to the Receivables Purchase Agreement.
Section 3. Conditions to Effectiveness of Amendment. This
Amendment shall become effective as of the date hereof upon the satisfaction of
the following conditions precedent:
(a) Amendment. This Amendment shall have been duly
executed and delivered by each of the parties hereto.
(b) Representations and Warranties. As of the date
hereof, both before and after giving effect to this Amendment, all of the
representations and warranties contained in the Receivables Purchase Agreement
and in each other Transaction Document shall be true and correct as though made
on and as of the date hereof (and by its execution hereof, each Seller shall be
deemed to have represented and warranted such).
(c) No Amortization Event or Potential Amortization
Event. As of the date hereof, both before and after giving effect to this
Amendment, no Amortization Event or Potential Amortization Event shall have
occurred and be continuing (and by its execution hereof, each Seller shall be
deemed to have represented and warranted such).
(d) Intercreditor Agreement. The Agent shall have
received a duly executed copy of that certain Fourth Amended and Restated
Intercreditor Agreement, dated as
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AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
of the date hereof, by and between the Agent and Wachovia Bank, National
Association, in form and substance satisfactory to the Agent, in its sole and
absolute discretion.
(e) Amendment Fees. Each of the Purchasers shall
have received a non-refundable, fully-earned amendment fee equal to $10,000 in
immediately available funds; provided that, with respect to the Purchaser for
which Bank One, NA (Main Office Chicago) is the Financial Institution, such fee
shall have been received by J.P. Morgan Securities, Inc.
Section 4. Miscellaneous.
(a) Effect; Ratification. The amendments set forth
herein are effective solely for the purposes set forth herein and shall be
limited precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the
Receivables Purchase Agreement or of any other instrument or agreement referred
to therein; or (ii) prejudice any right or remedy which the Companies, the
Financial Institutions or the Agent may now have or may have in the future under
or in connection with the Receivables Purchase Agreement or any other instrument
or agreement referred to therein. Each reference in the Receivables Purchase
Agreement to "this Agreement," "herein," "hereof" and words of like import and
each reference in the other Transaction Documents to the "Receivables Purchase
Agreement" or to the "Purchase Agreement" or to the Receivables Purchase
Agreement shall mean the Receivables Purchase Agreement as amended hereby. This
Amendment shall be construed in connection with and as part of the Receivables
Purchase Agreement and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Receivables Purchase Agreement and
each other instrument or agreement referred to therein, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
(b) Transaction Documents. This Amendment is a
Transaction Document executed pursuant to the Receivables Purchase Agreement and
shall be construed, administered and applied in accordance with the terms and
provisions thereof.
(c) Costs, Fees and Expenses. Each Seller agrees to
reimburse the Agent and the Purchasers upon demand for all costs, fees and
expenses (including the reasonable fees and expenses of counsels to the Agent
and the Purchasers) incurred in connection with the preparation, execution and
delivery of this Amendment.
(d) Counterparts. This Amendment may be executed in
any number of counterparts, each such counterpart constituting an original and
all of which when taken together shall constitute one and the same instrument.
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AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
(e) Severability. Any provision contained in this
Amendment which is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions of this Amendment in that
jurisdiction or the operation, enforceability or validity of such provision in
any other jurisdiction.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS.
(g) Confirmation of Ownership and/or Security
Interest. Each Seller hereby confirms (i) the sale and assignment of Purchaser
Interests pursuant to Sections 1.1 and/or 1.2 of the Receivables Purchase
Agreement and (ii) the grant of security interest pursuant to Section 14.14(b)
of the Receivables Purchase Agreement to the Agent for the ratable benefit of
the Purchasers in all of such Seller's right, title and interest in, to and
under all Receivables, the Collections, each Lock-Box, each Collection Account,
all Related Security, all other rights and payments relating to such
Receivables, and all proceeds of any thereof.
(Signature Pages Follow)
5
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
DAIRY GROUP RECEIVABLES, L.P.,
as a Seller
By: Dairy Group Receivables GP, LLC,
Its: General Partner
DAIRY GROUP RECEIVABLES II, L.P.,
as a Seller
By: Dairy Group Receivables GP II, LLC,
Its: General Partner
SPECIALTY GROUP RECEIVABLES, L.P.,
as a Seller
By: Specialty Group Receivables GP, LLC,
Its: General Partner
DEAN NATIONAL BRAND GROUP, L.P.,
as a Seller
By: Dean National Brand Group GP, LLC,
Its: General Partner
By:
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Name:
Title:
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
FALCON ASSET SECURITIZATION
CORPORATION, as a Company
By:
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Name: Sherri Gerner
Title: Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By:
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Name: Sherri Gerner
Title: Vice President
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
ATLANTIC ASSET SECURITIZATION CORP.,
as a Company
By: Calyon New York Branch (successor to
Credit Lyonnais New York Branch)
Its: Attorney-In-Fact
By:
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Name:
Title:
CALYON NEW YORK BRANCH (successor to
Credit Lyonnais New York Branch), as a
Financial Institution
By:
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Name:
Title:
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
NIEUW AMSTERDAM RECEIVABLES CORPORATION,
as a Company
By:
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Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A. "Rabobank International",
New York Branch,
as a Financial Institution
By:
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Name:
Title:
By:
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Name:
Title:
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
BLUE RIDGE ASSET FUNDING CORPORATION,
as a Company
By: Wachovia Capital Markets, LLC
Its: Attorney-In-Fact
By:
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Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Financial Institution
By:
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Name:
Title:
AMENDMENT NO. 3 TO FOURTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND REAFFIRMATION
OF PERFORMANCE UNDERTAKINGS
DEAN FOODS COMPANY,
as Provider
By:
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Name:
Title: