AMENDMENT NO. 5 TO FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND LIMITED WAIVER

AMENDMENT NO. 5 TO FIFTH AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND LIMITED WAIVER

Document Metadata

Table of Contents

Document Metadata

Exhibit 10.1

AMENDMENT NO. 5 TO FIFTH AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT AND LIMITED WAIVER

This Amendment No. 5 to Fifth Amended and Restated Receivables Purchase Agreement and Limited Waiver (this “Amendment”) is entered into as of April 30, 2008, among Dairy Group Receivables, L.P., a Delaware limited partnership (“Dairy Group”), Dairy Group Receivables II, L.P., a Delaware limited partnership (“Dairy Group II”), WhiteWave Receivables, L.P., a Delaware limited partnership (“WhiteWave” and, together with Dairy Group and Dairy Group II, the “Sellers” and each, a “Seller”), each of the parties listed on the signature pages hereof as a Servicer (each, a “Servicer” and collectively, the “Servicers”), each of the parties listed on the signature pages hereof as a Financial Institution (each, a “Financial Institution” and collectively, the “Financial Institutions”), each of the parties listed on the signature pages hereof as a Company (each, a “Company” and collectively, the “Companies”), JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as Agent (the “Agent”), Xxxx Foods Company, as Provider (“Provider”) and each of the parties listed on the signature pages hereof as an originator (each, an “Originator” and, collectively, the “Originators”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Fifth Amended and Restated Receivables Purchase Agreement, dated as of April 2, 2007, among the Sellers, the Servicers, the Financial Institutions, the Companies and the Agent as amended to the date hereof (the “Receivables Purchase Agreement”).

R E C I T A L S

WHEREAS, Wachovia Bank, National Association (“Wachovia”) and Variable Funding Capital Company LLC (“Wachovia Company”) have entered into an Assignment Agreement with Cooperatieve Centrale Raiffeisen – Boerenleenbank B.A. “Rabobank International”, New York Branch (“Rabobank”) and Nieuw Amsterdam Receivables Corporation (“Rabobank Company”), dated the date hereof (the “Assignment Agreement”), pursuant to which (i) Wachovia has transferred and assigned to Rabobank, and Rabobank has taken and assumed, an undivided 100% interest in Wachovia’s rights and obligations under the Receivables Purchase Agreement and the other Transaction Documents and (ii) the Wachovia Company has transferred and assigned to Rabobank Company, and Rabobank Company has taken and assumed, an undivided 100% interest in the Wachovia Company’s rights and obligations under the Receivables Purchase Agreement and the other Transaction Documents;

WHEREAS, after giving effect to the Assignment Agreement, neither Wachovia nor the Wachovia Company has any remaining interests in or rights or obligations under the Receivables Purchase Agreement. Each of the parties hereto desires to amend the Receivables Purchase Agreement to delete references to Wachovia and Wachovia Company;

WHEREAS, subject to the terms and conditions hereof, each of the parties hereto now desires to amend the Receivables Purchase Agreement as particularly set forth herein;

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

WHEREAS, the Originators and Dairy Group (“Buyer”) have entered into an Amended and Restated Receivables Sale Agreement, dated as of December 21, 2001, as amended (the “Receivables Sale Agreement”);

WHEREAS, as a result of the planned merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC, both of which are parties to the Receivables Purchase Agreement and the Receivables Sale Agreement, each of the parties hereto now desires to, in advance of such planned merger, waive certain rights and liabilities under the Receivables Purchase Agreement and the Receivables Sale Agreement, effective as of the date described herein;

NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

Section 1. Amendment to Receivables Purchase Agreement. Subject to the terms and conditions herein and immediately upon the satisfaction of each of the conditions precedent set forth in Section 4 of this Amendment, the Receivables Purchase Agreement is hereby amended as follows:

(a) All references to Wachovia or the Wachovia Company are hereby deleted from the Receivables Purchase Agreement and shall have no further force or effect.

(b) Schedule A to the Receivables Purchase Agreement is hereby amended and restated in its entirety by Annex A attached hereto.

Section 2. Acknowledgement of Merger between Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC. Subject to the terms and conditions herein and immediately upon the satisfaction of each of the conditions precedent set forth in Section 5 of this Amendment, each party hereto hereby acknowledges that all of the rights, obligations, liabilities and duties of Sulphur Springs Cultured Specialties, LLC under the Transaction Documents shall be and remain the rights, obligation, liabilities and duties of Morningstar Foods, LLC.

Section 3. Limited Waiver. Subject to the terms and conditions herein and provided that the Waiver Conditions are satisfied, the Agent and the Purchasers hereby waive:

(a) Any Amortization Event under Section 9.1(a) of the Receivables Purchase Agreement or Potential Amortization Event that may occur as a result of the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC under:

(i)

Section 7.1(c) of the Receivables Purchase Agreement solely as a result of the failure of any Servicer to preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

			each jurisdiction where its business is conducted in connection with the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC;

	(ii)		Section 7.2(a) of the Receivables Purchase Agreement solely as a result of the failure of any Servicer to give the Agent at least 30 days’ prior written notice of a change in name, identity, organizational structure or jurisdiction of location in connection with the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC; and

	(iii)		Section 7.2(d) of the Receivables Purchase Agreement solely as a result of the action of Sulphur Springs Cultured Specialties, LLC to 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 of Sulphur Springs Cultured Specialties, LLC or any Related Security or Collections, or upon or with respect to the any Term-out Period Advance Account or any amounts from time to time on deposit therin or credited thereto, or upon or with respect to the Writing or Contract under which any Receivable of Sulphur Springs Cultured Specialties, LLC 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 or the Purchasers provided for herein), to Morningstar Foods, LLC in connection with the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC.

(b) Any Amortization Event under Section 9.1(g) of the Receivables Purchase Agreement or Potential Amortization Event that may occur as a result of any Change of Control as a result of the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC.

Section 4. Limited Waiver. Subject to the terms and conditions herein and provided that the Waiver Conditions are satisfied, the Buyer hereby waives:

(a) Any Termination Event under Section 5.1(a) of the Receivables Sale Agreement or Potential Termination Event that may occur as a result of the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC under:

(i)

Section 4.1(c) of the Receivables Sale Agreement solely as a result of the failure of any Originator to preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign corporation in each jurisdiction where its business is conducted in connection with the

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

			merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC;

	(ii)		Section 4.2(a) of the Receivables Sale Agreement solely as a result of the failure of any Originator to give Dairy Group Receivables, L.P. at least 30 days’ prior written notice of a change in name, identity, organizational structure or jurisdiction of location in connection with the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC; and

	(iii)		Section 4.2(d) of the Receivables Sale Agreement solely as a result of the action of Sulphur Springs Cultured Specialties, LLC to 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 of Sulphur Springs Cultured Specialties, LLC or any Related Security or Collections, or upon or with respect to the Writing or Contract under which any Receivable of Sulphur Springs Cultured Specialties, LLC 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 Buyer provided for herein), to Morningstar Foods, LLC in connection with the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC.

(b) Any Termination Event under Section 5.1(e) of the Receivables Sale Agreement or Potential Termination Event that may occur as a result of any Change of Control as a result of the merger of Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC.

Section 5. Conditions to Effectiveness of Section 1. This Amendment shall be effective as of the date hereof, upon the satisfaction of the conditions precedent that:

(a) Amendment. The Agent shall have received, on or before the date hereof, executed counterparts of this Amendment, duly executed by each of the parties hereto.

(b) Assignment Agreements. The Agent shall have received an executed copy of each Assignment Agreement, and Wachovia and the Wachovia Company shall have received all amounts owing to it by the Sellers under the Assignment Agreements.

(c) Fees. Rabobank shall have received a fully earned, non-refundable fee equal to the amount agreed upon between Rabobank and the Sellers.

Section 6. Waiver Conditions. The “Waiver Conditions” are that:

(a) This Amendment shall become effective; and

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

(b) Consummation of Merger. The merger between Sulphur Springs Cultured Specialties, LLC and Morningstar Foods, LLC shall have occurred on or prior to June 30, 2008, or such later date as agreed by the parties.

Section 7. 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 and modified hereby. This Amendment shall be construed in connection with and as part of the Receivables Purchase Agreement and all terms, conditions, representations, warranties, covenants and agreements set forth in the Receivables Purchase Agreement and each other instrument or agreement referred to therein, except as herein amended, waived or modified, are hereby ratified and confirmed and shall remain in full force and effect.

(b) Transaction Documents. This Amendment is a Transaction Document executed pursuant to the Receivables Purchase Agreement and shall be construed, administered and applied in accordance with the terms and provisions thereof.

(c) Costs, Fees and Expenses. Each Seller agrees to reimburse the Agent and the Purchasers upon demand for all costs, fees and expenses (including the reasonable fees and expenses of counsels to the Agent and the Purchasers) incurred in connection with the preparation, execution and delivery of this Amendment.

(d) Counterparts. This Amendment may be executed in any number of counterparts, each such counterpart constituting an original and all of which when taken together shall constitute one and the same instrument.

(e) Severability. Any provision contained in this Amendment which is held to be inoperative, unenforceable or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or invalid without affecting the remaining provisions of this Amendment in that jurisdiction or the operation, enforceability or validity of such provision in any other jurisdiction.

(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

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 and as Buyer

		By:		Dairy Group Receivables GP, LLC,
		Its:		General Partner

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

		By:		Dairy Group Receivables XX XX, LLC.
		Its:		General Partner

		WHITEWAVE RECEIVABLES, L.P., as a Seller

		By:		WhiteWave Receivables GP, LLC,
		Its:		General Partner

		By: Name:		/s/ Xxx Xxxxx Xxx Xxxxx
		Title:		President and Treasurer

S-1

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement


		JS SILOED TRUST, as a Company

		By:		JPMorgan Chase Bank, N.A.,
		Its:		Attorney-In-Fact

		By: Name:		/s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxx
		Title:		Vice President

		JPMORGAN CHASE BANK, N.A., as a Financial Institution and as Agent

		By:		/s/ Xxxxx Xxxxxxx

		Name:		Xxxxx Xxxxxxx
		Title:		Vice President

S-2

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement


		ATLANTIC ASSET SECURITIZATION LLC (formerly Atlantic Asset Securitization Corp.), as a Company

		By:		Calyon New York Branch (successor to Credit Lyonnais New York Branch)
		Its:		Attorney-In-Fact

		By: Name:		/s/ Xxx Xxxxxx Xxx Xxxxxx
		Title:		Managing Director

		By: Name:		/s/ Kostantina Kourmpetis Kostantina Kourmpetis
		Title:		Managing Director

		CALYON NEW YORK BRANCH (successor to Credit Lyonnais New York Branch), as a Financial Institution

		By: Name:		/s/ Xxx Xxxxxx Xxx Xxxxxx
		Title:		Managing Director

		By: Name:		/s/ Kostantina Kourmpetis Kostantina Kourmpetis
		Title:		Managing Director

S-3

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement


		NIEUW AMSTERDAM RECEIVABLES CORPORATION, as a Company

		By: Name:		/s/ Xxxxx X. XxXxxxxxx Xxxxx X. XxXxxxxxx
		Title:		Vice President

		COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A. “Rabobank International”, New York Branch, as a Financial Institution

		By: Name:		/s/ Xxxxxxxxxxx Xxx Xxxxxxxxxxx Xxx
		Title:		Vice President

		By: Name:		/s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxx
		Title:		Executive Director

S-4

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement


		VARIABLE FUNDING CAPITAL COMPANY LLC, as a Company

		By:		Wachovia Capital Markets, LLC
		Its:		Attorney-In-Fact

		By: Name:		/s/ Xxxxxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxx, Xx.
		Title:		Director

		WACHOVIA BANK, NATIONAL ASSOCIATION, as a Financial Institution

		By: Name:		/s/ Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
		Title:		Vice President

S-5

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

31 LOGISTICS, LLC, as a Servicer
XXXX-XXXX CERTIFIED DAIRY, LLC, as a Servicer
XXXXXX ICE CREAM, LLC, as a Servicer
XXXXXX MILK, LLC, as a Servicer
BERKELEY FARMS, LLC, as a Servicer
XXXXXXXXX FOODS, LLC, as a Servicer
COUNTRY DELITE FARMS, LLC, as a Servicer
COUNTRY FRESH, LLC, as a Servicer
CREAMLAND DAIRIES, LLC, as a Servicer
DAIRY FRESH, LLC, as a Servicer
XXXX DAIRY PRODUCTS COMPANY, LLC, as a Servicer
XXXX EAST II, LLC, as a Servicer
XXXX EAST, LLC, as a Servicer
XXXX FOODS COMPANY OF CALIFORNIA, LLC, as a Servicer
XXXX FOODS COMPANY OF INDIANA, LLC, as a Servicer
XXXX FOODS NORTH CENTRAL, LLC, as a Servicer
XXXX ILLINOIS DAIRIES, LLC, as a Servicer
XXXX MILK COMPANY, LLC, as a Servicer
XXXX SOCAL, LLC, as a Servicer
XXXX XXXX II, LLC, as a Servicer
XXXX XXXX, LLC, as a Servicer
FAIRMONT DAIRY, LLC, as a Servicer
FRIENDSHIP DAIRIES, LLC, as a Servicer
XXXXX’X DAIRIES, LLC, as a Servicer
GARELICK FARMS, LLC (f/k/a SUIZA GTL, LLC), as a Servicer
KOHLER MIX SPECIALTIES OF MINNESOTA, LLC, as a Servicer
KOHLER MIX SPECIALTIES, LLC, as a Servicer


		By: Name:		/s/ Xxx Xxxxx Xxx Xxxxx
		Title:		Vice President and Treasurer

S-6

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

LAND-O-SUN DAIRIES, LLC, as a Servicer
LIBERTY DAIRY COMPANY, as a Servicer
XXXXX XXXXXX DAIRY, LLC, as a Servicer
XXXXXXXX DAIRY FARMS, LLC, as a Servicer
XXXXXXXX DAIRY, LLC, as a Servicer
MEADOW BROOK DAIRY COMPANY, as a Servicer
MIDWEST ICE CREAM COMPANY, LLC, as a Servicer
MODEL DAIRY, LLC, as a Servicer
MORNINGSTAR FOODS, LLC, as a Servicer
NEW ENGLAND DAIRIES, LLC, as a Servicer
PET X’XXXXXX, LLC, as a Servicer
PURITY DAIRIES, LLC, as a Servicer
XXXXXX DAIRY, LLC, as a Servicer
XXXXXXXX DAIRY, LLC, as a Servicer
XXXXXXXX’X ALL-STAR DAIRY, LLC, as a Servicer
SHENANDOAH’S PRIDE, LLC, as a Servicer
SOUTHERN FOODS GROUP, LLC, as a Servicer
SULPHUR SPRINGS CULTURED SPECIALTIES, LLC, as a Servicer
SWISS II, LLC, as a Servicer
SWISS PREMIUM DAIRY, LLC, as a Servicer
X.X. XXX FOODS, LLC, as a Servicer
TERRACE DAIRY, LLC, as a Servicer
TUSCAN/LEHIGH DAIRIES, INC., as a Servicer
VERIFINE DAIRY PRODUCTS CORPORATION OF SHEBOYGAN, LLC, as a
Servicer
WHITEWAVE FOODS COMPANY, as a Servicer


		By: Name:		/s/ Xxx Xxxxx Xxx Xxxxx
		Title:		Vice President and Treasurer

S-7

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

XXXXXXXXX FOODS, LLC, as a Originator
COUNTRY DELITE FARMS, LLC, as a Originator
COUNTRY FRESH, LLC, as a Originator
DAIRY FRESH, LLC, as a Originator
XXXX XXXX, LLC, as a Originator
GARELICK FARMS, LLC (f/k/a SUIZA GTL, LLC), as a Originator
KOHLER MIX SPECIALTIES OF MINNESOTA, LLC, as a Originator
KOHLER MIX SPECIALTIES, LLC, as a Originator
LAND-O-SUN DAIRIES, LLC, as a Originator
XXXXX XXXXXX DAIRY, LLC, as a Originator
MODEL DAIRY, LLC, as a Originator
MORNINGSTAR FOODS, LLC, as a Originator
XXXXXXXX DAIRY, LLC, as a Originator
XXXXXXXX’X ALL-STAR DAIRY, LLC, as a Originator
SHENANDOAH’S PRIDE, LLC, as a Originator
SOUTHERN FOODS GROUP, LLC, as a Originator
SULPHUR SPRINGS CULTURED SPECIALTIES, LLC, as a Originator
TUSCAN/LEHIGH DAIRIES, INC., as a Originator
XXXX EAST, LLC, as a Originator
FRIENDSHIP DAIRIES, LLC, as a Originator
NEW ENGLAND DAIRIES, LLC, as a Originator
TERRACE DAIRY, LLC, as a Originator
PET X’XXXXXX, LLC, as a Originator


		By: Name:		/s/ Xxx Xxxxx Xxx Xxxxx
		Title:		Vice President and Treasurer

S-8

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

Annex A

SCHEDULE A

COMMITMENTS, COMPANY PURCHASE LIMITS,
PAYMENT ADDRESSES AND RELATED FINANCIAL INSTITUTIONS

Commitments and Payment Addresses of Financial Institutions


Financial Institution	Commitment		Payment Address
JPMorgan Chase Bank, National Association (successor by merger to Bank One, NA (Main Office Chicago))	$	244,800,000	JPMorgan Chase Bank, National Association Asset Backed Finance Mail Code IL1-0594 10 X. Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000 Fax: (000) 000-0000

Calyon New York Branch (successor to Credit Lyonnais New York Branch)	$	122,400,000	1301 Avenue of the Xxxxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000

Cooperatieve Centrale Raiffeisen - Boerenleenbank B.A. “Rabobank International”, New York Branch	$	244,800,000	000 Xxxx Xxxxxx Xxx Xxxx, XX 00000

A-1

Amendment No. 5 to Fifth Amended and Restated
Receivables Purchase Agreement

SCHEDULE A (CONT’D)

Company Purchase Limits, Payment Addresses and
Related Financial Institutions of Companies


	Company			Related
	Purchase			Financial
Company	Limit		Payment Address	Institution(s)
Falcon Asset Securitization Company LLC (formerly Falcon Asset Securitization Corporation)	$	240,000,000	c/o JPMorgan Chase Bank, National Association, as Agent Asset Backed Finance Mail Code IL1-0594 00 X. Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000 Fax: (000) 000-0000	JPMorgan Chase Bank, National Association (successor by merger to Bank One, NA (Main Office Chicago))

Atlantic Asset Securitization LLC (formerly Atlantic Asset Securitization Corp.)	$	120,000,000	x/x Xxxxxx Xxx Xxxx Xxxxxx 0000 Xxxxxx of the Americas 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000	Calyon New York Branch (successor to Credit Lyonnais New York Branch)

Nieuw Amsterdam Receivables Corporation	$	240,000,000	c/o Global Securitization Services 000 Xxxxxxxxxxx Xxxx Xxxxx 000 Xxxxxxxx, XX 00000	Cooperatieve Centrale Raiffeisen - Boerenleenbank B.A. “Rabobank International”, New York Branch

A-2

XXXX FOODS COMPANY,
as Provider

/s/ Xxx Xxxxx

Xxx Xxxxx

Vice President and Treasurer