exv10w1



 






Exhibit 10.1




SECOND AMENDMENT TO CREDIT AGREEMENT




     THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
November 18, 2005, by and among DEAN FOODS COMPANY, a Delaware corporation (the
“Borrower”), those certain subsidiaries of the Borrower party to the Credit Agreement
referred to below (the “Guarantors”), the lenders party to the Credit Agreement defined
below (the “Lenders”) pursuant to the authorization (in the form attached hereto as
Annex I, the “Authorization”), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders (the “Administrative Agent”), JPMORGAN CHASE BANK,
N.A., as Syndication Agent for the Lenders (the “Syndication Agent”) and BANK OF AMERICA,
N.A., HARRIS TRUST AND SAVINGS BANK and SUNTRUST BANK, each as a documentation agent (collectively,
the “Documentation Agents”). Except as otherwise defined in this Amendment, terms defined
in the Credit Agreement referred to below are used herein as defined therein.



RECITALS




     WHEREAS, the Borrower, the Guarantors, the Administrative Agent, the Syndication Agent, the
Documentation Agents and the Lenders are parties to that certain Amended and Restated Credit
Agreement dated as of August 13, 2004 (as amended, restated, modified or supplemented from time to
time, the “Credit Agreement”), pursuant to which the Lenders have extended certain credit
facilities to the Borrower;



     WHEREAS, the Borrower has requested that the Lenders consent to certain modifications to the
Credit Agreement; and



     WHEREAS, the Lenders party hereto have agreed to amend the Credit Agreement on the terms and
subject to the conditions set forth in this Amendment.



     NOW, THEREFORE, the parties hereto hereby agree as follows:



     Section 1. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, the parties hereby agree that the
Credit Agreement shall be amended as follows:



     (a) Section 1.1 (“Defined Terms”) of the Credit Agreement shall be amended effective as of the
date hereof by:



          (i) adding the following defined terms in appropriate alphabetical order:




     “Second Amendment” shall mean the Second Amendment to this
Agreement dated as of November 18, 2005.




     “Second Amendment Effective Date” shall mean the date upon
which all of the conditions precedent set forth in the Second Amendment
shall have been satisfied.



 









 





          (ii) amending the definition of “Credit Party Obligations” by adding the parenthetical phrase
“(regardless of whether that Person remains a Lender after such Hedging Agreement is executed)”
immediately following the phrase “hereunder at the time such Hedging Agreement is executed” in the
tenth line of such definition.



          (iii) deleting the definition of “Hedging Agreements” in its entirety and replacing it with
the following:




     “Hedging Agreements” shall mean, with respect to any Person, any
agreement entered into to protect such Person against fluctuations in interest
rates, commodity prices, or currency values, including, without limitation, any
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, or other interest rate, commodity or exchange rate
hedging agreements.



          (iv) deleting the definition of “Pro Forma Basis” in its entirety and replacing it with the
following:




     “Pro Forma Basis” shall mean, with respect to any Permitted Acquisition
or any Restricted Payment made pursuant to Section 6.10, that such Permitted
Acquisition or Restricted Payment shall be deemed to have occurred or been made, as
applicable, as of the first day of the four (4) fiscal-quarter period ending as of
the most recent fiscal quarter end preceding the date of such Permitted Acquisition
or Restricted Payment.



     (b) Section 2.2 (“Swingline Loan Subfacility”) of the Credit Agreement shall be amended by
deleting the reference in clause (a) thereof to “ONE HUNDRED MILLION DOLLARS ($100,000,000)” and
replacing it with “ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000)”.



     (c) Section 5.9 (“Financial Covenants”) of the Credit Agreement shall be amended by deleting
Section 5.9(a) (“Leverage Ratio”) in its entirety and replacing it with the following:




     (a) Leverage Ratio. The Leverage Ratio, as of the last day of each
fiscal quarter of the Borrower and its Restricted Subsidiaries, shall be less than
or equal to the corresponding ratio set forth below:



	 	 	 
	Period	 	Maximum Ratio
	Second Amendment Effective Date through March 31, 2007

	 	4.35 to 1.00
	April 1, 2007 and thereafter

	 	4.00 to 1.00






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     (d) Section 6.10 (“Restricted Payments”) of the Credit Agreement shall be amended by
deleting Section 6.10 in its entirety and replacing it with the following:




     Section 6.10 Restricted Payments. The Borrower will not, nor will it
permit any Restricted Subsidiary to, directly or indirectly, declare, order, make or
set apart any sum for or pay any Restricted Payment, except (a) to make dividends
payable solely in the same class of Capital Stock of such Person, (b) to make
dividends or other distributions payable to any Credit Party (directly or indirectly
through Subsidiaries), (c) to make dividends to or repurchases from the Borrower or
the holders of ownership interests of such Restricted Subsidiary the proceeds of
which shall be used to pay taxes that are then due and payable, (d) in the case of a
Receivables Financing SPC, to make Restricted Payments to its owners to the extent
of net income or other assets available therefor under applicable law, and (e) to
make other Restricted Payments; provided, however that after giving
effect to such Restricted Payments on a Pro Forma Basis, no Default or Event of
Default shall have occurred and/or be continuing or be directly or indirectly caused
as a result thereof.



     Section 2. Representations and Warranties. Each of the Credit Parties represents and
warrants as follows:



     (A) It has taken all necessary action to authorize the execution, delivery and performance of
this Amendment and each other document executed in connection herewith to which it is a party in
accordance with their respective terms.



     (B) This Amendment and each other document executed in connection herewith has been duly
executed and delivered by such Person and constitutes such Person’s legal, valid and binding
obligation, enforceable in accordance with its terms, except as such enforceability may be subject
to: (1) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (2) general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in equity).



     (C) No consent, approval, authorization or order of, or filing, registration or qualification
with, any court or governmental authority or third party is required in connection with the
execution, delivery or performance by such Person of this Amendment, other than filings required to
comply with applicable securities laws.



     (D) After giving effect to this Amendment, the representations and warranties set forth in the
Credit Agreement are, subject to the limitations set forth therein, true and correct in all
material respects as of the date hereof (except for those which expressly relate to an earlier
date).



     (E) No Default or Event of Default has occurred and is continuing as of the date hereof.



     Section 3. Conditions Precedent. This Amendment shall become effective on the date
hereof upon satisfaction (or waiver) of each of the following conditions precedent:



3









 





     (A) This Amendment. The Administrative Agent shall have received (1) a duly executed
counterpart of this Amendment from the Administrative Agent, the Swingline Lender and each Credit
Party and (2) the necessary Authorizations from the Lenders.



     (B) Costs, Expenses and Fees. The Borrower shall have paid (1) any and all
out-of-pocket costs (to the extent invoiced on or prior to the date hereof) incurred by the Agents
or the Arrangers (including the reasonable fees and expenses of each Agent’s legal counsel and
other advisors and professionals engaged by the Agents or the Arrangers in connection with this
Amendment), (2) all fees and other amounts payable to either Agent in connection with the
arrangement, negotiation, execution and delivery of this Amendment and (3) all amendment fees
payable to each of the Lenders that consents to the Amendment by 5:00 P.M. (Eastern time) on
November 18, 2005.



     (C) Other Documents. The Administrative Agent shall have received any other documents,
certificates or instruments reasonably requested thereby in connection with the execution of this
Amendment.



Section 4. Acknowledgement of Guarantors and Reaffirmation of Security Documents.




     (A) By their execution hereof, each of the Guarantors listed on the signature pages to this
Amendment hereby expressly (1) consents to the modifications and amendments set forth in this
Amendment, (2) reaffirms all of its respective covenants, representations, warranties and other
obligations set forth in the Credit Agreement and the other Credit Documents to which it is a
party, (3) acknowledges that it has received a copy of the Credit Agreement (as amended) and agrees
to be bound to the terms and conditions set forth therein and (4) acknowledges, represents and
agrees that its respective covenants, representations, warranties and other obligations set forth
in the Credit Agreement and the other Credit Documents to which it is a party remain in full force
and effect.



     (B) Each Credit Party hereby confirms that each of the Security Documents to which it is a
party shall continue to be in full force and effect and is hereby ratified and reaffirmed in all
respects as if fully restated as of the date hereof by this Amendment. In furtherance of the
reaffirmations set forth in this Section 4(B) each Credit Party hereby grants and assigns a
security interest in all Collateral (including, without limitation, any real property or other
Collateral) identified in any Security Document as collateral security for the Credit Party
Obligations.



Section 5. Miscellaneous.




     (A) Limited Amendment. Except as expressly provided herein, the Credit Agreement shall
remain unmodified and in full force and effect. This Amendment shall not be deemed (1) to be a
waiver of, or consent to, a modification or amendment of, any other term or condition of the Credit
Agreement or any other Credit Document or (2) to prejudice any other right or rights which the
Administrative Agent or the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or the other Credit Documents or any of the instruments or agreements
referred to therein, as the same may be amended or modified from time to time. References in the
Credit Agreement (including references to such Credit Agreement as amended hereby) to “this
Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, and



4









 




“hereof”) and in any Credit Document to the Credit Agreement shall be deemed to be references
to the Credit Agreement as amended hereby.




     (B) Counterparts. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the parties hereto may
execute this Amendment by signing any such counterpart.



     (C) Further Assurances. Upon the request of the Administrative Agent and at the sole
expense of the Borrower, the Borrower will promptly and duly execute and deliver, and have
recorded, such further instruments and documents and take such further actions as the
Administrative Agent may reasonably request to effectuate the provisions and purposes of this
Amendment.



     (D) Fax Transmission. A facsimile, telecopy or other reproduction of this Amendment
may be executed by one or more parties hereto, and an executed copy of this Amendment may be
delivered by one or more parties hereto by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original of this Amendment
as well as any facsimile, telecopy or other reproduction hereof.



     (E) Governing Law. This Amendment shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.



[Signature Pages Follow]




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     IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to be duly executed
and delivered by its proper and duly authorized officers as of the day and year first above
written.



	 	 	 
	BORROWER:

	 	DEAN FOODS COMPANY, a Delaware corporation
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Senior Vice President — Finance
	 
	 	 
	GUARANTORS:

	 	31 LOGISTICS, INC., a Delaware corporation
	 

	 	ALTA-DENA CERTIFIED DAIRY, INC., a Delaware corporation
	 

	 	BARBER ICE CREAM, LLC, a Delaware limited liability company
	 

	 	BARBER MILK, INC., a Delaware corporation (formerly known as Barber Dairies, Inc., by change of name only)
	 

	 	BERKELEY FARMS, INC., a California corporation
	 

	 	BROUGHTON FOODS, LLC, a Delaware limited liability company
	 

	 	COUNTRY DELITE FARMS, LLC, a Delaware limited liability company
	 

	 	COUNTRY FRESH, LLC, a Michigan limited liability company
	 

	 	CREAMLAND DAIRIES, INC., a New Mexico corporation
	 

	 	DAIRY FRESH, LLC, a Delaware limited liability company
	 

	 	DEAN DAIRY HOLDINGS, LLC, a Delaware limited liability company
	 

	 	DEAN DAIRY PRODUCTS COMPANY, a Pennsylvania corporation
	 

	 	DEAN FOODS COMPANY OF CALIFORNIA, INC., a Delaware corporation
	 

	 	DEAN FOODS COMPANY OF INDIANA, INC., a Delaware corporation
	 

	 	DEAN FOODS NORTH CENTRAL, INC., a Delaware corporation
	 
	 	 
	 

	 	Each of the above:
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent






 









 






	 	 	 
	 

	 	DEAN HOLDING COMPANY, a Wisconsin corporation (formerly known
as Dean Pickle and Specialty Products Company, a Wisconsin
corporation)
	 

	 	DEAN ILLINOIS DAIRIES, LLC, a Delaware limited liability
company
	 

	 	DEAN INTERNATIONAL HOLDING COMPANY, a Delaware corporation
	 

	 	DEAN LEGACY BRANDS, INC., a Delaware corporation
	 

	 	DEAN MANAGEMENT CORPORATION, a Delaware corporation (formerly
known as Suiza Management Corporation, by change of name
only)
	 

	 	DEAN MIDWEST II, LLC, a Delaware limited liability company
	 

	 	DEAN MIDWEST, LLC, a Delaware limited liability company
	 

	 	DEAN MILK COMPANY, INC., a Kentucky corporation
	 

	 	DEAN NORTHEAST II, LLC, a Delaware limited liability company
	 

	 	DEAN NORTHEAST, LLC, a Delaware limited liability company
(formerly known as Suiza GTL, LLC, by change of name only)
	 

	 	DEAN PUERTO RICO HOLDINGS, LLC, a Delaware limited liability
company (formerly known as Suiza Dairy Corporation by change
of name only)
	 

	 	DEAN SOCAL, LLC, a Delaware limited liability company
(formerly known as Suiza SoCal, LLC by change of name only)
	 

	 	DEAN SOUTHEAST II, LLC, a Delaware limited liability company
	 

	 	DEAN SOUTHEAST, LLC, a Delaware limited liability company
(formerly known as Suiza Southeast, LLC, by change of name
only)
	 

	 	DEAN SOUTHWEST II, LLC, a Delaware limited liability company
	 

	 	DEAN SOUTHWEST, LLC, a Delaware limited liability company
(formerly known as Suiza Southwest, LLC, by change of name
only)
	 

	 	DEAN TRANSPORTATION, INC., an Ohio corporation
	 

	 	DIPS GP II, LLC, a Delaware limited liability company
(successor by merger to DIPS GP II, Inc., a Delaware
corporation)
	 
	 	 
	 

	 	Each of the above:
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent






 









 






	 	 	 
	 

	 	DIPS GP, INC., a Delaware corporation
	 

	 	DIPS LIMITED PARTNER II, a Delaware statutory trust (formerly
known as DTMC, Inc.)
	 

	 	DIPS LIMITED PARTNER, a Delaware entity (formerly known as
Dips LP, Inc.)
	 

	 	ELGIN BLENDERS, INCORPORATED, an Illinois corporation
	 

	 	FAIRMONT DAIRY, LLC, a Delaware limited liability company
	 

	 	GANDY’S DAIRIES, INC., a Texas corporation
	 

	 	GOLDEN VALLEY DAIRY, LLC, a Delaware limited liability
company
	 

	 	HORIZON ORGANIC DAIRY, IDAHO FARM, INC., a Colorado
corporation
	 

	 	HORIZON ORGANIC DAIRY, MARYLAND FARM, INC., a Colorado
corporation
	 

	 	HORIZON ORGANIC HOLDING CORPORATION, a Delaware corporation
	 

	 	HORIZON ORGANIC INTERNATIONAL, INC., a Delaware corporation
	 

	 	INTERNATIONAL DAIRY HOLDINGS, LLC, a Delaware limited
liability company
	 

	 	KOHLER MIX SPECIALTIES OF MINNESOTA, LLC, a Delaware limited
liability company (formerly known as M-Foods Dairy, LLC)
	 

	 	KOHLER MIX SPECIALTIES, LLC, a Delaware limited liability
company (formerly known as M-Foods Dairy TXCT)
	 

	 	LAND-O-SUN DAIRIES, LLC, a Delaware limited liability company
	 

	 	LIBERTY DAIRY COMPANY, a Michigan corporation
	 

	 	LOUIS TRAUTH DAIRY, LLC, a Delaware limited liability company
	 

	 	MARATHON DAIRY INVESTMENT CORP., a Minnesota corporation
	 

	 	MAYFIELD DAIRY FARMS, INC., a Delaware corporation
	 

	 	MCARTHUR DAIRY, INC., a Florida corporation
	 

	 	MEADOW BROOK DAIRY COMPANY, a Pennsylvania corporation
	 

	 	MELODY FARMS, L.L.C., a Delaware limited liability company
	 
	 	 
	 

	 	Each of the above:
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent






 









 






	 	 	 
	 

	 	MIDWEST ICE CREAM COMPANY, a Delaware corporation (formerly
known as Dean Foods Ice Cream Company, by change of name
only)
	 

	 	MODEL DAIRY, LLC, a Delaware limited liability company
	 

	 	MORNINGSTAR FOODS, LLC, a Delaware limited liability company
	 

	 	NEW ENGLAND DAIRIES, LLC, a Delaware limited liability
company
	 

	 	PET O’FALLON, LLC, a Delaware limited liability company
	 

	 	PURITY DAIRIES, INCORPORATED, a Delaware corporation
	 

	 	REITER DAIRY OF AKRON, INC., an Ohio corporation (formerly
known as Reiter Akron, Inc.)
	 

	 	REITER DAIRY OF SPRINGFIELD, LLC, a Delaware limited
liability company (formerly known as Reiter Springfield, LLC)
	 

	 	ROBINSON DAIRY, LLC, a Delaware limited liability company
	 

	 	SCHENKEL’S ALL-STAR DAIRY, LLC, a Delaware limited liability
company
	 

	 	SCHENKEL’S ALL-STAR DELIVERY, LLC, a Delaware limited
liability company
	 

	 	SFG MANAGEMENT LIMITED LIABILITY COMPANY, a Delaware limited
liability company
	 

	 	SHENANDOAH’S PRIDE, LLC, a Delaware limited liability company
	 

	 	SOUTHERN FOODS HOLDINGS, a Delaware statutory trust (formerly
known as Southern Foods Holding Company, LLC)
	 

	 	SUIZA DAIRY GROUP HOLDINGS, INC., a Delaware corporation
(formerly known as Preferred Holdings, Inc.)
	 

	 	SUIZA DAIRY GROUP, INC., a Delaware corporation (formerly
known as Suiza Dairy Group, L.P.)
	 

	 	SULPHUR SPRINGS CULTURED SPECIALTIES, LLC, a Delaware limited
liability company
	 

	 	SWISS II, LLC, a Delaware limited liability company
	 

	 	SWISS PREMIUM DAIRY, INC., a Delaware corporation (formerly
known as Wengert’s Dairy, Inc.)
	 

	 	T.G. LEE FOODS, INC., a Florida corporation
	 
	 	 
	 

	 	Each of the above:
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent






 









 






	 	 	 
	 

	 	TERRACE DAIRY, LLC, a Delaware limited liability company
	 

	 	TUSCAN/ LEHIGH DAIRIES, INC, a Delaware corporation (formerly
known as Tuscan/Lehigh Dairies, L.P.)
	 

	 	VERIFINE DAIRY PRODUCTS CORPORATION OF SHEBOYGAN, INC., a
Wisconsin corporation
	 

	 	WHITEWAVE FOODS COMPANY, a Delaware corporation (formerly
known as White Wave Foods Company, formerly known as Dean
National Brand Group, Inc., formerly known as Morningstar
Foods Inc.)
	 

	 	WHITE WAVE, INC., a Colorado corporation
	 

	 	WHITEWAVE SERVICES, INC., a Delaware corporation
	 

	 	WHITEWAVE SERVICES, LLC, a Delaware limited liability company
(successor by merger to Morningstar Services, Inc.)
	 
	 	 
	 
	 	 
	 
	 	 
	 

	 	Each of the above:
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent






 









 






	 	 	 
	 

	 	DEAN INTELLECTUAL PROPERTY SERVICES II, L.P., 

a Delaware limited partnership
	 
	 	 
	 

	 	By: DIPS GP II, LLC, its general partner
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent
	 
	 	 
	 

	 	DEAN INTELLECTUAL PROPERTY SERVICES, L.P.,

a Delaware limited partnership
	 
	 	 
	 

	 	By: DIPS GP, INC., its general partner
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent
	 
	 	 
	 

	 	SOUTHERN FOODS GROUP, L.P.,

a Delaware limited partnership
	 
	 	 
	 

	 	By: SFG MANAGEMENT LIMITED LIABILITY COMPANY,

        a Delaware limited liability company
	 
	 	 
	 

	 	By: /s/ Cory Olson
	 

	 	Name: Cory Olson
	 

	 	Title: Authorized Agent






 









 






	 	 	 
	AGENTS AND LENDERS:

	 	WACHOVIA BANK, NATIONAL ASSOCIATION, in
its capacity as Administrative Agent and
individually in its capacity as a Lender
and as Swingline Lender, on behalf of
itself and the other Lenders (other than
the Syndication Agent) pursuant to the
Authorization
	 
	 	 
	 

	 	By:__________________________________
	 

	 	Name:
	 

	 	Title:






 









 






	 	 	 
	 

	 	JPMORGAN CHASE BANK, N.A. in its capacity
as Syndication Agent and individually in
its capacity as a Lender
	 
	 	 
	 

	 	By:__________________________________
	 

	 	Name:
	 

	 	Title:






 









 






ANNEX I




Form of Lender Authorization




LENDER AUTHORIZATION




November 18, 2005




Wachovia Bank, National Association,

  as Administrative Agent

Mail Code: NC-0760

301 South College Street

Charlotte, NC 28288-0760

Attn: Syndication Agency Services




	 	 	 	 	 
	 

	 	Re:
	 	Second Amendment dated as of November 18, 2005 (the “Second Amendment”)
to the Amended and Restated Credit Agreement dated as of August 13, 2004 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”) by and among DEAN FOODS COMPANY, the Guarantors party thereto, the
Lenders party thereto (the “Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent (the “Administrative Agent”), JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and BANK OF AMERICA, N.A., HARRIS TRUST AND SAVINGS BANK and
SUNTRUST BANK, each as a Documentation Agent.






     This letter acknowledges our receipt and review of the Second Amendment in the form posted on
the Dean Foods Intralinks or SyndTrak workspace. By executing this letter, we hereby authorize the
Administrative Agent to execute and deliver the Second Amendment on our behalf.



     Each financial institution executing this Authorization agrees or reaffirms that it shall be a
party to the Credit Agreement and the other Credit Documents to which Lenders are parties and shall
have the rights and obligations of a Lender under each such agreement.



__________________________________________
[Insert name of applicable financial institution]




By:_______________________________________

Name:_____________________________________

Title:______________________________________