OMNIBUS AMENDMENT NO. 1
EXECUTION VERSION
Exhibit 10.1
OMNIBUS AMENDMENT NO. 1
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT AND
AMENDMENT NO. 1 TO FEE LETTERS
THIS OMNIBUS AMENDMENT NO. 1, dated as of June 26, 2009 (this Amendment), is by and among:
(a) RED BIRD RECEIVABLES, LLC, a Delaware limited liability company formerly known as Red Bird Receivables, Inc., a Delaware corporation (Borrower),
(b) INTERNATIONAL PAPER COMPANY, a New York corporation (International Paper and, together with Borrower, the Loan Parties and each, a Loan Party), as Servicer,
(c) GOTHAM FUNDING CORPORATION, a Delaware corporation as assignee of Victory Funding Corporation (together with its successors, Gotham), and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, in its capacity as a Liquidity Bank to Gotham (together with its successors, BTMU and, together with Gotham, the Gotham Group),
(d) PARK AVENUE RECEIVABLES COMPANY, LLC, a Delaware limited liability company (together with its successors, PARCO), and JPMORGAN CHASE BANK, N.A., in its capacity as a Liquidity Bank to PARCO (together with its successors, JPMorgan and, together with PARCO, the PARCO Group),
(e) STARBIRD FUNDING CORPORATION, a Delaware corporation (together with its successors, Starbird), and BNP PARIBAS, ACTING THROUGH ITS NEW YORK BRANCH, in its capacity as a Liquidity Bank to Starbird (together with its successors, BNP Paribas and, together with Starbird, the Starbird Group),
(f) CAFCO, LLC, a Delaware limited liability company (together with its successors, CAFCO and, together with Gotham, PARCO and Starbird, the Conduits), and CITIBANK, N.A., in its capacity as a Liquidity Bank to CAFCO (together with its successors, Citibank and, together with CAFCO, the CAFCO Group),
(g) THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, in its capacity as agent for the Gotham Group (together with its successors in such capacity, the Gotham Agent or a Co-Agent), JPMORGAN CHASE BANK, N.A., in its capacity as agent for the PARCO Group (together with its successors in such capacity, the PARCO Agent or a Co-Agent), BNP PARIBAS, ACTING THROUGH ITS NEW YORK BRANCH, in its capacity as agent for the Starbird Group (together with its successors in such capacity, the Starbird Agent or a Co-Agent), and CITICORP NORTH AMERICA, INC. in its capacity as agent for the CAFCO Group (CNAI and, together with its successors in such capacity, the CAFCO Agent or a Co-Agent), and
(h) CITICORP NORTH AMERICA, INC., as administrative agent for the Gotham Group, the PARCO Group, the Starbird Group, the CAFCO Group and the Co-Agents (in such capacity, together with any successors thereto in such capacity, the Administrative Agent and together with each of the Co-Agents, the Agents).
Capitalized terms used and not otherwise defined herein shall have the meanings attributed thereto in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto are parties to that certain Second Amended and Restated Credit and Security Agreement, dated as of March 13, 2008 (as amended or otherwise modified from time to time, the Credit Agreement);
WHEREAS, in connection with the Credit Agreement, each of the Co-Agents has entered into a Fee Letter with the Borrower and such Co-Agents Conduit (as amended or otherwise modified from time to time, the Fee Letters);
WHEREAS, the Loan Parties desire to amend the Credit Agreement and the Fee Letters as hereinafter set forth; and
WHEREAS, the Agents are willing to agree to such amendments on the terms and subject to the conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments. Effective on the date hereof, upon satisfaction of each of the conditions precedent set forth in Section 3 below:
1.1. The following definition in Exhibit I to the Credit Agreement is hereby amended and restated in its entirety to read as follows:
Required Reserve means, on any day during a Calculation Period, the aggregate of (AA) the Weyco Reserve plus (BB) the product of (a) the aggregate of (x) the greater of (i) the Reserve Floor or (ii) the sum of (A) the Loss Reserve and (B) the greater of (1) 7.5% or (2) the Dilution Reserve, (y) the Servicing Reserve and (z) the Interest Reserve, times (b) the Net Pool Balance as of the Cut-Off Date immediately preceding such Calculation Period.
1.2. The following new definition is hereby inserted into Exhibit I to the Credit Agreement in its appropriate alphabetical order:
Weyco Reserve means (a) for the May 2009 Calculation Period, $41,492,636, (b) for the June 2009 Calculation Period, $36,306,057, (c) for the July 2009 Calculation Period, $31,119,477, (d) for the August 2009 Calculation Period, $25,932,898, (e) for the September 2009 Calculation Period, $20,746,318, (f) for the October 2009 Calculation Period, $15,559,739, (g) for the November 2009 Calculation Period, $10,373,159, (h) for the December 2009 Calculation Period, $5,156,580, and (i) for the January 2010 Calculation Period and each Calculation Period thereafter, $0.
1.3. Each of the Fee Letters is hereby amended to provide that from and after the date of this Amendment, for any day when the Borrowing Base is less than $1 billion, each Groups Liquidity Fee (as defined in the Fee Letters) will be computed on 102% of the excess, if any, of the applicable Groups Liquidity Banks Commitments over such Groups Percentage of the difference between $1.0 billion and the Borrowing Base (such difference not to exceed such Groups Percentage of the Weyco Reserve).
2. Limited Waiver. Each of the Agents hereby waives any Amortization Event under Section 9.1(c) of the Credit Agreement resulting from the failure of the Loan Parties to provide the Monthly Reports when due for the Monthly Reporting Dates occurring in March 2009, April 2009 and May 2009 pursuant to Section 8.5 of the Credit Agreement. The limited waiver set forth in this Section 2 of the Amendment is effective solely for the purposes set forth herein and shall not, except as expressly provided herein, be deemed to (i) be a consent to any amendment, waiver or modification of any term or condition of the Credit Agreement or of any other Transaction Document, (ii) prejudice any right or rights that the Agents, Conduits or Liquidity Banks may have or may have in the future under or in connection with the Credit Agreement or any other Transaction Document or (iii) waive compliance with Section 8.5 of the Credit Agreement for any Monthly Reporting Date occurring in June 2009 or anytime thereafter.
3. Conditions Precedent. This Amendment shall become effective as of the date first above written upon execution and delivery by each of the parties hereto of a counterpart of this Amendment.
4. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW.
(b) Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.
(c) Ratification. Except as expressly amended hereby, each of the Credit Agreement and the Fee Letters remains unaltered and in full force and effect and is hereby ratified and confirmed.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their duly authorized officers as of the date hereof.
RED BIRD RECEIVABLES, LLC | ||
By: | /s/ D.E. Arick | |
Name: David E. Arick | ||
Title: President |
INTERNATIONAL PAPER COMPANY, AS SERVICER | ||
By: | /s/ Errol A. Harris | |
Name: Errol A. Harris | ||
Title: Vice President & Treasurer |
GOTHAM FUNDING CORPORATION | ||
By: | /s/ Louise E. Colby | |
Name: Louise E. Colby | ||
Title: Vice President |
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Liquidity Bank | ||
By: | /s/ Ravneet Mumick | |
Name: Ravneet Mumick | ||
Title: Authorized Signatory |
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Gotham Agent | ||
By: | /s/ Aditya Reddy | |
Name: Aditya Reddy | ||
Title: VP and Manager |
PARK AVENUE RECEIVABLES COMPANY, LLC | ||
By: JPMORGAN CHASE BANK, N.A., ITS ATTORNEY- IN-FACT | ||
By: | /s/ John M. Kuhns | |
Name: John M. Kuhns | ||
Title: Executive Director |
JPMORGAN CHASE BANK, N.A., | ||
as a Liquidity Bank and as PARCO Agent | ||
By: | /s/ John M. Kuhns | |
Name: John M. Kuhns | ||
Title: Executive Director |
STARBIRD FUNDING CORPORATION | ||
By: | /s/ Louise E. Colby | |
Name: Louise E. Colby | ||
Title: Vice President |
BNP PARIBAS, ACTING THROUGH ITS NEW YORK BRANCH, as a Liquidity Bank and as Starbird Agent | ||
By: | /s/ Sean Reddington | |
Name: Sean Reddington | ||
Title: Managing Director | ||
By: | /s/ Steve Parsons | |
Name: Steve Parsons | ||
Title: Managing Director |
CAFCO, LLC | ||
BY: CITICORP NORTH AMERICA, INC., ITS ATTORNEY-IN-FACT | ||
By: | /s/ Tom Sullivan | |
Name: Tom Sullivan | ||
Title: Director |
CITICORP NORTH AMERICA, INC., as CAFCO Agent and as Administrative Agent | ||
By: | /s/ Tom Sullivan | |
Name: Tom Sullivan | ||
Title: Director |
CITIBANK, N.A., | ||
as a Liquidity Bank | ||
By: | /s/ Tom Sullivan | |
Name: Tom Sullivan | ||
Title: Director |