Amendment No. 4 to Receivables Sale Agreement, dated as of October 16, 2018, by and among KapStone Paper and Packaging Corporation, as Servicer, KapStone Receivables, LLC, as Buyer, and KapStone Kraft Paper Corporation, KapStone Container Corporation, KapStone Charleston Kraft LLC, Longview Fibre Paper and Packaging, Inc., and Victory Packaging, L.P., as originators
Exhibit 10.31
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
THIS AMENDMENT NO. 4 TO RECEIVABLES SALE AGREEMENT (this “Amendment”) is dated as of October 18, 2018 (the “Effective Date”), by and among:
(a) KAPSTONE KRAFT PAPER CORPORATION, a Delaware corporation, KAPSTONE CONTAINER CORPORATION, a Georgia corporation, LONGVIEW FIBRE PAPER AND PACKAGING, INC., a Washington corporation, KAPSTONE CHARLESTON KRAFT LLC, a Delaware limited liability company, and VICTORY PACKAGING, L.P., a Texas limited partnership (each, an “Originator” and, collectively, the “Originators”),
(b) KAPSTONE PAPER AND PACKAGING CORPORATION, a Delaware corporation, as servicer (the “Servicer”), and
(c) KAPSTONE RECEIVABLES, LLC, a Delaware limited liability company (the “Buyer”).
Capitalized terms used, but not defined, herein shall have the meanings given to such terms in the Sale Agreement defined below.
W I T N E S S E T H:
WHEREAS, the Originators, the Servicer and the Buyer have entered into that certain Receivables Sale Agreement dated as of September 26, 2014 (as amended, modified or restated from time to time, the “Sale Agreement”); and
WHEREAS, the parties hereto desire to amend the Sale Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the other mutual covenants contained herein, the parties hereto agree as follows:
SECTION 1. Amendment.
1.1. The definition in Exhibit I to the Sale Agreement of the following defined term is hereby amended and restated in its entirety to read as follows:
“Excluded Receivable” means (a) any API Receivable, (b) any Receivable denominated in any currency other than U.S. Dollars, and (c) any Receivables as to which the Obligor is a Specified Obligor (as defined in the Fee Letter) that has been sold into a supply chain financing program that arise at least five (5) Business Days after the date on which written notice is delivered by any Originator or the Buyer to the Administrative Agent and the Purchasers that such Receivables will be included in a supply chain financing program and certifying that all such Receivables created in the calendar month then most recently ended represent less than 5% of total Eligible Receivables; provided, however, that any Receivables as to which the Obligor is a Specified Obligor that arise at least five (5) Business Days after the date on which written notice is delivered by any Originator or the Buyer to the Administrative Agent and the
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Purchasers that such Receivables are no longer included in a supply chain financing program and certifying that all such Receivables created in the calendar month then most recently ended represent less than 5% of total Eligible Receivables will not be “Excluded Receivables.”
For the avoidance of doubt, any Receivable as to which the Obligor is a Specified Obligor that has been sold into a supply chain financing program prior to the date of this Amendment is an Excluded Receivable.
SECTION 2. Representations and Warranties of the Originators. Each of the Originators represents and warrants to the Buyer that, after giving effect to the provisions of Section 1 above, all representations and warranties of such Originator set forth in Section 2.1 of the Sale Agreement are true and correct with respect to such Originator on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct with respect to such Originator as of such earlier date. All representations and warranties made hereunder shall be deemed to have been made by the Originators under the Sale Agreement on the date hereof.
SECTION 3. Effect of Amendment. Except as specifically amended hereby, the Sale Agreement and all exhibits and schedules attached thereto shall remain in full force and effect. This Amendment shall not constitute a novation of the Sale Agreement, but shall constitute an amendment to the Sale Agreement and the exhibits attached thereto to the extent set forth herein.
SECTION 4. Binding Effect. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
SECTION 5. Effectiveness. This Amendment shall become effective on the Effective Date subject to the prior or contemporaneous satisfaction of each of the following conditions precedent:
5.1. The Administrative Agent shall have received counterparts of this Amendment, duly executed by each of the parties hereto and consented to by each of the Purchasers in the space provided below; and
5.2. Each of the representations and warranties contained in Article II of the Sale Agreement shall be true and correct in all material respects, it being understood that the foregoing materiality qualifier shall not apply to any representation that itself contains a materiality threshold.
SECTION 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of laws principles (other than section 5-1401 of the New York General Obligations law).
SECTION 7. Execution in Counterparts; Severability. 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 taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment. In case any provision in or obligation under this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have hereunder set their hands as of the date first above written.
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| KAPSTONE KRAFT PAPER CORPORATION, | |
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| as an Originator | |
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| By: | /s/Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Chief Financial Officer |
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| KAPSTONE CONTAINER CORPORATION, | |
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| as an Originator | |
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| By: | /s/ Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Chief Financial Officer |
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| LONGVIEW FIBRE PAPER AND PACKAGING, INC., as an Originator | |
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| By: | /s/Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Chief Financial Officer |
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| KAPSTONE CHARLESTON KRAFT LLC, as an Originator | |
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| By: | /s/ Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Chief Financial Officer |
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| VICTORY PACKAGING, L.P., as an Originator | |
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| By: | /s/Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Vice President |
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| KAPSTONE PAPER AND PACKAGING CORPORATION, as Servicer | |
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| By: | /s/Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Chief Financial Officer |
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| KAPSTONE RECEIVABLES, LLC, as the Buyer | |
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| By: | /s/Andrea Tarbox |
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| Name: | Andrea Tarbox |
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| Title: | Treasurer |
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Each of the undersigned hereby consents to the foregoing Amendment No. 4:
| WELLS FARGO BANK, N.A., AS ADMINISTRATIVE AGENT AND A PURCHASER |
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| By: | /s/ Michael J. Landry |
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| Name: | Michael J. Landry |
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| Title: | Director |
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| PNC BANK, NATIONAL ASSOCIATION, AS A PURCHASER |
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| By: | /s/Michael Brown |
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| Name: | Michael Brown |
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| Title: | Senior Vice President |
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| SUMITOMO MITSUI BANKING CORPORATION, NEW YORK BRANCH, AS A PURCHASER |
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| By: | /s/Katsuyuki Kubo |
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| Name: | Katsuyuki Kubo |
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| Title: | Managing Director |
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| COÖPERATIEVE RABOBANK, U.A., NEW YORK BRANCH, AS A PURCHASER |
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| By: | /s/ Christopher Lew |
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| Name: | Christopher Lew |
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| Title: | Executive Director |
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| By: | /s/Thomas McNamara |
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| Name: | Thomas McNamara |
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| Title: | Executive Director |
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