FIRST AMENDMENT Dated as of September 11, 2009 to TRANSFER AND ADMINISTRATION AGREEMENT Dated as of December 8, 2008
Exhibit 10 (cc)
FIRST AMENDMENT
Dated as of September 11, 2009
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of December 8, 2008
Dated as of September 11, 2009
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of December 8, 2008
This FIRST AMENDMENT (this “Amendment”), dated as of September 11, 2009, is entered
into among XXXXX PACKAGING LLC, a Delaware limited liability company (“Greif”), XXXXX
RECEIVABLES FUNDING LLC, a Delaware limited liability company (the “SPV”), the Investors,
Managing Agents and Administrators party hereto, and BANK OF AMERICA, N.A., as Agent (the
“Agent”).
RECITALS
WHEREAS, the parties hereto have entered into that certain Transfer and Administration
Agreement dated as of December 8, 2008 (the “Transfer and Administration Agreement”);
WHEREAS, the parties hereto desire to amend the Transfer and Administration Agreement as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein
and the Transfer and Administration Agreement, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein are used
as defined in the Transfer and Administration Agreement.
SECTION 2. Amendments to Transfer and Administration Agreement. The Transfer and
Administration Agreement is hereby amended as follows:
2.1. The following new definition is added to Section 1.1 of the Transfer and
Administration Agreement:
“Consolidated Fixed Charge Coverage Ratio” has the meaning assigned to such
term in the Senior Credit Agreement.
2.2. The definition of “Senior Credit Agreement” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended and restated in its entirety to read as follows:
““Senior Credit Agreement” means:
(a) the Credit Agreement dated as of February 19, 2009 (as amended, restated,
supplemented or otherwise modified and in effect from time to time), by and among Xxxxx,
Inc., a Delaware corporation, Xxxxx International Holding, B.V, a private limited liability
company (besloten vennootschap met beperlite aansprakelijkheid) incorporated and existing
under the laws of The Netherlands with statutory seat in Amstelveen, and certain other
wholly-owned subsidiaries of Xxxxx, Inc. party thereto, each lender from
time to time party thereto, and Bank of America, N.A., as administrative agent, a swing
line lender and letter of credit issuer; or
(b) if the agreement referred to in paragraph (a) is terminated or cancelled, any
secured or unsecured revolving credit or term loan agreement between or among Xxxxx, Inc.,
as borrower, and any bank or banks or financial institutions, as lenders(s), for borrowed
monies to be used for general corporate purposes of Xxxxx, Inc. and/or its Subsidiaries,
with an original term of not less than 3 years and an original aggregate loan commitment of
at least U.S.$250,000,000 or the equivalent thereof in any other currency and, if there is
more than one such revolving credit or term loan agreement, then such agreement which
involves the greatest original aggregate loan commitment(s) and, as between agreements
having the same aggregate original loan commitment(s), then the one which has the most
recent date; or
(c) if the agreement referred to in paragraph (a) above and all agreements, if any,
which apply under paragraph (b) have been terminated or cancelled, then so long as paragraph
(b) does not apply as the result of one or more new agreements being entered into, the
agreement which is the last such agreement under paragraph (a) or (b) to be so terminated or
cancelled as in effect (for purposes of this definition) pursuant to such paragraphs
immediately prior to such termination or cancellation.”
2.3. The definition of “Interest Coverage Ratio” in Section 1.1 of the
Transfer and Administration Agreement is hereby deleted in its entirety.
2.4. Section 7.5(g) of the Transfer and Administration Agreement is hereby amended and
restated in its entirety as follows:
“(g) the Consolidated Fixed Charge Coverage Ratio of the last day of any fiscal quarter
of the Servicer is less than 1.50 to 1.00 (or such other threshold as may from time to time
be set forth in the Senior Credit Agreement); or”
SECTION 3. Conditions Precedent. Section 2 hereof shall become effective on
the date on which the Agent (and each Managing Agent, upon its request) has received a counterpart
(or counterparts) of this Amendment, executed and delivered by each of the parties hereto, or other
evidence satisfactory to the Agent of the execution and delivery of this Amendment by such parties.
SECTION 4. Miscellaneous.
4.1. Representations and Warranties. The SPV hereby represents and warrants that (i)
this Amendment constitutes a legal, valid and binding obligation of the SPV, enforceable against it
in accordance with its terms and (ii) upon the effectiveness of this Amendment, no Termination
Event or Potential Termination Event shall exist.
4.2. References to Transfer and Administration Agreement. Upon the effectiveness of
this Amendment, each reference in the Transfer and Administration Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein”, or words of like import shall mean and be a
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reference to the Transfer and Administration Agreement as amended hereby, and each reference
to the Transfer and Administration Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Transfer and Administration Agreement shall mean
and be a reference to the Transfer and Administration Agreement as amended hereby.
4.3. Effect on Transfer and Administration Agreement. Except as specifically amended
above, the Transfer and Administration Agreement and all other documents, instruments and
agreements executed and/or delivered in connection therewith shall remain in full force and effect
and are hereby ratified and confirmed.
4.4. No Waiver. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of any Agent or any Investor under the Transfer
and Administration Agreement or any other document, instrument or agreement executed in connection
therewith, nor constitute a waiver of any provision contained therein, except as specifically set
forth herein.
4.5. Governing Law. This Amendment, including the rights and duties of the parties
hereto, shall be governed by, and construed in accordance with, the internal laws of the State of
New York.
4.6. Successors and Assigns. This Amendment shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
4.7. Headings. The Section headings in this Amendment are inserted for convenience of
reference only and shall not affect the meaning or interpretation of this Amendment or any
provision hereof.
4.8. Counterparts. This Amendment may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
| GREIF RECEIVABLES FUNDING LLC, as SPV |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| XXXXX PACKAGING LLC, individually, as an Originator and as the Servicer |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Signature Page to the First Amendment
| XX XXXX TRUST, as a Conduit Investor and an Uncommitted Investor |
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| By: |
Bank of America, National Association, as Administrative Trustee |
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| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
| BANK OF AMERICA, NATIONAL ASSOCIATION, as Agent and as Managing Agent, Administrator and Committed Investor for the Bank of America Investor Group |
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| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to the First Amendment
