SIXTH AMENDMENT Dated as of September 19, 2011 to TRANSFER AND ADMINISTRATION AGREEMENT Dated as of December 8, 2008
Exhibit 10.1
SIXTH AMENDMENT
Dated as of September 19, 2011
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of December 8, 2008
Dated as of September 19, 2011
to
TRANSFER AND ADMINISTRATION AGREEMENT
Dated as of December 8, 2008
This SIXTH AMENDMENT (this “Amendment”), dated as of September 19, 2011, is entered
into among XXXXX PACKAGING LLC, a Delaware limited liability company (“Greif”), XXXXX
RECEIVABLES FUNDING LLC, a Delaware limited liability company (the “SPV”), XXXXX, INC., a
Delaware corporation (the “Performance Guarantor”), the Investors, Managing Agents and
Administrators party hereto, and BANK OF AMERICA, NATIONAL ASSOCIATION, as Managing Agent, as
Administrator, as Committed Investor for the Bank of America Investor Group, and as Agent (in such
capacity, the “Agent”).
RECITALS
WHEREAS, the parties hereto have entered into that certain Transfer and Administration
Agreement dated as of December 8, 2008 (as amended or otherwise modified through the date hereof,
the “Transfer and Administration Agreement”);
WHEREAS, on the Closing Date, the Performance Guarantor delivered that certain Guaranty, dated
as of December 8, 2008 (as amended or otherwise modified through the date hereof, the “Greif
Guaranty”), to the Persons named therein in relation to the obligations of the Originators and
the Servicer under the Transaction Documents.
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 in 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 (or by reference 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. Clause (c) of the definition of “Aggregate Unpaids” in Section 1.1 of the
Transfer and Administration Agreement is hereby amended by inserting the following clause at the
end thereof, immediately before the period “, including, without limitation, any amounts owed
pursuant to Section 9.3 hereof”.
2.2. The definition of “Commitment Termination Date” in Section 1.1 of the Transfer
and Administration Agreement is hereby amended and restated in its entirety as follows:
““Commitment Termination Date” means September 19, 2014, or such later
date to which the Commitment Termination Date may be extended by the SPV, the Agent
and the Committed Investors (each in their sole discretion).”
2.3. The definition of “Concentration Limits” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended and restated in its entirety to read as follows
(including the footnote thereto set forth below):
““Concentration Limits” shall, at any time, be deemed exceeded if:
(a) the aggregate Unpaid Balance of all Receivables relating to a single
Obligor (together with its subsidiaries and Affiliates) exceeds (i) 2.50% of the
Aggregate Unpaid Balance at such time or (ii) if higher, the percentage of the
Aggregate Unpaid Balance specified below, contingent upon the Obligor’s public
unsecured debt rating.
| Obligor’s Public Unsecured Long- | ||||
| Term Debt Rating (S&P/Xxxxx’x)1 | Concentration Limit | |||
A/A2 or better |
10.0 | % | ||
A-/A3 to BBB/Baa2 |
10.0 | % | ||
BBB-/Baa3 |
5.0 | % | ||
Not rated or lower than BBB-/Baa3 |
2.5 | % | ||
(b) the aggregate Unpaid Balance of all Extended Term Receivables exceeds 17.5%
of the Aggregate Unpaid Balance at such time, or
(c) the aggregate Unpaid Balance of all Agricultural Receivables exceeds 12.5%
of the Aggregate Unpaid Balance at such time.”
2.4. The definition of “Dilution Horizon Ratio” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended and restated in its entirety to read as follows:
““Dilution Horizon Ratio” means, for any Calculation Period, the
greater of:
(a) 100%; and
(b) the ratio (expressed as a percentage) computed as of the most recent Month
End Date by dividing:
| 1 | The rating of an Obligor will be the lower of any
public unsecured debt rating of such Obligor as issued by either S&P or
Xxxxx’x. If such Obligor has only one rating from either S&P or Xxxxx’x, that
rating shall be used. |
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(i) the aggregate initial Unpaid Balance of sales by the Originators
giving rise to Receivables during the period equal to the greater of:
(x) such Calculation Period; and
(y) the product of: (I) such Calculation Period,
times (II) the ratio (expressed as a percentage) computed as
of the most recent Month End Date by dividing: (A) the
weighted average dilution horizon period as calculated and set forth
in the final report most recently delivered to the Agent pursuant to
Section 6.1(a)(i)(B), by (B) the number of days in
such Calculation Period (such period in this sub-clause (y),
the “AUP Dilution Horizon”), by
(ii) the Aggregate Unpaid Balance as of such Month End Date;
provided, however, that if the AUP Dilution Horizon is the greater
value as between sub-clauses (x) and (y) of clause (b)(i),
it shall not be utilized in calculating such clause (b)(i) prior to the
Month End Date that is at least ten (10) days following the delivery of such final
report to the Agent.”
2.5. The first proviso set forth in clause (b) of the definition of “Eligible
Receivable” in Section 1.1 of the Transfer and Administration Agreement is hereby amended
by (i) deleting the percentage “3.5%” therein and substituting the percentage “17.5%” therefor, and
(ii) deleting the percentage “9.0%” therein and substituting the percentage “12.5%” therefor.
2.6. The definition of “Facility Limit” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended by replacing the amount “$135,000,000” therein with the
amount “$130,000,000”.
2.7. The definition of “Fee Letter” in Section 1.1 of the Transfer and Administration
Agreement is hereby amended and restated in its entirety to read as follows:
““Fee Letter” means, as applicable, (i) the confidential letter
agreement among the SPV, the GP Originator and the Managing Agent for the Bank of
America Investor Group and (ii) each confidential letter agreement entered into by
the SPV and the GP Originator with any Managing Agent for an Investor Group that
becomes a party to this Agreement on or after the Closing Date.”
2.8. The definition of “Greif Guaranty” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended and restated in its entirety to read as follows:
““Greif Guaranty” or “Guaranty” means the Guaranty dated as of
the date hereof (as hereafter amended, supplemented or restated) delivered by Xxxxx,
Inc. to the Persons named therein in relation to the obligations of the Originators
and the Servicer under the Transaction Documents.”
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2.9. Clause (a) of the definition of “Minimum Percentage” in Section 1.1 of
the Transfer and Administration Agreement is hereby amended by deleting the number “0.12” therein
and substituting the number “0.10” therefor.
2.10. Clause (b)(i) of the definition of “Servicing Fee Reserve” in Section
1.1 of the Transfer and Administration Agreement is hereby amended by deleting the number “360”
therein and substituting the phrase “the number of days in the calendar year in which such
Servicing Fee rate is calculated (i.e., 365/366)” therefor.
2.11. The definition of “Stress Factor” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended and restated in its entirety to read as follows:
““Stress Factor” means 2.0.”
2.12. The definition of “Termination Date” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended and restated in its entirety to read as follows:
““Termination Date” means the earliest of (a) the Business Day
designated by the SPV to the Agent and the Managing Agents as the Termination Date
at any time following not less than five (5) days’ written notice to the Agent and
the Managing Agents, (b) the day upon which the Termination Date is declared or
automatically occurs pursuant to Section 8.2 and (c) the Commitment
Termination Date.”
2.13. The definition of “Transaction Documents” in Section 1.1 of the Transfer and
Administration Agreement is hereby amended by inserting “, the Notice Letter Agreement” immediately
following the clause “each Assignment and Assumption Agreement” therein.
2.14. Clause (b) of the definition of “Yield Reserve” in Section 1.1 of the
Transfer and Administration Agreement is hereby amended by deleting the number “360” therein and
substituting the phrase “the number of days in the calendar year in which such Base Rate is
calculated (i.e., 365/366)” therefor.
2.15. Section 1.1 of the Transfer and Administration Agreement is hereby amended by
inserting the following definitions therein, as alphabetically appropriate:
““Existing Law” means (a) the final rule title “Risk-Based Capital
Guidelines: Capital Adequacy Guidelines: Capital Maintenance: Regulatory Capital:
Impact of Modifications to Generally Accepted Accounting Principles: Consolidation
of Asset-Backed Commercial Paper Programs: and Other Related Issues,” adopted by the
United States bank regulatory agencies on December 15, 2009 (the “FAS 166/167
Capital Guidelines”); (b) the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act (“Xxxx Xxxxx Act”); (c) the revised Basel Accord prepared by
the Basel Committee on Banking Supervision as set out in the publication entitled:
“International Convergence of Capital Measurements and Capital Standards: a Revised
Framework” (“Basel II”); or (d) any rules, regulations, guidance,
interpretations, directives or requests from any Official Body relating to, or
implementing the FAS 166/167 Capital Guidelines, the Xxxx-Xxxxx Act or Basel II
(whether or not having the force of law).”
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““Notice Letter Agreement” means the letter agreement, dated as of
September 19, 2011, among the parties hereto, setting forth certain notice and
account information.”
2.16. Section 1.1 of the Transfer and Administration Agreement is hereby amended by
deleting the definitions of “External Rating”, “Implied Rating”, “Maturity Date”, “SFA” and “SFA
Event” in their entirety.
2.17. The second to last sentence of Section 2.7 of the Transfer and Administration
Agreement is hereby amended and restated in its entirety to read as follows:
“All computations of per annum fees hereunder shall be made on the
basis of a year of 365 (or in the case of a leap year, 366) days for the actual
number of days (including the first but excluding the last day) elapsed.”
2.18. Clause (iv) of Section 2.12(c) of the Transfer and Administration
Agreement is hereby amended by inserting the parenthetical “(including, without limitation, any
amounts owed pursuant to Section 9.3 hereof)” immediately following the term “Person”
therein.
2.19. Section 6.1(s) of the Transfer and Administration Agreement is hereby deleted in
its entirety.
2.20. Clause (ii) of Section 8.1(c) of the Transfer and Administration
Agreement is hereby amended by deleting the phrase “or Section 6.1(s)” therein.
2.21. Section 9.3 of the Transfer and Administration Agreement is hereby amended and
restated in its entirety to read as follows:
“SECTION 9.3 Indemnity for Taxes, Reserves and Expenses. (a) If after
the Closing Date, (w) the adoption of any Law or bank regulatory guideline or any
amendment or change in the administration, interpretation or application of any
existing or future Law or bank regulatory guideline by any Official Body charged
with the administration, interpretation or application thereof (including, without
limitation, any issuance pursuant to any Existing Law of any regulation that is not
in effect on the date hereof), (x) any directive, guidance or request of any
Official Body (in the case of any bank regulatory guideline, whether or not having
the force of Law), (y) the compliance of the Indemnified Party with, or the
application or implementation by the Indemnified Party of, any of the foregoing
subclauses (w) or (x), or (z) any change as determined in the reasonable discretion
of the Indemnified Party after the date hereof, in the compliance of the Indemnified
Party with, or the application or implementation by the Indemnified Party of, any
Existing Law (a “Change in Law”):
(i) shall subject any Indemnified Party (or its applicable lending
office) to any Taxes, duty or other charge (other than Taxes which are
covered by Section 9.4 or Excluded Taxes) with respect to this
Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the Asset Interest, or payments of amounts due hereunder,
or shall change the basis of taxation of payments to any Indemnified Party
of amounts payable in respect of this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Asset Interest, or
payments of amounts due hereunder or its obligation to advance funds
hereunder, under a Program Support Agreement or the credit or liquidity
support furnished by a Program Support Provider or otherwise in respect of
this Agreement, the other Transaction Documents, the ownership, maintenance
or financing of the Asset Interest (except for Taxes which are covered by
Section 9.4, and the imposition or changes in the rate of any
Excluded Tax imposed on such Indemnified Party);
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(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including any such requirement imposed by
the Board of Governors of the Federal Reserve System) against assets of,
deposits with or for the account of, or credit extended by, any Indemnified
Party or shall impose on any Indemnified Party or on the United States
market for certificates of deposit or the London interbank market any other
condition affecting this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Asset Interest, or payments of
amounts due hereunder or its obligation to advance funds hereunder, under a
Program Support Agreement or the credit or liquidity support provided by a
Program Support Provider or otherwise in respect of this Agreement, the
other Transaction Documents, or the ownership, maintenance or financing of
the Asset Interest (other than reserves already taken into account in
calculating the Eurodollar Reserve Percentage); or
(iii) shall impose upon any Indemnified Party any other condition or
expense (including any loss of margin, reasonable attorneys’ fees and
expenses, and expenses of litigation or preparation therefor in contesting
any of the foregoing, but excluding Taxes and Excluded Taxes) with respect
to this Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Asset Interest, or payments of amounts due
hereunder or its obligation to advance funds hereunder or under a Program
Support Agreement or the credit or liquidity support furnished by a Program
Support Provider or otherwise in respect of this Agreement, the other
Transaction Documents, or the ownership, maintenance or financing of the
Asset Interests,
and the result of any of the foregoing is to increase the cost to, or to reduce the
amount of any sum received or receivable by, such Indemnified Party with respect to
this Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the Asset Interest, the Receivables, the obligations hereunder, the
funding of any Investments hereunder or under a Program Support Agreement, by an
amount deemed by such Indemnified Party to be material, then, on the next Settlement
Date occurring at least ten (10) days after the demand by such Indemnified Party
through the applicable Managing Agent, the SPV shall pay to the applicable Managing
Agent, for the benefit of such Indemnified Party, such
additional amount or amounts as will compensate such Indemnified Party for such
increased cost or reduction.
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(b) If any Indemnified Party shall have determined that after the date hereof,
(i) the adoption of any applicable Law, bank regulatory guideline regarding capital
adequacy, or generally accepted accounting standard, or any change therein, or any
change in the interpretation or administration thereof by any Official Body,
(including, without limitation, any issuance pursuant to any Existing Law of any
regulation that is not in effect on the date hereof), (ii) any guidance, request or
directive regarding capital adequacy (in the case of any bank regulatory guideline,
whether or not having the force of law) of any such Official Body, or (iii) the
compliance of the Indemnified Party with, or the application or implementation by
the Indemnified Party of, any of the foregoing subclauses (i) or (ii), or (iii) any
change as determined in the reasonable discretion of the Indemnified Party, after
the date hereof, in the compliance of the Indemnified Party with, or the application
or implementation by the Indemnified Party of, any Existing Law, has or would have
the effect of reducing the rate of return on capital of such Indemnified Party (or
its parent) as a consequence of such Indemnified Party’s obligations hereunder or
with respect hereto to a level below that which such Indemnified Party (or its
parent) could have achieved but for the occurrences described in the foregoing
subclauses (i), (ii) or (iii) (taking into consideration its policies with respect
to capital adequacy) by an amount deemed by such Indemnified Party to be material,
then on the next Settlement Date occurring at least ten (10) days after demand, in
the form of a notice as set forth in clause (c) below, by such Indemnified
Party through the Agent or the applicable Managing Agent, the SPV shall pay to the
applicable Managing Agent, for the benefit of such Indemnified Party, such
additional amount or amounts as will compensate such Indemnified Party (or its
parent) for such reduction.
(c) Each Indemnified Party shall, as soon as practicable, notify the SPV in writing of
any event of which it has knowledge, occurring after the date hereof for which such
Indemnified Party will or will likely seek compensation pursuant to this Section
9.3; provided that no failure to give or any delay in giving such notice shall
affect the Indemnified Party’s right to receive such compensation. A notice by the Agent or
a Managing Agent on behalf of the applicable Indemnified Party claiming compensation under
this Section 9.3 and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining such amount,
the Agent or any applicable Indemnified Party may use any reasonable averaging and
attributing methods and shall have applied consistent return metrics to other similarly
situated Persons (after consideration of, among other things, factors including facility
pricing, structure, usage patterns, capital treatment and relationship) with respect to such
amount and compensation. Any demand for compensation under this Section 9.3 shall
be accompanied by a certificate as to the amount requested which shall set forth a
reasonably detailed calculation for such requested amount. Notwithstanding anything in this
Agreement to the contrary, the SPV shall not be obligated to make any payment to any
Indemnified Party under this Section 9.3 for any period prior to the date on which
such Indemnified Party gives written notice to the SPV of its intent to request such payment
under this Section 9.3.
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(d) Notwithstanding anything herein to the contrary, any indemnity payable
under this Section 9.3 shall be payable by the SPV in accordance with the
priority of payments in Section 2.12.”
2.22. A new clause (h) is hereby added to Section 11.8 of the Transfer and
Administration Agreement at the end thereof to read as follows:
“(h) Notwithstanding any other provision of this Agreement to the contrary, any
Investor may at any time pledge or grant a security interest in all or any portion
of its rights (including any portion of the Net Investment and any rights to payment
of the outstanding Net Investment and Yield) under this Agreement to secure
obligations of such Investor to a Federal Reserve Bank, the U.S. Treasury or the
Federal Deposit Insurance Corporation without notice to, or the consent of, any
Originator, the SPV, Xxxxx, Inc. or any Agent; provided, however, that no such
pledge or grant of a security interest shall release an Investor from any of its
obligations hereunder, or substitute any such pledgee or grantee for such Investor
as a party hereto.”
2.23. The first sentence of Section 11.9 of the Transfer and Administration Agreement
is hereby amended by inserting the clause “or otherwise in accordance with Rule 17g-5 of the
Securities Exchange Act of 1934” immediately following the clause “any nationally recognized
statistical rating organization rating a Conduit Investor’s Commercial Paper” therein.
2.24. The amount set forth as the “Commitment” on the signature page to the Transfer and
Administration Agreement of the Committed Investor for the Bank of America Investor Group is hereby
amended by replacing the amount “$135,000,000” therein with the amount “$130,000,000”.
2.25. The Transfer and Administration Agreement is hereby amended by replacing each occurrence
of “Schedule 11.3” therein with the phrase “the Notice Letter Agreement”.
2.26. Schedule 11.3 to the Transfer and Administration Agreement is hereby deleted in
its entirety.
SECTION 3. Ratification of the Greif Guaranty. The Performance Guarantor hereby
acknowledges and agrees that, immediately after giving effect to this Amendment, the Greif Guaranty
shall remain in full force and effect and is hereby ratified and confirmed in all respects.
SECTION 4. Conditions Precedent. Section 2 hereof shall become effective on
the date first written above upon receipt by the Agent (and each Managing Agent, upon its request)
of: (a) a counterpart (or counterparts) of this Amendment, duly executed by each of the parties
hereto, or other evidence satisfactory to the Agent of the execution and delivery of this Amendment
by such parties, (b) a counterpart (or counterparts) of that certain fee letter agreement, dated as
of the date hereof, among the SPV, Greif and Bank of America, National Association, duly executed
by each of the parties thereto, together with payment of the “renewal fee” as referred to therein,
(c) a counterpart (or counterparts) of that certain letter agreement, dated as of the date hereof,
among the parties hereto, setting forth certain notice and account information, duly executed by
each of the parties thereto, and (d) confirmation of receipt of
payment within thirty (30) days of the date hereof by Xxxxx Xxxxx LLP, counsel to the Agent,
of its reasonable legal fees in connection herewith.
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SECTION 5. Miscellaneous.
5.1. Representations and Warranties. Each of the SPV, Greif and the Performance
Guarantor hereby represents and warrants that (i) this Amendment constitutes a legal, valid and
binding obligation of it, enforceable against it in accordance with its terms, (ii) upon the
effectiveness of this Amendment, no Termination Event, Potential Termination Event or Servicer
Default shall exist and (iii) its representations and warranties as set forth in the Transaction
Documents, as applicable, are true and correct in all material respects (except those
representations and warranties qualified by materiality or by reference to a material adverse
effect, which are true and correct in all respects) on and as of the date hereof as though made on
and as of the date hereof (unless such representations and warranties specifically refer to a
previous day, in which case, they shall be complete and correct in all material respects (or, with
respect to such representations or warranties qualified by materiality or by reference to a
material adverse effect, complete and correct in all respects) on and as of such previous day).
5.2. 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 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.
5.3. 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.
5.4. 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. The parties hereto hereby agree that this Amendment is a Transaction Document.
5.5. 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.
5.6. 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.
5.7. 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.
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5.8. 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.
| XXXXX RECEIVABLES FUNDING LLC, as SPV |
||||
| 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 |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| XXXXX, INC., as Performance Guarantor |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Signature Page to the Sixth Amendment
| BANK OF AMERICA, NATIONAL ASSOCIATION, as Agent and as Managing Agent, Administrator and Committed Investor for the Bank of America Investor Group |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
Signature Page to the Sixth Amendment
