Execution Version
Exhibit 10.4
AMENDMENT #2 TO RECEIVABLES SALE
AND CONTRIBUTION AGREEMENT
THIS AMENDMENT #2 RECEIVABLES
SALE AND CONTRIBUTION AGREEMENT (this “Amendment” ) is
entered into as of January 23, 2009, by and between
INTERNATIONAL PAPER COMPANY, a New York corporation (
“IPCO” ), and RED BIRD RECEIVABLES, LLC,
a Delaware limited liability company formerly known as Red Bird
Receivables, Inc. ( “Buyer” ), and
pertains to the Receivables Sale and Contribution Agreement between
IPCO and Buyer dated as of March 13, 2008 (the
“Existing Agreement” ). Capitalized terms
used and not otherwise defined herein are used with the meanings
attributed thereto in the Existing Agreement.
W I T N E S S E T H
:
WHEREAS,
the parties wish to modify the
Existing Agreement as hereinafter set forth;
NOW, THEREFORE,
in consideration of the premises and
the mutual agreements herein contained, the parties hereto hereby
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 Section 1.7 of the Existing
Agreement is hereby amended and restated in its entirety to read as
follows:
Section 1.7
Characterization . If, notwithstanding the intention of the
parties expressed in Section 1.2(c) , any sale or
contribution by IPCO to Buyer of Receivables hereunder shall be
characterized as a secured loan and not a sale or such sale shall
for any reason be ineffective or unenforceable (any of the
foregoing being a “Recharacterization” ),
then this Agreement shall be deemed to constitute a security
agreement under the UCC and other applicable law. For this purpose
and without being in derogation of the parties’ intention
that the sale of Receivables hereunder shall constitute a true sale
thereof, IPCO hereby grants to Buyer a duly perfected security
interest in all of IPCO’s right, title and interest in, to
and under all Receivables now existing and hereafter arising, all
Collections and Related Security with respect thereto, each Lock
Box and Collection Account, all other rights and payments relating
to the Receivables and all proceeds of the foregoing to secure the
prompt and complete payment of a loan deemed to have been made in
an amount equal to the Purchase Price of the Receivables together
with all other obligations of IPCO hereunder (collectively, the
“IPCO Collateral” ), which security
interest shall be prior to all other Adverse Claims thereto. Buyer
and its assigns shall have, in addition to the rights and remedies
which they may have under this Agreement, all other rights and
remedies provided to a secured creditor under the UCC and other
applicable law, which rights and remedies shall be cumulative. In
the case of any Recharacterization, each of IPCO and the Buyer
represents and warrants as to itself that each remi
