E XECUTION V ERSION
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-Agent’s 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 Group’s Liquidity Fee (as defined in the Fee
Letters) will be computed on 102% of the excess, if any, of the
applicable Group’s Liquidity Banks’ Commitments over
such Group’s Percentage of the difference between $1.0
billion and the Borrowing Base (such difference not to exceed such
Group’s 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
th
