Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT
This AMENDMENT NO. 1 (this “
Amendment ”) dated as of July 15, 2009 is entered
into among JWPR CORPORATION (“ JWPR ”), as
Seller and Servicer, LIBERTY STREET FUNDING LLC (“
Liberty ”), as the sole Conduit, and THE BANK OF NOVA
SCOTIA, as agent (in such capacity, the “ Agent
”) and as the sole Financial Institution (in such capacity,
the “ Financial Institution ” and together with
the Conduit, the “ Purchasers ”). Capitalized
terms used herein without definition shall have the meanings
ascribed thereto in the “Receivables Purchase
Agreement” referred to below.
PRELIMINARY STATEMENTS
Reference is made to that certain
Third Amended and Restated Receivables Purchase Agreement dated as
of December 10, 2008, among JWPR, Liberty, the Agent, the
Managing Agents and the Financial Institutions from time to time
party thereto (as amended, restated, supplemented or modified from
time to time, the “ Receivables Purchase Agreement
”). The parties hereto have agreed to, among other things,
amend the Receivables Purchase Agreement and transfer the Specified
Assets (as defined below) to the Seller.
NOW THEREFORE, in consideration of
the premises herein contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Amendments .
Subject to the satisfaction of the conditions precedent set forth
in Section 5 hereof, the parties hereto agree that the
Receivables Purchase Agreement is hereby amended as
follows:
(a) Sections 1.5(b) and (c) of
the Receivables Purchase Agreement are hereby amended to delete
each reference to “Settlement Date” set forth therein
and replace each such reference with “Accrual Period End
Date”.
(b) The third sentence of
Section 2.2 of the Receivables Purchase Agreement is hereby
amended to delete the phrase “On each Settlement Date”
appearing therein and to replace such phrase with the phrase
“On each Settlement Date (or, in the case of any amounts
owing to any Program F/X Counterparty, on each Accrual Period End
Date)”.
(c) The third sentence of
Section 2.2 of the Receivables Purchase Agreement is hereby
further amended to delete the phrase “during the preceding
Settlement Period” appearing therein and to replace such
phrase with the phrase “in accordance with the terms
hereof”.
(d) The third sentence of
Section 2.2 of the Receivables Purchase Agreement is hereby
further amended to delete each reference to “Settlement
Date” appearing in clauses first and fourth
thereof and to replace each such reference with “Accrual
Period End Date”.
(e) The fourth sentence of
Section 2.2 of the Receivables Purchase Agreement is hereby
amended by inserting “or Accrual Period End Date, as
applicable” immediately after the reference to
“Settlement Date” set forth therein.
(f) The fifth sentence of
Section 2.2 of the Receivables Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
“If such Capital, CP Costs,
Yield and other Obligations shall be reduced to zero, any
additional Collections received by the Servicer (i) if
applicable, shall be remitted to the Agent no later than 12:00 noon
(New York City time) to the extent required to fund any Aggregate
Reduction designated by the Seller on such Settlement Date or
Accrual Period End Date, as applicable, and (ii) any balance
remaining thereafter shall be remitted from the Servicer to Seller
on such Settlement Date or Accrual Period End Date, as applicable,
shall be set aside for the payment of all accrued but unpaid
Obligations and, after setting aside such amounts, any balance
remaining thereafter may be used by Seller to purchase additional
Receivables or make payments in respect of Subordinated Loans (as
defined in any applicable Receivables Sale Agreement) in accordance
with the terms of the applicable Receivables Sale
Agreement.”
(g) Section 2.4 of the
Receivables Purchase Agreement is hereby amended to delete the
reference to “Settlement Date” appearing in clause
“first” of such section and replace such reference with
“Accrual Period End Date”.
(h) Section 3.2 of the
Receivables Purchase Agreement is hereby amended to delete the
defined term “Settlement Date” appearing therein and to
replace such defined term with the defined term “Scheduled
Settlement Date”.
(i) Section 9.1(f)(i) of the
Receivables Purchase Agreement is hereby amended to delete the
percentage “6.0%” appearing therein and to replace such
percentage with the percentage “8.0%”.
(j) Section 9.1(f)(iii) of the
Receivables Purchase Agreement is hereby amended to delete the
percentage “7.5%” appearing therein and to replace such
percentage with the percentage “6.0%”.
(k) Article XIV to the Receivables
Purchase Agreement is hereby amending by adding the following
Sections 14.18 and Section 14.19 to the end of such
article:
“Section 14.18 JD-UK
Receivables . Notwithstanding anything herein to the contrary,
from and after July 15, 2009, none of the calculations
required to be made hereunder or under any other Transaction
Document shall be calculated giving effect to any UK Receivables
(including, without limitation, the calculations of the Aggregate
Reserves or any of the portfolio triggers set forth in
Section 9.1(f) , in any case, regardless of whether any
such calculation are made as of a date before or after
July 15, 2009).
Section 14.19 JPM ISDA
Master Agreement . On or before August 15, 2009, the
Seller shall deliver to the Agent evidence reasonably satisfactory
to the Agent that the ISDA Master Agreement between JPMorgan Chase
Bank, N.A. and the Seller has been terminated.”
(l) The definition of “Accrual
Period” set forth in Exhibit I to the Receivables Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
“ Accrual Period
” means (A) the period commencing on (and including)
July 1, 2009 to (and including) July 15, 2009 and
(B) from and after the end of the Accrual Period referenced in
clause (A), each period commencing on (and including)
2
the first Thursday following a
Reporting Date to (and including) the first Wednesday following the
Reporting Date immediately after such Reporting Date (such date,
the “ Accrual Period End Date ”);
provided that if an Amortization Event occurs and is
continuing, “Accrual Period” means any other period
designated by the Agent as an “Accrual
Period”.
(m) The definition of
“Concentration Limit” set forth in Exhibit I to the
Receivables Purchase Agreement is hereby amended to (i) delete
“Wal-Mart Stores, Inc.” from the table appearing
therein, (ii) add the phrase “each of” immediately
prior to the phrase “Bunzl Retail Supplies, Ltd.”
appearing therein and (iii) add the phrase “and Wal-Mart
Stores, Inc.” immediately after the parenthetical appearing
in the final sentence thereof.
(n) The definition of
“Dilution Reserve” set forth in Exhibit I to the
Receivables Purchase Agreement is hereby amended to delete the
percentage “5.0%” appearing therein and to replace such
percentage with the percentage “8.0%”.
(o) The definition of
“Eligible Receivable” set forth in Exhibit I to the
Receivables Purchase Agreement is hereby amended to (a) delete
clauses (xix) through (xxxii) thereof, (b) delete
the word “and” appearing at the end of clause
(xvii) thereof, (c) delete the period appearing at the
end of clause (xviii) thereof and to replace such period with
“; and” and (d) add the following as a new clause
(xix) thereof:
(xix) that is not a UK
Receivable.
(p) The definition of
“Liquidity Termination Date” set forth in Exhibit I to
the Receivables Purchase Agreement is hereby amended to delete the
date “December 9, 2009” appearing therein and to
replace such date with the date “July 14,
2010”.
(q) The definition of
“Settlement Date” set forth in Exhibit I to the
Receivables Purchase Agreement is hereby amended and restated in
its entirety to read as follows:
“ Settlement Date
” means (A) the seventh day following the last day of
any Accrual Period (or, if such day is no
