Exhibit 10.12(k)
AMENDMENT NO. 2 TO RECEIVABLES PURCHASE AND SALE AGREEMENT
This AMENDMENT NO. 2, dated as of August 19, 1997 (this
"Amendment"), to that certain Receivables Purchase and Sale
Agreement (as hereinafter defined) is made among Jefferson Smurfit
Corporation (U.S.) ("JSC") as the Seller and as the Servicer,
Jefferson Smurfit Finance Corporation, a Delaware corporation, as
the Purchaser ("Xxxxx"), Bankers Trust Company as Facility Agent
(the "Facility Agent") and Banks Brussels Xxxxxxx, New York Branch
as the Term Bank (the "Term Bank").
W I T N E S S E T H:
WHEREAS, on February 23, 1995, JSC and Xxxxx entered into that
certain Receivables Purchase and Sale Agreement, as amended by the
First Omnibus Amendment, dated as of March 31, 1996 (as amended,
the "Receivables Purchase and Sale Agreement");
WHEREAS, the Receivables Purchase and Sale Agreement currently
does not provide for an adjustment of the Purchase Price reflecting
discounts relating to the Receivables;
WHEREAS, Xxxxx has requested that the Receivables Purchase and
Sale Agreement be amended to require the Purchase Price to be
reduced on each Business Day by the Discount Adjustment (as defined
below);
WHEREAS, Xxxxx has agreed to pay the Banks an amount equal to
.05% times the Commitments;
NOW THEREFORE, in consideration of the premises and the terms
and covenants contained herein, the receipt and sufficiency of
which consideration is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the
Receivables Purchase and Sale Agreement. The parties hereto agree
to amend Section 1.01 of the Receivables Purchase and Sale
Agreement by adding terms as follows:
"Discount" shall mean, with respect to any Receivable, the
actual reduction in the Outstanding Balance of that Receivable as
a result of any cash discount granted by the Seller, Indirect
Seller or Servicer to an Obligor of that Receivable.
"Discount Adjustment" shall mean, on any date, amounts owed by
the Seller to Xxxxx pursuant to Section 2.02(f) of the Receivables
Purchase and Sale Agreement on account of Discount reported for
such date with respect to the Receivables, which payments shall
equal the sum of (i) the aggregate amount of Discount, and (ii) an
amount equal to .125 % of the Purchase Price of the Receivables.
2. Amendment to Receivables Purchase and Sale Agreement.
The parties hereto agree to amend Section 2.02(f) of the
Receivables Purchase and Sale Agreement as set forth in this
Section 2.
2.02(f) Adjustments to Purchase Price. Section 2.02(f) is
hereby amended as follows:
On each Business Day after the Initial Purchase
Date and prior to December 31, 1996, the Seller shall (or
shall cause the Servicer to) report the amount of
Dilution which occurred with respect to such Seller's
Receivables on the prior Business Day, and the Dilution
Adjustment owing on account of such Dilution, and the
Dilution Adjustment shall be deducted from the applicable
Purchase Price which would, but for this Section 2.02(f),
otherwise be payable to such Seller on such date. On
each Business Day on or after January 1, 1997, the Seller
shall (or shall cause the Servicer to) report the amount
of Dilution and Discount which occurred with respect to
such Seller's Receivables on the prior Business Day, and
the Dilution Adjustment and Discount Adjustment owing on
account of such Dilution and Discount, respectively, and
the sum of the (A) the Dilution Adjustment, plus (B) the
Discount Adjustment shall be deducted from the applicable
Purchase Price which would, but for this Section 2.02(f),
otherwise be payable to such Seller on such date. If any
Dilution on any Business Day relates to goods which are
returned to a Seller or repossessed by a Seller, then,
concurrently with payment of such Dilution Adjustment
(whether through offset or otherwise), Xxxxx shall assign
and transfer to the Seller, without any further action or
consideration, all of Xxxxx'x right, title and interest
in and to such returned or repossessed goods. In
addition, if, on the Business Day immediately preceding
any date that the Seller reports the amount of Dilution
and/or Discount, Xxxxx has (a) notified the Seller that
any Receivables previously sold to Xxxxx under this
Agreement have been discovered to have been Noncomplying
Receivables at the time of sale and (b) requested that
the Seller pay to Xxxxx a Noncomplying Receivables
Adjustment on account of such Noncomplying Receivables,
then any such Noncomplying Receivables Adjustment payable
by the Seller shall also be credited against the
applicable Purchase Price which would, but for this
Section 2.02(f), otherwise be payable to the Seller on
such date. If the sum of the applicable (i) Dilution
Adjustment, plus (ii) on or after January 1, 1997,
Discount Adjustment, plus (iii) any Noncomplying
Receivables Adjustment payable by the Seller on any date
exceeds the applicable Purchase Price otherwise owing to
the Seller, Xxxxx shall apply such excess to reduce the
principal amount outstanding under the applicable Short-
Term Note and, in the event the principal outstanding
under such Short-Term Note has been reduced to zero, as
a credit against the Purchase Price otherwise payable for
future purchases of Receivables from the Seller;
provided, however, that if any such credit is not fully
utilized within five Business Days, the Seller shall pay
to Xxxxx the remaining amount of any such credit on the
next following Business Day in cash.
3. Representations and Warranties of Xxxxx. In order to
induce JSC, the Facility Agent and the Term Bank to enter into this
Amendment and to amend the Receivables Purchase and Sale Agreement
in the manner provided herein, Xxxxx represents and warrants to
JSC, the Facility Agent and the Term Bank that (i) all of the
representations and warranties contained in the Receivables
Purchase and Sale Agreement are true and correct in all material
respects as of the date hereof except to the extent such
representations and warranties relate to an earlier date, in which
case they are true as of such date, (ii) Xxxxx has all requisite
corporate power and authority to enter into this Amendment and the
Receivables Purchase and Sale Agreement as amended hereby and to
perform its obligations thereunder, (iii) the execution, delivery
and performance of this Amendment and the Receivables Purchase and
Sale Agreement as amended hereby have been duly and effectively
authorized by all necessary corporate action on the part of Xxxxx,
(iv) the execution, delivery and performance of this Amendment and
the Receivables Purchase and Sale Agreement as amended hereby will
not violate any charter, by-law or contract provision, or any
license, franchise or permit, law, statute, regulation order or
decree applicable to Xxxxx, (v) the execution, delivery and
performance of this Amendment and the Receivables Purchase and Sale
Agreement as amended hereby will not conflict with, result in a
breach of or constitute (with due notice or lapse of time or both)
a default under the Receivables Purchase and Sale Agreement, (vi)
no order, decree or judgment of or in any court of competent
jurisdiction makes the execution, delivery or performance of this
Amendment or the Receivables Purchase and Sale Agreement as amended
hereby illegal and no action, suit, or proceeding shall be pending
or threatened or any investigation by any governmental or
regulatory authority shall have been commenced which could result
in any such order, decree or judgment, and (vii) no authorization,
consent, or approval of, or filing with, any public body or
authority of the United States or any State thereof which has not
already been made or obtained is required for the execution,
delivery or performance of this Amendment or the Receivables
Purchase and Sale Agreement as amended hereby and no authorization,
consent or approval of any third party, which has not been
obtained, is required with respect thereto.
4. Additional Deliveries. As conditions precedent to the
effectiveness of this Amendment, Xxxxx shall deliver to JSC, the
Facility Agent and the Term Bank a copy of the resolutions duly
adopted by the Board of Directors of Xxxxx, certified by the
Secretary or Assistant Secretary of Xxxxx, authorizing the matters
contemplated hereby and execution of this Amendment.
5. Effect of Amendment. Execution of this Amendment by JSC
shall not operate as a waiver of (i) any other right, power or
remedy of JSC, the Facility Agent and the Term Bank under the
Receivables Purchase and Sale Agreement or (ii) any default of
Xxxxx under the Receivables Purchase and Sale Agreement
6. Fees, Costs and Expenses. The provisions of subsection
7.06 of the Receivables Purchase and Sale Agreement are hereby
incorporated by reference as if fully set forth herein and made
applicable to this Amendment.
7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. This Amendment shall
become retroactively effective as of January 1, 1997 upon receipt
by JSC, the Facility Agent and the Term Bank of counterparts hereof
duly executed by Xxxxx, the Facility Agent, the Term Bank and JSC.
8. Headings. Headings used in this Amendment are for
convenience of reference only and shall not affect the construction
of this Amendment.
9. Reaffirmation of Receivables Purchase and Sale Agreement.
The parties hereto agree and acknowledge that nothing contained in
this Amendment in any manner or respect limits or terminates any of
the provisions of the Receivables Purchase and Sale Agreement other
than as expressly set forth herein and further agree and
acknowledge that the Receivables Purchase and Sale Agreement
remains and continues in full force and effect and is hereby
ratified and reaffirmed in all respects. No delay on the part of
JSC in exercising any of their respective rights, remedies, powers
and privileges under the Receivables Purchase and Sale Agreement or
partial or single exercise thereof, shall constitute a waiver
thereof. None of the terms and conditions of this Amendment may be
changed, waived, modified or varied in any manner, whatsoever,
except in accordance with the Receivables Purchase and Sale
Agreement.
10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT
OTHERWISE WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS
OF THE STATE OF NEW YORK).
[Balance of page intentionally left blank. Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written by
their duly authorized representatives.
JEFFERSON SMURFIT CORPORATION (U.S.),
as the Seller
By: _____________________________________
Name: ___________________________________
Title:___________________________________
JEFFERSON SMURFIT CORPORATION (U.S.),
as the Servicer
By: _____________________________________
Name: ___________________________________
Title:___________________________________
JEFFERSON SMURFIT FINANCE CORPORATION,
as the Purchaser
By:______________________________________
Name:____________________________________
Title:___________________________________
BANKS BRUSSELS XXXXXXX, NEW YORK
BRANCH, as Term Bank
By:______________________________________
Name:____________________________________
Title:___________________________________
BANKERS TRUST COMPANY,
as Facility Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
