Exhibit 10.1


 


FIFTH AMENDMENT TO CREDIT AND SECURITY
AGREEMENT


 


THIS
FIFTH AMENDMENT (the “Amendment”), dated
as of October 8,2004, is entered into between Packaging Receivables Company, LLC, a Delaware limited liability
company (the “Borrower”), Packaging Credit Company, LLC, a Delaware limited
liability company (the “Servicer”), Blue Ridge Asset Funding Corporation (“Blue Ridge”), as a Lender and Wachovia Bank National
Association (“Wachovia”), as Agent and a Lender;


 


WITNESSETH:


 


WHEREAS, the Borrower, the Servicer, Blue Ridge and Wachovia have heretofore
executed and delivered
a Credit and Security Agreement, dated as of November 29, 2000 (as amended, supplemented or otherwise modified through
the date hereof, the “Credit Agreement”),


 


WHEREAS,
the parties hereto desire to amend the Credit Agreement as provided herein;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree that the Credit Agreement
shall be and is hereby amended as follows:


 


Section 1.           Sections l.2(c) and (d) of the Credit
Agreement are hereby amended in their entirety and as so amended shall read
as follows:


 


(c)        While it is the intent of Blue Ridge to fund each requested Advance through the issuance of Commercial
Paper Notes, the parties acknowledge that if Blue Ridge is unable, or determines
that it is undesirable, to issue Commercial Paper Notes to fund all or any portion the Loans, or is unable to repay such Commercial Paper Notes upon the maturity thereof,
Blue Ridge may put all or any portion of its Loans to the Liquidity Banks at any time pursuant to the Liquidity Agreement to
finance or refinance the necessary
portion of its Loans through a Liquidity Funding to the extent available. The Liquidity
Fundings may be Alternate Base Rate
Loans or Eurodollar Loans, or a combination thereof, selected by the Borrower in accordance with Article II. Regardless of whether a Liquidity Funding constitutes
an assignment of a Loan or the sale of one or more participations therein, each Liquidity Bank participating in
a Liquidity Funding shall have the rights of a “Lender” hereunder with the same
force and effect as if it had directly made a Loan to the Borrower in the amount
of its Liquidity Funding.


 


(d)        Nothing herein shall be deemed to commit Blue Ridge to
make Loans.


 





















 


Section 2.           Section l.3(a) of the Credit Agreement
is hereby amended in its entirety and as so amended shall read as follows:


 


(a)        (i)            Borrower shall
pay CP Costs with respect to the principal balance of Blue Ridge’s Loans from time to time outstanding. Each Loan of Blue Ridge that is funded
substantially with Pooled Commercial Paper will accrue CP Costs each day
on a pro rata basis, based upon the percentage share that the principal in respect of such Loan represents in relation to
all assets held by Blue Ridge and
funded substantially with related Pooled Commercial Paper. The Agent will notify the Borrower promptly after the commencement of any period during which
CP Costs are calculated pursuant to the last sentence of the definition thereof,
and will attempt to give prior notice if reasonably practicable under the circumstances.


 


(ii)        Not later than the 3rd Business Day immediately preceding each Reporting Date, Blue Ridge shall
calculate the aggregate amount of
CP Costs applicable to its CP Rate Loans for the Settlement Period then most recently ended and shall notify Borrower
of such aggregate amount.


 


Section 3.           Section 1.4(a) of the Credit Agreement
is hereby amended in its entirety and as so amended shall read as follows:


 


On each Settlement Date, Borrower
shall pay to the Agent (for the benefit of Blue Ridge) an aggregate amount equal
to all accrued and unpaid
CP Costs (to the extent allocated to the Borrower in accordance with Section 1.3(a)(i)) in respect of the principal
associated with all CP Rate Loans for the Settement Period then most recently
ended in accordance with Article II. The principal
on each CP Rate Loan shall be payable on and after the Termination Date as
and when Collections are received.


 


Section 4.           Section l.4(d) of the Credit Agreement
is hereby amended in its entirety and as so amended shall read as follows:


 


(d)        The Borrower promises to pay all accrued and unpaid interest on each Loan (other than a CP
Rate Loan) on its applicable Interest Payment Date.


 


Section 5.           The first six paragraphs of Section 2.2
of the Credit Agreement are hereby amended in their entirety and as so amended
shall read as follows:


 


Section 2.2.       Selection of Interest Periods for Eurodollar
Loans. Prior to the occurrence of an Event of Default,
the


 


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Borrower or the Servicer in its
Borrowing Request may request Interest Periods for Eurodollar Loans from
time to time to apply to each Lender’s
Eurodollar Loans; provided, however, that (i) at least one Interest Period
shall mature on each Settlement Date, and (ii)
no Interest Period which began prior to the Scheduled Termination Date shall extend beyond the Scheduled
Termination Date.


 


While the Agent will use reasonable
efforts to accommodate the Borrower’s
or the Servicer’s requests for Interest Periods prior to an Event of Default, the Agent shall have the right to subdivide any requested
Eurodollar Loan into one or more Eurodollar Loans of different Interest Periods,
as the case may be, or, if the requested period
is not feasible, to suggest an alternative Interest Period, provided that not less than $1,000,000 of principal
may be allocated to any Period of any Lender, and no Alternate Base Rate
Loan may have a principal amount of less than $1,000,000.


 


The Borrower (or the Servicer
on the Borrower’s behalf) may not
request an Interest Period for a Eurodollar Loan unless it shall have given the Agent written notice of its desire therefor
not later than 12:00 noon (New York City time) at least 3 Business Days prior
to the first day of the desired Interest
Period. Accordingly, all Liquidity Fundings shall initially be Alternate
Base Rate Loans.


 


Unless the Agent
shall have received written notice by 12:00 noon  (New York City time) on the third Business Day prior to the last day of
an Interest Period that the Borrower intends to reduce the aggregate principal amount
of the Eurodollar Loans outstanding from the Liquidity Banks, each of the Liquidity Banks shall be entitled to assume that the Borrower desires to
refinance its maturing Eurodollar
Loans on the last day of such Interest Period with Eurodollar Loans with
an Interest Period of one month.


 


The Agent acknowledges and agrees
that a Borrowing Request shall
not be required in connection with the refinancing on the last day of an
Interest Period of maturing Eurodollar Loans.


 


Section 6.           Section 3.2 of the Credit Agreement is
hereby amended in its entirety and as so amended shall read as follows:


 


Section 3.2.       Allocations and Distributions.


 


(a)           [Reserved]


 


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(b)          Termination Date.
On each day on and after the Termination Date, the Servicer shall set aside and hold in trust solely for the account
of the Agent, for the benefit of the
Agent and the Lenders, (or delivered to the Collection Account as required pursuant to Section 7.1(i)
hereof) the Percentage Share of all Collections received on such day and such Collections
shall be remitted as follows on each Settlement Date and on each other Business
Day specified by the Agent:


 


(i)            first, to the Lenders
(ratably, based on their Ratable
Share) until all Loans of, and interest due but not already paid to, the Lenders
have been paid in full;


 


(ii)           second, to the Lenders
until all other amounts owed to the Lenders have been paid in full;


 


(iii)          third, to the Agent
until all amounts owed to the Agent have been paid in full;


 


(iv)          fourth, to any other
Person to whom any amounts
are owed under the Transaction Documents until all such amounts have been
paid in full;


 


(v)           fifth, to the Servicer
until all amounts owed to the Servicer under the Agreement have been paid
in full; and


 


(vi)          sixth, to the Borrower
(or as otherwise required by applicable law).


 


Section 7.           The first paragraph of Section 4.3 of
the Credit Agreement is hereby amended in its entirety and as so amended
shall read as follows:


 


Section 4.3.           Funding Losses. In the event that any Lender shall actually incur any actual loss or
expense (including any actual loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make any Loan or any Liquidity Funding, as
applicable, or maintain any Loan
or Liquidity Funding, as applicable) as a result of (i) any payment of principal
with respect to such Lender’s Loan being made on any day other than a Settlement
Date scheduled last day of an applicable
Interest Period with respect thereto (it being understood that the foregoing
shall not apply to any Alternate Base


 


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Rate Loans), or
(ii) any Loan not being made in accordance with a request therefor under Section 2.1, then, upon
written notice from the Agent to the Borrower and the Servicer, the Borrower
shall pay to the Servicer and the Servicer shall pay to the Agent for the account of such Lender the amount of such actual
loss or expense. Such written notice
(which notice shall set forth in reasonable detail the basis to the loss or expense and shall include the methodology for calculating, and the calculation
of, the amount of such actual loss
or expense, in reasonable detail) shall, in the absence of demonstrable error or unreasonable assumption, methodology or allocations, be conclusive and
binding upon the Borrower and the Servicer.


 


Section 8.           The defined term “CP Rate” is
hereby deleted in its entirety.


 


Section 9.           The defined terms “CP Rate Loan” and “CP Tranche Period” are
hereby amended in their entirety and as so amended shall read as follows:


 


“CP Rate Loan” means a Loan made by Blue Ridge funded
with Pooled Commercial Paper.


 


“CP Tranche Period” shall mean the period to maturity of any
Pooled Commercial Paper.


 


Section 10.         The following new defined terms are hereby
added to Annex A of the Credit Agreement
in correct alphabetical order:


 


“CP Costs” means,
for each day, the sum of (i) discount or interest accrued on Pooled Commercial Paper
on such day, plus (ii) any and all accrued
commissions in respect of placement agents and Commercial Paper dealers, and issuing
and paying agent fees incurred, in
respect of such Pooled Commercial Paper for such day, plus (iii) other costs associated with funding small or odd-lot amounts
with respect to all receivable purchase facilities which are funded by Pooled Commercial Paper for such day,
minus (iv) any accrual of income
net of expenses received on such day from investment of collections received
under all receivable purchase or financing
facilities funded substantially with Pooled Commercial Paper, minus (v) any payment
received on such day related to the prepayment of any investment of Blue
Ridge pursuant to the terms of any receivable
purchase or financing facilities funded substantially with Pooled Commercial
Paper. In addition to the foregoing costs, if Borrower shall request any Advance
during any period of time determined by
the Agent in its sole discretion to result in incrementally higher CP Costs applicable to such Advance, the principal associated with any such
Advance shall,


 


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during such period, be deemed
to be funded by Blue Ridge in a special pool (which may include capital associated
with other receivable purchase
or financing facilities) for purposes of determining such additional CP Costs applicable only to such special
pool and charged each day during such period against such principal.


 


“Interest Rate” means a Eurodollar Rate (Reserve Adjusted),
an Alternate Base Rate or the Default Rate.


 


“Pooled Commercial Paper” means Commercial Paper Notes of Blue Ridge
subject to any particular pooling arrangement by Blue Ridge, but excluding Commercial Paper Notes issued by Blue Ridge
for a tenor and in an amount specifically requested by any Person in connection with any agreement effected
by Blue Ridge.


 


Section 11.         Exhibit 2.1 to the Credit Agreement is hereby
amended and restated in its entirety and as so amended shall read as Exhibit
2.1 attached hereto.


 


Section 12.         The parties hereto acknowledge that notwithstanding
the amendments herein, Loans previously funded by Blue Ridge with Commercial
Paper Notes that are allocated specifically
to such funding have Tranche Periods ending on October 8, 2004. On October 8, 2004, the Borrower will pay the discount payable
on such Commercial Paper Notes, whereupon such Loans will become subject to the
provisions of this Amendment. The first Settlement Date with respect to Loans for
which CP Costs are payable is the 17th Business Day in November, 2004.


 


Section 13.         This Amendment shall become effective on
the date the Agent has received counterparts
hereof executed by the Borrower, the Servicer, Blue Ridge and Wachovia and consented
to in writing by the Performance Guarantor.


 


Section 14.         This Amendment may be executed in any number
of counterparts and by the different parties on separate counterparts and
each such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment.


 


Section 15.         Except as specifically provided above, the
Credit Agreement and the other Transaction
Documents shall remain in full force and effect and are hereby ratified and confirmed in all respects. The execution, delivery,
and effectiveness of this Amendment shall not operate as a waiver of any right, power, or remedy of the Agent or the
Lender under the Credit Agreement
or any of the other Transaction Documents, nor constitute a waiver or modification of any provision of any of the other
Transaction Documents. All defined terms used herein and not defined herein
shall have the same meaning herein as in the Credit Agreement. The Borrower agrees
to pay on demand all costs and expenses (including reasonable fees and expenses
of counsel and for rating agency review) of or incurred by the Agent and each


 


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Purchaser Agent in connection with the negotiation, preparation, execution
and delivery of this Amendment.


 


Section 16.         THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.


 


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IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by their duly authorized officers as
of the date first above written.


 


 


	
   

  	
  PACKAGING RECEIVABLES
  COMPANY,LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darla
  J. Olivier

  
	
   

  	
   

  	
  Name Printed:

  	
  Darla J. Olivier

  
	
   

  	
   

  	
  Title: 

  	
  Executive
  Director, Tax &

  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
  BLUE RIDGE
  ASSET FUNDING CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  WACHOVIA CAPITAL
  MARKETS, LLC

  ATTORNEY-IN-FACT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Douglas
  R. Wilson, Sr.

  
	
   

  	
   

  	
  Name Printed:

  	
  DOUGLAS R.
  WILSON, SR.

  
	
   

  	
   

  	
  Title:

  	
  VICE PRESIDENT

  
	
   

  	
   

  
	
   

  	
  PACKAGING CREDIT COMPANY, LLC.

  as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darla
  J. Olivier

  
	
   

  	
   

  	
  Name Printed:

  	
  Darla J. Olivier

  
	
   

  	
   

  	
  Title: 

  	
  Executive
  Director, Tax &

  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK NATIONAL ASSOCIATION,

  as Agent and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenny Karpowicz

  
	
   

  	
  Name Printed:

  	
  Kenny Karpowicz

  
	
   

  	
  Title:

  	
  Vice President

  
												



 


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                Consented to as of the
date first above written:


 


 


	
   

  	
  PACKAGING CORPORATION OF AMERICA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pamela
  A. Barnes

  
	
   

  	
  Name Printed:

  	
  Pamela A.
  Barnes

  
	
   

  	
  Title:

  	
  Treasurer

  
					



 


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EXHIBIT 2.1


 


FORM OF BORROWING REQUEST


 


Packaging Receivables
Company, LLC


BORROWING REQUEST


For Borrowing On
__________


 


Wachovia Bank, N.A., as Agent


191 Peachtree Street, N.E., GA-423


Atlanta, Georgia 30303


 


Attention: Elizabeth R. Wagner, Fax No. (404)
332-5152


 


Ladies and Gentlemen:


 


Reference is made to the Credit and Security Agreement dated as of November
29, 2000 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Packaging Receivables Company, LLC (the “Borrower”),
Packaging Credit Company, LLC, as
initial Servicer, Blue Ridge Asset Funding Corporation, and Wachovia Bank N.A.,
individually and as Agent. Capitalized
terms defined in the Credit Agreement are used herein with the same meanings.


 


I.                                         The [Servicer, on behalf of the]
Borrower hereby certifies, represents and warrants to the Agent
and the Lenders that on and as of the Borrowing Date (as hereinafter defined):


 


(a)           all applicable conditions precedent set forth in Article V
of the Credit Agreement have been satisfied;


 


(b)           each of its representations and warranties contained in Section
6.1 of the Credit Agreement will be true and correct, in all material respects,
as if made on and as of the Borrowing Date;


 


(c)           no event will have occurred and is continuing, or would result
from the requested Purchase, that constitutes an Event of Default or Unmatured
Default;


 


(d)           the Termination Date has not occurred; and


 


(e)           after giving effect to the Loans comprising the Advance requested
below, Blue Ridge’s and the
Liquidity Banks’ Loans at anyone time outstanding will not exceed the Allocation
Limit.


 





















 


III.                                 The [Servicer, on behalf of the]
Borrower hereby requests that Blue Ridge (or the Liquidity Banks) make an Advance on ______________,
______________(the “Borrowing Date”)
as follows:


 


Aggregate Amount of Advance: $____________


 


IV.           Please disburse
the proceeds of the Loans as follows:


 


[Apply $____________
to payment of principal and interest of existing Loans due on the Borrowing Date]. [Apply $____________
to payment of fees due on the Borrowing Date]. [Wire transfer $____________ to account no.___________ at ___________ Bank, in [city, state], ABA No.____________, Reference:____________].


 


IN WITNESS WHEREOF, the [Servicer, on behalf of the]
Borrower has caused this Borrowing Request to be executed and delivered as of this _________ day of _________, ________.


 


 


	
   

  	
  [____________________, as Servicer,
  on

  
	
   

  	
  behalf of:] Packaging Receivables

  Company, LLC, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


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