Exhibit



    
EXHIBIT 10.41



EXECUTION VERSION




AMENDMENT NO. 1 to
SECOND AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT






This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT (this “Amendment”), dated  as of September 27, 2017, is entered into by and among Greif Receivables Funding LLC, a Delaware limited liability company, as seller (the “SPV”), Greif Packaging LLC (“GP”), a Delaware limited liability company, Delta Petroleum Company, Inc., a Louisiana corporation, and American Flange & Manufacturing Co.,  Inc.,  a Delaware corporation,  as  originators  (each,  an  “Originator” and collectively, the “Originators”), GP, as servicer (in such capacity, the “Servicer”), The Bank of Tokyo-Mitsubishi UFJ Ltd., as a Committed Investor, a Managing Agent and an Administrator, and Coöperatieve Rabobank U.A., New York Branch (“Rabobank”), as a Committed Investor, a Managing Agent, an Administrator and the Agent.


RECITALS


WHEREAS, the SPV, the Servicer, the Originators and Rabobank have entered into that certain Second Amended and Restated Transfer and Administration Agreement dated as of September 28, 2016 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “TAA”); and



herein;
 
WHEREAS, the parties hereto wish to make certain amendments to the TAA as set forth





NOW,  THEREFORE,  in  consideration  of  the  premises  and  the  mutual  agreements contained herein and in the TAA, the parties hereto agree as follows:


SECTION 1.  Definitions.   All capitalized terms used but not defined herein have the meanings provided in the TAA.


SECTION 2.  Amendments to the TAA.  The TAA is hereby amended as follows:


2.1.      Section 1.1 of the TAA is hereby amended as follows:


(a)       The definition of “Commitment Termination Date” in Section 1.1 of the
TAA is hereby amended and restated in its entirety to read as follows:


““Commitment Termination Date” means the earlier to occur of September 26,
2018, or such later date to which the Commitment Termination Date may be extended by the SPV, the Agent and the Committed Investors (each in their sole discretion).”.


(b)       The definition of “Concentration Percentage” in Section 1.1 of the TAA is hereby amended and restated in its entirety to read as follows:




























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“Concentration Percentage” means (i) for any Group A Obligor that is not a Special Obligor, 10.00%, (ii) for any Group  B Obligor that is not a Special Obligor, 10.00%, (iii) for any Group C Obligor that is not a Special Obligor,
6.00%, (iv) for any Group D Obligor that is not a Special Obligor, 2.00%, and (v) for any Special Obligor, such Special Obligor’s Special Concentration Percentage.”.


(c)       The definition of “Concentration Reserve” in Section 1.1 of the TAA is hereby amended and restated in its entirety to read as follows:


““Concentration  Reserve”  means,  at  any  time,  the  ratio  (expressed  as  a percentage) computed by dividing (a) the largest of: (i) the difference of (A) the sum of the Unpaid Balances of Eligible Receivables of the four (4) largest Group D Obligors (including any Special Obligor that is a Group D Obligor) minus (B) the amount (if any) by which (I) the Unpaid Balance of Eligible Receivables of each such Group D Obligor exceeds an amount equal to (II) the sum of (x) the Concentration Percentages for such Group D Obligors, multiplied by the Unpaid Balance of all Eligible Receivables plus, (ii) the difference of (A) the sum of the Unpaid Balances of Eligible Receivables of the two (2) largest Group C Obligors (including any Special Obligor that is a Group C Obligor) minus (B) amount (if any) by which (I) the Unpaid Balance of Eligible Receivables of each such Group C Obligor exceeds an amount equal to (II) the Concentration Percentages for such Group C Obligors, multiplied by the Unpaid Balance of all Eligible Receivables, (iii) the difference of (A) the Unpaid Balances of Eligible Receivables of the largest  Group  B  Obligor  (including  any  Special  Obligor  that  is  a  Group  B Obligor) minus (B) amount (if any) by which (I) the Unpaid Balance of Eligible Receivables of such Group B Obligor exceeds an amount equal to (II) the Concentration Percentage for such Group B Obligor, multiplied by the Unpaid Balance of all Eligible Receivables, by (b) the Aggregate Unpaid Balance at such time.”.


(d)       The  definition  of  “Fee  Letter”  in  Section  1.1  of  the  TAA  is  hereby amended and restated in its entirety to read as follows:


““Fee Letter” means, as applicable, (i) the confidential letter agreement among the SPV, the Agent and the Managing Agent for each Investor Group and (ii) each confidential  letter  agreement  entered  into  by  the  SPV,  the  Agent  and  any Managing Agent for an Investor Group that becomes a party to this Agreement on or after the Closing Date.”


(e)       The following definition of “First Amendment Effective Date” is added to
Section 1.1 of the TAA in its appropriate alphabetical sequence:


““First Amendment Effective Date” means September 27, 2017.”


(f)        The definition of “Majority Investors” in Section 1.1 of the TAA is hereby amended and restated in its entirety to read as follows:








““Majority Investors” means, (i) at any time there are two or fewer Committed Investors, all Committed Investors, and (ii) at any time there are three or more Committed Investors, those Committed Investors that hold Commitments aggregating in excess of fifty percent (50%) of the Facility Limit as of such date (or,  if  the  Commitments  shall  have  been  terminated,  the  Investors  whose aggregate pro rata shares of the Net Investment exceed fifty percent (50%) of the Net Investment).”.


(g)       The following definition of “Special Concentration Percentage” is added to Section 1.1 of the TAA in its appropriate alphabetical sequence:


““Special Concentration Percentage” means, for any Special Obligor, the “Special Concentration Percentage” assigned to such Special Obligor and agreed to in writing by the agent, the Majority Investors and the SPV substantially in the form of Exhibit G hereto. As of September 27, 2017, the Special Concentration Percentage of King Paper Limited Corporation is 4.00%”.


(h)       The following definition of “Special Obligor” is added to Section 1.1 of the TAA in its appropriate alphabetical sequence:


““Special Obligor” means King Paper Limited Corporation and any other Obligor designated as a “Special Obligor” by the Agent and the SPV pursuant to a written notice substantially in the form of Exhibit G hereto; provided that the Agent and the Majority Investors may revoke the designation of any Obligor as a Special Obligor at any time upon two (2) Business Days’ prior written notice to the SPV.”.


(i)        Section 2.2(a) of the TAA is hereby amended and restated in its entirety as follows:


“(a)     Investments.  On the Closing Date, and thereafter from time to time prior to the Termination Date, on request of the SPV in accordance with Section 2.3, each Managing Agent (on behalf of the applicable Investors as determined pursuant to Section 2.3) shall pay to the Agent, and the Agent shall pay to the SPV,  the  applicable  Investor  Group  Percentage  of  an  amount  equal  in  each instance to the lesser of (i) the amount requested by the SPV under Section 2.3(a), and (ii) the largest amount that will not cause (A) the Net Investment to exceed the  Maximum  Net  Investment  and  (B) the  sum  of  the  Net  Investment  and Required Reserves to exceed the Net Pool Balance.  Each such payment is herein called an “Investment”.”


(j)        Section 2.3(d) of the TAA is hereby amended and restated in its entirety as follows:


“(d)     Payment  of  Investment.  On  any  Investment  Date,  each  Uncommitted Investor or each Committed Investor, as the case may be, shall remit its share of the aggregate amount of such Investment (determined pursuant to Section 2.2(a))








to the account of the Managing Agent specified therefor from time to time by the Managing Agent by notice to such Persons by wire transfer of same day funds. Following the Managing Agent’s receipt of funds from the Investors as aforesaid, the Managing Agent shall remit such funds received to the Agent, and the Agent shall remit such funds to the SPV’s account at the location indicated in the Notice Letter Agreement, by wire transfer of same day funds.”


(k)       The first sentence of Section 2.3(e) is hereby amended and restated in its entirety as follows:


“Unless a Managing Agent shall have received notice from any Investor in its Investor Group that such Person will not make its share of any Investment available on the applicable Investment Date therefor, a Managing Agent may (but shall  have  no  obligation  to)  make  any  such  Investor’s  share  of  any  such Investment available to the Agent in anticipation of the receipt by the Managing Agent of such amount from the applicable Investor.”








(l)        Section 2.5(a) of the TAA is hereby amended and restated in its entirety as follows:


“(a)     to the Agent, and to the Agent for the benefit of each Managing Agent, all fees hereunder and under each Fee Letter, all amounts payable pursuant to Article IX, if any, and the Servicing Fees, if required pursuant to Section 2.12(b); and”


(m)      Section 2.7 of the TAA is hereby amended and restated in its entirety as follows:


“SECTION 2.7   Payments and Computations, Etc.   All amounts to be paid or deposited by the SPV or the Servicer hereunder shall be paid or deposited in accordance with the terms hereof no later than 12:00 noon on the day when due in immediately available funds; if such amounts are payable to the Agent (whether on behalf of any Managing Agent, Investor or otherwise) they shall be paid or deposited in the account indicated under the heading “Payment Information” in Section 11.3, until otherwise notified by the Agent.   The Agent shall pay all amounts payable to each Managing Agent at the direction of such Managing Agent.  The SPV shall, to the extent permitted by Law, pay to the Agent, or to the Agent for the benefit of the Investors, as applicable, upon demand, interest on all amounts not paid or deposited when due hereunder (subject to any applicable grace period) at the Default Rate.  All computations of per annum fees hereunder shall be made on the basis of a year of 365 (or in the case of a leap year, 366) days for the actual number of days (including the first but excluding the last day) elapsed.  Any computations made by the Agent of amounts payable by the SPV hereunder shall be binding upon the SPV absent manifest error.”








(n)       Section  2.12(a)(i)  of  the  TAA  is  hereby  amended  and  restated  in  its entirety as follows:


“(i)      hold in trust for the benefit of the Agent (on behalf of each Managing Agent and such Managing Agents’  Investor Groups) an amount equal  to the aggregate of the Yield (which, in the case of Yield computed by reference to the CP Rate, shall be determined for such purpose using the CP Rate most recently determined by the applicable Administrator, multiplied by the Fluctuation Factor) and the Program Fee, in each case for the related Rate Period accrued through such day for all Portions of Investment, the Facility Fee and the Servicing Fee accrued through such day, and any other Aggregate Unpaids (other than Net Investment not then due and owing) accrued through such day and not previously held in trust (and which are then due);”


(o)       Section  2.12(a)(ii) of the TAA  is  hereby amended  and  restated  in  its entirety as follows:


“(ii)     hold in trust for the benefit of the Agent (on behalf of each Managing Agent and such Managing Agents’  Investor Groups) an amount equal  to the excess, if any, of:


(A)      the greatest of:


(1)       if the SPV shall have elected to reduce the Net Investment under Section 2.13, the amount of the proposed reduction,


(2)       the amount, if any, by which the sum of the Net Investment and Required Reserves shall exceed the Net Pool Balance, together with the amount, if any, by which the Net Investment shall exceed the Maximum Net Investment, and


(3)       if such day is on or after the Termination Date, the Net
Investment; over


(B)      the aggregate of the amounts theretofore set aside and then so held for the benefit of the Agent (on behalf of each Managing Agent and such Managing Agents’ Investor Groups) pursuant to this clause (ii); and”


(p)       Section  2.12(c)(i)  of  the  TAA  is  hereby  amended  and  restated  in  its entirety as follows:


“(i)      to the Agent, for the benefit of each Managing Agent, pro rata based on the  amount  of  accrued  and  unpaid  Yield  owing  to  such  Managing  Agent’s Investor Group, in payment of the accrued and unpaid Yield and Program Fee on all Portions of Investment and for the related Rate Period and the Facility Fee then due and owing;”








(q)       Section 2.12(c)(iii) of the TAA is hereby amended and restated in its entirety as follows:


“(iii)    to the Agent, for the benefit of each Managing Agent, (A) prior to the Termination Date, pro rata based upon the Net Investment attributable to such Managing Agent’s Investor Group in reduction of the outstanding Net Investment, an amount equal to the sum of (x) the positive difference (if any) of (I) the sum of the Net Investment plus the Required Reserves minus (II) the Net Pool Balance and (y) the amount of any optional reduction of the Net Investment specified by the SPV in accordance with Section 2.13, and (B) on or after the Termination Date, pro  rata based upon the Net  Investment  attributable to such Managing Agent’s  Investor  Group  in  reduction  of  the  outstanding  Net  Investment,  an amount equal to the outstanding Net Investment;”


(r)        Section 2.12(c)(iv) of the TAA is hereby amended and restated in its entirety as follows:


“(iv)    to the Agent, and to the Agent for the benefit of each other Secured Party as such Secured Party may be entitled to such payment, pro rata based on the amounts due and owing to each of them, in payment of any other Aggregate Unpaids (other than Net Investment not then due and owing) then due and owing by the SPV hereunder to such Person (including, without limitation, any amounts owed pursuant to Section 9.3 hereof) (in each case, without duplication);”


(s)       Section 3.1(d) of the TAA is hereby amended and restated in its entirety as follows:


“(d)     Payments  to  Agent’s  Account.    After  any  assignment  in  whole  by  a Conduit Investor to the Committed Investors in its Investor Group pursuant to this Section 3.1 at any time on or after the related Conduit Investment Termination Date, all payments to be made hereunder by the SPV or the Servicer to such Conduit Investor shall be made to the Agent’s account, for the benefit of the Managing  Agent  of  such  Conduit  Investor,  as  such  account  shall  have  been notified to the SPV and the Servicer.”


2.2.      Annex  A  hereto  is  hereby  added  to  the  TAA  as  Exhibit  G  in  appropriate alphabetical sequence:


SECTION 3.  Conditions Precedent.  This Amendment shall become effective upon the satisfaction of the following: (i) receipt by the Agent of a counterpart (or counterparts) of this Amendment, duly executed by each of the parties hereto or other evidence satisfactory to the Agent of execution and delivery by such parties (ii) receipt by the Agent of a counterpart (or counterparts) of the Second Amended and Restated Fee Letter, dated as of September 27, 2017, by and among the SPV, Cooperatieve Rabobank U.A., New York Branch, and The Bank of Tokyo-Mitsubishi  UFJ  Ltd.,  (iii)  receipt  by  the  Agent  of  reliance  letters  by  Vorys,  Sater, Seymour and Pease LLP, addressed to The Bank of Tokyo-Mitsubishi UFJ Ltd., with respect to (x)  the  Bankruptcy  Bring  Down  Opinion  as  to  Certain  Bankruptcy  Matters,  dated  as  of








September 28, 2016 and (y) the Legal Opinion on UCC and Enforceability Matters, dated as of September 28, 2016, and (iv) payment to the Agent, for the benefit of the Managing Agent of each Investor Group, on behalf of the Investors in such Investor Group, of an extension fee in an amount equal to the product of (A) 0.05% and (B) the Commitment of the Committed Investors in such Managing Agent’s Investor Group.


SECTION 4.  Miscellaneous.


4.1.      Representations and Warranties.  (i)  Each of the SPV, each Originator and the Servicer hereby represents and warrants that this Amendment constitutes a legal, valid and binding obligation of such Person, enforceable against it in accordance with its terms, (ii) the SPV hereby represents and warrants that upon the effectiveness of this Amendment, no Termination Event or Potential Termination Event shall exist and (iii) each of the SPV, the Originators and the Servicer hereby represents and warrants that the representations and warranties of such Person set forth in the TAA and any other Transaction Document are true and correct in all material respects (except those representations and warranties qualified by materiality or by reference to a material adverse effect, which are true and correct in all respects) as of the date hereof as though made on and as of such day (unless such representations and warranties specifically refer to a previous day, in which case, they shall be complete and correct in  all material  respects  (or,  with  respect  to  such  representations  or warranties  qualified  by materiality or by reference to a material adverse effect, complete and correct in all respects) on and as of such previous day).


4.2.      References to TAA.  Upon the effectiveness of this Amendment, each reference in the TAA to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the TAA as amended hereby, and each reference to the TAA in any other document, instrument or agreement executed and/or delivered in connection with the TAA shall mean and be a reference to the TAA as amended hereby.


4.3.      Effect on TAA.   Except as specifically amended above, the TAA and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.


4.4.      No Waiver.   Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Agent or any Investor under the TAA or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, except as specifically set forth herein.


4.5.      Governing Law.  This Amendment, including the rights and duties of the parties hereto, shall be governed by, and construed in accordance with, the internal laws of the State of New York.


4.6.      Successors and Assigns.  This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

4.7.      Headings.  The Section headings in this Amendment are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Amendment or any provision hereof.


4.8.      Counterparts.  This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.  Facsimile or other electronic signature pages shall be as effective as originals.


[SIGNATURE PAGES FOLLOW]








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






	
					
	 
	 
	GREIF RECEIVABLES FUNDING LLC

	 
	 
	By: /s/ Gary Martz

	 
	 
	Name: Gary Martz

	 
	 
	Title: Secretary

	 
	 
	 
	 
	 

	 
	 
	GREIF PACKAGING LLC,

	 
	 
	Individually, as an Originator and as the Servicer

	 
	 
	By: /s/ Gary Martz

	 
	 
	Name: Gary Martz

	 
	 
	Title: Secretary

	 
	 
	 
	 
	 

	 
	 
	DELTA PETROLEUM COMPANY, INC.,

	 
	 
	as an Originator
	 
	 

	 
	 
	By: /s/ Gary Martz

	 
	 
	Name: Gary Martz

	 
	 
	Title: Secretary

	 
	 
	 
	 
	 

	 
	 
	AMERICAN FLANGE & MANUFACTURING CO., INC.,

	 
	 
	as an Originator
	 
	 

	 
	 
	By: /s/ Gary Martz

	 
	 
	Name: Gary Martz

	 
	 
	Title: Secretary










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	COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH,

	 
	 
	as a Committed Investor for the Rabobank Investor Group, a Managing Agent, an Administrator and the Agent

	 
	 

	 
	 
	 
	 
	 

	 
	 
	By: /s/ Thomas McNamara

	 
	 
	Name: Thomas McNamara

	 
	 
	Title: Vice President

	 
	 
	 
	 
	 

	 
	 
	By: /s/ Christopher Lew

	 
	 
	Name: Christopher Lew

	 
	 
	Title: Executive Director






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	THE BANK OF TOKYO-MITSUBISHI UFJ LTD.,

	 
	 
	 
	As a Committed Investor, a Managing Agent and an Administrator

	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	By:  /s/ Eric Williams

	 
	 
	 
	Name: Eric Williams

	 
	 
	 
	Title: Managing Director

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 

	 
	 
	 
	 
	 






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ANNEX A


































































































































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EXHIBIT G




FORM OF SPECIAL OBLIGOR APPROVAL NOTICE


Cooperatieve Rabobank U.A., New York Branch, as Agent
245 Park Avenue, 37th Floor
New York, New York 10167




[Insert Date]




[Address]


GREIF RECEIVABLES FUNDING LLC [Address]




Re:      Approval of Special Obligor


Ladies and Gentlemen:


Reference is made to the Second Amended and Restated Transfer and Administration Agreement, dated as of September 28, 2016, as amended (the “TAA”), by and among Greif Receivables Funding LLC (the “SPV”), Greif Packaging LLC (“GP”), as Servicer, GP, Delta Petroleum Company, Inc., and American Flange & Manufacturing Co., Inc., as Originators, Cooperative Rabobank U.A., New York Branch, as a Committed Investor, a Managing  Agent,  an  Administrator  and  Agent  and  the  various  Investor  Groups,  Managing Agents and Administrators from time to time parties thereto.   Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the TAA.


The Agent and the SPV hereby designate [name of party] as a Special Obligor (the  “Special  Obligor”)  with  a  “Special  Concentration  Percentage”  equal  to         %.  It  is understood and agreed that the Agent and the Majority Investors may revoke such designation at any time upon two (2) Business Days’ prior written notice to the SPV.










































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Very truly yours,






COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as Agent






By:      Name:      Title:     






[[MAJORITY INVESTOR],
as a Majority Investor






By:      Name:      Title:                                                                        ]














Consented to and Acknowledged by:


GREIF RECEIVABLES FUNDING LLC, as the SPV






By:      Name:
Title:




































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