AMENDMENTNO. 3 TO THE
EX-10.1 3 form8kex101.htm form8kex101.htm Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 3 TO THE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 6, 2009
AMENDMENT NO. 3 (this “Amendment”) TO THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT among Chesapeake Corporation, a Virginia corporation and a debtor and debtor in possession in a case pending under chapter 11 of the Bankruptcy Code (the “Parent”), Chesapeake U.K. Holdings Limited (“UK Holdings”), Boxmore International Limited (“Boxmore”), Chesapeake plc (“CSK Plc” and, together with UK Holdings and Boxmore, the “Post-Petition Borrowers”), the banks, financial institutions and other institutional lenders party to the Credit Agreement referred to below (collectively, the “Lenders”) and Wachovia Bank, National Association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENTS:
WHEREAS, the Parent, the Post-Petition Borrowers, the Lenders, the Administrative Agent, Wachovia Capital Markets, LLC, as a sole lead arranger and the sole bookrunner have entered into a Third Amended and Restated Credit Agreement dated as of December 30, 2008, as amended by Amendment No. 1 dated as of January 16, 2009, and Amendment No. 2 dated as of January 29, 2009 (as so amended, the “Credit Agreement”; capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement); and
WHEREAS, the Parent, the Post-Petition Borrowers, the Lenders and the Administrative Agent have agreed to amend certain provisions of the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Credit Agreement. The Credit Agreement is, effective as of the Amendment No. 3 Effective Date (as defined in Section 2 below) and subject to the satisfaction of the conditions precedent set forth in Section 2, hereby amended as follows:
(a) Section 8.1.12(g) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
“(g) The Debtors shall fail to comply with each of the milestones set forth in Section 6.5 of the Stalking Horse Bid (as amended by the first, second and third amendments to the Stalking Horse Bid) notwithstanding any agreement by any Debtor with the Purchasers, an alternative purchaser, any Committee or any other person unless the Administrative Agent, in its sole discretion, agrees otherwise.”
(b) Section 8.1.12(k) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
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“(k) The sale of assets contemplated by the Stalking Horse Bid or such other agreement as the U.S. Obligors may select in accordance with the Bid Procedures shall not have been consummated by April 30, 2009.”
SECTION 2. Conditions of Effectiveness. This Amendment shall be effective as of April 6, 2009 (the “Amendment No. 3 Effective Date”) when, and only when the Administrative Agent shall have received the following documents, in form and substance satisfactory to the Administrative Agent:
(a) counterparts of this Amendment executed by the Parent, each Post-Petition Borrower, the Required Lenders and the Post-Petition Required Lenders or, as to any of the Required Lenders or Post-Petition Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender or Post-Petition Required Lender has executed this Amendment, and counterparts of the Consent and Confirmation attached hereto executed by each Subsidiary Guarantor; and
(b) an amendment or waiver of the milestones set forth in Section 6.5 of the Stalking Horse Bid, agreed in writing between the Debtors and the Purchasers and reasonably satisfactory to the Administrative Agent, to reflect an extension to April 30, 2009 of the date by which the sale of assets contemplated by the Stalking Horse Bid shall have occurred.
SECTION 3. Representations and Warranties of the Parent and the Post-Petition Borrowers. The Parent and each Post-Petition Borrower represent and warrant as follows:
(a) All representations and warranties made by the Parent and each Post-Petition Borrower in the Credit Agreement and the other Loan Documents are true and correct in all material respects as of the date hereof as if made on the date hereof (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and after giving effect to this Amendment, no Default shall have occurred and be continuing.
(b) The Parent, each Post-Petition Borrower and each Subsidiary Guarantor is a corporation or limited liability company duly organized or formed, validly existing and in good standing under the laws of its jurisdiction of organization or formation.
(c) The execution, delivery and performance by the Parent and each Post-Petition Borrower of this Amendment and the Loan Documents, as modified hereby, and by each Subsidiary Guarantor of the Consent and Confirmation attached hereto, are in each case within such Person’s powers, have been duly authorized by all necessary action, and do not result in a default under or contravene any such Person’s Organic Documents.
(d) Other than in connection with the Case, no authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person (other than those that have been duly obtained or made and which are in full force and effect) is required for the due execution, delivery or performance by the Parent, each Post-Petition Borrower of this Amendment or any of the Loan Documents, as modified hereby, to which it is or is to be a party, or by each Subsidiary Guarantor of the Consent and Confirmation attached hereto.
(e) This Amendment has been duly executed and delivered by the Parent, each Post-Petition Borrower, and the Consent and Confirmation attached hereto has been duly executed and delivered by each Subsidiary Guarantor. This Amendment and each of the other Loan
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Documents, as modified hereby, to which the Parent, each Post-Petition Borrower is a party, and the Consent and Confirmation attached hereto, are legal, valid and binding obligations of the Parent, each Post-Petition Borrower or each Subsidiary Guarantor, as applicable, enforceable against such entity in accordance with their respective terms (except, in any case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity).
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the Amendment No. 3 Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as modified by this Amendment.
(b) The Credit Agreement (including, without limitation, the guarantees by the Post-Petition Borrowers set forth in Section 4.10 thereof), the Notes and each of the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as modified by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Other Covenant. In consideration of the agreements contained herein, the Post-Petition Borrowers and Subsidiary Guarantors further agree (it being understood that failure to comply with the covenant contained in this Section 5 shall constitute an Event of Default) to deliver to the Administrative Agent, in form and substance satisfactory to the Administrative Agent, within 15 Business Days after the Amendment No. 3 Effective Date, resolutions from the board of directors (or other equivalent managing body) of each Post-Petition Borrower and each Subsidiary Guarantor organized under the laws of England, Wales or Ireland then in full force and effect authorizing, to the extent relevant, the execution, delivery and performance of this Amendment and the Consent and Confirmation, as applicable, to be executed by such Person.
SECTION 6. 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 but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier (or other electronic transmission) shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
[signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
CHESAPEAKE CORPORATION, as a Debtor and Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Executive Vice President, Secretary and
General Counsel
CHESAPEAKE U.K. HOLDINGS LIMITED
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Director
BOXMORE INTERNATIONAL LIMITED
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Director
CHESAPEAKE PLC
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Director
Agreed as of the date first above written:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender, Post-Petition Lender and Administrative Agent
| By/s/ Reginald T. Dawson |
| | Name: Reginald T. Dawson |
| | Title: Managing Director |
Bank of America, N.A., as a Lender and a Post-Petition Lender
| By/s/ Patrick Honey |
| | Name: Patrick Honey |
| | Title: Senior Vice President |
CITICORP NORTH AMERICA, INC., as a Lender and a Post-Petition Lender
| By/s/ Michael C. Becker |
| | Name: Michael C. Becker |
| | Title: Managing Director |
CREDIT INDUSTRIAL ET COMMERCIAL, as a Lender and a Post-Petition Lender
| By/s/ Eric Longuet |
| | Name: Eric Longuet |
| | Title: Vice President |
| By/s/ Albert M. Calo |
| | Name: Albert M. Calo |
| | Title: Vice President |
HSBC Bank plc, as a Lender and a Post-Petition Lender
| By/s/ Kevin Lambert |
| | Name: Kevin Lambert |
| | Title: Manager |
KBC Bank N.V., as a Lender and a Post-Petition Lender
| By/s/ Katherine S. McCarthy |
| | Name: Katherine S. McCarthy |
| | Title: Director |
| By/s/ Sandra T. Johnson |
| | Name: Sandra T. Johnson |
| | Title: Managing Director |
SUNTRUST BANK, as a Lender and a Post-Petition Lender
| By/s/ Byron P. Kurtgis |
| | Name: Byron P. Kurtgis |
| | Title: Director |
CONSENT AND CONFIRMATION
Dated as of April 6, 2009
Each of the undersigned hereby consents to the foregoing Amendment and hereby (a) confirms and agrees that notwithstanding the effectiveness of such Amendment, each Loan Document to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Amendment, each reference in the Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as affected by such Amendment, (b) confirms and agrees that the pledge and security interest in the Collateral granted by it pursuant to the Collateral Documents to which it is a party shall continue in full force and effect, and (c) acknowledges and agrees that such pledge and security interest in the Collateral granted by it pursuant to such Collateral Documents shall continue to secure the Obligations purported to be secured thereby, as affected hereby.
This Consent and Confirmation shall be governed by, and construed in accordance with, the laws of the State of New York. Each of the undersigned hereby irrevocably submits to the non-exclusive jurisdiction of the courts of the State of New York, New York county and the courts of the United States of America located in the Southern District of New York and hereby agrees that any legal action, suit or proceeding arising out of or relating to the foregoing Amendment and this Consent and Confirmation may be brought against them in any such courts. This Consent and Confirmation 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 but one and the same agreement. Delivery of an executed counterpart of a signature page to this Consent and Confirmation by telecopier shall be effective as delivery of a manually executed counterpart of this Consent and Confirmation.
CHESAPEAKE UK ACQUISITIONS PLC
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Director
CARY ST. COMPANY, a Debtor and a Debtor in Possession
By /s/ Candace C. Formacek
Candace C. Formacek
Vice President
CHESAPEAKE INTERNATIONAL HOLDING COMPANY, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
CHESAPEAKE PRINTING AND PACKAGING COMPANY, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
CHESAPEAKE PHARMACEUTICAL PACKAGING COMPANY INC., a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
CHESAPEAKE DISPLAY AND PACKAGING COMPANY, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Secretary
CHESAPEAKE FOREST PRODUCTS COMPANY LLC, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
CHESAPEAKE RECYCLING COMPANY, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
CHESAPEAKE ASSETS COMPANY, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
DELMARVA PROPERTIES, INC., a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
SHEFFIELD, INC., a Debtor and a Debtor in Possession
By /s/ J. Christopher Naftzger
J. Christopher Naftzger
Secretary
STONEHOUSE INC., a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
THE CHESAPEAKE CORPORATION OF VIRGINIA, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
WTM I COMPANY, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
Vice President and Secretary
CHESAPEAKE CORPORATION, a Wisconsin corporation, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
CHESAPEAKE CORPORATION, a Massachusetts corporation, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
CHESAPEAKE CORPORATION, a D.C. corporation, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
CHESAPEAKE CORPORATION, an Illinois corporation, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
CHESAPEAKE CORPORATION, a Louisiana corporation, a Debtor and a Debtor in Possession
By /s/ J.P. Causey Jr.
J.P. Causey Jr.
President
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE & SONS LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE BRISTOL LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner_______
Name Liz Turner_________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
FIELD BOXMORE BRISTOL (HOLDINGS) LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE PLASTICS LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
FIRST CARTON GROUP LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
FIELD BOXMORE IRELAND LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
BPG HEALTHCARE SYSTEMS LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
BERRY'S (HOLDINGS) LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE PHARMACEUTICAL AND HEALTHCARE PACKAGING (DUBLIN) LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE PHARMACEUTICAL AND HEALTHCARE PACKAGING (LIMERICK) LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE PHARMACEUTICAL AND HEALTHCARE PACKAGING (WESTPORT) LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
BOXMORE PLASTICS LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
| SIGNED SEALED AND DELIVERED on behalf of LITHOPRINT HOLDINGS LIMITED at Amersham | ||
| By Mark Priestley | /s/ Mark Priestley | |
| Print Full Name before this witness Liz Turner | Director /s/ Elizabeth Turner | |
| Print Full Name | Witness | |
| Chesapeake PLC Church House St. Mary's Court The Broadway Old Amersham Bucks HP7 OUT United Kingdom | ||
| SIGNED SEALED AND DELIVERED on behalf of CHESAPEAKE HILLINGTON LIMITED at Amersham | ||
| By Mark Priestley | /s/ Mark Priestley | |
| Print Full Name before this witness Liz Turner | Director /s/ Elizabeth Turner | |
| Print Full Name | Witness | |
| Chesapeake PLC Church House St. Mary's Court The Broadway Old Amersham Bucks HP7 OUT United Kingdom | ||
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
CHESAPEAKE BELFAST LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
WILLIAM W. CLELAND HOLDINGS LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
FIELD BOXMORE GB LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
Notice Details
Address:
Facsimile:
Attention:
SIGNED SEALED AND DELIVERED
by: /s/ Mark Priestley
Mark Priestley
as duly appointed attorney of
FIELD PACKAGING LIMITED
In the presence of:
Witness's signature /s/ Elizabeth Turner______
Name Liz Turner________________________
Chesapeake PLC
Church House
St. Mary's Court
The Broadway Old Amersham
Bucks HP7 OUT
United Kingdom
Notice Details
Address:
Facsimile:
Attention:
Chesapeake Düren GmbH
By: /s/ Timothy D. Whitfield
Timothy D. Whitfield
Title: Director
Chesapeake Melle GmbH
By: /s/ Timothy D. Whitfield
Timothy D. Whitfield
Title: Director
Chesapeake Stuttgart GmbH
By: /s/ Timothy D. Whitfield
Timothy D. Whitfield
Title: Director
Chesapeake Neu-Isenburg GmbH
By: /s/ Michael Cheetham
Michael Cheetham
Title: Director
Chesapeake Deutschland GmbH
By: /s/ Timothy D. Whitfield
Timothy D. Whitfield
Title: Director
Chesapeake Gent NV
By: /s/ Michael Cheetham
Michael Cheetham
Title: Director
Chesapeake Bornem NV
| | By: | /s/ Michael Cheetham |
| Michael Cheetham | |
| | Title: Director |
Chesapeake Shared Services Benelux NV
| | By: | /s/ Michael Cheetham |
| Michael Cheetham | |
| | Title: Director |
Chesapeake Brussels NV
| | By: | /s/ Michael Cheetham |
| Michael Cheetham | |
| | Title: Director |
Boxmore Healthcare Packaging Europe NV
| | By: | /s/ Michael Cheetham |
| Michael Cheetham | |
| | Title: Director |
ChesaPeake Oss B.V.
| | By: | /s/ Willem Langenhuyzen |
Willem Langenhuyzen
Title: Managing Director
