AMENDMENTNO. 1 TO THE

 

 

 

      Dated as of January 16, 2009

 

AMENDMENT NO. 1 (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”).

 

 

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 (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. 1 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 1.1 is hereby amended by inserting therein the following definition in the proper alphabetical order:

 

““Bidding Procedures Order Entry Date” is defined in Section 8.1.12(i).”

 

(b) Section 8.1.12(i) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

 

“(i)           The Bankruptcy Court shall not have entered the Bidding Procedures Order by January 20, 2009; provided that such date may be extended to a date no later than January 23, 2009 in the sole discretion of the Administrative Agent (any such date being, the “Bidding Procedures Order Entry Date”).”

 

SECTION 2. Conditions of Effectiveness.  This Amendment shall be effective as of January 16, 2009 (the “Amendment No. 1 Effective Date”) when, and only when, the Administrative Agent shall have received, on or before the Amendment No. 1 Effective Date:

 

(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) (i) an amendment or waiver of the milestones set forth in Section 6.5 of the Stalking Horse Bid to reflect an extension of the date by which the Debtors shall obtain the entry of the Bidding Procedures Order to the Bidding Procedures Order Entry Date or (ii) an agreement that the Purchasers will not terminate the Stalking Horse Bid prior to the Bidding Procedures Hearing (as defined in the 363 Asset Purchase Agreement), in each case as agreed in writing between the Debtors and the Purchasers and reasonably satisfactory to the Administrative Agent.

 

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 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. 1 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. 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 6. 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/  Joel K. Mostrom                                                                

Joel K. Mostrom

Executive Vice President & CFO

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

 

 

 

CITICORP NORTH AMERICA, INC., as a Lender and a Post-Petition Lender

 

By/s/ Michael Becker

Name:  Michael Becker

Title:  Managing Director

 

 

 

Credit Industriel et Commercial, New York Branch, as a Lender and a Post-Petition Lender

 

By/s/ Eric Longuet

Name:  Eric Longuet

Title:  Vice President

By/s/ Albert Calo

Name:  Albert Calo

Title:  Vice President

HSBC Bank plc, as a Lender and a Post-Petition Lender

 

By/s/ Kevin Lambert

Name:  Kevin Lambert

Title:  Manager, Lending Services

 

 

 

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

 

 

 

 

 

 

 

Dated as of January 16, 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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by:  /s/ Mark Priestley

        Mark Priestley

as duly appointed attorney of

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

by: /s/ Mark Priestley

       Mark Priestley

as duly appointed attorney of

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

by: /s/ Mark Priestley

       Mark Priestley

as duly appointed attorney of

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

Address:

Facsimile:

Attention:

by: /s/ Mark Priestley 

       Mark Priestley

as duly appointed attorney of

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

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 Oss B.V.

 

By:

/s/ Willem Langenhuyzen

   Willem Langenhuyzen

   Title:  Managing 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