AMENDMENT NO. 2

EX-10.1 2 a50228290_ex101.htm EXHIBIT 10.1 a50228290_ex101.htm
Exhibit 10.1
 
EXECUTION VERSION
 
 
AMENDMENT NO. 2
 
 
AMENDMENT NO. 2, dated as of March 30, 2012 (this “Amendment”), among ROCK-TENN COMPANY, a Georgia corporation (the “Company”), ROCK-TENN COMPANY OF CANADA/COMPAGNIE ROCK-TENN DU CANADA, a Nova Scotia unlimited liability company (the “Canadian Borrower” and, together with the Company, the “Borrowers”), the Lenders party hereto, WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and BANK OF AMERICA, N.A., acting through its Canada Branch, as Canadian administrative agent for the Lenders (the “Canadian Agent”), to the Credit Agreement dated as of May 27, 2011 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the U.S. Guarantors, the Canadian Guarantors, the Administrative Agent, Wells Fargo Bank, National Association, as collateral agent for the Lenders, the Canadian Agent and the Lenders referred to therein.  Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
 
WHEREAS, pursuant to Section 9.1 of the Credit Agreement, the Borrowers and the Required Lenders desire to amend the negative covenant titled “Indebtedness” set forth in Section 6.3 of the Credit Agreement as set forth herein.
 
NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
 
Section 1. Amendment.  Subject to satisfaction of the conditions set forth in Section 3 hereof:
 
(a) Section 6.3(f) of the Credit Agreement is hereby amended to include “and any Restricted Subsidiary (subject, in the case of any such Restricted Subsidiary that is an Inactive Subsidiary, to compliance with Section 5.10 hereof)” immediately after “Guaranty Obligations of the Company”.
 
(b) Section 6.3 of the Credit Agreement is hereby amended by deleting “and” at the end of subsection (j) thereof, replacing “.” at the end of subsection (k) thereof with “; and” and adding the following subsections (l) and (m) to the end thereof:
 
“(l) Indebtedness in respect of letters of credit, letters of guaranty or similar instruments having an aggregate face amount not to exceed $100,000,000 at any time outstanding; provided that such Indebtedness shall be unsecured regardless of whether a Reversion Event were to occur; and
 
(m) other Indebtedness (including, without limitation, Guaranty Obligations) in addition to Indebtedness permitted by subsections (a) through (l) above; provided, however, that the aggregate principal amount of Indebtedness issued or otherwise incurred under this subsection (m) shall not exceed $50,000,000 at any time outstanding.”
 
 
 

 
 
Section 2. Representations and Warranties.  The Borrowers represent and warrant to the Lenders as of the date hereof and the Effective Date (as defined below) that:
 
(a) At the time of and immediately after giving effect to this Amendment, the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) with the same effect as if made on the Effective Date, except to the extent such representations and warranties expressly relate to an earlier date.
 
(b) At the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
 
Section 3. Conditions to Effectiveness.  This Amendment shall become effective on the date (the “Effective Date”) on which the Administrative Agent (or its counsel) and the Canadian Agent (or its counsel) shall have received from (A) the Required Lenders, a counterpart of this Amendment signed on behalf of such party, (B) each of the other parties hereto, a counterpart of this Amendment signed on behalf of such party and (C) all fees and expenses due and payable pursuant to Section 4 hereof.  In addition, the effectiveness of this Amendment (other than Sections 4, 5, 6 and 7 hereof) is conditioned upon the accuracy of the representations and warranties set forth in Section 2 hereof.
 
Section 4. Fees and Expenses.  The Borrowers agree to reimburse the Administrative Agent and the Canadian Agent, in each case, for the reasonable out-of-pocket expenses incurred by them in connection with this Amendment, including the reasonable fees, charges and disbursements of Cahill Gordon & Reindel llp, counsel for the Administrative Agent, and Borden Ladner Gervais LLP, counsel for the Canadian Agent.
 
Section 5. Counterparts.  This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument.  Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or by email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart hereof.
 
Section 6. Applicable Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
Section 7. Headings.  The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
 
 
-2-

 
 
Section 8. Effect of Amendment.  On and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Credit Agreement”, “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 Credit 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 amended or waived by this Amendment.  The Credit Agreement, the Notes and each of the other Credit Documents, as specifically amended or waived by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.  Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.  The parties hereto expressly acknowledge that it is not their intention that this Amendment or any of the other Credit Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants or agreements contained in the Credit Agreement or any other Credit Document, but rather constitute a modification thereof pursuant to the terms contained herein.
 
[Signature Pages Follow]
 
 
-3-

 
 
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
 
 
BORROWERS:
ROCK-TENN COMPANY
 
 
 
By:
/s/ Steven C. Voorhees
   
Name:
Steven C. Voorhees
   
Title:
Executive Vice President,
     
Chief Financial Officer and
     
Chief Administrative Officer
 
 
 
 
 
 
ROCK-TENN COMPANY OF
 
CANADA/COMPAGNIE ROCK-TENN DU
 
CANADA
   
   
 
By:
/s/ Steven C. Voorhees
   
Name:
Steven C. Voorhees
   
Title:
Executive Vice President,
     
Chief Financial Officer and
     
Chief Administrative Officer
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
ADMINISTRATIVE AGENT:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
 
as Administrative Agent
 
 
 
By:
/s/ Karen H. McClain
   
Name:
Karen H. McClain
   
Title:
Managing Director
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
CANADIAN AGENT:
BANK OF AMERICA, N.A.,
 
acting through its Canada Branch,
as Canadian Agent
 
 
 
By:
/s/ Medina Sales de Andrade
   
Name:
Medina Sales de Andrade
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
1st Farm Credit Services, PCA,
 
as a Lender
 
 
 
By:
/s/ Dale A. Richardson
   
Name:
Dale A. Richardson
   
Title:
Vice President, Capital Markets
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
AGCHOICE FARM CREDIT, ACA,
 
as a Lender
 
 
 
By:
/s/ Mark F. Kerstetter
   
Name:
Mark F. Kerstetter
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
AgFirst Farm Credit Bank,
 
as a Lender
 
 
 
By:
/s/ Matthew H. Jeffords
   
Name:
Matthew H. Jeffords
   
Title:
Assistant Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
AgStar Financial Services, PCA,
 
as a Lender
 
 
 
By:
/s/ Troy Mostaert
   
Name:
Troy Mostaert
   
Title:
Vice President Capital Markets
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
American AgCredit, PCA,
 
as a Lender
 
 
 
By:
/s/ Vern Zander
   
Name:
Vern Zander
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
AMERICAN SAVINGS BANK, F.S.B.,
 
as a Lender
 
 
 
By:
/s/ Rian DuBach
   
Name:
Rian DuBach
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
ATLANTIC CAPITAL BANK,
 
as a Lender
 
 
 
By:
/s/ Glenn Little
   
Name:
Glenn Little
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Badgerland Financial,
 
as a Lender
 
 
 
By:
/s/ Kenneth H. Rue
   
Name:
Kenneth H. Rue
   
Title:
Vice President – Capital Markets
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
Bank Leumi USA,
 
as a Lender
 
 
 
By:
/s/ Joung Hee Hong
   
Name:
Joung Hee Hong
   
Title:
First Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
Bank of America, N.A.,
 
as a Lender
 
 
 
By:
/s/ Michael Delaney
   
Name:
Michael Delaney
   
Title:
Director
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
Bank of America, N.A., acting through its Canada branch,
 
as a Lender
 
 
 
By:
/s/ Medina Sales de Andrade
   
Name:
Medina Sales de Andrade
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
BANK OF CHINA, NEW YORK BRANCH,
 
as a Lender
 
 
 
By:
/s/ Haifeng Xu
   
Name:
Haifeng Xu
   
Title:
Assistant General Manager
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
The Bank of Nova Scotia,
 
as a Lender
 
 
 
By:
/s/ Paula Czach
   
Name:
Paula Czach
   
Title:
Managing Director & Execution Head
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
 
as a Lender
 
 
 
By:
/s/ Akiko Farnsworth
   
Name:
Akiko Farnsworth
   
Title:
Associate
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
Barclays Bank PLC,
 
as a Lender
 
 
 
By:
/s/ Michael J. Mozer
   
Name:
Michael J. Mozer
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Branch Banking and Trust Company,
 
as a Lender
 
 
 
By:
/s/ Robert T. Barnaby
   
Name:
Robert T. Barnaby
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Chang Hwa Commercial Bank, Ltd., New York Branch,
 
as a Lender
 
 
 
By:
/s/ Eric Y.S. Tsai
   
Name:
Eric Y.S. Tsai
   
Title:
Vice President & General Manager
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
Canadian Imperial Bank of Commerce,
 
as a Lender
 
 
 
By:
/s/ Peter Rawlins
   
Name:
Peter Rawlins
   
Title:
Executive Director
       
       
       
 
If a second signature is necessary:
   
   
 
By:
/s/ Deepak Dave
   
Name:
Deepak Dave
   
Title:
Director
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
CIBC Inc.,
 
as a Lender
 
 
 
By:
/s/ Dominic Sorresso
   
Name:
Dominic Sorresso
   
Title:
Executive Director
       
       
       
 
If a second signature is necessary:
   
   
 
By:
/s/ Eoin Roche
   
Name:
Eoin Roche
   
Title:
Executive Director
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
City National Bank,
 
as a Lender
 
 
 
By:
/s/ Jeanine Smith
   
Name:
Jeanine Smith
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
COBank ACB,
 
as a Lender
 
 
 
By:
/s/ Michael Tousignant
   
Name:
Michael Tousignant
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
Community & Southern Bank,
 
as a Lender
 
 
 
By:
/s/ Thomas A. Bethel
   
Name:
Thomas A. Bethel
   
Title:
Corporate Banking Group, Manager
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Crédit Industriel et Commercial,
 
as a Lender
 
 
 
By:
/s/ Brian O’Leary
   
Name:
Brian O’Leary
   
Title:
Managing Director
       
       
 
By:
/s/ Anthony Rock
   
Name:
Anthony Rock
   
Title:
Managing Director
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
DNB Bank ASA, Grand Cayman Branch,
 
as a Lender
 
 
 
By:
/s/ Kristie Li
   
Name:
Kristie Li
   
Title:
First Vice President
       
       
 
By:
/s/ Pål Boger
   
Name:
Pål Boger
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
E.Sun Commerical Bank, Ltd., Los Angeles Branch,
 
as a Lender
 
 
 
By:
/s/ Edward Chen
   
Name:
Edward Chen
   
Title:
Vice President & General Manager
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
Farm Credit Bank of Texas,
 
as a Lender
 
 
 
By:
/s/ Luis M. Requejo
   
Name:
Luis M. Requejo
   
Title:
Director Capital Markets
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
Farm Credit Services of America, PCA,
 
as a Lender
 
 
 
By:
/s/ Bruce Dean
   
Name:
Bruce Dean
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
FARM CREDIT WEST, PCA,
 
as a Lender
 
 
 
By:
/s/ Ben Madonna
   
Name:
Ben Madonna
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
United FCS, PCA d/b/a FCS Commercial Finance Group,
 
as a Lender
 
 
 
By:
/s/ Lisa Caswell
   
Name:
Lisa Caswell
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
FCS FINANCIAL, PCA,
 
as a Lender
 
 
 
By:
/s/ Sean Unterreiner
   
Name:
Sean Unterreiner
   
Title:
Senior Lending Officer
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Fifth Third Bank,
 
as a Lender
 
 
 
By:
/s/ Kenneth W. Deere
   
Name:
Kenneth W. Deere
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
FIRST HAWAIIAN BANK,
 
as a Lender
 
 
 
By:
/s/ Dawn Hofmann
   
Name:
Dawn Hofmann
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
First Tennessee Bank National Association,
 
as a Lender
 
 
 
By:
/s/ Jamie M. Swisher
   
Name:
Jamie M. Swisher
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Firstrust Bank,
 
as a Lender
 
 
 
By:
/s/ Ellen Frank
   
Name:
Ellen Frank
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
GreenStone Farm Credit Services, ACA/FLCA,
 
as a Lender
 
 
 
By:
/s/ Jeff Pavlik
   
Name:
Jeff Pavlik
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
HSBC Bank USA, N.A.,
 
as a Lender
 
 
 
By:
/s/ Santiago Riviere
   
Name:
Santiago Riviere
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
JPMORGAN CHASE BANK, N.A.,
 
as a Lender
 
 
 
By:
/s/ John A. Horst
   
Name:
John A. Horst
   
Title:
Credit Executive
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
KEYBANK NATIONAL ASSOCIATION,
 
as a Lender
 
 
 
By:
/s/ Marcel Fournier
   
Name:
Marcel Fournier
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
Mizuho Corporate Bank, Ltd.,
 
as a Lender
 
 
 
By:
/s/ Leon Mo
   
Name:
Leon Mo
   
Title:
Authorized Signatory
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Nordea Bank Finland Plc, acting through its New York and Cayman Islands Branches,
 
as a Lender
 
 
 
By:
/s/ Leena Parker
   
Name:
Leena Parker
   
Title:
First Vice President
       
       
 
By:
/s/ Mogens R. Jensen
   
Name:
Mogens R. Jensen
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
The Northern Trust,
 
as a Lender
 
 
 
By:
/s/ Kathryn Schad Reuther
   
Name:
Kathryn Schad Reuther
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A.
“Rabobank Nederland”, New York Branch ,
 
as a Lender
 
 
 
By:
/s/ Katye A. Whalen
   
Name:
Katye A. Whalen
   
Title:
Vice President
       
       
 
If a second signature is necessary:
       
       
 
By:
/s/ Brett Delfino
   
Name:
Brett Delfino
   
Title:
Executive Director
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Raymond James Bank, N.A.,
 
as a Lender
 
 
 
By:
/s/ Jason Williams
   
Name:
Jason Williams
   
Title:
Assistant Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
RBS Citizens, N.A.,
 
as a Lender
 
 
 
By:
/s/ Daniel Bernard
   
Name:
Daniel Bernard
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Regions Bank,
 
as a Lender
 
 
 
By:
/s/ Stephen Brothers
   
Name:
Stephen Brothers
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Royal Bank of Canada,
 
as a Lender
 
 
 
By:
/s/ Glen Barisoff
   
Name:
Glen Barisoff
   
Title:
Authorized Signatory
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 

 
 
LENDERS:
SCOTIABANC INC.,
 
as a Lender
 
 
 
By:
/s/ J.F. Todd
   
Name:
J.F. Todd
   
Title:
Managing Director
       
       
 
If a second signature is necessary:
       
       
 
By:
/s/ H. Thind
   
Name:
H. Thind
   
Title:
Director
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
Sovereign Bank N.A.,
 
as a Lender
 
 
 
By:
/s/ Francis D. Phillips
   
Name:
Francis D. Phillips
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
SUMITOMO MITSUI BANKING CORPORATION,
 
as a Lender
 
 
 
By:
/s/ Shuji Yabe
   
Name:
Shuji Yabe
   
Title:
Managing Director
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
SunTrust Bank,
 
as a Lender
 
 
 
By:
/s/ Johnetta Bush
   
Name:
Johnetta Bush
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
TD BANK N.A.,
 
as a Lender
 
 
 
By:
/s/ Michele Dragonetti
   
Name:
Michele Dragonetti
   
Title:
Senior Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
US Bank, National Association,
 
as a Lender
 
 
 
By:
/s/ Steven L. Sawyer
   
Name:
Steven L. Sawyer
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]

 
 

 
 
LENDERS:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
 
as a Lender
 
 
 
By:
/s/ Karen H. McClain
   
Name:
Karen H. McClain
   
Title:
Managing Director
 
 
[Signature Page to RockTenn Amendment No. 2]
 
 
 

 
 
LENDERS:
WELLS FARGO CAPITAL FINANCE
CORPORATION CANADA ,
 
as a Lender
 
 
 
By:
/s/ Raymond Eghobamien
   
Name:
Raymond Eghobamien
   
Title:
Vice President
 
 
[Signature Page to RockTenn Amendment No. 2]