SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 4.1
EXECUTION
VERSION
AMENDMENT
NO. 5 TO THE
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
Dated
January 18, 2008, but effective as of December 28, 2007
AMENDMENT
NO. 5 TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) among
Chesapeake Corporation, a Virginia corporation (the “U.S. Borrower”),
Chesapeake U.K. Holdings Limited, Chesapeake U.K. Acquisitions plc, Boxmore
International Limited, Chesapeake plc (formerly known as Field Group plc)
(collectively, the “U.K. 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 U.S. Borrower, the U.K. Borrowers, the Lenders, the Administrative Agent,
Bank of America, N.A. and Citicorp North America, Inc., as syndication agents,
HSBC Bank plc, as documentation agent, Wachovia Capital Markets, LLC, as
a
co-lead arranger and the sole bookrunner, and Banc of America Securities
LLC and
Citicorp North America, Inc., as co-lead arrangers have entered into a Second
Amended and Restated Credit Agreement dated as of February 23, 2004, as amended
by Amendment No. 1 dated as of June 10, 2004, Amendment No. 2 dated as of
February 23, 2006, the Letter Waiver and Amendment No. 3 dated as of August
4, 2006 and Amendment No. 4 dated as of June 18, 2007 (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 Borrowers, the Lenders and the Administrative Agent have agreed to amend
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 Credit
Agreement. The Credit Agreement is, effective as of December
28, 2007 and subject to the satisfaction of the conditions precedent set
forth
in Section 2, hereby amended as follows:
(a) Section
7.2.2(j) is hereby amended by replacing the dollar amount “$50,000,000” where it
appears therein with the dollar amount “$30,000,000”;
(b) Section
7.2.3(k) is hereby amended by replacing the dollar amount “$40,000,000” where it
appears therein with the dollar amount “$30,000,000”;
(c) Section
7.2.4(a) is hereby amended and restated in its entirety, for the period
commencing with the effective date of this Amendment, to read as
follows:
“(a)
the
Borrower will not permit the Leverage Ratio as of the last day of any Fiscal
Quarter occurring during any period set forth below to be greater than the
ratio
set forth opposite such period:
|
Period
|
Leverage
Ratio
|
|
July
1, 2007 through (and including) the end of the third Fiscal Quarter
of
2007
|
5.00:1
|
|
Beginning
of the fourth Fiscal Quarter of 2007 through (and including)
the end of
the fourth Fiscal Quarter of 2007
|
5.30:1
|
|
The
first Fiscal Quarter of 2008
|
4.25:1
|
|
Beginning
of the second Fiscal Quarter of 2008 and thereafter
|
4:00:1”
|
(d) Section
7.2.4(c) is hereby amended and restated in its entirety, for the period
commencing with the effective date of this Amendment, to read as
follows:
“(c)
the Borrower will not permit the
Interest Coverage Ratio as of the last day of any Fiscal Quarter occurring
during any period set forth below to be less than the ratio set forth opposite
such period:
|
Period
|
Interest
Coverage
Ratio
|
|
July
1, 2007 through (and including) the end of the third Fiscal Quarter
of
2007
|
2.25:1
|
|
Beginning
of the fourth Fiscal Quarter of 2007 through (and including) the
end of
the fourth Fiscal Quarter of 2007
|
2.15:1
|
|
Beginning
of the first Fiscal Quarter of 2008 and thereafter
|
2.50:1”
|
(e) Section
7.2.6 is hereby amended by deleting clause (a) in its entirety and replacing
it
with “(a) [reserved]”; and
(f) Item
6.13
of Schedule I is hereby amended and restated in its entirety to read as
follows:
“ITEM
6.13. ENVIRONMENTAL MATTERS.
See
“Environmental Matters” discussion in Note 11 to the Consolidated Financial
Statements included in Chesapeake Corporation’s quarterly report on Form 10-Q
for the quarterly period ended September 30, 2007 regarding potential liability
of WTM I Company for natural resources damages and certain environmental
remediation related to the lower Fox River, Wisconsin, site.”
SECTION
2. Conditions
of
Effectiveness. This Amendment is dated as of January 18, 2008,
but shall be effective as of December 28, 2007 when, and only when, (a) the
U.S.
Borrower shall have paid, on or before January 18, 2008, to the Administrative
Agent for the ratable account and benefit of each Lender executing this
Amendment on or before 12:00 Noon Eastern time on January 18, 2008, a fee
equal
to 0.15% of the Total Exposure Amount of each such Lender and (b) the
Administrative Agent shall have received, on or before January 18, 2008,
the
following documents, each such document (unless otherwise specified) dated
the
date of receipt thereof by the Administrative Agent (unless otherwise specified)
and in sufficient copies for each Lender, in form and substance satisfactory
to
the Administrative Agent:
(i) Counterparts
of this Amendment executed by each Borrower, each Subsidiary Guarantor and
the
Required Lenders or, as to any of the Required Lenders, advice satisfactory
to
the Administrative Agent that such Required Lender has executed this
Amendment;
(ii) Counterparts
of the Consent and Confirmation attached hereto executed by each Subsidiary
Guarantor;
(iii) Evidence
reasonably satisfactory to the Administrative Agent that any and all expenses
of
counsel to the Administrative Agent outstanding since the date of its last
invoice as well as all expenses in connection with this Amendment shall have
been paid in full in accordance with Section 10.3 of the
Credit Agreement; and
(iv) A
certificate signed by a duly authorized officer of each Borrower stating
that:
(A) All
representations and warranties made by such Borrower in Section 3 hereof
and in
the Credit Agreement (as amended hereby) 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
(B) after
giving effect to the amendments contemplated by Section 1 above, no Default
shall have occurred and be continuing.
SECTION
3. Representations
and
Warranties of theBorrowers. Each
Borrower represents and warrants as follows:
(a) Such
Borrower and each Subsidiary Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization.
(b) The
execution, delivery and performance by such Borrower of this Amendment and
the
Loan Documents, as amended 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.
(c) 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 such Borrower of this Amendment or
any of
the Loan Documents, as amended hereby, to which it is or is to be a party,
or by
each Subsidiary Guarantor of the Consent and Confirmation attached
hereto.
(d) This
Amendment has been duly executed and delivered by such 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 amended hereby, to which such Borrower is a party, and the
Consent
and Confirmation attached hereto, are legal, valid and binding obligations
of
such Borrower or such 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
effectiveness of this Amendment, 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 amended by this Amendment.
(b) The
Credit Agreement (including, without limitation, the guarantees by the Borrowers
set forth in Section
4.10 thereof), the Notes and each of the other Loan Documents, as
specifically amended by this Amendment, 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 amended 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. Costs
and
Expenses. The Borrowers agree to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel
for
the Administrative Agent) in accordance with the terms of Section 10.3 of
the Credit Agreement.
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
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.
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
By
/s./ Xxxx X.
Xxxxxxx
Name:
Xxxx X Xxxxxxx
Title:
Executive Vice President & Chief Financial Officer
CHESAPEAKE
U.K. HOLDINGS LIMITED
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Director
CHESAPEAKE
U.K. ACQUISITIONS PLC
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Director
BOXMORE
INTERNATIONAL LIMITED
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Director
CHESAPEAKE
PLC (FORMERLY KNOWN AS
FIELD
GROUP PLC)
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Director
Agreed
as
of the date first above written:
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
a
Lender and Administrative Agent
By
/s/ Xxxx X.
Xxxx
Name:
Xxxx X. Xxxx
Title:
Managing Director
CONSENT
AND CONFIRMATION
Dated
as
of January 18, 2008
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 amended
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 amended or otherwise 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.
XXXX
ST.
COMPANY
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Director
CHESAPEAKE
DISPLAY AND PACKAGING COMPANY
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Secretary
CHESAPEAKE
FOREST PRODUCTS LLC
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Secretary
CHESAPEAKE
INTERNATIONAL HOLDING COMPANY
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Secretary
DELMARVA
PROPERTIES, INC.
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Secretary
CHESAPEAKE
PRINTING AND PACKAGING COMPANY
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Secretary
STONEHOUSE
INC.
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Secretary
WTM
I
COMPANY
By
/s/ X. X. Xxxxxx
Xx.
Name:
X.
X. Xxxxxx Xx.
Title:
Vice President
