AMENDMENT NO. 4 TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
4.1
EXECUTION
VERSION
AMENDMENT
NO. 4 TO THE
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
Dated
as
of June 18, 2007
AMENDMENT
NO. 4 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, 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 and the Letter Waiver and Amendment No. 3 (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 the date hereof 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 the following definition between the
definitions of “Alternate
Base Rate”
and
“Applicable
Margin”
contained therein:
““Amendment
Period”
means
the period commencing June 18, 2007 through (and including) the end of the
last
Fiscal Quarter of 2007.”
(b) The
definition of “Permitted
Acquisition”
is
hereby amended by inserting the following parenthetical after the amount
“$200,000,000” appearing in clause (g) contained therein:
“(but
in
the case of any Permitted Acquisition consummated during the Amendment Period,
no more than $10,000,000 in the aggregate)”
(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 last Fiscal Quarter
of
2007
|
5.00:1
|
|
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 last Fiscal Quarter
of
2007
|
2.25:1
|
|
Beginning
of the first Fiscal Quarter of 2008 and thereafter
|
2.50:1”
|
(e) Section
7.2.16 is hereby amended by adding the following as a new paragraph following
the paragraph which begins with “Furthermore” contained therein:
“Notwithstanding
any of the foregoing provisions of this Section
7.2.16
or
Section 7.2.2, in any event, no payment, prepayment, redemption, retirement,
purchase, defeasance or other acquisition of any principal of any Subordinated
Debt may be made, directly or indirectly, with the proceeds of any Loans made
hereunder during the Amendment Period (nor may any deposit be made for any
of
the foregoing purposes during the Amendment Period).”
(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 Consolidated Financial
Statement of Chesapeake Corporation's Form 10-Q dated May 8, 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 shall be effective as of the date first above written when, and only
when, (a) the U.S. Borrower shall have paid, on or before June 18, 2007, for
the
benefit of each Lender executing this Amendment on or before 12:00 Noon Eastern
time on June 18, 2007, a fee equal to 0.10% of the Total Exposure Amount of
each
such Lender and (b) the Administrative Agent shall have received, on or before
June 18, 2007, 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 since the date of its last invoice 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
has
occurred and is continuing.
SECTION
3. Representations
and Warranties of the
Borrowers.
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:
Senior 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
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/
Xxxxxx X. Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
Director
