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:
“(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
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.
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