Exhibit
10.1
SECOND AMENDMENT TO CREDIT AGREEMENT AND
CONSENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND
CONSENT (this “
Amendment ”), dated as of July 21, 2009, is by and
among ROCK-TENN COMPANY , a Georgia corporation (the “
Company ”), ROCK-TENN COMPANY OF CANADA , a
Nova Scotia unlimited liability company the “ Canadian
Borrower ”, and together with the Company, the “
Borrowers ”), the Guarantors party hereto, WACHOVIA
BANK, NATIONAL ASSOCIATION , as Administrative Agent and
Collateral Agent and BANK OF AMERICA, N.A. , acting through
its Canada branch, as Canadian Agent. Capitalized terms
used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement (as hereinafter
defined).
W I T N E S S E T H
WHEREAS , the Borrowers, the Guarantors, certain banks
and financial institutions from time to time party thereto (the
“ Lenders ”) and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement dated
as of March 5, 2008 (as amended, modified, extended, restated,
replaced, or supplemented from time to time, the “ Credit
Agreement ”);
WHEREAS , the Credit Parties have requested the Required
Lenders amend certain provisions of the Credit Agreement;
and
WHEREAS , the Required Lenders are willing to make such
amendments to the Credit Agreement, in each case, in accordance
with and subject to the terms and conditions set forth
herein.
NOW, THEREFORE , in consideration of the agreements hereinafter
set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1
Amendment to Definition of 2016 Senior Notes
. The definition of 2016 Senior Notes is hereby
amended and restated in its entirety to read as follows:
“
2016 Senior Notes ” means the Company’s 9.25%
senior notes due March, 2016 issued pursuant to the 2008 Senior
Note Indenture.
1.2
Amendment to Section 2.10(b)(iii) . Section 2.10(b)(iii) of the
Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(iii) Debt
Issuances . Immediately upon receipt by a Borrower
or any Restricted Subsidiary of proceeds from (A) any Debt Issuance
(other than an Excluded Debt Issuance) or (B) any borrowing after
the Closing Date under a Permitted Securitization Transaction, the
Company shall prepay the Loans in an aggregate amount equal to one
hundred percent (100%) of the Net Proceeds of such Debt Issuance or
such borrowing to the Lenders (such prepayment to be applied as set
forth in clause (vi) below); provided that the Company shall
not be required to prepay the Loans with the Net Proceeds from any
Debt Issuance made pursuant to Section 6.3(l) to the extent such
Net Proceeds are used to (1) repay the 2011 Senior Notes or the
2013 Senior Notes at maturity, (2) redeem, defease, repurchase,
purchase prior to maturity or repay the 2011 Senior Notes or the
2013 Senior Notes in accordance with the terms of Section
6.18(a) or (3) prepay the Term Loans, in each case
within one (1) year after such Debt Issuance; it being understood
that any such Net Proceeds that are not so used within such time
period shall be promptly used to prepay the Loans (such prepayment
to be applied as set forth in clause (vi) below).
1.3
Amendments to Section 6.3 . Section 6.3 of the Credit Agreement
is hereby amended by amending and restating subsections (c) and (i)
thereof, adding a new subsection (l) thereto and making the
appropriate punctuation and grammatical changes thereto, in each
case to read as follows:
(c) Indebtedness
(i) (A) existing as of the Closing Date (including, without
limitation, the 2011 Senior Notes, the 2013 Senior Notes, the
Solvay Bonds and the SCC Tax and Deferred Cash Payments) and (B)
with respect to any such Indebtedness in an outstanding principal
amount in excess of U.S.$5,000,000 (other than the 2011 Senior
Notes, the 2013 Senior Notes, the Solvay Bonds and the SCC Tax and
Deferred Cash Payments), set forth on Schedule 3.18 and (ii)
incurred pursuant to the 2016 Senior Notes; and renewals,
refinancings, refundings or extensions thereof in a principal
amount not in excess of that outstanding as of the date of such
renewal, refinancing or extension; provided that (i) the
terms relating to principal amount, amortization, maturity,
redemption, prepayment, covenants, defaults, remedies, collateral
(if any) and subordination (if any), and other material terms taken
as a whole, of any such refinancing, refunding, renewing or
extending Indebtedness, and of any agreement entered into and of
any instrument issued in connection therewith, are no less
favorable in any material respect to the Credit Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, renewed or extended, (ii) the
interest rate applicable to any such refinancing, refunding,
renewing or extending Indebtedness does not exceed the then
applicable market interest rate, (iii) such Indebtedness has a
maturity no earlier than March 16, 2013 (or, with respect to the
2016 Senior Notes, March 15, 2016) and (iv) the Solvay Bonds may
only be refinanced or refunded with new revenue bonds or other
financing related to the Solvay Facility on terms and conditions no
more restrictive in any material respect than, and no less
favorable in any material respect to the Lenders than, the Solvay
Bonds; it being understood and agreed that (A) if the Solvay Bonds
are refinanced or refunded with new revenue bonds or other
Indebtedness secured by the assets of Solvay LLC, the Company shall
use commercially reasonable efforts to ensure that the new revenue
bonds or secured Indebtedness permit Solvay LLC to become a U.S.
Guarantor hereunder, (B) if the Solvay Bonds are refinanced or
refunded with unsecured Indebtedness, such Indebtedness shall
permit Solvay LLC to become a U.S. Guarantor hereunder and grant
Liens on its Property in favor of the Collateral Agent and (C) the
interest rate, yield and other economic terms for such new revenue
bonds or other financing shall be at prevailing market rates at the
time of such refinancing or refunding;
**********
(i) unsecured
Indebtedness of the Company, and guarantees of such Indebtedness by
the Company’s Restricted Subsidiaries that are U.S.
Guarantors, under the 2016 Senior Notes in an aggregate principal
amount not to exceed U.S.$200,000,000 plus the principal amount of
any add-on to the 2016 Senior Notes to the extent such add-on is
incurred pursuant to another subsection of this Section 6.3
;
**********
(l) unsecured
Indebtedness in an aggregate principal amount not to exceed
U.S.$100,000,000; provided that the maturity date of such
unsecured Indebtedness shall be no earlier than, and such
Indebtedness shall not be subject to any amortization payment,
mandatory prepayment, mandatory sinking fund payment, redemption or
other acceleration prior to, the date that is one (1) year
following the Term Loan B Maturity Date.
1.4
Amendment to Section 6.18(a) .
Section 6.18(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(a) redeem,
repurchase, defease, purchase prior to maturity or prepay the 2011
Senior Notes, the 2013 Senior Notes, the 2016 Senior Notes or any
Subordinated Debt, except (i) in connection with any refinancing of
the 2011 Senior Notes, the 2013 Senior Notes, the 2016 Senior Notes
or any Subordinated Debt permitted by the terms of Section
6.3 and (ii) redemptions, repurchases, defeasances, purchases
or prepayments of the 2011 Senior Notes and/or the 2013 Senior
Notes in an aggregate amount not to exceed: (1) for all such
redemptions, repurchases, defeasances, purchases or prepayments of
the 2011 Senior Notes and/or the 2013 Senior Notes made in any
fiscal year, (x) $85,000,000 (the “ Annual Limit
”) plus (y) beginning with the fiscal year of the
Company ending on September 30, 2011, the unused amount available
under the Annual Limit for the immediately preceding fiscal year
(excluding any carry forward available from any prior fiscal year);
provided that, with respect to any fiscal year, any
redemptions, repurchases, defeasances, purchases or prepayments of
the 2011 Senior Notes and/or the 2013 Senior Notes made during such
fiscal year shall be deemed to be made first with respect to the
Annual Limit and then with respect to any carry forward amount to
the extent applicable; and (2) for all such redemptions,
repurchases, defeasances, purchases or prepayments of the 2011
Senior Notes and/or the 2013 Senior Notes made after the Closing
Date, $170,000,000; provided that, in the case of any such
redemption, repurchase, defeasance, purchase or prepayment
described in this clause (ii), (A) no Default or Event of Default
has occurred and is continuing or would be directly or indirectly
caused as a result thereof and (B) after giving effect to any such
redemption, repurchase, defeasance, purchase or prepayment, the
Borrowers shall have availability under the Aggregate Revolving
Committed Amount of at least $300,000,000; and provided
further that if the Leverage Ratio both before and after
giving effect to any such redemption, repurchase, defeasance,
purchase or prepayment on a Pro Forma Basis does not exceed 3.00 to
1.00 and if the conditions in clause (A) and (B) above have been
satisfied, the Borrower may make additional redemptions,
repurchases, defeasances, purchases or prepayments of the 2011
Senior Notes and/or the 2013 Senior Notes pursuant to this clause
(ii) in an aggregate amount for all such additional redemptions,
repurchases, defeasances, purchases or prepayments not to exceed
$100,000,000 (it being understood and agreed that any redemption,
repurchase, defeasance, purchase or prepayment of the 2011 Senior
Notes and/or the 2013 Senior Notes that is permitted by this
subsection at the time it is made shall thereafter be permitted by
this subsection regardless of whether the conditions set forth in
clauses (A) and (B) above continue to be satisfied);
ARTICLE II
CONDITIONS TO EFFECTIVENESS
2.1
Closing Conditions . This Amendment shall
become effective as of the day and year set forth above (the
“ Amendment Effective Date ”) upon satisfaction
(or waiver) of the following conditions on or prior to July 31,
2009:
(a)
Executed Amendment . The Administrative Agent
shall have received a copy of this Amendment duly executed by each
of the Credit Parties, the Administrative Agent, on behalf of the
Required Lenders, and the Canadian Agent.
(b)
Executed Lender Consents . The Administrative
Agent shall have received executed consents, in substantially the
form of Exhibit A attached hereto (each a “
Lender Consent ”), from the Required Lenders
authorizing the Administrative Agent to enter into this Amendment
on their behalf. The delivery by the Administrative
Agent of its signature page to this Amendment shall constitute
conclusive evidence that the consents from the Required Lenders
have been obtained.
(c)
Representations and Warranties . The
representations and warranties set forth in Article III of the
Credit Agreement are true and correct as of the Amendment Effective
Date (except for those which expressly relate to an earlier
date).
(d)
No Default . As of the Amendment Effective Date
and after giving effect to this Amendment, no event has occurred
and is continuing which constitutes a Default or an Event of
Default.
(e)
Fees and Expenses . The Administrative Agent
shall have received from the Borrowers such fees and expenses that
are payable in connection with the consummation of the transactions
contemplated hereby and Moore & Van Allen PLLC shall have
received from the Borrowers payment of all outstanding fees and
expenses previously incurred and all fees and expenses incurred in
connection with this Amendment.
(f)
Miscellaneous . All other documents and legal
matters in connection with the transactions contemplated by this
Amendment shall be reasonably satisfactory in form and substance to
the Administrative Agent and its counsel.
ARTICLE III
MISCELLANEOUS
3.1
Amended Terms . On and after the
Amendment Effective Date, all references to the Credit Agreement in
each of the Credit Documents shall hereafter mean the Credit
Agreement as amended by this Amendment. Except as
specifically amended hereby or otherwise agreed, the Credit
Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms.
3.2
Representations and Warranties of Credit Parties .
Each of the Credit Parties represents and warrants as
follows:
(a) It
has taken all necessary action to authorize the execution, delivery
and performance of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and
constitutes such Person’s legal, valid and binding
obligation, enforceable in accordance with its terms, except as
such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors’ rights
generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or
in equity).
(c) No
consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental
authority or third party is required in connection with the
execution, delivery or performance by such Person of this
Amendment.
(d) The
representations and warranties set forth in Article III of the
Credit Agreement are true and correct as of the Amendment Effective
Date (except for those which expressly relate to an earlier
date).
(e) As
of the Amendment Effective Date and after giving effect to this
Amendment, no event has occurred and is continuing which
constitutes a Default or an Event of Default.
(f) The
Security Documents continue to create a valid security interest in,
and Lien upon, the Collateral, in favor of the Administrative Agent
or the Canadian Agent, as applicable, for the benefit of the
applicable Lenders, which security interests and Liens are
perfected in accordance with the terms of the Security Documents
and prior to all Liens other than Permitted Liens.
(g) The
Credit Party Obligations are not reduced or modified by this
Amendment and are not subject to any offsets, defenses or
counterclaims.
3.3
Reaffirmation of Credit Party Obligations .
Each Credit Party hereby ratifies the Credit Agreement
and acknowledges and reaffirms (a) that it is bound by all
terms of the Credit Agreement applicabl
