Exhibit 10.1
FIRST AMENDMENT TO
CREDIT AGREEMENT AND TO SECURITY
AND PLEDGE AGREEMENT
This FIRST AMENDMENT TO CREDIT
AGREEMENT AND TO SECURITY AND PLEDGE AGREEMENT dated as of
February 25, 2009 (the “ First Amendment
”), is entered into by and among SMURFIT-STONE CONTAINER
ENTERPRISES, INC., a Delaware corporation, a debtor and
debtor-in-possession in a case pending under Chapter 11 of the
Bankruptcy Code (“ U.S. Borrower ”),
SMURFIT-STONE CONTAINER CANADA INC., a company continued under the
Companies Act (Nova Scotia), and operating pursuant to a proceeding
under the CCAA, and a debtor and debtor in possession in a case
pending under Chapter 11 of the Bankruptcy Code (“
Canadian Borrower ,” and together with the U.S.
Borrower, the “ Borrowers ”),
SMURFIT-STONE CONTAINER CORPORATION, a Delaware corporation, a
debtor and debtor-in-possession in a case pending under Chapter 11
of the Bankruptcy Code (“ Parent ”), the
other Loan Parties party hereto, the Lenders party hereto, JPMORGAN
CHASE BANK, N.A., as Administrative Agent and Collateral Agent, and
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian
Administrative Agent and Canadian Collateral Agent.
WITNESSETH:
WHEREAS, the Borrowers, the Lenders,
and the Agents are parties to that certain Credit Agreement dated
as of January 28, 2009, pursuant to which the Lenders have
made available to the Borrowers a term loan, revolving credit and
letter of credit facility in an aggregate principal amount not to
exceed US$750,000,000 (the “ Credit Agreement
”), and the Administrative Agent, the U.S. Borrower and each
of the other Grantors party thereto are parties to that certain
Security and Pledge Agreement dated as of January 28, 2009
(the “ Security Agreement ”);
WHEREAS, the Borrowers have
requested that the Lenders amend and supplement the Credit
Agreement and Security Agreement to reflect certain modifications
to the Credit Agreement and Security Agreement;
WHEREAS, the Lenders have agreed to
(i) amend and supplement the Credit Agreement to reflect
certain modifications to the Credit Agreement, and (ii) concur
in an amendment by the Administrative Agent to the Security
Agreement to reflect certain modifications to the Security
Agreement;
WHEREAS, upon the occurrence of the
First Amendment Effectiveness Date (as defined below), each of the
parties to the Credit Agreement shall be deemed to have become a
party to the Amended and Restated Credit Agreement (as in effect
after giving effect to this First Amendment) in the form of
Exhibit A hereto; and
WHEREAS, upon the occurrence of the
First Amendment Effectiveness Date, each of the Lenders party to
this Agreement shall have consented to the amendments to the
Security Agreement set forth herein.
NOW, THEREFORE, in consideration of
the premises and the mutual agreements herein set forth and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.
Definitions
. Capitalized terms used and
not otherwise defined in this First Amendment are used as defined
in the Credit Agreement (after giving effect to this First
Amendment). In addition, the capitalized term “
First Amendment Effectiveness Date ” shall mean
the first Business Day on which the conditions set forth in
Section 4 hereof are fully satisfied to the
satisfaction of the Administrative Agent or waived by the
Administrative Agent. The Administrative Agent will give the
Borrowers and each Lender written notice of the occurrence of the
First Amendment Effectiveness Date.
Section 2.
Amendments to Credit
Agreement . Subject
to the conditions set forth in Section 4 hereof, the
Credit Agreement is hereby amended and restated as
follows:
2.1
Each of the
provisions of the Credit Agreement which appear with computerized
underscoring are inserted and each of the provisions which appear
with computerized strike-through are deleted in the document
annexed hereto as Exhibit A .
2.2
Annex A-2 to the
Credit Agreement (as in effect prior to giving effect to this First
Amendment) is hereby replaced in its entirety by Annex A-2 to the
document attached as Exhibit A hereto.
2.4
Annex A-5 attached hereto as
Exhibit B is hereby inserted as Annex A-5 of the Credit
Agreement.
2.3
The Lenders
hereby waive any Events of Default arising under
Section 7.1(a) of the Credit Agreement to the extent, but
solely to the extent, that such Events of Default are a result of
Smurfit Stone Puerto Rico, Inc.’s failure to be in good
standing under the law of its jurisdiction of organization prior to
the First Amendment Effectiveness Date.
Section 3.
Amendments to Security
Agreement . Subject
to the conditions set forth in Section 4 hereof, the
Security Agreement is hereby amended as follows:
3.1
Section 7.2
of the Security Agreement is hereby amended and restated to read as
follows:
7.2.
Covenant Regarding New Deposit
Accounts; Lock Boxes . Before opening or replacing any
Collateral Deposit Account, other Deposit Account (other than
deposit accounts of Calpine, zero balance accounts, payroll
accounts, withholding tax payment accounts and the Adequate
Assurance Account (as defined below)), in which an average balance
of at least $1,000,000 is maintained (provided that, the aggregate
average balance in Deposit Accounts (other than deposit accounts of
Calpine, zero balance accounts, payroll accounts, withholding tax
payment accounts and the Adequate Assurance Account) as to which a
Deposit Account Control Agreement is not in effect shall not exceed
$5,000,000), or establishing a new Lock Box, each Grantor (other
than Calpine) shall (a) obtain the Administrative
Agent’s consent in writing to the opening of such Deposit
Account or Lock Box, and (b) cause each bank or financial
institution in which it seeks to open (i) a Deposit Account,
to enter into a Deposit
Account Control Agreement with the
Administrative Agent in order to give the Administrative Agent
Control of such Deposit Account, or (ii) a Lock Box, to enter
into a Lock Box Agreement with the Administrative Agent in order to
give the Administrative Agent Control of the Lock Box. In the
case of Deposit Accounts or Lock Boxes maintained with Lenders, the
terms of such letter shall be subject to the provisions of the
Credit Agreement regarding setoffs. The “
Adequate Assurance Account ” shall mean that certain
account established at JPMorgan Chase Bank, N.A. pursuant to the
INTERIM ORDER PURSUANT TO SECTIONS 1059A) AND 366(B) OF THE
BANKRUPTCY CODE (I) PROHIBITING UTILITY PROVIDERS FROM
ALTERING, REFUSING OR DISCONTINUING UTILITY SERVICES,
(II) DEEMING UTILITY PROVIDERS ADEQUATELY ASSURED OF FUTURE
PERFORMANCE, AND (III) ESTABLISHING PROCEDURES FOR DETERMINING
ADEQUATE ASSURANCE OF PAYMENT and the final order with respect to
such interim order.
3.2
The reference in
Section 8.7 of the Security Agreement to Section 9.02 of
the Credit Agreement is hereby corrected to be a reference to
Section 9.10 of the Credit Agreement.
Section 4.
Effectiveness
. The effectiveness of this
First Amendment, the amendment and restatement of the Credit
Agreement and the amendment of the Security Agreement are subject
to the following conditions precedent:
4.1
Supporting
Documents . The Administrative
Agent shall have received for each of the Loan Parties:
4.1.1
bring-down
certificates delivered by each Loan Party (A) certifying that
there were no changes, or providing the text of changes, to the
Organizational Documents of such Loan Party as delivered pursuant
to Section 4.1(a)(i) of the Credit Agreement and
(B) to the effect that each Loan Party is in good standing in
its jurisdiction of incorporat
