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Exhibit 10.22

 

Execution Copy

 

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of July 26, 2017 is by and among KAPSTONE KRAFT PAPER CORPORATION, a Delaware corporation (the “Borrower”), KAPSTONE PAPER AND PACKAGING CORPORATION, a Delaware corporation (the “Parent”), certain subsidiaries of the Parent identified on the signature pages hereto as Guarantors, the Lenders and Voting Participants identified on the signature pages hereto and BANK OF AMERICA, N.A., as Administrative Agent (the “Administrative Agent”), Swing Line Lender and L/C Issuer.

 

W I T N E S S E T H

 

WHEREAS, the Borrower, the Parent, the other Guarantors party thereto, the Lenders party thereto, and the Administrative Agent have entered into that certain Second Amended and Restated Credit Agreement dated as of June 1, 2015 (as amended, restated, modified or supplemented from time to time, the “Credit Agreement”);

 

WHEREAS, the Borrower has requested that the Lenders and Voting Participants agree to certain amendments to the Credit Agreement; and

 

WHEREAS, the Lenders and Voting Participants are willing to agree to certain amendments to the Credit Agreement subject to the terms and conditions specified in this Agreement;

 

NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.                                      Defined Terms.  Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement.

 

2.                                      Amendments.  Subject to the other terms and conditions of this Agreement (including the conditions precedent set forth in Section 3 hereof), the Credit Agreement is hereby amended as follows:

 

(a)                                 In the definition of “EBITDA” in Section 1.01 of the Credit Agreement, clause (h) is hereby amended and restated in its entirety to read as follows:

 

“(h) “cold mill” maintenance outage costs in an aggregate amount of (i) up to $8,000,000 for the period from the Closing Date through December 31, 2015, (ii) up to $8,000,000 for the period from January 1, 2016 through the termination of this Agreement (it being understood that such add-back shall only be permitted in connection with one such outage for each of the foregoing clauses (i) and (ii) during the term of this Agreement) and (iii) solely in connection with the project to repair and restore recovery boiler #9 at the KapStone Charleston Kraft LLC mill located in North Charleston, South Carolina, up to $18,000,000 for Fiscal Year 2018, but, with respect to each of the foregoing clauses (i) — (iii), only to the extent that the aggregate amount of such costs for such period is equal to or exceeds the actual expense allocable to such outage during such period, with the net add-back amount not to be less than $0,”

 



 

(b)                                 The table in Section 7.14(a) of the Credit Agreement is hereby amended to read as follows:

 

Calendar Year

 

March 31

 

June 30

 

September 30

 

December 31

2016

 

4.50:1.00

 

4.50:1.00

 

4.50:1.00

 

4.50:1.00

2017

 

4.50:1.00

 

4.50:1.00

 

4.50:1.00

 

4.50:1.00

2018

 

4.25:1.00

 

4.00:1.00

 

3.75:1.00

 

3.75:1.00

Thereafter

 

3.75:1.00

 

3.75:1.00

 

3.75:1.00

 

3.75:1.00

 

3.                                      Conditions Precedent to Effectiveness.  This Agreement shall become effective as of the date hereof upon the satisfaction of the following conditions:

 

(a)                                 Execution of Counterparts of Agreement.  Receipt by the Administrative Agent of counterparts of this Agreement duly executed by the Borrower, the Parent, the other Guarantors, the Administrative Agent and the Required Lenders; and

 

(b)                                 Fees and Expenses.  The payment by the Borrower to (i) the Administrative Agent, for the account of each Lender and Voting Participant that signs this Agreement prior to Tuesday, July 25 at 5:00 p.m. Eastern time, an amendment fee equal to 5 basis points on the aggregate amount of such Lender’s Term Loans and Revolving Credit Commitment as of the closing date of this Agreement and (ii) the Administrative Agent (or one of its Affiliates) of all reasonable out of pocket costs and expenses of the Administrative Agent for which invoices have been received by the Borrower at least one (1) Business Day prior to the date hereof in connection with the preparation, execution and delivery of this Agreement (including, without limitation, to the extent the Borrower has received an invoice therefor at least one (1) Business Day prior to the date hereof, the reasonable fees and expenses of Moore & Van Allen PLLC, special counsel to the Administrative Agent).

 

4.                                      Representations and Warranties.  Each Loan Party hereby represents and warrants that (a) it is duly authorized to execute and deliver, and perform its obligations under, this Agreement; (b) the execution, delivery and performance by it of this Agreement do not and will not (i) require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect), (ii) conflict with (A) any provision of Law, (B) the charter, by-laws or other organizational documents of any Loan Party or (C) any agreement, indenture, instrument or other document material to the business of any Loan Party, or any judgment, order or decree, which is binding upon any Loan Party or any of their respective properties; (c) the representations and warranties contained in Article V of the Credit Agreement and in any other Loan Document are true and correct in all material respects (except to the extent already qualified by materiality pursuant to the terms thereof) on and as of the date hereof as though made on and as of such date, except for those which expressly relate to an earlier date, in which case they are true and correct in all material respects (except to the extent already qualified by materiality pursuant to the terms thereof) as of such date; and (d) no Default or Event of Default exists under the Credit Agreement on and as of the date hereof and after giving effect to this Agreement, or will occur as a result of the transactions contemplated hereby.

 

5.                                      No Other Changes; Ratification.  Except as expressly modified or waived hereby, all of the terms and provisions of the Credit Agreement (including schedules and exhibits thereto) and the other Loan Documents shall remain in full force and effect.  The term “this Agreement” or “Credit Agreement” and all similar references as used in each of the Loan Documents shall hereafter mean the Credit Agreement as modified by this Agreement.  This Agreement shall constitute a “Loan Document” under, and as defined in, the Credit Agreement.  Except as herein specifically agreed, the Credit Agreement and the other Loan Documents are hereby ratified and confirmed and shall remain in full force and effect

 

2



 

according to their terms.  This Agreement shall be effective only to the extent specifically set forth herein and shall not (i) be construed as a waiver of any breach or default nor as a waiver of any breach or default of which the Lenders have not been informed by the Borrower, (ii) affect the right of the Lenders to demand compliance by the Loan Parties with all terms and conditions of the Credit Agreement and other Loan Documents in all other instances, (iii) be deemed a waiver of any transaction or future action on the part of the Loan Parties requiring the Lenders’ or the Required Lenders’ consent or approval under the Credit Agreement or other Loan Documents, or (iv) be deemed or construed to be a waiver or release of, or a limitation upon, the Administrative Agent’s or the Lenders’ exercise of any rights or remedies under the Credit Agreement or any other document executed or delivered in connection therewith, whether arising as a consequence of any Event of Default which may now exist or otherwise, all such rights and remedies hereby being expressly reserved.

 

6.                                      Expenses.  The Borrower agrees to pay all reasonable costs and expenses in connection with the preparation, execution and delivery of this Agreement, including without limitation the reasonable fees and expenses of Moore & Van Allen PLLC, special counsel to the Administrative Agent.

 

7.                                      Acknowledgment of Guarantors.  The Guarantors acknowledge and consent to all of the terms and conditions of this Agreement and agree that this Agreement and any documents executed in connection herewith do not operate to reduce or discharge the Guarantors’ obligations under the Credit Agreement or the other Loan Documents.

 

8.                                      Affirmation of Liens. Each Loan Party affirms the liens and security interests created and granted by it in the Loan Documents (including, but not limited to, the Security Agreement) and agrees that this Agreement shall in no manner adversely affect or impair such liens and security interests.

 

9.                                      Counterparts; Facsimile/Email.  This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.  Delivery of an executed counterpart of this Agreement by telecopy or electronic mail by any party hereto shall be effective as such party’s original executed counterpart.

 

10.                               Governing Law.  This Agreement shall be deemed to be a contract made under, and for all purposes shall be construed in accordance with, the laws of the State of New York (including Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York but otherwise without regard to the conflict of law principles thereof).

 

11.                               Entirety. This Agreement and the other Loan Documents embody the entire agreement between the parties and supersede all prior agreements and understandings, if any, relating to the subject matter hereof.  These Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.  There are no oral agreements between the parties.

 

[SIGNATURE PAGES FOLLOW]

 

3



 

IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.

 

BORROWER:

KAPSTONE KRAFT PAPER CORPORATION,

 

a Delaware corporation

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President and CFO

 

 

GUARANTORS:

KAPSTONE PAPER AND PACKAGING CORPORATION,

 

a Delaware corporation

 

 

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Executive Vice President and CFO

 

 

 

KAPSTONE CHARLESTON KRAFT LLC,

 

a Delaware limited liability company

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President and CFO

 

 

 

KAPSTONE CONTAINER CORPORATION,

 

a Georgia corporation

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President and CFO

 

 

 

LONGVIEW FIBRE PAPER AND PACKAGING, INC.,

 

a Washington corporation

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

CFO

 

 

 

VICTORY PACKAGING, L.P.,

 

a Texas limited partnership

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

VICTORY PACKAGING MAQUILLA DORA LLC,

 

a Texas limited liability company

 

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President

 

 

 

 

ORANGE BOXER INVESTMENTS, LLC,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Treasurer

 

 

 

 

ORANGE BOXER OPERATIONS, LLC,

 

a Delaware limited liability company

 

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Treasurer

 

 

 

 

CENTRAL FLORIDA BOX, LLC,
a Delaware limited liability company

 

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President and CFO

 

 

 

 

CONPACK INVESTMENTS, LLC,
a Delaware limited liability company

 

 

 

 

By:

/s/ Andrea K. Tarbox

 

Name:

Andrea K. Tarbox

 

Title:

Vice President and CFO

 

 

 

ADMINISTRATIVE

BANK OF AMERICA, N.A.,

AGENT:

as Administrative Agent

 

 

 

 

By:

/s/ Kyle D Harding

 

Name:

Kyle D Harding

 

Title:

Assistant Vice President

 

 

 

LENDERS:

BANK OF AMERICA, N.A.,

 

as a Lender, L/C Issuer and Swing Line Lender

 

 

 

 

By:

/s/ Carlos Morales

 

Name:

Carlos Morales

 

Title:

Senior Vice President

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

BARCLAYS BANK PLC,

 

as a Lender

 

 

 

 

By:

/s/ Ronnie Glenn

 

Name:

Ronnie Glenn

 

Title:

Vice President

 

 

 

 

COMPEER FINANCIAL, PCA (successor by merger to 1st Farm Credit Services, PCA),

 

as a Lender

 

 

 

 

By:

/s/ Corey J. Waldinger

 

Name:

Corey J. Waldinger

 

Title:

Director, Capital Markets

 

 

 

 

AGCHOICE FARM CREDIT, ACA,

 

as a Lender

 

 

 

 

By:

/s/ Joshua L. Larock

 

Name:

Joshua L. Larock

 

Title:

Vice President

 

 

 

 

AGFIRST FARM CREDIT BANK,

 

as a Lender

 

 

 

 

By:

/s/ Matt Jeffords

 

Name:

Matt Jeffords

 

Title:

Vice President

 

 

 

 

COMPEER FINANCIAL, PCA (successor by merger to AgStar Financial Services, PCA),

 

as a Lender

 

 

 

 

By:

/s/ Corey J. Waldinger

 

Name:

Corey J. Waldinger

 

Title:

Director, Capital Markets

 

 

 

 

AMERICAN AGCREDIT, PCA,

 

as a Lender

 

 

 

 

By:

/s/ Michael J. Balok

 

Name:

Michael J. Balok

 

Title:

Vice President

 

 

 

 

AMERICAN SAVINGS BANK, F.S.B.,

 

as a Lender

 

 

 

 

By:

/s/ Kyle J. Shelly

 

Name:

Kyle J. Shelly

 

Title:

First Vice President

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

BANKPLUS,

 

as a Lender

 

 

 

 

By:

/s/ Jay Bourne

 

Name:

Jay Bourne

 

Title:

SVP

 

 

 

 

BMO HARRIS BANK, N.A.,

 

as a Lender

 

 

 

 

By:

/s/ Michael A. Hong

 

Name:

Michael A. Hong

 

Title:

Assistant Vice President

 

 

 

 

CITIZENS BANK NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Thomas Lass

 

Name:

Thomas Lass

 

Title:

Senior Vice President

 

 

 

 

COBANK, ACB,

 

as a Lender

 

 

 

 

By:

/s/ Patrick Keleher

 

Name:

Patrick Keleher

 

Title:

Vice President

 

 

 

 

COMPASS BANK,

 

as a Lender

 

 

 

 

By:

/s/ Michael Song

 

Name:

Michael Song

 

Title:

Senior Vice President

 

 

 

 

COÖPERATIEVE RABOBANK U.A., NEW YOR.K BRANCH, (formerly known as COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH),

 

as a Lender

 

 

 

 

By:

/s/ Peter Glawe

 

Name:

Peter Glawe

 

Title:

Executive Director

 

 

 

 

By:

/s/ Peter Duncan

 

Name:

Peter Duncan

 

Title:

Managing Director

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

FARM CREDIT BANK OF TEXAS,

 

as a Lender

 

 

 

 

By:

/s/ Chris M. Levine

 

Name:

Chris M. Levine

 

Title:

Vice President

 

 

 

 

FARM CREDIT SERVICES OF AMERICA, PCA,

 

as a Lender

 

 

 

 

By:

/s/ Bruce Dean

 

Name:

Bruce Dean

 

Title:

Vice President

 

 

 

 

FIFTH THIRD BANK,

 

as a Lender

 

 

 

 

By:

/s/ Neil G. Mesch

 

Name:

Neil G. Mesch

 

Title:

SVP

 

 

 

 

FIRST TENNESSEE BANK NATIONAL ASSOCATION,

 

as a Lender

 

 

 

 

By:

/s/ Elizabeth C Brasher

 

Name:

Elizabeth C Brasher

 

Title:

Senior Vice President

 

 

 

 

FIRST MIDWEST BANK,

 

as a Lender

 

 

 

 

By:

/s/ Morgan A. Lyons

 

Name:

Morgan A. Lyons

 

Title:

Senior Vice President

 

 

 

 

FIRST NATIONAL BANK OF OMAHA,

 

as a Lender

 

 

 

 

By:

/s/ Nathan Johns

 

Name:

Nathan Johns

 

Title:

Vice President

 

 

 

 

THE NORTHERN TRUST COMPANY,

 

as a Lender

 

 

 

 

By:

/s/ Brittany Mondane

 

Name:

Brittany Mondane

 

Title:

Second Vice President

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

THE HUNTINGTON NATIONAL BANK,

 

as a Lender, both for itself and as successor-in-interest to

 

FIRSTMERIT BANK, N.A.

 

 

 

 

By:

/s/ Mark Zobel

 

Name:

Mark Zobel

 

Title:

Vice President

 

 

 

 

PNC BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Michael Kelly

 

Name:

Michael Kelly

 

Title:

Vice President

 

 

 

 

SUMITOMO MITSUI BANKING CORPORATION

 

as a Lender

 

 

 

 

By:

/s/ Katsuyuki Kubo

 

Name:

Katsuyuki Kubo

 

Title:

Managing Director

 

 

 

 

SUNTRUST BANK,

 

as a Lender

 

 

 

 

By:

/s/ Lisa Garling

 

Name:

Lisa Garling

 

Title:

Director

 

 

 

 

TD BANK, N.A.,

 

as a Lender

 

 

 

 

By:

/s/ Michele Dragonetti

 

Name:

Michele Dragonetti

 

Title:

Senior Vice President

 

 

 

 

THE PRIVATEBANK & TRUST CO.,

 

as a Lender

 

 

 

 

By:

/s/ Christopher M. Trimbach

 

Name:

Christopher M. Trimbach

 

Title:

Associate Managing Director

 

 

 

 

U.S. BANK NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Mary Ann Klemm

 

Name:

Mary Ann Klemm

 

Title:

Senior Vice President

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

as a Lender

 

 

 

 

By:

/s/ Andrew Payne

 

Name:

Andrew Payne

 

Title:

Director

 

 

 

 

FIRST BANK OF HIGHLAND PARK,

 

as a Lender

 

 

 

 

By:

/s/ Sara DeKuiper

 

Name:

Sara DeKuiper

 

Title:

Senior Vice President

 

 

 

 

AGRIBANK, FCB,

 

as a Voting Participant

 

 

 

 

By:

/s/ Jeff Hanson

 

Name:

Jeff Hanson

 

Title:

VP Lending

 

 

 

 

COMPEER FINANCIAL, FLCA (successor by merger to Badgerland Financial, FLCA),

 

as a Voting Participant

 

 

 

 

By:

/s/ Corey J. Waldinger

 

Name:

Corey J. Waldinger

 

Title:

Director, Capital Markets

 

 

 

 

CAPITAL FARM CREDIT,

 

as a Voting Participant

 

 

 

 

By:

/s/ Joseph R Slagle

 

Name:

Joseph R Slagle

 

Title:

SVP — Capital Markets

 

 

 

 

FARM CREDIT MID-AMERICA, FLCA,

 

as a Voting Participant

 

 

 

 

By:

/s/ Tabatha Hamilton

 

Name:

Tabatha Hamilton

 

Title:

Vice President Capital Markets

 

 

 

 

FARM CREDIT OF CENTRAL FLORIDA, ACA,

 

as a Voting Participant

 

 

 

 

By:

/s/ D. Scott Fontenot

 

Name:

D. Scott Fontenot

 

Title:

Chief Operating Officer

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 



 

 

FARM CREDIT WEST, FLCA,

 

as a Voting Participant

 

 

 

 

By:

/s/ Ben Madonna

 

Name:

Ben Madonna

 

Title:

Vice President

 

 

 

 

FIRST SOUTH FARM CREDIT, ACA,

 

as a Voting Participant

 

 

 

 

By:

/s/ John W. Hurt

 

Name:

John W. Hurt

 

Title:

Vice President

 

 

 

 

MIDATLANTIC FARM CREDIT, ACA agent/nominee for its wholly owned subsidiary, MidAtlantic Farm Credit, FLCA,

 

as a Voting Participant

 

 

 

 

By:

/s/ James F. Jones, Jr.

 

Name:

James F. Jones, Jr.

 

Title:

Vice-President

 

 

 

 

FCS COMMERCIAL FINANCE GROUP, FOR AGCOUNTRY FARM CREDIT SERVICES, FLCA,

 

as a Voting Participant

 

 

 

 

By:

/s/ Lisa Caswell

 

Name:

Lisa Caswell

 

Title:

Vice President

 

 

 

 

NORTHWEST FARM CREDIT SERVICES, FLCA,

 

as a Voting Participant

 

 

 

 

By:

/s/ Jeremy A. Roewe

 

Name:

Jeremy A. Roewe

 

Title:

Vice President

 

 

 

 

GREENSTONE FARM CREDIT SERVICES, ACA/FLCA,

 

as a Voting Participant

 

 

 

 

By:

/s/ Jeff Pavlik

 

Name:

Jeff Pavlik

 

Title:

SVP of Capital Markets

 

 

 

 

LONE STAR AG CREDIT,

 

as a Voting Participant

 

 

 

 

By:

/s/ Brad Fjestad

 

Name:

Brad Fjestad

 

Title:

VP Commercial Credit

 

 

 

 

FARM CREDIT EAST, ACA,

 

as a Voting Participant

 

 

 

 

By:

/s/ Eric W. Pohlman

 

Name:

Eric W. Pohlman

 

Title:

Vice President

 

KAPSTONE KRAFT PAPER CORPORATION

THIRD AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT