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 incorporation, organization or formation;


 


4.1.2                        signature
and incumbency certificates of the officers of such Loan Party executing the
Loan Documents to which it is a party, dated as of the First Amendment
Effectiveness Date;


 


4.1.3                        duly
adopted resolutions of the board of directors or similar governing body of each
Loan Party approving and authorizing the execution, delivery and performance of
this First Amendment, certified as of the First Amendment Effectiveness Date by
its secretary or assistant secretary as being in full force and effect without
modification or amendment; and


 


4.1.4                        such other
documents as the Administrative Agent may reasonably request.


 

















 


4.2                                 Loan
Documents.  Each Loan Party, the
Super-majority Lenders and the Administrative Agent shall have signed a
counterpart of this First Amendment (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent.


 


4.3                                 Opinion
of Counsel.  The Administrative Agent
and the Lenders shall have received the favorable written opinion of counsel to
the Loan Parties, acceptable to the Administrative Agent, substantially in the
form of Exhibit C.


 


4.4                                 Payment
of Fees and Expenses.  The Loan
Parties shall have paid to the Administrative Agent any unpaid balance of the fees
and expenses due and payable by the Loan Parties pursuant to the Loan
Documents.


 


4.5                                 Closing
Documents.  The Administrative Agent
shall have received all documents required by this First Amendment satisfactory
in form and substance to the Administrative Agent in its exclusive discretion.


 


Section 5.                                            Representations
and Warranties.  Each Loan Party
represents and warrants to the Lenders that:


 


5.1                                 After
giving effect to the First Amendment, the amendment and restatement of the
Credit Agreement and the amendment of the Security Agreement, the  representations and warranties of the Loan
Party contained in Section 3 of the Credit Agreement are true and
correct in all material respects on and as of the date hereof as if such
representations and warranties had been made on and as of the date hereof
(except to the extent that any such representations and warranties specifically
relate to an earlier date);


 


5.2                                 After
giving effect to the First Amendment, the amendment and restatement of the
Credit Agreement and the amendment of the Security Agreement, (i) each
Loan Party is in compliance with all the terms and provisions set forth in the
Credit Agreement and the Security Agreement, and (ii) no Event of Default
has occurred and is continuing or would result from the execution, delivery and
performance of this First Amendment; and


 


5.3                                 To
the knowledge of the Loan Parties, the failure of Smurfit-Stone Puerto Rico, Inc.
to be in good standing under the laws of its jurisdiction of organization
during the period from the Closing Date to the First Amendment Effective Date
is due solely to the failure of the officers of Smurfit-Stone Puerto Rico, Inc.
to execute the 2006 Annual Report filed with the Department of State of the
Commonwealth of Puerto Rico.


 


Section 6.                                            Choice
of Law. THIS FIRST AMENDMENT SHALL IN ALL RESPECTS BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND THE BANKRUPTCY
CODE.


 


Section 7.                                            Full
Force and Effect.  Except as
specifically amended hereby, all of the terms and conditions of the Credit
Agreement and Security Agreement shall remain in full force and effect, and the
same are hereby ratified and confirmed. 
No reference to this First Amendment need be made in any instrument or
document at any time referring to the Credit Agreement or Security Agreement,
and a reference to the Credit Agreement or Security Agreement in any such
instrument 


 

















 


or document shall be deemed a reference to the Credit Agreement or
Security Agreement, as the case may be, as amended hereby.


 


Section 8.                                            Counterparts;
Electronic Signatures.  This First
Amendment may be executed in any number of counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one
and the same agreement.  The
Administrative Agent may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures
approved by it; provided that approval of such procedures may be limited to
particular notices or communications.


 


Section 9.                                            Headings.  Section headings used herein are for
convenience only and are not to affect the construction of or be taken into
consideration in interpreting this First Amendment.


 


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BLANK]


 

















 


IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the day and the year first written.


 


	
   

  	
  SMURFIT-STONE CONTAINER

  ENTERPRISES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMURFIT-STONE CONTAINER CANADA

  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMURFIT-STONE CONTAINER

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CALPINE CORRUGATED LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAMEO CONTAINER CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
					



 


Signature Page to First
Amendment to Credit Agreement and to Security and Pledge Agreement


 

















 


	
   

  	
  LOT 24D REDEVELOPMENT

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ATLANTA & SAINT ANDREWS BAY

  RAILWAY COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STONE INTERNATIONAL SERVICES

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STONE GLOBAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STONE CONNECTICUT PAPERBOARD

  PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMURFIT-STONE PUERTO RICO, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
					



 


Signature Page to First
Amendment to Credit Agreement and to Security and Pledge Agreement


 

















 


	
   

  	
  SMURFIT NEWSPRINT CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SLP FINANCE I, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SLP FINANCE II, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMBI INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  3083527 NOVA SCOTIA COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MBI LIMITED/LIMITÉE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMURFIT-MBI, by its general partner, MBI

  Limited/Limitée

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
						



 


Signature Page to First
Amendment to Credit Agreement and to Security and Pledge Agreement


 

















 


	
   

  	
  STONE CONTAINER FINANCE COMPANY

  OF CANADA II

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
  639647 BRITISH COLUMBIA LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  B.C. SHIPPER SUPPLIES LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPECIALTY CONTAINERS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SLP FINANCE GENERAL PARTNERSHIP, by

  its general partner, SLP Finance I, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FRANCOBEC COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  605681 N.B. INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
  Name:

  	
  Charles A. Hinrichs

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
					



 


Signature Page to First
Amendment to Credit Agreement and to Security and Pledge Agreement


 

















 


	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
  Individually and as Administrative Agent and

  Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter S. Predun

  
	
   

  	
  Name:

  	
  Peter S. Predun

  
	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., TORONTO

  BRANCH

  
	
   

  	
  Individually and as Canadian Administrative Agent

  and Canadian Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sara Collins

  
	
   

  	
  Name:

  	
  Sara Collins

  
	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY

  AMERICAS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank Fazio

  
	
   

  	
  Name:

  	
  Frank Fazio

  
	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip Saliba

  
	
   

  	
  Name:

  	
  Philip Saliba

  
	
   

  	
  Title:

  	
  Director

  
						



 


Signature Page to First
Amendment to Credit Agreement and to Security and Pledge Agreement


 
















 


EXHIBIT A


FORM OF AMENDED AND RESTATED CREDIT
AGREEMENT


 
















 


EXHIBIT B


ANNEX A-5


 


[to come]


 
















 


EXHIBIT C


FORM OF OPINION


 


[to come]