EXHIBIT
10.1


 


AMENDED AND RESTATED
GUARANTY


 


THIS AMENDED AND RESTATED
GUARANTY (this “Unlimited Guaranty”), dated as of July 28, 2008, made
by SMURFIT-STONE CONTAINER ENTERPRISES, INC.,
a corporation organized under the laws of the State of Delaware having its
chief executive office at 150 North Michigan Avenue, Chicago, IL  60601 (“Guarantor”) in favor of THE CIT GROUP/EQUIPMENT FINANCING, INC., as the initial
lender (the “Initial Lender”) and as
Administrative Agent for the benefit of the Lenders (as defined below) (the “Administrative Agent”
and together with the Lenders, the “Beneficiaries”).


 


WHEREAS, pursuant to that Credit Agreement dated as of March 30,
2006 (as subsequently amended, the “Original Credit Agreement”),
by and between Calpine Corrugated, LLC (formerly known as Produce Container,
LLC (the “Borrower”) and the Administrative Agent
and Initial Lender and such other financial institutions as may become parties
thereto from time to time (together with the Initial Lender, the “Lenders”), the Initial Lender made advances to Borrower in
the aggregate principal amount of $40,350,000.00 to finance the purchase and
installation of equipment for the manufacture of corrugated containers at
Borrower’s facility in Fresno, California (the “Manufacturing
Facility”), which advances were subsequently converted to a Term
Loan evidenced by that Term Note in favor of the Initial Lender effective as of
November 30, 2006;


 


WHEREAS, pursuant to that Guaranty dated as of March 30,
2006 (the “Original Guaranty”), the Guarantor
provided a limited guaranty of the obligations of Borrower under the Original
Credit Agreement;


 


WHEREAS, the Borrower, the Administrative Agent and the
Initial Lender thereafter amended the Original Credit Agreement in certain
respect pursuant to that Amendment No. 1 to Credit Agreement entered into
as of October 30, 2006, that letter agreement denominated Amendment No. 2
to Credit Agreement dated November 30, 2006, and that Amendment No. 2
[sic] to Credit Agreement entered into
as April 23, 2007;


 


WHEREAS, during 2007 the Working Capital Lender (as defined in
the Original Credit Agreement) advised the Administrative Agent of the
occurrence of certain “Events of Default” (the “Revolver
Defaults”) under the Working Capital Loan Documents (as defined in
the Original Credit Agreement);


 


WHEREAS, by letter dated November 30, 2007, the
Administrative Agent notified the Borrower and the Guarantor that certain
Events of Default (collectively, the “Identified Defaults”)
had occurred and were continuing under the Original Credit Agreement, including
breach of certain financial covenants in the Original Credit Agreement and the
existence of the Revolver Defaults;


 


WHEREAS, the Borrower, the Administrative Agent, the Initial
Lender and the Guarantor subsequently entered into negotiations to restructure
the Original Credit Agreement and other Loan Documents, and pursuant to that
Amendment No. 4 to Credit Agreement, Reservation of Rights and
Reaffirmation of Guaranty entered into as of December 28, 2007, that Amendment
No. 5 to Credit Agreement, Reservation of Rights and Reaffirmation of
Guaranty entered into as of January 31, 2008, and that Amendment No. 6
to Credit Agreement, Reservation of Rights and Reaffirmation of Guaranty
entered into as of February 29, 2008, the Borrower, the Administrative
Agent, the Initial Lender and the Guarantor further amended the Original Credit
Agreement on the terms and conditions set forth therein;


 


WHEREAS, the Borrower has failed to make the principal
payments due under the Original Credit Agreement as of March 14, April 14,
May 14 and June 14, 2008 (the “Payment Defaults,”
and collectively with the Identified Defaults and any other Defaults described
on Schedule 1.01(a) to the Credit Agreement (as defined below), the
“Existing Defaults”);


 

















 


WHEREAS, pursuant to that Amended and Restated Operating
Agreement of Calpine Corrugated, LLC (the “Calpine Operating
Agreement”) dated as of the Effective Date (as defined in the Credit
Agreement), the existing members of the Borrower and the Guarantor have
restructured the Borrower to, among other things, admit the Guarantor as a
Member (as defined in the Calpine Operating Agreement) owning a 90% Percentage
Interest (as defined in the Calpine Operating Agreement) in the Borrower;


 


WHEREAS, the Borrower and the Guarantor have requested that
the Administrative Agent and the Initial Lender (i) waive the Existing
Defaults and the right to collect interest at the Default Rate (as defined in
the Original Credit Agreement) as a result of the Existing Defaults (ii) enter
into an Amended and Restated Credit Agreement (the “Credit
Agreement”) and (iii) otherwise amend the Loan Documents on the
terms and subject to the conditions set forth in the Credit Agreement, in
consideration for which the Guarantor has agreed to amend and restate the
Original Guaranty to provide a full guaranty of the Term Loan and all
obligations of the Borrower under the Credit Agreement;


 


WHEREAS, the Borrower, the Administrative Agent, the Initial
Lender and the Guarantor have agreed that, on the Effective Date, the Original
Credit Agreement, the Term Note and the Original Guaranty will each be amended
and restated in its entirety, and other Loan Documents will be further amended
in certain respects, in each case as provided in, and on and subject to the
terms and conditions set forth in, the Credit Agreement;


 


WHEREAS, the Administrative Agent and the Initial Lender are
unwilling to waive the Existing Defaults and the collection of interest at the
Default Rate, to enter into the Credit Agreement and to otherwise provide the
concessions requested by the Borrower and Guarantor unless, among other
conditions, the Guarantor shall have executed and delivered this Unlimited
Guaranty in favor of the Administrative Agent (for the benefit of all
Beneficiaries); and


 


WHEREAS, the Guarantor, both through its contractual
relationships with the Borrower and as 90% owner of the Borrower, has derived
and will derive substantial economic benefit from the financing provided by the
Initial Lender to the Borrower pursuant to the Credit Agreement and will derive
substantial additional economic benefit from the Initial Lender’s forbearance
with respect to, and waiver of, the Existing Defaults and the other concessions
granted by the Initial Lender in acceding to the request of the Borrower and
the Guarantor to amend the Original Credit Agreement and the other Loan
Documents;


 


NOW THEREFORE, in consideration of the foregoing (all of which are
incorporated as express representations and covenants of Guarantor) and in
order to induce the Initial Lender and the Administrative Agent to waive the
Existing Defaults and the right to collect interest at the Default Rate as a
result of the Existing Defaults and to otherwise amend the Original Credit
Agreement and the Loan Documents for the benefit of Borrower and Guarantor,
Guarantor, for the benefit of the Administrative Agent and the Beneficiaries,
hereby amends and restates the Original Guaranty in its entirety to read as
follows:


 


1.             Guarantor, as a primary obligor,
hereby unconditionally and irrevocably, guarantees to the Beneficiaries that
the Borrower will fully and promptly pay and perform all of the Borrower’s
obligations under the Credit Agreement and the other Loan Documents as now in
effect or as the same may be modified, amended and/or restructured at any time,
including, but not limited to, the obligation to repay the principal of the
Term Loan (as defined in the Credit Agreement), interest thereon, break costs
contemplated therein, prepayment fees contemplated therein, costs and expenses
(including legal fees and disbursements) of the Administrative Agent and the
other Lenders that the Borrower has agreed to bear thereunder, and payment and
performance of all other obligations of the Borrower thereunder (all of the
foregoing are hereinafter referred to collectively as the “Obligations”)
and that, if for any reason the Borrower shall fail to pay or perform any
Obligation, the Guarantor will promptly pay or perform the same without
limitation or condition.


 


2.             The obligations of Guarantor under
this Unlimited Guaranty shall be continuing, absolute and unconditional under
any and all circumstances and shall be paid and performed by Guarantor 


 


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regardless of (a) the invalidity or
unenforceability of any of the Obligations; (b) any change in the time,
manner, place of payment or in any other term of any of the Obligations; (c) any
impossibility, impracticably, frustration of purpose, illegality, force majeure
or act of government; (d) the bankruptcy, winding up, liquidation,
dissolution or insolvency of the Borrower; (e) the insufficiency,
invalidity or unenforceability of any collateral security or any other guaranty
of the Obligations at any time held by the Beneficiaries (or any of them); or (f) any
defense, offset or counterclaim which may at any time be available to or
asserted by the Borrower against the Beneficiaries (or any of them).


 


3.             The Guarantor agrees, without the
Beneficiaries first having to proceed against the Borrower or other person or
to liquidate any collateral security for any Obligations, to pay on demand all
Obligations due and to become due to the Beneficiaries (or any of them) from
the Borrower together with all losses, costs, attorneys’ fees or expenses the
Beneficiaries (or any of them) may incur in enforcing its rights against the
Guarantor hereunder.


 


4.             Guarantor waives (a) notice of
acceptance of this Unlimited Guaranty and the presentment, demand, protest and
notice of non-payment or protest with respect to any Obligation and any and all
other demands and notices required by law; (b) any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which Guarantor may now or hereafter have against the Borrower or any
other person directly or contingently liable for the Obligations or with
respect to the Borrower’s property (including, without limitation, property
collateralizing the Obligations), arising from the existence of this Unlimited
Guaranty; (c) all exemptions; (d) all setoffs and counterclaims; and (e) any
duty on the part of any Beneficiary (should such duty exist) to disclose to
Guarantor any matter, fact or thing related to the business operations or
condition (financial or otherwise) of the Borrower or its affiliates or
property, whether now or hereafter known by such Beneficiary.


 


5.             Guarantor agrees that the
Beneficiaries may at any time and from time to time, without Guarantor’s
consent and without notice to Guarantor and without affecting, releasing or
impairing any of Guarantor’s obligations hereunder, from time to time, as the
Beneficiaries may deem advisable, do any of the following (a) renew, grant
time, extend, modify, release or discharge any of the Obligations (including
extensions beyond the original term thereof) or of any other party at any time
directly or contingently liable for the payment thereof; (b) accept
partial payments of the Obligations; (c) settle, release (by operation of
law or otherwise), compound, compromise, collect or liquidate any Obligation
and any collateral security therefor in any manner; (d) consent to the
transfer or return of any collateral security, or take and hold additional
security or guaranties, for any Obligation; (e) bid and purchase at any
sale of collateral security for any Obligation, and direct the order and manner
of any sale.


 


6.             This Unlimited Guaranty is an
unconditional guarantee of payment and performance.


 


7.             A waiver by any Beneficiary of any
right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which such Beneficiary or any other Beneficiary would
otherwise have on any future occasion. 
Neither failure to exercise nor any delay on the part of any Beneficiary
in exercising any right or remedy hereunder shall operate as a waiver
thereof.  The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are
not exclusive of any rights and remedies provided by law.


 


8.             If a claim is made upon any
Beneficiary at any time for repayment or recovery of any amount of other value
received by such Beneficiary from any source in payment of or on account of any
Obligations guaranteed hereunder and such Beneficiary repays or otherwise
becomes liable for all or any part of such claim by reason of (a) any
judgment, decree or order of any court or administrative body having competent
jurisdiction; (b) any event or action including the insolvency, bankruptcy
or reorganization of the Borrower; or (c) any settlement or compromise of
any such claim, Guarantor shall remain liable to such Beneficiary hereunder for
the amount so repaid or for which such Beneficiary is otherwise liable to the
same extent as if such amount had never been received by such Beneficiary.


 


9.             Any and all amounts required to be
paid by Guarantor hereunder shall be paid in lawful money of the United States
of America in accordance with the terms and provisions hereof, without 


 


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deductions for and free and clear of any and all
taxes, levies, duties, withholding or restrictions of any nature now or
hereafter imposed, levied, collected, withheld or assessed with respect to any
of the Obligations or this Unlimited Guaranty by any taxing authority of
competent jurisdiction (“Taxes”).  If any Taxes
are required to be deducted or withheld from any amount payable to any
Beneficiary under this Unlimited Guaranty, such amount payable shall be
increased to yield to such Beneficiary (after payment of all Taxes) the amount
specified to be paid hereunder.  Whenever
any Taxes are paid by Guarantor on behalf of any Beneficiary, Guarantor shall,
as promptly as possible, send such Beneficiary (through the Administrative Agent)
an official receipt showing payment thereof, together with such additional
evidence of payment as such Beneficiary (through the Administrative Agent) may
reasonably require.


 


10.           Guarantor specifically acknowledges
that the specification of payment in United States Dollars (“Dollars”) is of the essence. 
Unrestricted, convertible and transferable Dollars shall be the currency
of account in the case of all payments pursuant to or arising under this
Unlimited Guaranty.  The payment
obligations of the Guarantor under this Unlimited Guaranty shall not be
discharged by an amount paid in another currency, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on prompt
conversion to Dollars under normal banking procedures does not yield the amount
of Dollars due under this Unlimited Guaranty. 
If, for the purpose of obtaining judgment in any court, it is necessary
to convert a sum due hereunder in Dollars into another currency (the “Other Currency”),
the rate of exchange used shall be that at which the applicable Beneficiary
could, in accordance with normal banking procedures, purchase Dollars with the
Other Currency on the business day immediately preceding the date on which
final judgment is given in such court. 
The obligation of the Guarantor in respect to any such sum due from it
to any Beneficiary hereunder shall, notwithstanding any judgment in such Other
Currency, be discharged only to the extent that, on the business day
immediately following the date on which such Beneficiary receives any sum
adjudged to be so due in the Other Currency, such Beneficiary may, in
accordance with normal banking procedures, purchase dollars with the Other
Currency.  If the dollars so purchased
are less than the sum originally due to such Beneficiary in dollars, the
Guarantor agrees as a separate obligation and notwithstanding any such
judgment, to indemnify such Beneficiary against such loss, and if the dollars
so purchased exceed the sum originally due to such Beneficiary in dollars, such
Beneficiary (through the Administrative Agent) will promptly remit to the
Guarantor such excess.


 


11.           This Unlimited Guaranty shall be
governed by, and construed in all respects in accordance with, the internal
laws of the State of Arizona, without regard to any conflicts of law principles
that may mandate the application of the laws of any other jurisdiction.  Guarantor hereby irrevocably consents and
agrees that any legal action, suit or proceeding arising out of or in any way
connected with this Unlimited Guaranty may be instituted or brought against Guarantor
in the courts of the State of Arizona, in the county of Maricopa, or the United
States courts as the Administrative Agent or any other Beneficiary may elect,
and, by execution and delivery of this Unlimited Guaranty, Guarantor hereby
irrevocably accepts and submits to the non-exclusive jurisdiction of any such
court, and to all proceedings in such courts, and agrees to be bound by any
judgment thereof.  Guarantor hereby
waives any right to a trial by jury in any action or proceeding relating to or
connection with this Unlimited Guaranty. 
Nothing in this Unlimited Guaranty shall affect or limit the right to
effect service of process in any other manner permitted by law or limit the
right of the Administrative Agent or any other Beneficiary to bring actions,
suits or proceedings in the court of any other jurisdiction.  Guarantor further agrees that final judgment
against it in any such legal action, suit or proceeding shall be conclusive and
may be enforced in any other jurisdiction, within or without the United States,
by suit on the judgment, certified or exemplified copy of which shall be
conclusive evidence of the fact and amount of liability.


 


12.           To the extent that the Guarantor or
the Borrower or any of their respective properties, assets or revenues may have
or may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any thereof, from setoff
or counterclaim, from the jurisdiction of any court, from service or process,
from attachment upon or prior to judgment, from attachment in aid of execution
of judgment, or from execution of judgment, or other legal process or
proceeding from the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be
commenced, with respect to its obligations, liabilities or any other matter
under or arising out of or in 


 


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connection with this Unlimited Guaranty, the Guarantor
hereby irrevocably and unconditionally waives, and agrees not to plead or
claim, any such immunity and consents to such relief and enforcement.


 


13.           This Unlimited Guaranty constitutes
the entire agreement between the Guarantor and the Beneficiaries with respect
to the subject matter hereof and supersedes any prior understandings and
agreements between such parties with respect thereto.  There are no representations, warranties,
terms, conditions, understandings or collateral agreements, expressed, implied
or statutory between the parties other than as expressly set forth in this
Unlimited Guaranty.


 


14.           This Unlimited Guaranty shall bind
the respective representatives, successors and assigns of Guarantor and each
Beneficiary and shall inure to the benefit of the successors and assigns of
each Beneficiary.  The invalidity,
illegality or unenforceability of any other provision of this Unlimited
Guaranty shall not affect the validity, legality or enforceability of any other
provision of this Unlimited Guaranty. 
This Unlimited Guaranty shall be governed by, and be construed in
accordance with, the laws of the State of Arizona.  None of the terms or provisions of this
Unlimited Guaranty may be amended, waived or modified except by a writing
signed by the party against which enforcement of such amendment, waiver or
modification is sought.


 


15.           The rights of each Beneficiary under
this Unlimited Guaranty may, subject to the terms and conditions set forth in
the Credit Agreement (including notice to the Administrative Agent, or in the
case of an assignment by the Administrative Agent, subject to the provisions
thereof relating to the replacement of the Administrative Agent), be assigned
by such Beneficiary without prior consent of the Borrower or the
Guarantor.  The Guarantor may not assign
its obligations under this Unlimited Guaranty.


 


16.           All notices,
requests and demands to or upon the respective parties hereto shall be in
writing and shall be deemed to have been given or made when delivered to the
party to whom it is addressed as follows:


 


If to Guarantor:


 


	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc.

  	
   

  
	
   

  	
  Six CityPlace
  Drive

  	
   

  
	
   

  	
  Creve Coeur, MO
  63141

  	
   

  
	
   

  	
  Attention:
  Charles A. Hinrichs

  	
   

  
	
   

  	
  Telephone:
  314-656-5276

  	
   

  
	
   

  	
  Facsimile: 314-787-6162

  	
   

  
	
   

  	
  With a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Winston &
  Strawn LLP

  	
   

  
	
   

  	
  35 W. Wacker
  Drive

  	
   

  
	
   

  	
  Chicago, IL
  60601

  	
   

  
	
   

  	
  Attention: Brian
  S. Hart

  	
   

  
	
   

  	
  Telephone:
  312-558-5702

  	
   

  
	
   

  	
  Facsimile:
  312-558-5700

  	
   

  



 


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If to the Administrative Agent or any other
Beneficiary:


 


	
   

  	
   

  	
  The CIT Group/Equipment Financing, Inc., as
  Administrative Agent

  
	
   

  	
   

  	
  305 Fellowship Road

  
	
   

  	
   

  	
  Suite 300

  
	
   

  	
   

  	
  Mount Laurel, NJ 08054

  
	
   

  	
   

  	
  Attention: Martin Healey

  
	
   

  	
   

  	
  Telephone: 856-813-2623

  
	
   

  	
   

  	
  Facsimile: 856-727-5203

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The CIT Group/Equipment Financing, Inc

  
	
   

  	
   

  	
  305 Fellowship Road

  
	
   

  	
   

  	
  Suite 300

  
	
   

  	
   

  	
  Mount Laurel, NJ 08054

  
	
   

  	
   

  	
  Attention: Cole Silver

  
	
   

  	
   

  	
  Telephone: 856-813-2696

  
	
   

  	
   

  	
  Facsimile: 856-813-2996

  



 


17.           Guarantor hereby further expressly
covenants and agrees that, if at any time Guarantor ceases to file periodic
reports with the Securities and Exchange Commission pursuant to the Securities
and Exchange Act of 1934 and the regulations promulgated thereunder, then
Guarantor shall promptly deliver to Administrative Agent copies of (i) all
notices, requests and other documents received by Guarantor or any of its
Subsidiaries under or pursuant to the Credit Agreement dated as of November 1,
2004 among Guarantor, Smurfit Stone Container Corporation, Smurfit-Stone
Container Canada, Inc., JPMorgan Chase Bank, as Senior Agent, Deutsche
Bank Trust Company Americas, as Senior Agent and Administrative Agent, Deutsche
Bank AG, as Canadian Administrative Agent, and the lenders party thereto or any
of the “Loan Documents” as defined therein regarding any event that could
materially impair the value of the interests or the rights of any Loan Party or
otherwise have a Material Adverse Effect, (ii) any amendment, modification
or waiver of any provision of any document described in clause (i) above,
and (iii) from time to time, such information and reports regarding the
documents described in clause (i) above as the Administrative Agent may
reasonably request.


 


[SIGNATURE PAGE FOLLOWS.]


 


IN WITNESS WHEREOF the Guarantor has executed this Unlimited Guaranty as
of the day and year first above written.


 


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  SMURFIT-STONE
  CONTAINER 

  ENTERPRISES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Charles A. Hinrichs

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:   Charles A. Hinrichs

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:   Senior Vice President &
  Chief Financial 

  Officer

  



 


 


ACKNOWLEDGED AND AGREED.


 


THE CIT GROUP/EQUIPMENT FINANCING, INC.,


  as
Administrative Agent


 


	
  By:

  	
  /s/ Raymond M. Crouse

  	
   

  
	
  Name:   Raymond
  M. Crouse

  
	
  Title:  Senior
  Vice President

  



 


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