Exhibit 4(b)(ii)
FIRST AMENDMENT OF
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT OF AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of March 23, 1999 (this "AMENDMENT"), is by and among Stone Container
Corporation, a Delaware corporation (the "BORROWER"), the undersigned financial
institutions, including Bankers Trust Company, in their capacities as lenders
(collectively, the "LENDERS," and each individually, a "LENDER"), Bankers Trust
Company, as agent (the "AGENT") for the Lenders, and the undersigned financial
institutions designated as such in their capacities as Co-Agents.
RECITALS:
A. The Borrower, Bank of America National Trust & Savings Association,
The Bank of New York, The Bank of Nova Scotia, Credit Agricole Indosuez, The
Chase Manhattan Bank, Dresdner Bank AG-Chicago and Grand Cayman Branches, The
First National Bank of Chicago, The Long-Term Credit Bank of Japan, Ltd.,
NationsBank, N.A., The Sumitomo Bank, Ltd., Chicago Branch and Toronto Dominion
(Texas), Inc., as co-agents (collectively, the "CO-AGENTS," and each
individually, a "CO-AGENT"), the Agent and the Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of November 18, 1998 (the
"CREDIT AGREEMENT").
B. The Borrower has requested the Agent and the Lenders to amend the
Credit Agreement to, among other things, adjust certain financial covenant
levels required to be maintained by the Borrower under SECTION 5.3 of the Credit
Agreement, and to modify certain other provisions of the Credit Agreement.
C. The Borrower, the Agent and the Lenders desire to amend the Credit
Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings given them in the Credit
Agreement as amended hereby.
SECTION 2. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is,
as of the Effective Date (as defined below), hereby amended as follows:
(a) SECTION 2.5 of the Credit Agreement is amended by deleting
the first two sentences appearing in such Section in their entirety and
substituting therefor the following:
"Whenever the Borrower desires to make a Borrowing hereunder,
it shall give the Agent at its office located at One Bankers
Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
written notice (or telephonic notice promptly confirmed in
writing) (a) in the case of each Prime Rate Loan (other than a
Swing Line Loan), not later than 11:00 a.m. (New York City
time) on the day of the proposed Borrowing and (b) in the case
of each Eurodollar Rate Loan, not later than 11:00 a.m. (New
York City time) three (3) Business Days before a proposed
Borrowing."
(b) SECTION 5.1.1(d) of the Credit Agreement is amended by
deleting such Section in its entirety and substituting therefor the
following:
"(d) Within ninety (90) days after the end of each fiscal year
of the Borrower, a consolidated annual plan, prepared in
accordance with the Borrower's normal accounting procedures
applied on a consistent basis, for the next fiscal year of the
Borrower."
(c) SECTION 5.3.1 of the Credit Agreement is amended by (i)
deleting the ratio "0.50 to 1" appearing opposite the date March 31,
1999 and substituting therefor the ratio "0.40 to 1", (ii) deleting the
ratio "0.55 to 1" appearing opposite the date June 30, 1999 and
substituting therefor the ratio "0.40 to 1" and (iii) deleting the
ratio "0.65 to 1" appearing opposite the date September 30, 1999 and
substituting therefor the ratio "0.55 to 1".
(d) SECTION 5.3.2 of the Credit Agreement is amended by (i)
deleting the amount "$225,000,000" appearing opposite the date March
31, 1999 and substituting therefor the amount "$170,000,000", (ii)
deleting the amount "$225,000,000" appearing opposite the date June 30,
1999 and substituting therefor the amount "$170,000,000" and (iii)
deleting the amount "$250,000,000" appearing opposite the date
September 30, 1999 and substituting therefor the amount "$225,000,000".
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This
Amendment shall become effective upon the date (the "EFFECTIVE DATE") when each
of the following conditions precedent has been satisfied:
(a) each of the Borrower, the Agent and the Required Lenders
shall have executed and delivered this Amendment;
(b) Stone Snowflake shall have executed and delivered a
Reaffirmation of Guaranty in substantially the form attached hereto as
EXHIBIT A; and
(c) the Agent shall have received from the Borrower such
certificates and opinions with respect hereto as the Agent may
reasonably require.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants to the Lenders, the Co-Agents and the Agent as follows:
(a) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all
material respects at and as of the date hereof as though made on and as
of the date hereof (except to the extent specifically made with regard
to a particular date).
(b) No Event of Default or Unmatured Event of Default has
occurred and is continuing.
(c) The execution, delivery and performance of this Amendment
has been duly authorized by all necessary action on the part of, and
duly executed and delivered by, the Borrower and this Amendment is a
legal, valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with its terms, except as the enforcement
thereof may be subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law).
(d) The execution, delivery and performance of this Amendment
do not conflict with or result in a breach by the Borrower of any term
of any material contract, loan agreement, indenture or other agreement
or instrument to which the Borrower is a party or is subject.
SECTION 5. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) On and after the Effective Date each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein,"
or words of like import, and each reference to the Credit Agreement in
the Loan Documents and all other documents (the "ANCILLARY DOCUMENTS")
delivered in connection with the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit
Agreement, the Loan Documents and all other Ancillary Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Lenders, the Co-Agents or the Agent under the Credit Agreement,
the Loan Documents or the Ancillary Documents.
(d) The Borrower acknowledges and agrees that this Amendment
constitutes a "Loan Document" for purposes of the Credit Agreement,
including, without limitation, SECTION 7.1(d) of the Credit Agreement.
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SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. This Amendment shall be binding upon the respective parties
hereto upon the execution and delivery of this Amendment by the Borrower, the
Agent and the Required Lenders regardless of whether it has been executed and
delivered by all of the Lenders. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[Signature Pages Follow]
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EXHIBIT A
REAFFIRMATION OF GUARANTY
The undersigned acknowledges receipt of a copy of the First Amendment
of Amended and Restated Credit Agreement (the "AMENDMENT") dated as of March 23,
1999, consents to such amendment and each of the modifications referenced
therein, and hereby reaffirms its obligations under the Stone Snowflake Guaranty
(as defined in the Amendment).
Dated as of March 23, 1999
STONE SNOWFLAKE NEWSPRINT COMPANY
By:
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Name:
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Title:
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