EXHIBIT 10.14(b)
WAIVER AND AMENDMENT No. 2 dated as of
June 9, 1995 (this "Amendment"), to the
Credit Agreement dated as of May 11, 1994, as
amended by Consent and Amendment No. 1
thereto dated as of February 23, 1995 (as so
amended, the "Credit Agreement") among
Jefferson Smurfit Corporation, a Delaware
corporation ("JSC"); Jefferson Smurfit
Corporation (U.S.), a Delaware corporation
("JSCUS"); Container Corporation of America,
a Delaware corporation ("CCA"); the lenders
named therein (the "Lenders"); Chemical Bank,
a New York banking corporation, and Bankers
Trust Company, a New York banking
corporation, as senior managing agents (in
such capacity, the "Senior Managing Agents")
for the Lenders; the fronting banks named
therein (the "Fronting Banks"); and Chemical
Bank, as swingline lender (in such capacity,
the "Swingline Lender"), administrative agent
(in such capacity, the "Administrative
Agent") and collateral agent (in such
capacity, the "Collateral Agent").
A. Pursuant to the Credit Agreement the Lenders,
the Swingline Lender and the Fronting Banks have extended,
and have agreed to extend, pursuant to the terms and subject
to the conditions set forth therein, credit to the Borrower
(as defined below).
B. As of December 31, 1994, (i) pursuant to
Section 7.12(c) of the Credit Agreement, JSCE, Inc., a
Delaware corporation ("JSCE"), assumed all the obligations
of JSCUS under the Loan Documents; (ii) pursuant to
Section 7.05 of the Credit Agreement, JSCUS was merged with
and into CCA, with CCA surviving such merger; and (iii) CCA
changed its name to Jefferson Smurfit Corporation (U.S.)
(referred to in this Amendment as the "Borrower").
C. Pursuant to Section 7.17(e) of the Credit
Agreement, JSC, the Borrower and their respective
Subsidiaries are prohibited from selling, leasing,
assigning, transferring or otherwise disposing of any asset
or assets (other than to a Material Subsidiary) unless at
least 80% of the consideration received in connection
therewith is in the form of cash or cash equivalents and
readily marketable securities and certain conditions are met
with respect to any non-cash consideration received in
connection therewith. The Borrower has informed the Senior
Managing Agents that pursuant to an agreement dated March 6,
1995, an executed copy of which has been delivered to the
Administrative Agent (the "Purchase Agreement"), between the
Borrower and Integrated Packing Corporation (the
"Purchaser"), it intends to sell on or about August 30, 1995
its New Brunswick, New Jersey container plant to the
Purchaser (such sale, upon the terms and conditions
described below and in the Purchase Agreement, referred to
in this Amendment as the "Sale"). The purchase price for
the Sale is $4,700,000 (subject to adjustment as provided in
the Purchase Agreement), consisting of $400,000 in cash
payable at the closing of the Sale and the remainder to be
paid in the form of a secured promissory note (the "Note")
with a term of ten years and with interest payable at the
rate of 10% per annum for each of the first five years and
the prime rate plus 3% per annum for the last five years.
The Note will be secured by a first priority mortgage on the
land and building and a first priority security interest in
the equipment acquired by the Purchaser in connection with
the Sale, in each case in favor of the Borrower, which Note
and security interest will be pledged and assigned,
respectively, by the Borrower to the Collateral Agent for
the benefit of the Secured Parties. The Borrower has
requested that the Required Lenders consent to the Sale on
the terms described in this paragraph.
D. The Borrower has also requested that Section
7.06 of the Credit Agreement be amended as set forth herein
to allow for purchases of shares of Common Stock or options
on such Common Stock for the purpose of distributing such
Common Stock to its employees under its management incentive
program.
E. The Borrower has also requested that the
definition of the term "Investment" be amended to provide
that purchases of up to $15,000,000 in any fiscal year of
the Borrower of shares of Jefferson Smurfit Group plc solely
for the purpose of distributing such shares pursuant to its
management incentive program shall not constitute
Investments.
F. The Required Lenders are willing to consent to
the Sale and to so amend the Credit Agreement, pursuant to
the terms and subject to the conditions set forth herein.
G. Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Credit
Agreement.
Accordingly, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Waiver. The Required Lenders hereby
waive compliance with Subsection 7.17(e) of the Credit
Agreement to the extent, and only to the extent, required to
permit the Borrower to consummate the Sale (a) substantially
on the terms set forth in the Purchase Agreement and (b) on
the terms set forth in paragraph C of the introductory
statement to this Amendment.
SECTION 2. Amendment to Article I of the Credit
Agreement. The definition of the term "Investment" set
forth in Article I of the Credit Agreement is hereby amended
by adding as a proviso at the end thereof the following:
"provided, however, that the term "Investment" shall
not include the purchase in the open market of shares
of JSG in an aggregate amount which, together with the
aggregate purchase price of all MIP Shares and all MIP
Options (each as defined in Section 7.06(d)) purchased
pursuant to Section 7.06(d) in any fiscal year, does
not exceed $15,000,000 in such fiscal year of the
Borrower, purchased exclusively for subsequent
distribution as additional compensation to employees of
the Borrower pursuant to its management incentive
program"
SECTION 3. Amendment to Section 7.06 of the
Credit Agreement. Section 7.06 of the Credit Agreement is
hereby amended by adding a new paragraph (d) which shall
read in its entirety as follows:
"(d) Notwithstanding the provisions of Section
7.06(a), during each fiscal year commencing on or after
January 1, 1995, the Borrower may purchase in the open
market shares of Common Stock ("MIP Shares") or options
to purchase shares of Common Stock ("MIP Options"),
provided, that (i) the sum of (x) the aggregate
purchase price of all MIP Shares (whether purchased
directly in the open market or upon the exercise of MIP
Options) and (y) the aggregate purchase price of all
MIP Options, together with the aggregate purchase price
of all shares of JSG purchased and excluded from the
term "Investments", in each case in such fiscal year
shall not exceed $15,000,000, (ii) MIP Shares,
including those purchased upon the exercise of MIP
Options, shall be purchased exclusively for subsequent
distribution as additional compensation to employees of
the Borrower pursuant to its management incentive
program, (iii) the Borrower shall not knowingly
purchase any MIP Shares from any Affiliate (acting as
principal in such transaction) of the Borrower and (iv)
at the time of any such purchase and immediately after
giving effect thereto, no Default or Event of Default
shall have occurred and be continuing."
SECTION 4. Representations and Warranties. To
induce the other parties hereto to enter into this
Amendment, each of JSC, JSCE and the Borrower represents and
warrants to each of the Lenders, the Administrative Agent,
the Senior Managing Agents, the Fronting Banks, the
Swingline Lender and the Collateral Agent that, after giving
effect to this Amendment, (a) the representations and
warranties set forth in Article IV of the Credit Agreement
are true and correct in all material respects on and as of
the date hereof with the same effect as though made on and
as of the date hereof, except to the extent such
representations and warranties expressly relate to an
earlier date and (b) no Default or Event of Default has
occurred and is continuing.
SECTION 5. Conditions to Effectiveness. This
Amendment shall become effective on the date that the
Administrative Agent shall have received counterparts of
this Amendment which, when taken together, bear the
signatures of JSC, JSCE, the Borrower and the Required
Lenders.
SECTION 6. Effect of Amendment. Except as
expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, the Fronting Banks, the
Collateral Agent, the Senior Managing Agents or the
Administrative Agent under the Credit Agreement or any other
Loan Document, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or
any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle any
Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in
similar or different circumstances. This Amendment shall
apply and be effective only to the extent and with respect
to, the provisions of the Credit Agreement specifically
referred to herein. After the date hereof, any reference to
the Credit Agreement shall mean the Credit Agreement, as
amended hereby.
SECTION 7. Counterparts. This Amendment may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and
the same contract. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 9. Headings. The headings of this
Amendment are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their duly authorized
officers, all as of the date and year first above written.
JEFFERSON SMURFIT CORPORATION,
by
Name:
Title:
JSCE, INC.,
by
Name:
Title:
JEFFERSON SMURFIT CORPORATION
(U.S.),
by
Name:
Title:
CHEMICAL BANK, individually
and as Administrative Agent,
Senior Managing Agent,
Swingline Lender and
Collateral Agent,
by
Name:
Title:
BANKERS TRUST COMPANY,
individually and as Senior
Managing Agent,
by
Name:
Title:
NAME OF INSTITUTION:
by
Name:
Title:
