EXHIBIT 10.14(a)
CONSENT AND AMENDMENT No. 1 dated
as of February 23, 1995 (this
"Amendment"), to the Credit Agreement
dated as of May 11, 1994, 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. JSC, JSCUS, CCA, the Lenders, the Senior
Managing Agents, the Swingline Lender, the Fronting Banks,
the Administrative Agent and the Collateral Agent are
parties to a Credit Agreement dated as of May 11, 1994 (the
"Credit Agreement"), pursuant to which the Lenders, the
Swingline Lender and the Fronting Banks have agreed,
pursuant to the terms and subject to the conditions set
forth therein, to extend credit to JSCUS and CCA.
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 the Credit Agreement, JSFin is
permitted to incur Indebtedness (the "Receivable Program
Indebtedness") pursuant to the Receivables Program Documents
(as defined in the Credit Agreement). The Borrower has
informed the Senior Managing Agents that JSFin desires to
refinance the Receivables Program Indebtedness and to enter
into the documentation listed on Schedule I hereto and other
non-material documentation entered into pursuant to such
documentation to provide for the purchase by JSFin of
Program Receivables and the financing thereof, all on the
terms described in Annex I hereto (collectively, the "New
Receivables Transaction"), and has requested that the
Required Lenders consent to the New Receivables Transaction.
D. The Borrower has also requested that certain
provisions of the Credit Agreement be amended as set forth
herein.
E. The Required Lenders are willing to consent to
the New Receivable Transaction and to amend the Credit
Agreement, pursuant to the terms and subject to the
conditions set forth herein.
F. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in
the Credit Agreement as amended hereby.
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. Consent. The Required Lenders hereby
consent to the consummation by JSFin of the New Receivables
Transaction on terms substantially as set forth on Annex I
hereto.
SECTION 2. Amendment to Article I of the Credit
Agreement. (a) The definition of the term "Asset Sale" set
forth in Article I of the Credit Agreement is hereby amended
by inserting after the words "ordinary course of business"
within the parenthetical contained in clause (c) thereof the
words "and any Program Receivables".
(b) The definition of the term "Excess Cash Flow"
set forth in Article I of the Credit Agreement is hereby
amended by deleting the words "from the Issuer" in
clauses (a)(vi) and (b)(ix) thereof.
SECTION 3. Amendment to Section 6.04 of the
Credit Agreement. Section 6.04 of the Credit Agreement is
hereby amended as follows:
(a) by deleting from the first line thereof the
words "In the case of JSC, JSCUS, CCA and SNC, furnish"
and substituting therefor the word "Furnish";
(b) by inserting before the words "within
90 days" in the first line of paragraph (a) thereof,
the words "in the case of JSC and, until such time as
SNC shall be a wholly owned Subsidiary of JSC, SNC,";
(c) (i) by inserting before the words "within
45 days" in the first line of paragraph (b) thereof,
the words "in the case of JSC and, until such time as
SNC shall be a wholly owned Subsidiary of JSC, SNC,"
(ii) by deleting the words "of JSCUS and CCA" in the
sixth line thereof and substituting therefor the words
"of such Person"; and (iii) by deleting the words
"JSCUS, CCA or SNC, as relevant," in each of the ninth
and tenth lines thereof and substituting therefor the
words "of such Person";
(d) by inserting before the words "within
30 days" in the first line of paragraph (c) thereof,
the words "in the case of JSC and, until such time as
SNC shall be a wholly owned Subsidiary of JSC, SNC,";
and
(e) by inserting after the words "financial
statements" in the first line of paragraph (d) thereof,
the words "of any Person".
SECTION 4. Amendment to Section 7.12 of the
Credit Agreement. Section 7.12(b) of the Credit Agreement
is hereby amended and restated in its entirety to read as
follows:
(b) Subject to paragraphs (c) and (d) below, have
or create any Subsidiary not identified on
Schedule 4.08; provided, however, that the Borrower may
create one or more new Subsidiaries organized under the
laws of the United States or any political subdivision
thereof if (i) each such Subsidiary is a wholly owned
Subsidiary and is designated by the Borrower as a
Material Subsidiary and (ii) the Borrower and each such
Subsidiary complies with the applicable provisions of
Section 6.10.
SECTION 5. Substitution of Schedules.
Schedule 1.01(f) of the Credit Agreement is hereby deleted
in its entirety and Schedule I hereto is hereby substituted
therefor for all purposes under the Loan Documents.
SECTION 6. 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 7. 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 8. 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 with respect to the provisions
of the Credit Agreement specifically referred to herein.
SECTION 9. 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 10. Applicable Law. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 11. 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:
