Exhibit 10.12(j)
AMENDMENT NO. 2 TO TERM LOAN AGREEMENT
AND
EXTENSION REQUEST
This AMENDMENT NO. 2 dated as of August 19, 1997 (this
"Amendment"), to that certain Term Loan Agreement (as hereinafter
defined) is made among Jefferson Smurfit Finance Corporation
("Xxxxx"), Bank Brussels Xxxxxxx, New York Branch as the Term Bank
(the "Term Bank") and Jefferson Smurfit Corporation (U.S.) as the
Servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, on February 23, 1995, Xxxxx and the Term Bank entered
into that certain Term Loan Agreement, as amended by the First
Omnibus Amendment, dated as of March 31, 1996 (as amended, the
"Term Loan Agreement");
WHEREAS, the Term Loan Agreement currently provides that Xxxxx
must give notice to the Term Bank no more than ninety days and no
less than sixty days prior to any anniversary of the Effective Date
of its desire to extend the Scheduled Term Loan Payout Commencement
Date ("Extension Request");
WHEREAS, Xxxxx desires to amend the Term Loan Agreement to
provide that Xxxxx may make an Extension Request not less than
thirty days prior to any anniversary of the Effective Date;
WHEREAS, Xxxxx desires to make an Extension Request pursuant
to this Amendment to extend the Scheduled Term Loan Payout
Commencement Date by twenty-four (24) additional months.
NOW THEREFORE, in consideration of the premises and the terms
and covenants contained herein, the receipt and sufficiency of
which consideration is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Term
Loan Agreement.
2. Amendment to Term Loan Agreement. The parties hereto
agree to amend the Term Loan Agreement as set forth in this Section
2.
2.06 Termination, Reduction and Renewal of Commitments.
Section 2.06(a) is hereby amended as follows:
Not less than thirty days prior to the fourth
anniversary of the Effective Date, and (if and when
applicable) not less than thirty days prior to any
successive anniversary of the Effective Date, Xxxxx may
notify the Term Bank in writing of its request (each such
request, an "Extension Request") to extend the then
effective Scheduled Term Loan Payout Commencement Date by
one additional year (provided that Xxxxx may make an
Extension Request for two additional years pursuant to
this Amendment), and the Term Bank shall notify Xxxxx in
writing whether it agrees to such extension not later
than thirty days after the receipt of such Extension
Request. If the Term Bank fails to respond to an
Extension Request, it shall be deemed to constitute a
denial of such Extension Request and the Scheduled Term
Loan Payout Commencement Date shall not be extended.
3. Extension Request. Pursuant to Section 2.06(a) of the
Term Loan Agreement, Xxxxx hereby notifies the Term Bank of its
request to extend the Scheduled Term Loan Payout Commencement Date
by two additional years so that the Scheduled Term Loan Payout
Commencement Date will be the Settlement Date which occurs not more
than three calendar months nor less than two calendar months before
the eighty-fourth (84th) month following the Effective Date, as
such date may be extended pursuant to Section 2.06 of the Term Loan
Agreement; provided, however, the Scheduled Term Loan Payout
Commencement Date shall in no event be extended beyond the
Scheduled Liquidation Commencement Date.
4. Representations and Warranties of Xxxxx. In order to
induce the Term Bank and the Servicer to enter into this Amendment
and to amend the Term Loan Agreement in the manner provided herein,
Xxxxx represents and warrants to the Term Bank and the Servicer
that (i) all of the representations and warranties contained in the
Term Loan Agreement are true and correct in all material respects
as of the date hereof except to the extent such representations and
warranties relate to an earlier date, in which case they are true
as of such date, (ii) no Liquidation Event or Unmatured Liquidation
Event exists, (iii) Xxxxx has all requisite corporate power and
authority to enter into this Amendment and the Term Loan Agreement
as amended hereby and to perform its obligations thereunder, (iv)
the execution, delivery and performance of this Amendment and the
Term Loan Agreement as amended hereby have been duly and
effectively authorized by all necessary corporate action on the
part of Xxxxx, (v) the execution, delivery and performance of this
Amendment and the Term Loan Agreement as amended hereby will not
violate any charter, by-law or contract provision, or any license,
franchise or permit, law, statute, regulation order or decree
applicable to Xxxxx, (vi) the execution, delivery and performance
of this Amendment and the Term Loan Agreement as amended hereby
will not conflict with, result in a breach of the Term Loan
Agreement or constitute (with due notice or lapse of time or both)
a default by Xxxxx under the Term Loan or result or require the
creation of or imposition of any lien upon any of the properties or
assets of Xxxxx (other than liens created pursuant to the Liquidity
Agreement), (vii) no order, decree or judgment of or in any court
of competent jurisdiction makes the execution, delivery or
performance of this Amendment or the Term Loan Agreement as amended
hereby illegal and no action, suit, or proceeding shall be pending,
or threatened or any investigation by any governmental or
regulatory authority shall have been commenced which could result
in any such order, decree or judgment. and (viii) no authorization,
consent, or approval of, or filing with, any public body or
authority of the United States or any State thereof which has not
already been made or obtained is required for the execution,
delivery or performance of this Amendment or the Term Loan
Agreement as amended hereby and no authorization, consent or
approval of any third party, which has not been obtained, is
required with respect thereto.
5. Additional Deliveries. As conditions precedent to the
effectiveness of this Amendment, Xxxxx shall deliver to the Term
Bank and the Servicer a copy of the resolutions duly adopted by the
Board of Directors of Xxxxx, certified by the Secretary or
Assistant Secretary of Xxxxx, authorizing the matters contemplated
hereby and execution of this Amendment.
6. Effect of Amendment. Execution of this Amendment by the
Term Bank and the Servicer shall not operate as a waiver of (i) any
other right, power or remedy of the Term Bank or the Servicer under
the Term Loan Agreement, or (ii) any Liquidation Event under the
Liquidity Agreement, or (iii) any default of Xxxxx under the Term
Loan Agreement.
7. Fees, Costs and Expenses. The provisions of subsection
9.07 of the Term Loan Agreement are hereby incorporated by
reference as if fully set forth herein and made applicable to this
Amendment.
8. Execution in 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
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. This Amendment shall
become effective as of the date first above written upon receipt by
the Term Bank and the Servicer of counterparts hereof duly executed
by Xxxxx, the Term Bank and the Servicer.
9. Headings. Headings used in this Amendment are for
convenience of reference only and shall not affect the construction
of this Amendment.
10. Reaffirmation of Term Loan Agreement. The parties hereto
agree and acknowledge that nothing contained in this Amendment in
any manner or respect limits or terminates any of the provisions of
the Term Loan Agreement other than as expressly set forth herein
and further agree and acknowledge that the Term Loan Agreement
remains and continues in full force and effect and is hereby
ratified and reaffirmed in all respects. No delay on the part of
the Term Bank or the Servicer in exercising any of their respective
rights, remedies, powers and privileges under the Term Loan
Agreement or partial or single exercise thereof, shall constitute
a waiver thereof. None of the terms and conditions of this
Amendment may be changed, waived, modified or varied in any manner,
whatsoever, except in accordance with the Term Loan Agreement.
11. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT
OTHERWISE WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS
OF THE STATE OF NEW YORK).
[Balance of page intentionally left blank. Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written by
their duly authorized representatives.
JEFFERSON SMURFIT FINANCE CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
JEFFERSON SMURFIT CORPORATION (U.S.),
as Servicer
By:______________________________________
Name:___________________________________
Title:___________________________________
BANK BRUSSELS XXXXXXX, NEW YORK
BRANCH, as Term Bank
By:______________________________________
Name:____________________________________
Title:___________________________________
