Exhibit 10.12(l)
AMENDMENT NO. 2 TO LIQUIDITY AGREEMENT
AND EXTENSION REQUEST
This AMENDMENT NO. 2, dated as of August 19, 1997 (this
"Amendment"), to the Liquidity Agreement (as hereinafter defined)
is made by and among (i) Jefferson Smurfit Finance Corporation
("Xxxxx"), (ii) Bankers Trust Company as Facility Agent (the
"Facility Agent"), (iii) Jefferson Smurfit Corporation (U.S.) as
the Servicer (the "Servicer"), (iv) Banks Brussels Xxxxxxx, New
York Branch as Term Bank (the "Term Bank"), and (v) the undersigned
financial institutions in their capacities as banks under the
Liquidity Agreement (each, a "Bank"; collectively, the "Banks").
W I T N E S S E T H:
WHEREAS, Xxxxx, the Banks, the Facility Agent and the
Collateral Agent entered into that certain Liquidity Agreement,
dated as of February 23, 1995, as amended by the First Omnibus
Amendment, dated as of March 31, 1996 (as so amended, the
"Liquidity Agreement");
WHEREAS, the Liquidity Agreement currently provides that Xxxxx
must give notice to the Facility Agent and the Banks 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
Liquidation Commencement Date ("Extension Request");
WHEREAS, Xxxxx desires to amend the Liquidity 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 Liquidation Commencement
Date by twenty four (24) additional months;
WHEREAS, the Liquidity Agreement currently provides that Xxxxx
shall direct the Collateral Agent to pay to the Facility Agent, for
the benefit of the Banks, a Facility Fee for the period from and
including the Effective Date until the Termination Date, equal to
.25% per annum times the Facility Amount;
WHEREAS, Xxxxx has requested approval and consent from the
Banks and the Term Bank to amend the Liquidity Agreement to provide
that the Facility Fee will be reduced to an amount equal to .200%
per annum times the Facility Amount;
WHEREAS, Xxxxx has agreed to pay the Banks an amendment fee in
an amount equal to .05% times the Commitments (the "Liquidity Banks
Amendment Fee");
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
Liquidity Agreement.
2. Amendment to Liquidity Agreement. The parties hereto
agree to amend Section 2.06(c) of the Liquidity Agreement as set
forth in this Section 2.
2.06 Termination, Reduction and Renewal of Commitments. The
first paragraph of Section 2.06(c) 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 Facility Agent and the Banks (including any
Bank which is then a Dissenting Bank) in writing of its
request (each such request, an "Extension Request") to
extend the then effective Scheduled Liquidation
Commencement Date by one additional year (provided that
Xxxxx may make an Extension Request for two additional
years pursuant to this Amendment), and each Bank shall
notify Xxxxx and the Facility Agent in writing whether it
agrees to such extension not later than thirty days after
such Bank's receipt of such Extension Request. If Xxxxx
desires to extend the then effective Scheduled Term Loan
Payout Commencement Date, it shall deliver the Extension
Request pursuant to the Term Loan Agreement concurrently
with the delivery of any Extension Request hereunder.
3. Amendment to Liquidity Agreement. The parties hereto
agree to amend Section 4.02 of the Liquidity Agreement as set forth
in this Section 3.
4.02 Fees. Section 4.02 is hereby amended as follows:
Pursuant to Section 9.07 or Section 9.08, Xxxxx
shall direct the Collateral Agent to pay to the Facility
Agent, for the benefit of the Banks, a facility fee (the
"Facility Fee") (i) for the period from and including the
Effective Date until the Termination Date, equal to
three-eighths of one percent (0.375%) per annum on any
date prior to April 1, 1996, one-quarter of one percent
(0.25%) per annum on any date on or after April 1, 1996
and prior to July 31, 1997 and one-fifth of one percent
(0.2000%) per annum on any date on or after July 31, 1997
(in each case, the "Facility Fee Rate") times the
Facility Amount, computed on the basis of the actual
number of days elapsed (including the first but excluding
the day of payment) over a year of 365 or 366 days and
(ii) for the period from the Termination Date until the
Collection Date, equal to the Facility Fee Rate
multiplied by the sum of the Aggregate Loan Amounts plus
the Aggregate CP Amount for each day during any
Collection Period for which the Facility Fee is being
calculated, divided by 365 or 366, as the case may be.
The Facility Fee shall be payable monthly in arrears on
each Settlement Date with respect to the prior Collection
Period and shall be forwarded by the Facility Agent to
(i) the Series A Bank based on the available Series A
Commitment and the Facility Fee Rate applicable to the
Series A Bank's Commitment, and (ii) ratably to the
Series B Banks according to their Pro Rata Shares of the
available Series B Commitment and the Facility Fee Rate
applicable to each Series B Bank's Commitment.
4. Extension Request. Xxxxx hereby notifies the Facility
Agent and the Banks of its request to extend the Scheduled
Liquidation Commencement Date by two additional years so that the
Scheduled Liquidation Commencement Date will be the earlier of (i)
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 Liquidity Agreement, and
(ii) the date the Commitments are reduced to zero in accordance
with Section 2.06(b) of the Liquidity Agreement.
5. Representations and Warranties of Xxxxx. In order to
induce the Facility Agent, the Term Bank, the Servicer and the
Banks to enter into this Amendment and to amend the Liquidity
Agreement in the manner provided herein, Xxxxx represents and
warrants to the Facility Agent, the Term Bank, the Servicer and the
Banks that (i) all of the representations and warranties contained
in the Liquidity Agreement are true and correct in all respects as
of the date hereof except to the extent such representations and
warranties specify that they relate only 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 Liquidity Agreement as amended hereby and to
perform its obligations thereunder, (iv) the execution, delivery
and performance of this Amendment and the Liquidity 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 Liquidity
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
Liquidity Agreement as amended hereby will not conflict with,
result in a breach of or constitute (with due notice or lapse of
time or both) a default under any of the Obligations of Xxxxx 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
Liquidity 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 Liquidity Agreement as amended hereby and no
authorization, consent or approval of any third party, which has
not been obtained, is required with respect thereto.
6. Additional Deliveries. As conditions precedent to the
effectiveness of this Amendment, Xxxxx shall deliver to the
Facility Agent, 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.
7. Effect of Amendment. Execution of this Amendment by the
Facility Agent, the Term Bank and the Servicer shall not operate as
a waiver of (i) any other right, power or remedy of the Facility
Agent, the Term Bank or the Servicer under the Liquidity Agreement,
or (ii) any Liquidation Event under the Liquidity Agreement, or
(iii) any default of Xxxxx under the Liquidity Agreement.
8. Fees, Costs and Expenses. The provisions of Section
12.07 of the Liquidity Agreement are hereby incorporated by
reference as if fully set forth herein and made applicable to this
Amendment.
9. Execution in Counterparts; Effectiveness of Amendment.
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
(except for Section 3 which shall become retroactively effective as
of July 31, 1997) upon (i) receipt by the Facility Agent, the Term
Bank and the Servicer of counterparts hereof duly executed by
Xxxxx, the Facility Agent, the Term Bank and the Servicer;
provided, that Section 3 hereof will not become retroactively
effective until each of the Banks executes and delivers a
counterpart hereof; provided, further, that Section 4 hereof will
not become effective until the Majority Banks execute and deliver
counterparts hereof; and (ii) payment by Xxxxx to the Facility
Agent, on behalf of each Bank executing and delivering a
counterpart hereof, of the Liquidity Banks Amendment Fee.
10. Headings. Headings used in this Amendment are for
convenience of reference only and shall not affect the construction
of this Amendment.
11. Reaffirmation of Liquidity 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 Liquidity Agreement other than as expressly set forth herein
and further agree and acknowledge that the Liquidity 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 Facility Agent, the Term Bank or the Servicer in exercising any
of their respective rights, remedies, powers and privileges under
the Liquidity 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
Liquidity Agreement.
12. 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: _________________________________
BANKERS TRUST COMPANY, individually,
as the Series A Bank and as Facility
Agent
By: ____________________________________
Name: _________________________________
Title: __________________________________
Consented and Agreed to:
BANK BRUSSELS XXXXXXX, NEW YORK
BRANCH,
as the Term Bank
By: ____________________________________
Name: _________________________________
Title: __________________________________
ABBEY NATIONAL TREASURY SERVICES plc,
as a Series B Bank
By: _____________________________________
Name: __________________________________
Title:___________________________________
ABN AMRO BANK,
as a Series B Bank
By: _____________________________________
Name: ___________________________________
Title: _________________________________
BANCO BILBAO VIZCAYA, S.A.
as a Series B Bank
By:______________________________________
Name: ___________________________________
Title: __________________________________
THE GOVERNOR & COMPANY OF THE
BANK OF IRELAND, as a Series B Bank
By:______________________________________
Name:____________________________________
Title: __________________________________
BANK OF MONTREAL,
as a Series B Bank
By:______________________________________
Name:____________________________________
Title:___________________________________
THE BANK OF NEW YORK,
as a Series B Bank
By:______________________________________
Name: ___________________________________
Title:___________________________________
THE BANK OF NOVA SCOTIA,
as a Series B Bank
By: ____________________________________
Name: ___________________________________
Title: __________________________________
CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Series B Bank
By: ____________________________________
Name: ___________________________________
Title: __________________________________
THE CHASE MANHATTAN BANK, N.A.,
as a Series B Bank
By: _____________________________________
Name: ___________________________________
Title: __________________________________
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES,
as a Series B Bank
By: _____________________________________
Name:____________________________________
Title: __________________________________
By: _____________________________________
Name: ___________________________________
Title: __________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as a Series B Bank
By:______________________________________
Name:____________________________________
Title:___________________________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH, as a Series B Bank
By:______________________________________
Name: ___________________________________
Title: __________________________________
ING BANK N.V.
as a Series B Bank
By: _____________________________________
Name:____________________________________
Title: __________________________________
KREDIETBANK N.V., as a Series B Bank
By:______________________________________
Name:____________________________________
Title: __________________________________
NATIONSBANK, N.A. (CAROLINAS),
as a Series B Bank
By:______________________________________
Name: ___________________________________
Title: __________________________________
RAIFFEISEN ZENTRALBANK OSTERREICH AG,
as a Series B Bank
By:______________________________________
Name: ___________________________________
Title:___________________________________
THE TORONTO-DOMINION BANK,
as a Series B Bank
By:______________________________________
Name: ___________________________________
Title: __________________________________
WESTDEUTSCHE LANDESBANK GIROZENTRALE-NEW
YORK AND CAYMAN ISLANDS BRANCHES,
as a Series B Bank
By:______________________________________
Name: ___________________________________
Title: __________________________________
