AGREEMENT
AGREEMENT, dated as of March 24, 1998 by and between Jefferson
Smurfit Corporation (U.S.), a Delaware corporation having an office at Jefferson
Smurfit Centre, 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 (as successor to
a merger with Container Corporation of America) ("JSCUS"), Smurfit Paperboard,
Inc., a Delaware corporation having an office at Jefferson Smurfit Centre, 0000
Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("SPI"), Smurfit International B.V.,
a Netherlands corporation having its legal seat in Amsterdam and an office at
Xxxxxxxxxxxxxx 0000, 0000 00 Xxxxxxxxx, Xxx Xxxxxxxxxxx ("SIBV") and The Chase
Manhattan Bank ("Chase"), a New York banking corporation having an office at 00
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000 (as successor to a merger
with Chemical Bank), as collateral agent (in such capacity, the "1994 Collateral
Agent") for the 1994 Secured Parties (as defined in the 1994 Amendment Agreement
referred to below) and as collateral agent (in such capacity, the "1998
Collateral Agent") for the 1998 Secured Parties (as hereinafter defined).
WITNESSETH:
A. JSCUS and SPI are party to an Operating Agreement, dated as of
April 30, 1992 (as amended, the "Operating Agreement") pursuant to which JSCUS
provides certain services to SPI with respect to the SPI Assets (as defined
therein), including the No. 2 linerboard machine located at JSCUS's paperboard
mill in Fernandina Beach, Florida (the "Mill").
B. JSCUS, SPI and the 1994 Collateral Agent are party to a Rights
Agreement, dated as of April 30, 1992 (as amended, the "Rights Agreement"), with
respect to the Mill and the SPI Assets. As security for the performance by SPI
of its obligations under the Rights Agreement, SPI and the 1994 Collateral Agent
are party to a Security Agreement, dated as of April 30, 1992 (as amended, the
"SPI Security Agreement").
C. In connection with the foregoing transaction, SIBV has entered
into a letter agreement, dated as of April 30, 1992 (the "SIBV Guarantee" and,
together with the Operating Agreement, the Rights Agreement and the SPI Security
Agreement, the "Fernandina Agreements"), in favor of the 1994 Collateral Agent.
D. JSCUS, SPI, SIBV, the 1994 Collateral Agent and Bankers Trust
Company, as collateral trustee (the "Collateral Trustee"), entered into an
Agreement dated as of May 11, 1994 (the "1994 Amendment Agreement") pursuant to
which, among other things, the Collateral Trustee assigned to the 1994
Collateral Agent all of the Collateral Trustee's rights in, and liabilities with
respect to, the Fernandina Agreements.
E. On the date hereof, (i) JSCUS, Jefferson Smurfit Corporation,
a Delaware corporation ("JSC"), and JSCE, Inc., a Delaware corporation ("JSCE"),
are entering into a Credit Agreement (as it may be amended or restated from time
to time, the "1998 Credit Agreement") with the 1998 Collateral Agent and the
lenders, managing agents, senior managing agents, fronting banks, swingline
leader and administrative agent named therein (collectively, the "1998 Secured
Parties") pursuant to which borrowings under the 1998 Credit Agreement are being
used to refinance (the "Refinancing") all indebtedness outstanding under the
Amended and Restated Credit Agreement, dated as of May 17, 1996, as amended,
among JSC, JSCUS, JSCE, the lenders, agents, and fronting banks named therein,
and Chase, as administrative agent; (ii) JSCUS, as mortgagor, and the 1998
Collateral Agent, are entering into a Term Loan and Revolving Credit Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing (as it may be amended
or restated from time to time, the "1998 Mortgage") with respect to the Mill;
and (iii) JSCUS and certain of its affiliates, as grantors, and the 1998
Collateral Agent, are entering into a Security Agreement (as it may be amended
or restated from time to time, the "1998 Security Agreement") with respect to
certain collateral, including all of JSCUS's rights in and to the Operating
Agreement and the Rights Agreement.
F. In connection with the actions referred to in paragraph E
above, (i) the parties to the Fernandina Agreements desire to amend the
Fernandina Agreements in certain respects and (ii) the 1994 Collateral Agent
desires to assign to the 1998 Collateral Agent all of its rights, and the 1998
Collateral Agent desires to assume all of the 1994 Collateral Agent's
obligations under the Fernandina Agreements as so amended, upon the terms and
subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
1. Effectiveness. This Agreement shall be deemed to take effect
immediately prior to the Refinancing.
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2. General Provisions.
(a) Any reference in any of the Fernandina Agreements to the
Rights Agreement or to any other Fernandina Agreement shall be deemed to refer
to the applicable Fernandina Agreement as amended and, with respect to the
rights and obligations of the Collateral Trustee (or, as set forth in the 1994
Amendment Agreement, "Collateral Agent"), assigned hereby.
(b) When used in the Fernandina Agreements, the term "Collateral
Trustee" (or, as set forth in the 1994 Amendment Agreement, "Collateral Agent")
shall be deemed to refer to the 1998 Collateral Agent as the 1994 Collateral
Agent's assignee. Any reference in any of the Fernandina Agreements to any of
the 1989 Secured Parties (or, as set forth in the 1994 Amendment Agreement, the
1994 Secured Parties) shall be deemed to refer to the 1998 Secured Parties.
(c) The notice provision in each of the Operating Agreement,
Rights Agreement and SPI Security Agreement is hereby amended by deleting the
information with respect to Chemical Bank and Cravath, Swaine & Xxxxx and
inserting the following in its place:
"The Chase Manhattan Bank,
as Collateral Agent
00 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx"
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3. Other Amendments to Operating Agreement.
(a) The last sentence of Section 5.05 of the Operating Agreement
is hereby amended by deleting the phrase "or the Credit Agreement, dated as of
May 11, 1994, among Jefferson Smurfit Corporation, a Delaware corporation
formerly named SIBV/MS Holdings, Inc., Jefferson Smurfit Corporation (U.S.), a
Delaware corporation formerly named Jefferson Smurfit Corporation, CCA and the
lenders and other parties thereto (as it may be amended or restated from time to
time," and inserting the following in its place: "or the Credit Agreement, dated
as of March 24, 1998, among Jefferson Smurfit Corporation, a Delaware
corporation, Jefferson Smurfit Corporation (U.S.), a Delaware corporation, JSCE,
Inc., a Delaware corporation, the lenders, fronting banks, managing agents,
senior managing agents and other parties thereto (as it may be amended,
modified, restated or otherwise supplemented from time to time)."
4. Other Amendments to Rights Agreement.
(a) Each reference in the Rights Agreement (i) to the "CCA
Mortgage" (or, as set forth in the 1994 Amendment Agreement, the "1994 CCA
Mortgage"), shall be deemed to refer to the 1998 Mortgage, (ii) to the "CCA
Security Agreement" (or, as set forth in the 1994 Amendment Agreement, the "1994
Security Agreement"), shall be deemed to refer to the 1998 Security Agreement,
(iii) to the "Credit Agreement" (or, as set forth in the 1994 Amendment
Agreement, the "1994 Credit Agreement"), shall be deemed to refer to the 1998
Credit Agreement and (iv) to the "Agents" (or, as set forth in the 1994 Credit
Agreement, Chemical), shall be deemed to refer to Chase as administrative agent
under the 1998 Credit Agreement.
5. Assignment and Assumption.
(a) The 1994 Collateral Agent hereby assigns to the 1998
Collateral Agent all of the 1994 Collateral Agent's rights in and under the
Fernandina Agreements as amended hereby. The 1994 Collateral Agent hereby
assigns to the 1998 Collateral Agent, and the 1998 Collateral Agent hereby
assumes all liability with respect to and agrees to be solely responsible for,
the 1994 Collateral Agent's respective obligations to be performed or observed
under each of the Fernandina Agreements as amended hereby.
(b) The 1998 Collateral Agent covenants and agrees that it will
duly perform and observe all obligations assumed by it hereunder. In the event
that the Collateral Agent shall fail to perform or observe any of the
obligations
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assumed by it hereunder, SPI or, in the case of the SIBV Guarantee, SIBV, may
proceed directly against the 1998 Collateral Agent for the enforcement thereof.
(c) SPI and JSCUS, in the case of the Fernandina Agreements other
than the SIBV Guarantee, hereby consent to the aforementioned assignment and
assumption and agree to perform the Fernandina Agreements to which they are
parties for the benefit of the 1998 Collateral Agent and the 1998 Secured
Parties. SIBV, in the case of the SIBV Guarantee, hereby (i) consents to the
aforementioned assignment and assumption, (ii) to the extent necessary under
applicable law, confirms and repeats it obligations thereunder as if the SIBV
Guarantee were repeated and incorporated herein verbatim as amended by the
provisions of Section 2 hereof and expressly addressed to the 1998 Collateral
Agent, and (iii) agrees to perform the SIBV Guarantee as so amended for the
benefit of the 1998 Collateral Agent and the 1998 Secured Parties.
6. Miscellaneous.
(a) All filings and recordings reasonably requested by the 1998
Collateral Agent with respect to this Agreement and the Fernandina Agreements
will be made promptly following the date hereof. It is intended that this
Agreement be recorded in the land records of Nassau County, Florida and recorded
or filed in all other places necessary to perfect or confirm the rights herein
conferred upon the parties hereto.
(b) Except as expressly set forth herein, this Agreement shall
not, by implication or otherwise, limit, constitute a waiver of or otherwise
affect the rights and remedies of the Collateral Agent or the other parties to
the Fernandina Agreements, nor shall this Agreement alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained therein, and each of the Fernandina Agreements shall
continue in full force and effect in accordance with the provisions thereof.
(c) This Agreement may be executed in individual counterparts,
each of which shall constitute an original and all of which taken together shall
constitute one and the same instrument.
(d) THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
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(e) This Agreement may be modified only by an agreement in
writing signed by the parties hereto or their respective successors in interest.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first written above.
Signed, sealed and delivered JEFFERSON SMURFIT CORPORATION,
in the presence of: a Delaware corporation
---------------------------- By:_________________________________
Name: Name:
Title:
----------------------------
Name: (CORPORATE SEAL)
Signed, sealed and delivered SMURFIT PAPERBOARD, INC.,
in the presence of: a Delaware corporation
---------------------------- By:_________________________________
Name: Name:
Title:
----------------------------
Name: (CORPORATE SEAL)
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Signed, sealed and delivered SMURFIT INTERNATIONAL, B.V.,
in the presence of: a Netherlands corporation
-----------------------
Name: By: ROKIN CORPORATE
SERVICES, B.V.,
Managing Director
-----------------------
Name:
By:___________________________
Name:
Title:
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STATE OF______________)
COUNTY OF____________)
The foregoing instrument was acknowledged before me the 24th
day of March, 1998, by _____________________, the ___________________of
JEFFERSON SMURFIT CORPORATION, a Delaware corporation, on behalf of the
corporation. He/she is personally known to me or has produced __________ as
identification.
----------------------------------
Name:
Title:
STATE OF______________)
COUNTY OF____________)
The foregoing instrument was acknowledged before me the 24th
day of March, 1998, by ________________________, ________________ of SMURFIT
PAPERBOARD, INC., a Delaware corporation, on behalf of the corporation. He/she
is personally known to me or has produced _________________ as identification.
----------------------------------
Name:
Title:
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Signed, sealed and delivered THE CHASE MANHATTAN BANK,
in the presence of: a New York banking corporation,
as 1994 Collateral Agent for the
1994 Secured Parties
------------------------------- By:_____________________________
Name: Name:
Title:
-------------------------------
Name: (CORPORATE SEAL)
Signed, sealed and delivered THE CHASE MANHATTAN BANK,
in the presence of: a New York banking corporation, as
1998 Collateral Agent for the
1998 Secured Parties
----------------------------- By:_____________________________
Name: Name:
Title:
-----------------------------
Name: (CORPORATE SEAL)
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STATE OF_____________ )
COUNTY OF____________ )
The foregoing instrument was acknowledged before me the 24th
day of March, 1998, by _____________________, the ___________________of THE
CHASE MANHATTAN BANK, a New York banking corporation, on behalf of the
corporation. He/she is personally known to me or has produced __________ as
identification.
----------------------------------
Name:
Title:
Serial No.
STATE OF_____________ )
COUNTY OF____________ )
The foregoing instrument was acknowledged before me the 24th
day of March, 1998, by _____________________, the ___________________of THE
CHASE MANHATTAN BANK, a New York banking corporation, on behalf of the
corporation. He/she is personally known to me or has produced __________ as
identification.
----------------------------------
Name:
Title:
Serial No.
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