EXHIBIT 4.2(c)
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EXECUTION COPY
AMENDMENT NO. 2, CONSENT AND WAIVER dated as of
January 23, 2002 (this "Amendment"), to the CREDIT
AGREEMENT dated as of May 31, 2000, as amended by AMENDMENT
NO. 1 dated as of May 1, 2001 (as so amended, the "Credit
Agreement"), among Stone Container Corporation, a Delaware
corporation ("Stone"), Smurfit-Stone Container Canada Inc.,
a corporation amalgamated under the Canada Business
Corporations Act formerly known as St. Laurent Paperboard
Inc. (together with Stone, the "Borrowers"), the Lenders
(as defined therein), JPMorgan Chase Bank, a New York
banking corporation formerly known as The Chase Manhattan
Bank ("JPMorgan") as an Agent, Bankers Trust Company, a New
York banking corporation as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and
as collateral agent for the Lenders (in such capacity, the
"Collateral Agent"), the Facing Agent (as defined therein),
Deutsche Bank Canada, as Canadian Administrative Agent and
The Bank of Nova Scotia, as Canadian Syndication Agent.
A. Pursuant to the terms and subject to the conditions contained in
the Credit Agreement, the Lenders and the Facing Agent have extended, and have
agreed to extend, credit to the Borrowers.
B. The Borrowers have requested that the Credit Agreement be amended
as set forth herein.
X. Xxxxx has informed the Agents that it intends to call for
redemption prior to September 30, 2002 all of its 12.58% Ratings Adjustable
Senior Notes due 2016 in an aggregate outstanding principal amount of
$125,000,000 (the "Notes") plus accrued interest and stated premium and to
redeem such Notes with the proceeds of Revolving Loans (collectively, the
"Redemption Transaction").
D. The Borrowers have requested that the Required Lenders (i)
consent to the Redemption Transaction and (ii) agree to waive certain
provisions of the Credit Agreement, in each case to the extent, but only to the
extent, necessary to permit the Redemption Transaction.
E. The Required Lenders are willing so to amend the Credit Agreement
and to grant such consent and waiver pursuant to the terms and subject to the
conditions set forth herein.
F. Capitalized terms used but not otherwise 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. Amendment to the Credit Agreement. The definition of the
term "Change in Control" contained in Section 1.01 of the Credit Agreement is
hereby amended by deleting the percentage "27-1/2%" set forth therein and
substituting therefor the percentage "20%".
SECTION 2. Consent. The Required Lenders hereby consent to the
Redemption Transaction.
SECTION 3. Waiver. The Required Lenders hereby waive compliance by
Stone with the provisions of Section 7.09 of the Credit Agreement to the
extent, but only to the extent, necessary to permit Stone to consummate the
Redemption Transaction.
SECTION 4. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, the Borrowers represent and
warrant to each other party hereto 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, 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. Effectiveness. This Amendment shall become effective as
of the date first written above on the date on which the Administrative Agent
shall have received (a) the Amendment Fees (as defined below) and (b)
counterparts of this Amendment that, when taken together, bear the signatures
of the Borrowers and the Required Lenders.
SECTION 6. Amendment Fee. The Borrowers agree to pay to each Lender
(an "Approving Lender") that executes a counterpart hereof and returns such
counterpart to the Administrative Agent or its counsel prior to 5:00 p.m., New
York City time, on January 23, 2002, an amendment fee (an "Amendment Fee" and,
collectively, the "Amendment Fees") equal to $5,000; provided, however, that
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(a) in order to receive such Amendment Fee, (i) if the Approving Lender is an
Affiliate of any other Lender under the Credit Agreement, all such Affiliated
Lenders must be Approving Lenders and (ii) if the Approving Lender is a Lender,
or an Affiliate of any Lender, under and as defined in the Existing Stone
Credit Agreement, such Lender and its Affiliated Lenders (if any) thereunder
must approve Amendment No. 2, Consent and Waiver thereto dated as of January
23, 2002 (the "Stone Amendment"), in accordance with Section 6 thereof,
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and (b) not more than one Amendment Fee (i.e., not more than $5,000 in the
aggregate) shall be payable hereunder and under the Stone Amendment to any
Lender or group of Affiliated Lenders. As used in this Section 6, the term
"Affiliate" and the correlative term "Affiliated" shall have the meaning
assigned in the Credit Agreement. The Amendment Fee payable to an Approving
Lender (or group of Affiliated Approving Lenders) shall be paid to the
Administrative Agent for the account of such Lender or group, shall be paid in
immediately available funds and once paid, shall not be refundable under any
circumstances, provided that in no event shall any Amendment Fee be due and
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payable unless this Amendment is executed by the parties described in Section
5(b) above.
SECTION 7. 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 Agents, the Administrative Agent, the Collateral Agent, the Facing
Agent, the Canadian Administrative Agent or the Borrowers 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 the Borrowers 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. After the date
hereof, any reference to the Credit Agreement shall mean the Credit Agreement,
as modified hereby. This Amendment shall constitute a Loan Document for all
purposes of the Credit Agreement and the other Loan Documents.
SECTION 8. 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 constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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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.
STONE CONTAINER CORPORATION,
by
/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
SMURFIT-STONE CONTAINER
CANADA INC.,
by
/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
JPMORGAN CHASE BANK, individually
and as an Agent,
by
_____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
individually and as Administrative Agent,
Collateral Agent and Facing Agent,
by
_____________________________________
Name:
Title:
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DEUTSCHE BANK CANADA,
individually and as Canadian
Administrative Agent,
by
_____________________________________
Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 2,
CONSENT AND WAIVER DATED AS OF
JANUARY 23, 2002, TO THE STONE
CONTAINER CORPORATION CREDIT AGREEMENT
DATED AS OF MAY 31, 2000, AS AMENDED BY
AMENDMENT NO. 1 DATED AS OF MAY 1, 2001
NAME OF LENDER:
___________________________
by
________________________
Name:
Title:
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