Exhibit 10.5(f)
AMENDMENT NO. 5, WAIVER AND AGREEMENT dated as of March 28, 2001
(this "Amendment"), to the Amended and Restated Credit Agreement dated
as of November 18, 1998, as amended (the "Credit Agreement"), among
Jefferson Smurfit Corporation (U.S.), a Delaware corporation (the
"Borrower"); Smurfit-Stone Container Corporation, a Delaware
corporation ("SSCC"); JSCE, Inc., a Delaware corporation ("JSCE"); the
lenders party thereto from time to time (the "Lenders"); the Managing
Agents and Fronting Banks named therein; Bankers Trust Company, a New
York banking corporation and The Chase Manhattan Bank, a New York
banking corporation ("Chase"), as senior managing agents (in such
capacity, the "Senior Managing Agents") for the Lenders; and Chase, as
swingline lender (in such capacity, the "Swingline Lender"), as
administrative agent (in such capacity, the "Administrative Agent") and
as collateral agent (in such capacity, the "Collateral Agent").
A. Pursuant to the terms and subject to the conditions contained in the
Credit Agreement, the Lenders, the Swingline Lender and the Fronting Banks have
extended, and have agreed to extend, credit to the Borrower.
B. The Borrower has informed the Administrative Agent that it expects to
have Excess Cash Flow for the year ended December 31, 2000, of approximately
$118,000,000. Pursuant to Section 2.13(c) of the Credit Agreement, on or around
March 31, 2001, the Borrower would be required to prepay the Term Loans by an
amount equal to 50% of such Excess Cash Flow (the "2000 Excess Cash Flow
Prepayment").
C. The Borrower has also informed the Administrative Agent that it intends
to call for redemption all the 10-Year Senior Notes in an aggregate outstanding
principal amount of approximately $287,000,000, and to redeem such notes on or
about May 1, 2001 (the "Redemption").
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D. The Borrower intends to finance the Redemption and to pay related fees
and expenses with a combination of (i) the proceeds of the Additional Term
Facilities (as defined in Section 1 below) and (ii) cash that would otherwise be
required to be used to make the 2000 Excess Cash Flow Prepayment.
E. SSCC and the Borrower have requested that the Required Lenders (i)
agree to amend the Credit Agreement to allow for the provision of the Additional
Term Facilities thereunder and (ii) waive compliance by the Borrower with (a)
Section 2.13(c) of the Credit Agreement with respect to the 2000 Excess Cash
Flow Prepayment and (b) Section 7.09(a) of the Credit Agreement to the extent
necessary to permit the Redemption.
F. The Required Lenders are willing so to amend the Credit Agreement and
to grant such waivers on the terms and subject to the conditions herein
contained.
G. 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. The following is hereby inserted as a new section
following Section 10.20 of the Credit Agreement:
"SECTION 10.21. Additional Term Facilities. (a) The Borrower may, by
written notice to the Administrative Agent, request that one or more Lenders,
banks, financial institutions or other entities (collectively, the
"Additional Term Lenders") agree to make term loans in one or more tranches
and in an aggregate principal amount not to exceed $275,000,000 (the
"Additional Term Loans") to the Borrower pursuant to a supplement hereto or
an amendment hereof in form and substance satisfactory to the Borrower, the
Administrative Agent and the Additional Term Lenders; provided, however, that
the proceeds of any such Additional Term Loans shall be used by the Borrower
solely to redeem the 10-Year Senior Notes and to pay related fees and
expenses.
(b) The Required Lenders hereby authorize the Administrative Agent on
behalf of the Required Lenders
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to enter into any amendment (including an amendment and restatement) of this
Agreement solely to the extent necessary to reflect the making of the
Additional Term Loans (or the commitment to make the same) on the terms
described in this Section 10.21; provided, however, that, without the further
consent of the Required Lenders, the final maturity and the weighted average
life of the Additional Term Loans shall not be shorter than the final
maturity and the weighted average life of the outstanding Term Loans. The
Administrative Agent shall promptly deliver copies of any such amendment to
the Lenders.
(c) It is the intent of the parties hereto that the Additional Term Loans
(when and if made) shall constitute Loans and Obligations, and that the
Additional Term Lenders shall constitute Lenders and Secured Parties,
hereunder and under the other Loan Documents. Accordingly, the Additional
Term Loans shall rank pari passu in right of payment to, and shall be secured
equally and ratably with, the other Loans and Obligations outstanding under
this Agreement and the other Loan Documents."
SECTION 2. Waivers. (a) The Required Lenders hereby waive compliance by
the Borrower with Section 2.13(c) of the Credit Agreement with respect to the
2000 Excess Cash Flow Prepayment; provided, however, that the waiver contained
in this Section 2(a) shall cease to be effective on June 5, 2001, and the 2000
Excess Cash Flow Prepayment shall be required to be made on such date, if the
Redemption shall not have occurred on or prior to such date.
(b) The Required Lenders hereby waive compliance by the Borrower with
Section 7.09(a) of the Credit Agreement to the extent (but only to the extent)
necessary to permit the Redemption.
SECTION 3. Agreement. SSCC, the Borrower, JSCE and the Required Lenders
hereby agree that, notwithstanding anything to the contrary contained herein or
in the Credit Agreement, the amount of the 2000 Excess Cash Flow Prepayment
(whether or not made) shall not be included in the calculation of the Borrower's
Portion of Excess Cash Flow.
SECTION 4. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, each of SSCC, the Borrower and JSCE
represents and warrants to each of the Lenders, the Administrative
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Agent, the Senior Managing Agents, the Managing Agents, the Fronting Banks, the
Swingline Lender and the Collateral Agent that, after giving effect to this
Waiver, (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. Conditions to Effectiveness. This Amendment shall become
effective on the date on which the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
SSCC, JSCE, the Borrower and the Required Lenders.
SECTION 6. 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
Fronting Banks, the Swingline Lender, the Collateral Agent, the Administrative
Agent, the Senior Managing Agents, the Managing Agents, SSCC, JSCE, the Borrower
or the Guarantors 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 SSCC, JSCE, the Borrower or the Guarantors 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.
SECTION 7. 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 8. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 9. 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.
JEFFERSON SMURFIT CORPORATION (U.S.),
by /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
SMURFIT-STONE CORPORATION,
by /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
JSCE, INC.,
by /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK, individually and as Administrative
Agent, Collateral Agent and Senior Managing Agent,
by /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY, individually and as Fronting Bank and
Senior Managing Agent,
by /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
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APEX (IDM) CDOI, LTD.
by /s/ Xxxxx Xxxxx
------------------
Name: Xxxxx Xxxxx
Title: Director
BANK OF AMERICA, N.A.
by /s/ Xxxxxxx Xxxxx
--------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
THE BANK OF NEW YORK
by /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
by /s/ F. C. H. Askby
---------------------
Name: F. C. H. Askby
Title: Senior Manager Loan
Operations
BANK TRUST COMPANY
by /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice
President
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CREDIT INDUSTRIEL ET COMMERCIAL
by /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
by /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxx Xxxxxxx
Title: Vice President
XXXXXX XXXXX CDO III, LTD.
by XXXXX XXXXX MANAGEMENT AS INVESTMENT ADVISOR
by /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXXX XXXXX SENIOR INCOME TRUST
by XXXXX XXXXX MANAGEMENT AS INVESTMENT ADVISOR
by /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
by XXXXX XXXXX MANAGEMENT AS INVESTMENT ADVISOR
by /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
by /s/ Xxxxxx Xxxxxx
--------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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FORTIS CAPITAL CORP.
by /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
by /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXXX & CO.
by BOSTON MANAGEMENT AND RESEARCH AS INVESTMENT ADVISOR
by /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
GRAYSTON CLO 2001-1 LTD
by BEAR XXXXXXX ASSET
MANAGEMENT INC., as its
Collateral Manager
by /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.
by /s/ J. Xxxxxxx Xxxxxx
------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Senior Vice President
KZH CRESCENT LLC
by /s/ Xxxxxxxx Xxxx
--------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
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XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
by XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P., as Investment Advisor
by /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
NORTHWOODS CAPITAL, LIMITED
by XXXXXX, XXXXXX & CO., L.P.,
as Collateral Manager
by /s/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
OXFORD STRATEGIC INCOME FUND
by XXXXX XXXXX MANAGMENT AS INVESTMENT ADVISOR
by /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
by /s/ Xxxxx Xxxxx
------------------
Name: Xxxxx Xxxxx
Title:
SENIOR DEBT PORTFOLIO
by BOSTON MANAGEMENT & RESEARCH AS INVESTMENT ADVISOR
by /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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SEQUILS I, LTD
by TCW ADVISORS, INC., as it
Collateral Manager
by /s/ Xxxx Xxxx
----------------
Name: Xxxx Xxxx
Title: Managing Director
by /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
SRF TRADING, INC.
by /s/ Xxx X. Xxxxxx
--------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice
President
XXXXX XXX & FARNHAM INCORPORATED,
as agent for Keyport Life Insurance Company,
by /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President &
Portfolio Manager
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TCW LEVERAGED INCOME TRUST IV, L.P.
by TCW (XXXX XX), L.L.C., as
General Partner
by TCW ASSET MANAGEMENT COMPANY, as managing member of the
General Partner
by /s/ Xxxx X. Gold
-------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX CLO LTD. 2000-1
by /s/ Xxxxx Xxxxx
------------------
Name: Xxxxx Xxxxx
Title: Director
UNITED OF OMAHA LIFE INSURANCE COMPANY
by TCW ASSET MANAGEMENT COMPANY, as its Investment Advisor
by /s/ Xxxx X. Gold
-------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
WINGED FOOT FUNDING TRUST
by /s/ Xxx X. Xxxxxx
--------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
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