FIRST AMENDMENT OF
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT OF AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of June 30, 1999 (this "Amendment"), is by and 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 undersigned financial institutions, including The Chase
Manhattan Bank ("Chase") and Bankers Trust Company ("BTCo"), in their capacities
as lenders (collectively, the "Lenders," and each individually, a "Lender"),
BTCo and Chase, as senior managing agents (in such capacity, the "Senior
Managing Agents"), and Chase, as administrative agent and collateral agent (in
such capacities, the "Administrative Agent" and the "Collateral Agent,"
respectively).
RECITALS:
A. The Borrower, SSCC, JSCE, the Senior Managing Agents, the
Administrative Agent, the Collateral Agent and the Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of November 18, 1998 (the
"Credit Agreement").
B. The Borrower, SSCC, JSCE, the Senior Managing Agents, the
Administrative Agent, the Collateral Agent and the Lenders desire to amend the
Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings given them in the Credit
Agreement.
SECTION 2. Amendments to the Credit Agreement to Permit the Liability
Management Transactions. The Credit Agreement is, as of the Effective Date (as
defined below), hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended by adding
thereto (in alphabetical order) the following defined term:
"Liability Management Transactions" means the series of
transactions described on Schedule 1.01(g) hereto.
and by adding at the end of the definition of "Subsidiary" the parenthetical
phrase "(including SCC RMMI and SCC AMMI)".
Section 1.01 is further amended by adding at the end thereof a new
paragraph to read as follows:
The following terms are defined in Schedule 1.01(g) to the
Credit Agreement:
"JSC AMMI"
"JSC Newco"
"JSC Newco Note"
"JSC RMMI"
"SCC AMMI"
"SCC RMMI"
"SNC Note"
(b) Section 7.01 of the Credit Agreement is amended by deleting
the word "and" after paragraph (n) thereof; by deleting the period at
the end of paragraph (o) thereof and substituting a semicolon therefor;
and by adding a new paragraph (p) thereto to read as follows:
(p) the assumption by JSC Newco of the liabilities of the
Borrower related to the Brewton, Alabama mill and the assumption
by JSC RMMI and JSC AMMI of post-retirement medical liabilities
and active medical liabilities, respectively, of the Borrower, in
each case pursuant to the Liability Management Transactions; and
(c) Section 7.04 of the Credit Agreement is amended by deleting
"[Intentionally Omitted]" from paragraph (e) thereof and substituting
therefor the following:
(i) loans or advances evidenced by the SNC Note and the
JSC Newco Note pursuant to the Liability Management Transactions,
provided that such notes are unsecured and otherwise in form and
substance satisfactory to the Senior Managing Agents, and it
being agreed that the SNC Note and JSC Newco Note will not be
required to be pledged to the Collateral Agent as Collateral;
(ii) loans or advances made by the Borrower to JSC RMMI and JSC
AMMI on a revolving credit basis pursuant to the Liability
Management Transactions, provided that such loans are unsecured
and incurred pursuant to a revolving credit agreement, notes and
other documentation in form and substance satisfactory to the
Senior Managing Agents and that such notes are delivered to the
Collateral Agent and pledged by the Borrower to the Collateral
Agent for the benefit of the Secured Parties pursuant to the
Pledge Agreement; (iii) the Investment by the Borrower in the
Class C Voting Preferred Stock of JSC RMMI and JSC AMMI and the
contribution of the SNC Note and the JSC Newco Note to JSC RMMI
and JSC AMMI, respectively, pursuant to the Liability Management
Transactions; (iv) the
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Investment by SSCC in the Class B Non-Voting Preferred Stock of
JSC RMMI and JSC AMMI pursuant to the Liability Management
Transactions; (v) the Investment by JSCE in the Class A Common
Stock of JSC RMMI and JSC AMMI pursuant to the Liability
Management Transactions; and (vi) additional capital
contributions to JSC RMMI and JSC AMMI pursuant to the
stockholders' agreements contemplated by the Liability Management
Transactions, provided that such stockholders' agreements are in
form and substance satisfactory to the Senior Managing Agents.
(d) Section 7.05 of the Credit Agreement is amended by deleting
the word "and" after paragraph (d) thereof; by deleting the period at
the end of paragraph (e) thereof, substituting a semicolon therefor and
adding the word "and" thereafter; and by adding a new paragraph (f)
thereto to read as follows:
(f) the Borrower may contribute the properties and assets
(other than the real property and any IRB-secured property) of
the Brewton, Alabama mill, and may lease the real property and
IRB-secured property of the Brewton, Alabama mill on a long-term
basis and for nominal consideration, to JSC Newco pursuant to the
Liability Management Transactions (it being agreed that such
contribution and lease may be made or consummated notwithstanding
the provisions of any Security Agreement or any Mortgage),
provided that (A) the Borrower shall designate JSC Newco as a
Material Subsidiary, and the Borrower and JSC Newco shall comply
with the applicable provisions of Section 6.10 (except that no
leasehold mortgage shall be required with respect to such lease),
and (B) such lease is in form and substance satisfactory to the
Senior Managing Agents.
(e) Section 7.06 of the Credit Agreement is amended by adding at
the end thereof a new paragraph (e) to read as follows:
(e) Notwithstanding the provisions of Section 7.06(a),
pursuant to the Liability Management Transactions, (i) SNC and
JSC Newco may issue the SNC Note and JSC Newco Note,
respectively, as dividends to the Borrower; (ii) the Borrower may
acquire the Class C Voting Preferred Stock of JSC RMMI and JSC
AMMI; and (iii) SSCC may acquire the Class B Non-Voting Preferred
Stock of JSC RMMI and JSC AMMI.
(f) Section 7.11 of the Credit Agreement is amended by deleting
from paragraph (b) thereof the reference to "paragraphs (c) and (d)
below" and substituting therefor the words "paragraphs (c), (d) and (e)
below" and by adding a new paragraph (e) at the end thereof to read as
follows:
(e) Notwithstanding paragraphs (a) and (b) above, pursuant
to the Liability Management Transactions, (i) JSCE may acquire
JSC RMMI and JSC AMMI as
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Subsidiaries, provided that JSCE shall pledge its Class A Common
Stock in such Subsidiaries to the Collateral Agent for the
benefit of the Secured Parties pursuant to the Pledge Agreement,
but such Subsidiaries shall not be deemed to be Material
Subsidiaries or required to comply with Section 6.10; (ii) SSCC
may acquire JSC RMMI and JSC AMMI as Subsidiaries, provided that
SSCC shall pledge its Class B Non-Voting Preferred Stock in such
Subsidiaries to the Collateral Agent for the benefit of the
Secured Parties pursuant to the Pledge Agreement; and (iii) JSCE
may acquire the Class C Voting Preferred Stock of JSC RMMI and
JSC AMMI and may sell such stock to any other Person for cash at
fair value.
(g) The Credit Agreement is further amended by adding a new
Schedule 1.01(g) thereto in the form of Schedule 1.01(g) attached to
this Amendment.
SECTION 3. Further Amendment to the Credit Agreement. The Credit
Agreement is, as of the Effective Date, hereby further amended as follows:
(a) Section 7.01 is further amended by adding a new paragraph (q)
at the end thereof to read as follows:
(q) Guarantees by the Borrower with respect to bonds
issued to support the Borrower's workers' compensation and other
obligations (other than Indebtedness) incurred in the ordinary
course of business.
SECTION 4. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective upon the date (the "Effective Date") when each
of the following conditions precedent has been satisfied:
(a) each of SSCC, JSCE, the Borrower and the Required Lenders
shall have executed and delivered this Amendment; and
(b) SNC shall have executed and delivered the Reaffirmation of
Guarantee attached hereto.
The consummation of the Liability Management Transactions (as described on
Schedule 1.01(g) attached hereto) on or after the Effective Date shall be
subject to the receipt by the Administrative Agent and the Collateral Agent of
such additional Loan Documents, certificates, legal opinions and other documents
as required by the Credit Agreement as amended hereby and as the Senior Managing
Agents otherwise may reasonably request.
SECTION 5. Representations and Warranties of the Borrower. The Borrower
represents and warrants to the Lenders, the Senior Managing Agents, the
Administrative Agent and the Collateral Agent as follows:
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(a) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all
material respects at and as of the date hereof as though made on and as
of the date hereof (except to the extent specifically made with regard
to a particular date).
(b) No Default or Event of Default has occurred and is
continuing.
(c) The execution, delivery and performance of this Amendment
have been duly authorized by all necessary action on the part of the
Loan Parties signatory hereto, and this Amendment has been duly executed
and delivered by each such Loan Party and is a legal, valid and binding
obligation of each such Loan Party enforceable against each such Loan
Party in accordance with its terms, except as the enforcement thereof
may be subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law).
(d) The execution, delivery and performance of this Amendment do
not conflict with or result in a breach by any Loan Party signatory
hereto of any term of any material contract, loan agreement, indenture
or other agreement or instrument to which any such Loan Party is a party
or is subject.
SECTION 6. References to and Effect on the Credit Agreement.
(a) On and after the Effective Date each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words
of like import, and each reference to the Credit Agreement in the Loan
Documents and all other documents (the "Ancillary Documents") delivered
in connection with the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement,
the Loan Documents and all other Ancillary Documents shall remain in
full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the
Lenders, the Senior Managing Agents, the Administrative Agent or the
Collateral Agent under the Credit Agreement, the Loan Documents or the
Ancillary Documents.
(d) The Loan Parties signatory hereto acknowledge and agree that
this Amendment constitutes a "Loan Document" for purposes of the Credit
Agreement.
SECTION 7. Execution in Counterparts. This Amendment maybe executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. This Amendment
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shall be binding upon the respective parties hereto upon the execution and
delivery of this Amendment by SSCC, JSCE, the Borrower and the Required Lenders
regardless of whether it has been executed and delivered by all of the Lenders.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 9. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 10. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the date and year
first above written.
SMURFIT-STONE CONTAINER
CORPORATION (formerly named
JEFFERSON SMURFIT CORPORATION)
By: /s/Xxxxxxx X. Xxxxxxxx
______________________________________
Name: Xxxxxxx X. Xxxxxxxx
____________________________________
Title: Vice President and Treasurer
__________________________________
JEFFERSON SMURFIT CORPORATION (U.S.)
By: /s/Xxxxxxx X. Xxxxxxxx
______________________________________
Name: Xxxxxxx X. Xxxxxxxx
____________________________________
Title: Vice President and Treasurer
__________________________________
JSCE, INC.
By: /s/Xxxxxxx X. Xxxxxxxx
______________________________________
Name: Xxxxxxx X. Xxxxxxxx
____________________________________
Title: Vice President and Treasurer
__________________________________
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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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XXX XXXXX XXXXXXXXX BANK, individually
and as Administrative Agent, Collateral
Agent and Senior Managing Agent
By: /s/Xxxxxxxx Xxxxxxxx
______________________________________
Name: Xxxxxxxx Xxxxxxxx
____________________________________
Title: Vice President
__________________________________
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REAFFIRMATION OF GUARANTEE
The undersigned acknowledges the foregoing Amendment with respect to the
Credit Agreement referred to therein, consents to the amendments set forth
therein and hereby reaffirms its obligations under the Guarantee Agreement (as
defined in the Credit Agreement).
Dated as of June 30, 1999
SMURFIT NEWSPRINT CORPORATION
By: /s/Xxxxxxx X. Xxxxxxxx
_________________________________
Name: Xxxxxxx X. Xxxxxxxx
_______________________________
Title: Vice President and Treasurer
_____________________________
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