Exhibit 10.1
THIRD AMENDMENT OF
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT OF AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March
22, 2000 (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"), Chase
and BTCo, 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, as
amended by that certain First Amendment of Amended and Restated Credit Agreement
dated as of June 30, 1999 and as further amended by that certain Second
Amendment of Amended and Restated Credit Agreement dated as of October 15, 1999
(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. 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:
"Oregon City Mill Sale" means the sale by SNC of the mill facility and
the related real and personal property (including inventory) of SNC located
in Oregon City, Oregon or used exclusively in connection with the operation
of the Oregon City mill and the conduct of its business on terms reasonably
acceptable to the Senior Managing Agents.
(b) Section 7.04 of the Credit Agreement is amended (i) to delete the
word "and" after clause (j) thereof; (ii) to delete the period (".") now
appearing at the end of clause (k) and substituting the phrase "; and "
therefor, and (iii) to insert the following new clause (l) at the end
thereof:
"(1) SSCC may contribute approximately twenty-five million
(25,000,000) shares of the common stock of SSCC to Stone in
connection with the acquisition of St. Laurent Paperboard, Inc.,
a Canadian federal corporation."
(c) Section 7.05 of the Credit Agreement is amended (i) to delete the
world "and" after clause (f) thereof, (ii) to delete the period (".") now
appearing at the end of clause (g) and substituting the phrase "; and "
therefor; and (iii) to insert the following new clause (h) at the end
thereof:
"(h) in connection with the Oregon City Mill Sale."
(d) Section 7.07 of the Credit Agreement is amended (i) to delete the
word "and" after clause (g) thereof and substitute a comma (",") therefor;
(ii) to delete the period (".") now appearing at the end of clause (h) and
substituting the phrase "; and" therefor; and (iii) to insert the following
new clause (i) at the end thereof: "(i) the contribution by SSCC of
approximately twenty-five million (25,000,000) shares of the common stock
of SSCC to Stone in connection with the acquisition of St. Laurent
Paperboard, Inc., a Canadian federal corporation".
SECTION 3. 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 requisite number of
Lenders required pursuant to Section 10.08 of the Credit Agreement shall
have executed and delivered this Amendment; and
(b) SNC and JSC Newco shall have executed and delivered the
Reaffirmation of Guarantee attached hereto.
SECTION 4. Representations 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:
(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 each 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 of 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 5. References to and Effect on the Credit Agreement.
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(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 6. Execution in Counterparts. This Amendment may be 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 shall be binding upon the respective parties
hereto upon the execution and delivery of this Amendment by SSCC, JSCE, the
Borrower and the requisite number of Lenders required pursuant to Section 10.08
of the Credit Agreement 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 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, 5-1401 OF THE GENERAL OBLIGATION LAWS OF NEW
YORK, BUT OTHERWISE WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS
THEREOF.
SECTION 8. 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 9. 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]
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 March 22, 2000
SMURFIT NEWSPRINT CORPORATION
By:
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Name:
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Title:
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JSC XXXXXXX, INC.
By:
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Name:
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
JEFFERSON SMURFIT CORPORATION (U.S.),
by
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Name:
Title:
JSCE, INC.,
by
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Name:
Title:
SMURFIT-STONE CONTAINER CORPORATION,
by
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Name:
Title:
THE CHASE MANHATTAN BANK,
as a Lender, as Administrative Agent,
as Collateral Agent and as Senior Managing Agent,
by
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Name:
Title:
BANKERS TRUST COMPANY,
as a Lender, as Fronting Bank and as Senior
Managing Agent,
by
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Name:
Title:
SIGNATURE PAGE
to the AMENDMENT
To approve the Amendment:
Name of Financial Institution:
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by
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Name:
Title:
