Exhibit 10.1
AMENDMENT NO. 3 TO LIQUIDITY AGREEMENT,
EXTENSION REQUEST AND WAIVER
This AMENDMENT NO. 3, EXTENSION REQUEST AND WAIVER, dated as of March 9,
2001 (this "Amendment"), is made by and among (i) Jefferson Smurfit Finance
Corporation ("Xxxxx"), (ii) Bankers Trust Company as Facility Agent (the
"Facility Agent"), and (iii) the undersigned financial institutions in their
capacities as banks under the Liquidity Agreement (each, a "Bank"; collectively,
the "Banks").
W I T N E S S E T H:
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WHEREAS, Xxxxx, the Banks, the Facility Agent and the Collateral Agent
entered into that certain Liquidity Agreement, dated as of February 23, 1995, as
amended by the First Omnibus Amendment, dated as of March 31, 1996 and Amendment
Xx. 0, xxxxx xx xx Xxxxxx 00, 0000 (xx so amended, the "Liquidity Agreement");
WHEREAS, the Liquidity Agreement currently provides that Xxxxx must give
notice to the Facility Agent and the Banks not less than thirty days prior to
any anniversary of the Effective Date of its desire to extend the Scheduled
Liquidation Commencement Date ("Extension Request") and that any such extension
shall be for a period of twelve (12) months;
WHEREAS, Xxxxx desires to make an Extension Request pursuant to this
Amendment to extend the Scheduled Liquidation Commencement Date by twenty-four
(24) additional months;
WHEREAS, Xxxxx has agreed to pay the Banks an amendment fee in an amount
equal to .10% times the Commitments (the "Liquidity Banks Amendment Fee");
WHEREAS, the Liquidity Agreement currently provides that each reduction in
the Commitments shall be made ratably between the Series A Commitments and the
Series B Commitments and among the Series B Banks;
WHEREAS, Xxxxx desires to reduce the Facility Amount to $214 million from
$300 million by terminating the Commitments of certain Dissenting Banks without
applying such reduction ratably among the remaining Banks;
WHEREAS, the Liquidity Agreement currently provides that Xxxxx shall first
request that the Series B Banks purchase the Commitments of any Departing Banks;
WHEREAS, the Series B Banks have agreed to waive such requirement with
respect to Banks not agreeing to the Extension requested herein;
WHEREAS, the Liquidity Agreement currently provides that Xxxxx shall direct
the Collateral Agent to pay the Facility Agent, for the benefit of the Banks, a
Facility Fee for the period from and including the Effective Date until the
Termination Date, equal to .200% per annum times the Facility Amount;
WHEREAS, in order to induce the Banks to extend their current Commitments
as requested and waive the pro rata reduction requirement of the Liquidity
Agreement Xxxxx has agreed to amend the Liquidity Agreement to provide that the
Facility Fee be increased to an amount equal to .375% per annum times the
Facility Amount;
NOW THEREFORE, in consideration of the premises and the terms and covenants
contained herein, the receipt and sufficiency of which consideration is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
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the meanings ascribed to such terms in the Liquidity Agreement.
2. Amendment to Liquidity Agreement. The parties hereto agree to amend
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Section 4.02 of the Liquidity Agreement as set forth in this Section 2.
Section 4.02 is hereby amended as follows:
Pursuant to Section 9.07 or Section 9.08, Xxxxx shall direct the Collateral
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Agent to pay to the Facility Agent, for the benefit of the Banks, a
facility fee (the "Facility Fee") (i) for the period from and including the
Effective Date until the Termination Date, equal to three-eighths of one
percent (0.375%) per annum on any date prior to April 1, 1996, one-quarter
of one percent (0.25%) per annum on any date on or after April 1, 1996,
prior to July 31, 1997 and one-fifth of one percent (0.2000%) per annum on
any date on or after July 31, 1997, prior to March 9, 2001 and three-
eighths of one percent (0.375%) per annum on any date on or after March 9,
2001 (in each case, the "Facility Fee Rate") times the Facility Amount,
computed on the basis of the actual number of days elapsed (including the
first but excluding the day of payment) over a year of 365 or 366 days and
(ii) for the period from the Termination Date until the Collection Date,
equal to the Facility Fee Rate multiplied by the sum of the Aggregate Loan
Amounts plus the Aggregate CP Amount for each day during any Collection
Period for which the Facility Fee is being calculated, divided by 365 or
366, as the case may be.
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The Facility Fee shall be payable monthly in arrears on each Settlement
Date with respect to the prior Collection Period and shall be forwarded by
the Facility Agent to (i) the Series A Bank based on the available Series A
Commitment and the Facility Fee Rate applicable to the Series A Bank's
Commitment, and (ii) ratably to the Series B Banks according to their Pro
Rata Shares of the available Series B Commitment and the Facility Fee Rate
applicable to each Series B Bank's Commitment.
3. Extension Request. Xxxxx hereby notifies the Facility Agent and the
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Banks of its request to extend the Scheduled Liquidation Commencement Date by
two additional years so that the Scheduled Liquidation Commencement Date will be
the earlier of (i) the Settlement Date which occurs not more than three calendar
months nor less than two calendar months before the one hundred and eighth
(108th) month following the Effective Date, as such date may be extended
pursuant to Section 2.06 of the Liquidity Agreement, and (ii) the date the
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Commitments are reduced to zero in accordance with Section 2.06(b) of the
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Liquidity Agreement. The Liquidity Agreement is hereby amended to the extent
necessary to permit this Extension Request for twenty-four (24) months.
4. Waiver. The parties hereto acknowledge that upon effectiveness of this
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Amendment the Facility Amount shall be irrevocably reduced to $214 million and
agree to waive (a) Section 2.06 of the Liquidity Agreement to the extent
necessary to permit the termination of the Commitments of certain of the Banks
not extending such Commitments in response to the extension request contained
herein, together with the corresponding reduction of the Facility Amount to $214
million, without applying such reduction ratably between the Series A
Commitments and the Series B Commitments and among the Series B Banks but
instead allowing each remaining Commitment to remain unchanged, and (b) Section
2.09 of the Liquidity Agreement to the extent necessary to permit Xxxxx to
select one or more Replacement Banks to purchase all or a portion of the
Commitments of such Departing Banks, without having made a written request at
least thirty (30) Business Days before such selection.
5. Representations and Warranties of Xxxxx. In order to induce the
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Facility Agent, the Term Bank and the Banks to enter into this Amendment and to
amend the Liquidity Agreement in the manner provided herein, Xxxxx represents
and warrants to the Facility Agent, the Term Bank and the Banks that (i) all of
the representations and warranties contained in the Liquidity Agreement are true
and correct in all respects as of the date hereof except to the extent such
representations and warranties specify that they relate only to an earlier date,
in which case they are true as of such date, (ii) no Liquidation Event or
Unmatured Liquidation Event exists, (iii) Xxxxx has all requisite corporate
power and authority to enter into this Amendment and to perform its obligations
under the Liquidity Agreement as amended and extended hereby, (iv) the execution
and delivery of this Amendment and the performance under the Liquidity
Agreement, as amended and extended hereby, have been duly and effectively
authorized by all necessary corporate action on the part of Xxxxx, (v) the
execution and
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delivery of this Amendment and the performance under the Liquidity Agreement, as
amended and extended hereby, will not violate any charter, by-law or contract
provision, or any license, franchise or permit, law, statute, regulation order
or decree applicable to Xxxxx, (vi) the execution and delivery of this Amendment
and the performance under the Liquidity Agreement, as amended and extended
hereby, will not conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any of the Obligations of Xxxxx
or result or require the creation of or imposition of any lien upon any of the
properties or assets of Xxxxx (other than liens created pursuant to the
Liquidity Agreement), (vii) no order, decree or judgment of or in any court of
competent jurisdiction makes the execution and delivery of this Amendment or the
performance under the Liquidity Agreement, as amended and extended hereby,
illegal and no action, suit, or proceeding shall be pending or threatened or any
investigation by any governmental or regulatory authority shall have been
commenced which could result in any such order, decree or judgment and (viii) no
authorization, consent, or approval of, or filing with, any public body or
authority of the United States or any State thereof which has not already been
made or obtained is required for the execution and delivery of this Amendment or
the performance under the Liquidity Agreement, as amended and extended hereby,
and no authorization, consent or approval of any third party, which has not been
obtained, is required with respect thereto.
6. Additional Deliveries. As conditions precedent to the effectiveness
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of this Amendment, Xxxxx shall deliver to the Facility Agent and the Term Bank a
copy of the resolutions duly adopted by the Board of Directors of Xxxxx,
certified by the Secretary or Assistant Secretary of Xxxxx, authorizing the
matters contemplated hereby and execution of this Amendment.
7. Effect of Amendment. Execution of this Amendment by the Facility
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Agent and the Term Bank shall not operate as a waiver of (i) any other right,
power or remedy of the Facility Agent or the Term Bank under the Liquidity
Agreement, or (ii) any Liquidation Event under the Liquidity Agreement, or (iii)
any default of Xxxxx under the Liquidity Agreement.
8. Fees, Costs and Expenses. The provisions of Section 12.07 of the
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Liquidity Agreement are hereby incorporated by reference as if fully set forth
herein and made applicable to this Amendment.
9. Execution in Counterparts; Effectiveness of Amendment. This Amendment
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may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Amendment shall become effective as of the date first above
written upon (i) receipt by the Facility Agent and the Term Bank of counterparts
hereof duly executed by Xxxxx, the Facility Agent, the Term Bank, and the
Majority Banks; (ii) payment by Xxxxx to the Facility Agent, on behalf of each
Bank
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executing and delivering a counterpart hereof, of the Liquidity Banks Amendment
Fee; and (iii) insofar as it relates to a reduction in the Commitments and the
Facility Amount, satisfaction of the conditions set forth in Section 2.06(b) of
the Liquidity Agreement, as modified hereby.
10. Headings. Headings used in this Amendment are for convenience of
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reference only and shall not affect the construction of this Amendment.
11. Reaffirmation of Liquidity Agreement. The parties hereto agree and
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acknowledge that nothing contained in this Amendment in any manner or respect
limits or terminates any of the provisions of the Liquidity Agreement other than
as expressly set forth herein and further agree and acknowledge that the
Liquidity Agreement remains and continues in full force and effect and is hereby
ratified and reaffirmed in all respects. No delay on the part of the Facility
Agent or the Term Bank in exercising any of their respective rights, remedies,
powers and privileges under the Liquidity Agreement or partial or single
exercise thereof, shall constitute a waiver thereof. None of the terms and
conditions of this Amendment may be changed, waived, modified or varied in any
manner, whatsoever, except in accordance with the Liquidity Agreement.
12. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PROVISIONS OF THE STATE OF NEW YORK).
[Balance of page intentionally left blank. Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written by their duly authorized
representatives.
JEFFERSON SMURFIT FINANCE CORPORATION
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
BANKERS TRUST COMPANY, individually,
as the Series A Bank and as Facility Agent
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Consented and Agreed to:
THE GOVERNOR & COMPANY OF THE BANK OF
IRELAND, as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
THE BANK OF NEW YORK, as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
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THE CHASE MANHATTAN BANK, as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
BANK ONE, N.A., as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
ING BANK N.V., as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
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THE TORONTO DOMINION BANK, as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
RZB FINANCE LLC, as a Series B Bank
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
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