EXHIBIT 4.1(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 March 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 (the "Borrower"), the Lenders (as defined
therein), JPMorgan Chase Bank, a New York banking corporation
formerly known as The Chase Manhattan Bank ("JPMorgan"), and Bankers
Trust Company, a New York banking corporation ("BTCo") as Agents,
and BTCo, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), as collateral agent for the Lenders (in
such capacity, the "Collateral Agent"), as Facing Agent and as
Swingline Lender.
A. Pursuant to the terms and subject to the conditions contained in the
Credit Agreement, the Lenders, the Swingline Lender and the Facing Agent have
extended, and have agreed to extend, credit to the Borrower.
B. The Borrower has requested that the Credit Agreement be amended as set
forth herein.
C. The Borrower 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 Borrower has 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 the
Borrower with the provisions of Section 7.09 of the Credit Agreement to the
extent, but only to the extent, necessary to permit the Borrower to consummate
the Redemption Transaction.
SECTION 4. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, the Borrower represents and warrants 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 Borrower
and the Required Lenders.
SECTION 6. Amendment Fee. The Borrower agrees 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 Credit Agreement
dated as of May 31, 2000, as amended, among the Borrower, Smurfit-Stone
Container Canada Inc., the Lenders (as defined therein), JPMorgan as an Agent
(as defined therein), BTCo, as Administrative Agent (as defined therein) and as
Collateral Agent (as defined therein), the Facing Agent (as defined therein),
Deutsche Bank Canada, as Canadian Administrative Agent and The Bank of Nova
Scotia, as Canadian Syndication Agent, 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 "SLP Amendment"), in accordance with Section
6 thereof, and (b)
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not more than one Amendment Fee (i.e., not more than $5,000 in the aggregate)
shall be payable hereunder and under the SLP 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
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in no event shall any Amendment Fee be due and 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
Swingline Lender or the Borrower 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 Borrower 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/ Richard P. Marra
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Name: Richard P. Marra
Title: Assistant Treasurer
JPMORGAN CHASE BANK, individually
and as an Agent,
by
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Name:
Title:
BANKERS TRUST COMPANY,
individually and as an Agent,
Administrative Agent, Collateral
Agent, Facing Agent and Swingline
Lender,
by
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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 MARCH 31,
2000, AS AMENDED BY AMENDMENT NO. 1
DATED AS OF MAY 1, 2001
NAME OF LENDER:
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by
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Name:
Title:
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