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Securities and Exchange Commission
Washington, D.C. 20549
Form 10-K
(X) Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the fiscal year ended December 31, 1998
or
( ) Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from _______________ to _________________
Commission file number 0-23876
Smurfit-Stone Container Corporation
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 43-1531401
(State of incorporation or organization) (I.R.S. Employer Identification)
150 North Michigan Avenue
Chicago, IL 60601
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's Telephone Number: (312) 346-6600
---------------------------------------------
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock $.01 par value
---------------------------
Title of Class
Indicate by check mark whether registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of January 31, 1999: approximately $3.5 billion
The number of shares outstanding of the registrant's common stock as of January
31, 1999: 215,014,063
<TABLE>
<CAPTION>
DOCUMENTS INCORPORATED BY REFERENCE: Part of Form 10-K
Into Which
Document is
Document Incorporated
-------- ------------
<S> <C>
Sections of the Registrant's Proxy Statement for the
Annual Meeting of Stockholders to be held on May 27, 1999 III
</TABLE>
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SMURFIT-STONE CONTAINER CORPORATION
ANNUAL REPORT ON FORM 10-K
December 31, 1998
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TABLE OF CONTENTS
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<TABLE>
<CAPTION>
Page No.
<S> <C> <C>
PART I
Item 1. Business ................................................. 1
Item 2. Properties ............................................... 6
Item 3. Legal Proceedings ........................................ 7
Item 4. Submission of Matters to a Vote of Security Holders ...... 11
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters ................................... 11
Item 6. Selected Financial Data .................................. 12
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations ................... 13
Item 7a. Quantitative and Qualitative Disclosures About
Market Risk ........................................... 22
Item 8. Financial Statements and Supplementary Data .............. 24
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure ................ 52
PART III
Item 10. Directors and Executive Officers of the Registrant ....... 52
Item 11. Executive Compensation ................................... 52
Item 12. Security Ownership of Certain Beneficial Owners
and Management ........................................ 52
Item 13. Certain Relationships and Related Transactions ........... 52
PART IV
Item 14. Exhibits, Financial Statement Schedules and
Reports On Form 8-K ................................... 53
</TABLE>
FORWARD LOOKING STATEMENTS
Except for the historical information contained in this Annual Report on Form
10-K, certain matters discussed herein, including (without limitation) under
Part I, Item 1, "Business -- Environmental Compliance", under Part 1, Item 3,
"Legal Proceedings" and under Part II, Item 7, "Management's Discussion and
Analysis of Financial Condition and Results of Operations," contain forward
looking statements, as that term is defined in the Private Securities Reform
Act of 1995. This document contains certain forward-looking statements within
the meaning of Section 21 E of the Securities Exchange Act of 1934, as amended,
about Smurfit-Stone Container Corporation. Although the Company believes that,
in making any such statements, its expectations are based on reasonable
assumptions, any such statement may be influenced by factors that could cause
actual outcomes and results to be materially different from those projected.
When used in this document, the words "anticipates," "believes," "expects,"
"intends," and similar expressions as they relate to Smurfit-Stone Container
Corporation or its management are intended to identify such forward-looking
statements. These forward-looking statements are subject to numerous risks and
uncertainties. Important factors that could cause actual results to differ
materially from those in forward-looking statements, certain of which are beyond
the control of Smurfit-Stone Container Corporation, include: the impact of
general economic conditions in the U.S. and Canada and in other countries in
which Smurfit-Stone Container Corporation and its subsidiaries currently do
business (including Asia, Europe and Latin and South America); industry
conditions, including competition and product and raw material prices;
fluctuations in exchange rates and currency values; capital expenditure
requirements; legislative or regulatory requirements, particularly concerning
environmental matters; interest rates; access to capital markets; the timing of
and value received in connection with asset divestitures; and obtaining required
approvals, if any, of debt holders. The actual results, performance or
achievement by Smurfit-Stone Container Corporation could differ materially from
those expressed in, or implied by, these forward-looking statements and,
accordingly, no assurances can be given that any of the events anticipated by
the forward-looking statements will transpire or occur, or if any of them do so,
what impact they will have on the results of operations and financial condition
of Smurfit-Stone Container Corporation.
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- --------------------------------------------------------------------------------
PART I
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ITEM 1. BUSINESS
- --------------------------------------------------------------------------------
GENERAL
On May 10, 1998, Jefferson Smurfit Corporation, a Delaware Corporation
("JSC"), now known as Smurfit-Stone Container Corporation (the "Company" or
"SSCC") entered into an Agreement and Plan of Merger (the "Merger Agreement")
with JSC Acquisition Corporation, a wholly-owned subsidiary of the Company ("JSC
Acquisition"), and Stone Container Corporation ("Stone"). Pursuant to the terms
of the Merger Agreement, JSC Acquisition was merged with and into Stone (the
"Merger") on November 18, 1998.
As a result of the Merger, each issued and outstanding share of common
stock of Stone was converted into the right to receive .99 shares of SSCC common
stock, and Stone became a wholly-owned subsidiary of SSCC. SSCC continues to own
100% of the equity interest of JSCE, Inc. ("JSCE"). SSCC has no operations other
than its investment in JSCE and Stone. JSCE owns 100% of the equity interest in
Jefferson Smurfit Corporation (U.S.) ("JSC (U.S.)"). JSCE has no operations
other than its investment in JSC (U.S.). JSC (U.S.) and Stone collectively have
extensive operations throughout the United States, Canada, Europe, Central and
South America, Australia and Asia.
SSCC, together with its direct and indirect subsidiaries, is a large,
integrated producer of containerboard, corrugated containers and other packaging
products. The Company believes its high level of integration enhances its
ability to respond quickly and efficiently to customers and to fill orders on
short lead times. SSCC operates in two major business segments: (1)
Containerboard and Corrugated Containers; and (2) Boxboard and Folding Cartons.
For a summary of revenues, profits, identifiable assets, capital expenditures
and depreciation, depletion and amortization for each of the Company's segments,
see Note 16, "Business Segment Information" of the Notes to Consolidated
Financial Statements contained in Part II, Item 8, "Financial Statements and
Supplementary Data".
PRODUCTS
Amounts included in the discussion below include Stone's operations after
November 18, 1998 (the "Merger Date") to December 31, 1998. Subsequent to the
Merger Date, on December 1, 1998, JSC(U.S.) closed three containerboard mills
located in Alton, IL, Circleville, OH and Jacksonville, FL. Amounts in the
discussion below include these paper mill facilities through November 30, 1998.
In addition, the Company recently announced its intention to divest the
newsprint mills owned by Smurfit Newsprint Corporation, a wholly-owned
subsidiary of JSC (U.S.) ("SNC"), and accordingly its former newsprint segment
is now accounted for as a discontinued operation.
CONTAINERBOARD AND CORRUGATED CONTAINERS SEGMENT
The primary products of the Company's Containerboard and Corrugated
Containers segment include corrugated containers, containerboard, kraft paper,
solid bleached sulfate ("SBS"), pulp and timber products. This segment includes
15 paper mills and 137 container plants located in the United States and three
paper mills located in Canada. Sales for the Company's Containerboard and
Corrugated Containers segment in 1998 were $2,071 million (including $57 million
of intersegment sales).
Production of the Company's containerboard mills and sales of the Company's
corrugated container facilities for the last three years, excluding Stone's
operations prior to the Merger Date, were:
<TABLE>
<CAPTION>
- -----------------------------------------------------
1998 1997 1996
- -----------------------------------------------------
<S> <C> <C> <C>
Tons produced
(in thousands)
Containerboard 2,479 2,024 2,061
Kraft paper 63 0 0
Solid bleached sulfate 185 190 189
Market pulp 71 0 0
Corrugated containers
sold (in billion sq. ft.) 36.5 31.7 30.0
</TABLE>
1
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The Company's containerboard mills produce a full line of containerboard,
which for 1998 included 1,378,000 tons of unbleached kraft linerboard, 316,000
tons of mottled white linerboard, 677,000 tons of recycled medium and 108,000
tons of semi-chemical medium. The Company's containerboard mills and corrugated
container operations are highly integrated, with the majority of containerboard
produced by the Company used internally by its corrugated container operations.
In 1998, the Company's corrugated container plants consumed 2,377,000 tons of
containerboard, representing an integration level of approximately 96%.
Corrugated containers are sold to a broad range of manufacturers of
consumable goods. Corrugated containers are used to ship such diverse products
as home appliances, electric motors, small machinery, grocery products, produce,
books, tobacco and furniture and for many other applications, including point of
purchase displays. The Company provides innovative packaging solutions,
stressing the value-added aspects of its corrugated containers, including
labeling and multi-color graphics to differentiate its products and respond to
customer requirements. The Company's corrugated container plants are located
nationwide, serving local customers and large national accounts. The Company's
sales of corrugated containers in 1998 were $1,422 million.
The Company also produces solid bleached sulfate and kraft paper, portions
of which are consumed internally by the Company's folding carton and bag
packaging plants, respectively. In addition, the Company produces bleached
hardwood and softwood pulp, which is sold to manufacturers of fine papers,
photographic papers, tissue and newsprint.
The Company manages approximately one million acres of owned and leased
timberland in the southeastern United States and 137,000 acres of owned
timberland in Canada. The Company also owns or leases timberland and conducts
forestry operations in Costa Rica and Venezuela. In 1998, the Company harvested
954,000 cords of timber, which was approximately 34% of the wood fiber
requirements for the Company's paper mills, including Stone's operations after
the Merger.
BOXBOARD AND FOLDING CARTONS SEGMENT
The primary products of the Company's Boxboard and Folding Cartons segment
include coated recycled boxboard and folding cartons. Sales for the Company's
Folding Carton and Boxboard segment in 1998 were $785 million.
Production of coated recycled boxboard in 1998, 1997 and 1996 by the
Company's boxboard mills was 582,000, 585,000 and 538,000 tons, respectively.
The Company's boxboard and folding carton operations are also integrated, with
the majority of tons produced by the Company's boxboard mills used internally by
its folding carton operations. In 1998, the Company's folding carton plants
consumed 611,000 tons of recycled boxboard, SBS and coated natural kraft,
representing an integration level of approximately 75%.
Folding cartons are sold to manufacturers of consumable goods, especially
food, beverage, detergents, paper products and other consumer products. The
Company's folding carton plants offer extensive converting capabilities,
including web and sheet lithographic, rotogravure and flexographic printing,
laminating and a full line of structural and graphic design services. Folding
cartons are used primarily to protect customers' products while providing point
of purchase advertising. The Company makes folding cartons for a wide variety of
applications, including food and fast foods, detergents, paper products,
beverages, health and beauty aids and other consumer products. Customers range
from small local accounts to large national accounts. The Company's folding
carton plants are located nationwide. Folding carton sales volumes for 1998,
1997 and 1996 were 536,000, 488,000 and 474,000 tons, respectively. The
Company's sales of folding cartons in 1998 were $699 million.
The Company has focused its capital expenditures and its marketing
activities in this segment to support a strategy of enhancing product quality as
it relates to packaging graphics, increasing flexibility while reducing customer
lead time and assisting customers in innovative package designs.
The Company provides marketing consultation and research activities through
its Design and Market Research (DMR) center. It provides customers with graphic
and product design tailored to the specific technical requirements of
lithographic, rotogravure and flexographic printing, as well as photography for
packaging, sales promotion concepts, and point of purchase displays.
2
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OTHER PRODUCTS
Newsprint
SNC manufactures newsprint at two mills located in Oregon. SNC produced
575,000, 574,000 and 522,000 metric tons of newsprint during 1998, 1997 and
1996, respectively. In 1998, sales of newsprint were $303 million. For the past
three years, an average of approximately 44% of SNC's newsprint production has
been sold to The Times Mirror company ("Times Mirror") pursuant to a long-term
newsprint agreement (the "Newsprint Agreement") entered into in connection with
the Company's acquisition of SNC from Times Mirror in February 1986. Under the
terms of the Newsprint Agreement, SNC supplies newsprint to Times Mirror
generally at prevailing market prices. Sales of newsprint to Times Mirror in
1998 amounted to $126 million.
As of March 15, 1999, Stone owned approximately 41 million shares of common
stock of Abitibi-Consolidated Inc., a Canadian-based manufacturer and marketer
of newsprint ("Abitibi"), representing approximately 22% of the total issued and
outstanding common stock.
Cladwood'r'
Cladwood'r' is a wood composite panel used by the housing industry,
manufactured from sawmill shavings and other wood residuals and overlaid with
recycled newsprint. SNC has two Cladwood'r' plants located in Oregon. Sales for
Cladwood'r' in 1998 were $21 million.
Industrial Bags
The Company produces multi-wall bags, consumer bags and intermediate bulk
containers that are designed to safely and effectively ship a wide range of
industrial and consumer products, including fertilizers, chemicals, concrete,
flour, sugar, feed, seed, pet foods, popcorn, charcoal, salt and more. In
addition, the Company's non-consolidated affiliate S&G Packaging LLC, produces
grocery bags which are sold primarily to supermarket chains. The Company's paper
bag and industrial bag plants are located nationwide. The Company believes that
it is the largest producer of grocery bags (through its affiliate) and
industrial bags in the United States. In 1998, the Company's paper bag and
industrial bag plants consumed approximately 28% of the kraft paper produced by
its kraft paper mills. The Company's sales of industrial bags in 1998, excluding
Stone's operations prior to the Merger Date, were $59 million.
Specialty Packaging
The Company produces a wide variety of specialty packaging products
including uncoated recycled boxboard, paper tubes and cores, solid fiber
partitions and consumer packaging. Paper tubes and cores are used primarily for
paper, film and foil, yarn carriers and other textile products and furniture
components. Flexible packaging, paper and metallized paper labels and heat
transfer labels are used in a wide range of consumer product applications. In
addition, a contract packaging plant provides custom contract packaging services
including cartoning, bagging, liquid-filling or powder-filling and high-speed
overwrapping. The Company produces high-quality rotogravure cylinders and has a
full-service organization experienced in the production of color separations and
lithographic film for the commercial printing, advertising and packaging
industries. In 1998, the Company's sales of specialty packaging products were
$294 million (including $17 million of intersegment sales).
Reclamation Operations
The Company's reclamation operations procure fiber resources for the
Company's paper mills as well as other producers. The Company operates 27
reclamation facilities that collect, sort, grade and bale recovered paper. The
Company also collects aluminum and glass. In addition, the Company operates a
nationwide brokerage system whereby it purchases and resells recovered paper to
the Company's recycled paper mills and other producers on a regional and
national contract basis. Brokerage contracts provide bulk purchasing, resulting
in lower prices and cleaner recovered paper. Many of the reclamation facilities
are located close to the Company's recycled paper mills, assuring availability
of supply, when needed, with minimal shipping costs. Tons of recovered paper
collected for 1998, 1997 and 1996 were 5,155,000, 4,832,000 and 4,464,000,
respectively. In 1998, 33% of the recovered paper collected was sold internally
to the Company's paper mills. The Company's sales of recycled materials in 1998
were $397 million (including $132 million of intersegment sales).
3
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Foreign Operations
The Company's European operations include three paper mills, which produce
containerboard and boxboard, and 21 corrugated container plants. In addition,
the Company operates three plants in Mexico, two plants in Australia, one plant
in Asia and several small affiliate operations which also produce corrugated
containers. The Company's sales for its foreign operations in 1998, excluding
Stone's operations prior to the Merger Date, were $69 million. Projected sales
of the foreign operations for 1999 represent approximately 9% of the Company's
overall projected sales.
FIBER RESOURCES
Wood fiber and recycled fiber are the principal raw materials used in the
manufacture of the Company's paper products. The Company satisfies a significant
portion of its needs for wood fiber through its forestry operations and
essentially all of its need for recycled fiber through the operation of its
reclamation facilities and nationwide brokerage system. The Company's wood fiber
requirements not satisfied internally are purchased on the open market or under
long-term contracts.
Wood fiber and recycled fiber are purchased in highly competitive, price
sensitive markets, which have historically exhibited price and demand
cyclicality. A decrease in the supply of wood fiber due to conservation
regulation has caused, and will likely continue to cause, higher wood fiber
costs in some of the regions in which the Company procures wood fiber.
Fluctuations in supply and demand for recycled fiber has from time to time
caused tight supplies of recycled fiber and at those times the Company has
experienced an increase in the cost of such fiber. While the Company has not
experienced any significant difficulty in obtaining wood fiber and recycled
fiber in proximity to its mills, there can be no assurances that this will
continue to be the case for any or all of its mills.
MARKETING
The marketing strategy for the Company's mills is to maximize sales of
products to manufacturers located within an economical shipping area. Converting
plants focus on both specialty products tailored to fit customers' needs and
high volume sales of commodity products. The Company also seeks to broaden the
customer base for each of its segments rather than to concentrate on only a few
accounts for each plant. These objectives have led to decentralization of
marketing efforts, such that each plant has its own sales force, and many have
product design engineers, who are in close contact with customers to respond to
their specific needs. National sales offices are also maintained for customers
who purchase through a centralized purchasing office. National account business
may be allocated to more than one plant because of production capacity and
equipment requirements.
The Company's business is not dependent upon a single customer or upon a
small number of major customers. The Company does not believe that the loss of
any one customer would have a material adverse effect on the Company.
COMPETITION
The markets in which the Company sells its principal products are highly
competitive and comprised of many participants. Although no single company is
dominant, the Company does face significant competitors in each of its
businesses. The Company's competitors include large vertically integrated
companies as well as numerous smaller companies. The industries in which the
Company competes are particularly sensitive to price fluctuations brought about
by shifts in industry capacity and other cyclical industry conditions. Other
competitive factors include design, quality and service, with varying emphasis
depending on product line.
BACKLOG
Demand for the Company's major product lines is relatively constant
throughout the year and seasonal fluctuations in marketing, production,
shipments and inventories are not significant. Backlogs are not a significant
factor in the industry. The Company does not have a significant backlog of
orders, as most orders are placed for delivery within 30 days.
RESEARCH AND DEVELOPMENT
The Company's research and development center located in Carol Stream, IL
uses state-of-the-art technology to assist all levels of the manufacturing and
sales processes from raw materials supply
4
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through finished packaging performance. Research programs have provided
improvements in coatings and barriers, stiffeners, inks and printing. The
technical staff conducts basic, applied and diagnostic research, develops
processes and products and provides a wide range of other technical services.
The Company actively pursues applications for patents on new inventions and
designs and attempts to protect its patents against infringement. Nevertheless,
the Company believes that its success and growth are dependent on the quality of
its products and its relationships with its customers, rather than on the extent
of its patent protection. The Company holds or is licensed to use certain
patents, licenses, trademarks and trade names on products, but does not consider
that the successful continuation of any important phase of its business is
dependent upon such intellectual property. The cost of the Company's research
and development center for 1998, 1997 and 1996 was approximately $3 million each
year.
EMPLOYEES
The Company had approximately 38,000 employees at December 31, 1998, of
whom approximately 32,600 were employees of U.S. operations and the remainder
were employees of foreign operations. Of the domestic employees, approximately
21,700 (67%) are represented by collective bargaining units. The expiration
dates of union contracts for the Company's major paper mill facilities are as
follows: the Hodge, LA mill, expiring in June 2000; the Missoula, MT mill,
expiring in May 2001; the Jacksonville, FL (Seminole) mill, expiring in June
2001; the Hopewell, VA mill, expiring in July 2002; the Brewton, AL mill,
expiring in October 2002; the Panama City, FL mill, expiring in March 2003; the
Fernandina Beach, FL mill, expiring in June 2003; and the Florence, SC mill,
expiring in August 2003. The Company believes that its employee relations are
generally good and is currently in the process of bargaining with unions
representing production employees at a number of its operations. While the terms
of these agreements may vary, the Company believes that the material terms of
its collective bargaining agreements are customary for the industry and the type
of facility, the classification of the employees and the geographic location
covered thereby.
ENVIRONMENTAL COMPLIANCE
The Company's operations are subject to extensive environmental regulation
by federal, state, and local authorities. The Company has in the past, made
significant capital expenditures to comply with water, air, solid and hazardous
waste, and other environmental laws and regulations, and expects to make
significant expenditures in the future for environmental compliance. Because
various environmental standards are subject to change, it is difficult to
predict with certainty the amount of capital expenditures that will ultimately
be required to comply with future standards. In particular, the United States
Environmental Protection Agency ("EPA") has finalized significant parts of its
comprehensive rule governing the pulp, paper and paperboard industry (the
"Cluster Rule"), which will require substantial expenditures to achieve
compliance. The Company estimates, based on engineering studies done to date,
that compliance with these portions of the Cluster Rule should require up to
$310 million in capital expenditures over the next two to four years. The
ultimate cost of complying with the regulations cannot be predicted with
certainty until further engineering studies are completed and additional
regulations are finalized.
In addition to Cluster Rule compliance, the Company also anticipates
additional capital expenditures related to environmental compliance, although in
the opinion of management, such compliance will not adversely affect the
Company's competitive position. For the past three years, the Company has spent
an average of approximately $41 million annually on capital expenditures for
environmental purposes. The anticipated spending for such capital projects for
fiscal 1999 is approximately $132 million. A significant amount of the increased
expenditures in 1999 will be due to compliance with the Cluster Rule and is
included in the estimate of up to $310 million set forth above. Since the
Company's principal competitors are, or will be, subject to comparable
environmental standards, including the Cluster Rule, management is of the
opinion, based on current information, that compliance with environmental
standards will not adversely affect the Company's competitive position.
5
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ITEM 2. PROPERTIES
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The Company maintains manufacturing facilities and sales offices throughout
North America, Europe, Central and South America, Australia and Asia. The
Company's facilities are properly maintained and equipped with machinery
suitable for their use. The Company's manufacturing facilities, excluding the
discontinued newsprint operations, as of December 31, 1998 are summarized below.
<TABLE>
<CAPTION>
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Number of Facilities
--------------------------- State
Total Owned Leased Locations
- ------------------------------------------------------------------
<S> <C> <C> <C> <C>
United States:
Paper mills 24 24 0 16
Corrugated
container plants 137 84 53 35
Folding carton
plants 21 16 5 11
Bag packaging
plants 15 8 7 13
Specialty packaging
plants 30 11 19 16
Reclamation plants 27 20 7 13
Cladwood'r'plants 2 2 0 1
Wood products
plants 2 2 0 2
---------------------------
Subtotal 258 167 91 39
Canada:
Paper mills 3 3 0 N/A
Wood products
plants 1 1 0 N/A
Europe and Other:
Paper mills 3 3 0 N/A
Corrugated
container plants 27 26 1 N/A
---------------------------
Total 292 200 92 N/A
=================================================================
</TABLE>
The approximate annual tons of productive capacity of the Company's paper
mills, including the proportionate share of its affiliates' productive capacity,
based on ownership percentage, at December 31, 1998 were:
<TABLE>
<CAPTION>
- ----------------------------------------------
Annual
(000 U.S. tons) Capacity
- ----------------------------------------------
<S> <C>
United States
Containerboard 5,445
Kraft paper 457
Solid bleached sulfate 192
Newsprint 635
Recycled boxboard 633
Market pulp 341
Uncoated recycled boxboard 131
Affiliates (containerboard) 93
-------
Subtotal 7,927
Canada
Containerboard 474
Market pulp 240
Europe and Other
Containerboard 361
Recycled boxboard 78
-------
Total 9,080
==========================================
</TABLE>
Approximately 76% of the Company's investment in property, plant and
equipment is represented by its paper mills. In addition to its manufacturing
facilities, the Company owns approximately 959,000 acres and leases
approximately 163,000 acres of timberland in the southeastern United States and
Canada and also operates wood harvesting facilities.
6
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ITEM 3. LEGAL PROCEEDINGS
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LITIGATION
Subsequent to an understanding reached in December 1998, SSCC and SNC
entered into a Settlement Agreement in January 1999 to implement a nation-wide
class action settlement of claims involving Cladwood'r', a composite wood siding
product manufactured by SNC that has been used primarily in the construction of
manufactured or mobile homes. The class action claimants allege that Cladwood'r'
siding on their homes prematurely failed. The settlement was reached in
connection with a class action pending in King County, WA and would also resolve
all other pending class actions. The Superior Court of Washington has
preliminarily approved this settlement and will hold a fairness hearing on the
settlement in May 1999. Pursuant to the settlement, SNC has agreed to pay $20
million into a settlement fund, plus up to approximately $6.5 million of
administrative costs, plaintiffs' attorneys' fees, and class representative
payments. The Company has established reserves that it believes will be adequate
to pay eligible claims; however, the number of claims, and the number of
potential claimants who choose not to participate in the settlement, could cause
the Company to re-evaluate whether the liabilities in connection with the
Cladwood'r' cases could exceed established reserves.
In April 1998, a suit was filed against Stone in Los Angeles Superior Court
by Chesterfield Investments L.P. ("Chesterfield"), and D.P. Investments L.P.
("DPI"), alleging that Stone owes such parties approximately $120 million
relating to Stone's purchase of common stock of Stone Savannah River Pulp &
Paper Corporation ("SSR"). In 1991, Stone purchased the shares of common stock
of SSR held by Chesterfield and DPI for approximately $6 million plus a
contingent payment payable in March 1998 based upon the post-closing performance
of the operations of SSR from 1991 through 1997. Stone has concluded a
settlement of the case with DPI, which had a 30% interest in the contingent
payment. Chesterfield is continuing to pursue the case as to the remaining 70%
of the contingent payment. Stone disputes Chesterfield's calculation of the
contingent payment, and is vigorously defending the litigation. The case is
currently set for trial in the second quarter of 1999. Stone believes that
existing reserves will be adequate to cover the amount of any adverse judgement
in this matter.
In May 1998, four putative class action complaints were filed against
Stone, JSC and the individual directors of Stone in the Delaware Court of
Chancery, which were consolidated into one action captioned as In Re Stone
Container Shareholders Litigation. The complaint alleged, among other things,
that the directors of Stone breached their fiduciary duties to Stone's
shareholders in connection with the Merger by failing to undertake an
appropriate evaluation of Stone's net worth as a merger/acquisition candidate,
actively evaluate the proposed transaction with the Company and engage in an
auction with third parties in an attempt to obtain the best value for Stone's
shareholders. In August 1998, the parties entered into a memorandum of
understanding setting forth the terms of the proposed settlement of the matter,
subject to certain conditions, including the plaintiffs' counsel conducting
confirmatory discovery and approval by the Court of Chancery. In addition, the
defendants have agreed not to oppose an application by plaintiff's counsel to
the Chancery Court for fees and expenses in an amount not to exceed $650,000,
which would be paid by Stone.
In October 1998, two holders of Stone's Series E Cumulative Convertible
Exchangeable Preferred Stock (the "Series E Preferred") filed a complaint
against Stone in the Delaware Court of Chancery alleging that Stone violated its
Certificate of Incorporation by failing to call a meeting of Series E Preferred
stockholders for the purpose of electing two directors by those stockholders.
The plaintiffs also alleged that in connection with the Merger, Stone sought to
change the rights of the holders of Series E Preferred without a two-thirds
class vote of such stockholders and that such stockholders should have been
entitled to vote with respect to the Merger. The plaintiffs' request for a
preliminary injunction was denied by the Court in November 1998. A separate
complaint against Stone was filed by a Series E Preferred stockholder purporting
to constitute a class action on behalf of all Series E Preferred stockholders.
These actions have been consolidated and now also include SSCC as a defendant.
In March 1999, Stone entered into a
7
<PAGE>
<PAGE>
stipulation of settlement (the "Stipulation") with the plaintiffs in furtherance
of a prior memorandum of understanding to settle these cases. As a result, Stone
designated two named individuals to serve on the Board of Directors of Stone,
and agreed, among other things, to nominate and solicit proxies for their
election by the holders of Series E Preferred at Stone's Annual Meetings of
Stockholders for so long as the dividends on the Series E Preferred are more
than six quarters in arrears. In addition, the Stipulation contains an agreement
by Stone not to oppose an application by plaintiffs' counsel for fees or
expenses in an amount not to exceed $215,000, which would be paid by Stone. This
settlement is subject to court approval, and a hearing for such purpose has been
scheduled in May 1999.
In June 1998, Stone, believing the allegations to be without merit and
without admitting liability, entered into a consent decree (the "Consent
Agreement") with the Federal Trade Commission (the "FTC"). In pertinent part,
the Consent Agreement requires Stone to cease and desist from "requesting,
suggesting, urging or advocating that any manufacturer or seller of linerboard
raise, fix, or stabilize prices or price levels..." and from "entering into, or
attempting to enter into...any agreement... to fix, raise, establish, maintain
or stabilize prices or price levels...". There are no monetary fines, sanctions
or damages imposed by the FTC in connection with the Consent Agreement; however,
Stone will be required to file certain reports on an annual basis with the FTC
to evidence its compliance with the Consent Agreement. By its terms the Consent
Agreement has also become applicable to SSCC and its other subsidiaries.
In 1998, seven putative class action complaints were filed in the United
States District Court for the Northern District of Illinois and the United
States District Court for the Eastern District of Pennsylvania alleging that
Stone reached agreements in restraint of trade that affected the manufacture,
sale and pricing of corrugated products in violation of antitrust laws. Stone is
the only named defendant, although the suits allege that other unnamed firms
participated in the purported restraints of trade, and specifically allege, on
information and belief, that JSC also participated. The suits seek an
unspecified amount of damages arising out of the sale of corrugated products for
the period from October 1, 1993 through March 31, 1995. Under the provisions of
the applicable statutes, any award of actual damages could be trebled. The
Federal Multidistrict Litigation Panel has ordered all of the complaints to be
transferred to and consolidated in the United States District Court for the
Eastern District of Pennsylvania. Stone believes it has meritorious defenses and
intends to vigorously defend itself.
Stone is a party to an Output Purchase Agreement (the "OPA") with Four M
Corporation ("Four M") and Florida Coast Paper Company, L.L.C. ("FCPC"), a joint
venture owned 50% by each of Stone and Four M. The OPA requires that Stone and
Four M each purchase one-half of the linerboard produced at FCPC's mill in Port
St. Joe, FL (the "FCPC Mill") at a minimum price sufficient to cover certain
obligations of FCPC. The OPA also requires Stone and Four M to use their best
efforts to cause the FCPC Mill to operate at a production rate not less than the
reported average capacity utilization of the U.S. linerboard industry. FCPC
indefinitely discontinued production at the FCPC Mill in August 1998. Certain
creditors of FCPC have alleged that Stone and Four M are in default with respect
to their obligations under the OPA. The amount of Stone's liability under the
OPA, if any, is uncertain at this point, although Stone believes that existing
reserves will be adequate to cover the amount of any adverse judgment in this
matter. The failure of Stone, Four M and FCPC to resolve the outstanding
indebtedness of FCPC and the obligations of Stone and Four M under the OPA in
the near future will likely result in litigation regarding the OPA and/or a
bankruptcy proceeding being commenced by or against FCPC.
The Company is a defendant in a number of lawsuits and claims arising out
of the conduct of its business, including those related to environmental
matters. While the ultimate results of such suits or other proceedings against
the Company cannot be predicted with certainty, the management of the Company
believes that the resolution of these matters will not have a material adverse
effect on its consolidated financial condition or results of operations.
ENVIRONMENTAL MATTERS
From 1995 to 1998, Federal and State of Oregon authorities conducted an
investigation of potential violations of the Clean Water Act by SNC at its Sweet
Home and Philomath, OR Cladwood'r'
8
<PAGE>
<PAGE>
manufacturing facilities. In order to conclude this matter, SNC pled guilty in
November 1998 to a one-count felony violation of the Clean Water Act. Under the
terms of the plea agreement, SNC paid a $50,000 fine and paid $7,500 in
restitution to each of the Oregon Department of Environmental Quality and the
Western States Project, and the United States agreed not to bring further
criminal charges against SNC for activities that have been the subject of the
investigation.
In March 1999, management of SNC's Oregon City, OR newsprint mill became
aware of possible alterations by one of its employees of data utilized in
determining compliance with the mill's National Pollutant Discharge Elimination
System ("NPDES") permit. SNC conducted a thorough internal investigation of this
matter, and based on this investigation concluded that such alterations did
occur, and that as a result the mill violated its NPDES permit limits on
suspended solids on several occasions. SNC provided both the EPA and the Oregon
Department of Environmental Quality with a detailed report of its investigation
and it is probable that the agencies will conduct an additional investigation
based on this report. SNC intends to continue to fully cooperate with any such
investigation. While it is too early at this time to predict the potential
consequences of this matter to SNC, it is possible that SNC would be subject to
civil penalties and criminal charges.
In October 1992, the Florida Department of Environmental Regulation,
predecessor to the Department of Environmental Protection ("DEP"), filed a civil
complaint in the Circuit Court of Bay County, FL against Stone seeking
injunctive relief, an unspecified amount of fines and civil penalties, and other
relief based on alleged groundwater contamination at Stone's Panama City, FL
mill. In addition, the complaint alleged operation of a solid waste facility
without a permit and discrepancies in hazardous waste shipping manifests. At the
parties' request, the case was stayed pending the conclusion of a related
administrative proceeding petitioned by Stone in June 1992 following DEP's
proposal to deny Stone a permit renewal to continue operating its wastewater
pretreatment facility at the mill site. The administrative proceeding was
referred to a hearing officer for an administrative hearing on the consolidated
issues of compliance with a prior consent order, denial of the permit renewal,
completion of a contamination assessment and denial of a sodium exemption. In
June 1998, DEP and Stone reached a settlement in principle pursuant to which DEP
will issue a full operating permit for the mills' wastewater pretreatment
facility and a compliance order requiring the installation and continued
operation of a hydrologic barrier system at two locations on the mill site's
perimeter. As part of the settlement, the parties have also agreed to a
stipulation dismissing the enforcement action with respect to the groundwater
contamination allegations.
In January 1996, the United States of America filed a suit against Stone in
the United States District Court for the District of Montana seeking injunctive
relief and an unspecified amount in civil penalties based on the alleged failure
of Stone to comply with certain provisions of the Clean Air Act, its
implementing regulations, and the Montana State Implementation Plan at Stone's
Missoula, MT mill. The complaint specifically alleged that Stone exceeded the
20% opacity limitation for recovery boiler emissions; failed to properly set the
span on a recovery boiler continuous emissions monitor; and violated limitations
on venting of an air contaminant by improperly venting non-condensable gasses.
In May 1998, Stone, the United States Department of Justice, EPA and other
intervening parties entered into a consent decree settling this case. In
addition to, among other things, agreeing to certain emissions limitations and
monitoring and reporting requirements, Stone paid a civil penalty of $312,500.
In September 1997, Stone received a Notice of Violation and a Compliance
Order from EPA alleging noncompliance with air emissions limitations for the
smelt dissolving tank at Stone's Hopewell, VA mill and for failure to comply
with New Source Performance Standards applicable to certain other equipment at
the mill. In cooperation with EPA, Stone responded to information requests,
conducted tests and took measures to ensure continued compliance with applicable
emission limits. In December 1997 and November 1998, Stone received additional
requests from EPA for information about past capital projects at the mill. Stone
is fully cooperating with these requests and has provided significant
information to EPA. EPA representatives have advised Stone that its requests are
part of a nationwide enforcement review of industry's compliance with its New
Source Review rules. The Clean Air Act authorizes EPA to assess a penalty of
$25,000 per day of each violation; however, no penalties have yet been assessed.
If EPA decides to commence
9
<PAGE>
<PAGE>
an enforcement action to assess penalties in this matter, Stone intends to
vigorously contest such action.
In April 1998, EPA issued a Notice of Violation ("NOV") to Stone alleging
violations of the particulate emission limits for the No. 6 boiler at Stone's
Coshocton, OH mill. In September 1998, EPA filed an administrative complaint
against Stone formalizing the allegations set forth in the NOV and seeking a
civil penalty in the amount of $102,400. Stone and EPA have settled the matter,
and the penalty in the final consent order was reduced to $68,500.
Federal, state and local environmental requirements are a significant
factor in the Company's business. The Company employs processes in the
manufacture of pulp, paperboard and other products, which result in various
discharges, emissions, and wastes, and which are subject to numerous federal,
state and local environmental laws and regulations, including reporting and
disclosure obligations. The Company operates and expects to operate under
permits and similar authorizations from various governmental authorities that
regulate such discharges, emissions, and wastes.
The Company also faces potential liability as a result of releases, or
threatened releases, of hazardous substances into the environment from various
sites owned and operated by third parties at which Company-generated wastes have
allegedly been deposited. Generators of hazardous substances sent to off-site
disposal locations at which environmental problems exist, as well as the owners
of those sites and certain other classes of persons (generally referred to as
"potentially responsible parties" or "PRPs"), are, in most instances, subject to
joint and several liability for response costs for the investigation and
remediation of such sites under the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") and analogous state laws, regardless
of fault or the lawfulness of the original disposal. The Company has received
notice that it is or may be a PRP at a number of federal and/or state sites
where response action may be required, and as a result may have joint and
several liability for cleanup costs at such sites. However, liability for CERCLA
sites is typically shared with other PRPs and costs are commonly allocated
according to relative amounts of waste deposited. Because the Company's relative
percentage of waste deposited at a majority of these sites is quite small,
management of the Company believes, based on current information, that its
probable liability under CERCLA and similar state laws, taken on a case by case
basis or in the aggregate, will not have a material adverse effect on its
financial condition or operations.
In addition to participating in remediation of sites owned by third
parties, the Company has entered into consent orders for investigation and/or
remediation of certain Company-owned properties. The Company believes that its
potential liability for investigation or remediation for these sites, either
individually or in the aggregate, will not have a material adverse effect on its
financial condition or operations.
Based on current information, the Company believes that the probable costs
of the potential environmental enforcement matters discussed above, response
costs under CERCLA and similar state laws, and remediation of owned property,
will not have a material adverse effect on the Company's financial condition or
results of operations. The Company believes that its liability for these matters
was adequately reserved at December 31, 1998.
10
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- --------------------------------------------------------------------------------
A Special Meeting of Stockholders was held on November 17, 1998 to approve
the merger of Jefferson Smurfit Corporation and Stone Container Corporation. At
the meeting, the Stone stockholders voted (i) to approve and adopt the merger
agreement and (ii) to approve the amendments to the Stone restated certificate
of incorporation as contemplated by the merger, and the JSC stockholders voted
(i) to approve the issuance of JSC common stock in the merger and (ii) to
approve the SSCC 1998 Long Term Incentive Plan. Voting on each matter was as
follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
Votes Votes Withheld/
For Against Abstentions
------------ ----------- -------------
<S> <C> <C> <C>
Stone stockholders
Approve and adopt the merger agreement 89,385,100 168,636 313,307
Approve the amendments to Stone's
restated certificate of incorporation 80,883,896 5,735,256 3,247,891
JSC stockholders
Approve the issuance of JSC common
stock and adopt the merger agreement 105,431,886 459,955 51,714
Approve the SSCC 1998 Long Term
Incentive Plan 105,266,643 537,746 139,166
</TABLE>
- --------------------------------------------------------------------------------
PART II
- --------------------------------------------------------------------------------
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
- --------------------------------------------------------------------------------
MARKET INFORMATION
At December 31, 1998 the Company's common stock was held by approximately
38,000 stockholders. The Company's common stock trades on The Nasdaq Stock
Market under the symbol "SSCC". The high and low trading prices of the stock
were:
<TABLE>
<CAPTION>
- ------------------------------------------------
1998 1997
--------------------------------
High Low High Low
--------------------------------
<S> <C> <C> <C> <C>
First Quarter $17.75 $13.00 $16.38 $11.88
Second Quarter $22.00 $15.00 $18.63 $11.88
Third Quarter $16.75 $ 9.75 $21.63 $15.50
Fourth Quarter $16.44 $10.00 $20.50 $13.25
</TABLE>
DIVIDENDS
The Company has not paid cash dividends on its common stock and does not
intend to pay dividends on its common stock in the foreseeable future. The
ability of the Company to pay dividends in the future is restricted by certain
provisions contained in various agreements and indentures relating to JSC
(U.S.)'s and Stone's outstanding indebtedness.
11
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
ITEM 6. SELECTED FINANCIAL DATA
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(In millions, except per share and statistical data) 1998 (a)(b) 1997 1996 1995 1994
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Summary of Operations(c)
Net sales ........................................................ $ 3,469 $ 2,936 $ 3,087 $ 3,682 $ 2,950
Income (loss) from operations .................................... (64) 175 332 601 310
Income (loss) from continuing operations before
extraordinary item and cumulative effect of
accounting change .............................................. (194) (20) 79 230 22
Discontinued operations, net of income tax provision ............. 10 21 38 17 (10)
Net income (loss) ................................................ (200) 1 112 243 (43)
Basic earnings per share of common stock
Income (loss) from continuing operations before
extraordinary item and cumulative effect of
accounting change ............................................ (1.56) (.18) .71 2.07 .22
Net income (loss) .............................................. (1.61) .01 1.01 2.19 (.43)
Weighted average shares outstanding ............................ 124 111 111 111 101
Diluted earnings per share of common stock
Income (loss) from continuing operations before extraordinary
item and cumulative effect of accounting change .............. (1.56) (.18) .70 2.06 .22
Net income (loss) .............................................. (1.61) .01 1.00 2.17 (.43)
Weighted average shares outstanding ............................ 124 111 112 112 101
- ---------------------------------------------------------------------------------------------------------------------------------
Other Financial Data
Net cash provided by operating activities ........................ $ 129 $ 88 $ 380 $ 393 $ 135
Net cash used for investing activities ........................... (59) (175) (133) (160) (148)
Net cash provided by (used for) financing activities ............. 73 87 (262) (268) 31
Depreciation, depletion and amortization ......................... 168 127 125 122 116
Capital investments and acquisitions ............................. 287 191 129 170 152
Working capital .................................................. 635 71 34 51 15
Property, plant, equipment and timberland, net ................... 5,772 1,788 1,720 1,709 1,681
Total assets ..................................................... 11,631 2,771 2,688 2,783 2,759
Long-term debt, less current maturities .......................... 6,428 2,025 1,934 2,111 2,392
Stockholders' equity (deficit) ................................... 1,634 (374) (375) (487) (730)
- ---------------------------------------------------------------------------------------------------------------------------------
Statistical Data (tons in thousands)
Containerboard, SBS and kraft paper production (tons) ............ 2,727 2,214 2,250 2,176 2,198
Coated boxboard production (tons) ................................ 582 585 538 545 537
Corrugated shipments (billion sq. ft.) ........................... 36.5 31.7 30.0 29.4 30.8
Folding carton shipments (tons) .................................. 536 488 474 476 493
Industrial bag shipments (tons) .................................. 59
Fiber reclaimed and brokered (tons) .............................. 5,155 4,832 4,464 4,293 4,134
Number of employees .............................................. 38,000 15,800 15,800 16,200 16,600
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(a) On November 18, 1998, Stone merged with a wholly-owned subsidiary of the
Company. Results for 1998 include Stone after November 18, 1998. The
Company issued approximately 104 million shares of common stock in the
Merger, resulting in a total purchase price (including the fair value of
stock options and related fees) of approximately $2,245 million.
(b) The Company recorded pre-tax charges of $310 million ($187 million after
tax) in the fourth quarter of 1998, including $257 million of restructuring
charges in connection with the Merger, $30 million for settlement of its
Cladwood'r' litigation and $23 million of Merger related costs.
(c) The operating results for all prior periods have been restated to present
the operating results of SNC as a discontinued operation.
12
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
GENERAL
Market conditions and demand for containerboard and corrugated containers,
the Company's primary products, are generally subject to cyclical changes in the
economy and changes in industry capacity, both of which can significantly impact
selling prices and the Company's profitability.
Containerboard market conditions have generally been weak since 1996 due
primarily to excess capacity within the industry. During this period, inventory
levels were high and many paper companies, including the Company, took economic
downtime at their mills in order to reduce inventories. Lost production
resulting from economic downtime for the industry overall in the second half of
1998 was approximately 1.5 million tons, or 8% of capacity. Linerboard prices
declined dramatically in 1996 and continued to fall in the first half of 1997,
dropping to $310 per ton in April 1997. Lower inventory levels and strengthening
demand in the second half of 1997 combined to increase prices to approximately
$390 per ton by December 1997. Linerboard prices were stable in the first half
of 1998, but declined during the second half of the year. The price for
linerboard at December 31, 1998 was approximately $340 per ton. Corrugated
container prices followed this same pricing trend during the past three years
with somewhat less fluctuation.
The outlook for containerboard and corrugated containers in late 1998 and
early 1999 has improved substantially. The strength of December corrugated
container shipments and the amount of economic downtime taken at paper mills in
the second half of 1998 have resulted in a significant reduction in inventory
levels. In addition, several paper companies, including the Company, have
announced mill shutdowns approximating 6% of industry capacity. The shutdowns
will improve the balance between supply and demand. Based on these developments,
the Company implemented a price increase for linerboard and medium of $50 per
ton and $60 per ton, respectively, in the first quarter of 1999.
Market conditions in the folding carton and boxboard mill industry were
stable in 1997, but weakened somewhat in 1998 as demand declined 3% compared to
last year. Mill productive capacity in the boxboard industry exceeds current
levels of demand. While economic downtime at boxboard mills was avoided, the
lower demand for board resulted in reduced prices. Boxboard prices increased in
1997 and held steady for the first nine months of 1998. Boxboard prices began to
decline in the last quarter of 1998 due to weaker demand. The price for recycled
boxboard declined by approximately $30 per ton during 1998. The combination of
reduced demand and industry-wide excess capacity continued to keep pressure on
folding carton selling prices during 1998.
Recycled fiber is an important raw material of the Company's recycled
paperboard mills. Supplies of recycled fiber can vary widely at times and are
highly dependent upon the demand of recycled paper mills. Because of the lower
demand created by the extensive economic downtime taken by containerboard mills
in recent years and particularly in 1998, the price of old corrugated containers
("OCC") declined in 1998 to its lowest levels in five years.
13
<PAGE>
<PAGE>
RESULTS OF OPERATIONS
SEGMENT DATA
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997 1996
------------------- ------------------- ------------------
Net Profit/ Net Profit/ Net Profit/
(In millions) sales (loss) sales (loss) sales (loss)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Containerboard & corrugated containers .. $2,014 $ 123 $1,607 $ 56 $1,794 $ 197
Boxboard and folding cartons ............ 785 67 752 68 756 66
Other operations ........................ 670 39 577 39 537 36
-----------------------------------------------------------------
Total operations ........................ $3,469 229 $2,936 163 $3,087 299
====== ====== ======
Other, net(1) ........................... (536) (186) (168)
Income (loss) from continuing operations ----- ----- -----
before income taxes, minority interest,
extraordinary item and cumulative
effect of accounting change ............. $(307) $ (23) $ 131
===============================================================================================================
</TABLE>
(1) Other, net includes corporate revenues and expenses, net interest expense
and, for 1998, a restructuring charge in connection with the Merger, which
covers the cost of shutting down certain mills and termination of employees
and other Merger-related costs.
1998 COMPARED TO 1997
As previously discussed, a wholly-owned subsidiary of the Company merged
with Stone on November 18, 1998. SSCC's results for 1998 include Stone after
November 18, 1998. SSCC's net sales of $3,469 million and operating profits of
$229 million were higher than 1997 by 18% and 40%, respectively, due primarily
to the Merger and higher sales prices for containerboard and corrugated
containers. The increase or decrease in net sales for each of the Company's
segments is shown in the chart below.
<TABLE>
<CAPTION>
1998 Compared to 1997
----------------------------------------------------
Containerboard Boxboard
& Corrugated & Folding Other
(In millions) Containers Cartons Operations Total
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Increase (decrease) due to:
Sales prices and product mix .... $ 146 $ (13) $ (48) $ 85
Sales volume .................... (63) 45 22 4
Stone merger .................... 318 1 128 447
Acquisitions and new facilities.. 9 9
Sold or closed facilities ....... (3) (9) (12)
------------------------------------------------
Total increase .................... $ 407 $ 33 $ 93 $ 533
===========================================================================================
</TABLE>
CONTAINERBOARD AND CORRUGATED CONTAINERS SEGMENT
Net sales of the Containerboard and Corrugated Containers segment increased
25% compared to 1997 to $2,014 million and segment profits increased $67 million
over 1997 to $123 million. The increase in net sales was due primarily to the
Merger and improved sales prices. The profit increase was due primarily to the
improvements in sales price. Net sales and profits for the Stone operations
included in this segment for the period after November 18, 1998 were $318
million and $10 million, respectively.
Containerboard and corrugated container prices were higher in 1998 by 16%
and 11%, respectively, compared to 1997. SBS prices declined 2% during the
period. Containerboard sales volume for the Company's mills in 1998 declined 2%
compared to 1997 due to the closure of three containerboard mills, effective
14
<PAGE>
<PAGE>
December 1, 1998 (See "Restructuring, Merger Related Costs and Litigation
Costs") and higher levels of economic downtime. The cost of the mill closures is
included in other, net in the Segment Data table. The Company also had 28 days
of downtime in 1997 at its Brewton, AL mill associated with a rebuild and
upgrade of its mottled white paper machine. Sales volume for the Company's
corrugated container facilities declined 5% compared to 1997 due to the
Company's strategy to reduce volume associated with low-margin accounts. Cost of
goods sold as a percent of net sales decreased from 88% in 1997 to 86% in 1998
due primarily to the higher sales prices in 1998.
BOXBOARD AND FOLDING CARTONS SEGMENT
Net sales of the Boxboard and Folding Cartons segment increased 4% compared
to 1997 to $785 million and segment profits declined $1 million compared to 1997
to $67 million. The increase in net sales was due primarily to increased sales
volume of folding cartons. Folding carton sales volume increased 10% compared to
1997, reflecting growth in new business acquired near the end of 1997. Sales
volume for the boxboard mills declined 1% compared to 1997. Boxboard prices were
higher in 1998 on average, increasing 3% compared to 1997. Folding carton prices
declined 3%, reflecting the change in product mix related to the new business
acquired. Cost of goods sold as a percent of net sales for 1998 was comparable
to 1997.
DISCONTINUED OPERATIONS
During February 1999, the Company announced its intention to divest the
operating assets of SNC. The SNC results are reflected as discontinued
operations for all periods presented in the Company's statements of operations.
Net sales for discontinued operations amounted to $324 million, $302 million,
and $323 million for 1998, 1997 and 1996 respectively.
RESTRUCTURING, MERGER RELATED COSTS AND LITIGATION COSTS
During the fourth quarter of 1998, the Company recorded pre-tax charges of
$310 million ($187 million after tax), including $257 million for restructuring
costs in connection with the Merger, $23 million of other Merger related costs
and $30 million for settlement of certain litigation.
The restructuring included the shutdown of approximately 1.1 million tons,
or 15%, of the Company's North American containerboard mill capacity and
approximately 400,000 tons of the Company's market pulp capacity. The
restructuring charge of $257 million included provisions for costs for JSC
(U.S.) associated with (i) adjustment of property, plant and equipment of closed
facilities to fair value less costs to sell of $179 million, (ii) facility
closure costs of $42 million, (iii) severance related costs of $27 million, and
(iv) other Merger related costs of $9 million. The cash and non-cash elements of
the restructuring charge are $78 million and $179 million, respectively.
The restructuring included the closure of a Stone containerboard mill and
other pulp mill facilities, as well as the termination costs for certain Stone
employees. The adjustment to fair value of property, plant and equipment
associated with the permanent shutdown of Stone's facilities, liabilities for
the termination of certain Stone employees and the liabilities for long-term
commitments were included in the preliminary allocation of the cost to acquire
Stone.
The Company closed the mill facilities on December 1 and, as of December
31, 1998, the Company had terminated approximately 1,500 employees. The Company
intends to either abandon or sell these facilities in the near future. Future
cash outlays for the restructuring are anticipated to be $80 million in 1999,
$21 million in 2000, $19 million in 2001 and $57 million thereafter. The Company
is continuing to evaluate all areas of its business in connection with the
Merger integration, including the identification of corrugated container
facilities that might be closed. Additional restructuring charges are expected
in 1999 as management finalizes its plans.
Merger synergies of at least $350 million per year are targeted by the end
of 2000. The most significant portion, more than $180 million, is projected to
come from optimizing the combined manufacturing systems of JSC (U.S.) and Stone.
Synergies in 1999, less costs to implement these savings, are expected to exceed
$200 million.
During January 1999, SSCC and SNC entered into a Settlement Agreement to
implement a nationwide class action settlement of claims involving Cladwood'r',
a composite wood siding product manufactured by SNC that has been used primarily
in
15
<PAGE>
<PAGE>
the construction of manufactured or mobile homes. The Company recorded a $30
million pre-tax charge in its results from discontinued operations for amounts
SNC has agreed to pay into a settlement fund, administrative costs, plaintiffs'
attorneys' fees, class representative payments and other costs. The Company
believes its reserve is adequate to pay eligible claims. However, the number of
claims, and the number of potential claimants who choose not to participate in
the settlement, could cause the Company to re-evaluate whether the liabilities
in connection with the Cladwood'r' cases could exceed established reserves. See
Item 3. Legal Proceedings.
INTEREST
Interest expense for 1998 was $247 million, an increase of $51 million
compared to 1997. The increase was due to higher levels of debt as a result of
the Merger.
INCOME TAXES
For information concerning the benefit from (provision for) income taxes as
well as information regarding differences between effective tax rates and
statutory rates, see Note 7 of the Notes to Consolidated Financial Statements.
- --------------------------------------------------------------------------------
1997 COMPARED TO 1996
Net sales of $2,936 million and profits of $163 million for the Company's
operations were lower than 1996 by 5% and 45%, respectively due primarily to
lower sales prices. Other net costs shown in the Segment Data table above
include corporate revenues and expenses and net interest expense. The increase
or decrease in net sales for each of the Company's segments is shown in the
chart below.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1997 Compared to 1996
-----------------------------------------------------
Containerboard Boxboard
& Corrugated & Folding Other
(In millions) Containers Cartons Operations Total
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Increase (decrease) due to:
Sales prices and product mix ..... $(220) $ (38) $ 25 $(233)
Sales volume ..................... 15 34 35 84
Acquisitions and new facilities... 22 6 28
Sold or closed facilities ........ (4) (26) (30)
--------------------------------------------------
Total increase (decrease) .......... $(187) $ (4) $ 40 $(151)
==========================================================================================
</TABLE>
CONTAINERBOARD AND CORRUGATED CONTAINERS SEGMENT
Net sales of the Containerboard and Corrugated Containers segment decreased
10% compared to 1996 to $1,607 million and segment profit decreased $141 million
compared to 1996 to $56 million. The decrease in net sales and profits were
primarily a result of significant reductions in sales prices for containerboard
and corrugated containers. An increase in sales volume slightly offset the
decline due to price. On average, corrugated container prices and containerboard
prices each decreased 13% compared to 1996. SBS prices decreased 2% compared to
1996. Demand for corrugated containers was strong throughout 1997 and shipments
of corrugated containers increased 6% compared to 1996. As market conditions
improved, the Company successfully implemented two price increases in 1997 for
linerboard, the first in August for $40 per ton and the second in October for
$50 per ton. Containerboard sales volume in 1997 decreased 2% compared to 1996
due to economic downtime taken to reduce inventories in 1997 and a shutdown at
the Company's Brewton, AL mill associated with a rebuild and upgrade of its
mottled while paper machine. Shipments of SBS increased 2% compared to 1996.
Cost of goods sold as a percent of net sales increased from 81% in 1996 to 88%
in 1997 due primarily to the lower sales prices in 1998.
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BOXBOARD AND FOLDING CARTONS SEGMENT
Net sales of the Boxboard and Folding Cartons segment decreased 1% compared
to 1996 to $752 million, and segment profit increased $2 million when compared
to 1996 to $68 million. The decrease in net sales was primarily a result of
lower average sales prices largely offset by an increase in volume. Sales prices
for boxboard and folding cartons each decreased 5% compared to 1996. Demand
strengthened in the second half of 1997, enabling the Company to implement a $40
per ton price increase in the fourth quarter of 1997. Demand for folding cartons
and boxboard remained steady throughout 1997. Shipments of folding cartons and
boxboard increased 3% and 6%, respectively, compared to 1996. Cost of goods sold
as a percent of net sales decreased from 84% in 1996 to 83% in 1997 due
primarily to product mix.
INTEREST
Interest expense of $196 million for 1997 was $2 million lower than for
1996. The decline was due primarily to lower average debt levels outstanding and
lower effective interest rates.
INCOME TAXES
For information concerning the benefit from (provision for) income taxes as
well as information regarding differences between effective tax rates and
statutory rates, see Note 7 of the Notes to Consolidated Financial Statements.
LIQUIDITY AND CAPITAL RESOURCES
GENERAL
Operating activities have historically been the major source of cash to
fund the Company's capital expenditures and debt payments. Net cash provided by
operating activities for 1998 of $129 million, cash acquired with the
acquisition of Stone of $222 million and borrowings under the Company's bank
credit facilities of $1,502 million were used primarily to fund capital
investments totaling $287 million, net debt payments of $1,384 million and $44
million of deferred debt issuance costs. Capital investments of $287 million
include the purchase of a containerboard machine located at the Company's mill
in Fernandina Beach, FL for $175 million from a subsidiary of Jefferson Smurfit
Group plc (the "Fernandina No. 2 Machine").
The Company completed the Merger on November 18, 1998. A total of 104
million shares of SSCC common stock were issued in the Merger, resulting in an
aggregate purchase price (including the fair value of stock options and related
fees) of approximately $2,245 million. The Merger was accounted for as a
purchase business combination and, accordingly, Stone has been included in the
consolidated statements of the Company after November 18, 1998. See Note 2 of
the Notes to Consolidated Financial Statements.
FINANCING ACTIVITIES
In March 1998, JSC (U.S.) entered into a new credit facility (the "JSC
(U.S.) Credit Agreement") consisting of a $550 million revolving credit
facility, a $400 million seven-year Tranche A Term Loan, and a $350 million
eight-year Tranche B Term Loan. Net proceeds from the JSC (U.S.) Credit
Agreement were used to fully repay outstanding principal and accrued interest
under the Company's previous credit facility. The JSC (U.S.) Credit Agreement
reduced interest expense, extended debt maturities, and improved the financial
flexibility of the Company. JSC (U.S.) recorded an extraordinary loss of $13
million (net of income tax benefits of $9 million) related to the early
extinguishment of the Company's bank debt.
In November 1998, in connection with the Merger, the Company and its bank
group amended and restated the JSC (U.S.) Credit Agreement to, among other
things (i) allow an additional $550 million borrowing on the Tranche B Term
Loan, (ii) allow the purchase of the Fernandina No. 2 Machine, (iii) make a $300
million inter-company loan to the Company, which was contributed to Stone as
additional paid-in capital, (iv) permit the Merger, and (v) ease certain
financial covenants.
Also in connection with the Merger, Stone amended and restated the Stone
Credit Agreement (the "Stone Credit Agreement") to (i) extend the maturity date
on the Stone Tranche B $190 million Term Loan from October 1, 1999 to April 1,
2000, (ii) extend the maturity date of the revolving credit facility from May
15, 1999 to April 1, 2000 or, in the event the Tranche B Term Loan is repaid on
or before April 1, 2000, December 31, 2000,
17
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(iii) permit the use of the net proceeds from the sale of the newsprint and
related assets at the Stone Snowflake, AZ facility to repay a portion of Stone's
11.875% Senior Notes due December 1, 1998, (iv) permit the Merger; and (v) ease
certain financial covenants.
The JSC (U.S.) Credit Agreement and the Stone Credit Agreement
(collectively, the "Credit Agreements") contain various business and financial
covenants including, among other things, (i) limitations on dividends,
redemptions and repurchases of capital stock, (ii) limitations on the incurrence
of indebtedness, (iii) limitations on capital expenditures and (iv) maintenance
of certain financial covenants. The Credit Agreements also require prepayments
if JSC (U.S.) or Stone have excess cash flows, as defined, or receive proceeds
from certain asset sales, insurance, issuance of equity securities or incurrence
of certain indebtedness. The obligations under the JSC (U.S.) Credit Agreement
are unconditionally guaranteed by the Company and certain of its subsidiaries.
The obligations under the Credit Agreements are secured by a security interest
in substantially all of the assets of JSC (U.S.) and Stone, respectively. Such
restrictions, together with the highly leveraged position of the Company, could
restrict corporate activities, including the Company's ability to respond to
market conditions, to provide for unanticipated capital expenditures or to take
advantage of business opportunities.
On January 22, 1999, Stone obtained a waiver from its bank group for
non-compliance with certain financial covenant requirements under the Stone
Credit Agreement as of December 31, 1998. Subsequently, on March 23, 1999, Stone
and its bank group amended the Stone Credit Agreement to further modify certain
quarterly financial covenant requirements for 1999.
As mentioned above, the declaration of dividends by the Board of Directors
is subject to, among other things, certain restrictive provisions contained in
the Credit Agreements and certain note indentures. At December 31, 1998, Stone
had accumulated dividend arrearages of $14 million related to its preferred
stock.
Stone's senior notes, aggregating $1,723 million (the "Stone Senior Notes")
are redeemable in whole or in part at the option of Stone at various dates
beginning in February 1999, at par plus a weighted average premium of 2.68%. The
Stone senior subordinated debentures (the "Stone Senior Subordinated
Debentures"), aggregating $627 million, are redeemable as of December 31, 1998,
in whole or in part, at the option of Stone at par plus a weighted average
premium of 2.56%. The indentures governing the Stone Senior Notes and the Stone
Senior Subordinated Debentures (the "Stone Indentures") generally provide that
in the event of a change in control (as defined), Stone must, subject to certain
exemptions, offer to repurchase the Stone Senior Notes and the Stone Senior
Subordinated Debentures at a price equal to 101% of the principal amount
thereof. The Merger constituted such a change in control. Stone's obligation to
offer to repurchase the Stone Senior Subordinated Debentures is subject to the
condition precedent that Stone has first either repaid its outstanding bank debt
or obtained the consent of its bank lenders to make such repurchase. In the case
of the Stone Senior Notes, Stone is required to make an offer to repurchase
unless such a repurchase would constitute an event of default under Stone's
outstanding bank debt and Stone has neither repaid its bank debt nor obtained
the consent of its bank lenders to such repurchase. A repurchase of the Stone
Senior Notes or the Stone Senior Subordinated Debentures is prohibited by the
terms of the Stone Credit Agreement. Although the terms of the Stone Senior
Notes refer to an obligation to repay the bank debt or obtain the consent of the
bank lenders to such repurchase, the terms do not specify a deadline, if any,
following the Merger for repayment of bank debt or obtaining such consent. The
Company intends to actively seek commercially acceptable sources of financing to
repay the Stone Credit Agreement or alternative financing arrangements which
would cause the bank lenders to consent to the repurchase of the Stone Senior
Notes or the Stone Senior Subordinated Debentures. There can be no assurance
that the Company will be successful in obtaining such financing or consents or
as to the terms of any such financing or consents.
Based upon covenants in the Stone Indentures, Stone is required to maintain
certain levels of equity. If the minimum equity levels are not maintained for
two consecutive quarters, the applicable interest rates on the Indentures are
increased by 50 basis points per semiannual interest period (up to a maximum of
200 basis points) until the minimum equity
18
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<PAGE>
level is attained. Stone's equity level was below the minimum equity level
during most of 1998. As a result, the interest rates increased; however, the
additional interest charges for the period after the Merger were nominal. The
interest rates on the Indentures will return to the original interest rates on
April 1, 1999 due to Stone's minimum equity levels exceeding the minimum on
December 31, 1998.
On December 1, 1998, Stone repaid its $240 million 11.875% Senior Unsecured
Notes with borrowings under the Stone Credit Agreement and proceeds from the
sale of the Snowflake Mill. Stone sold the Snowflake Mill to Abitibi in October
1998, prior to the Merger.
The Company intends to sell or liquidate certain of its assets, including
its woodlands operations, its remaining newsprint operations, its interest in
Abitibi and other non-core businesses. On January 21, 1999, the Company sold 7.8
million shares of Abitibi to a third party for approximately $80 million. The
Company intends to sell its remaining interest in Abitibi later in 1999 subject
to market conditions. Proceeds from asset sales are required to be used to pay
down borrowings under the Credit Agreements.
It is expected that the Company will continue to incur operating losses
unless prices for the Company's products substantially improve. The Company
expects that internally generated cash flows, proceeds from asset divestitures
and existing financing resources will be sufficient for the next several years
to meet its obligations, including debt service, restructuring payments,
settlement of the Cladwood'r' litigation and capital expenditures. Scheduled
debt payments in 1999 and 2000 are $204 million and $844 million, respectively,
with increasing amounts thereafter. Capital expenditures for 1999 are expected
to be approximately $225 million. The Company expects to use any excess cash
provided by operations to make further debt reductions. As of December 31, 1998,
JSC (U.S.) had $422 million of unused borrowing capacity under its credit
agreement and Stone had $363 million of unused borrowing capacity under its
credit agreement.
YEAR 2000
The Year 2000 problem concerns the inability of computer systems and
devices to properly recognize and process date-sensitive information when the
year changes to 2000. The Company depends upon its information technology ("IT")
and non-IT systems (used to run manufacturing equipment that contain embedded
hardware or software that must handle dates) to conduct and manage the Company's
business. The Company believes that, by replacing, repairing or upgrading the
systems, the Year 2000 issue can be resolved without material operational
difficulties. While it is difficult, at present, to fully quantify the overall
cost of this work, the Company expects to spend approximately $68 million
through 1999 to correct the Year 2000 problem, of which approximately $22
million has been incurred through December 31, 1998. A large portion of these
costs relate to enhancements that will enable the Company to reduce or avoid
costs and operate many of its production facilities more efficiently. Some of
these projects have been accelerated in order to replace existing systems that
cannot be brought into compliance by the year 2000. The Company is utilizing
both internal and external resources to evaluate the potential impact of the
Year 2000 problem. The Company plans to fund its Year 2000 effort with cash from
operations and borrowings under the Credit Agreements.
The Company's Year 2000 Program Management Office is responsible for
guiding and coordinating operating units in developing and executing their Year
2000 plans, enabling the Company to share knowledge and work across operating
units, developing standard planning and formats for internal and external
reporting, consistent customer and vendor communications and where appropriate,
the development of contingency plans. The Company's Year 2000 program consists
of the following seven phases:
Phase 1: Planning/Awareness: The planning and awareness phase includes the
identification of critical business processes and components.
Phase 2: Inventory: During the inventory phase, Company personnel will
identify systems that could potentially have a Year 2000 problem and
categorize the system as compliant, non-compliant, obsolete or
unknown.
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Phase 3: Triage: In the triage phase, every system is assigned a business
risk as high, medium, or low.
Phase 4: Detailed Assessment: The detailed assessment provides for a
planned schedule of remediation and estimated cost.
Phase 5: Remediation: Remediation involves what corrective action to take
if there is a Year 2000 problem, such as replacing, repairing or
upgrading the system, and concludes with the execution of system test.
Phase 6: Fallout: In the Fallout phase, the inventory will be kept up to
date and no new Year 2000 problems will be introduced.
Phase 7: Contingency Planning: The Company is developing contingency plans
for the most reasonable worst case scenarios.
The Company has completed the planning, inventory, triage, and detailed
assessment of its IT systems and is taking corrective action and testing the
new, upgraded or repaired systems. The Company identified nine high-risk IT
systems, of which two have been remediated and the remaining seven are scheduled
to be substantially completed by the end of the second quarter of 1999.
The Company's operating facilities rely on control systems, which control
and monitor production, power, emissions and safety. The inventory, triage and
detailed assessment phases for all operating facilities are expected to be
substantially completed by the first quarter of 1999. The Company retained a
third party to assist with the verification and validation of these three
phases. The Company expects to have substantially completed all phases of its
Year 2000 program by the end of the second quarter of 1999.
The Year 2000 Project Management Office is in the process of surveying each
vendor to insure that they are Year 2000 compliant or have a plan in place.
Vendor responses are due to be received by the end of the first quarter of 1999.
The Company also has compiled a list of mission critical vendors. A mission
critical vendor is a provider of goods or services without which a facility
could not function. Where appropriate, Company representatives will conduct an
in-depth investigation of a mission critical vendor's ability to be Year 2000
compliant.
The Company currently believes that it will be able to replace, repair or
upgrade all of its IT and non-IT systems affected by the Year 2000 problem on a
timely basis. In the event the Company does not complete its plan to bring
systems into compliance before the year 2000, there could be severe disruption
in the operation of its process control and other manufacturing systems,
financial systems and administrative systems. Production problems and delayed
product deliveries could result in a loss of customers. The production impact of
a Year 2000 related failure varies significantly among the facilities and any
such failure could cause manufacturing delays, possible environmental
contamination or safety hazards. The most reasonably likely worst case scenario
is the occurrence of a Year 2000 related failure on one or more of the Company's
paper machines. The Company has the capability to produce and ship products from
multiple geographic locations should disruptions occur. Delays in invoicing
customer shipments could cause a slowdown in cash receipts, which could affect
the Company's ability to meet its financial obligations. To the extent customers
experience Year 2000 problems that are not remediated on a timely basis, the
Company may experience material fluctuations in the demand for its products. The
amount of any potential liability and/or lost revenue cannot be reasonably
estimated at this time; however, such amounts could be material.
While the Company currently expects no material adverse consequences on its
financial condition or results of operations due to Year 2000 issues, the
Company's beliefs and expectations are based on certain assumptions that
ultimately may prove to be inaccurate. Each of the Company's operating
facilities is developing a specific contingency plan for their most reasonably
likely worst case scenarios. These plans are expected to be complete for both IT
systems and non-IT systems by the end of the second quarter of 1999. The Company
will also seek to take appropriate actions to mitigate the effects of the
Company's or significant vendors' failure to remediate the Year 2000 problem in
a timely manner, including increasing the inventory of critical raw materials
and supplies, increasing finished goods inventories, switching to alternative
energy sources, and making arrangements for alternate vendors.
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There is a risk that the Company's plans for achieving Year 2000 compliance
may not be completed on time. However, failure to meet critical milestones being
identified in the Company's plans would provide advance notice, and steps would
be taken to prevent injuries to employees and others, and to prevent
environmental contamination. Customers and suppliers would also receive advance
notice allowing them to implement alternate plans.
ENVIRONMENTAL MATTERS
The Company's operations are subject to extensive environmental regulation
by federal, state and local authorities in the United States and regulatory
authorities with jurisdiction over its foreign operations. The Company has made,
and expects to continue to make, significant capital expenditures to comply with
water, air and solid and hazardous waste regulations. Capital expenditures for
environmental control equipment and facilities were approximately $48 million in
1997 and approximately $18 million in 1998. The Company anticipates that
environmental capital expenditures will approximate $132 million in 1999. The
majority of the 1999 expenditures relate to amounts that the Company currently
anticipates will be required to comply with the Cluster Rule. Although capital
expenditures for environmental control equipment and facilities and compliance
costs in future years will depend on legislative and technological developments
which cannot be predicted at this time, such costs could increase as
environmental regulations become more stringent. Environmental control
expenditures include projects which, in addition to meeting environmental
concerns, may yield certain benefits to the Company in the form of increased
capacity and production cost savings. In addition to capital expenditures for
environmental control equipment and facilities, other expenditures incurred to
maintain environmental regulatory compliance (including any remediation)
represent ongoing costs to the Company.
In November 1997, the EPA issued the Cluster Rule, which made existing
requirements for discharge of wastewaters under the Clean Water Act more
stringent and imposed new requirements on air emissions under the Clean Air Act
for the pulp and paper industry. Though the final rule is still not fully
promulgated, the Company currently believes it will be required to make capital
expenditures of up to $310 million from 1999 through 2002 in order to meet the
requirements of the new regulations. Also, additional operating expenses will be
incurred as capital installations required by the Cluster Rule are put into
service.
In addition, the Company is from time to time subject to litigation and
governmental proceedings regarding environmental matters in which injunctive
and/or monetary relief is sought. The Company has been named as a PRP at a
number of sites which are the subject of remedial activity under CERCLA or
comparable state laws. Although the Company is subject to joint and several
liability imposed under CERCLA, at most of the multi-PRP sites there are
organized groups of PRPs and costs are being shared among PRPs. Payments related
to clean-up at existing and former operating sites and CERCLA sites were not
material to the Company's liquidity during 1998. Future environmental
regulations may have an unpredictable adverse effect on the Company's operations
and earnings, but they are not expected to adversely affect the Company's
competitive position.
EFFECTS OF INFLATION
Although inflation has slowed in recent years, it is still a factor in the
economy and the Company continues to seek ways to mitigate its impact to the
extent permitted by competition. Inflationary increases in operating costs have
been moderate since 1996, and have not had a material impact on the Company's
financial position or operating results during the past three years. The Company
uses the last-in, first-out method of accounting for approximately 82% of its
inventories. Under this method, the cost of products sold reported in the
financial statements approximates current costs and thus provides a closer
matching of revenue and expenses in periods of increasing costs. With the
exception of Stone's property, plant and equipment, depreciation charges
represent the allocation of historical costs incurred over past years and are
significantly less than if they were based on the current cost of productive
capacity being consumed.
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PROSPECTIVE ACCOUNTING STANDARDS
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, "Accounting for Computer Software
Developed or Obtained for Internal Use," which requires that certain costs
incurred in connection with developing or obtaining software for internal-use
must be capitalized. Cost for such work performed internally by Company
employees is currently expensed as incurred. SOP 98-1 is effective beginning on
January 1, 1999. The Company does not expect that the adoption of SOP 98-1 will
have a material impact on its future earnings or financial position.
In 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Investments and Hedging Activities." SFAS No. 133 requires that all derivative
instruments be recorded on the balance sheet at fair value. The Company has not
assessed what the impact of SFAS No. 133 will be on the Company's future
earnings or financial position.
- --------------------------------------------------------------------------------
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- --------------------------------------------------------------------------------
FOREIGN CURRENCY RISK
As a result of the Merger with Stone, which has significant operations
outside of the United States, the Company is exposed to foreign currency rate
risk. In general, a weakening of these currencies relative to the U.S. dollar
has a negative translation effect. Conversely, a strengthening of these
currencies would have the opposite effect.
Assets and liabilities outside the United States are primarily located in
Canada and Germany. The Company's investments in foreign subsidiaries with a
functional currency other than the U.S. dollar are not hedged. The net assets in
foreign subsidiaries translated into U.S. dollars using the year-end exchange
rates were approximately $1,070 million at December 31, 1998. The potential loss
in fair value resulting from a hypothetical 10% adverse change in foreign
currency exchange rates would be approximately $107 million at December 31,1998.
Any loss in fair value would be reflected as a cumulative translation adjustment
in Accumulated Other Comprehensive Income and would not impact net income of the
Company.
The Company is exposed to foreign currency transaction gains and losses on
the translation of a 90 million German Mark obligation at December 31, 1998.
During 1998, the transaction gains and losses on this obligation were immaterial
to the Company.
INTEREST RATE RISK
The Company's earnings and cash flows are significantly affected by the
amount of interest on its indebtedness. The Company's financing arrangements
include both fixed and variable rate debt in which changes in interest rates
will impact the fixed and variable debt differently. A change in the interest
rate of fixed rate debt will impact the fair value of the debt whereas a change
in the interest rate on the variable rate debt will impact interest expense and
cash flows. Management's objective is to protect the Company from interest rate
volatility and reduce or cap interest expense within acceptable levels of market
risk. The Company periodically enters into interest rate swaps, caps or options
to hedge interest rate exposure and manage risk within Company policy. The
Company does not utilize derivatives for speculative or trading purposes. Any
derivative would be specific to the debt instrument, contract or transaction,
which would determine the specifics of the hedge. The amount of interest rate
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swaps entered into by the Company were not material to the consolidated
financial position of the Company at December 31, 1998.
The table below presents principal amounts by year of anticipated maturity
for the Company's debt obligations and related average interest rates based on
the weighted average interest rates at the end of the period. Variable interest
rates disclosed do not attempt to project future interest rates. This
information should be read in conjunction with Note 5 to the Company's Notes to
Consolidated Financial Statements.
SHORT AND LONG-TERM DEBT
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
Outstanding as of December 31, 1998
- ----------------------------------------------------------------------------------------------------------------------
There- Fair
(in US$ millions) 1999 2000 2001 2002 2003 after Total Value
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
U.S. bank term loans and
revolver -- 8.9% average
interest rate (variable) ........ $ 43 $ 593 $ 66 $ 66 $ 659 $1,114 $2,541 $2,531
U.S. accounts receivable
securitization -- 5.7% average
interest rate (variable) ........ 210 209 419 419
U.S. senior and senior subordinated
notes -- 10.8% average interest
rate (fixed) .................... 130 9 578 1,081 504 948 3,250 3,317
U.S. industrial revenue
bonds -- 7.9% average
interest rate (fixed) ........... 2 6 13 13 18 218 270 270
Other-- U.S. ...................... 11 9 11 9 5 8 53 53
German mark bank
term loans -- 5.9% average
interest rate (variable) ........ 14 12 15 15 10 13 79 79
Other-- Foreign ................... 5 4 3 2 2 5 21 21
------------------------------------------------------------------------------
Total debt ........................ $ 205 $ 843 $ 686 $1,395 $1,198 $2,306 $6,633 $6,690
=====================================================================================================================
</TABLE>
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- --------------------------------------------------------------------------------
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Index to Financial Statements: Page No.
<S> <C>
Management's Responsibility for Financial Statements ................... 24
Report of Independent Auditors ......................................... 25
Consolidated balance sheets -- December 31, 1998 and 1997 .............. 26
For the years ended December 31, 1998, 1997 and 1996:
Consolidated statements of operations ................................ 27
Consolidated statements of stockholders' equity (deficit) ............ 28
Consolidated statements of cash flows ................................ 29
Notes to consolidated financial statements ............................. 30
The following consolidated financial statement schedule of Smurfit-Stone
Container Corporation is included in Item 14(a):
II: Valuation and Qualifying Accounts and Reserves ................... 51
</TABLE>
All other schedules specified under Regulation S-X for Smurfit-Stone Container
Corporation have been omitted because they are not applicable, because they are
not required or because the information required is included in the financial
statements or notes thereto.
MANAGEMENT'S RESPONSIBILITY FOR FINANCIAL STATEMENTS
The management of the Company is responsible for the information contained
in the consolidated financial statements and in other parts of this report. The
consolidated financial statements have been prepared by the Company in
accordance with generally accepted accounting principles appropriate in the
circumstances, and necessarily include certain amounts based on management's
best estimate and judgment.
The Company maintains a system of internal accounting control, which it
believes is sufficient to provide reasonable assurance that in all material
respects transactions are properly authorized and recorded, financial reporting
responsibilities are met and accountability for assets is maintained. In
establishing and maintaining any system of internal control, judgment is
required to assess and balance the relative costs and expected benefits.
Management believes that through the careful selection of employees, the
division of responsibilities and the application of formal policies and
procedures, the Company has an effective and responsive system of internal
accounting controls. The system is monitored by the Company's staff of internal
auditors, who evaluate and report to management on the effectiveness of the
system.
The Audit Committee of the Board of Directors is composed of four directors
who meet with the independent auditors, internal auditors and management to
discuss specific accounting, reporting and internal control matters. Both the
independent auditors and internal auditors have full and free access to the
Audit Committee.
<TABLE>
<S> <C>
Roger W. Stone Paul K. Kaufmann
Roger W. Stone Paul K. Kaufmann
President and Chief Executive Officer Vice President and Corporate Controller
(Principal Accounting Officer)
</TABLE>
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REPORT OF INDEPENDENT AUDITORS
Board of Directors
Smurfit-Stone Container Corporation
We have audited the accompanying consolidated balance sheets of
Smurfit-Stone Container Corporation as of December 31, 1998 and 1997, and the
related consolidated statements of operations, stockholders' equity (deficit)
and cash flows for each of the three years in the period ended December 31,
1998. Our audits also included the financial statement schedule listed in the
Index at Item 14(a). These financial statements and schedule are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements and schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Smurfit-Stone
Container Corporation at December 31, 1998 and 1997, and the consolidated
results of its operations and its cash flows for each of the three years in the
period ended December 31, 1998 in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
As discussed in Note 1 to the financial statements, in 1998 the Company
changed its method of accounting for start-up costs.
ERNST & YOUNG LLP
ERNST & YOUNG LLP
St. Louis, MO
February 11, 1999
except for Notes 5 and 15, as to which the date is March 23, 1999
25
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SMURFIT-STONE CONTAINER CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
December 31, (In millions, except share data) 1998 1997
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Assets
Current assets
Cash and cash equivalents .......................................... $ 155 $ 12
Receivables, less allowances of $85 in 1998 and $10 in 1997 ........ 743 302
Inventories
Work-in-process and finished goods ............................... 238 89
Materials and supplies ........................................... 546 151
--------------------
784 240
Refundable income taxes ............................................ 24 6
Deferred income taxes .............................................. 160 32
Prepaid expenses and other current assets .......................... 118 10
--------------------
Total current assets ........................................... 1,984 602
Net property, plant and equipment .................................... 5,496 1,523
Timberland, less timber depletion .................................... 276 265
Goodwill, less accumulated amortization of $73 in 1998 and $58 in 1997 2,869 237
Investment in equity of non-consolidated affiliates .................. 638 10
Other assets ......................................................... 368 134
--------------------
$11,631 $ 2,771
==============================================================================================
Liabilities and Stockholders' Equity (Deficit)
Current liabilities
Current maturities of long-term debt ............................... $ 205 $ 15
Accounts payable ................................................... 533 334
Accrued compensation and payroll taxes ............................. 174 88
Interest payable ................................................... 126 25
Other current liabilities .......................................... 311 69
--------------------
Total current liabilities ...................................... 1,349 531
Long-term debt, less current maturities .............................. 6,428 2,025
Other long-term liabilities .......................................... 1,026 225
Deferred income taxes ................................................ 1,113 362
Minority interest .................................................... 81 2
Stockholders' equity (deficit)
Preferred stock, par value $.01 per share; 25,000,000
shares authorized; none issued and outstanding
Common stock, par value $.01 per share; 400,000,000
shares authorized, 214,959,041 and 110,996,794
issued and outstanding in 1998 and 1997, respectively ............ 2 1
Additional paid-in capital ......................................... 3,376 1,168
Retained earnings (deficit) ........................................ (1,743) (1,543)
Accumulated other comprehensive income (loss) ...................... (1)
--------------------
Total stockholders' equity (deficit) ........................... 1,634 (374)
--------------------
$11,631 $2,771
==============================================================================================
</TABLE>
See notes to consolidated financial statements.
26
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Year Ended December 31, (In millions, except share data) 1998 1997 1996
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net sales ..................................................... $ 3,469 $ 2,936 $ 3,087
Costs and expenses
Cost of goods sold .......................................... 2,934 2,514 2,500
Selling and administrative expenses ......................... 342 247 255
Restructuring charge ........................................ 257
---------------------------------
Income (loss) from operations ............................. (64) 175 332
Other income (expense)
Interest expense, net ....................................... (247) (196) (198)
Other, net .................................................. 4 (2) (3)
---------------------------------
Income (loss) from continuing operations before
income taxes, minority interest, extraordinary
item and cumulative effect of accounting change ......... (307) (23) 131
Benefit from (provision for) income taxes ..................... 114 3 (52)
Minority interest expense ..................................... (1)
---------------------------------
Income (loss) from continuing operations before
extraordinary item and cumulative effect of
accounting change ........................................ (194) (20) 79
Discontinued operations
Income from discontinued operations, net of income taxes
of $6 in 1998, $14 in 1997 and $25 in 1996 ............... 10 21 38
---------------------------------
Income (loss) before extraordinary item and cumulative
effect of accounting change ............................... (184) 1 117
Extraordinary item
Loss from early extinguishment of debt, net of income tax
benefit of $9 in 1998 and $3 in 1996 ...................... (13) (5)
Cumulative effect of accounting change
Start-up costs, net of income tax benefit of $2 ............. (3)
---------------------------------
Net income (loss) ........................................... $ (200) $ 1 $ 112
=================================
Basic earnings per common share
Income (loss) from continuing operations before extraordinary
item and accounting change ................................ $ (1.56) $ (.18) $ .71
Discontinued operations ..................................... .08 .19 .34
Extraordinary item .......................................... (.11) (.04)
Cumulative effect of accounting change ...................... (.02)
---------------------------------
Net income (loss) ......................................... $ (1.61) $ .01 $ 1.01
=================================
Weighted average shares outstanding ........................... 124 111 111
=================================
Diluted earnings per common share
Income (loss) from continuing operations before extraordinary
item and accounting change ................................ $ (1.56) $ (.18) $ .70
Discontinued operations ..................................... .08 .19 .34
Extraordinary item .......................................... (.11) (.04)
Cumulative effect of accounting change ...................... (.02)
---------------------------------
Net income (loss) ......................................... $ (1.61) $ .01 $ 1.00
=================================
Weighted average shares outstanding ........................... 124 111 112
====================================================================================================
</TABLE>
See notes to consolidated financial statements.
27
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
(In millions, except share data)
- -------------------------------------------------------------------------------------------------------------------------
Common Stock
------------------- Accumulated
Number Par Additional Retained Other
of Value, Paid-In Earnings Comprehensive
Shares $.01 Capital (Deficit) Income (Loss) Total
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1996 ................... 110,989,156 $1 $1,168 $(1,656) $ $(487)
Comprehensive income
Net income ................................. 112 112
Other comprehensive
income, net of tax .......................
--------------------------------------------------------------------------
Comprehensive income ..................... 112 112
--------------------------------------------------------------------------
Balance at December 31, 1996 ................. 110,989,156 1 1,168 (1,544) (375)
Comprehensive income
Net income ................................. 1 1
Other comprehensive
income, net of tax .......................
--------------------------------------------------------------------------
Comprehensive income ..................... 1 1
Issuance of common stock
under stock option plan .................... 7,638
--------------------------------------------------------------------------
Balance at December 31, 1997 ................. 110,996,794 1 1,168 (1,543) (374)
Comprehensive income (loss)
Net loss ................................... (200) (200)
Other comprehensive
income (loss), net of tax
Foreign currency translation
adjustment ............................. 3 3
Minimum pension
liability adjustment ................... (4) (4)
--------------------------------------------------------------------------
Comprehensive income (loss) ............ (200) (1) (201)
Issuance of common stock for
acquisition of Stone Container
Corporation, net of registration costs ..... 103,954,782 1 2,168 2,169
Fair value of Smurfit-Stone Container
Corporation stock options issued
to convert Stone Container
Corporation stock options .................. 40 40
Issuance of common stock under
stock option plan .......................... 7,465
--------------------------------------------------------------------------
Balance at December 31, 1998 ................. 214,959,041 $2 $3,376 $(1,743) $(1) $1,634
=========================================================================================================================
</TABLE>
See notes to consolidated financial statements.
28
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Year Ended December 31, (In millions) 1998 1997 1996
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities
Net income (loss) ............................................................ $ (200) $ 1 $ 112
Adjustments to reconcile net income (loss)
to net cash provided by operating activities
Extraordinary loss from early extinguishment of debt ..................... 22 8
Cumulative effect of accounting change for start-up costs ................ 5
Depreciation, depletion and amortization ................................. 168 127 125
Amortization of deferred debt issuance costs ............................. 8 11 13
Deferred income taxes .................................................... (113) 13 34
Non-cash employee benefit expense ........................................ 9 4 17
Foreign currency transaction gains ....................................... (4)
Non-cash restructuring charge ............................................ 179
Change in current assets and liabilities, net of effects from acquisitions
Receivables ............................................................ 98 (24) 60
Inventories ............................................................ 3 (32) 17
Prepaid expenses and other current assets .............................. (13) 3
Accounts payable and accrued liabilities ............................... (77) (4)
Interest payable ....................................................... 26 (5) (4)
Income taxes ........................................................... (18) (6) 2
Other, net ............................................................... 36 (4)
----------------------------------
Net cash provided by operating activities .................................... 129 88 380
----------------------------------
Cash flow from investing activities
Property additions ........................................................... (285) (166) (120)
Timberland additions ......................................................... (2) (16) (9)
Investments in affiliates and acquisitions ................................... (9)
Cash acquired with acquisition, net of acquisition costs ..................... 222
Construction funds held in escrow ............................................ 9 (10)
Proceeds from property and timberland disposals and sale of businesses ....... 6 7 6
----------------------------------
Net cash used for investing activities ....................................... (59) (175) (133)
----------------------------------
Cash flow from financing activities
Borrowings under bank credit facilities ...................................... 1,502 250
Net borrowings (repayments) under accounts
receivable securitization program .......................................... (1) 30 (38)
Payments of long-term debt ................................................... (1,384) (7) (481)
Other increases in long-term debt ............................................ 64 13
Deferred debt issuance costs ................................................. (44) (6)
----------------------------------
Net cash provided by (used for) financing activities ......................... 73 87 (262)
----------------------------------
Increase (decrease) in cash and cash equivalents ............................... 143 (15)
Cash and cash equivalents
Beginning of year ............................................................ 12 12 27
----------------------------------
End of year .................................................................. $ 155 $ 12 $ 12
=====================================================================================================================
</TABLE>
See notes to consolidated financial statements.
29
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Tabular amounts in millions, except share data)
1. SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation: Smurfit-Stone Container Corporation ("SSCC"), formerly
Jefferson Smurfit Corporation, and hereafter referred to as the "Company," owns
100% of the common equity interest in JSCE, Inc. and Stone Container Corporation
("Stone"). The Company has no operations other than its investments in JSCE,
Inc. and Stone. JSCE, Inc. owns 100% of the equity interest in JSC (U.S.) and is
the guarantor of the senior unsecured indebtedness of JSC (U.S.). JSCE, Inc. has
no operations other than its investment in JSC (U.S.). JSC (U.S.) has extensive
operations throughout the United States. Stone has extensive domestic and
international operations.
Nature of Operations: The Company's major operations are in paper products,
recycled and renewable fiber resources, and consumer and specialty packaging. In
February 1999, the Company announced its intention to divest its newsprint
subsidiary, and accordingly, its newsprint segment is accounted for as a
discontinued operation (See Note 11). The Company's paperboard mills procure
virgin and recycled fiber and produce paperboard for conversion into corrugated
containers, folding cartons, industrial bags and industrial packaging at
Company-owned facilities and third-party converting operations. Paper product
customers represent a diverse range of industries including paperboard and
paperboard packaging, wholesale trade, retailing and agri-business. Recycling
operations collect or broker wastepaper for sale to Company-owned and
third-party paper mills. Consumer packaging produces labels and flexible
packaging for use in industrial, medical and consumer product applications.
Customers and operations are principally located in the United States. Credit is
extended to customers based on an evaluation of their financial condition.
Principles of Consolidation: The consolidated financial statements include the
accounts of the Company and majority-owned and controlled subsidiaries.
Investments in majority-owned affiliates where control does not exist and
non-majority owned affiliates are accounted for on the equity method.
Significant intercompany accounts and transactions are eliminated in
consolidation.
Cash and Cash Equivalents: The Company considers all highly liquid investments
with an original maturity of three months or less to be cash equivalents. Cash
and cash equivalents of $55 million and $9 million are pledged at December 31,
1998 and 1997 as collateral for obligations associated with the accounts
receivable securitization programs (See Note 5).
Revenue Recognition: Revenue is recognized at the time products are shipped to
external customers.
Inventories: Inventories are valued at the lower of cost or market, principally
under the last-in, first-out ("LIFO") method except for $303 million in 1998 and
$51 million in 1997 which are valued at the lower of average cost or market.
First-in, first-out ("FIFO") costs (which approximate replacement costs) exceed
the LIFO value by $45 million and $62 million at December 31, 1998 and 1997,
respectively.
Net Property, Plant and Equipment: Property, plant and equipment are carried at
cost. The costs of additions, improvements and major replacements are
capitalized, while maintenance and repairs are charged to expense as incurred.
Provisions for depreciation and amortization are made using straight-line rates
over the estimated useful lives of the related assets and the terms of the
applicable leases for leasehold improvements. Estimated useful lives of
papermill machines average 23 years, while major converting equipment and
folding carton presses have estimated useful lives of 20 years. Based upon
preliminary appraisal results, property, plant and equipment of Stone was
recorded at fair market value on the date of the Merger, and useful lives
averaging 17 years were assigned to the Stone assets (See Note 2).
Timberland, less Timber Depletion: Timberland is stated at cost less accumulated
cost of timber harvested. The portion of the costs of timberland attributed to
standing timber is charged against income as timber is cut, at rates determined
annually, based on the relationship of unamortized timber costs to the estimated
volume of recoverable timber. The costs of seedlings and reforestation of
timberland are capitalized.
30
<PAGE>
<PAGE>
Goodwill: The excess of cost over the fair value assigned to the net assets
acquired is recorded as goodwill and is being amortized using the straight-line
method over 40 years.
Deferred Debt Issuance Costs: Deferred debt issuance costs included in other
assets are amortized over the terms of the respective debt obligations using the
interest method.
Long-lived Assets: In accordance with Statement of Financial Accounting
Standards ("SFAS") No. 121, "Accounting for the Impairment of Long-lived Assets
and for Long-lived Assets to be Disposed of," long-lived assets held and used by
the Company and the related goodwill are reviewed for impairment whenever events
or changes in circumstances indicate that the carrying amount of an asset may
not be recoverable.
Income Taxes: The Company accounts for income taxes in accordance with the
liability method of accounting for income taxes. Under the liability method,
deferred assets and liabilities are recognized based upon anticipated future tax
consequences attributable to differences between financial statement carrying
amounts of assets and liabilities and their respective tax bases (See Note 7).
Foreign Currency Translation: The functional currency for the majority of the
Company's foreign operations is the applicable local currency. Accordingly,
assets and liabilities are translated at the exchange rate in effect at the
balance sheet date, and income and expenses are translated at average exchange
rates prevailing during the year. Translation gains or losses are included
within stockholders' equity as part of Accumulated Other Comprehensive Income.
Foreign currency transaction gains or losses are credited or charged to income.
The functional currency for foreign operations operating in highly inflationary
economies is the U.S. dollar and any gains or losses are credited or charged to
income.
Financial Instruments: The Company periodically enters into interest rate swap
agreements that involve the exchange of fixed and floating rate interest
payments without the exchange of the underlying principal amount. For interest
rate instruments that effectively hedge interest rate exposures, the net cash
amounts paid or received on the agreements are accrued and recognized as an
adjustment to interest expense. If an arrangement is replaced by another
instrument and no longer qualifies as a hedge instrument, then it is marked to
market and carried on the balance sheet at fair value. Gains and losses realized
upon settlement of these agreements are deferred and amortized to interest
expense over a period relevant to the agreement if the underlying hedged
instrument remains outstanding, or immediately if the underlying hedged
instrument is settled.
The Company is exposed to the effect of foreign exchange rate fluctuations
due to its foreign operations. The Company's non-consolidated equity affiliate,
Abitibi-Consolidated, Inc. ("Abitibi") purchases foreign currency forward
contracts to minimize the effect of fluctuating foreign currencies on its
reported income, generally over the ensuing 60 months. The forward contracts do
not qualify as hedges for financial reporting purposes and accordingly are
carried in the financial statements of the equity investee at the current
forward foreign rates, with the changes in forward rates reflected directly in
income.
Earnings per Common Share: Effective December 31, 1997, the Company adopted
SFAS No. 128 "Earnings per Share." SFAS No. 128 replaced the calculation of
primary and fully diluted earnings per share with basic and diluted earnings per
share. As required, all prior-period earnings per share data presented have been
restated.
Basic earnings per share is computed by dividing income available to
common shareholders by the weighted average number of shares outstanding.
Diluted earnings per share is computed to show, on a pro forma basis, per share
earnings available to common shareholders assuming the exercise or conversion of
all dilutive securities that are exercisable or convertible into common stock
(See Note 12).
Employee Stock Options: Accounting for stock-based plans is in accordance with
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," and related interpretations. Under APB 25, because the exercise
price of the Company's employee stock options equals the market price of the
underlying stock on the date of grant, no compensation expense is recognized.
The
31
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
Company has adopted the disclosure-only provisions of SFAS No. 123 "Accounting
for Stock-Based Compensation" (See Note 10).
Environmental Matters: The Company expenses environmental expenditures related
to existing conditions resulting from past or current operations from which no
current or future benefit is discernible. Expenditures that extend the life of
the related property or mitigate or prevent future environmental contamination
are capitalized. Reserves for environmental liabilities are established in
accordance with the American Institute of Certified Public Accountants ("AICPA")
Statement of Position ("SOP") 96-1, "Environmental Remediation Liabilities." The
Company records a liability at the time when it is probable and can be
reasonably estimated. Such liabilities are not discounted or reduced for
potential recoveries from insurance carriers.
Use of Estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Reclassifications: Certain reclassifications of prior year presentations have
been made to conform to the 1998 presentation.
Start-up Costs: In April 1998, the AICPA issued SOP 98-5, "Reporting the Costs
of Start-Up Activities," which requires that costs related to start-up
activities be expensed as incurred. Prior to 1998, the Company capitalized
certain costs to open new plants or to start new production processes. The
Company adopted the provisions of the SOP in its financial statements as of the
beginning of 1998. The Company recorded a charge for the cumulative effect of an
accounting change of $3 million, net of taxes of $2 million ($.02 per share), to
expense costs that had been capitalized prior to 1998.
Prospective Accounting Pronouncements: SOP 98-1, "Accounting for Computer
Software Developed or Obtained for Internal Use," was issued in March 1998. SOP
98-1 is effective beginning on January 1, 1999 and requires that certain costs
incurred after the date of adoption in connection with developing or obtaining
software for internal-use must be capitalized. The Company does not anticipate
that the adoption of SOP 98-1 will have a material effect on its 1999 financial
statements.
In 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Investments and Hedging Activities." SFAS No. 133
requires that all derivative instruments be recorded on the balance sheet at
fair value. The Company has not assessed what the impact of SFAS No. 133 will be
on the Company's future earnings or financial position.
2. MERGER AND RESTRUCTURINGS
MERGER WITH STONE CONTAINER CORPORATION
On November 18, 1998, Stone merged with a wholly-owned subsidiary of the
Company ("the Merger"). Under the terms of the Merger, each share of Stone
common stock was exchanged for the right to receive .99 of one share of Company
common stock. A total of 104 million shares of Company common stock were issued
in the Merger, resulting in a total purchase price (including the fair value of
stock options and related fees) of approximately $2,245 million. The Merger was
accounted for as a purchase business combination and, accordingly, the results
of operations of Stone have been included in the consolidated statements of
operations of the Company after November 18, 1998. The cost to acquire Stone has
been preliminarily allocated to the assets acquired and liabilities assumed
according to their estimated fair values and are subject to adjustment when
additional information concerning asset and liability valuations is finalized.
In addition, the allocation may be impacted by changes in pre-acquisition
contingencies identified during the allocation period by the Company relating to
its investment in Florida Coast Paper Company L.L.C. and the resolution of
litigation related to Stone's purchase of common stock of Stone Savannah River
Pulp and Paper Corporation (See Note 15). The preliminary allocation has
resulted in acquired goodwill of approximately $2,650 million, which is being
amortized on a straight-line basis over 40 years.
32
<PAGE>
<PAGE>
The following unaudited pro forma combined information presents the results
of operations of the Company as if the Merger had taken place on January 1, 1998
and 1997, respectively:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------
1998 1997
- ------------------------------------------------------------------------
<S> <C> <C>
Pro Forma Information
Net sales $ 7,731 $ 7,922
Loss from continuing operations
before extraordinary item
and cumulative effect of
accounting change (976) (432)
Net loss (992) (445)
Net loss per common share
Basic (4.61) (2.08)
Diluted (4.61) (2.08)
</TABLE>
These unaudited pro forma results of operations have been prepared for
comparative purposes only and do not purport to be indicative of the results of
operations which actually would have resulted had the Merger occurred as of
January 1, 1998 and 1997, respectively.
RESTRUCTURING OF STONE OPERATIONS
Included in the allocation of the cost to acquire Stone is the adjustment
to fair value of property and equipment associated with the permanent shutdown
of certain containerboard mill and pulp mill facilities of Stone, liabilities
for the termination of certain Stone employees, and liabilities for long-term
commitments. The mill facilities were shut down on December 1, 1998 and in the
near future the Company will abandon or sell these facilities. The assets at
these facilities were recorded at their estimated fair value less cost to sell
based upon appraisals. The terminated employees included approximately 550
employees at these mill facilities and 200 employees in Stone's corporate
office. These employees were terminated in December 1998. The long-term
commitments consist of lease commitments and funding commitments on debt
guarantees that are associated with the shutdown of the containerboard mill and
pulp mill facilities or other investments in which the Company will no longer
participate as a result of its merger plan. The following is a summary of the
exit liabilities included in the preliminary allocation of the cost of Stone:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------
Balance at
Opening December 31,
Balance Activity 1998
- ---------------------------------------------------------------
<S> <C> <C> <C>
Severance $ 14 $ (4) $ 10
Lease commitments 38 (1) 37
Other commitments 56 (6) 50
Mill closure costs 9 9
---------------------------------------
$117 $(11) $106
================================================================
</TABLE>
RESTRUCTURING OF JSC (U.S.) OPERATIONS
In connection with the Merger, the Company recorded a pretax restructuring
charge of $257 million related to the permanent shutdown of certain
containerboard mill operations and related facilities formerly operated by JSC
(U.S.), the termination of certain JSC (U.S.) employees, and liabilities for
lease commitments at the shutdown JSC (U.S.) facilities. The containerboard mill
facilities were permanently shut down on December 1, 1998 and in the near future
the Company will abandon or sell these facilities. The assets at these
facilities were adjusted to their estimated fair value less cost to sell based
upon appraisals. The sales and operating income of these mill facilities in 1998
prior to closure were $209 million and $9 million respectively. The terminated
employees included approximately 700 employees at these mills and 50 employees
in the Company's corporate office. These employees were terminated in December
1998. The following are the components of the write down of property, plant and
equipment to fair value and exit liabilities along with related 1998 activity:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------
Balance at
Opening December 31,
Balance Activity 1998
- ---------------------------------------------------------------
<S> <C> <C> <C>
Non-cash
Write-down of
property and
equipment
to fair value $179 $(179) $
Cash
Severance 27 (3) 24
Lease commitments 21 (1) 20
Pension curtailments 9 9
Facility closure costs 13 (3) 10
Other 8 8
-----------------------------------------
$257 $(186) $71
================================================================
</TABLE>
33
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
CASH REQUIREMENTS
Future cash outlays under the restructuring of Stone and JSC (U.S.)
operations are anticipated to be $80 million in 1999, $21 million in 2000, $19
million in 2001, and $57 million thereafter. The Company is continuing to
evaluate all areas of its business in connection with its merger integration,
including the identification of corrugated container facilities that might be
closed. Additional restructuring charges are expected in 1999 as management
finalizes its plans.
OTHER MERGER RELATED CHARGES
In addition, the Company recorded $23 million of Merger related charges as
selling and administrative expenses during the fourth quarter of 1998. These
charges pertained to professional management fees to achieve operating
efficiencies from the Merger, fees for management personnel changes and other
Merger costs.
3. NET PROPERTY, PLANT AND EQUIPMENT
Net property, plant and equipment at December 31 consists of:
<TABLE>
<CAPTION>
- ----------------------------------------------------------
1998 1997
- ----------------------------------------------------------
<S> <C> <C>
Land $ 145 $ 63
Buildings and leasehold
improvements 780 304
Machinery, fixtures and equipment 5,279 2,024
Construction in progress 156 66
---------------------
6,360 2,457
---------------------
Less accumulated depreciation
and amortization 864 934
---------------------
Net property, plant
and equipment $5,496 $1,523
===========================================================
</TABLE>
Depreciation and depletion expense was $153 million, $119 million and $117
million for 1998, 1997 and 1996 respectively. Property, plant and equipment
include capitalized leases of $68 million and $45 million and related
accumulated amortization of $23 million and $18 million at December 31, 1998 and
1997, respectively.
4. NON-CONSOLIDATED AFFILIATES
The Company has several non-consolidated affiliates that are engaged in
paper and packaging operations in North America, South America, Europe and Asia.
Significant non-consolidated affiliates at December 31, 1998 include MacMillan
Bathurst Inc. ("MBI"), a Canadian corrugated container company in which the
Company owns a 50% interest, that had sales of $351 million in 1998. Also, as of
December 31, 1998 the Company owned approximately 25% of Abitibi, which had
sales of $2,313 million in 1998. Subsequently, on January 21, 1999, the Company
sold 16% of its interest in Abitibi to a third party such that the Company's
ownership percentage was reduced to approximately 22%. The Company is holding
its remaining interest in Abitibi with a carrying value of $452 million at
December 31, 1998 for sale.
As of December 31, 1998, the carrying value of non-consolidated affiliates
is $115 million lower than the underlying equity interest owned by the Company
which represents the adjustments to fair value which were made in the allocation
of the costs to acquire Stone.
Combined summarized financial information for the Company's
non-consolidated affiliates that are accounted for under the equity method
of accounting is presented below:
<TABLE>
<CAPTION>
- ----------------------------------------------------------
1998
- ----------------------------------------------------------
<S> <C>
Results of operations:(a)
Net sales $ 380
Cost of sales 119
Loss before income taxes, minority interest
and extraordinary charges (56)
Net loss (43)
Financial position:
Current assets $ 960
Noncurrent assets 4,224
Current liabilities 773
Noncurrent liabilities 1,972
Stockholders' equity 2,439
</TABLE>
(a) Includes results of operations for each Stone affiliate after November 18,
1998.
34
<PAGE>
<PAGE>
5. LONG-TERM DEBT
Long-term debt, as of December 31, is as follows:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
1998 1997
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
BANK CREDIT FACILITIES
JSC (U.S.)
1998 Tranche A Term Loan (7.4% weighted average variable rate), payable in
various installments through March 31, 2005 ................................ $ 400 $
1998 Tranche B Term Loan (8.0% weighted average variable rate), payable in
various installments through March 31, 2006 ................................ 900
1994 Term Loans (8.5% weighted average variable rate)......................... 736
Revolving Credit Facility (7.8% weighted average variable rate),
due March 31, 2005 ......................................................... 85 120
Stone
Tranche B Term Loan (8.8% weighted average variable rate),
payable in various installments through April 1, 2000 ...................... 368
Tranche C Term Loan (9.0% weighted average variable rate),
payable in various installments through October 1, 2003 .................... 194
Tranche D Term Loan (9.0% weighted average variable rate),
payable in various installments through October 1, 2003 .................... 185
Tranche E Term Loan (9.0% weighted average variable rate),
payable in various installments through October 1, 2003 .................... 248
Revolving Credit Facility (8.5% weighted average rate), due April 1, 2000 .... 161
Europa Carton AG (a wholly-owned German subsidiary) 7.96% term loan,
denominated in German DMs, payable in March 2005 ........................... 49
4.98% to 7.96% term loans, denominated in foreign currencies, payable in
varying amounts through 2004 ............................................... 30
----------------
2,620 856
ACCOUNTS RECEIVABLE SECURITIZATION PROGRAM BORROWINGS
JSC (U.S.) accounts receivable securitization program borrowings
(6.3% weighted average variable rate), due in February 2002 ...... 209 210
Stone accounts receivable securitization program term loans
(6.2% weighted average variable rate), due December 15, 2000 ............... 210
----------------
419 210
SENIOR NOTES
JSC (U.S.)
11.25% Series A unsecured senior notes, due May 1, 2004 ...................... 300 300
10.75% Series B unsecured senior notes, due May 1, 2002 ...................... 100 100
9.75% unsecured senior notes, due April 1, 2003 ............................. 500 500
Stone
10.75% first mortgage notes, due October 1, 2002
(plus unamortized premium of $18) .......................................... 518
8.45% mortgage notes, payable in monthly installments through
August 1, 2007 and $69 on September 1, 2007 ................................ 82
9.875% unsecured senior notes, due February 1, 2001
(plus unamortized premium of $7) ........................................... 578
11.5% unsecured senior notes, due October 1, 2004
(plus unamortized premium of $12)........................................... 212
11.5% unsecured senior notes, due August 15, 2006
(plus unamortized premium of $6) ........................................... 206
12.58% rating adjustable unsecured senior notes, due August 1, 2016 (plus
unamortized premium of $2) ................................................. 127
----------------
2,623 900
OTHER DEBT
Other (including obligations under capitalized leases of $44 and $32) ........ 344 74
</TABLE>
35
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
1998 1997
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
STONE SUBORDINATED DEBT
10.75% senior subordinated debentures and 1.5% supplemental interest
certificates, due on April 1, 2002 (less unamortized discount of $5) ....... 270
10.75% senior subordinated debentures, due April 1, 2002 ..................... 200
11.0% senior subordinated notes, due August 15, 1999
(plus unamortized premium of $1) ........................................... 120
6.75% convertible subordinated debentures (convertible at $34.28 per share),
due February 15, 2007 (less unamortized discount of $8) .................... 37
------------------
627
------------------
Total debt ................................................................... 6,633 2,040
Less current maturities ...................................................... (205) (15)
-------------------
Total long-term debt ......................................................... $ 6,428 $2,025
===================================================================================================
</TABLE>
The amounts of total debt outstanding at December 31, 1998 maturing during the
next five years are as follows:
<TABLE>
<S> <C>
1999 $ 205
2000 843
2001 686
2002 1,395
2003 1,198
Thereafter 2,306
</TABLE>
BANK CREDIT FACILITIES
JSC (U.S.) CREDIT AGREEMENT
In March 1998, JSC (U.S.) entered into a bank credit facility (the "JSC
(U.S.) Credit Agreement") consisting of a $550 million revolving credit
facility, ("Revolving Credit Facility"), of which up to $150 million may consist
of letters of credit, a $400 million Tranche A Term Loan and a $350 million
Tranche B Term Loan. Net proceeds from the offering were used to repay the 1994
JSC (U.S.) Tranche A, Tranche B, and Tranche C Term Loans and revolving credit
facility. The write-off of related deferred debt issuance costs, totaling $13
million (net of income tax benefits of $9 million), is reflected in the
accompanying consolidated statement of operations as an extraordinary item.
On November 18, 1998, JSC (U.S.) and its bank group amended and restated
the JSC (U.S.) Credit Agreement to, among other things, (i) allow an additional
$550 million borrowing on the Tranche B Term Loan, (ii) allow the purchase of a
paper machine from an affiliate (See Note 13), (iii) make a $300 million
intercompany loan to SSCC which was contributed to Stone as additional paid-in
capital, (iv) permit the Merger, and (v) ease certain financial covenants.
A commitment fee of .5% per annum is assessed on the unused portion of the
JSC (U.S.) Revolving Credit Facility. At December 31, 1998, the unused portion
of this facility, after giving consideration to outstanding letters of credit,
was $422 million.
The JSC (U.S.) Credit Agreement contains various covenants and restrictions
including, among other things, (i) limitations on dividends, redemptions and
repurchases of capital stock, (ii) limitations on the incurrence of
indebtedness, liens, leases and sale-leaseback transactions, (iii) limitations
on capital expenditures, and (iv) maintenance of certain financial covenants.
The JSC (U.S.) Credit Agreement also requires prepayments if JSC (U.S.) has
excess cash flows, as defined, or receives proceeds from certain asset sales,
insurance, issuance of equity securities or incurrence of certain indebtedness.
The obligations under the JSC (U.S.) Credit Agreement are unconditionally
guaranteed by the Company and JSCE, Inc. and its subsidiaries, and are secured
by a security interest in substantially all of the assets of JSC (U.S.) and its
material subsidiaries, with the exception of cash, cash equivalents and trade
receivables. The JSC (U.S.) Credit Agreement is also secured by a pledge of all
the capital stock of JSCE, Inc. and each of its material subsidiaries and by
certain intercompany notes.
STONE CREDIT AGREEMENT
Stone has a bank credit agreement which provides for four secured senior
term loans (Tranche B, Tranche C, Tranche D, and Tranche E Term Loans),
aggregating $995 million at December 31, 1998
36
<PAGE>
<PAGE>
which mature through October 1, 2003 and a $560 million senior secured revolving
credit facility, up to which $62 million may consist of letters of credit,
maturing April 1, 2000 (collectively the "Stone Credit Agreement"). Stone pays a
.5% commitment fee on the unused portions of its revolving credit facility. At
December 31, 1998, the unused portion of this facility, after giving
consideration to outstanding letters of credit, was $363 million.
On November 18, 1998, Stone and its bank group amended and restated the
Stone Credit Agreement to, among other things, (i) extend the maturity date on
the Tranche B Term Loan $190 million payment due on October 1, 1999 to April 1,
2000, (ii) extend the maturity date of the revolving credit facility to April 1,
2000 and to provide a further extension to December 31, 2000 upon repayment of
the Tranche B Term Loan on or before its maturity date of April 1, 2000, (iii)
permit the use of the net proceeds from the sale of the newsprint and related
assets at the Snowflake, AZ facility to repay a portion of Stone's 11.875%
Senior Notes due December 1, 1998, (iv) permit the Merger, and (v) ease certain
financial covenants.
The Stone Credit Agreement (as amended) contains various covenants and
restrictions including, among other things, (i) limitations on dividends,
redemptions and repurchases of capital stock, (ii) limitations on the incurrence
of indebtedness, liens, leases and sale-leaseback transactions, (iii)
limitations on capital expenditures, and (iv) maintenance of certain financial
covenants. The Stone Credit Agreement also requires prepayments of the term
loans if Stone has excess cash flows, as defined, or receives proceeds from
certain asset sales, insurance, issuance of equity securities or incurrence of
certain indebtedness. Any prepayments are allocated against the term loan
amortization in inverse order of maturity.
During January 1999, Stone obtained a waiver from its bank group for relief
from certain financial covenant requirements under the Stone Credit Agreement as
of December 31, 1998. Subsequently, on March 23, 1999 Stone and its bank group
amended the Stone Credit Agreement to ease certain quarterly financial covenant
requirements for 1999.
At December 31, 1998, borrowings and accrued interest outstanding under the
Stone Credit Agreement were secured by a security interest in substantially all
of the assets of Stone with the exception of cash, cash equivalents and certain
trade receivables, 65% of the stock of its Canadian subsidiary and all of the
shares of Abitibi owned by Stone.
ACCOUNTS RECEIVABLE SECURITIZATION
PROGRAM BORROWINGS
JSC (U.S.) SECURITIZATION PROGRAM
JSC (U.S.) has a $315 million accounts receivable securitization program
(the "JSC (U.S.) Securitization Program") which provides for the sale of certain
of the Company's trade receivables to a wholly owned, bankruptcy remote, limited
purpose subsidiary, Jefferson Smurfit Finance Corporation ("JS Finance"). The
accounts receivable purchases are financed through the issuance of commercial
paper or through borrowings under a revolving liquidity facility and a $15
million term loan. Under the JSC (U.S.) Securitization Program, JS Finance has
granted a security interest in all its assets, principally cash and cash
equivalents and trade accounts receivable. The Company has $106 million
available for additional borrowing at December 31, 1998, subject to eligible
accounts receivable. Borrowings under the JSC (U.S.) Securitization Program,
which expire February 2002, have been classified as long-term debt because of
the Company's intent to refinance this debt on a long-term basis and the
availability of such financing under the terms of the program.
STONE SECURITIZATION PROGRAM
Stone has a $210 million accounts receivable securitization program (the
"Stone Securitization Program") whereby certain eligible trade accounts
receivable are sold to Stone Receivables Corporation, a wholly owned, bankruptcy
remote, limited purpose subsidiary. The accounts receivable purchases are
financed through the issuance of $210 million in term loans. Under the Stone
Securitization Program, Stone Receivables Corporation has granted a security
interest in cash, cash equivalents and trade accounts receivable. At December
31, 1998, $228 million of Stone's trade accounts receivable are pledged as
collateral under the program.
37
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
SENIOR NOTES
JSC (U.S.)
The 11.25% Series A Senior Notes are redeemable in whole or in part at the
option of JSC (U.S.), at any time on or after May 1, 1999 with premiums of
5.625% and 2.813% of the principal amount if redeemed during the 12-month
periods commencing May 1, 1999 and 2000, respectively. The 10.75% Series B
Senior Notes and the 9.75% Senior Notes are not redeemable prior to maturity.
Holders of the JSC (U.S.) Senior Notes have the right, subject to certain
limitations, to require JSC (U.S.) to repurchase their securities at 101% of the
principal amount plus accrued and unpaid interest, upon the occurrence of a
change in control or in certain events, from proceeds of major asset sales, as
defined.
The Senior Notes, which are unconditionally guaranteed on a senior basis by
JSCE, Inc., rank pari passu with the JSC (U.S.) Credit Agreement and contain
business and financial covenants which are less restrictive than those contained
in the JSC (U.S.) Credit Agreement.
STONE
Stone's senior notes (the "Stone Senior Notes"), aggregating $1,723
million, are redeemable in whole or in part at the option of Stone at various
dates beginning in February 1999, at par plus a weighted average premium of
2.68%. The Merger constituted a "Change of Control" under the Stone Senior Notes
and Stone's $627 million outstanding senior subordinated debentures (the "Stone
Senior Subordinated Debentures"). As a result, Stone is required, subject to
certain limitations, to offer to repurchase the Stone Senior Notes and the Stone
Senior Subordinated Debentures at a price equal to 101% of the principal amount,
together with accrued interest. However, because the Credit Agreement prohibits
Stone from making an offer to repurchase the Stone Senior Notes and the Stone
Senior Subordinated Debentures, Stone could not make the offer. Although the
terms of the Stone Senior Notes refer to an obligation to repay the bank debt
or obtain the consent of the bank lenders to such repurchase, the terms do not
specify a deadline, if any, following the Merger for repayment of bank debt or
obtaining such consent. Stone intends to actively seek commercially acceptable
sources of financing to repay the Stone Credit Agreement or alternative
financing arrangements which would cause the bank lenders to consent to the
repurchase. There can be no assurance that the Company will be successful
in obtaining such financing or consents.
In the event Stone does not maintain the minimum Subordinated Capital Base
(as defined) of $1 billion for two consecutive quarters, the indentures
governing the Stone Senior Notes require Stone to semiannually offer to purchase
10% of such outstanding indebtedness at par until the minimum Subordinated
Capital Base is attained. In the event the Stone Credit Agreement prohibits such
an offer to repurchase, the interest rate on the Stone Senior Notes is increased
by 50 basis points per semiannual coupon period up to a maximum of 200 basis
points until the minimum Subordinated Capital Base is attained.
Stone's Subordinated Capital Base (as defined) was $3,096 million at
December 31, 1998; however, it was below the $1 billion minimum at September 30,
June 30, and March 31, 1998 and December 31, 1997. In April 1998, Stone offered
to repurchase 10% of the outstanding Stone Senior Notes. Approximately $1
million of such indebtedness was redeemed under this offer. Effective February
1, 1999 the interest rate on the 9.875% Senior Notes due February 1, 2001 and
12.58% Senior Notes due August 1, 2016 were increased by 50 basis points.
Effective February 15, 1999 the interest rate on the 11.5% Senior Notes due
August 15, 2006 was also increased 50 basis points. The interest rates on all of
the Stone Senior Notes will return to the original interest rate on April 1,
1999 due to Stone's Subordinated Capital Base exceeding the minimum on December
31, 1998.
On December 1, 1998, Stone repaid its $240 million 11.875% Senior Unsecured
Notes at maturity, with borrowings under its revolving credit facility and
proceeds from the sale of the Snowflake, AZ mill and related assets (See Note
13).
The 10.75% first mortgage notes are secured by the assets at four of
Stone's containerboard mills. The 8.45% mortgage notes are secured by the assets
at 37 of Stone's corrugated container plants.
38
<PAGE>
<PAGE>
STONE SUBORDINATED DEBT
The Stone Senior Subordinated Debentures, aggregating $627 million, are
redeemable as of December 31, 1998, in whole or in part at the option of Stone
at par plus a weighted average premium of 2.56%.
In the event Stone does not maintain a minimum Net Worth, as defined, of
$500 million, for two consecutive quarters, the interest rate on Stone's 10.75%
senior subordinated debentures ($470 million) and 11.0% senior subordinated
notes ($120 million) will be increased by 50 basis points per semiannual
coupon period up to a maximum amount of 200 basis points, until the minimum Net
Worth is attained.
Stone's Net Worth (as defined) was $2,590 million at December 31, 1998;
however, it was below the $500 million minimum at September 30, June 30, March
31, 1998 and December 31, 1997. The interest rate on the 11.0% senior
subordinated notes was increased 50 basis points on August 15, 1998 and 50
basis points on February 15, 1999. The interest rate on the 10.75% senior
subordinated debentures and the 10.75% senior subordinated debentures with the
1.5% supplemental interest certificates was increased 50 basis points on October
1, 1998. The interest rate on all of the Stone Senior Subordinated Debentures
will return to the original interest rate on April 1, 1999, due to Stone's Net
Worth exceeding the minimum at December 31, 1998.
OTHER
Interest costs capitalized on construction projects in 1998, 1997 and 1996
totaled $2 million, $5 million and $3 million, respectively. Interest payments
on all debt instruments for 1998, 1997 and 1996 were $206 million, $188 million
and $186 million, respectively.
6. LEASES
The Company leases certain facilities and equipment for production, selling
and administrative purposes under operating leases. Future minimum rental
commitments (exclusive of real estate taxes and other expenses) under operating
leases having initial or remaining non-cancelable terms in excess of one year
are reflected below:
<TABLE>
<S> <C>
- ---------------------------------------------
1999 $117
2000 96
2001 80
2002 67
2003 56
Thereafter 187
----
Total minimum lease payments $603
=============================================
</TABLE>
Net rental expense for operating leases, including leases having a duration
of less than one year, was approximately $69 million, $50 million and $50
million for 1998, 1997 and 1996, respectively.
7. INCOME TAXES
Significant components of the Company's deferred tax assets and liabilities
at December 31 are as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------
1998 1997
- --------------------------------------------------------------------
<S> <C> <C>
Deferred tax liabilities
Property, plant and
equipment and timberland $(1,622) $(414)
Inventory 2 (13)
Prepaid pension costs (41) (31)
Investments in affiliates (57)
Other (153) (114)
------------------------
Total deferred tax liabilities (1,871) (572)
========================
Deferred tax assets
Employee benefit plans 225 96
Net operating loss, alternative
minimum tax and tax credit
carryforwards 559 99
Deferred gain 23
Purchase accounting liabilities 103
Deferred debt issuance cost 52
Restructuring 49
Other 115 58
------------------------
Total deferred tax assets 1,126 253
Valuation allowance for
deferred tax assets (208) (11)
------------------------
Net deferred tax assets 918 242
------------------------
Net deferred tax liabilities $ (953) $(330)
======================================================================
</TABLE>
39
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
At December 31, 1998, the Company had approximately $1,055 million of net
operating loss carryforwards for U.S. Federal income tax purposes that expire
from the years 2009 to 2018, with a tax value of $369 million. A valuation
allowance of $153 million has been established for a portion of these deferred
tax assets. Further, the Company had net operating loss carryforwards for state
purposes with a tax value of $106 million, which expire from 1999 to 2018. A
valuation allowance of $55 million has been established for a portion of these
deferred tax assets. The Company had approximately $84 million of alternative
minimum tax credit carryforwards for U.S. federal income tax purposes, which are
available indefinitely.
Benefit from (provision for) income taxes from continuing operations before
income taxes, minority interest, extraordinary item and cumulative effect of
accounting change is as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------
1998 1997 1996
- -------------------------------------------------------------
<S> <C> <C> <C>
Current
Federal $ 11 $10 $(18)
State and local 3
Foreign (5)
------------------------
Total current benefit (expense) 9 10 (18)
Deferred
Federal 91 (5) 1
State and local 11 (2) 5
Foreign 3
Net operating loss
carryforwards (40)
------------------------
Total deferred benefit (expense) 105 (7) (34)
------------------------
Total benefit from
(provision for) income taxes $114 $ 3 $(52)
==============================================================
</TABLE>
The Company's benefit from (provision for) income taxes differed from the
amount computed by applying the statutory U.S. federal income tax rate to income
(loss) from continuing operations before income taxes, minority interest,
extraordinary items, and cumulative effect of accounting change as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------
1998 1997 1996
- -------------------------------------------------------------
<S> <C> <C> <C>
U.S. federal income tax
benefit (provision) at
federal statutory rate $107 $ 8 $(46)
Permanent differences
from applying purchase
accounting (6) (3) (3)
Permanently
non-deductible expenses (2) (8) 3
State income taxes,
net of federal income
tax effect 14 2
Effect of valuation
allowances on
deferred tax assets,
net of federal benefit 1 7 (5)
Other (3) (1)
-------------------------
Total benefit from
(provision for)
income taxes $114 $ 3 $(52)
==============================================================
</TABLE>
The components of the income (loss) from continuing operations before
income taxes, minority interests, extraordinary item and change in accounting
method are as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------
1998 1997 1996
- -------------------------------------------------------------
<S> <C> <C> <C>
United States $(309) $23 $131
Foreign 2
-------------------------
Income (loss) from
continuing operations
before income taxes,
minority interest,
extraordinary item and
change in accounting
method $(307) $23 $131
===========================================================
</TABLE>
The federal income tax returns for 1989 through 1994 are currently under
examination. While the ultimate results of such examination cannot be predicted
with certainty, the Company's management believes that the examination will not
have a material adverse effect on its consolidated financial condition or
results of operations.
The Company made income tax payments of $22 million, $8 million and $39
million in 1998, 1997 and 1996, respectively.
40
<PAGE>
<PAGE>
8. EMPLOYEE BENEFIT PLANS
DEFINED BENEFIT PLANS
The Company sponsors noncontributory defined benefit pension plans covering
substantially all employees. Approximately 26% of pension plan assets at
December 31, 1998 are invested in cash equivalents or debt securities and 74%
are invested in equity securities. Equity securities at December 31, 1998
include 1 million shares of SSCC common stock with a market value of
approximately $16 million and 26 million shares of JS Group common stock having
a market value of approximately $48 million. Dividends paid on JS Group common
stock during 1998 and 1997 were approximately $2 million in each year.
The defined benefit plans of JSCE, Inc. were merged with the defined
benefit plans of Stone on December 31, 1998. As a result of this plan merger,
the plan assets of the Company will be available to meet the funding
requirements of all plans. Plan asset information provided below reflects the
plan assets of the Company prior to the effect of this plan merger.
POSTRETIREMENT HEALTH CARE
AND LIFE INSURANCE BENEFITS
The Company provides certain health care and life insurance benefits for
all salaried as well as certain hourly employees. The assumed health care cost
trend rates used in measuring the accumulated postretirement benefit obligation
("APBO") range from 5% to 9% at December 31, 1998, decreasing to the ultimate
rate of 5%. The effect of a 1% increase in the assumed health care cost trend
rate would increase the APBO as of December 31, 1998 by $9 million and have an
immaterial effect on the annual net periodic postretirement benefit cost for
1998.
The following provides a reconciliation of benefit obligations, plan
assets, and funded status of the plans.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Defined Benefit Plans Postretirement Plans
--------------------- --------------------
1998 1997 1998 1997
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at January 1 ......... $ 950 $ 864 $ 103 $ 98
Service cost ............................ 18 16 1 2
Interest cost ........................... 68 65 7 7
Amendments .............................. 8
Plan participants' contributions ........ 4 4
Actuarial loss .......................... 22 58 3 4
Acquisitions ............................ 778 73
Benefits paid ........................... (55) (53) (13) (12)
-----------------------------------------------------
Benefit obligation at December 31 ....... $1,789 $ 950 $ 178 $ 103
-----------------------------------------------------
Change in plan assets:
Fair value of plan assets at January 1, . $1,013 $ 926 $ $
Actual return on plan assets ............ 49 139
Employer contributions .................. 1 1 9 8
Plan participants' contributions ........ 4 4
Acquisitions ............................ 504
Benefits paid ........................... (55) (53) (13) (12)
-----------------------------------------------------
Fair value of plan assets at December 31 $1,512 $1,013 $ $
-----------------------------------------------------
Over (under) funded status: ............. $ (277) $ 63 $(178) $(103)
Unrecognized actuarial (gain) loss ...... (9) (32) 6 4
Unrecognized prior service cost ......... 44 43 (2) (3)
Net transition obligation ............... (9) (13)
-----------------------------------------------------
Net amount recognized ................... $(251) $ 61 $(174) $(102)
-----------------------------------------------------
Amounts recognized in the balance sheets:
Prepaid benefit cost .................... $ 52 $ 80 $ $
Accrued benefit liability ............... (303) (19) (174) (102)
Additional minimum liability ............ (32)
Intangible asset ........................ 26
Accumulated other comprehensive income .. 4
Deferred tax ............................ 2
-----------------------------------------------------
Net amount recognized ................... $ (251) $ 61 $(174) $(102)
==================================================================================================
</TABLE>
41
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
The weighted-average assumptions used in the accounting for the defined
benefit plans and postretirement plans were:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Defined Benefit Plans Postretirement Plans
--------------------- ---------------------
1998 1997 1998 1997
- ------------------------------------------------------------- ---------------------
<S> <C> <C> <C> <C>
Weighted discount rate...................... 7.00% 7.25% 7.00% 7.25%
Rate of compensation increase .............. 3.75% 4.00% N/A N/A
Expected return on assets................... 9.50% 9.50% N/A N/A
Health care cost trend on covered charges... N/A N/A 6.50% 7.50%
</TABLE>
The components of net pension expense for the defined benefit plans and the
components of the postretirement benefit costs follow:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------
Defined Benefit Plans Postretirement Plans
--------------------- ---------------------
1998 1997 1996 1998 1997 1996
- ------------------------------------------------------------ ---------------------
<S> <C> <C> <C> <C> <C> <C>
Service cost ..................... $ 26 $ 19 $ 23 $1 $1 $
Interest cost..................... 74 65 62 8 7 7
Expected return on plan assets.... (90) (80) (75)
Curtailment cost.................. 2
Special retiree charge............ 6
-------------------- -------------------
Net periodic benefit cost......... $ 12 $ 4 $ 16 $9 $8 $7
===================================================================================
</TABLE>
The projected benefit obligation, accumulated benefit obligation, and fair
value of plan assets for the pension plans with accumulated benefit obligations
in excess of plan assets were $795 million, $778 million and $601 million,
respectively, as of December 31, 1998 and $31 million, $27 million and none as
of December 31, 1997.
SAVINGS PLANS
The Company sponsors voluntary savings plans covering substantially all
salaried and certain hourly employees. The Company match is paid in SSCC common
stock, up to an annual maximum. The Company's expense for the savings plans
totaled $10 million, $9 million and $8 million in 1998, 1997 and 1996,
respectively.
9. MINORITY INTEREST
At December 31, 1998 Stone had approximately 4.6 million shares of $1.75
Series E Cumulative Convertible Exchangeable Preferred Stock, $.01 par value,
(the "Preferred Stock") issued and outstanding. Each share of Preferred Stock is
entitled to one vote on all matters submitted to a vote of Stone's common
stockholders. In addition, the holders of Preferred Stock are currently entitled
to elect two directors of Stone as a result of the dividend arrearages on such
shares. The Preferred Stock is convertible, at the option of the holder, into
shares of SSCC common stock at the conversion price of $34.28 (equivalent to a
conversion rate of .729 shares of SSCC Common Stock for each share of Preferred
Stock), subject to adjustment based on certain events. The Preferred Stock may
alternatively be exchanged, at the option of Stone, for new 7% Convertible
Subordinated Exchange Debentures of Stone due February 15, 2007 in a principal
amount equal to $25.00 per share of Preferred Stock so converted. Additionally,
the Preferred Stock is redeemable at the option of Stone, in whole or in part,
from time to time. Preferred dividends are reflected as a minority interest in
the Company's Consolidated Statements of Operations. At December 31, 1998
Stone had accumulated dividend arrearages on the Preferred Stock of $14 million.
The payment of dividends is prohibited by covenants in certain of the agreements
and indentures relating to indebtedness of Stone.
42
<PAGE>
<PAGE>
10. STOCK OPTION AND INCENTIVE PLANS
Prior to the Merger, the Company and Stone each maintained incentive plans
for selected employees. The Company's plan included non-qualified stock options
issued at prices equal to the fair market value of the Company's stock at the
date of grant which expire upon the earlier of 12 years from the date of grant
or termination of employment, death, or disability. The Stone plans included
incentive stock options and non-qualified stock options issued at prices equal
to the fair market value of Stone's common stock at the date of grant which
expire upon the earlier of 10 years from the date of grant or termination of
employment, death, or disability. Effective with the Merger, options outstanding
under the Stone plans were converted into options to acquire SSCC common stock,
with the number of shares and exercise price being adjusted in accordance with
the exchange ratio of .99 established in the Merger Agreement, and all
outstanding options under both the Company and the Stone plans became
exercisable and fully vested.
In November 1998, the stockholders approved the 1998 Long-Term Incentive
Plan (the "1998 Plan") reserving 8.5 million shares of Company stock for
non-qualified stock options and performance awards to officers, key employees,
and employee directors of the Company. The stock options are exercisable at a
price equal to the fair market value of the Company's common stock on the date
of grant. The vesting schedule and other terms and conditions of options granted
under the 1998 Plan are established separately for each grant. The stock options
granted during 1998 vest and become exercisable eight years after the date of
grant subject to acceleration based upon the attainment of pre-established stock
price targets. The number of options that become vested and exercisable in any
one year may not exceed one-third of the options granted for certain
participants and may not exceed one-fourth of the options granted for other
participants. The performance awards permit the holder to receive amounts,
denominated in shares of Company common stock, based on the Company's
performance during the period between the date of grant and a pre-established
future date. Performance criteria, the length of the performance period, and the
form and time of payment of the award is established separately for each grant.
There were no performance awards outstanding under the 1998 Plan at December 31,
1998.
At December 31, 1998, 8.5 million shares of common stock from the 1998 Plan
and approximately 28 million shares from previous plans were reserved for
issuance under all of the Company's incentive plans. At December 31, 1998,
approximately 4.5 million options from the 1998 Plan and approximately 14.4
million options from previous plans have been granted to obtain shares of common
stock.
Pro forma information regarding net income and earnings per share is
required by SFAS No. 123 and has been determined as if the Company had accounted
for its employee stock options issued subsequent to December 31, 1994 under the
fair value method. The pro forma net income information required by SFAS No. 123
is not likely to be representative of the effects on reported net income for
future years. The fair value for these options was estimated at the date of
grant using a Black-Scholes option pricing model with the following assumptions:
<TABLE>
<CAPTION>
- -----------------------------------------------------------
1998 1997 1996
- -----------------------------------------------------------
<S> <C> <C> <C>
Expected option life (years) 6 5 6
Risk-free weighted average
interest rate 4.79% 6.49% 6.22%
Stock price volatility 53.30% 44.20% 42.10%
Dividend yield 0.0% 0.0% 0.0%
</TABLE>
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective
43
<PAGE>
<PAGE>
assumptions including the expected stock price volatility. Because the Company's
employee stock options have characteristics significantly different from those
of traded options and because changes in the subjective input assumptions can
materially affect the fair value estimate, in management's opinion, the existing
models do not necessarily provide a reliable single measure of the fair value of
its employee stock options.
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period.
The Company's pro forma information is as follows:
<TABLE>
<CAPTION>
- ----------------------------------------------------------
1998 1997 1996
- ----------------------------------------------------------
<S> <C> <C> <C>
As Reported
Net income (loss) $ (200) $ 1 $ 112
Basic earnings per share (1.61) .01 1.01
Diluted earnings per share (1.61) .01 1.00
Pro Forma
Net income (loss) $ (209) $ (1) $ 111
Basic earnings per share (1.69) (.01) 1.00
Diluted earnings per share (1.69) (.01) 1.00
</TABLE>
The weighted average fair values of options granted during 1998, 1997 and
1996 were $6.98, $6.63 and $6.38 per share, respectively.
Additional information relating to the Plans is as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Weighted
Shares Option Average
Under Price Exercise
Option Range Price
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Outstanding at January 1, 1996 5,631,468 $10.00 - 17.63 $10.44
Granted 1,497,500 11.13 - 13.38 12.67
Exercised
Cancelled 11,495 10.00 - 17.63 11.13
-----------------------------------------
Outstanding at December 31, 1996 7,117,473 $10.00 - 17.63 $10.91
Granted 1,238,500 13.13 - 15.81 13.43
Exercised 23,825 10.00 10.00
Cancelled 164,375 10.00 - 15.81 12.98
-----------------------------------------
Outstanding at December 31, 1997 8,167,773 $10.00 - 17.63 $11.25
Granted 4,728,000 12.81 - 15.81 12.94
Exercised 36,950 10.00 10.00
Cancelled 9,918 11.13 - 22.35 13.67
Stone addition 6,050,196 11.87 - 29.59 14.35
-----------------------------------------
Outstanding at December 31, 1998 18,899,101 $10.00 - 29.59 $12.67
-----------------------------------------
</TABLE>
The following table summarizes information about stock options outstanding at
December 31, 1998:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Weighted Average Weighted
Average Remaining Average
Range of Options Exercise Contractual Options Exercise
Exercise Prices Outstanding Price Life (Years) Exercisable Price
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$10.00 - 12.50 7,296,259 $10.67 6.66 7,296,259 $10.67
12.81 - 13.51 8,817,169 13.05 9.23 4,304,169 13.29
14.06 - 15.81 1,685,485 14.47 8.65 1,685,485 14.47
17.63 - 29.59 1,100,188 20.10 5.81 1,100,188 20.10
---------- ----------
18,899,101 14,386,101
</TABLE>
The number of options exercisable at December 31, 1997 and 1996 were
483,100 and 506,925 respectively.
44
<PAGE>
<PAGE>
11. DISCONTINUED OPERATIONS
During February 1999 the Company adopted a formal plan to sell the
operating assets of its subsidiary, Smurfit Newsprint Corporation ("SNC").
Accordingly, SNC is accounted for as discontinued operations in the accompanying
consolidated financial statements. The Company has restated its prior financial
statements to present the operating results of SNC as a discontinued operation.
SNC revenues were $324 million, $302 million, and $323 million for 1998,
1997 and 1996, respectively. The net assets of SNC included in the consolidated
balance sheets as of December 31, 1998 and 1997 consisted of the following:
<TABLE>
<CAPTION>
- -------------------------------------------------------------
1998 1997
- -------------------------------------------------------------
<S> <C> <C>
Inventories and current assets $ 31 $ 20
Net property, plant and equipment 194 205
Other assets 7 7
Accounts payable and
other current liabilities (67) (41)
Other liabilities (72) (71)
-----------------
Net assets of
discontinued operations $ 93 $120
- -------------------------------------------------------------
</TABLE>
12. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted
earnings per share:
<TABLE>
<CAPTION>
- -------------------------------------------------------------
(in millions
except per share) 1998 1997 1996
- -------------------------------------------------------------
<S> <C> <C> <C>
Numerator:
Income (loss) from
continuing operations
before extraordinary
item and cumulative
effect of accounting
change $ (194) $ (20) $ 79
---------------------------
Denominator:
Denominator for basic
earnings per share --
weighted average shares 124 111 111
Effect of dilutive securities:
Employee stock options 1
---------------------------
Denominator for diluted
earnings per share--
adjusted weighted
average shares and
assumed conversions 124 111 112
- -------------------------------------------------------------
Basic earnings (loss)
per share from continuing
operations before
extraordinary item
and cumulative effect of
accounting change $(1.56) $(.18) $ .71
- -------------------------------------------------------------
Diluted earnings (loss)
per share from continuing
operations before
extraordinary item and
cumulative effect of
accounting change $(1.56) $(.18) $ .70
- -------------------------------------------------------------
</TABLE>
Options to purchase one million shares of common stock under the treasury
stock method, convertible debt to acquire one million shares of common stock
with an earnings effect of $2 million, and additional minority interest shares
of three million with an earnings effect of $1 million are excluded from the
diluted earnings per share computation in 1998 because they are antidilutive.
Options to purchase an immaterial number of shares of common stock for 1997 and
1996 were outstanding, but not included in the computation of diluted earnings
per share because the option exercise price was greater than the average market
price of the common shares for the year.
45
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
13. RELATED PARTY TRANSACTIONS
TRANSACTIONS WITH JS GROUP
Transactions with Jefferson Smurfit Group plc ("JS Group"), a significant
shareholder of the Company, its subsidiaries and affiliated companies were as
follows:
<TABLE>
<CAPTION>
- --------------------------------------------
1998 1997 1996
- --------------------------------------------
<S> <C> <C> <C>
Product sales $39 $34 $34
Product and raw material
purchases 54 51 64
Management services income 4 4 5
Charges from JS Group
for services provided 1
Charges to JS Group for
costs pertaining to
the Fernandina No. 2
paperboard
machine through
November 18, 1998 50 53 54
Receivables at December 31 5 3 3
Payables at December 31 4 11 10
</TABLE>
Product sales to and purchases from JS Group, its subsidiaries and
affiliates are consummated on terms generally similar to those prevailing with
unrelated parties.
The Company provides certain subsidiaries and affiliates of JS Group with
general management and elective management services under separate Management
Services Agreements. In consideration for general management services, the
Company is paid a fee up to 2% of the subsidiaries' or affiliates' gross sales.
In consideration for elective services, the Company is reimbursed for its direct
cost of providing such services.
On November 18, 1998 the Company purchased the No. 2 paperboard machine
located in the Company's Fernandina Beach, FL, paperboard mill (the "Fernandina
Mill") for $175 million from an affiliate of JS Group. Until that date, the
Company and the affiliate were parties to an operating agreement whereby the
Company operated and managed the No. 2 paperboard machine. The Company was
compensated for its direct production and manufacturing costs and indirect
manufacturing, selling and administrative costs incurred for the entire
Fernandina Mill. The compensation was determined by applying various formulas
and agreed-upon amounts to the subject costs. The amounts reimbursed to the
Company are reflected as reductions of cost of goods sold and selling and
administrative expenses in the accompanying consolidated statements of
operations.
Stone's Canadian subsidiary, Stone Container (Canada) Inc. ("Stone Canada")
owns a 50% interest in MBI. On September 4, 1998, Stone Canada purchased the
remaining 50% of MBI from MacMillan Bloedel Ltd., for $185 million (Canadian).
Simultaneously, Stone Canada sold the newly acquired 50% interest to JS Group
for the same amount.
The Company, in connection with Merger related activities, either paid or
reimbursed $16 million in legal fees, financial advisory fees and executive
compensation to JS Group.
TRANSACTIONS WITH NON-CONSOLIDATED AFFILIATES
The following table summarizes the Company's sales of paperboard and other
related party transactions with Stone's non-consolidated affiliates after
November 18, 1998.
<TABLE>
<CAPTION>
- ------------------------------------------------------
1998
- ------------------------------------------------------
<S> <C>
Product sales $24
Accounts and notes receivable at December 31 70
</TABLE>
On October 15, 1998 Stone sold its Snowflake, AZ newsprint manufacturing
operations and related assets to Abitibi for $250 million. The Company retained
ownership of a corrugating medium machine located in the facility that Abitibi
will operate on behalf of the Company pursuant to an operating agreement entered
into as part of the sale. Payments made to Abitibi under the operating agreement
after November 18, 1998 were $4 million.
46
<PAGE>
<PAGE>
14. Fair Value of Financial Instruments
The carrying values and fair values of the Company's financial instruments
are as follows:
<TABLE>
<CAPTION>
December 31,
------------------------------------
1998 1997
---------------- ----------------
Carrying Fair Carrying Fair
Amount Value Amount Value
- ----------------------------------------------------------
<S> <C> <C> <C> <C>
Cash and
cash equivalents $ 155 $ 155 $ 12 $ 12
Notes receivable
and long-term
investments 22 22
Long-term debt
including
current
maturities 6,633 6,690 2,040 2,105
</TABLE>
The carrying amount of cash equivalents approximates fair value because of
the short maturity of those instruments. The fair values of notes receivable and
long-term investments are based on discounted future cash flows or the
applicable quoted market price. The fair value of the Company's debt is
estimated based on the quoted market prices for the same or similar issues or on
the current rates offered to the Company for debt of the same remaining
maturities.
15. CONTINGENCIES
The Company's past and present operations include activities which are
subject to federal, state and local environmental requirements, particularly
relating to air and water quality. The Company faces potential environmental
liability as a result of violations of permit terms and similar authorizations
that have occurred from time to time at its facilities.
The Company faces potential liability for response costs at various sites
with respect to which the company has received notice that it may be a
potentially responsible party ("PRP"), as well as contamination of certain
Company-owned properties, concerning hazardous substance contamination. In
estimating its reserves for environmental remediation and future costs, the
Company's estimated liability reflects only the Company's expected share. In
determining the liability, the estimate takes into consideration the number of
other PRP's at each site, the identity and financial condition of such parties
and experience regarding similar matters.
In April 1998, a suit was filed against Stone in Los Angeles Superior Court
by Chesterfield Investments L.P. ("Chesterfield"), and D.P. Investments L.P.
("DPI"), alleging that Stone owes such parties approximately $120 million
relating to Stone's purchase of common stock of Stone Savannah River Pulp and
Paper Corporation ("SSR"). In 1991, Stone purchased the shares of common stock
of SSR held by Chesterfield and DPI for approximately $6 million plus a
contingent payment payable in March 1998 based upon the post-closing performance
of the operations of SSR from 1991 through 1997. Stone has concluded a
settlement of the case with DPI, which had a 30% interest in the contingent
payment. Chesterfield is continuing to pursue the case as to the remaining 70%
of the contingent payment. Stone disputes Chesterfield's calculation of the
contingent payment, and is vigorously defending the litigation. The case is
currently set for trial in the second quarter of 1999. Stone believes that
existing reserves are adequate and the Company does not believe that the
resolution of this matter will have a significant impact on the Company's
financial condition or results of operations.
Stone is a party to an Output Purchase Agreement (the "OPA") with Four M
Corporation ("Four M") and Florida Coast Paper Company, L.L.C. ("FCPC"), a joint
venture owned 50% by each of Stone and Four M. The OPA requires that Stone and
Four M each purchase one half of the linerboard produced at FCPC's mill in Port
St. Joe, FL (the "FCPC Mill") at a minimum price sufficient to cover certain
obligations of FCPC. The OPA also requires Stone and Four M to use their best
efforts to cause the FCPC Mill to operate at a production rate not less than the
reported average capacity utilization of the U.S. linerboard industry. FCPC
indefinitely discontinued production at the FCPC Mill in August 1998. Certain
creditors of FCPC have alleged that Stone and Four M are in default with respect
to their obligations under the OPA. Stone's ultimate liability under the OPA is
uncertain at this time, although Stone believes that existing reserves are
adequate to cover the amount of any adverse judgment in this matter.
Subsequent to an understanding reached in December 1998, the Company and
SNC entered into a Settlement Agreement in January 1999 to implement a
nationwide class action settlement of
47
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
claims involving Cladwood'r', a composite wood siding product manufactured
by SNC that has been used primarily in the construction of manufactured or
mobile homes. The Company recorded a $30 million pre-tax charge to reflect
amounts SNC has agreed to pay into a settlement fund, administrative costs,
plaintiffs' attorneys' fees, class representative payments and other costs. The
Company believes its reserve is adequate to pay eligible claims. However, the
number of claims, and the number of potential claimants who choose not to
participate in the settlement, could cause the Company to re-evaluate whether
the liabilities in connection with the Cladwood'r' cases could exceed
established reserves.
In March 1999, management of SNC's Oregon City, OR newsprint mill became
aware of possible violations of the mill's National Pollutant Discharge
Elimination System permit. SNC has provided both the EPA and Oregon Department
of Environmental Quality with a detailed report of its internal investigation
and it is probable that the agencies will conduct an additional investigation
based on this report. The Company is unable to predict its potential liability
in this matter at this time.
The Company is a defendant in a number of lawsuits and claims arising out
of the conduct of its business, including those related to environmental
matters. While the ultimate results of such suits or other proceedings against
the Company cannot be predicted with certainty, the management of the Company
believes that the resolution of these matters will not have a material adverse
effect on its consolidated financial condition or results of operations.
16. BUSINESS SEGMENT INFORMATION
The Company adopted SFAS No. 131, "Disclosures About Segments of an
Enterprise and Related Information", in 1998 which changes the way operating
segment information is presented. The information for 1997 and 1996 has been
restated from the prior year's presentation in order to conform to the 1998
presentation.
The Company has two reportable segments: (1) Containerboard and Corrugated
Containers, and (2) Boxboard and Folding Cartons. The Containerboard and
Corrugated Containers segment is highly integrated. It includes a system of
mills and plants that produces a full line of containerboard that is converted
into corrugated containers. Corrugated containers are used to transport such
diverse products as home appliances, electric motors, small machinery, grocery
products, produce, books, tobacco and furniture. The Boxboard and Folding
Cartons segment is also highly integrated. It includes a system of mills and
plants that produces a broad range of coated recycled boxboard that is converted
into folding cartons. Folding cartons are used primarily to protect products,
such as food, fast food, detergents, paper products, beverages, health and
beauty aids and other consumer products, while providing point of purchase
advertising.
The Company evaluates performance and allocates resources based on profit
or loss from operations before income taxes, and other gains and losses. The
accounting policies of the reportable segments are the same as those described
in the summary of significant accounting policies except that the Company
accounts for inventory on a FIFO basis at the segment level compared to a LIFO
basis at the consolidated level. Intersegment sales and transfers are recorded
at market prices. Intercompany profit is eliminated at the corporate division
level.
The Company's reportable segments are strategic business units that offer
different products. The reportable segments are each managed separately because
they manufacture distinct products. Other includes four non-reportable segments,
specialty packaging, industrial bags, reclamation, international and corporate
related items. Corporate related items include goodwill, equity investments,
income and expense not allocated to reportable segments (goodwill amortization
and interest expense), the adjustment to record inventory at LIFO, and the
elimination of intercompany assets and intercompany profit. In 1998, corporate
related items also included a $257 million restructuring charge (See Note 2).
The restructuring charge included $179 million for the write-down of property,
plant and equipment of the Containerboard and Corrugated Containers Segment to
fair value.
48
<PAGE>
<PAGE>
A summary by business segment follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Containerboard Boxboard
& Corrugated & Folding
Containers Cartons Other Total
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Year ended December 31, 1998
Revenues from external customers ....... $ 2,014 $ 785 $ 670 $ 3,469
Intersegment revenues .................. 57 149 206
Depreciation, depletion and amortization 85 22 61 168
Segment profit (loss) .................. 123 67 (497) (307)
Total assets ........................... 5,751 455 5,425 11,631
Capital expenditures ................... 221 26 40 287
Year ended December 31, 1997
Revenues from external customers ....... $ 1,607 $ 752 $ 577 $ 2,936
Intersegment revenues .................. 35 167 202
Depreciation, depletion and amortization 67 21 39 127
Segment profit (loss) .................. 56 68 (147) (23)
Total assets ........................... 1,462 435 874 2,771
Capital expenditures ................... 101 37 44 182
Year ended December 31, 1996
Revenues from external customers ....... $ 1,794 $ 756 $ 537 $ 3,087
Intersegment revenues .................. 41 151 192
Depreciation, depletion and amortization 67 20 38 125
Segment profit (loss) .................. 197 66 (132) 131
Total assets ........................... 1,434 393 861 2,688
Capital expenditures ................... 58 24 47 129
- -------------------------------------------------------------------------------------
</TABLE>
The following table presents net sales to external customers by country:
<TABLE>
<CAPTION>
- -----------------------------------------------
1998 1997 1996
- -----------------------------------------------
<S> <C> <C> <C>
United States $3,200 $2,753 $2,905
Canada 52 35 35
Europe and other 217 148 147
- -----------------------------------------------
Total net sales $3,469 $2,936 $3,087
===============================================
</TABLE>
The following table presents long-lived assets by country:
<TABLE>
<CAPTION>
- ------------------------------------------------
1998 1997 1996
- ------------------------------------------------
<S> <C> <C> <C>
United States $4,972 $1,787 $1,719
Canada 325 1 1
Europe and other 475
- ------------------------------------------------
5,772 1,788 1,720
Goodwill 2,869 237 246
- ------------------------------------------------
Total long lived assets $8,641 $2,025 $1,966
================================================
</TABLE>
49
<PAGE>
<PAGE>
SMURFIT-STONE CONTAINER CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
continued
17. QUARTERLY RESULTS (UNAUDITED)
The following is a summary of the unaudited quarterly results of operations:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
First Second Third Fourth
Quarter Quarter Quarter Quarter
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1998
Net sales ..................................... $ 764 $ 764 $ 758 $ 1,183
Gross profit .................................. 127 125 125 158
Income (loss) from continuing operations before
extraordinary item and cumulative effect of
accounting change ........................... 3 2 3 (202)
Discontinued operations ....................... 8 9 5 (12)
Extraordinary item ............................ (13)
Cumulative effect of accounting change ........ (3)
Net income (loss) ............................. (5) 11 8 (214)
Basic earnings (loss) per share:
Income (loss) from continuing operations before
extraordinary item and cumulative effect of
accounting change ........................... .03 .02 .03 (1.25)
Discontinued operations ....................... .07 .08 .04 (.08)
Extraordinary item ............................ (.12)
Cumulative effect of accounting change ........ (.03)
-------------------------------------------------
Net income (loss) ............................. (.05) .10 .07 (1.33)
Diluted earnings (loss) per share:
Income (loss) from continuing operations before
extraordinary item and cumulative effect of
accounting change ........................... .03 .02 .03 (1.25)
Discontinued operations ....................... .07 .08 .04 (.08)
Extraordinary item ............................ (.11)
Cumulative effect of accounting change ........ (.03)
-------------------------------------------------
Net income (loss) ............................. (.04) .10 .07 (1.33)
1997
Net sales ..................................... $ 711 $ 709 $ 753 $ 763
Gross profit .................................. 100 99 116 107
Income (loss) from continuing operations ...... (8) (9) 1 (4)
Discontinued operations ....................... 1 5 7 8
Net income (loss) ............................. (7) (4) 8 4
Basic earnings (loss) per share:
Income (loss) from continuing operations ...... (.07) (.08) .01 (.03)
Discontinued operations ....................... .01 .04 .06 .07
---------------------------------------------------
Net income (loss) ............................. (.06) (.04) .07 .04
Diluted earnings (loss) per share:
Income (loss) from continuing operations ...... (.07) (.08) .01 (.03)
Discontinued operations ....................... .01 .04 .06 .07
-------------------------------------------------
Net income (loss) ............................. (.06) (.04) .07 .04
</TABLE>
The first three quarters of 1998 and all quarters for 1997 have been
restated to reflect discontinued operations. The first quarter of 1998 has been
restated for the cumulative effect of accounting change for start-up costs.
50
<PAGE>
<PAGE>
- -------------------------------------------------------------------------------
SMURFIT-STONE CONTAINER CORPORATION
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
(In millions)
- --------------------------------------------------------------------------------------------
Column A Column B Column C Column D Column E Column F
- ------------------------------------ ---------- ----------- ---------- ---------- ---------
Additions
Balance at Charged Balance
Beginning to Costs Deductions at End of
Description of Period and Expenses Other Describe Period
- ------------------------------------ ---------- ----------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts and
sales returns and allowances:
Year ended December 31, 1998 $ 10 $ 3 $ 75(b) $ 3(a) $ 85
-------------------------------------------------------
Year ended December 31, 1997 $ 9 $ 2 $ $ 1(a) $ 10
-------------------------------------------------------
Year ended December 31, 1996 $ 9 $ 5 $ $ 5(a) $ 9
-------------------------------------------------------
Restructuring of Stone operations:
Year ended December 31, 1998 $ $ $117(d) $ 11(c) $106
-------------------------------------------------------
Restructuring of JSC (U.S.) operations:
Year ended December 31, 1998 $ $ $257 $186(c) $ 71
-------------------------------------------------------
</TABLE>
(a) Uncollectible amounts written off, net of recoveries.
(b) Amount related to the acquisition of Stone.
(c) Charges against the restructuring reserves.
(c) Restructuring charges associated with exit activities included in the
purchase price allocation of Stone.
51
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
ITEM 9.CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
- --------------------------------------------------------------------------------
None
- --------------------------------------------------------------------------------
PART III
- --------------------------------------------------------------------------------
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
- --------------------------------------------------------------------------------
Information relating to the Registrant's Directors and Executive Officers
is incorporated herein by reference to the Proxy Statement to be filed on or
before April 30, 1999, for the Annual Meeting of Stockholders scheduled May 27,
1999 (the "SSCC Proxy Statement"), under the captions "Election of
Directors--Nominees for Directors," "Information as to Executive Officers" and
"Certain Transactions."
- --------------------------------------------------------------------------------
ITEM 11. EXECUTIVE COMPENSATION
- --------------------------------------------------------------------------------
The information required in response to this item is set forth under the
captions "Executive Compensation", "Report of the Compensation Committee on
Executive Compensation" and "Compensation/Appointment Committee Interlocks and
Insider Participation" in the SSCC Proxy Statement, and is incorporated herein
by reference.
- --------------------------------------------------------------------------------
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
- --------------------------------------------------------------------------------
All of the outstanding JSC (U.S.) Common Stock is owned by JSCE, and all of
the JSCE Common Stock is owned by SSCC. Additional information required in
response to this item is set forth under the caption "Principal Stockholders" in
the SSCC Proxy Statement and is incorporated herein by reference.
- --------------------------------------------------------------------------------
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
- --------------------------------------------------------------------------------
The information required in response to this item is set forth under the
caption "Certain Transactions" in the SSCC Proxy Statement and is incorporated
herein by reference.
52
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
PART IV
- --------------------------------------------------------------------------------
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
(a) (1) and (2) The list of Financial Statements and Financial Statement
Schedules required by this item is included in Item 8.
(3) Exhibits.
2.1 Agreement and Plan of Merger dated as of May 10, 1998, as amended, among
SSCC, Stone and JSC Acquisition (incorporated by reference to Exhibit
2(a) to SSCC's Registration Statement on Form S-4 (File No. 333-65431)).
2.2 Stock Purchase Agreement dated as of May 10, 1998 among SIBV, JSG,
MSLEF, SSCC and certain other shareholders of SSCC (incorporated by
reference to Exhibit 2(b) to SSCC's Registration Statement on Form S-4
(File No. 333-65431)).
2.3 Asset Purchase Agreement dated as of May 10, 1998 between SSCC and
Smurfit Packaging Corporation (incorporated by reference to Exhibit 2(c)
to SSCC's Registration Statement on Form S-4 (File No. 333-65431)).
3.1 Form of Restated Certificate of Incorporation of SSCC (incorporated by
reference to Exhibit 3(a) to SSCC's Registration Statement on Form S-4
(File No. 333-65431)).
3.2 Form of Restated Bylaws of SSCC (incorporated by reference to Exhibit
3(b) to SSCC's Registration Statement on Form S-4 (File No. 333-65431)).
4.1 Certificate for SSCC's Common Stock (incorporated by reference to
Exhibit 4.3 to SSCC's Registration Statement on Form S-8 (File No.
33-57085)).
Indentures and other debt instruments with respect to long-term debt, none of
which exceeds 10 percent of the total assets of SSCC and its subsidiaries on a
consolidated basis, are not filed herewith. The Registrant agrees to furnish a
copy of such documents to the Commission upon request.
10.1 Subscription Agreement among SSCC, JSC (U.S.), CCA and SIBV
(incorporated by reference to Exhibit 10.4 to SSCC's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1994).
10.2(a) Restated Newsprint Agreement, dated January 1, 1990, by and between SNC
and Times Mirror (incorporated by reference to Exhibit 10.39 to JSC (U.S.)'s
Annual Report on Form 10-K for the fiscal year ended December 31, 1990).
Portions of this exhibit have been excluded pursuant to Rule 24b-2 of
the Securities Exchange Act of 1934, as amended.
10.2(b) Amendment No. 1 to the Restated Newsprint Agreement (incorporated by
reference to Exhibit 10.6(b) to SSCC's Registration Statement on Form
S-1 (File No. 33-75520)).
10.3* JSC (U.S.) Deferred Compensation Plan as amended (incorporated by
reference to Exhibit 10.7 to SSCC's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996).
10.4* JSC (U.S.) Management Incentive Plan (incorporated by reference to
Exhibit 10.10 to SSCC's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995).
10.5* Jefferson Smurfit Corporation Amended and Restated 1992 Stock Option
Plan dated as of May 1, 1997 (incorporated by reference to Exhibit 10.10
to SSCC's Annual Report on Form 10-K for the fiscal year ended December
31, 1997).
10.6 Amended and Restated Credit Agreement, dated as of November 18, 1998,
among SSCC, JSCE, JSC (U.S.) and the banks party thereto.
10.7(a) Term Loan Agreement dated as of February 23, 1995 among JS Finance and
Bank Brussels Lambert, New York Branch (incorporated by reference to
Exhibit 10.1 to SSCC's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995).
10.7(b) Depositary and Issuing and Paying Agent Agreement (Series A Commercial
Paper) as of February 23, 1995 (incorporated by reference to Exhibit
10.2 to SSCC's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995).
10.7(c) Depositary and Issuing and Paying Agent Agreement (Series B Commercial
Paper) as of February 23, 1995 (incorporated by reference to Exhibit
10.3 to SSCC's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995).
</TABLE>
53
<PAGE>
<PAGE>
<TABLE>
<S> <C>
10.7(d) Receivables Purchase and Sale Agreement dated as of February 23, 1995
among JSC (U.S.), as the Initial Servicer and JS Finance, as the
Purchaser (incorporated by reference to Exhibit 10.4 to SSCC's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995).
10.7(e) Liquidity Agreement dated as of February 23, 1995 among JS Finance,
the Financial Institutions party thereto as Banks, Bankers Trust
Company, as Facility Agent and Bankers Trust Company as Collateral
Agent (incorporated by reference to Exhibit 10.6 to SSCC's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995).
10.7(f) Commercial Paper Dealer Agreement dated as of February 23, 1995 among
BT Securities Corporation, MS&Co., JSC (U.S.) and JS Finance
(incorporated by reference to Exhibit 10.7 to SSCC's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995).
10.7(g) Addendum dated March 6, 1995 to Commercial Paper Dealer Agreement
(incorporated by reference to Exhibit 10.8 to SSCC's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995).
10.7(h) First Omnibus Amendment dated as of March 31, 1996 to the Receivables
Purchase and Sale Agreement among JSC (U.S.), JS Finance and the Banks
party thereto (incorporated by reference to Exhibit 10.3 to SSCC's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996).
10.7(i) Affiliate Receivables Sale Agreement dated as of March 31, 1996
between SNC and SSCC (incorporated by reference to Exhibit 10.4 to
SSCC's Quarterly Report on Form 10-Q for the quarter ended June 30,
1996).
10.7(j) Amendment No. 2 dated as of August 19, 1997 to the Term Loan Agreement
among JS Finance and Bank Brussels Lambert, New York Branch and JSC
(U.S.) as Servicer (incorporated by reference to Exhibit 10.12(j) to
SSCC's Annual Report on Form 10-K for the fiscal year ended December
31, 1997).
10.7(k) Amendment No. 2 dated as of August 19, 1997 to the Receivables
Purchase and Sale Agreement among JSC (U.S.) as the Seller and
Servicer and JS Finance as the Purchaser, Bankers Trust Company as
Facility Agent and Bank Brussels Lambert, New York Branch as the Term
Bank (incorporated by reference to Exhibit 10.12(k) to SSCC's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997).
10.7(l) Amendment No. 2 dated as of August 19, 1997 to the Liquidity Agreement
among JS Finance, Bankers Trust Company as Facility Agent, JSC (U.S.)
as Servicer, Bank Brussels Lambert, New York Branch as Term Bank and
the Financial Institutions party thereto as Banks (incorporated by
reference to Exhibit 10.12(l) to SSCC's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997).
10.8(a) Amended and Restated Credit Agreement dated as of November 18, 1998
among Stone, the Financial Institutions signatory thereto, and Bankers
Trust Company, as agent, (incorporated by reference to Exhibit 15 to
Stone Container Corporation's Report on Form 8-A/A dated November 18,
1998).
10.8(b) First Amendment of Amended and Restated Credit Agreement dated as of
March 23, 1999, among Stone, the Financial Institutions signatory
thereto, and Bankers Trust Company, as agent (incorporated by
reference to Exhibit 4(b)(ii) to Stone Container Corporation's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998).
10.9* Consulting Agreement dated as of October 24, 1996 by and between James
E. Terrill and JSC (U.S.) (incorporated by reference to Exhibit 10.15
to SSCC's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996).
10.10 Standstill Agreement dated as of May 10, 1998, as amended, among JSG,
MSLEF and SSCC (incorporated by reference to Exhibit 10(a) to SSCC's
Registration Statement on Form S-4 (File No. 333-65431)).
10.11(a) Letter Agreement dated as of May 10, 1998 between SIBV and Stone
(incorporated by reference to Exhibit 10(b) to SSCC's Registration
Statement on Form S-4 (File No. 333-65431)).
10.11(b) Letter Agreement dated as of May 10, 1998 between MSLEF and Stone
(incorporated by reference to Exhibit 10(c) to SSCC's Registration
Statement on Form S-4 (File No. 333-65431)).
10.11(c) Letter Agreement dated as of May 10, 1998 between Mr. Roger W. Stone
and SSCC (incorporated by reference to Exhibit 10(d) to SSCC's
Registration Statement on Form S-4 (File No. 333-65431)).
10.12 Registration Rights Agreement dated as of May 10, 1998 among MSLEF,
SIBV, SSCC and the other parties identified on the signature pages
thereto (incorporated by reference to Exhibit 10(e) to SSCC's
Registration Statement on Form S-4 (File No. 333-65431)).
10.13 Voting Agreement dated as of May 10, 1998, as amended, among SIBV,
MSLEF and Mr. Roger W. Stone (incorporated by reference to Exhibit
10(f) to SSCC's Registration Statement on Form S-4 (File No.
333-65431)).
10.14* SSCC 1998 Long Term Incentive Plan.
10.15* Forms of Employment Security Agreements (incorporated by reference to
Exhibit 10(h) to SSCC's Registration Statement on Form S-4 (File No.
333-65431)).
</TABLE>
54
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<TABLE>
<S> <C>
10.16* Management Incentive Plan (incorporated by reference to Exhibit 10(b) to
Stone Container Corporation's Annual Report on Form 10-K for the fiscal
year ended December 31, 1980).
10.17* Stone Container Corporation Directors' Deferred Compensation Plan
(incorporated by reference to Exhibit 10(b) to Stone Container
Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997).
10.18* Stone Container Corporation 1982 Incentive Stock Option Plan
(incorporated by reference to Appendix A to the Prospectus included in
Stone Container Corporation's Form S-8 Registration Statement,
Registration Number 2-79221, effective September 27, 1982).
10.19* Stone Container Corporation 1993 Stock Option Plan, (incorporated by
reference to Appendix A to Stone Container Corporation's Proxy Statement
dated as of April 10, 1992).
10.20* Stone Container Corporation Deferred Income Savings Plan, as amended,
(incorporated by reference to Exhibit 4.3 to Stone Container
Corporation's Form S-8 Registration Statement, Registration Number
333-42087).
10.21* Stone Container Corporation 1992 Long-Term Incentive Program,
(incorporated by reference to Exhibit A to Stone Container Corporation's
Proxy Statement dated as of April 11, 1991).
10.22* Stone Container Corporation 1995 Long-Term Incentive Plan, (incorporated
by reference to Exhibit A to Stone Container Corporation's Proxy
Statement dated as of April 7, 1995).
10.23* Stone Container Corporation 1995 Key Executive Officer Short-Term
Incentive Plan, (incorporated by reference to Exhibit B to Stone
Container Corporation's Proxy Statement dated as of April 7, 1995).
10.24* Form of Severance Agreement, dated July 22, 1996, entered into between
Stone Container Corporation and Roger W. Stone, (incorporated by
reference to Exhibit 10(j) to Stone Container Corporation's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996).
10.25* Form of Severance Agreement, dated July 22, 1996, entered into between
Stone Container Corporation and John D. Bence, Thomas W. Cadden, Matthew
S. Kaplan and Randolph C. Read (incorporated by reference to Exhibit
10(k) to Stone Container Corporation's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996).
10.26* Employment Agreement, dated November 18, 1998, entered into between SSCC
and Harold D. Wright.
10.27* Fee and Expense Reimbursement Letter dated October 2, 1998 between SSCC
and JSG.
10.28 Management Services Agreement, dated January 1, 1993, by and between
SSCC, Smurfit Packaging Corporation and SNC.
10.29 Management Services Agreement, dated January 1, 1993, by and between
SSCC and Smurfit Packaging Corporation.
10.30 Management Services Agreement, dated January 1, 1993, by and between
SSCC and Sequoia Pacific Voting Equipment, Inc.
10.31 Pension and Insurance Services Agreement, dated January 1, 1997, by
and between SSCC and Smurfit Packaging Corporation.
10.32 Pension and Insurance Services Agreement, dated January 1, 1997, by and
between SSCC and Smurfit Latin America, a division of Smurfit Packaging
Corporation.
21.1 Subsidiaries of SSCC.
23.1 Consent of Independent Auditors.
24.1 Powers of Attorney.
27.1 Financial Data Schedule.
</TABLE>
- --------------------------------
*Indicates a management contract or compensation plan or arrangement.
(b) Report on Form 8-K.
There were no Form 8-K filings during the three months ended
December 31, 1998.
The Company filed Form 8-K on February 11, 1999 regarding Mr. Roger
W. Stone's announcement of his resignation as President, Chief
Executive Officer and Director of the Company, effective March 31,
1999 and the appointment by the Board of Directors of Mr. Raymond
M. Curran to succeed Mr. Stone.
55
<PAGE>
<PAGE>
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
DATE March 31, 1999 SMURFIT-STONE CONTAINER CORPORATION
-------------------- -----------------------------------
(Registrant)
BY /s/ Patrick J. Moore
------------------------------
Patrick J. Moore
Vice-President and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board
- ----------------------------- and Director
Michael W. J. Smurfit
* President and Chief Executive Officer
- ---------------------------- and Director (Principal Executive Officer)
Ray M. Curran
/s/ Patrick J. Moore Vice-President and Chief Financial March 31, 1999
- ---------------------------- Officer (Principal Financial Officer)
Patrick J. Moore
/s/ Paul K. Kaufmann Vice-President and Corporate Controller March 31, 1999
- ---------------------------- (Principal Accounting Officer)
Paul K. Kaufmann
* Director
- ----------------------------
Dionisio Garza
* Director
- ----------------------------
Richard A. Giesen
* Director
- ----------------------------
Alan E. Goldberg
* Director
- ----------------------------
Richard W. Graham
* Director
- ----------------------------
Matthew S. Kaplan
* Director
- ----------------------------
James J. O'Connor
* Director
- ----------------------------
Jerry K. Pearlman
* Director
- ----------------------------
Thomas A. Reynolds, III
* Director
- ----------------------------
Dermot F. Smurfit
* Director
- ----------------------------
Roger W. Stone
*By /s/ Patrick J. Moore , pursuant to Powers of Attorney filed as
- ---------------------------- a part of the Form 10-K.
Patrick J. Moore
</TABLE>
56
STATEMENT OF DIFFERENCES
The registered trademark symbol shall be expressed as...... 'r'
<PAGE>
<PAGE>
EXHIBIT 10.6
CONFORMED COPY
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 18, 1998,
among
JEFFERSON SMURFIT CORPORATION (U.S.),
SMURFIT-STONE CONTAINER CORPORATION,
JSCE, INC.,
THE LENDERS AND FRONTING BANKS PARTIES HERETO,
THE MANAGING AGENTS NAMED HEREIN,
BANKERS TRUST COMPANY,
as Senior Managing Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Senior Managing Agent
----------------------------------------------------------
BT ALEX. BROWN INCORPORATED,
as Joint Book Manager, Lead Arranger and Syndication Agent
and
CHASE SECURITIES INC.,
as Joint Book Manager and Lead Arranger
================================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
ARTICLE I
Definitions..............................................................................................3
SECTION 1.01. Defined Terms.............................................................................3
SECTION 1.02. Terms Generally..........................................................................31
ARTICLE II
The Credits.............................................................................................31
SECTION 2.01. Commitments..............................................................................31
SECTION 2.02. Loans....................................................................................32
SECTION 2.03. Notice of Borrowings.....................................................................34
SECTION 2.04. Repayment of Loans; Evidence of Debt.....................................................34
SECTION 2.05. Fees.....................................................................................35
SECTION 2.06. Interest on Loans........................................................................36
SECTION 2.07. Default Interest.........................................................................38
SECTION 2.08. Alternate Rate of Interest...............................................................38
SECTION 2.09. Termination and Reduction of Commitments.................................................38
SECTION 2.10. Conversion and Continuation of Borrowings................................................39
SECTION 2.11. Repayment of Term Borrowings.............................................................41
SECTION 2.12. Optional Prepayments.....................................................................42
SECTION 2.13. Mandatory Prepayments....................................................................43
SECTION 2.14. Reserve Requirements; Change in Circumstances; Increased Costs...........................46
SECTION 2.15. Change in Legality.......................................................................48
SECTION 2.16. Indemnity................................................................................48
SECTION 2.17. Pro Rata Treatment.......................................................................49
SECTION 2.18. Sharing of Setoffs.......................................................................49
SECTION 2.19. Payments.................................................................................50
SECTION 2.20. Taxes....................................................................................50
SECTION 2.21. Duty to Mitigate; Assignment of Commitments under Certain Circumstances..................53
SECTION 2.22. Swingline Loans..........................................................................55
ARTICLE III
Letters of Credit.......................................................................................56
SECTION 3.01. Issuance of Letters of Credit............................................................56
SECTION 3.02. Participations; Unconditional Obligations................................................57
SECTION 3.03. LC Fee...................................................................................58
SECTION 3.04. Agreement to Repay LC Disbursements......................................................58
SECTION 3.05. Letter of Credit Operations..............................................................59
SECTION 3.06. Termination of LC Commitment.............................................................60
SECTION 3.07. Fronting Bank Fees.......................................................................60
SECTION 3.08. Resignation or Removal of the Fronting Bank..............................................60
SECTION 3.09. Cash Collateralization...................................................................61
</TABLE>
i
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SECTION 3.10. Additional Fronting Banks................................................................61
ARTICLE IV
Representations and Warranties..........................................................................62
SECTION 4.01. Organization; Powers.....................................................................62
SECTION 4.02. Authorization............................................................................62
SECTION 4.03. Enforceability...........................................................................63
SECTION 4.04. Governmental Approvals...................................................................63
SECTION 4.05. Financial Statements.....................................................................63
SECTION 4.06. No Material Adverse Change...............................................................63
SECTION 4.07. Title to Properties; Possession Under Leases.............................................64
SECTION 4.08. Subsidiaries.............................................................................64
SECTION 4.09. Litigation; Compliance with Laws.........................................................64
SECTION 4.10. Agreements...............................................................................65
SECTION 4.11. Federal Reserve Regulations..............................................................65
SECTION 4.12. Investment Company Act; Public Utility Holding Company Act...............................65
SECTION 4.13. Use of Proceeds..........................................................................65
SECTION 4.14. Tax Returns..............................................................................65
SECTION 4.15. No Material Misstatements................................................................65
SECTION 4.16. Employee Benefit Plans...................................................................66
SECTION 4.17. Environmental and Safety Matters.........................................................66
SECTION 4.18. Solvency.................................................................................68
SECTION 4.19. Security Documents......................................................................68
SECTION 4.20. Labor Matters............................................................................69
SECTION 4.21. Location of Real Property................................................................70
SECTION 4.22. Patents, Trademarks, etc.................................................................70
SECTION 4.23. Y2K......................................................................................70
SECTION 4.24. Survival of Warranties...................................................................71
ARTICLE V
Conditions..............................................................................................71
SECTION 5.01. All Credit Events........................................................................71
SECTION 5.02. Original Closing Date....................................................................71
SECTION 5.03. Restatement Date.........................................................................75
ARTICLE VI
Affirmative Covenants...................................................................................80
SECTION 6.01. Existence; Businesses and Properties.....................................................80
SECTION 6.02. Insurance................................................................................81
SECTION 6.03. Obligations and Taxes....................................................................81
SECTION 6.04. Financial Statements, Reports, etc.......................................................81
SECTION 6.05. Litigation and Other Notices.............................................................83
SECTION 6.06. ERISA....................................................................................83
SECTION 6.07. Maintaining Records; Access to Properties and Inspections................................84
SECTION 6.08. Use of Proceeds..........................................................................84
SECTION 6.09. Compliance with Law......................................................................84
SECTION 6.10. Further Assurances.......................................................................84
</TABLE>
ii
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<TABLE>
<S> <C>
SECTION 6.11. Material Contracts.......................................................................87
SECTION 6.12. Environmental Matters....................................................................87
SECTION 6.13. Distribution of Gross Export Revenues....................................................87
SECTION 6.14. Y2K......................................................................................87
SECTION 6.15. Maintenance of Corporate Separateness....................................................88
ARTICLE VII
Negative Covenants......................................................................................88
SECTION 7.01. Indebtedness.............................................................................88
SECTION 7.02. Liens....................................................................................90
SECTION 7.03. Sale/Leaseback Transactions..............................................................91
SECTION 7.04. Investments, Loans and Advances..........................................................91
SECTION 7.05. Mergers, Consolidations, Sales of Assets and Acquisitions................................92
SECTION 7.06. Restricted Junior Payments...............................................................93
SECTION 7.07. Transactions with Stockholders and Affiliates............................................94
SECTION 7.08. Business.................................................................................94
SECTION 7.09. Limitations on Debt Prepayments..........................................................95
SECTION 7.10. Amendment of Certain Documents...........................................................95
SECTION 7.11. Limitation on Dispositions of Subsidiary Stock; Creation of Subsidiaries.................96
SECTION 7.12. Restrictions on Ability of Subsidiaries to Pay Dividends.................................97
SECTION 7.13. Capital Expenditures.....................................................................97
SECTION 7.14. Consolidated EBITDA......................................................................97
SECTION 7.15. Interest Coverage Ratio..................................................................98
SECTION 7.16. Disposition of Collateral and other Assets...............................................98
SECTION 7.17. Disposition of Mortgaged Property........................................................99
SECTION 7.18. Fiscal Year.............................................................................100
ARTICLE VIII
Events of Default......................................................................................101
ARTICLE IX
The Administrative Agent, the Collateral Agent, the Senior Managing Agents and the Fronting Bank.......104
ARTICLE X
Miscellaneous..........................................................................................107
SECTION 10.01. Notices................................................................................107
SECTION 10.02. Survival of Agreement..................................................................108
SECTION 10.03. Binding Effect.........................................................................109
SECTION 10.04. Successors and Assigns.................................................................109
SECTION 10.05. Expenses; Indemnity....................................................................112
SECTION 10.06. Right of Setoff........................................................................113
SECTION 10.07. Applicable Law.........................................................................113
SECTION 10.08. Waivers; Amendment.....................................................................114
SECTION 10.09. Interest Rate Limitation...............................................................115
SECTION 10.10. Entire Agreement.......................................................................115
SECTION 10.11. Waiver of Jury Trial...................................................................115
</TABLE>
iii
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<TABLE>
<S> <C>
SECTION 10.12. Severability...........................................................................116
SECTION 10.13. Counterparts...........................................................................116
SECTION 10.14. Headings...............................................................................116
SECTION 10.15. Confidentiality........................................................................116
SECTION 10.16. Jurisdiction; Consent to Service of Process............................................117
SECTION 10.17. Receivables Program....................................................................118
SECTION 10.18. Florida Real Property..................................................................118
SECTION 10.19. Effect of Restatement..................................................................118
SECTION 10.20. Certain Relationships..................................................................118
</TABLE>
iv
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Guarantee Agreement
Exhibit D Form of Mortgage
Exhibit E Form of Pledge Agreement
Exhibit F Form of Security Agreement
Exhibit G Form of Patent, Trademark and Copyright Security Agreement
Exhibit H Form of SNC Security Agreement
Exhibit I-1 Form of Opinion of Michael Tierney, Esq.
Exhibit I-2 Form of Opinion of Davis Polk & Wardwell
Exhibit I-3 Form of Opinion of Local Counsel
Exhibit J Form of Reaffirmation of Guarantee
<CAPTION>
SCHEDULES
<S> <C>
Schedule 1.01(a) Prior Letters of Credit
Schedule 1.01(b) Material Contracts
Schedule 1.01(c) Material Subsidiaries
Schedule 1.01(d) Mills
Schedule 1.01(e) Mortgaged Property
Schedule 1.01(f) Receivables Program Documents
Schedule 2.01 Commitments
Schedule 4.04 Governmental Approvals
Schedule 4.08 Subsidiaries
Schedule 4.09 Litigation
Schedule 4.17 Environmental Matters
Schedule 4.19(b) UCC Filing Offices
Schedule 4.19(c) Mortgage Filing Offices
Schedule 4.19(d) Trademark Filing Offices
Schedule 4.19(e) UCC Filing Offices (SNC)
Schedule 4.20 Labor Matters
Schedule 4.21(a) Owned Real Properties
Schedule 4.21(b) Leased Real Properties
Schedule 4.21(c) Timberland Properties
Schedule 5.02(a) Closing Date Local Counsel
Schedule 5.03(a) Restatement Date Local Counsel
Schedule 7.01(a) Certain Existing Indebtedness
Schedule 7.04 Existing Investments
</TABLE>
v
<PAGE>
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November
18, 1998, is by and among JEFFERSON SMURFIT CORPORATION (U.S.), a Delaware
corporation (the "Borrower"); SMURFIT-STONE CONTAINER CORPORATION (formerly
named Jefferson Smurfit Corporation), a Delaware corporation ("SSCC"); JSCE,
INC., a Delaware corporation ("JSCE"); the Lenders (as defined in Article I);
the Managing Agents (as defined in Article I); the Fronting Banks (as defined in
Article I); BANKERS TRUST COMPANY, a New York banking corporation ("BTCo"), and
THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"), as senior
managing agents (in such capacity, each a "Senior Managing Agent") for the
Lenders; and Chase, as administrative agent (in such capacity, the
"Administrative Agent") and collateral agent (in such capacity, the "Collateral
Agent") for the Lenders, and as swingline lender (in such capacity, the
"Swingline Lender").
The Borrower, SSCC, JSCE, certain financial institutions (the
"Existing Lenders"), the Managing Agents, the Fronting Banks, BTCo and Chase, as
Senior Managing Agents, and Chase, as Administrative Agent, Collateral Agent and
Swingline Lender, previously entered into that certain Credit Agreement dated as
of March 24, 1998 (the "Existing Credit Agreement") whereunder (a) the Lenders
extended credit or agreed to extend credit in the form of (i) Tranche A Term
Loans (such term and each other capitalized term used but not defined in this
introductory statement having the meaning assigned to it in Article I) on the
Closing Date in an aggregate principal amount of $400,000,000, (ii) Tranche B
Term Loans on the Closing Date in an aggregate principal amount of $350,000,000
and (iii) Revolving Loans at any time and from time to time prior to the
Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $550,000,000, (b) the Swingline Lender agreed to
extend credit, at any time and prior to the Revolving Credit Maturity Date, in
the form of Swingline Loans, and (c) the Fronting Bank agreed to issue letters
of credit, in an aggregate face amount at any time outstanding not in excess of
$150,000,000.
The proceeds of the Term Loans made on the Closing Date and the
proceeds of the Revolving Loans made on and after the Closing Date under the
Existing Credit Agreement were used by the Borrower to (a) repay in full all
principal outstanding, and interest, fees, costs and other amounts due, under
the Prior Credit Agreement, (b) pay related fees and expenses and (c) provide
working capital for the Borrower and its Subsidiaries and for other general
corporate purposes, including the repurchase or refinancing of other
Indebtedness. Letters of Credit issued under the Existing Credit Agreement were
used to support obligations of the Borrower and its Subsidiaries incurred in the
ordinary course of their business.
The Borrower has requested that certain Tranche B Lenders make
additional Tranche B Term Loans to the Borrower in the aggregate principal
amount of $550,000,000 (the "Additional Tranche B Term Loans"), subject to the
terms and conditions set forth herein, the proceeds of which
<PAGE>
<PAGE>
Additional Tranche B Term Loans will be used by the Borrower solely for the
purposes of (a) (i) paying a cash dividend to JSCE, which will pay a like
dividend to SSCC (collectively, the "Restatement Date Dividends") and (ii)
making an unsecured loan to SSCC (the "SSCC Loan"), all of which funds described
in clauses (i) and (ii) above shall be (x) used by SSCC to pay fees and expenses
incurred in connection with the Restatement Date Transactions and (y)
contributed by SSCC in the form of common equity to Stone in an aggregate amount
not less than $290,000,000 and used by Stone, together with the net proceeds of
the Stone Snowflake Sale, to (A) repay outstanding revolving and supplemental
revolving loans under the Stone Credit Agreement, (B) repay Stone's 11-7/8%
Senior Notes maturing December 1, 1998 and (C) pay certain fees and expenses in
connection with the foregoing transactions, (b) financing the Fernandina
Acquisition, and (c) paying fees and expenses incurred in connection with the
Restatement Date Transactions.
The Existing Lenders are willing to continue the Tranche A Term
Loans and the Tranche B Term Loans and to continue to extend commitments to make
the Revolving Loans and the Swingline Loans, and to continue to issue or
participate, as the case may be, in Letters of Credit, to or for the benefit of
the Borrower, in each case for the respective purposes set forth above and on
the terms and conditions hereinafter set forth.
The New Tranche B Lenders are willing to make the Additional
Tranche B Term Loans to the Borrower for the purposes set forth above and
subject to the terms and conditions hereinafter set forth.
The Borrower, SSCC, JSCE, the Existing Lenders, the New Tranche B
Lenders, the Managing Agents, the Senior Managing Agents, the Administrative
Agent and the Collateral Agent now desire to amend and restate the Existing
Credit Agreement to, among other things, set forth the terms and conditions
under which the New Tranche B Lenders hereafter will make the Additional Tranche
B Term Loans to the Borrower, and to restate the Existing Credit Agreement to
reflect the amendments thereto.
This Agreement shall become effective upon the date (the
"Restatement Date") on which, after it has been executed by the Borrower, SSCC,
JSCE, the Administrative Agent, the Required Lenders (as defined in the Existing
Credit Agreement), and the New Tranche B Lenders, the Borrower has satisfied all
of the conditions precedent set forth in Section 5.03 (but in the event such
conditions have not been satisfied or waived on or before December 31, 1998,
this Agreement shall be of no force or effect and the Existing Credit Agreement
shall continue in full force and effect).
Accordingly, the Borrower, SSCC, JSCE, the Lenders, the Managing
Agents, the Senior Managing Agents, the Fronting Bank, the Swingline Lender, the
Administrative Agent and the Collateral Agent agree as follows:
ARTICLE I
Definitions
-2-
<PAGE>
<PAGE>
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Borrowing" shall mean a Borrowing comprised of ABR
Revolving Loans.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Spread" shall mean (a) with respect to Tranche A Term Loans and
Revolving Loans, 1.50% per annum, subject to adjustment pursuant to Section
2.06(c), and (b) with respect to Tranche B Term Loans, 2.25% per annum.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Accepting Lenders" is defined in Section 2.13(i).
"Additional Stone Capital Contributions" is defined in Section 7.04(g).
"Additional Tranche B Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Additional Tranche B Term Loans
hereunder on the Restatement Date as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Term Loan
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04.
"Additional Tranche B Term Loans" is defined in the recitals to this
Agreement.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves. For purposes
hereof, the term "LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page 3750 of the Dow
Jones Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London
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time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
the "LIBO Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the average of the respective rates per annum at which dollar
deposits approximately equal in principal amount to the Administrative Agent's
portion of such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Administrative Agent" is defined in the recitals to this Agreement.
"Administrative Fees" is defined in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified. For purposes of this definition, neither any Lender nor any Affiliate
of a Lender shall be deemed to be an Affiliate of SSCC or any of its
Subsidiaries solely by reason of its ownership of or right to vote any
Indebtedness of SSCC or any of its Subsidiaries.
"After-Acquired Mortgage Property" is defined in Section 6.05(d).
"Agreement" shall mean this Amended and Restated Credit Agreement, as
amended, restated, supplemented or otherwise modified from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof, the term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective. The term "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves
and (b) the Assessment Rate. The term "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day) or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
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10:00 a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative Agent
from three New York City negotiable certificate of deposit dealers of recognized
standing selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate
or both for any reason, including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c), or
both, of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Three-Month Secondary
CD Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" of any Participating Lender shall mean the
percentage of the aggregate Revolving Credit Commitments represented by such
Participating Lender's Revolving Credit Commitment.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then-current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Asset Sale" shall mean the sale, transfer or other disposition by any
Loan Party or any of its Subsidiaries to any Person other than any Loan Party of
(a) any capital stock other than Margin Stock; (b) substantially all the assets
of any geographic or other division or line of business of any Loan Party or any
of its Subsidiaries; or (c) any Real Property or a portion of any Real Property
or any other asset or assets (excluding any assets manufactured, constructed or
otherwise produced or purchased for sale to others in the ordinary course of
business and any Program Receivables) of any Loan Party or any of its
Subsidiaries, provided that (i) any asset sale or series of related asset sales
described in clause (c) above having a value not in excess of $1,000,000 shall
not be deemed an "Asset Sale" for purposes of this Agreement and (ii) the term
"Asset Sale" shall not include any sale of assets in connection with any
Permitted Equipment Financing or any Permitted Timber Financing.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee and, to the extent required by Section
10.04(b), accepted by the Borrower, the Administrative Agent, the Swingline
Lender and the Fronting Bank, in the form of Exhibit B or such other form as
shall be approved by the Administrative Agent.
"Basic Agreements" shall mean the SIBV Agreement, the Financial Services
Agreement, the 1992 Holdings Agreement, the Registration Rights Agreement, the
Stockholders' Agreement and the 1992 Stock Option Plan.
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"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower's Portion of Excess Cash Flow" shall mean, at any date of
determination, the cumulative amount of Excess Cash Flow for each full fiscal
year of SSCC commencing on or after January 1, 1998, and ending prior to the
date of determination that (a) was not or is not required to be applied to the
prepayment of Loans or the reduction of Commitments, in each case as described
in Section 2.13(c), and (b) has not been utilized on or prior to the date of
determination (i) to make Consolidated Capital Expenditures pursuant to the
proviso in the first sentence of Section 7.13, (ii) to pay dividends pursuant to
Section 7.06(b) or (iii) to prepay Indebtedness pursuant to Section 2.12(a) or
7.09(a).
"Borrower" shall mean Jefferson Smurfit Corporation (U.S.), a Delaware
corporation.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"BTCo" shall mean Bankers Trust Company, a New York banking corporation.
"Business Day" shall mean any day (other than a Saturday, Sunday or
legal holiday in the State of New York) on which banks are open for business in
New York City; provided, however, that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Lease" is defined in the definition of the term "Capital Lease
Obligations".
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof (each, a "Capital Lease"), which obligations are required to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Cash Proceeds" shall mean, with respect to any Asset Sale, cash
payments received from such Asset Sale, including any cash received by way of
deferred payment pursuant to a note receivable or otherwise (other than the
portion of such deferred payment constituting interest, which shall be deemed
not to constitute Cash Proceeds).
"CERCLA" is defined in Section 4.17(b).
A "Change in Control" shall be deemed to have occurred if (a) JSG and
its Affiliates shall cease to own or control shares representing at least
27-1/2% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of SSCC; (b) any person or group (within the meaning
of Rule 13d-5 of the Securities and Exchange Act of 1934, as in effect on the
Closing Date)
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other than JSG and its Affiliates shall own, directly or indirectly,
beneficially or of record, shares representing more than 20% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
SSCC; or (c) SSCC shall cease to own, directly or indirectly, beneficially and
of record, 100% of the issued and outstanding capital stock of the Borrower.
"Change of Law" is defined in Section 2.20(f).
"Charges" is defined in Section 10.09.
"Chase" shall mean The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date" shall mean March 24, 1998.
"Code" shall mean the Internal Revenue Code of 1986, or any successor
statute thereto, as the same may be amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Collateral Agent" is defined in the recitals to this Agreement.
"Commitment" shall mean, with respect to each Lender, such Lender's
Revolving Credit Commitment, Tranche A Commitment or Tranche B Commitment.
"Commitment Fee" is defined in Section 2.05(a).
"Commitment Fee Percentage" shall mean 0.375% per annum, subject to
adjustment in accordance with Section 2.06(c).
"Common Stock" shall mean the common stock, par value $0.01 per share,
of SSCC.
"Confidential Information Memorandum" shall mean, collectively, (a) the
Confidential Information Memorandum of the Borrower dated February 1998 and (b)
the Confidential Information Memorandum of SSCC dated October 1998.
"Consolidated Capital Expenditures" shall mean, for any period, the sum
of (a) all amounts that would be included as additions to property, plant and
equipment and other capital expenditures on a consolidated statement of cash
flows for SSCC and its Subsidiaries during such period in accordance with GAAP
and (b) all amounts in respect of additions to Timberland Property during such
period identified as investment activities in accordance with GAAP (in each
case, excluding capitalized interest but including the amount of assets leased
under any Capital Lease).
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"Consolidated Current Assets" shall mean, as at any date of
determination, the total assets (other than cash and cash equivalents) of JSCE
and its Subsidiaries on a consolidated basis that may properly be classified as
current assets in conformity with GAAP.
"Consolidated Current Liabilities" shall mean, as at any date of
determination, the total liabilities of SSCC and its Subsidiaries on a
consolidated basis that may properly be classified as current liabilities in
conformity with GAAP, provided that the current maturities of long-term
Indebtedness for money borrowed of JSCE and its Subsidiaries, any Indebtedness
permitted under Section 7.01 that is classified as a current liability in
conformity with GAAP and any taxes payable solely as a result of Asset Sales
shall be excluded from the definition of Consolidated Current Liabilities.
"Consolidated EBITDA" for any period shall mean (a) the sum of (i)
Consolidated Net Income for such period, (ii) all Federal, state, local and
foreign taxes deducted in determining such Consolidated Net Income, (iii)
Consolidated Interest Expense deducted in determining such Consolidated Net
Income, (iv) depreciation, depletion, amortization of intangibles and other
non-cash charges or non-cash losses deducted in determining such Consolidated
Net Income and (v) charges specifically associated with the Merger to the extent
deducted in determining such Consolidated Net Income less (b) any non-cash
income or non-cash gains included in determining such Consolidated Net Income.
"Consolidated Interest Expense" shall mean, for any period, the interest
expense (net of interest income on Permitted Investments) of JSCE and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, excluding any fees and expenses payable or amortized during such
period by JSCE and its consolidated Subsidiaries in connection with the
amortization of deferred debt issuance costs. For purposes of the foregoing,
gross interest expense shall be determined after giving effect to any net
payments made or received by JSCE and its consolidated Subsidiaries with respect
to Rate Protection Agreements.
"Consolidated Leverage Ratio" is defined in Section 2.06(c).
"Consolidated Net Income" shall mean, for any period, the net income (or
loss) of JSCE and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period determined in conformity with GAAP, provided that
the net income (or loss) of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded.
"Control" of a Person shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" is defined in Article V.
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"Currency Agreement" shall mean any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement entered into in the
ordinary course of business by the Borrower designed to protect the Borrower or
any of its Subsidiaries against fluctuations in currency values.
"Default" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"Default Rate" is defined in Section 2.07.
"dollars" or "$" shall mean lawful money of the United States.
"Domestic Subsidiary" shall mean any Subsidiary organized under the laws
of the United States or any political subdivision thereof.
"8-Year Senior Note Indenture" shall mean the Indenture dated as of May
1, 1994, among the Borrower, as issuer, JSCE, as guarantor, and The Bank of New
York, as trustee, relating to the 8-Year Senior Notes.
"8-Year Senior Notes" shall mean the Borrower's 10-3/4% Senior Notes Due
2002, in an aggregate principal amount outstanding on the Closing Date of
$100,000,000.
"Environmental Laws" shall mean all current and future Federal, state,
local and foreign laws, rules or regulations, codes, ordinances, orders,
decrees, judgments or injunctions issued, promulgated, approved or entered
thereunder or other requirements of Governmental Authorities or the common law,
relating to health, safety, or pollution or protection of the environment,
including laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances, or wastes into the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances, or wastes, or
underground storage tanks and emissions therefrom.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
or any successor statute, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that (a) is a member of a group of which SSCC, JSCE or the
Borrower is a member and (b) is treated as a single employer under Section 414
of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Term Loan or Eurodollar
Revolving Loan.
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"Eurodollar Revolving Borrowing" shall mean a Borrowing comprised of
Eurodollar Revolving Loans.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VIII.
"Excess Cash Flow" shall mean, for any period, the excess of (a) the
sum, without duplication, of (i) Consolidated Net Income during such period,
(ii) the amount of depreciation, depletion, amortization of intangibles,
deferred taxes, accreted and zero coupon bond interest and other non-cash
expenses, losses or other charges that, pursuant to GAAP, were deducted in
determining such Consolidated Net Income, (iii) the proceeds of any Capital
Leases of the Borrower and its Subsidiaries on a consolidated basis, (iv)
reductions, other than reductions attributable solely to Asset Sales, to working
capital for such period (i.e., the decrease in Consolidated Current Assets minus
Consolidated Current Liabilities from the beginning to the end of such period),
(v) Indebtedness of the Borrower and its consolidated Subsidiaries created,
incurred or assumed in respect of the purchase or construction of property and
(vi) the net increase, if any, in the aggregate amount of borrowings by JSF in
connection with the Receivables Program during such period, over (b) the sum,
without duplication, of (i) the amount of all non-cash gains, income or other
credits included in determining Consolidated Net Income, (ii) additions to
working capital for such period (i.e., the increase in Consolidated Current
Assets minus Consolidated Current Liabilities from the beginning to the end of
such period), (iii) the Term Loan Repayment Amounts paid during such period,
(iv) optional prepayments of Term Loans described in Section 2.12(b) during such
period, (v) scheduled and optional payments or prepayments of the principal of
permitted Indebtedness other than the Loans (except to the extent financed with
the proceeds of additional permitted Indebtedness), but only to the extent that
such payments or prepayments cannot by their terms be reborrowed or redrawn and
do not occur in connection with a refinancing of all or any portion of such
permitted Indebtedness and are otherwise permitted hereby, (vi) Consolidated
Capital Expenditures for such period, (vii) cash payments made during such
period of expenses relating to the Borrower's 1993 operational restructuring
(including employee severance, manufacturing facility consolidation,
environmental and litigation expense) that were previously accrued as a non-cash
charge in fiscal 1993, (viii) Restricted Junior Payments not prohibited
hereunder made during such period and (ix) the net decrease, if any, in the
aggregate amount of borrowings by JSF in connection with the Receivables Program
during such period; provided, however, that none of the following shall be
included in a determination of Excess Cash Flow: (x) amounts expended for any
Investments permitted under Section 7.04 and any proceeds from the subsequent
sale or other disposition of any such Investments and (y) the proceeds of any
issuance of debt or equity securities not otherwise prohibited hereunder.
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"Existing Credit Agreement" is defined in the recitals to this
Agreement.
"Existing Lenders" is defined in the recitals to this Agreement.
"Fair Market Value" is defined in Section 6.10(c).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Administrative Fees, the Commitment Fees, the LC
Fees, the fees specified in Section 2.05 and the fees specified in Section 3.07.
"Fernandina Acquisition" shall mean the acquisition by the Borrower of
Machine No. 2 from SPC for aggregate consideration not to exceed $175,000,000 in
accordance with the Fernandina Acquisition Documents.
"Fernandina Acquisition Documents" shall mean that certain Asset
Purchase Agreement (the "Asset Purchase Agreement") dated as of May 10, 1998
between the Borrower and SPC, together with all agreements, documents,
resolutions, consents, instruments and certificates executed in order to effect
the transactions contemplated by the Asset Purchase Agreement.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or assistant treasurer of such
corporation.
"Financial Services Agreement" shall mean the Financial Advisory
Services Agreement dated September 12, 1989, by and among Morgan Stanley Dean
Witter Discover & Co., SIBV and SSCC, as amended to the Closing Date and as the
same may be further amended or modified in accordance with the terms thereof and
hereof.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Fronting Bank" shall mean, as the context may require, (a) (i) BTCo,
with respect to Letters of Credit issued by BTCo, (ii) with respect to each
Prior Letter of Credit, the issuer thereof, and (iii) any other Lender that may
become a Fronting Bank pursuant to Section 3.08 or 3.10, with respect to Letters
of Credit issued by such Lender, or (b) collectively, all the foregoing.
"GAAP" shall mean generally accepted accounting principles in the United
States, applied on a consistent basis.
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"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent or
otherwise (whether or not denominated as a guarantee), of such Person
guaranteeing any Indebtedness or any other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness (or
other obligation) or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness (or other obligation), (b)
to purchase property, securities or services for the purpose of assuring the
owner of such Indebtedness (or other obligation) of the payment of such
Indebtedness (or other obligation) or (c) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (or other
obligation); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course of
business.
"Guarantee Agreement" shall mean the Guarantee Agreement, substantially
in the form of Exhibit C, made by the Guarantors in favor of the Collateral
Agent for the benefit of the Secured Parties.
"Guarantors" shall mean SSCC, JSCE and each Material Subsidiary.
"Hazardous Materials" is defined in Section 4.17(d).
"Inactive Subsidiary" at any time shall mean any Subsidiary of SSCC that
(a) has assets with a total market value not in excess of $1,000 and (b) has not
conducted any business or other operations during the prior 12-month period.
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, other than deposits or advances in the ordinary course of
business, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to assets
purchased by such Person, (d) all obligations of such Person issued or assumed
as the deferred purchase price of property or services (excluding trade accounts
payable and accrued expenses arising in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed by such Person, (f) all Guarantees
by such Person, (g) all Capital Lease Obligations of such Person, (h) all
obligations of such Person in respect of Rate Protection Agreements, Currency
Agreements or other interest or exchange rate hedging arrangements (such
obligations to be equal at any time to the termination value of such Agreements
or other arrangements that would be payable by such Person at such time) and (i)
all obligations of such Person as an account party to reimburse any bank or any
other Person in respect of letters of credit. The Indebtedness of any Person
shall include the Indebtedness of any partnership
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in which such Person is a general partner, except to the extent such
Indebtedness is expressly non-recourse to such Person.
"Indemnitee" is defined in Section 10.05(b).
"Information" is defined in Section 10.15(a).
"Intercompany Indebtedness" shall mean any Indebtedness of any of SSCC,
JSCE or the Borrower or any of their respective Subsidiaries that is owing to
any Loan Party.
"Intercompany Note" shall mean a promissory note evidencing Intercompany
Indebtedness pledged to the Collateral Agent pursuant to the Pledge Agreement
and which, unless otherwise provided herein or in any of the Receivables Program
Documents, shall be a senior obligation of the obligor thereon, payable on
demand to the obligee and in form and substance satisfactory to the Senior
Managing Agents.
"Interest Payment Date" shall mean (a) with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part, (b) with respect to any Swingline Loan, the last day of the Interest
Period applicable to such Swingline Loan and (c) with respect to any Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower thereof may elect, (b) as to any
ABR Borrowing, the period commencing on the date of such Borrowing or on the
last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earlier of (i) the next
succeeding March 31, June 30, September 30 or December 31, and (ii) the
Revolving Credit Maturity Date, the Tranche A Maturity Date or the Tranche B
Maturity Date, as applicable, and (c) as to any Swingline Loan, the period
commencing on the date such Swingline Loan is made or on the last day of the
immediately preceding Interest Period applicable to such Swingline Loan, as the
case may be, and ending on the earlier of (i) the next succeeding March 31, June
30, September 30 or December 31, and (ii) the Revolving Credit Maturity Date;
provided, however, that, if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Investment" shall mean, as applied to any Person (the "Investor"), any
direct or indirect purchase or other acquisition by the Investor of, or a
beneficial interest in, stock or other securities
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of any other Person other than a wholly owned Domestic Subsidiary of the
Investor, including any exchange of equity securities for Indebtedness, or any
direct or indirect loan, advance (other than advances to employees for moving
and travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution by the Investor to any other Person
other than a wholly owned Domestic Subsidiary of the Investor, including all
Indebtedness and accounts receivable owing to the Investor from that other
Person that did not arise from sales or services rendered to that other Person
in the ordinary course of the Investor's business. The amount of any Investment
shall be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment minus any
amounts (a) realized upon the disposition of assets comprising an Investment or
(b) constituting repayments of Investments that are loans or advances; provided,
however, that the term "Investment" shall not include the purchase in the open
market of shares of JSG in an aggregate amount which, together with the
aggregate purchase price of all MIP Shares and all MIP Options (each as defined
in Section 7.06(c)) purchased pursuant to Section 7.06(c) in any fiscal year,
does not exceed $15,000,000 in such fiscal year of the Borrower, purchased
exclusively for subsequent distribution as additional compensation to employees
of the Borrower pursuant to its management incentive program.
"Investor" is defined in the definition of the term "Investment".
"JSC" shall mean SSCC.
"JSC Acquisition" shall mean JSC Acquisition Corporation, a Delaware
corporation and a direct wholly-owned Subsidiary of SSCC.
"JSC International" shall mean JSC International Sales, Inc., a
corporation formed under the laws of Barbados and a wholly owned Subsidiary of
the Borrower.
"JSCE" shall mean JSCE, Inc., a Delaware corporation
"JSF" shall mean Jefferson Smurfit Finance Corporation, a Delaware
corporation and a wholly owned Subsidiary of the Borrower, formed in connection
with the Receivables Program.
"JSG" shall mean Jefferson Smurfit Group plc, a corporation organized
and existing under the laws of the Republic of Ireland.
"LC Commitment" shall mean at any time an amount equal to the lesser of
(a) $150,000,000, as the same may be reduced from time to time pursuant to
Section 3.06, and (b) the Revolving Credit Commitment at such time.
"LC Disbursement" shall mean any payment or disbursement made by the
Fronting Bank under or pursuant to a Letter of Credit.
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"LC Exposure" shall mean, at any time of determination, the sum of (a)
the Trade LC Exposure and (b) the Standby LC Exposure.
"LC Fee" is defined in Section 3.03.
"LC Maturity Date" shall mean the 30th Business Day prior to the
Revolving Credit Maturity Date.
"Lenders" shall mean the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context clearly indicates otherwise,
the term "Lenders" shall include the Swingline Lender.
"Letter of Credit Application" shall mean a commercial or standby letter
of credit application, as applicable, in the Fronting Bank's customary form, as
such form may be modified from time to time by the Fronting Bank.
"Letters of Credit" shall mean Trade Letters of Credit and Standby
Letters of Credit.
"LIBOR Spread" shall mean (a) with respect to Tranche A Term Loans and
Revolving Loans, 2.50% per annum, subject to adjustment pursuant to Section
2.06(c), and (b) with respect to Tranche B Term Loans, 3.25% per annum.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, assignment for security (whether collateral or otherwise),
hypothecation, encumbrance, lease, sublease, charge or security interest in or
on such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, Capital Lease or title retention agreement relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Security Documents and the Guarantee Agreement, and each amendment, restatement,
supplement, modification or waiver of, to or in respect of any such document.
"Loan Parties" shall mean SSCC, JSCE, the Borrower and each Material
Subsidiary.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Machine No. 2" shall mean the No. 2 linerboard machine and related
structures, equipment and other property located at the Fernandina Beach,
Florida Mill and owned by SPC.
"Managing Agents" shall mean the Lenders whose names appear as managing
agents on the signature pages to this Agreement.
"Mandatory Prepayment Date" is defined in Section 2.13(i).
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"Margin Stock" shall have the meaning given such term under Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, properties, prospects or condition (financial
or otherwise) of SSCC and its Subsidiaries, taken as a whole, (b) material
impairment of the ability of SSCC or any Material Subsidiary to perform any of
its obligations under any Loan Document to which it is or will be a party or (c)
material impairment of the rights of or benefits available to the Administrative
Agent, the Collateral Agent, the Fronting Bank, the Swingline Lender or the
Lenders under any Loan Document.
"Material Contracts" shall mean the contracts set forth on Schedule
1.01(b) and any future contracts to which SSCC or the Borrower or any of their
respective Subsidiaries becomes a party providing for payments by or to SSCC or
the Borrower or any of their Subsidiaries in excess of $50,000,000 per year and
the duration of which shall be in excess of twelve months.
"Material Investments" shall mean all Investments by SSCC or any of its
Subsidiaries having a value in excess of $1,000,000.
"Material Subsidiary" means each Domestic Subsidiary of SSCC, JSCE, the
Borrower or their successors now existing or hereafter acquired or formed by
SSCC, JSCE, the Borrower or such successors that (a) for the most recent fiscal
year of SSCC, JSCE, the Borrower or such successors, accounted for more than 10%
of the consolidated revenues of SSCC, JSCE, the Borrower or such successors, as
the case may be, (b) as at the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of SSCC, JSCE, the Borrower or such
successors as shown on the consolidated financial statements of SSCC, JSCE, the
Borrower or such successors, as the case may be, for such fiscal year or (c) is
designated as a Material Subsidiary on Schedule 1.01(c) or is otherwise
irrevocably designated as a Material Subsidiary in a writing by a Loan Party to
the Administrative Agent. Notwithstanding the foregoing, JSF shall not be a
Material Subsidiary for purposes hereof.
"Maximum Rate" is defined in Section 10.09.
"Merger" shall mean the merger of JSC Acquisition with and into Stone
pursuant to the terms and conditions of the Merger Agreement.
"Merger Agreement" shall mean that certain Agreement and Plan of Merger
among Jefferson Smurfit Corporation, JSC Acquisition and Stone dated as of May
10, 1998, as amended by Amendment No. 1 dated as of October 2, 1998.
"Merger Documents" shall mean the Merger Agreement, together with all
agreements, documents, resolutions, consents, instruments and certificates
executed in order to effect the transactions contemplated by the Merger
Agreement.
"Mills" shall mean the paper product manufacturing facilities identified
on Schedule 1.01(d).
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"MIP Options" is defined in Section 7.06(c).
"MIP Shares" is defined in Section 7.06(c).
"Mortgaged Properties" shall mean the owned real properties of the
Borrower specified on Schedule 1.01(e).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to Section 6.10 or Section 7.11, each substantially
in the form of Exhibit D, as the same may be amended, restated, supplemented,
modified or waived from time to time.
"MSLEF Purchase" shall mean the purchase by SIBV of 20,000,000 shares of
SSCC Common Stock pursuant to the terms and conditions of the MSLEF Purchase
Documents.
"MSLEF Purchase Documents" shall mean, collectively, the Stock Purchase
Agreement dated as of May 10, 1998 among SIBV, as buyer, JSG, as guarantor,
Morgan Stanley Leveraged Equity Fund II, Inc. and the other shareholders of SSCC
party thereto, as sellers and SSCC, the Registration Rights Agreement, the
Stockholders Agreement and all other agreements, documents, resolutions,
consents, instruments and certificates executed in order to effect the MSLEF
Purchase.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Code) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale or
Permitted Timber Financing, the Cash Proceeds, net of (i) costs of sale
(including payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness (other than Loans) required to be
repaid under the terms thereof as a result of such Asset Sale), (ii) taxes paid
or payable in the year such Asset Sale occurs or in the following year as a
result thereof and (iii) amounts provided as a reserve, in accordance with GAAP,
against any liabilities under any indemnification obligations associated with
such Asset Sale (provided that, to the extent and at the time any such amounts
are released from such reserve, such amounts shall constitute Net Cash
Proceeds); (b) with respect to any issuance of debt securities, the cash
proceeds thereof, net of underwriting commissions or placement fees and expenses
directly incurred in connection therewith and (c) with respect to any Taking or
Destruction (as such terms are defined in the Mortgages), the Net Proceeds or
Net Award (as such terms are defined in the Mortgages).
"New Tranche B Lenders" shall mean the Tranche B Lenders making
Additional Tranche B Term Loans on the Restatement Date.
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"1992 Stock Option Plan" shall mean the SSCC 1992 Stock Option Plan, as
amended to the Restatement Date and as the same may be further amended or
modified in accordance with the terms thereof and hereof.
"1993 Senior Note Indenture" shall mean the Indenture dated as of April
15, 1993, among the Borrower, as issuer, JSCE, as guarantor, and The Bank of New
York, as trustee, relating to the 1993 Senior Notes, as amended by the
Supplemental Indenture dated as of April 8, 1994, and as the same may from time
to time be further amended or modified in accordance with the terms thereof and
hereof.
"1993 Senior Notes" shall mean the Borrower's 9-3/4% Senior Notes due
2003.
"Non-U.S. Person" is defined in Section 2.20(f).
"Obligations" shall mean all obligations of every nature, including
amounts drawn under outstanding Letters of Credit, of Loan Parties from time to
time owed to the Administrative Agent, the Senior Managing Agents, the Managing
Agents, the Swingline Lender, the Fronting Bank and the Lenders, or any of them,
under the Loan Documents.
"Other Taxes" is defined in Section 2.20(b).
"Outstanding Letters of Credit" shall mean at any time the Letters of
Credit outstanding at such time.
"Outstanding Standby Letters of Credit" shall mean at any time the
Standby Letters of Credit outstanding at such time.
"Outstanding Trade Letters of Credit" shall mean at any time the Trade
Letters of Credit outstanding at such time.
"Participating Lender" shall mean at any time any Lender with a
Revolving Credit Commitment at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor thereto.
"Perfection Certificate" shall mean the Perfection Certificate,
substantially in the form of Annex 1 to the Security Agreement.
"Permitted Equipment Financing" shall mean any financing transaction by
the Borrower or any of its Material Subsidiaries secured by equipment, or a
Sale/Leaseback Transaction in which the subject property consists of equipment,
in each case owned or leased by such Person for more than 90 days prior to such
financing transaction or Sale/Leaseback Transaction, so long as such financing
transaction or Sale/Leaseback Transaction (a) (x) in the case of any such
transaction entered into by the Borrower or any of its Material Subsidiaries on
or prior to the second anniversary of the Closing
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Date, does not have a final maturity or final payment date in respect thereof on
or prior to the seventh anniversary of the date of such transaction and (y) in
the case of any such transaction entered into by the Borrower or any of its
Material Subsidiaries after the second anniversary of the Closing Date, does not
have a final maturity or final payment date in respect thereof on or prior to
the Tranche B Maturity Date or a weighted average life to stated maturity
shorter than the then-outstanding Term Loans, (b) results in net cash proceeds
to the Borrower or one of its Material Subsidiaries in excess of 60% of the fair
market value (determined, on the basis of an assumed arms-length sale of such
property, by a nationally recognized appraisal or valuation firm experienced in
valuing equipment) at the date of such financing transaction or sale/leaseback
of the equipment that is the subject property of such financing transaction or
Sale/Leaseback Transaction, and (c) contains covenants no more restrictive than
those contained in this Agreement (except that covenants that relate solely to
the subject property may be more restrictive).
"Permitted Investments" shall mean (a) any evidence of indebtedness,
maturing not more than one year after the acquisition thereof, issued by the
United States of America, or any instrumentality or agency thereof and
guaranteed fully as to principal, interest and premium, if any, by the United
States of America, (b) any certificate of deposit, maturing not more than one
year after the date of purchase, issued by a commercial banking institution that
has long-term debt rated "A" or higher by Moody's Investors Service, Inc. or
Standard & Poor's Ratings Services and which has a combined capital and surplus
and undivided profits of not less than $500,000,000, (c) commercial paper (i)
maturing not more than 270 days after the date of purchase and (ii) issued by
(x) a corporation (other than a Loan Party or any Affiliate of a Loan Party)
with a rating, at the time as of which any determination thereof is to be made,
of "P-1" or higher by Moody's Investors Service, Inc. or "A-1" or higher by
Standard & Poor's Ratings Services or (y) either Senior Managing Agent, (d)
demand deposits with any bank or trust company, (e) any Investments consisting
of (i) any contract pursuant to which a Loan Party obtains the right to cut,
harvest or otherwise acquire timber on property owned by any other Person,
whether or not the Loan Party's obligations under such contract are evidenced by
a note or other instrument, or (ii) loans or advances to customers of a Loan
Party, including leases of personal property of such Loan Party to such
customers, provided that the contracts, loans and advances constituting
Permitted Investments pursuant to this clause (e) shall not exceed $10,000,000
at any time outstanding, (f) any Investment consisting of an exchange of equity
securities of any Loan Party for Indebtedness of any other Loan Party and (g)
Guarantees of a Person or Persons other than a Loan Party consisting of
tax-exempt industrial development or pollution control revenue bonds (either
through Capital Lease Obligations or installment purchase obligations in respect
of facilities to be acquired by a Loan Party and to be financed by such bonds,
and including a direct Guarantee of such bonds) to the extent any such
Indebtedness of a Loan Party or such Person and any Lien arising in connection
therewith are not prohibited by Section 7.01 or 7.02, as applicable.
"Permitted Liens" shall mean:
(a) the Liens arising under this Agreement or the Security
Documents in favor of the Collateral Agent;
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(b) with respect to any Person, Liens for taxes not yet due and
payable or which are being contested in good faith by appropriate
proceedings diligently pursued, provided that (i) any proceedings
commenced for the enforcement of such Liens shall have been duly
suspended and (ii) full provision for the payment of all such taxes
known to such Person has been made on the books of such Person if and to
the extent required by GAAP;
(c) with respect to any Person, mechanics', materialmen's,
carriers', warehousemen's and similar Liens arising by operation of law
and in the ordinary course of business and securing obligations of such
Person that are not overdue for a period of more than 60 days or are
being contested in good faith by appropriate proceedings diligently
pursued, provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such Liens shall have been
duly suspended and (ii) full provision for the payment of such Liens has
been made on the books of such Person if and to the extent required by
GAAP;
(d) with respect to any Person, Liens arising in connection with
worker's compensation, unemployment insurance, old age pensions and
social security benefits that are not overdue or are being contested in
good faith by appropriate proceedings diligently pursued, provided that
in the case of any such contest (i) any proceedings commenced for the
enforcement of such Liens shall have been duly suspended and (ii) full
provision for the payment of such Liens has been made on the books of
such Person if and to the extent required by GAAP;
(e) with respect to any Person, (i) Liens incurred or deposits
made in the ordinary course of business to secure the performance of
bids, tenders, statutory obligations, fee and expense arrangements with
trustees and fiscal agents (exclusive of obligations incurred in
connection with the borrowing of money or the payment of the deferred
purchase price of property) and (ii) Liens securing surety, indemnity,
performance, appeal and release bonds, in the case of either clause (i)
or clause (ii), securing such bonds in an amount not to exceed
individually or in the aggregate $25,000,000 at any time outstanding,
provided that full provision for the payment of all such obligations has
been made on the books of such Person if and to the extent required by
GAAP;
(f) imperfections of title, covenants, restrictions, easements
and other encumbrances on real property that (i) do not arise out of the
incurrence of any Indebtedness for money borrowed and (ii) do not
interfere with or impair in any material respect the utility, operation,
value or marketability of the real property on which such Lien is
imposed;
(g) Liens upon real and/or tangible personal property acquired by
purchase, construction or otherwise by a Person, each of which Liens was
created solely for the purpose of securing Indebtedness permitted by
Section 7.01 representing, or incurred to finance, the cost (including
the cost of construction) of the respective property, provided that (i)
no such Lien shall extend to or cover any property of such Person other
than the respective property so acquired and improvements thereon and
(ii) the principal amount of Indebtedness secured
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by any such Lien shall at no time exceed 100% of the fair value (as
determined in good faith by the board of directors of such Person) of
the respective property at the time it was so acquired;
(h) any Lien renewing, extending or refunding any Lien permitted
by clause (g) above, provided that the principal amount of Indebtedness
secured by such Lien immediately prior thereto is not increased and such
Lien is not extended to any other property;
(i) any Lien specifically permitted to be suffered or incurred
under any applicable Security Document;
(j) any Lien consisting of a lease of personal property of such
Person to customers of such Person, if such lease constitutes a
Permitted Investment under clause (e)(ii) of the definition of Permitted
Investments; and
(k) any Lien consisting of a lease of real property (including
buildings), and subleases thereof, to Persons for the purpose of placing
cellular antenna towers (and/or similar antenna equipment) on such
property, provided that such Liens do not interfere with or impair in
any material respect, the utility, operation, value or marketability of
the property on which such Lien is imposed.
"Permitted Timber Financing" means any financing transaction by the
Borrower or any of its Material Subsidiaries secured by timber or timberland, or
a Sale/Leaseback Transaction in which the subject property consists of timber or
timberland, in each case owned or leased by such Person for more than 90 days
prior to such financing transaction or Sale/Leaseback Transaction, so long as
such financing transaction or Sale/Leaseback Transaction (a) does not have a
final maturity or final payment date in respect thereof on or prior to the
latest of the Tranche A Maturity Date, the Tranche B Maturity Date and the
Revolving Credit Maturity Date, (b) results in net cash proceeds to the Borrower
or one of its Material Subsidiaries in excess of 60% of the fair market value
(determined, on the basis of an assumed arms-length sale of such property, by a
nationally recognized appraisal or valuation firm experienced in valuing timber
or timberland) at the date of such financing transaction or sale/leaseback of
the timber or timberland that is the subject property of such financing
transaction or Sale/Leaseback Transaction, (c) has at the time of incurrence a
weighted average life to stated maturity at least one year longer than the
blended weighted average life to stated maturity of the then-outstanding Term
Loans and (d) contains covenants no more restrictive than those contained in
this Agreement (except that covenants that relate solely to the subject property
may be more restrictive).
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code that
is maintained for employees of SSCC, JSCE, the Borrower or any ERISA Affiliate.
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"Pledge Agreement" shall mean the Pledge Agreement, substantially in the
form of Exhibit E, among SSCC, JSCE, the Borrower, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties, as the
same may be amended, restated, supplemented, modified or waived from time to
time.
"Prepayment Account" is defined in Section 2.13(i).
"Prepayment Amount" is defined in Section 2.13(i).
"Prepayment Lender" is defined in Section 2.13(i).
"Prepayment Option Notice" is defined in Section 2.13(i).
"Prior Credit Agreement" shall mean the Credit Agreement dated as of May
11, 1994, as amended and restated as of May 17, 1996, as further amended as of
September 30, 1996 and June 15, 1997, among Jefferson Smurfit Corporation, JSCE,
the Borrower and the lenders, the managing agents, the senior managing agents,
the fronting banks, the administrative agent, the collateral agent and the
swingline lender named therein.
"Prior Letter of Credit" shall mean each standby letter of credit that
(a) was issued under the Prior Credit Agreement for the account of the Borrower,
(b) is outstanding on the Closing Date and (c) is listed on Schedule 1.01(a).
"Program Receivables" shall mean all trade receivables and related
contract and other rights and property (including all general intangibles,
collections and other proceeds relating thereto, all security therefor and any
goods that have been repossessed in connection with any thereof) sold or
contributed by the Borrower to JSF prior to the commencement of a Liquidation
Period (as defined in the Receivables Program Documents) pursuant to the
Receivables Program Documents (including property of SNC sold to the Borrower
for sale or contribution by the Borrower to JSF pursuant to the Receivables
Program Documents).
"P.U.I." shall mean Packaging Unlimited, Inc., a corporation organized
under the laws of the State of Delaware and qualified to do business in the
Commonwealth of Puerto Rico.
"Rate Protection Agreements" shall mean interest rate cap agreements,
interest rate swap agreements and other agreements or arrangements entered into
in the ordinary course of business by the Borrower or its Subsidiaries and
designed to protect the Borrower or its Subsidiaries against fluctuations in
interest rates or to obtain the benefit of floating interest rates.
"Reaffirmation of Guarantee" shall mean the Reaffirmation of Guarantee,
substantially in the form of Exhibit J, executed by the Guarantors.
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"Real Properties" shall mean each parcel of real property (including any
Timberland Property), including any Mill or converting facility thereon and any
leasehold interest therein, identified on Schedule 4.21(a), together with all
fixtures thereon.
"Receivables Program" shall mean that certain trade receivables
securitization program conducted pursuant to the Receivables Program Documents.
"Receivables Program Documents" shall mean the documents listed on
Schedule 1.01(f), and all non-material documentation entered into pursuant to
such documentation, as such documents may be amended, restated, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Register" is defined in Section 10.04(d).
"Registration Rights Agreement" shall mean the Registration Rights
Agreement dated as of May 10, 1998 among Morgan Stanley Leveraged Equity Fund
II, Inc., SIBV, SSCC and the other parties identified on the signature page
thereof, as amended, restated, modified or supplemented from time to time.
"Regulation T" shall mean Regulation T of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Release" is defined in Section 7.17(a).
"Release Condition" is defined in Section 7.17(a).
"Release Notice" is defined in Section 7.17(a).
"Release Transaction" is defined in Section 7.17(a).
"Reportable Event" shall mean any reportable event as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders holding Loans, a
share of the used LC Commitments and unused Commitments representing greater
than 50% of the sum of (a) the aggregate principal amount of the Loans at such
time, (b) the LC Exposure at such time and (c) the aggregate unused Commitments
at such time.
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"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restatement Date" is defined in the recitals to this Agreement.
"Restatement Date Dividends" is defined in the recitals to this
Agreement.
"Restatement Date Dividend Documents" shall mean the documents entered
into or delivered in connection with the Restatement Date Dividends.
"Restatement Date Transactions" shall mean the funding of the Additional
Tranche B Term Loans, the Merger, the Fernandina Acquisition, the MSLEF
Purchase, the SSCC Loan, the Restatement Date Dividends, the Stone Capital
Contribution, the execution and delivery of the Stone Credit Agreement and all
transactions contemplated by any of the foregoing.
"Restricted Junior Payment" shall mean (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of SSCC, JSCE or the Borrower or any of their respective Subsidiaries, now or
hereafter outstanding, except a dividend payable solely in shares of that class
of stock to the holders of that class, (b) any redemption, retirement, sinking
fund or similar payment, purchase, exchange or other acquisition for value,
direct or indirect, of any shares of any class of stock of SSCC, JSCE or the
Borrower or any of their respective Subsidiaries, now or hereafter outstanding,
and (c) whether in cash or additional securities, any payment or prepayment of
principal of, premium, if any, or interest on, redemption, purchase, exchange,
retirement, defeasance, sinking fund or similar payment with respect to, any
Subordinated Indebtedness, provided that the term "Restricted Junior Payment"
shall not include any mandatory payments of principal, premium, if any, or
interest with respect to Subordinated Indebtedness.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04.
"Revolving Credit Maturity Date" shall mean March 31, 2005.
"Revolving Credit Utilization" shall mean, at any time of determination,
the sum of (a) the aggregate principal amount of Revolving Loans outstanding at
such time, (b) the aggregate principal amount of Swingline Loans outstanding at
such time and (c) the LC Exposure at such time.
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"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to Section 2.01(c). Each Revolving Loan shall be a
Eurodollar Revolving Loan or an ABR Revolving Loan.
"Sale/Leaseback Transaction" shall mean an arrangement, direct or
indirect, whereby the Borrower or any of its Subsidiaries shall sell or transfer
any property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred.
"Secured Obligations" shall have the meaning assigned to such term in
the Mortgages.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially in
the form of Exhibit F, among SSCC, JSCE, the Borrower, the other guarantors and
grantors party thereto and the Collateral Agent for the Secured Parties, as the
same may be amended, restated, supplemented, modified or waived from time to
time.
"Security Documents" shall mean the Mortgages, the Security Agreement,
the SNC Security Agreement, the Trademark Security Agreement, the Pledge
Agreement and each of the security agreements, mortgages and other instruments
and documents executed and delivered pursuant to any of the foregoing or
pursuant to Section 6.10 or 7.11.
"Senior Managing Agent" is defined in the recitals to this Agreement.
"Senior Note Indentures" shall mean the 8-Year Senior Note Indenture and
the 10-Year Senior Note Indenture.
"Senior Notes" shall mean the 8-Year Senior Notes and the 10-Year Senior
Notes.
"SIBV" shall mean Smurfit International B.V., a Netherlands corporation.
"SIBV Agreement" shall mean that certain SIBV Agreement dated as of
September 12, 1989, and amended as of October 22, 1989 and as of December 11,
1989, between SSCC and SIBV, and as the same may be further amended or modified
in accordance with the terms thereof and hereof.
"SNC" shall mean Smurfit Newsprint Corporation, a Delaware corporation
and a direct wholly owned Subsidiary of the Borrower.
"SNC Security Agreement" shall mean the SNC Security Agreement,
substantially in the form of Exhibit H, between SNC and the Collateral Agent for
the Secured Parties, as the same may be amended, restated, supplemented,
modified or waived from time to time.
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"SPC" shall mean Smurfit Packaging Corporation, a Delaware corporation
(and successor to Smurfit Paperboard, Inc.) and an indirect wholly owned
Subsidiary of JSG.
"SSCC" shall mean Smurfit-Stone Container Corporation (formerly named
Jefferson Smurfit Corporation), a Delaware corporation.
"SSCC Loan" is defined in the recitals to this Agreement.
"SSCC Loan Documents" shall mean the documents entered into or delivered
in connection with the SSCC Loan.
"Standby LC Exposure" shall mean, at any time of determination, the sum
of (a) the aggregate undrawn amount of all Outstanding Standby Letters of Credit
and (b) the aggregate amount that has been drawn under any Standby Letters of
Credit but for which the Fronting Bank or the Lenders, as the case may be, have
not been reimbursed by the Borrower at such time.
"Standby Letter of Credit" shall mean (a) each irrevocable letter of
credit issued pursuant to Section 3.01(a) under which the Fronting Bank agrees
to make payments for the account of the Borrower, on behalf of the Borrower, in
respect of obligations of the Borrower incurred pursuant to contracts made or
performances undertaken or to be undertaken or like matters relating to
contracts to which the Borrower is or proposes to become a party in the ordinary
course of the Borrower's business and (b) each Prior Letter of Credit.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum applicable reserve percentages, including
any marginal, special, emergency or supplemental reserves (expressed as a
decimal) established by the Board and any other banking authority to which the
Administrative Agent is subject (a) with respect to the Base CD Rate (as such
term is used in the definition of the term "Alternate Base Rate") for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Adjusted LIBO
Rate, for Eurocurrency Liabilities (as defined in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to Regulation D of
the Board. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stockholders Agreement" shall mean the Voting Agreement dated as of May
10, 1998 among SIBV, Morgan Stanley Leveraged Equity Fund II, Inc. and Roger W.
Stone, as amended, restated modified or supplemented from time to time.
"Stone" shall mean Stone Container Corporation, a Delaware corporation
and a direct wholly owned subsidiary of SSCC.
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"Stone Capital Contribution" is defined in Section 5.03(t).
"Stone Capital Contribution Documents" shall mean the documents entered
into or delivered in connection with the Stone Capital Contribution.
"Stone Credit Agreement" shall mean the Amended and Restated Credit
Agreement dated as of the Restatement Date among Stone, BTCo, as Agent, the
Co-Agents party thereto and the financial institutions party thereto as Lenders,
as amended, restated, supplemented or otherwise modified from time to time.
"Stone Snowflake Sale" shall mean the sale by Stone of substantially all
of the assets of Stone Snowflake Newsprint Company, a Delaware corporation
("Stone Snowflake"), and all of the capital stock of Apache Railway Corporation,
an Arizona corporation, to Abitibi Consolidated Sales Corporation, a Delaware
corporation ("ACSC"), pursuant to that certain Asset and Stock Purchase
Agreement dated as of October 15, 1998 among ACSC, Stone and Stone Snowflake.
"Subordinated Indebtedness" shall mean Indebtedness of the Borrower
subordinated in right of payment to the Obligations pursuant to documentation
containing interest rates, payment terms, maturities, amortization schedules,
covenants, defaults, remedies, subordination provisions and other material terms
in form and substance satisfactory to the Required Lenders.
"Subsidiary" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership or membership interests are, at the time any
determination is being made, owned, controlled or held by, or otherwise
Controlled by, the parent or one or more Subsidiaries of the parent or by the
parent and one or more Subsidiaries of the parent; provided, however, that the
term "Subsidiary" shall not include (i) any Inactive Subsidiary, (ii) JSC
Acquisition and (iii) Stone and its Subsidiaries.
"Substitute Parcel" shall mean those parcels of real property that the
Borrower may, from time to time, acquire in exchange for a parcel of Timberland
Property in accordance with the provisions of Section 7.16(b).
"Supermajority Lenders" shall mean, at any time, Lenders holding Loans,
a share of the used LC Commitments and unused Commitments representing at least
66-2/3% of the sum of (a) the aggregate principal amount of the Loans at such
time, (b) the LC Exposure at such time and (c) the aggregate unused Commitments
at such time.
"Swingline Loans" shall mean the swingline loans made by the Swingline
Lender pursuant to Section 2.22.
"Syndication Agent" shall mean BT Alex.Brown Incorporated.
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"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as of
November 9, 1989, among SSCC, JSCE and the Borrower, as the same may be amended
from time to time pursuant to the terms thereof and hereof.
"10-Year Senior Note Indenture" shall mean the Indenture dated as of May
1, 1994, among the Borrower, as issuer, JSCE, as guarantor, and The Bank of New
York, as trustee, relating to the 10-Year Senior Notes.
"10-Year Senior Notes" shall mean the Borrower's 11-1/4% Senior Notes
Due 2004, in an aggregate principal amount outstanding on the Closing Date of
$300,000,000.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Amounts" shall mean, for any period, the aggregate
of all Tranche A Term Loan Repayment Amounts and Tranche B Term Loan Repayment
Amounts payable during such period.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan Repayment
Dates and the Tranche B Term Loan Repayment Dates.
"Term Loans" shall mean Tranche A Term Loans and Tranche B Term Loans.
"Timber" shall have the meaning assigned to such term in the Mortgages.
"Timberland Property" shall mean each parcel of realty identified as
such on Schedule 4.21(c).
"Trade LC Exposure" shall mean, at any time of determination, the sum of
(a) the aggregate undrawn amount of all Outstanding Trade Letters of Credit and
(b) the aggregate amount that has been drawn under any Trade Letters of Credit
but for which the Fronting Bank or the Lenders, as the case may be, have not
been reimbursed by the Borrower at such time.
"Trade Letter of Credit" shall mean each commercial documentary letter
of credit issued by the Fronting Bank for the account of the Borrower pursuant
to Section 3.01(a) for the purchase of goods in the ordinary course of business.
"Trademark Security Agreement" shall mean the Patent, Trademark and
Copyright Security Agreement, substantially in the form of Exhibit G, among the
grantors named therein and the Collateral Agent for the benefit of the Secured
Parties, as the same may be amended, restated, supplemented, modified or waived
from time to time.
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"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04.
"Tranche A Maturity Date" shall mean March 31, 2005.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche A
Term Loans.
"Tranche A Term Loan Repayment Amount" is defined in Section 2.11(a)(i).
"Tranche A Term Loan Repayment Date" is defined in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to Section 2.01(a). Each Tranche A Term Loan shall be
either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean with respect to each Lender,
collectively, (a) the commitment of such Lender to make Tranche B Term Loans
hereunder on the Closing Date as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Term Loan
Commitment, as applicable, as the same may be (i) reduced from time to time
pursuant to Section 2.09 and (ii) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04, and (b)
such Lender's Additional Tranche B Commitment.
"Tranche B Lenders" shall mean Lenders having Tranche B Commitments or
outstanding Tranche B Term Loans.
"Tranche B Maturity Date" shall mean March 31, 2006.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche B
Term Loans.
"Tranche B Term Loan Repayment Amount" is defined in Section
2.11(a)(ii).
"Tranche B Term Loan Repayment Date" is defined in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to or as described in Section 2.01(b). Each Tranche B Term
Loan shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transaction Documents" shall mean the Loan Documents, the Merger
Documents, the Fernandina Acquisition Documents, the MSLEF Purchase Documents,
the SSCC Loan Documents,
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the Restatement Date Dividend Documents, the Stone Capital Contribution
Documents, the Stone Credit Agreement and all documentation relating to the
Transactions.
"Transactions" shall have the meaning assigned to such term in Section
4.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"wholly owned Domestic Subsidiary" shall mean any wholly owned
Subsidiary that is a Domestic Subsidiary.
"wholly owned Subsidiary" of a Person shall mean any Subsidiary of such
Person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership or membership interests are, at
the time any determination is being made, owned, controlled or held by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Y2K Problem" means any significant risk that computer hardware,
software or equipment containing embedded microchips essential to the business
or operations of the Borrower or any of its Subsidiaries will not, in the case
of dates or time periods occurring after December 31, 1999, function at least as
efficiently and reliably in all material respects as in the case of times or
time periods occurring before January 1, 2000, including the making of accurate
leap year calculations.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed to be references to Articles and Sections of, and Exhibits and Schedules
to, this Agreement unless the context shall otherwise require. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent with the application
used in the financial statements referred to in Section 4.05; provided, however,
that for purposes of making any determination required by Section 2.06(c),
2.13(c) or Article VII, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder shall be made in accordance with
GAAP as in effect on the Closing Date applied on a basis consistent with the
application used in the financial statements referred to in Section 4.05.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Tranche A Term Loans. The Borrower and
the Lenders acknowledge the making of Tranche A Term Loans in the aggregate
principal amount of $400,000,000 on the Closing Date in accordance with the
terms of the Existing Credit Agreement and agree that such Tranche A Term Loans
shall continue to be outstanding pursuant to the terms and conditions of this
Agreement and the other Loan Documents. Amounts paid or prepaid in respect of
Tranche A Term Loans may not be reborrowed.
(b) Tranche B Term Loans. The Borrower and the Lenders
acknowledge the making of Tranche B Term Loans in the aggregate principal amount
of $350,000,000 on the Closing Date in accordance with the terms of the Existing
Credit Agreement and agree that such Tranche B Term Loans shall continue to be
outstanding pursuant to the terms and conditions of this Agreement and the other
Loan Documents. Each Tranche B Lender having an Additional Tranche B Commitment,
severally and not jointly, hereby agrees, on the terms and subject to the
conditions hereafter set forth and in reliance upon the representations and
warranties set forth herein and in the other Loan Documents, to make an
Additional Tranche B Term Loan to the Borrower on the Restatement Date in an
aggregate principal amount equal to the Additional Tranche B Commitment of such
Lender. After giving effect to the funding of the Additional Tranche B Term
Loans in the aggregate principal amount of $550,000,000 on the Restatement Date,
the aggregate outstanding principal amount of all Tranche B Term Loans shall be
$900,000,000. The Additional Tranche B Term Loans shall be funded in one drawing
on the Restatement Date as an ABR Borrowing. Amounts paid or prepaid in respect
of Tranche B Term Loans may not be reborrowed.
(c) Revolving Loans. On the terms and subject to the conditions
hereafter set forth and in reliance upon the representations and warranties set
forth herein and in the other Loan Documents, each Lender agrees severally and
not jointly to make Revolving Loans to the Borrower, at any time and from time
to time on or after the Closing Date and prior the earlier of the Revolving
Credit Maturity Date and the termination of the Revolving Credit Commitment of
such Lender in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding not to exceed (after giving effect to all
Revolving Loans repaid, and all reimbursements of LC Disbursements made,
concurrently with the making of any Revolving Loans) an amount equal to the
difference between (i) the Revolving Credit Commitment set forth opposite such
Lender's name on Schedule 2.01, as the same may be reduced from time to time
pursuant to Section 2.09, and (ii) such Lender's Applicable Percentage of the
sum of (A) the aggregate principal amount of Swingline Loans outstanding at such
time and (B) the LC Exposure at such time. Within the limits set forth in the
preceding sentence, the Borrower may borrow, pay or prepay and reborrow
Revolving Loans on or after the Closing Date and prior to the Revolving Credit
Maturity Date, on the terms and subject to the conditions and limitations set
forth herein. The Borrower and the Lenders acknowledge the making of Revolving
Loans prior to the Restatement Date in accordance with the terms of the
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Existing Credit Agreement and agree that such outstanding Revolving Loans shall
continue to be outstanding pursuant to the terms and conditions of this
Agreement and the other Loan Documents.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
respective applicable Tranche A Commitments, Tranche B Commitments or Revolving
Credit Commitments, as the case may be; provided, however, that the failure of
any Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $500,000 and, in
the case of a Eurodollar Borrowing, not less than $1,000,000 or (ii) an
aggregate principal amount equal to the remaining available balance of the
applicable Commitments.
(b) Each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans, as the Borrower may request pursuant to Section 2.03. Each
Lender may at its option fulfill its Commitment with respect to any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan, provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in an aggregate of more than ten separate
Eurodollar Loans of any Lender being outstanding hereunder at any one time. For
purposes of the foregoing, Loans having different Interest Periods, regardless
of whether they commence on the same date, shall be considered separate Loans.
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(c) Subject to paragraph (e) below, each Lender shall make a Loan
in the amount of its pro rata portion, as determined under Section 2.17, of each
Borrowing hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Administrative Agent in New York, New York, not later
than 2:00 p.m., New York City time, and the Administrative Agent shall by 3:00
p.m., New York City time, credit the amounts so received to the general deposit
account of the Borrower or, if a Borrowing shall not occur on such date because
any condition precedent specified herein shall not have been met, return the
amounts so received to the respective Lenders. Unless the Administrative Agent
shall have received notice from a Lender prior to the date of any Borrowing (or,
in the case of an ABR Revolving Borrowing, prior to 2:00 p.m., New York City
time on the date of such Borrowing) that such Lender will not make available to
the Administrative Agent such Lender's portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
this paragraph (c) and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have made such portion available
to the Administrative Agent, such Lender and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
be deemed to constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Interest Period with respect to a
Revolving Credit Borrowing, Tranche A Term Borrowing or Tranche B Term Borrowing
that would end after the Revolving Credit Maturity Date, the Tranche A Maturity
Date or the Tranche B Maturity Date, respectively.
(e) If the Fronting Bank has not received from the Borrower the
payment required by Section 3.04(a) within two hours after the Borrower shall
have received notice from the Fronting Bank that payment of a draft presented
under any Letter of Credit will be made or, if the Borrower shall have received
such notice later than 10:00 a.m., New York City time, on any Business Day, not
later than 10:00 a.m., New York City time, on the immediately following Business
Day, as provided in Section 3.04(a), the Fronting Bank will promptly notify the
Administrative Agent of the LC Disbursement and the Administrative Agent will
promptly notify each Participating Lender of such LC Disbursement and its
Applicable Percentage thereof. Each Participating Lender will pay to the
Administrative Agent not later than 4:00 p.m., New York City time, on such date
(or, if the Participating Lenders shall have received such notice later than
2:00 p.m., New York City time, on any day, not later than 10:00 a.m., New York
City time, on the immediately following Business Day) an amount equal to such
Participating Lender's Applicable Percentage of such LC Disbursement (it being
understood that such amount shall be deemed to constitute an ABR Revolving Loan
of such Participating Lender), and the Administrative Agent will promptly pay
such amount to the Fronting Bank. The Administrative Agent will promptly remit
to each Participating Lender its Applicable
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Percentage of any amounts subsequently received by the Administrative Agent from
the Borrower in respect of such LC Disbursement. If any Lender shall not have
made its Applicable Percentage of such LC Disbursement available to the Fronting
Bank as provided above, such Lender agrees to pay interest on such amount, for
each day from and including the date such amount is required to be paid in
accordance with this subsection to but excluding the date an amount equal to
such amount is paid to the Administrative Agent for prompt payment to the
Fronting Bank at, for the first such day, the Federal Funds Effective Rate, and
for each day thereafter, the Alternate Base Rate.
SECTION 2.03. Notice of Borrowings. The Borrower shall give the
Administrative Agent written or telecopy notice (or telephone notice promptly
confirmed in writing or by telecopy) (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, three Business Days before a
proposed borrowing, (b) in the case of an ABR Term Borrowing, not later than
11:00 a.m., New York City time, one Business Day before a proposed borrowing and
(c) in the case of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, on the day of a proposed borrowing. Such notice shall be
irrevocable and shall in each case refer to this Agreement and specify the
following information: (i) whether the Borrowing then being requested is to be a
Term Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to
be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day) and the amount thereof; (iii) if such Borrowing
is to be a Eurodollar Borrowing, the Interest Period with respect thereto; and
(iv) the number and location of the account to which funds are to be disbursed;
provided, however, that, notwithstanding any contrary specification in any such
notice, each requested Borrowing shall comply with the requirements set forth in
Section 2.02. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.03, and of each
Lender's portion of the requested Borrowing.
SECTION 2.04. Repayment of Loans; Evidence of Debt. (a) The outstanding
principal balance of each Loan or Swingline Loan shall be payable (i) in the
case of a Revolving Loan or Swingline Loan, on the Revolving Credit Maturity
Date, (ii) in the case of a Tranche A Term Loan, as provided in Section
2.11(a)(i) and (iii) in the case of a Tranche B Term Loan, as provided in
Section 2.11(a)(ii). Each Loan shall bear interest from and including the date
made on the outstanding principal balance thereof as set forth in Section 2.06.
(b) Each Lender and the Swingline Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness to such Lender or the Swingline Lender resulting from each Loan or
Swingline Loan, respectively, from time to time, including the amounts of
principal and interest payable and paid such Lender or the Swingline Lender from
time to time under this Agreement.
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(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan and Swingline Loan made hereunder, the
Type of each Loan and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender and the Swingline Lender hereunder and (iii) the amount
of any sum received by the Administrative Agent hereunder from the Borrower or
any Guarantor and each Lender's or the Swingline Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.04 shall, to the extent permitted by
applicable laws be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender,
the Swingline Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans and the Swingline Loans in accordance with their terms.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on each March 31, June 30, September 30 and
December 31 and on each date on which the Commitments of such Lender shall
expire or be terminated as provided herein, a commitment fee (a "Commitment
Fee") equal to the Commitment Fee Percentage on the average daily unused amount
of the Commitments of such Lender during the preceding quarter (or other period
commencing on the date hereof or ending with the Revolving Credit Maturity Date
or the date on which any of such Commitments of such Lender shall expire or be
terminated). The Commitment Fee due to each Lender shall commence to accrue on
and including the Closing Date and shall cease to accrue on, but excluding, the
date on which such Commitments of such Lender shall expire or be terminated as
provided herein. For purposes of calculating Commitment Fees, any portion of the
Revolving Credit Commitments unavailable due to outstanding Swingline Loans or
due to outstanding or unreimbursed unsecured letters of credit permitted by
Section 7.01(h) shall be deemed to be unused amounts of the Commitments. All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(b) The Borrower agrees to pay to the Administrative Agent, for
its own account, administration fees (the "Administrative Fees") at the times
and in the amounts to be agreed upon between the Borrower and the Administrative
Agent.
(c) The Borrower agrees to pay to the Fronting Bank, for its own
account, the fees specified in Section 3.07.
(d) All Fees (other than the fees payable to the Fronting Bank
under Section 3.07) shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances (other than corrections of errors in payment).
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SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate plus the ABR Spread in effect at
such time with respect to such Loans. Swingline Loans shall bear interest at the
rate applicable to ABR Revolving Loans. The ABR Spread for all outstanding ABR
Borrowings on the Restatement Date shall be adjusted on and after the
Restatement Date to give effect to the amendments to the ABR Spread set forth in
this Agreement
(b) Subject to the provisions of Section 2.07, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the LIBOR Spread in effect at such time with respect to such
Loans. The LIBOR Spread for all outstanding Eurodollar Borrowings on the
Restatement Date shall be adjusted on and after the Restatement Date to give
effect to the amendments to the LIBOR Spread set forth in this Agreement.
(c) So long as no Event of Default shall have occurred and be
continuing from and after the date of the delivery of JSCE's audited financial
statements for the fiscal year ended December 31, 1998, on each occasion that,
as of the last day of any fiscal quarter ending on or after December 31, 1998,
the ratio (the "Consolidated Leverage Ratio") of (A) the Indebtedness of JSCE
and its consolidated Subsidiaries on such date to (B) Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on such date shall fall
within one of the Categories set forth on the table below, the Commitment Fee
Percentage, the ABR Spread and the LIBOR Spread in respect of Tranche A Term
Loans and Revolving Loans shall be automatically changed, if necessary, to
reflect the percentages indicated for such Category on the table below under the
caption "Tranche A/Revolver ABR Spread," "Tranche A/Revolver LIBOR Spread"or
"Commitment Fee Percentage", as the case may be, with any such change to be
effective (x) in the case of the Commitment Fee Percentage, with respect to the
unused amounts of the Commitments, on and after the date of delivery to the
Administrative Agent of the certificate described in Section 6.04(d) relating to
such fiscal quarter, (y) in the case of the applicable ABR Spread, with respect
to all ABR Loans outstanding, on and after the date of delivery to the
Administrative Agent of such certificate and (z) in the case of the applicable
LIBOR Spread, with respect to all Loans made on and after the date of delivery
to the Administrative Agent of such certificate.
<TABLE>
<CAPTION>
Tranche A/Revolver Tranche A/Revolver Commitment
Consolidated Leverage Ratio ABR Spread LIBOR Spread Fee Percentage
- --------------------------- ---------- ------------ --------------
<S> <C> <C> <C>
Category 1
Greater than or equal to 4.50 to 1.00 1.50% 2.50% 0.500%
- --------------------------------------------------------------------------------------------------------------------
Category 2
Greater than or equal to 4.25 to 1.00
but less than 4.50 to 1.00 1.25% 2.25% 0.500%
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Category 3
Greater than or equal to 4.00 to 1.00
but less than 4.25 to 1.00 1.00% 2.00% 0.500%
- ---------------------------------------------------------------------------------------------------------------
Category 4
Greater than or equal to 3.25 to 1.00
but less than 4.00 to 1.00 0.75% 1.75% 0.500%
- ---------------------------------------------------------------------------------------------------------------
Category 5
Less than 3.25 to 1.00 0.50% 1.50% 0.375%
</TABLE>
The applicable Category in the table above at any time will be the Category with
the lowest percentages for which the Consolidated Leverage Ratio is satisfied at
such time. In the event that any condition that gives rise to any change in a
Category pursuant to the first sentence of this Section 2.06(c) is no longer
satisfied as of the end of any subsequent fiscal quarter, on and after the date
of delivery to the Administrative Agent of the certificate described in Section
6.04(d) relating to such subsequent fiscal quarter, the Commitment Fee
Percentage, the applicable ABR Spread and the applicable LIBOR Spread shall be
automatically changed to reflect the Category indicated by such certificate,
with any such change to be effective (x) in the case of the Commitment Fee
Percentage, with respect to the unused amounts of the Commitments, on and after
the date of delivery to the Administrative Agent of the certificate described in
Section 6.04(d) relating to such fiscal quarter, (y) in the case of the
applicable ABR Spread, with respect to all ABR Loans outstanding, on and after
the date of delivery to the Administrative Agent of such certificate and (z) in
the case of the applicable LIBOR Spread, with respect to all Loans made on and
after the date of delivery to the Administrative Agent of such certificate.
Notwithstanding the foregoing, at any time during which JSCE has failed to
deliver the certificate described in Section 6.04(d) with respect to a fiscal
quarter in accordance with the provisions thereof, or at any time after the
occurrence and during the continuance of an Event of Default, the Consolidated
Leverage Ratio shall be deemed to be in Category 1 for purposes of determining
the Commitment Fee Percentage, the applicable ABR Spread and the applicable
LIBOR Spread.
(d) Interest on each Loan and each Swingline Loan shall be
payable on the Interest Payment Dates applicable to such Loan or Swingline Loan,
as the case may be, except as otherwise provided in this Agreement. The
applicable ABR Spread or LIBOR Spread for each Interest Period or day within an
Interest Period, as the case may be, shall be determined by the Administrative
Agent, and such determination shall be presumptively correct absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or Swingline Loan or any
other amount becoming due hereunder or under any Security Document, by
acceleration or otherwise, the Borrower shall on demand from
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<PAGE>
<PAGE>
time to time pay interest, to the extent permitted by law, on such defaulted
amount to but excluding the date of actual payment (after as well as before
judgment or bankruptcy) at a rate per annum (the "Default Rate") (computed on
the basis of the actual number of days elapsed over a year of 360 days) equal to
(a) in the case of any Loan or any Swingline Loan, the rate that would be
applicable under Section 2.06 to such Loan or Swingline Loan, plus 2% per annum,
and (b) in the case of any other amount, the rate that would be applicable under
Section 2.06 to a Tranche B Term Loan that is an ABR Loan, plus 2% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to Lenders having Commitments
representing at least 20% of the total Commitments of making or maintaining
their Eurodollar Loans during such Interest Period, or that reasonable means do
not exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent
shall, as soon as practicable thereafter, give written or telecopy notice of
such determination to the Borrower and the Lenders. In the event of any such
determination, any request by the Borrower for a Eurodollar Borrowing pursuant
to Section 2.03 or 2.10 shall, until the Administrative Agent shall have advised
the Borrower and the Lenders that the circumstances giving rise to such notice
no longer exist, be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments (other than the Additional Tranche B Commitments) were
automatically terminated at 5:00 p.m., New York City time, on the Closing Date.
The Additional Tranche B Commitments shall be automatically terminated at 5:00
p.m., New York City time, on the Restatement Date. The Revolving Credit
Commitments and the LC Commitment shall be automatically terminated at 5:00
p.m., New York City time, on the Revolving Credit Maturity Date and the LC
Maturity Date, respectively.
(b) Upon at least three Business Days' prior irrevocable written
or telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $5,000,000 and (ii) the Borrower shall not be permitted to
terminate or reduce the Revolving Credit Commitments if, as the result of such
termination or reduction, (A) the LC Commitment would exceed the aggregate
remaining Revolving Credit Commitments or (B) the Revolving Credit Utilization
would exceed the aggregate remaining Revolving Credit Commitments. The LC
Commitment may be voluntarily terminated or reduced by the Borrower, as provided
in Section 3.06.
(c) The Revolving Credit Commitments shall be permanently reduced
by the amount of any mandatory prepayments applied to Swingline Loans or
Revolving Credit Borrowings pursuant to Section 2.13(f).
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<PAGE>
<PAGE>
(d) Each reduction in the Commitments hereunder shall be made
ratably among the applicable Lenders in accordance with their respective
applicable Commitments. The Borrower shall pay to the Administrative Agent for
the account of the applicable Lenders, on the date of each termination or
reduction, the Commitment Fees on the amount of the Commitments so terminated or
reduced accrued to, but excluding, the date of such termination or reduction.
(e) Nothing in this Section 2.09 shall prejudice any rights that
the Borrower may have against any Lender that fails to lend as required
hereunder prior to the date of termination of any Commitment.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (i) not later than 11:00 a.m., New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (ii) not later than 11:00 a.m., New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a
Eurodollar Borrowing for an additional Interest Period and (iii) not later than
11:00 a.m., New York City time, three Business Days prior to conversion, to
convert the Interest Period with respect to any Eurodollar Borrowing to another
permissible Interest Period, subject in each case to the following:
(a) each conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Borrowing;
(b) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, the aggregate principal
amount of such Borrowing converted or continued shall be an integral
multiple of $1,000,000 and not less than $10,000,000;
(c) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
the conversion;
(d) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to Section
2.16;
(e) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a
Eurodollar Borrowing;
(f) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of
subparagraph (e) above shall be
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<PAGE>
<PAGE>
automatically converted at the end of the Interest Period in effect for
such Borrowing into an ABR Borrowing;
(g) no Interest Period may be selected for any Eurodollar Term
Borrowing comprised of Tranche A Term Loans or Tranche B Term Loans that
would end later than the Tranche A Term Loan Repayment Date or the
Tranche B Term Loan Repayment Date, as the case may be, occurring on or
after the first day of such Interest Period if, after giving effect to
such selection, the aggregate outstanding amount of (i) the Eurodollar
Term Borrowings comprised of Tranche A Term Loans or Tranche B Term
Loans, as the case may be, with Interest Periods ending on or prior to
such Tranche A Term Loan Repayment Date or Tranche B Term Loan Repayment
Date, respectively, and (ii) the ABR Term Borrowings comprised of
Tranche A Term Loans or Tranche B Term Loans, as the case may be, would
not be at least equal to the principal amount of Term Borrowings to be
paid on such Term Loan Repayment Date; and
(h) prior to the earlier to occur of (i) the 90th day after the
Restatement Date and (ii) the date on which the Senior Managing Agents
notify the Borrower that the primary syndication of the Additional
Tranche B Term Loans has been completed, no Tranche B Term Loan may be
made or converted into a Eurodollar Loan with an Interest Period in
excess of one month and all Tranche B Term Loans shall have the same
Interest Period and be of the same Type.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued and whether such Borrowing
is comprised of Tranche A Term Loans, Tranche B Term Loans or Revolving Loans,
(ii) whether such Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall advise the other Lenders of
any notice given pursuant to this Section 2.10 and of each Lender's portion of
any converted or continued Borrowing. If the Borrower shall not have given
notice in accordance with this Section 2.10 to continue any Borrowing into a
subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Borrowing), such Borrowing
shall, at the end of the Interest Period applicable thereto (unless repaid
pursuant to the terms hereof), automatically be continued into a new Interest
Period as an ABR Borrowing.
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<PAGE>
<PAGE>
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
succeeding Business Day (each such date being a "Tranche A Term Loan Repayment
Date"), a principal amount of the Tranche A Term Loans (such amount, as adjusted
from time to time pursuant to Sections 2.12 and 2.13(f), being called the
"Tranche A Term Loan Repayment Amount") equal to the amount set forth below for
such date, together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment:
<TABLE>
<CAPTION>
Date Amount
- ---- ------
<S> <C>
March 31, 1999 $ 12,500,000
September 30, 1999 12,500,000
March 31, 2000 25,000,000
September 30, 2000 25,000,000
March 31, 2001 25,000,000
September 30, 2001 25,000,000
March 31, 2002 25,000,000
September 30, 2002 25,000,000
March 31, 2003 25,000,000
September 30, 2003 25,000,000
March 31, 2004 37,500,000
September 30, 2004 37,500,000
Tranche A Maturity Date 100,000,000
</TABLE>
On each Tranche A Term Loan Repayment Date, the Administrative Agent shall apply
the Tranche A Term Loan Repayment Amount paid to the Administrative Agent to pay
the Tranche A Term Loans in accordance with Section 2.19(a).
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<PAGE>
<PAGE>
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next succeeding Business Day (each such date being a
"Tranche B Term Loan Repayment Date"), a principal amount of the Tranche B Term
Loans (such amount, as adjusted from time to time pursuant to Sections 2.12 and
2.13(f), being called the "Tranche B Term Loan Repayment Amount") equal to the
amount set forth below for such date, together in each case with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of
such payment:
<TABLE>
<CAPTION>
Date Amount
- ---- ------
<S> <C>
March 31, 1999 $ 4,500,000
September 30, 1999 4,500,000
March 31, 2000 4,500,000
September 30, 2000 4,500,000
March 31, 2001 4,500,000
September 30, 2001 4,500,000
March 31, 2002 4,500,000
September 30, 2002 4,500,000
March 31, 2003 4,500,000
September 30, 2003 4,500,000
March 31, 2004 4,500,000
September 30, 2004 4,500,000
March 31, 2005 4,500,000
September 30, 2005 418,500,000
Tranche B Maturity Date 423,000,000
</TABLE>
On each Tranche B Term Loan Repayment Date, the Administrative Agent shall apply
the Tranche B Term Loan Repayment Amount paid to the Administrative Agent to pay
the Tranche B Term Loans in accordance with Section 2.19(a).
(b) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date and (ii) all
Tranche B Term Loans shall be due and payable on the Tranche B Maturity Date, in
each case together with accrued and unpaid interest on the principal amount to
be paid to but excluding the date of payment.
(c) All repayments pursuant to this Section 2.11 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayments. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, upon written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) delivered to the Administrative Agent (i) by 11:00
a.m., New York City time, at least three Business Days prior to
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<PAGE>
the date designated for such prepayment, in the case of any prepayment of a
Eurodollar Borrowing, or (ii) by 11:00 a.m., New York City time, on the date
designated for such prepayment in the case of any prepayment of an ABR
Borrowing; provided, however, that each partial payment shall be in an amount
that is an integral multiple of $1,000,000 and, in the case of a Eurodollar
Borrowing, not less than $10,000,000 (or, in each case, the entire amount of the
Borrowing being prepaid).
(b) Optional prepayments of Term Loans made by the Borrower
pursuant to paragraph (a) above shall be allocated among the Tranche A Term
Loans and the Tranche B Term Loans (and to the remaining scheduled installments
of principal with respect to any such Term Loans) in a manner determined at the
discretion of the Borrower.
(c) Each notice of prepayment shall specify the amount to be
prepaid, the prepayment date, whether the related prepayment relates to a
Revolving Credit Borrowing or a Term Borrowing and the principal amount of each
Revolving Credit Borrowing or Term Borrowing (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the Borrower to prepay such obligations by
the amount specified therein on the date specified therein. All prepayments
pursuant to this Section 2.12 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.
(d) No optional prepayment of Term Loans made by the Borrower
pursuant to this Section 2.12 shall reduce the Borrower's obligation to make
mandatory prepayments pursuant to Section 2.13(b), (c), (d) or (e).
SECTION 2.13. Mandatory Prepayments. (a) On the date of any termination
or reduction of the Revolving Credit Commitments pursuant to Section 2.09, the
Borrower shall pay or prepay so much of the then-outstanding Swingline Loans and
the then-outstanding Revolving Credit Borrowings as shall be necessary in order
that the aggregate principal amount of the Swingline Loans and Revolving Loans
outstanding at such time will not exceed the aggregate Revolving Credit
Commitments (after giving effect to such termination or reduction and after
giving effect to each deemed reduction to the Revolving Credit Commitments in
connection with the making of a Swingline Loan) less the aggregate LC Exposure
at such time.
(b) With respect to (i) any Asset Sale that is an Asset Sale at
the time of such sale or other disposition and (ii) any Asset Sale not described
in clause (i) that becomes an Asset Sale due to the operation of the first
proviso contained in the definition of the term "Asset Sale", the Borrower shall
apply not later than the third Business Day following the determination of the
amount of Net Cash Proceeds received in respect thereof (but in no event later
than 60 days after the initial receipt by any Loan Party or any of their
respective Subsidiaries of such Net Cash Proceeds) an amount equal to 100% of
the Net Cash Proceeds received therefrom to prepay outstanding Loans and
Swingline Loans in accordance with Section 2.13(f).
(c) No later than the earlier of (i) 90 days after the end of
each fiscal year of JSCE, commencing with the fiscal year ending on December 31,
1998, and (ii) the date on which the financial statements with respect to such
period are delivered pursuant to Section 6.04(a), the
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<PAGE>
Borrower shall prepay outstanding Loans and Swingline Loans in accordance with
Section 2.13(f) in an aggregate principal amount equal to 50% of Excess Cash
Flow for the fiscal year then ended.
(d) In the event that any Loan Party or any Subsidiary of a Loan
Party shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for money borrowed of any Loan Party or any Subsidiary of a Loan
Party (other than Indebtedness for money borrowed permitted pursuant to Section
7.01 (other than clause (k) thereof)), including pursuant to any Permitted
Equipment Financing or any Permitted Timber Financing, then the Borrower shall
substantially simultaneously with (and in any event not later than the third
Business Day next following) the receipt of such Net Cash Proceeds by such Loan
Party or Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to
prepay outstanding Loans and Swingline Loans in accordance with Section 2.13(f).
(e) In the event that there shall occur any Taking or Destruction
(as such terms are defined in the Mortgages) of any Mortgaged Property and
pursuant to the provisions of the applicable Mortgage amounts payable with
respect thereto are to be applied to the Secured Obligations, the Borrower shall
apply an amount equal to 100% of the Net Cash Proceeds therefrom to prepay the
outstanding Loans and Swingline Loans in accordance with Section 2.13(f).
(f) Mandatory prepayments of outstanding obligations under this
Agreement made by the Borrower pursuant to paragraphs (b), (c), (d) and (e)
above first, shall be allocated pro rata between the then-outstanding Tranche A
Term Loans and Tranche B Term Loans and, subject to paragraph (i) below, applied
pro rata against the remaining scheduled installments of principal due in
respect of Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively, and second, if the Term Loans shall have been
repaid in full, shall be applied to permanently reduce existing Revolving Credit
Commitments; provided, however, that (i) subject to paragraph (i) below, up to
$50,000,000, in the case of prepayments of the Tranche A Term Loans, of any
prepayment required to be made pursuant to Section 2.13(c) may be allocated
between the Tranche A Term Loans and the Tranche B Term Loans (and to the
remaining scheduled installments of principal with respect to any such Term
Loans) in a manner determined at the discretion of the Borrower and (ii) subject
to paragraph (i) below, the amount of any such prepayment required to be made
pursuant to Section 2.13(c) in excess of $50,000,000, together, in the case of
prepayments of the Tranche A Term Loans, with the amount of any prepayments
rejected by Tranche B Lenders pursuant to paragraph (i) below, may be applied by
the Borrower against the remaining scheduled installments of principal with
respect to the Term Loans required to be paid within 24 months of the date of
such prepayment.
(g) The Borrower shall deliver to the Administrative Agent, (i)
at the time of each prepayment by the Borrower required under paragraph (b),
(c), (d) or (e) above, a certificate signed by a Financial Officer of the
Borrower setting forth in reasonable detail the calculation of the amount of
such prepayment and (ii) at least three Business Days prior to the time of each
prepayment required under this Section 2.13, a notice of such prepayment. Each
notice of prepayment shall specify the prepayment date, the Type of each Loan
being prepaid and the principal amount of each Loan or Swingline Loan (or
portion thereof) to be prepaid. All prepayments of Borrowings and Swingline
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Loans under this Section 2.13 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.
(h) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts
remaining after each such application shall, at the option of the Borrower, be
applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the
case may be, immediately and/or shall be deposited in the Prepayment Account (as
defined below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans
and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in
each case on the last day of their respective Interest Periods (or, at the
direction of the Borrower, on any earlier date) until all outstanding Term Loans
or Revolving Loans, as the case may be, have been prepaid or until all the
allocable cash on deposit with respect to such Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(h). The Administrative Agent will, at the request of the Borrower, invest
amounts on deposit in the Prepayment Account in Permitted Investments that are
described in clause (a), (b), (c) or (d) of the definition of such term and
that mature prior to the last day of the applicable Interest Periods of the
Eurodollar Term Borrowings or Eurodollar Revolving Borrowings to be prepaid,
as the case may be; provided, however, that (i) the Administrative Agent shall
not be required to make any investment that, in its sole judgment, would
require or cause the Administrative Agent to be in, or would result in any,
violation of any law, statute, rule or regulation and (ii) the Administrative
Agent shall have no obligation to invest amounts on deposit in the Prepayment
Account if a Default or Event of Default shall have occurred and be
continuing. The Borrower shall indemnify the Administrative Agent for any
losses relating to the investments so that the amount available to prepay
Eurodollar Borrowings on the last day of the applicable Interest Period is not
less than the amount that would have been available had no investments been made
pursuant thereto. Other than any interest earned on such investments, the
Prepayment Account shall not bear interest. Interest or profits, if any, on such
investments shall be deposited in the Prepayment Account and reinvested and
disbursed as specified above. If the maturity of the Loans has been accelerated
pursuant to Article VIII, the Administrative Agent may, in its sole discretion,
apply all amounts on deposit in the Prepayment Account to satisfy any of the
Obligations. The Borrower hereby grants to the Administrative Agent, for its
benefit and the benefit of the Fronting Bank, the Swingline Lender and the
Lenders, a security interest in the Prepayment Account to secure the
Obligations.
(i) Notwithstanding paragraph (f) above, with respect to the
amount of any mandatory prepayment described therein that is allocated to the
then-outstanding Tranche B Term Loans (such amounts, the "Prepayment Amount"),
the Borrower may, not less than 10 nor more than 20 Business Days prior to the
date specified therein for such prepayment (the "Mandatory Prepayment Date"),
provide to each Tranche B Lender a written notice (each, a "Prepayment Option
Notice"), which shall refer to this Section 2.13(i) and shall (i) set forth the
Prepayment Amount and the portion thereof that the applicable Tranche B Lender
(each, a "Prepayment Lender") will be
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entitled to receive if it accepts such mandatory prepayment in accordance with
this paragraph (i), (ii) request such Prepayment Lender to notify the Borrower
and the Administrative Agent in writing no later than the Business Day prior to
the Mandatory Prepayment Date of such Prepayment Lender's acceptance or
rejection (in each case, in whole and not in part) of its share of the
Prepayment Amount and (iii) inform such Prepayment Lender that failure by such
Prepayment Lender to accept in writing its share of the Prepayment Amount on or
before the Business Day prior to the Mandatory Prepayment Date shall be deemed a
rejection of such amount. Each Prepayment Option Notice shall be given by
telecopy, confirmed by hand delivery, overnight courier service or registered or
certified mail, in each case addressed as provided in Section 10.01. On the
Mandatory Prepayment Date, the Borrower shall apply the aggregate amount
necessary to prepay that portion of the Prepayment Amount in respect of which
such Prepayment Lenders have accepted prepayment as described above (such
Prepayment Lenders, the "Accepting Lenders") pro rata against the
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remaining installments of principal due in respect of the Tranche B Term Loans
of the Accepting Lenders under Section 2.11(a)(ii). The remaining portion of the
Prepayment Amount shall be applied (i) in the case of any Prepayment Amount
payable pursuant to Section 2.13(c), in accordance with Section 2.13(f) and (ii)
in all other cases, against the remaining scheduled installments of principal
due in respect of such Tranche A Term Loans under Section 2.11(a)(i) in the
order of maturity.
SECTION 2.14. Reserve Requirements; Change in Circumstances; Increased
Costs. (a) Notwithstanding any other provision herein, if after the Closing Date
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender, the Swingline
Lender or the Fronting Bank of the principal of or interest on any Eurodollar
Loan made by such Lender or any Letter of Credit obligations, Fees or other
amounts payable hereunder (other than changes in respect of income and franchise
taxes imposed on such Lender, the Swingline Lender or the Fronting Bank by the
jurisdiction in which such Lender, the Swingline Lender or the Fronting Bank is
organized or has its principal or lending office or by any political subdivision
or taxing authority thereof or therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Lender, the
Swingline Lender or the Fronting Bank (except any such reserve requirement that
is reflected in the Adjusted LIBO Rate or in the Alternate Base Rate) or shall
impose on such Lender, the Swingline Lender or the Fronting Bank or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan or
to reduce the amount of any sum received or receivable by such Lender, the
Swingline Lender or the Fronting Bank hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender, the Swingline Lender or the
Fronting Bank to be material, then the Borrower will pay to such Lender, the
Swingline Lender or the Fronting Bank following receipt of a certificate of such
Lender, the Swingline Lender or the Fronting Bank to such effect in accordance
with Section 2.14(c) such additional amount or amounts as will compensate such
Lender, the Swingline Lender or the Fronting Bank on an after-tax basis for such
additional costs incurred or reduction suffered. Notwithstanding any other
provision in this paragraph (a), none of any Lender, the Swingline Lender or the
Fronting Bank shall be entitled to demand compensation pursuant to this
paragraph (a) if it shall not be the general practice of such Lender, the
Swingline Lender or the Fronting Bank, as applicable, to demand such
compensation in similar circumstances under comparable provisions of other
comparable credit agreements.
(b) If any Lender, the Swingline Lender or the Fronting Bank
shall have determined that the adoption after the Closing Date of any law, rule,
regulation, agreement or guideline regarding capital adequacy, or any change in
any of the foregoing or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or any lending office of such Lender), the Swingline Lender or the
Fronting Bank or any Lender's, the Swingline Lender's or the Fronting Bank's
holding company, if any, with any request or directive regarding capital
adequacy issued under any law, rule, regulation or guideline (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or
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would have the effect of reducing the rate of return on such Lender's, the
Swingline Lender's or the Fronting Bank's capital or on the capital of such
Lender's, the Swingline Lender's or the Fronting Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by such Lender, the
Swingline Loans made by the Swingline Lender or the Letters of Credit issued by
the Fronting Bank pursuant hereto to a level below that which such Lender, the
Swingline Lender or the Fronting Bank or such Lender's, the Swingline Lender's
or the Fronting Bank's holding company, if any, could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Lender's, the Swingline Lender's or the Fronting Bank's policies and the
policies of such Lender's, the Swingline Lender's or the Fronting Bank's holding
company, if any, with respect to capital adequacy) by an amount deemed by such
Lender, the Swingline Lender or the Fronting Bank to be material, then from time
to time the Borrower shall pay to such Lender, the Swingline Lender or the
Fronting Bank following receipt of a certificate of such Lender, the Swingline
Lender or the Fronting Bank to such effect in accordance with Section 2.14(c)
such additional amount or amounts as will compensate such Lender, the Swingline
Lender or the Fronting Bank or such Lender's, the Swingline Lender's or the
Fronting Bank's holding company, if any, on an after-tax basis for any such
reduction suffered. Notwithstanding any other provision in this paragraph (b),
none of any Lender, the Swingline Lender or the Fronting Bank shall be entitled
to demand compensation pursuant to this paragraph (b) if it shall not be the
general practice of such Lender, the Swingline Lender or the Fronting Bank, as
applicable, to demand such compensation in similar circumstances under
comparable provisions of other comparable credit agreements.
(c) A certificate of each Lender, the Swingline Lender or the
Fronting Bank setting forth such amount or amounts as shall be necessary to
compensate such Lender, the Swingline Lender or the Fronting Bank or its holding
company, if any, as specified in paragraph (a) or (b) above, as the case may be,
and setting forth in reasonable detail an explanation of the basis of requesting
such compensation in accordance with paragraph (a) or (b) above, including
calculations in reasonable detail, shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay each Lender, the
Swingline Lender or the Fronting Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure on the part of any Lender, the Swingline Lender or
the Fronting Bank to demand compensation for any increased costs or reduction in
amounts received or receivable or reduction in return on capital with respect to
any period shall not constitute a waiver of such Lender's, the Swingline
Lender's or the Fronting Bank's right to demand compensation with respect to
such period or any other period, except that none of any Lender, the Swingline
Lender or the Fronting Bank shall be entitled to compensation under this Section
2.14 for any costs incurred or reduction suffered with respect to any date
unless such Lender, the Swingline Lender or the Fronting Bank, as applicable,
shall have notified the Borrower that it will demand compensation for such costs
or reductions under paragraph (c) above, not more than six months after the
later of (i) such date and (ii) the date on which such Lender, the Swingline
Lender or the Fronting Bank, as applicable, shall have become aware of such
costs or reductions. The protection of this Section 2.14 shall be available to
each Lender, the Swingline Lender or the Fronting Bank regardless of any
possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition that shall have occurred or
been imposed.
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SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision herein, if after the Closing Date any change in any law or regulation
or in the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently withdrawn;
and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under subparagraph (i) or (ii)
above, all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower
by any Lender shall be effective as to each Eurodollar Loan, if lawful, on the
last day of the Interest Period currently applicable to such Eurodollar Loan; in
all other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur with respect
to Eurodollar Loans as a consequence of (a) any failure by the Borrower to
fulfill on the date of any Borrowing hereunder the applicable conditions set
forth in Article V, (b) any failure by the Borrower to borrow or to refinance,
convert or continue any Loan hereunder after irrevocable notice of such
borrowing, refinancing, conversion or continuation has been given pursuant to
Section 2.03 or 2.10, (c) any payment, prepayment or conversion of a Eurodollar
Loan required or permitted by any other provision of this Agreement or
otherwise, or any assignment of a Eurodollar Loan required by Section 2.21(b),
in each case made or deemed made on a date other than the last day of the
Interest Period applicable thereto or (d) any default in payment or prepayment
of the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether at
scheduled maturity, by acceleration, irrevocable notice of prepayment or
otherwise), including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any part
thereof as a Eurodollar Loan. Such loss or reasonable expense shall be equal to
the sum of (a) such Lender's actual costs and expenses incurred (other than any
lost profits) in connection with, or by reason of,
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any of the foregoing events and (b) an amount equal to the excess, if any, as
reasonably determined by such Lender of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed, converted or continued
(assumed to be the Adjusted LIBO Rate applicable thereto) for the period from
and including the date of such payment, prepayment, conversion or failure to
borrow, convert or continue to but excluding the last day of the Interest Period
for such Loan (or, in the case of a failure to borrow, convert or continue, the
Interest Period for such Loan that would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the funds so paid,
prepaid, converted or not borrowed, converted or continued for such period or
Interest Period, as the case may be. A certificate of any Lender setting forth
any amount or amounts, including calculations in reasonable detail, that such
Lender is entitled to receive pursuant to this Section 2.16 shall be delivered
to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Section 2.15
or permitted under Section 2.12(b) or Sections 2.13(f) and (i), each Borrowing,
each payment or prepayment of principal of any Borrowing, each payment of
interest on the Loans, each payment of the Commitment Fees, each payment of the
LC Fees, each reduction of the Commitments and each refinancing of any Borrowing
with, conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing, computed in accordance with Section 2.01, to the next higher or
lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against any Loan Party, or pursuant to a secured claim under Section 506 of
Title 11 of the United States Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans or LC
Exposure as a result of which the unpaid principal portion of its Loans or its
LC Exposure shall be proportionately less than the unpaid principal portion of
the Loans of any other Lender or any other Lender's LC Exposure, such Lender
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender or the LC Exposure of such other
Lender, so that the aggregate unpaid principal amount of the Loans, LC Exposure
and participations in Loans and LC Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Loans and LC
Exposure then outstanding as the principal amount of such Lender's Loans and LC
Exposure prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all Loans and LC Exposure outstanding
prior to such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or adjustments shall
be made pursuant to this Section 2.18 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
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adjustment restored without interest. SSCC, JSCE and the Borrower expressly
consent to the foregoing arrangements and agree that any Lender holding a
participation in a Loan or LC Exposure deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by the Loan Parties to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in
the amount of such participation.
SECTION 2.19. Payments. (a) Except as provided in Sections 2.05(d) and
3.04(a) and (b), the Loan Parties shall make each payment (including principal
of or interest on any Loan or Swingline Loan or any Fees or other amounts)
hereunder and under any other Loan Document not later than 12:00 noon, New York
City time, on the date when due in immediately available dollars, without
defense, setoff or counterclaim. Each such payment (other than (i) the payments
specified in Sections 3.04(a), 3.04(b) and 3.07, which shall be paid directly to
the Fronting Bank, and (ii) principal of and interest on Swingline Loans, which
shall be paid directly to the Swingline Lender) shall be made to the
Administrative Agent at its office at 270 Park Avenue, New York, New York.
Payments made directly to the Fronting Bank shall be made to such account of the
Fronting Bank as the Fronting Bank shall specify by notice to the Borrower.
Payments made directly to the Swingline Lender shall be made to such account of
the Swingline Lender as the Swingline Lender shall specify by notice to the
Borrower. Any payments received by the Administrative Agent, the Fronting Bank
or the Swingline Lender after the specified time for receipt of such payment on
any day shall be deemed to have been received on the next Business Day. The
Administrative Agent shall distribute to the applicable Lenders all payments
received by the Administrative Agent for their respective accounts, promptly
following receipt thereof.
(b) Whenever any payment (including principal of or interest on
any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Loan Parties
hereunder shall be made, in accordance with Section 2.19, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Administrative Agent, the
Collateral Agent, the Fronting Bank or the Swingline Lender or any Lender (or
any transferee or assignee thereof, including a participation holder (any such
entity being called a "Transferee")) and franchise taxes imposed on the
Administrative Agent, the Collateral Agent, the Fronting Bank or the Swingline
Lender or any Lender (or Transferee) by the United States or any jurisdiction
under the laws of which the Administrative Agent, the Collateral Agent, the
Fronting Bank, the Swingline Lender or any such Lender (or Transferee) is
organized or has its principal office or lending office or any political
subdivision or taxing authority thereof or therein (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Taxes are required to be deducted
from or in respect of any sum payable hereunder to any Lender (or any
Transferee), the Administrative Agent, the Collateral Agent, the Swingline
Lender or the Fronting
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Bank, (i) the sum payable shall be increased by the amount necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) such Lender (or Transferee),
the Administrative Agent, the Collateral Agent, the Swingline Lender or the
Fronting Bank (as the case may be) shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) SSCC, JSCE or the
Borrower, as applicable, shall make such deductions and (iii) SSCC, JSCE or the
Borrower, as applicable, shall pay the full amount deducted to the relevant
taxing authority or other Governmental Authority in accordance with applicable
law; provided, however, that no Transferee of any Lender shall be entitled to
receive any greater payment under this paragraph (a) than such Lender would have
been entitled to receive with respect to the rights assigned, participated or
otherwise transferred unless (x) such assignment, participation or transfer
shall have been made at a time when the circumstances (including a Change of
Law) giving rise to such greater payment did not exist or had not yet occurred
or (y) such assignment, participation or transfer shall have been at the request
of the Borrower.
(b) The Borrower agrees to pay any current or future stamp,
intangible or documentary taxes or any other excise or property taxes, charges
or similar levies (including, without limitation, mortgage recording taxes and
similar fees) that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, any
Assignment and Acceptance entered into at the request of the Borrower or any
other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee), the
Administrative Agent, the Collateral Agent, the Swingline Lender and the
Fronting Bank for the full amount of Taxes and Other Taxes (including any Taxes
or Other Taxes on amounts payable under this Section 2.20) paid by such Lender
(or Transferee), the Administrative Agent, the Collateral Agent, the Swingline
Lender or the Fronting Bank, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Lender (or
Transferee), the Administrative Agent, the Collateral Agent, the Swingline
Lender or the Fronting Bank, as the case may be, makes written demand therefor
(which demand shall identify the nature and amount of Taxes and Other Taxes for
which indemnification is being sought and shall include a copy of the relevant
portion of any written assessment from the relevant taxing authority demanding
payment of such Taxes or Other Taxes, unless the Lender (or Transferee), the
Administrative Agent, the Collateral Agent, the Swingline Lender or the Fronting
Bank, as the case may be, determines, in its sole discretion, that such portion
of any such assessment is confidential). If a Lender (or Transferee), the
Administrative Agent, the Swingline Lender or the Fronting Bank shall become
aware that it is entitled to receive a refund in respect of Taxes or Other Taxes
as to which it has been indemnified by the Borrower pursuant to this Section
2.20, it shall promptly notify the Borrower of the availability of such refund
and shall, within 30 days after receipt of a request by the Borrower, apply for
such refund at the Borrower's expense. If any Lender (or Transferee), the
Administrative Agent, the Swingline Lender or the Fronting Bank receives a
refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.20, it shall promptly
notify the Borrower of such refund and shall, within 30 days of receipt, repay
such refund
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(to the extent of amounts that have been paid by the Borrower under this Section
2.20 with respect to such refund and not previously reimbursed) to the Borrower,
net of all reasonable out-of-pocket expenses of such Lender, the Administrative
Agent, the Swingline Lender or the Fronting Bank and without interest (other
than the interest, if any, included in such refund net of any Taxes payable with
respect to receipt of such refund), provided that the Borrower, upon the request
of such Lender (or Transferee), the Administrative Agent, the Swingline Lender
or the Fronting Bank, agree to return such refund (plus penalties, interest or
other charges) to such Lender (or Transferee), the Administrative Agent, the
Swingline Lender or the Fronting Bank in the event such Lender (or Transferee),
the Administrative Agent, the Swingline Lender or the Fronting Bank is required
to repay such refund.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by SSCC, JSCE or the Borrower in respect of any payment to
any Lender (or Transferee), the Administrative Agent, the Collateral Agent, the
Swingline Lender or the Fronting Bank, SSCC, JSCE or the Borrower, as the case
may be, will furnish to the Administrative Agent, at its address referred to in
Section 10.01, the original or a certified copy of a receipt evidencing payment
thereof or other evidence reasonably satisfactory to such Lender (or
Transferee), the Administrative Agent, the Collateral Agent, the Swingline
Lender or the Fronting Bank, as the case may be.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) Each of the Administrative Agent, the Fronting Bank, the
Swingline Lender and any Lender (or Transferee) that is not incorporated or
otherwise formed under the laws of the United States of America or a state
thereof (a "Non-U.S. Person") agrees that it shall on the date it becomes a
Lender (or Transferee), the Administrative Agent, a Fronting Bank or Swingline
Lender hereunder, deliver to the Borrower and the Administrative Agent (i) one
duly completed copy of United States Internal Revenue Service Form 1001 or 4224,
or (ii) in the case of Lenders (or Transferees) exempt from United States
Federal withholding tax pursuant to Sections 871(h) or 881(c) of the Code, one
duly completed copy of a United States Internal Revenue Service Form W-8 and a
certificate representing that such Non-U.S. Person is not a bank for purposes of
Section 881(c) of the Code, or any successor applicable form of any thereof,
certifying in each case that such Lender (or Transferee), the Administrative
Agent, the Fronting Bank or the Swingline Lender is entitled to receive payments
hereunder payable to it without deduction or withholding of any United States
Federal income taxes, or subject to a reduced rate thereof. Each of the
Administrative Agent, the Fronting Bank or the Swingline Lender or any Lender
(or Transferee) that delivers to the Borrower and the Administrative Agent any
such form or certification further undertakes to deliver to the Borrower and the
Administrative Agent further copies of any such form or certification or other
manner of certification reasonably satisfactory to the Borrower on or before the
date that any such form or certification expires or becomes obsolete or of the
occurrence of any event requiring a change in the most recent form or
certification previously delivered by it to the Borrower or the Administrative
Agent, and such extensions or renewals thereof as may reasonably be requested by
the Borrower or the Administrative Agent, certifying that the Administrative
Agent, Fronting Bank,
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Swingline Lender or such Lender (or Transferee), as the case may be, is entitled
to receive payments hereunder without deduction or withholding of any United
States Federal income taxes, or subject to a reduced rate thereof. If at any
time there has occurred, on or prior to the date on which any delivery of any
such form or certification would otherwise be required, any change in law, rule,
regulation, treaty, convention or directive, or any change in the interpretation
or application of any thereof ("Change of Law"), that renders all such forms or
certification inapplicable or which would prevent the Administrative Agent,
Fronting Bank, Swingline Lender or such Lender (or Transferee), as the case may
be, from duly completing and delivering any such form or certification with
respect to it, the Administrative Agent, Fronting Bank, Swingline Lender or such
Lender (or Transferee), as the case may be, shall advise the Borrower that under
applicable law it shall be subject to withholding of United States Federal
income tax at the full statutory rate, a reduced rate of withholding or without
deduction or withholding. A Non-U.S. Person shall be required to furnish any
such form or certification only if it is entitled to claim an exemption from or
a reduced rate of withholding. Each of the Administrative Agent, the Fronting
Bank, the Swingline Lender and any Lender that is a Non-U.S. Person and that is
a party hereto as of the Restatement Date hereby represents and warrants that,
as of the Restatement Date, payments made to it hereunder are exempt from
withholding of United States Federal income taxes (i) because such payments are
effectively connected with a United States trade or business conducted by such
Non-U.S. Person; (ii) pursuant to the terms of an income tax treaty between the
United States and such Non-U.S. Person's country of residence; or (iii) because
such payments are portfolio interest exempt pursuant to Section 871(h) or 881(c)
of the Code. Notwithstanding any provision of paragraph (a) above to the
contrary, none of SSCC, JSCE or the Borrower shall have any obligation to pay
any Taxes or Other Taxes or to indemnify any Lender (or Transferee), the
Administrative Agent, the Swingline Lender or the Fronting Bank for such Taxes
or Other Taxes pursuant to Section 2.20 to the extent that such Taxes or Other
Taxes result from (i) the failure of any Lender (or Transferee), the
Administrative Agent, the Fronting Bank or the Swingline Bank to comply with its
obligations pursuant to this paragraph (f) or (ii) any representation made on
any such form or certification (or successor applicable form or certification)
by the Lender (or Transferee), the Administrative Agent, the Fronting Bank, or
the Swingline Lender incurring such Taxes or Other Taxes proving to have been
incorrect, false or misleading in any material respect when so made or deemed to
be made.
SECTION 2.21. Duty to Mitigate; Assignment of Commitments under Certain
Circumstances. (a) Any of the Administrative Agent, the Fronting Bank, the
Swingline Lender or any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.14 or Section 2.20 or exercising its rights under
Section 2.15 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Borrower or
to change the jurisdiction of its applicable lending office if the making of
such filing or change would avoid the need for or reduce the amount of any such
additional amounts that may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the sole determination of such Lender
(or Transferee), the Administrative Agent, the Fronting Bank or the Swingline
Lender, as the case may be, require it to incur additional costs or be otherwise
disadvantageous to such Lender (or Transferee), the Administrative Agent, the
Fronting Bank or the Swingline Lender.
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(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.14 or 2.15, or the Borrower shall be required
to make additional payments to any Lender under Section 2.20, the Borrower shall
have the right, but not the obligation, at its own expense (including with
respect to the processing and recordation fee referred to in Section 10.04(b)),
upon notice to such Lender, the Administrative Agent and BTCo, to replace such
Lender with an assignee (in accordance with and subject to the restrictions
contained in Section 10.04(b)) approved by the Administrative Agent (which
approval shall not be unreasonably withheld), and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 10.04(b)) all its interests, rights and
obligations under this Agreement to such assignee; provided, however, that no
Lender shall be obligated to make any such assignment unless (i) such assignment
shall not conflict with any law or any rule, regulation or order of any
Governmental Authority, (ii) such assignee shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of the
Loans made by such Lender hereunder and (iii) the Borrower shall pay to the
affected Lender in immediately available funds on the date of such assignment
the interest accrued to the date of payment on the Loans made by such Lender
hereunder and all other amounts accrued for such Lender's account or owed to it
hereunder.
(c) If, in connection with any proposed amendment, modification,
change, waiver, discharge or termination to any of the provisions of this
Agreement as contemplated by clauses (A) through (D), inclusive, of the first
proviso to the first sentence of Section 10.08(b), the consent of the Required
Lenders is obtained but the consent of one or more of such other Lenders whose
consent is required is not obtained, then the Borrower shall have the right, but
not the obligation, at its own expense (including with respect to the processing
and recordation fee referred to in Section 10.04(b)) upon notice to such Lender,
the Administrative Agent and BTCo, so long as all non-consenting Lenders whose
individual consent is required are treated as described below, to replace each
such non-consenting Lender or Lenders (or, at the option of the Borrower if the
respective Lender's consent is required with respect to less than all Loans, to
replace only the respective Loans of the respective non-consenting Lender which
gave rise to the need to obtain such Lender's individual consent) with an
assignee (in accordance with and subject to the restrictions contained in
Section 10.04(b)) approved by the Administrative Agent (which approval shall not
be unreasonably withheld) so long as at the time of such replacement, each such
assignee consents to the proposed amendment, modification, change, waiver,
discharge or termination; provided, however, that no Lender shall be obligated
to make any such assignment unless (i) such assignment shall not conflict with
any law or any rule, regulation or order of any Governmental Authority, (ii)
such assignee shall pay to the non-consenting Lender in immediately available
funds on the date of
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such assignment the principal of the Loans made by such Lender hereunder and
subject to such assignment and (iii) the Borrower shall pay to the
non-consenting Lender in immediately available funds on the date of such
assignment the interest accrued to the date of payment on the Loans made by such
Lender hereunder and subject to such assignment and all other amounts accrued
for such Lender's account or owed to it hereunder with respect to such Loans.
SECTION 2.22. Swingline Loans. (a) On the terms and subject to the
conditions and relying upon the representations and warranties herein set forth,
the Swingline Lender agrees, at any time and from time to time from and
including the Closing Date to but excluding the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments, in
accordance with the terms hereof, to make Swingline Loans to the Borrower in an
aggregate principal amount at any time outstanding not to exceed the lesser of
(i) $25,000,000 and (ii) the difference between (x) the aggregate Revolving
Credit Commitments at such time and (y) the sum of (A) the aggregate principal
amount of Revolving Loans outstanding at such time and (B) the LC Exposure at
such time. Each Swingline Loan shall be in a principal amount that is an
integral multiple of $250,000. The Swingline Lender shall make each Swingline
Loan available to the Borrower by means of a credit to the general deposit
account of the Borrower with the Swingline Lender by 3:00 p.m. on the date such
Swingline Loan is requested to be made pursuant to paragraph (b) below. Within
the limits set forth in the first sentence of this paragraph, the Borrower may
borrow, pay or prepay and reborrow Swingline Loans prior to the Revolving Credit
Maturity Date on the terms and subject to the conditions and limitations set
forth herein.
(b) The Borrower shall give the Administrative Agent telephonic,
written or telecopy notice (in the case of telephonic notice, such notice shall
be promptly confirmed by telecopy) not later than 11:00 a.m., New York City
time, on the day of a proposed borrowing. Such notice shall be delivered on a
Business Day, shall be irrevocable and shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Administrative Agent shall promptly advise the Swingline
Lender of any notice received from the Borrower pursuant to this paragraph (b).
(c) The Swingline Lender may by written or telecopy notice given
to the Administrative Agent not later than 10:00 a.m., New York City time, on
any Business Day require the Lenders to purchase all or any portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans to be purchased and the Administrative Agent shall promptly upon
receipt of such notice give notice to each Lender, specifying in such notice to
each Lender such Lender's pro rata percentage (based on the percentage that such
Lender's Revolving Credit Commitment bears to the aggregate amount of the
Revolving Credit Commitments on the date of such notice) of such Swingline Loan
or Swingline Loans. Each Lender shall pay to the Administrative Agent, not later
than 2:00 p.m., New York City time, on the date of such notice, such Lender's
pro rata percentage (determined as aforesaid) of the principal amount of such
Swingline Loan or Swingline Loans. Each such payment shall for all purposes
hereunder be deemed to be an ABR Revolving Loan (it being understood that (i)
each Lender's obligation to make such payment is absolute and unconditional and
shall not be affected by any event or circumstance whatsoever, including the
occurrence of any Default or Event of Default hereunder or the failure of
any condition
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precedent set forth in Article V to be satisfied, and (ii) each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever). The Administrative Agent shall promptly advise the
Borrower of any notice received from the Swingline Lender pursuant to this
paragraph (c).
(d) The Borrower may prepay any Swingline Loan in whole or in
part at any time without premium or penalty, provided that the Borrower shall
have given the Administrative Agent written or telecopy notice (or telephone
notice promptly confirmed in writing or by telecopy) of such prepayment not
later than 11:00 a.m., New York City time, on the Business Day designated by the
Borrower for such prepayment.
ARTICLE III
Letters of Credit
SECTION 3.01. Issuance of Letters of Credit. (a) The Fronting Bank
agrees, upon the receipt of an appropriately completed and properly authorized
Letter of Credit Application, in a form and containing terms and conditions that
are reasonably acceptable to the Fronting Bank and consistent with the terms
hereof, and on the terms and subject to the conditions hereinafter set forth, to
issue Letters of Credit for the account of the Borrower, at any time and from
time to time on and after the Closing Date until the earlier of (i) the LC
Maturity Date and (ii) the termination of the LC Commitment in accordance with
the terms hereof; provided, however, that any Letter of Credit shall be issued
only if, and each request by the Borrower for the issuance of any Letter of
Credit shall be deemed a representation and warranty of the Borrower that,
immediately following the issuance of any such Letter of Credit, (x) the LC
Exposure at such time shall not exceed the LC Commitment in effect at such time
and (y) the aggregate principal amount of Revolving Loans and Swingline Loans
outstanding at such time plus the LC Exposure at such time shall not exceed the
aggregate Revolving Credit Commitments in effect at such time. The Borrower, the
Fronting Bank and the Lenders acknowledge the issuance of the Letters of Credit
which are outstanding on the Restatement Date in accordance with the terms of
the Existing Credit Agreement and agree that such Letters of Credit shall
continue to be outstanding pursuant to the terms and conditions of this
Agreement and the other Loan Documents.
(b) No Letter of Credit shall be issued with a stated expiration
date later than the earlier of (i) the close of business on the LC Maturity Date
and (ii) the close of business on the date that is (x) 270 days after the date
of issuance of such Letter of Credit, in the case of a Trade Letter of Credit
and (y) 12 months after the date of issuance of such Letter of Credit, in the
case of a Standby Letter of Credit. Each Letter of Credit shall provide for
payments of drawings in dollars.
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(c) Each Trade Letter of Credit shall, among other things,
provide for the payment of sight drafts when presented for honor thereunder, or
of time drafts with a maturity date occurring not later than the earlier of (i)
120 days after the presentation thereof and (ii) the LC Maturity Date, in each
case in accordance with the terms thereof and when accompanied by the required
documents or when such documents are presented to the Fronting Bank.
(d) Each Standby Letter of Credit may, in the absolute discretion
of the Fronting Bank, include a provision whereby such Standby Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the LC Maturity Date) unless the Fronting Bank notifies
the beneficiary thereof at least 60 days prior to the then-applicable expiry
date that such Standby Letter of Credit will not be renewed.
(e) The Borrower may request the extension or renewal of a
Standby Letter of Credit that is not automatically renewed in accordance with
the terms contained therein by giving written notice to the Fronting Bank at
least three Business Days prior to the then-current expiry date of such Standby
Letter of Credit (provided that the Fronting Bank may accommodate requests on
shorter notice in its sole discretion). If no Default or Event of Default has
occurred and is continuing, the Fronting Bank shall promptly issue such
extension or renewal; provided, however, that the Fronting Bank shall have no
obligation to extend or renew any Standby Letter of Credit (i) for a period in
excess of 12 months or (ii) to an expiry date beyond the LC Maturity Date.
(f) Each request for the issuance of a Letter of Credit shall be
made by a written or facsimile authenticated Letter of Credit Application from
the Borrower to the Fronting Bank specifying whether such Letter of Credit is to
be a Trade Letter of Credit or a Standby Letter of Credit (and if such Letter of
Credit is to be a Standby Letter of Credit, the date on which such Standby
Letter of Credit is to be issued), the date on which such Letter of Credit is to
expire, the amount of such Letter of Credit, the name and address of the
beneficiary of such Letter of Credit and such other information as may be
necessary or desirable to complete such Letter of Credit. The Fronting Bank will
provide the Administrative Agent on the first Business Day of each week (or on a
more frequent basis if reasonably requested by the Administrative Agent) a
statement setting forth the aggregate face amount of the Outstanding Standby
Letters of Credit issued by it and the aggregate face amount of the Outstanding
Trade Letters of Credit for each day since the end of the period covered by the
prior such statement, together with such other information regarding the
Outstanding Letters of Credit as may be reasonably requested by the
Administrative Agent.
SECTION 3.02. Participations; Unconditional Obligations. (a) By the
issuance of a Letter of Credit and without any further action on the part of the
Fronting Bank or the Participating Lenders in respect thereof, the Fronting Bank
hereby grants to each Participating Lender, and each Participating Lender hereby
agrees to acquire from the Fronting Bank, a participation in such Letter of
Credit equal to such Participating Lender's Applicable Percentage of the face
amount of such Letter of Credit effective upon the issuance of such Letter of
Credit. In addition, the Fronting Bank hereby grants to each Participating
Lender, and each Participating Lender hereby acquires from the Fronting Bank, a
participation in each Prior Letter of Credit equal to such Participating
Lender's Applicable Percentage of the face amount of such Prior Letter of
Credit, effective on the Closing
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Date. In consideration and in furtherance of the foregoing, each Participating
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, on behalf of the Fronting Bank, in accordance with Section 2.02(e), such
Participating Lender's Applicable Percentage of each LC Disbursement made by the
Fronting Bank; provided, however, that the Participating Lenders shall not be
obligated to make any such payment to the Fronting Bank with respect to any
wrongful payment or disbursement made under any Letter of Credit as a result of
the gross negligence or wilful misconduct of the Fronting Bank.
(b) Each Participating Lender acknowledges and agrees that its
obligation to acquire participations pursuant to paragraph (a) above in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or Event of Default hereunder or the termination of the LC Commitment or
the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
SECTION 3.03. LC Fee. The Borrower agrees to pay to the Administrative
Agent for the account of the Participating Lenders for each calendar quarter (or
shorter period commencing with the date hereof or ending with the first date on
which the LC Commitment shall have expired or been terminated and there shall be
no Outstanding Letters of Credit) a fee (the "LC Fee") on the average daily
amount of the aggregate Outstanding Letters of Credit issued for the account of
the Borrower during such quarter or shorter period at a rate per annum equal to
the higher of (i) the weighted average LIBOR Spread applicable to Eurodollar
Revolving Loans during such period minus 1/2 of 1% and (ii) 1%. The LC Fee shall
be computed on the basis of the actual number of days elapsed over a year of 360
days. The Administrative Agent agrees to disburse to each Participating Lender
its pro rata portion of such LC Fee promptly upon receipt. The LC Fee shall be
paid in arrears on each March 31, June 30, September 30 and December 31 and on
the LC Maturity Date (or the first date on which the LC Commitment shall have
expired or been terminated and there shall be no Outstanding Letters of Credit,
if earlier). Once paid, the LC Fee shall not be refundable in any circumstances
(other than corrections of error in payment).
SECTION 3.04. Agreement to Repay LC Disbursements. (a) If the Fronting
Bank shall pay any draft presented under a Letter of Credit, the Borrower shall
pay to the Fronting Bank an amount equal to the amount of such draft not later
than two hours after the Borrower shall have received notice from the Fronting
Bank that payment of such draft will be made or, if the Borrower shall have
received such notice later than 10:00 a.m., New York City time, on any Business
Day, not later than 10:00 a.m., New York City time, on the immediately following
Business Day.
(b) The Borrower's obligation to repay the Fronting Bank for LC
Disbursements made by the Fronting Bank under the Outstanding Letters of Credit
for the account of the Borrower shall be absolute, unconditional and irrevocable
under any and all circumstances and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit;
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(ii) the existence of any claim, setoff, defense or other right
that the Borrower or any other Person may at any time have against the
beneficiary under any Letter of Credit, the Fronting Bank, the
Administrative Agent, any Lender or any other Person (other than the
defense of payment in accordance with the terms of this Agreement or a
defense based on the gross negligence or wilful misconduct of the
Fronting Bank) in connection with this Agreement or any other agreement
or transaction;
(iii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect, provided that payment by the Fronting Bank under such Letter of
Credit against presentation of such draft or document shall not have
constituted gross negligence or wilful misconduct of the Fronting Bank;
(iv) payment by the Fronting Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, provided that such payment
shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank; and
(v) any other circumstance or event whatsoever, whether or not
similar to any of the foregoing, provided that such circumstance or
event shall not have been the result of gross negligence or wilful
misconduct of the Fronting Bank.
It is understood that in making any payment under a Letter of Credit (i)
the Fronting Bank's exclusive reliance on the documents presented to it under
such Letter of Credit as to any and all matters set forth therein, including
reliance on the amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary equals the amount of such draft
and whether or not any document presented pursuant to such Letter of Credit
proves to be insufficient in any respect, if such document on its face appears
to be in order, and whether or not any other statement or any other document
presented pursuant to such Letter of Credit proves to be forged or invalid or
any statement therein proves to be inaccurate or untrue in any respect
whatsoever, and (ii) any noncompliance in any immaterial respect of the
documents presented under a Letter of Credit with the terms thereof shall, in
each case, not be deemed wilful misconduct or gross negligence of the Fronting
Bank.
SECTION 3.05. Letter of Credit Operations. The Fronting Bank shall,
within a reasonable time after its receipt thereof, examine all documents
purporting to represent a demand for payment under an Outstanding Letter of
Credit to ascertain that the same appear on their face to be in conformity with
the terms and conditions of such Outstanding Letter of Credit. The Fronting Bank
shall as promptly as possible give electronic or facsimile notification or
telephonic notification, promptly confirmed by electronic or facsimile notice,
to the Borrower of such demand for payment and of the determination by the
Fronting Bank as to whether such demand for payment was in conformity with such
terms and conditions, and shall as promptly as possible give prior telephonic
notification to the Borrower of the determination by the Fronting Bank as to
whether such demand for payment was in accordance with the terms and conditions
of such Outstanding Letter of Credit
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and whether the Fronting Bank has made or will make an LC Disbursement
thereunder, provided that the failure to give such notice shall not relieve the
Borrower of its obligation to reimburse the Fronting Bank with respect to any
such LC Disbursement.
SECTION 3.06. Termination of LC Commitment. The Borrower may permanently
terminate, or from time to time in part permanently reduce, the LC Commitment,
in each case upon at least three Business Days' prior written or facsimile
notice to the Administrative Agent and the Fronting Bank, provided that, after
giving effect to such termination or reduction, the LC Commitment shall not be
less than the LC Exposure at such time or greater than the available Revolving
Credit Commitments at such time.
SECTION 3.07. Fronting Bank Fees. (a) The Borrower shall pay to the
Fronting Bank, for its own account, such commissions, issuance fees, transfer
fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrower and the Fronting Bank
shall agree upon.
(b) The Borrower shall pay to the Fronting Bank, for its own
account, a fronting fee on the average daily aggregate maximum amount available
to be drawn (assuming compliance with all conditions to drawing) under all
Outstanding Letters of Credit issued by the Fronting Bank, at a rate per annum
agreed upon by the Borrower and the Fronting Bank, payable in arrears on each
March 31, June 30, September 30 and December 31, and on the LC Maturity Date.
Such fronting and origination fees shall be computed on the basis of the actual
number of days elapsed over a year of 360 days.
SECTION 3.08. Resignation or Removal of the Fronting Bank. (a) The
Fronting Bank may resign at any time by giving 180 days' prior written notice to
the Administrative Agent, the Lenders and the Borrower, and may be removed at
any time by the Borrower by notice to the Fronting Bank, the Administrative
Agent and the Lenders. Upon any such resignation or removal, the Borrower shall
(within 180 days after such notice of resignation or removal) either (i) appoint
a Lender (with the consent of such Lender) as successor or (ii) terminate the
unutilized LC Commitment; provided, however, that if the Borrower elects to
terminate the unutilized LC Commitment, the Borrower may at any time thereafter
that the Revolving Credit Commitments are in effect reinstate the LC Commitment,
by notice to the Administrative Agent and the Lenders, in connection with the
appointment of a Lender as successor Fronting Bank. Subject to paragraph (b)
below, upon the acceptance of any appointment as the Fronting Bank hereunder by
a successor Fronting Bank, such successor shall succeed to and become vested
with all the interests, rights and obligations of the retiring Fronting Bank and
the retiring Fronting Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrower shall pay all accrued and unpaid fees
pursuant to Section 2.05(c). The acceptance of any appointment as the Fronting
Bank hereunder by a successor Lender shall be evidenced by an agreement entered
into by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Fronting Bank under this Agreement and the other Loan Documents and
(ii) references herein and in the other Loan Documents to the
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term "Fronting Bank" shall be deemed to refer to such successor or to any
previous Fronting Bank, or to such successor and all previous Fronting Banks, as
the context shall require.
(b) After the resignation or removal of the Fronting Bank
hereunder, the retiring Fronting Bank shall remain a party hereto and shall
continue to have all the rights and obligations of the Fronting Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
SECTION 3.09. Cash Collateralization. If any Event of Default shall
occur and be continuing, the Borrower shall, on the Business Day it receives
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Participating Lenders holding
participations in Outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all Outstanding Letters of Credit) thereof and
the amount to be deposited, deposit in an account with the Collateral Agent, for
the benefit of the Participating Lenders, an amount in cash equal to the LC
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (a) automatically be
applied by the Administrative Agent to reimburse the Fronting Bank for LC
Disbursements for which it has not been reimbursed, (b) be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time and (c) if the maturity of the Loans has been accelerated
(but subject to the consent of Participating Lenders holding participations in
Outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all Outstanding Letters of Credit), be applied to satisfy the
Obligations. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived.
SECTION 3.10. Additional Fronting Banks. The Borrower may, at any time
and from time to time with the consent of the Senior Managing Agents (which
consent shall not be unreasonably withheld) and such Lender, designate one or
more additional Lenders to act as a fronting bank under the terms of this
Agreement. Any Lender designated as a fronting bank pursuant to this Section
3.10 shall be deemed to be the "Fronting Bank" (in addition to being a Lender)
in respect of Letters of Credit issued or to be issued by such Lender, and, with
respect to such Letters of Credit, such term shall thereafter apply to the
Fronting Bank and such Lender.
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ARTICLE IV
Representations and Warranties
Each of SSCC, JSCE and the Borrower represents and warrants to each of
the Lenders, the Administrative Agent, the Senior Managing Agents, the Managing
Agents, the Fronting Bank and the Swingline Lender that:
SECTION 4.01. Organization; Powers. Each of the Loan Parties (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (c) is qualified to do business in every jurisdiction where such
qualification is required by the nature of its business, the character and
location of its property, business or customers, or the ownership or leasing of
its properties, except for such jurisdictions in which the failure so to
qualify, in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, and (d) has the corporate power and authority to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated thereby to which it is or
will be a party and, in the case of the Borrower, to borrow hereunder.
SECTION 4.02. Authorization. The execution, delivery and performance by
each of the Loan Parties of each of the Loan Documents to which it is a party,
the Borrowings hereunder, the issuance of the Letters of Credit, the use of the
proceeds of the Loans, the Swingline Loans and the Letters of Credit, the
creation of the security interests contemplated by the Security Documents, the
Restatement Date Transactions and the other transactions contemplated by the
Loan Documents and the Transaction Documents (all the foregoing, collectively,
the "Transactions") (a) have been duly authorized by all requisite corporate
and, if required, stockholder action and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, other than any law, statute, rule
or regulation the violation of which could not reasonably be expected to result
in a Material Adverse Effect, or of the certificate of incorporation or other
constitutive documents or by-laws of any Loan Party or any of their respective
Subsidiaries, (B) any order of any Governmental Authority or (C) any provision
of any indenture or other material agreement or other material instrument to
which any Loan Party or any of their respective Subsidiaries is a party or by
which any of them or any of their property is or may be bound, (ii) constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien (other than any Lien created hereunder or under the
Security Documents) upon or with respect to any property or assets now owned or
hereafter acquired by any Loan Party or any of their respective Subsidiaries.
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SECTION 4.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower, SSCC and JSCE and constitutes, and each other Loan
Document when executed and delivered by SSCC, JSCE and the Borrower and each
Loan Party party thereto will constitute, a legal, valid and binding obligation
of SSCC, JSCE, the Borrower and the Loan Parties, as applicable, enforceable
against each of them in accordance with its terms (a) except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (b) subject to general principles of
equity.
SECTION 4.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements and filings with the
United States Patent and Trademark Office and the United States Copyright Office
to perfect the security interests that can be perfected by such filings, (b)
recordation of the Mortgages, (c) such actions, consents, approvals,
registrations and filings set forth on Schedule 4.04 and (d) such actions,
consents, approvals, registrations and filings as have been made or obtained and
are in full force and effect.
SECTION 4.05. Financial Statements. Each of SSCC, JSCE and the Borrower
has delivered to the Lenders (a) the audited financial statements of such Person
for the fiscal year ended December 31, 1997, together with such Person's annual
report on Form 10-K, if any, filed with the Securities and Exchange Commission,
and (b) the unaudited financial statements of such Person for the fiscal
quarters ended March 31, June 30 and September 30, 1998, together with such
Person's quarterly report on Form 10-Q, if any, filed with the Securities and
Exchange Commission. All financial statements set forth or referred to in the
materials specified in the preceding sentence were prepared in conformity with
GAAP. All such financial statements fairly present the consolidated financial
position of such Person and its Subsidiaries as at the date thereof and the
consolidated results of operations and changes in financial position of such
Person and its Subsidiaries for each of the periods covered thereby. Except as
disclosed in such financial statements, none of SSCC, JSCE or the Borrower or
any of their respective Subsidiaries had, at the date of such financial
statements or on the Restatement Date, as the case may be, any material
contingent obligation, material contingent liability or material liability for
taxes, long-term lease or unusual forward or long-term commitment or obligations
to retired employees for medical or other employee benefits that is not
reflected in the foregoing financial statements or the notes thereto.
SECTION 4.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, properties, prospects or
condition (financial or otherwise) of SSCC and its consolidated Subsidiaries,
taken as a whole, since December 31, 1997.
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SECTION 4.07. Title to Properties; Possession Under Leases. (a) Each of
SSCC, JSCE and the Borrower and their respective Subsidiaries has good and
marketable title to, or valid leasehold interests in, all its material
properties and assets, except for minor defects in title that do not interfere
in any material respect with its ability to conduct its business as currently
conducted. All such title to, or leasehold interest in, material properties and
assets are free and clear of Liens, other than Liens expressly permitted by
Section 7.02 (none of which is superior to the Liens created hereunder or under
the Security Documents) and Liens with respect to which the Collateral Agent has
received on or prior to the Closing Date duly executed releases and termination
statements in connection therewith.
(b) Each of SSCC, JSCE and the Borrower and their respective
Subsidiaries has complied with all obligations under all material leases to
which it is a party and enjoys peaceful and undisturbed possession under all
such material leases necessary in any material respect for the operation of
their respective properties and assets.
SECTION 4.08. Subsidiaries. Schedule 4.08 sets forth as of the
Restatement Date a list of all the Subsidiaries of SSCC, JSCE and the Borrower,
their jurisdiction of organization and the percentage ownership interest of each
of them and any other Subsidiary therein. The capital stock of each of the
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable
and, except as set forth on Schedule 4.08, is owned free and clear of all Liens
other than nonconsensual Permitted Liens arising other than as a result of a
voluntary act of SSCC, JSCE or the Borrower. No authorized but unissued treasury
shares of capital stock of the Borrower or any such Subsidiary are subject to
any option, warrant, right to call or commitment of any kind or character except
as set forth on Schedule 4.08.
SECTION 4.09. Litigation; Compliance with Laws. (a) Except as set forth
in Schedule 4.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of SSCC, JSCE or the Borrower, threatened against or affecting SSCC,
JSCE or the Borrower or any of their respective Subsidiaries or any business or
property of any such Person that (i) involve any Loan Document or the
Transactions or (ii) could reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect.
(b) Neither SSCC, JSCE, the Borrower and their respective
Subsidiaries nor any of their respective properties or assets is (i) in
violation of, nor will the continued operation of their properties and assets as
currently conducted violate, any law, rule, regulation, statute (including any
zoning, building, environmental and safety law, ordinance, code or approval or
any building permits) or any restrictions of record or agreements affecting the
Mortgaged Properties, where such violations could reasonably be expected to have
a material adverse effect on the value, use or operation of any such Mortgaged
Property or (ii) in default with respect to any judgment, writ, injunction,
decree or order of any Governmental Authority, where such defaults, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. The issuance of the Letters of Credit will not violate any
applicable law or regulation or violate or be prohibited by any judgment, writ,
injunction, decree or order of any Governmental Authority.
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SECTION 4.10. Agreements. None of SSCC, JSCE or the Borrower or any of
their respective Subsidiaries is in default under any provision of any indenture
or other agreement or instrument evidencing Indebtedness, or any other agreement
or instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.11. Federal Reserve Regulations. (a) None of SSCC, JSCE or the
Borrower or any of their respective Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Letter of Credit or any Loan
or Swingline Loan will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock
or to extend credit to others for the purpose of purchasing or carrying Margin
Stock or to refund indebtedness originally incurred for such purpose or (ii) for
any purpose that entails a violation of, or is inconsistent with, the provisions
of the Regulations of the Board, including Regulation T, U or X.
SECTION 4.12. Investment Company Act; Public Utility Holding Company
Act. None of SSCC, JSCE or the Borrower or any of their respective Subsidiaries
(a) is an "investment company" as defined in, or is subject to regulation under,
the Investment Company Act of 1940 or (b) is a "holding company" as defined in,
or is subject to regulation under, the Public Utility Holding Company Act of
1935.
SECTION 4.13. Use of Proceeds. The Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for the purposes
specified in the preamble to this Agreement.
SECTION 4.14. Tax Returns. Each of SSCC, JSCE and the Borrower and their
respective Subsidiaries has filed or caused to be filed all Federal, state and
local income and other material tax returns required to have been filed by it or
with respect to it and has paid or caused to be paid all taxes shown to be due
and payable on such returns or on any assessments received by it or with respect
to it, except taxes that are being contested in good faith by appropriate
proceedings and for which it has set aside on its books adequate reserves in
accordance with GAAP.
SECTION 4.15. No Material Misstatements. The information provided by or
on behalf of the Loan Parties and contained in the Confidential Information
Memorandum (including all attachments and exhibits thereto), as supplemented,
and as supplemented further by information heretofore provided in writing by or
on behalf of the Loan Parties to the Lenders and any other materials, documents
and information that the Loan Parties or any of their respective Affiliates may
have furnished to the Lenders, was as of the date of such Confidential
Information Memorandum, the dates otherwise specified therein or the dates upon
which such information was provided, accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, taken as a whole, not misleading,
provided that to the extent any such information
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therein was based upon or constitutes a forecast or projection,
SSCC, JSCE and the Borrower represent only that they acted in good faith and
utilized reasonable assumptions, due and careful consideration and the
information actually known to Responsible Officers at the time in the
preparation of such information.
SECTION 4.16. Employee Benefit Plans. Each of SSCC, JSCE and the
Borrower and their respective ERISA Affiliates is in compliance in all material
respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No Reportable Event has
occurred in respect of any Plan of SSCC, JSCE or the Borrower or any ERISA
Affiliate. The present value of all benefit liabilities under each Plan (based
on those assumptions used to fund such Plan) did not, as of the last annual
valuation date applicable thereto, exceed by more than $25,000,000 the value of
the assets of such Plan, and the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) did
not, as of the last annual valuation dates applicable thereto, exceed by more
than $25,000,000 the value of the assets of all such underfunded Plans. None of
SSCC, JSCE or the Borrower or any ERISA Affiliate has incurred any Withdrawal
Liability that could result in a Material Adverse Effect. None of SSCC, JSCE or
the Borrower or any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization or has been terminated within the
meaning of Title IV of ERISA and no Multiemployer Plan is reasonably expected to
be in reorganization or to be terminated where such reorganization or
termination has resulted or could reasonably be expected to result, through
increases in the contributions required to be made to such Plan or otherwise, in
a Material Adverse Effect.
SECTION 4.17. Environmental and Safety Matters. Except as set forth on
Schedule 4.17:
(a) Each of SSCC, JSCE and the Borrower and each of their
respective Subsidiaries has obtained all permits, licenses and other
authorizations that are required and material with respect to the
operation of the business of SSCC and its Subsidiaries, taken as a
whole, under any Environmental Law, and each such permit, license and
authorization is in full force and effect.
(b) Each of SSCC, JSCE and the Borrower and each of their
respective Subsidiaries is in compliance with all material terms and
conditions of the permits, licenses and authorizations specified in
Section 4.17(a), and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any Environmental Law
applicable to it and its business, assets, operations and properties,
including those arising under the Resource Conservation and Recovery Act
of 1976, as amended, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("CERCLA"), the Federal Water
Pollution Control Act, the Federal Clean Air Act, and the Toxic
Substances Control Act and any analogous or comparable state laws,
except for such instances of noncompliance that could not reasonably be
expected to result in a Material Adverse Effect.
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(c) There is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the
knowledge of SSCC, JSCE or the Borrower or any of their respective
Subsidiaries, after inquiry, threatened against SSCC, JSCE or the
Borrower or any of their respective Subsidiaries under any Environmental
Law that could reasonably be expected to result in a Material Adverse
Effect.
(d) None of SSCC, JSCE, the Borrower or any of their respective
Subsidiaries has received notice that it has been identified as a
potentially responsible party under CERCLA or any comparable state law,
nor has SSCC, JSCE, the Borrower or any of their respective Subsidiaries
received any notification that any hazardous substances or any pollutant
or contaminant, as defined in CERCLA and its implementing regulations,
or any toxic substance, hazardous waste, hazardous constituents,
hazardous materials, asbestos or asbestos containing material,
polychlorinated biphenyls, petroleum, including crude oil and any
fractions thereof, or other wastes, chemicals, substances or materials
regulated by any Environmental Laws (collectively, "Hazardous
Materials") that it or any of their respective predecessors in interest
has used, generated, stored, tested, handled, transported or disposed
of, has been found at any site at which any Governmental Authority or
private party is conducting a remedial investigation or other action
pursuant to any Environmental Law, except in each case for any such
notices received after the date hereof that, individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(e) There have been no releases or threatened releases (in each
case as defined in CERCLA) of Hazardous Materials by SSCC, JSCE, the
Borrower or any of their respective Subsidiaries on, upon, into or from
any of the Real Properties, which releases or threatened releases could
reasonably be expected to result in a Material Adverse Effect. To the
best knowledge of SSCC, JSCE, the Borrower and each of their respective
Subsidiaries, there have been no such releases or threatened releases
on, upon, under or into any real property in the vicinity of any of the
Real Properties that, through soil, surface water or groundwater
migration or contamination, may be located on, in or under such Real
Properties and which could reasonably be expected to result in a
Material Adverse Effect.
(f) To the best knowledge of SSCC, JSCE, the Borrower or any of
their respective Subsidiaries, there is no asbestos in, on, or at any
Real Properties or any facility or equipment of SSCC, JSCE, the
Borrower, or any of their respective Subsidiaries, except to the extent
that the presence of such material could not reasonably be expected to
result in a Material Adverse Effect.
(g) To the best knowledge of SSCC, JSCE, the Borrower and each of
their respective Subsidiaries after due inquiry, none of the Real
Properties of SSCC, JSCE, the Borrower or any of their respective
Subsidiaries is (i) listed or proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by
any Governmental Authority.
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(h) There are no past or current events, conditions,
circumstances, activities, practices, incidents, actions or plans that
could reasonably be anticipated to interfere with or prevent compliance
with any Environmental Law, or which may give rise to liability under
any Environmental Law, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing or notice of violation, study or
investigation, based on or related to the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport,
shipping or handling, or the emission, discharge, release or threatened
release into the environment, of any Hazardous Material that could
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.18. Solvency. After giving effect to the Transactions to occur
on the Restatement Date, (a) the fair salable value of the assets of SSCC, JSCE
and the Borrower and their respective Subsidiaries, on a consolidated basis,
will exceed the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of SSCC,
JSCE and the Borrower and their respective Subsidiaries, on a consolidated
basis, as they mature, (b) the assets of SSCC, JSCE and the Borrower and their
respective Subsidiaries, on a consolidated basis, will not constitute
unreasonably small capital to carry out their businesses as conducted or as
proposed to be conducted, including the capital needs of SSCC, JSCE and the
Borrower and their respective Subsidiaries, on a consolidated basis (taking into
account the particular capital requirements of the businesses conducted by such
entities and the projected capital requirements and capital availability of such
businesses) and (c) none of SSCC, JSCE or the Borrower intend to, nor do they
intend to permit any of their respective Subsidiaries to, and do not believe
that any of them or any such Subsidiary will, incur debts beyond its ability to
pay such debts as they mature (taking into account the timing and amounts of
cash to be received by each of them or any such Subsidiary and the amounts to be
payable on or in respect of its obligations).
SECTION 4.19. Security Documents. (a) The Pledge Agreement creates in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as defined in
the Pledge Agreement) and proceeds thereof and constitutes a fully perfected
first priority Lien on, and security interest in, all right, title and interest
of the Loan Parties party thereto, as applicable, in such Collateral and the
proceeds thereof, in each case prior and superior in right to any other Person.
(b) The Security Agreement creates in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral (as defined in the Security
Agreement) and proceeds thereof, and assuming that financing statements in
appropriate form have been filed in the offices specified on Schedule 4.19(b),
the Lien created under the Security Agreement constitutes a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral and the proceeds thereof (except insofar as the perfection of
a Lien on, and security interest in, such Collateral is obtained as described in
paragraph (d) below), in each case prior and superior in right to any other
Person.
(c) The Mortgages create in favor of the Collateral Agent, for
the ratable benefit of the Secured Parties, a legal, valid and enforceable Lien
on all of the Borrower's right, title and
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interest in and to the Mortgaged Properties thereunder and the proceeds thereof,
and when the Mortgages are filed in the offices specified on Schedule 4.19(c),
the Mortgages will constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Borrower in such Mortgaged Properties
and the proceeds thereof, in each case prior and superior in right to any other
Person.
(d) The Trademark Security Agreement creates in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Trademark
Security Agreement) and the proceeds thereof, and assuming the recordation of
such Trademark Security Agreement with the United States Patent and Trademark
Office and the United States Copyright Office, together with financing
statements in appropriate form filed in the offices specified on Schedule
4.19(d), the Liens created under the Trademark Security Agreement constitute a
fully perfected Lien on, and security interest in, all right title and interest
of the Loan Parties in the Collateral and the proceeds thereof in which a
security interest may be perfected by filing in the United States and its
territories and possessions, in each case prior and superior in right to any
other Person (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a Lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the date hereof).
(e) The SNC Security Agreement creates in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral (as defined in the SNC Security
Agreement) and proceeds thereof, and assuming that financing statements in
appropriate form have been filed in the offices specified on Schedule 4.19(e),
the Lien created under the SNC Security Agreement constitutes a fully perfected
Lien on, and security interest in, all right, title and interest of SNC in such
Collateral, in each case prior and superior in right to any other Person.
SECTION 4.20. Labor Matters. As of the Restatement Date, there are no
strikes, lockouts or slowdowns against SSCC, JSCE or the Borrower or any of
their respective Subsidiaries pending or, to the knowledge of SSCC, JSCE or the
Borrower, threatened, except as set forth on Schedule 4.20. The hours worked by
and payment made to employees of SSCC, JSCE or the Borrower have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters, where such violations
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect. The consummation of the Transactions will not give rise
to a right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which SSCC, JSCE or the Borrower or
any of their respective Subsidiaries is a party or by which SSCC, JSCE or the
Borrower or any of their respective Subsidiaries is bound on the Restatement
Date.
SECTION 4.21. Location of Real Property. (a) Schedule 4.21(a) sets forth
completely and correctly as of the Restatement Date all material real property
owned by SSCC, JSCE or the Borrower or any of their respective Subsidiaries, the
addresses thereof and the county or counties in
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which such properties are situated. All the real property set forth on Schedule
4.21(a) is owned in fee by SSCC, JSCE or the Borrower or their respective
Subsidiaries.
(b) Schedule 4.21(b) sets forth completely and correctly as of
the Restatement Date all material real property leased by SSCC, JSCE or the
Borrower or any of their respective Subsidiaries, the addresses thereof and the
county or counties in which such properties are situated. SSCC, JSCE or the
Borrower or one of their respective Subsidiaries has a valid lease in all the
Real Property set forth on Schedule 4.21(b).
(c) Schedule 4.21(c) sets forth completely and correctly as of
the Restatement Date all material Timberland Property, if any, owned by SSCC,
JSCE or the Borrower or any of their respective Subsidiaries, the county or
counties in which such Timberland Property is situated and the approximate
acreage of such Timberland Property in such county or counties. All the
Timberland Property set forth on Schedule 4.21(c) is owned in fee by SSCC, JSCE
or the Borrower or their respective Subsidiaries.
SECTION 4.22. Patents, Trademarks, etc. Each of SSCC, JSCE and the
Borrower and each of their respective Subsidiaries owns, or is licensed to use,
all patents, trademarks, trade names, copyrights, technology, know-how and
processes, service marks and rights with respect to the foregoing that are (a)
used in or necessary for the conduct of their respective businesses as currently
conducted and (b) material to the business, assets, operations, properties,
prospects or condition (financial or otherwise) of such Person and its
Subsidiaries taken as a whole. The use of such patents, trademarks, trade names,
copyrights, technology, know-how, processes and rights with respect to the
foregoing by such Person and its Subsidiaries does not infringe on the rights of
any Person, subject to such claims and infringements as do not, in the
aggregate, give rise to any liability on the part of any such Person and its
respective Subsidiaries that is material to such Person and its Subsidiaries,
taken as a whole. To the best knowledge of each of SSCC, JSCE and the Borrower,
its rights and the rights of its Subsidiaries to sell, franchise or license
under such brand names then being used may be transferred in connection with any
sale of assets or stock of the related business by such Person or any of its
Subsidiaries with only such exceptions as would not be material to the Borrower
and its Subsidiaries, in each case, taken as a whole.
SECTION 4.23. Y2K. Each of SSCC, JSCE and the Borrower has reviewed its
operations and those of its Subsidiaries with a view to assessing whether its
businesses, or the businesses of any of its Subsidiaries, will be vulnerable to
a Y2K Problem or will be vulnerable in any material respect to the effects of a
Y2K Problem suffered by any of SSCC's, JSCE's, the Borrower's or any of their
Subsidiaries' major customers or suppliers. Each of SSCC, JSCE and the Borrower
represents and warrants that it has a reasonable basis to believe that no Y2K
Problem with respect to SSCC or any of SSCC's Subsidiaries will cause a Material
Adverse Effect.
SECTION 4.24. Survival of Warranties. All representations and warranties
contained in the Existing Credit Agreement, this Agreement and the other Loan
Documents shall survive the execution and delivery of this Agreement and such
other Loan Documents as the case may be, and the termination hereof and thereof.
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ARTICLE V
Conditions
SECTION 5.01. All Credit Events. The obligation of each Lender to make
Loans hereunder, the obligation of the Swingline Lender to make Swingline Loans
hereunder and the obligation of the Fronting Bank to issue, amend, extend or
renew any Letter of Credit hereunder (each, a "Credit Event") is subject to the
satisfaction of the following conditions on the date of each Credit Event (other
than any Revolving Loan made pursuant to Section 2.02(e)):
(a) The Administrative Agent and, where applicable, the Fronting
Bank or the Swingline Lender shall have received a notice of such Credit
Event as required by Section 2.03, Section 3.01(f) and Section 2.22(b),
respectively.
(b) The representations and warranties set forth in Article IV
hereof and in the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Credit Event with the
same effect as though made on and as of such date, except to the extent
that such representations and warranties expressly relate to an earlier
date.
(c) At the time of and immediately after such Credit Event, no
Default or Event of Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
SSCC, JSCE and the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 5.01.
SECTION 5.02. Original Closing Date. The obligation of each Lender to
make Loans hereunder, the obligation of the Swingline Lender to make Swingline
Loans hereunder and the obligation of the Fronting Bank to issue, amend, extend
or renew any Letter of Credit hereunder on the Closing Date were subject to the
satisfaction of the following conditions:
(a) The Lenders shall have received a favorable written opinion
of each of (i) Michael Tierney, Vice President, Secretary and General
Counsel of SSCC, JSCE, SNC and the Borrower, (ii) Skadden, Arps, Slate,
Meagher & Flom LLP, counsel for SSCC, JSCE, SNC and the Borrower on the
Closing Date, and (iii) each local counsel listed on Schedule 5.02(a),
in each case (A) dated the Closing Date, (B) addressed to the Senior
Managing Agents, the Administrative Agent, the Managing Agents, the
Fronting Bank, the Lenders, the Swingline Lender and the Collateral
Agent and (C) covering such other matters relating to the Loan Documents
and the Transactions as the Senior Managing Agents shall reasonably
request. SSCC, JSCE and the Borrower hereby instruct such counsel to
deliver such opinions.
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(b) All legal matters incident to this Agreement and the
Borrowings hereunder shall be satisfactory to the Lenders and to
Cravath, Swaine & Moore, counsel for the Administrative Agent and the
Senior Managing Agents on the Closing Date.
(c) The Lenders shall have received (i) a copy of the certificate
of incorporation, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State of the state of
its organization, and a certificate as to the good standing of each Loan
Party as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party
dated the Closing Date and certifying (A) that attached thereto is a
true and complete copy of the by-laws of such Loan Party, as in effect
on the Closing Date and at all times since a date prior to the date of
the resolutions described in clause (B) below, (B) that attached thereto
is a true and complete copy of resolutions duly adopted by such Loan
Party, authorizing the execution, delivery and performance of the Loan
Documents to which such Loan Party is or will be a party and, in the
case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect as of the Closing Date, (C) that the certificate of
incorporation of such Loan Party has not been amended since the date of
the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above and (D) as to the incumbency and
specimen signature of each officer executing any Loan Document or any
other document delivered in connection herewith on behalf of such Loan
Party; (iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such other documents
as the Lenders or Cravath, Swaine & Moore, counsel for the
Administrative Agent and the Senior Managing Agents on the Closing Date,
may reasonably request.
(d) The Lenders shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of each of the Loan
Parties, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 5.01.
(e) The Senior Managing Agents and the Administrative Agent shall
have received all Fees and other amounts due and payable on or prior to
the Closing Date.
(f) The Guarantee Agreement shall have been duly executed by the
Guarantors and delivered to the Collateral Agent, and shall be in full
force and effect.
(g) The Pledge Agreement shall have been duly executed by the
Loan Parties and the Collateral Agent and shall be in full force and
effect, all the outstanding capital stock of JSCE, the Borrower and each
other Material Subsidiary of SSCC shall have been duly and validly
pledged thereunder to the Collateral Agent for the ratable benefit of
the Secured Parties and certificates representing such shares,
accompanied by stock powers endorsed in blank, shall be in the actual
possession of the Collateral Agent; provided, however, that SSCC need
only pledge 65% of the capital stock of SSCC International and the
Borrower need only pledge 65% of the capital stock of CCA de Baja
California SA de CV.
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(h) Each of the Security Agreement, the SNC Security Agreement
and the Trademark Security Agreement shall have been duly executed by
the Loan Parties thereto and the Collateral Agent and shall be in full
force and effect, and each document (including each Uniform Commercial
Code financing statement) required by law or reasonably requested by the
Collateral Agent to be filed, registered or recorded in order to create
in favor of the Collateral Agent for the benefit of the Secured Parties
a valid and perfected first- priority security interest in or lien on
the Collateral described in each of such agreements shall have been
delivered to the Collateral Agent.
(i) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code filings (or equivalent filings)
made with respect to the Loan Parties in the states (or other
jurisdictions) in which the chief executive offices of such Persons are
located and in the other jurisdictions in which Uniform Commercial Code
filings (or equivalent filings) are to be made pursuant to Section
5.01(h), together with copies of the financing statements (or similar
documents) disclosed by such search, and accompanied by evidence
satisfactory to the Senior Managing Agents that the Liens indicated in
any such financing statement (or similar document) would be permitted
under Section 7.02 or have been released.
(j) The Collateral Agent shall have received a Perfection
Certificate with respect to each Loan Party dated the Closing Date and
duly executed by a Financial Officer and the chief legal officer of
SSCC, JSCE, SNC and the Borrower.
(k) (i) Each of the Mortgages and the other Security Documents,
in form and substance satisfactory to the Lenders, relating to each of
the Mortgaged Properties shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force
and effect, (ii) none of such Mortgaged Properties shall be subject to
any Lien other than those permitted under Section 7.02, (iii) each of
such Security Documents shall have been filed and recorded in the
recording office as specified on Schedule 4.19(b) (or a lender's title
insurance policy, in form and substance acceptable to the Senior
Managing Agents, insuring such Security Document as a first lien on such
Mortgaged Property, shall have been received by the Lenders) and, in
connection therewith, the Senior Managing Agents shall have received
evidence satisfactory to them of each such filing and recordation and
(iv) the Collateral Agent shall have received such other documents,
including policies of title insurance issued by nationally recognized
title insurance companies, together with such endorsements, coinsurance
and reinsurance as may be requested by the Senior Managing Agents and
the other Lenders, insuring the Mortgages as valid first liens on the
Mortgaged Properties, free of Liens other than those permitted under
Section 7.02, together with such surveys, abstracts, appraisals and
legal opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Senior Managing Agents or
the other Lenders.
(l) The Collateral Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies of the Loan
Parties and their respective Subsidiaries
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satisfying the requirements of Section 6.02 and the applicable
provisions of the Security Documents, each of which shall be endorsed or
otherwise amended to include a lender's loss payable endorsement (except
in the case of liability policies) and to name the Collateral Agent as
an additional insured, in form and substance reasonably satisfactory to
the Collateral Agent.
(m) The Borrower shall have repaid in full the principal of all
loans outstanding, and other amounts due under, the Prior Credit
Agreement and under each agreement related thereto (other than the Prior
Letters of Credit), all commitments to lend thereunder shall have been
permanently terminated, all security interests related thereto shall
have been discharged and the Senior Managing Agents shall have received
duly executed documentation either evidencing or necessary for such
repayment, termination and discharge, in form satisfactory to the Senior
Managing Agents.
(n) After giving effect to the Transactions on the Closing Date,
no Loan Party shall have any Indebtedness other than (i) Indebtedness
under the Loan Documents, (ii) the 1993 Senior Notes, (iii) the Senior
Notes and (iv) other Indebtedness permitted under Section 7.01.
(o) The Lenders shall be satisfied as to the amount and nature of
any environmental and employee health and safety exposures to which any
Loan Party or any Subsidiary of a Loan Party may be subject and the
plans of any such Person with respect thereto.
(p) All requisite Governmental Authorities and third parties (in
each case to the extent required) shall have approved or consented to
the Transactions contemplated hereby to the extent required, and there
shall be no governmental or judicial action, actual or threatened, that
has or would have a reasonable likelihood of restraining, preventing or
imposing burdensome conditions on the Transactions.
(q) There shall be no litigation or administrative proceedings or
other legal or regulatory developments, actual or threatened, that, in
the judgment of the Lenders, would reasonably to be expected to have a
material adverse effect on the business, assets, liabilities,
operations, properties, prospects or condition (financial or otherwise)
of or relating to (i) the Loan Parties and their respective
Subsidiaries, taken as a whole, (ii) the ability of the Loan Parties or
any of their respective Subsidiaries to perform their obligations under
the Loan Documents, (iii) the ability of the parties to consummate the
Transactions or (iv) the validity or enforceability of any of the Loan
Documents or the rights, remedies and benefits available to the Senior
Managing Agents, the Administrative Agent, the Managing Agents, the
Fronting Bank, the Swingline Lender, the Collateral Agent and the
Lenders under the Loan Documents, or which would be materially
inconsistent with the assumptions underlying the projections contained
in the Confidential Information Memorandum of the Borrower dated March
1998.
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(r) The consummation of the Transactions will not (i) violate any
applicable law, statute, rule or regulation or (ii) conflict with, or
result in a default or event of default under, (A) any indenture
relating to any existing Indebtedness of the Borrower or any of its
Subsidiaries that is not being repaid, repurchased or redeemed in full
on or prior to the Closing Date or (B) any other agreement of the
Borrower or any of its Subsidiaries and the Lenders shall have received
one or more legal opinions to such effect, on terms satisfactory to the
Lenders, from counsel to the Borrower.
(s) There shall not have occurred or become known to SSCC, JSCE
or the Borrower any material adverse condition affecting, or material
adverse change with respect to, the condition (financial or otherwise),
operations, business, assets, liabilities (including contingent
liabilities) or prospects of the Borrower and its subsidiaries, taken as
a whole, since December 31, 1997.
SECTION 5.03. Restatement Date. The amendments to the Existing Credit
Agreement embodied in this Agreement shall not be effective (in which case the
Existing Credit Agreement shall remain in full force and effect) and the
Additional B Tranche Term Loans shall not be required to be funded unless and
until the Borrower shall have furnished to the Senior Managing Agents the
following and unless and until the following conditions precedent have been
satisfied:
(a) The Lenders shall have received a favorable written opinion
of each of (i) the Vice President, Secretary and General Counsel of
SSCC, JSCE, SNC and the Borrower, substantially in the form of Exhibit
I-1, (ii) Davis Polk & Wardwell, counsel for SSCC, JSCE, SNC and the
Borrower, substantially in the form of Exhibit I-2, and (iii) each local
counsel listed on Schedule 5.03(a), substantially in the form of Exhibit
I-3, in each case (A) dated the Restatement Date, (B) addressed to the
Senior Managing Agents, the Administrative Agent, the Managing Agents,
the Fronting Bank, the Lenders, the Swingline Lender and the Collateral
Agent and (C) covering such other matters relating to the Loan Documents
and the Transactions as the Senior Managing Agents shall reasonably
request. SSCC, JSCE and the Borrower hereby instruct such counsel to
deliver such opinions.
(b) All legal matters incident to this Agreement and the
Borrowings hereunder shall be satisfactory to the Lenders and to Winston
& Strawn, counsel for the Administrative Agent and the Senior Managing
Agents.
(c) The Lenders shall have received (i) a copy of the certificate
of incorporation, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State of the state of
its organization, and a certificate as to the good standing of each Loan
Party as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party
dated the Restatement Date and certifying (A) that attached thereto is a
true and complete copy of the by-laws of such Loan Party, as in effect
on the Restatement Date and at all times since a date prior to the date
of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by such
Loan Party, authorizing the execution, delivery and
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performance of the Loan Documents and Transaction Documents to which
such Loan Party is or will be a party and, in the case of the Borrower,
the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect as of
the Restatement Date, (C) that the certificate of incorporation of such
Loan Party has not been amended (other than the amendment to SSCC's
certificate of incorporation pursuant to the terms of the Merger
Agreement) since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above and
(D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above; and (iv) such other documents as the Lenders or
Winston & Strawn, counsel for the Administrative Agent and the Senior
Managing Agents, may reasonably request.
(d) The Lenders shall have received a certificate, dated the
Restatement Date and signed by a Financial Officer of each of the Loan
Parties, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 5.01.
(e) The Senior Managing Agents and the Administrative Agent shall
have received all Fees and other amounts due and payable on or prior to
the Restatement Date.
(f) The Reaffirmation of Guarantee shall have been duly executed
by the Guarantors and delivered to the Collateral Agent, and shall be in
full force and effect.
(g) All of the other Loan Documents shall be in full force and
effect.
(h) (i) Each of the modifications to the Mortgages and the other
Security Documents, in form and substance satisfactory to the Collateral
Agent, relating to the Mortgaged Properties shall have been duly
executed by the parties thereto and delivered to the Collateral Agent,
together with assurances satisfactory to the Collateral Agent for the
recordations of the modifications to the Mortgages in the real estate
records of all appropriate jurisdictions, (ii) such documentary,
intangible or similar taxes with respect to the Collateral and the
Mortgaged Properties as may be necessary to maintain the Collateral
Agent's perfected security interest (including existing priority) in the
Collateral and Mortgaged Properties with respect to the Obligations
under this Agreement (including, without limitation, the Additional B
Tranche Term Loans funded on the Restatement Date) and as may be
necessary to secure the Additional B Tranche Term Loans, and as the
Senior Managing Agents may otherwise reasonably request.
(i) After giving effect to the Transactions on the Restatement
Date, (i) no Loan Party or any Subsidiary of any Loan Party shall have
any Indebtedness other than (A) Indebtedness under the Loan Documents,
(B) the 1993 Senior Notes, (C) the Senior Notes and (D) other
Indebtedness permitted under Section 7.01 and (ii) Stone and its
subsidiaries shall not have any Indebtedness other than (A) Indebtedness
under the Stone Credit
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Agreement and Loan Documents (as defined in the Stone Credit Agreement)
and (B) Indebtedness permitted under the Stone Credit Agreement.
(j) The Required Lenders shall be satisfied as to the amount and
nature of any environmental and employee health and safety exposures to
which any Loan Party or any Subsidiary of a Loan Party may be subject
and the plans of any such Person with respect thereto.
(k) All requisite Governmental Authorities and third parties (in
each case to the extent required) shall have approved or consented to
the Transactions contemplated hereby to the extent required and are in
full force and effect, including, without limitation, all filings
required to be made and any approval required to be received (including
any action required to be taken as a condition thereto) pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, and there shall be
no governmental or judicial action, actual or threatened, that has or
would have a reasonable likelihood of restraining, preventing or
imposing burdensome conditions on the Transactions.
(l) There shall be no litigation or administrative proceedings or
other legal or regulatory developments, actual or threatened, that, in
the judgment of the Lenders, could reasonably to be expected to have a
material adverse effect on the business, assets, liabilities,
operations, properties, prospects or condition (financial or otherwise)
of or relating to (i) the Loan Parties and their respective
Subsidiaries, taken as a whole, (ii) the ability of the Loan Parties or
any of their respective Subsidiaries to perform their obligations under
the Loan Documents, (iii) the ability of the parties to consummate the
Transactions or (iv) the validity or enforceability of any of the Loan
Documents or the rights, remedies and benefits available to the Senior
Managing Agents, the Administrative Agent, the Managing Agents, the
Fronting Bank, the Swingline Lender, the Collateral Agent and the
Lenders under the Loan Documents, or which would be materially
inconsistent with the assumptions underlying the projections contained
in the Confidential Information Memorandum of SSCC dated October 1998,
and no injunction or other restraining order shall have been issued or a
hearing therefor be pending or noticed with respect to SSCC, Stone or
any of their respective subsidiaries concerning the Merger, the
Transactions, the Loan Documents or the transactions contemplated hereby
or thereby.
(m) The consummation of the Transactions will not (i) violate any
applicable law, statute, rule or regulation or (ii) conflict with, or
result in a default or event of default under, (A) any indenture
relating to any Indebtedness of SSCC or any of its Subsidiaries or (B)
any other agreement of SSCC or any of its Subsidiaries and the Lenders
shall have received one or more legal opinions to such effect, on terms
satisfactory to the Lenders, from counsel to SSCC, JSCE and the
Borrower.
(n) There shall not have occurred or become known to SSCC, JSCE
or the Borrower any material adverse condition affecting, or material
adverse change with respect to, (i) the results of operations, condition
(financial or otherwise), or prospects of SSCC and
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its Subsidiaries, taken as a whole, since December 31, 1997 or (ii) the
results of operations or condition (financial or otherwise) of Stone and
its Subsidiaries, taken as a whole, since June 30, 1998 (except for the
matters disclosed in Stone's Current Report on Form 8-K filed with the
Securities and Exchange Commission on October 28, 1998).
(o) On or prior to the Restatement Date, there shall have been
delivered to the Senior Managing Agents true, correct and complete
copies of the Merger Documents, and all terms of the Merger Documents
shall be reasonably satisfactory in form and substance to the Senior
Managing Agents. The Merger Documents and the transactions contemplated
thereby shall have been duly approved by the board of directors and the
stockholders of SSCC, JSC Acquisition and Stone, all of the Merger
Documents shall have been duly executed and delivered by the parties
thereto and shall be in full force and effect. All representations and
warranties contained in the Merger Documents are true and correct in all
material respects both prior to and after giving effect to the
effectiveness of this Agreement and the consummation of the Merger, each
of the conditions precedent to the obligations of SSCC, JSC Acquisition
and Stone to consummate the Merger as set forth in the Merger Documents
shall have been satisfied, and prior to or substantially simultaneously
with the effectiveness of this Agreement, the Merger shall have been
consummated in accordance with the Merger Documents and all applicable
laws, rules and regulations.
(p) The Senior Managing Agents shall have received true, correct
and complete copies of the Fernandina Acquisition Documents which shall
be in form and substance reasonably satisfactory to the Senior Managing
Agents. The Fernandina Acquisition Documents and the transactions
contemplated thereby shall have been duly approved by the board of
directors of the Borrower and SPC, all Fernandina Acquisition Documents
shall have been duly executed and delivered by the parties thereto and
shall be in full force and effect. All representations and warranties
contained in the Fernandina Acquisition Documents are true and correct
in all material respects both prior to and after giving effect to the
effectiveness of this Agreement and the consummation of the Fernandina
Acquisition, each of the conditions precedent to the obligations of the
Borrower and SPC to consummate the Fernandina Acquisition as set forth
in the Fernandina Acquisition Documents shall have been satisfied, and
prior to or substantially simultaneously with the effectiveness of this
Agreement, the Fernandina Acquisition shall have been consummated in
accordance with the Fernandina Acquisition Documents and all applicable
laws, rules and regulations.
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(q) The Senior Managing Agents shall have received true, correct
and complete copies of the MSLEF Purchase Documents which shall be in
form and substance reasonably satisfactory to the Senior Managing
Agents. The MSLEF Purchase Documents and the transactions contemplated
thereby shall have been duly approved by the board of directors of SIBV
and JSG, all MSLEF Purchase Documents shall have been duly executed and
delivered by the parties thereto and shall be in full force and effect.
All representations and warranties contained in the MSLEF Purchase
Documents are true and correct in all material respects both prior to
and after giving effect to the effectiveness of this Agreement and the
consummation of the MSLEF Purchase, each of the conditions precedent to
the obligations of SIBV and JSG to consummate the MSLEF Purchase as set
forth in the MSLEF Purchase Documents shall have been satisfied, and
prior to or substantially simultaneously with the effectiveness of this
Agreement, the MSLEF Purchase shall have been consummated in accordance
with the MSLEF Purchase Documents and all applicable laws, rules and
regulations.
(r) The Senior Managing Agents shall have received true, correct
and complete copies of the SSCC Loan Documents which shall be in form
and substance reasonably satisfactory to the Senior Managing Agents. The
SSCC Loan Documents and the transactions contemplated thereby shall have
been duly approved by the board of directors and, to the extent required
under applicable laws, the stockholders of SSCC and the Borrower, all
SSCC Loan Documents shall have been duly executed and delivered by the
parties thereto and shall be in full force and effect. All
representations and warranties contained in the SSCC Loan Documents are
true and correct in all material respects both prior to and after giving
effect to the effectiveness of this Agreement and the consummation of
the Merger. Prior to or substantially simultaneously with the
effectiveness of this Agreement, the SSCC Loan shall have been made in
accordance with the SSCC Loan Documents and all applicable laws, rules
and regulations.
(s) The Senior Managing Agents shall have received true, correct
and complete copies of the Restatement Date Dividend Documents which
shall be in form and substance reasonably satisfactory to the Senior
Managing Agents. The Restatement Date Dividend Documents and the
transactions contemplated thereby shall have been duly approved by the
board of directors and, to the extent required under applicable laws,
the stockholders of the Borrower and JSCE, all Restatement Date Dividend
Documents shall have been duly executed and delivered by the parties
thereto and shall be in full force and effect. Prior to or substantially
simultaneously with the effectiveness of this Agreement, the Restatement
Date Dividends shall have been paid in accordance with the Restatement
Date Dividend Documents and all applicable laws, rules and regulations.
(t) The Senior Managing Agents shall have received true, correct
and complete copies of the Stone Capital Contribution Documents which
shall be in form and substance reasonably satisfactory to the Senior
Managing Agents. The Stone Capital Contribution Documents and the
transactions contemplated thereby shall have been duly approved by the
board of directors and the stockholders, of SSCC and Stone, all Stone
Capital Contribution
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Documents shall have been duly executed and delivered by the parties
thereto and shall be in full force and effect. Prior to or
simultaneously with the effectiveness of this Agreement, Stone shall
have received gross cash proceeds of not less than $290,000,000 from
SSCC as an investment in the form of common equity (the "Stone Capital
Contribution") in accordance with the Stone Capital Contribution
Documents, and all of the proceeds of the Stone Capital Contribution
shall have been used by Stone, together with the net proceeds of the
Stone Snowflake Sale, to (A) repay outstanding revolving loans and
supplemental revolving loans under the Stone Credit Agreement, (B) repay
Stone's 11-7/8% Senior Notes (including interest thereon) maturing
December 1, 1998 (or make provision for the escrow of such funds in form
and substance satisfactory to the Senior Managing Agents), and (C) pay
certain fees and expenses in connection with the foregoing transactions.
(u) Prior to or substantially simultaneously with the
effectiveness of this Agreement, the Stone Credit Agreement shall have
been amended in a form and manner satisfactory to the Senior Managing
Agents.
(v) The Senior Managing Agents shall have received a written
solvency certificate from the Chief Financial Officer of the Borrower in
form and substance satisfactory to the Senior Managing Agents.
In the event that all of the foregoing conditions precedent have not
been satisfied or waived on or before December 31, 1998, this Agreement shall be
of no further force and effect and the Existing Credit Agreement shall continue
in full force and effect.
ARTICLE VI
Affirmative Covenants
Each of SSCC, JSCE and the Borrower covenants and agrees with each
Lender, the Administrative Agent, each Senior Managing Agent and Managing Agent,
the Fronting Bank and the Swingline Lender that, so long as this Agreement shall
remain in effect, the LC Exposure shall not equal zero or the principal of or
interest on any Loan or Swingline Loan or any LC Disbursement, Fees or any other
expenses or amounts payable under any Loan Document shall be unpaid, unless the
Required Lenders shall otherwise consent in writing, it will, and will cause
each of its Subsidiaries to:
SECTION 6.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise permitted under Section 7.05.
(b) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect the rights, licenses, permits,
trademarks, trade names, privileges and franchises necessary or desirable in the
normal conduct of its business, except for any trademarks, trade names or
franchises that are not material to the business of the Borrower and its
Subsidiaries taken as a
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whole; maintain and operate such business in substantially the manner in which
it is currently conducted and operated; and at all times keep all property
useful and necessary in its business in good, working order and condition to the
extent required by sound business practices.
SECTION 6.02. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies of
established repute in the same general area engaged in the same or similar
businesses, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it or the use of
any products sold by it; and maintain such other insurance as may be required by
law and, with respect to the Mortgaged Properties, as is required by the
Mortgages.
SECTION 6.03. Obligations and Taxes. Pay and discharge promptly when due
all taxes, assessments and governmental charges or levies imposed upon it or
upon or in respect of its property or assets, as well as all claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such obligation, tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and it shall have
set aside on its books, in accordance with GAAP, adequate reserves with respect
thereto and such contest operates to suspend enforcement of a Lien and, in the
case of a Mortgaged Property or other material property or asset, there is no
material risk of forfeiture of such property.
SECTION 6.04. Financial Statements, Reports, etc. Furnish to the
Administrative Agent, the Senior Managing Agents, the Managing Agents, the
Fronting Bank, the Swingline Lender and each Lender:
(a) in the case of JSCE, within 90 days after the end of each
fiscal year, its consolidated balance sheets and related statements of
operations, stockholders' equity and cash flows, showing the financial
condition of such Person and its consolidated Subsidiaries as of the
close of such fiscal year and the results of its operations and the
operations of such Subsidiaries during such year, all audited by Ernst &
Young LLP or other independent auditors of recognized national standing
acceptable to the Required Lenders and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present
the financial condition and results of operations of such Person on a
consolidated basis in accordance with GAAP;
(b) in the case of JSCE, within 45 days after the end of each of
the first three fiscal quarters of each fiscal year, (i) its
consolidated balance sheets and related statements of operations,
stockholders' equity and cash flows, showing the financial condition of
such Person and its consolidated Subsidiaries as of the close of such
fiscal quarter and the results of its operations and the operations of
such Subsidiaries during such fiscal quarter and the then-elapsed
portion of the fiscal year and (ii) a narrative discussion of the
results of
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operations of JSCE in a form reasonably satisfactory to the
Senior Managing Agents (it being understood that, in the case of clause
(i) above, such information shall be in reasonable detail and certified
by a Financial Officer of JSCE, as fairly presenting the financial
condition and results of operations of JSCE on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments);
(c) in the case of JSCE, within 30 days after the end of each
month (other than the last month of any fiscal quarter), its
consolidated balance sheets and related statements of operations,
stockholders' equity and cash flows, showing the financial condition of
such Person and its consolidated Subsidiaries as of the close of such
month and the results of its operations and the operations of such
Subsidiaries during such month and the then-elapsed portion of the
fiscal year;
(d) concurrently with any delivery of financial statements of
JSCE under paragraph (a) or (b) above, a certificate of a Financial
Officer of such Person (i) certifying that, after due investigation and
reasonable inquiry, no Default or Event of Default has occurred or, if
such a Default or Event of Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to be
taken with respect thereto and (ii) setting forth computations in
reasonable detail satisfactory to the Senior Managing Agents of the
ratios contemplated by Section 2.06(c) and demonstrating compliance with
the covenants contained in Sections 7.01, 7.02, 7.03, 7.04, 7.06, 7.13,
7.14 and 7.15;
(e) concurrently with any delivery of financial statements under
paragraph (a) above, a certificate of the accounting firm opining on
such statements (which certificate may be limited to accounting matters
and disclaim responsibility for legal interpretations) certifying (i)
whether in connection with its audit examination any Default or Event of
Default has come to its attention and, if such event has come to its
attention, the nature and extent thereof and (ii) that based on its
audit examination, nothing has come to its attention that leads it to
believe that the information contained in the certificate delivered
therewith pursuant to paragraph (d) above is not correct;
(f) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
(other than (i) the exhibits to registration statements and (ii) any
registration statements on Form S-8 or its equivalent) filed by SSCC,
JSCE, the Borrower or SNC or any of their respective Subsidiaries with
the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of or all the functions of such Commission, or with
any national securities exchange, or distributed to any such Person's
shareholders (other than SSCC, JSCE, or the Borrower), as the case may
be;
(g) as soon as available, and in any event no later than 60 days
after each fiscal year, a consolidated annual plan, prepared in
accordance with JSCE's normal accounting procedures applied on a
consistent basis, for the next fiscal year of JSCE;
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(h) upon the earlier of (i) 90 days after the end of each fiscal
year of JSCE and (ii) the date on which the financial statements of JSCE
are delivered pursuant to paragraph (a) above, a certificate of a
Financial Officer of JSCE setting forth, in detail satisfactory to the
Senior Managing Agents, the amount of Excess Cash Flow, if any, for such
fiscal year;
(i) promptly from time to time, such other information regarding
the operations, business affairs and financial condition of SSCC, JSCE,
the Borrower or SNC, or compliance with the terms of any Loan Document,
as the Administrative Agent, the Senior Managing Agents, the Managing
Agents, the Fronting Bank, the Swingline Lender or any Lender may
reasonably request; and
(j) a copy of all notices (other than notices regarding any
scheduled or mandatory repayments), certificates, financial statements
and reports, as and when delivered by or on behalf of the Borrower to
the holders of any Subordinated Indebtedness, Senior Notes or 1993
Senior Notes.
SECTION 6.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Senior Managing Agents, the Managing Agents, the
Fronting Bank, the Swingline Lender, the Collateral Agent and each Lender prompt
written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any notice to any Loan
Party or any Subsidiary thereof of the intention of any Person to file
or commence, any action, suit or proceeding (whether at law or in equity
or by or before any Governmental Authority or any arbitrator, against
any Loan Party or any Subsidiary thereof) that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect; and
(d) any transaction, event or development that results in any
Loan Party or any Subsidiary thereof owning a parcel (or adjoining
parcels) of real property or Timberland Property that (i) is not a
Mortgaged Property and (ii) has a fair market value, as reasonably
determined in good faith by the board of directors of such Loan Party
(such property being referred to herein as "After-Acquired Mortgage
Property"), in excess of $500,000.
SECTION 6.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Administrative Agent, the
Senior Managing Agents, the Managing Agents, the Fronting Bank, the Swingline
Lender and each Lender (i) as soon as possible after, and in any event within 30
days after any Responsible Officer of SSCC, JSCE or the Borrower or any ERISA
Affiliate either knows or has reason to know that any Reportable Event has
occurred that alone or together with any other Reportable Event could reasonably
be expected to result in liability
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of SSCC, JSCE or the Borrower or any of their respective Subsidiaries to the
PBGC in an aggregate amount exceeding $5,000,000, a copy of the notice of such
event required to be given to the PBGC or, if notice is not so required, a
statement of a Financial Officer of SSCC, JSCE or the Borrower, as the case may
be, setting forth in reasonable detail the nature of such event and the action
proposed to be taken with respect thereto, (ii) promptly after receipt thereof,
a copy of any notice SSCC, JSCE or the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to terminate any
Plan or Plans (other than a Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) or to appoint a trustee to administer any Plan or Plans, (iii)
within 10 days after the due date for filing with the PBGC pursuant to Section
412(n) of the Code of a notice of failure to make a required installment or
other payment with respect to a Plan, a copy of such notice and a statement of a
Financial Officer of SSCC, JSCE or the Borrower, as the case may be, setting
forth in reasonable detail the nature of such failure and the action proposed to
be taken with respect thereto and (iv) promptly and in any event within 30 days
after receipt thereof by SSCC, JSCE or the Borrower or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, a copy of each notice received by SSCC,
JSCE or the Borrower or any ERISA Affiliate concerning (A) the imposition of
Withdrawal Liability or (B) a determination that a Multiemployer Plan is, or is
expected to be, terminated or in reorganization, in each case within the meaning
of Title IV of ERISA.
SECTION 6.07. Maintaining Records; Access to Properties and Inspections.
Maintain all financial records in accordance with GAAP and permit any
representatives designated by the Administrative Agent, the Senior Managing
Agents, the Managing Agents, the Fronting Bank, the Swingline Lender, the
Collateral Agent or any Lender to visit and inspect the properties and financial
records of the Loan Parties and any Subsidiary thereof at reasonable times and
upon reasonable notice and as often as reasonably requested and to make extracts
from and copies of such financial records, and permit any representatives
designated by the Administrative Agent, the Senior Managing Agents, the Managing
Agents, the Fronting Bank, the Swingline Lender, the Collateral Agent or any
Lender to discuss at such reasonable times and at such reasonable intervals as
may be reasonably requested the affairs, finances and condition of any Loan
Party or any Subsidiary thereof or any properties of any Loan Party or any
Subsidiary thereof with the officers thereof and independent accountants
therefor.
SECTION 6.08. Use of Proceeds. Use the proceeds of the Loans and the
Letters of Credit solely for the purposes set forth in the introductory
statement to this Agreement.
SECTION 6.09. Compliance with Law. Comply with the requirements of all
applicable laws, rules, regulations, court orders and decrees, and orders of any
Governmental Authority, that are applicable to it or to any of its properties,
except where noncompliance could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 6.10. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust), that may be required under applicable
law or which the Required Lenders, the Administrative Agent, either Senior
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Managing Agent or the Collateral Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan Documents and in order to
grant, preserve, protect and perfect the validity and first priority of the
security interests created or intended to be created by the Security Documents.
(b) In addition, from time to time, the Loan Parties, at their
cost and expense, will promptly secure the Obligations by pledging or creating,
or causing to be pledged or created, perfected security interests with respect
to such of their assets and properties as the Administrative Agent, either
Senior Managing Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of the Loan Parties
and their respective Subsidiaries (including real and other properties acquired
after the date hereof, but excluding (i) Program Receivables and (ii) the real
properties and fixtures owned on the date hereof by SNC). Such security
interests and Liens will be created under the Security Documents or such other
security agreements, mortgages, deeds of trust and other instruments and
documents as are satisfactory to the Required Lenders, and SSCC, JSCE or the
Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies,
surveys and lien searches) as the Administrative Agent, either Senior Managing
Agent or the Required Lenders shall reasonably request to evidence compliance
with this Section 6.10. SSCC, JSCE or the Borrower agree to provide such
evidence as the Administrative Agent, either Senior Managing Agent or the
Required Lenders shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
(c) Notwithstanding the provisions of paragraph (b) above, (i) no
After-Acquired Mortgage Property with a fair market value (as determined by the
Collateral Agent in its reasonable judgment, it being understood that the
purchase price shall be indicative thereof) (the "Fair Market Value") of less
than $1,000,000 shall be subject to the provisions of paragraph (b) above and
(ii) each item of After-Acquired Mortgage Property with a fair market value of
at least $1,000,000 but less than $10,000,000 shall not be subject to the
provisions of paragraph (b) above unless and until the aggregate Fair Market
Value of all items of After-Acquired Mortgage Property described in this clause
(ii) acquired after the Closing Date and not pledged to the Collateral Agent
pursuant to the next sentence equals or exceeds $50,000,000. On each occasion
that the Fair Market Value of all items of After-Acquired Mortgage Property
described in clause (ii) of the immediately preceding sentence shall equal or
exceed $50,000,000, all such property (and not merely the portion of the
property in excess of $50,000,000) shall be pledged to the Collateral Agent for
the benefit of the Secured Parties pursuant to paragraph (b) above and, after
such pledge, the provisions of such clause (ii) shall apply to subsequently
acquired After-Acquired Mortgage Property described in such clause.
(d) Except with respect to the Material Subsidiaries contemplated
by Section 7.11(d), cause (i) each Material Subsidiary organized under the laws
of the United States or any political subdivision thereof created or acquired by
it from time to time and (ii) each Subsidiary or Inactive Subsidiary prior to
becoming such a Material Subsidiary, to undertake the obligation of and to
become a Guarantor pursuant to the Guarantee Agreement and a party to the
applicable Security Documents to which it is not then a party pursuant to one or
more instruments or agreements
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satisfactory in form and substance to the Collateral Agent. In addition, SSCC,
JSCE or the Borrower, shall, or shall cause its Subsidiaries to, pledge the
capital stock of any such Subsidiary to the Collateral Agent for the benefit of
the Secured Parties pursuant to a Pledge Agreement (or supplement to a Pledge
Agreement) satisfactory in form and substance to the Collateral Agent.
Furthermore, in the event that any Loan Party makes a Material Investment (other
than Investments made by SSCC in the form of, or made in connection with, (x)
the consummation of the Merger pursuant to the terms of the Merger Documents and
any issued and outstanding capital stock of Stone owned by SSCC, (y) the Stone
Capital Contribution and (z) any Additional Stone Capital Contributions), the
Investor shall promptly pledge such Investment to the Collateral Agent pursuant
to a Pledge Agreement (or supplement to a Pledge Agreement) satisfactory in form
and substance to the Collateral Agent. Notwithstanding the foregoing, no Person
shall be obligated to pledge more than 65% of the capital stock of any
Subsidiary that is organized outside the United States or a political
subdivision thereof.
(e) In the event that any survey of Mortgaged Property discloses
any matter (including any encroachment or violation of an existing easement or
restrictive covenant) the effect of which is to detract materially from the
value of the property subject thereto or to interfere in any material respect
with the ordinary conduct of the business of any Loan Party or any of their
respective Subsidiaries, such Loan Party shall, upon request by the
Administrative Agent, use reasonable efforts (or cause its Subsidiary that is
the user or owner of the Mortgaged Property in question to use reasonable
efforts) to cause such matter to be corrected or otherwise resolved to the
reasonable satisfaction of the Administrative Agent.
(f) Within 90 days following the Closing Date, (i) each of the
Security Documents, in form and substance satisfactory to the Senior Managing
Agents, relating to the Mortgaged Properties located at (x) 817 East 27th
Street, Pierce County, Tacoma, Washington, (y) 6385 Cochran Road, Cuyahoga
County, Solon, Ohio, and (z) 6701 South Freeway, Tarrant County, Fort Worth,
Texas, shall have been duly executed by the parties thereto and delivered to the
Collateral Agent and shall be in full force and effect, (ii) each of such
Mortgaged Properties shall not be subject to any Lien other than those permitted
under Section 7.02, (iii) each of such Security Documents shall have been filed
and recorded in the recording office as specified on Schedule 4.19(c) (or a
lender's title insurance policy, in form and substance acceptable to the
Collateral Agent, insuring such Security Document as a first lien on such
Mortgaged Property (subject to any Lien permitted by Section 7.02) shall have
been received by the Collateral Agent) and, in connection therewith, the
Collateral Agent shall have received evidence satisfactory to it of each such
filing and recordation, (iv) the Collateral Agent shall have received such other
documents, including a policy or policies of title insurance issued by a
nationally recognized title insurance company, together with such endorsements,
coinsurance and reinsurance as may be requested by the Collateral Agent and the
Lenders, insuring the Mortgages as valid first liens on the Mortgaged
Properties, free of Liens other than those permitted under Section 7.02,
together with such surveys, abstracts, appraisals, environmental assessments and
legal opinions required to be furnished pursuant to the terms of the Mortgages
or as reasonably requested by the Collateral Agent or the Lenders and (v) the
Administrative Agent shall have received, on behalf of itself, the Senior
Managing Agents, the Lenders, the Swingline Lender and the Fronting Bank, a
favorable written opinion of local counsel
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in each jurisdiction in which any Mortgaged Property is located, substantially
to the effect set forth in Exhibit H-3, in each case addressed to the Senior
Managing Agents, the Administrative Agent, the Managing Agents, the Fronting
Bank, the Lenders, the Swingline Lender and the Collateral Agent.
SECTION 6.11. Material Contracts. Maintain in full force and effect
(including exercising any available renewal option), and without amendment or
modification, each Material Contract, unless the failure so to maintain any such
Material Contract (or any amendment or modification thereto) could not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect.
SECTION 6.12. Environmental Matters. (a) Promptly give notice to the
Senior Managing Agents upon becoming aware of (i) any violation of any
Environmental Law, (ii) any claim, inquiry, proceeding, investigation or other
action, including a request for information or a notice of potential
environmental liability, by or from any Governmental Authority or any third
party claimant or (iii) the discovery of the release of any Hazardous Material
at, on, under or from any of the Real Properties or any facility or equipment
thereat in excess of reportable or allowable standards or levels under any
Environmental Law, or in a manner or amount that could reasonably be expected to
result in liability under any Environmental Law, in each case that could
reasonably be expected to result in a Material Adverse Effect.
(b) Upon discovery of the presence on any of the Real Properties
of any Hazardous Material that is in violation of, or that could reasonably be
expected to result in liability under, any Environmental Law, in each case that
could result in a Material Adverse Effect, take all necessary steps to initiate
and expeditiously complete all remedial, corrective and other action to
eliminate any such adverse effect, and keep the Senior Managing Agents informed
of such actions and the results thereof.
SECTION 6.13. Distribution of Gross Export Revenues. In the case of the
Borrower, cause JSC International to distribute the gross export revenues
received by JSC International from the Borrower (a) to the Borrower in an amount
equal to the portion of gross export revenues that is not tax-exempt under
Section 922 et seq. of the Code as a repayment of the Borrower's advance to JSC
International to the extent thereof, and as a dividend to the extent that such
non-tax-exempt gross export revenues exceed the Borrower's advance to JSC
International, and (b) to the Borrower, as a dividend, in an amount equal to the
portion of gross export revenues that is tax-exempt under the Code, in each case
on the same Business Day that such gross export revenues are received by JSC
International, and in no event later than the next Business Day.
SECTION 6.14. Y2K. Take all commercially reasonable actions necessary
and commit adequate resources to assure that its computer-based and other
systems (and those of all Subsidiaries) are able to effectively process dates,
including dates before, on and after January 1, 2000, without experiencing any
Y2K Problem that could cause a Material Adverse Effect.
SECTION 6.15. Maintenance of Corporate Separateness. Satisfy, and cause
each of its Subsidiaries to satisfy, customary corporate formalities, including
the maintenance of corporate
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records. No Loan Party nor any Subsidiary of the Loan Parties shall make any
payment to a creditor of SSCC or any of its subsidiaries (other than the Loan
Parties and the Loan Parties' Subsidiaries) in respect of any liability of SSCC
or any of its subsidiaries (other than the Loan Parties and the Loan Parties'
Subsidiaries), and no bank account of SSCC or any of its subsidiaries (other
than the Loan Parties and the Loan Parties' Subsidiaries) shall be commingled
with any bank account of SSCC, JSCE or the Borrower or any Subsidiary of the
Loan Parties. Any financial statements distributed to any creditors of SSCC or
any of its subsidiaries shall, to the extent permitted under GAAP, clearly
establish the corporate separateness of SSCC and it subsidiaries (other than the
Loan Parties and the Loan Parties' Subsidiaries) from SSCC, JSCE or the Borrower
and each of its Subsidiaries. No Loan Party nor any Subsidiary of the Loan
Parties shall take any action, or conduct its affairs in a manner, which is
reasonably likely to result in the corporate existence of SSCC or its
subsidiaries (other than the Loan Parties and the Loan Parties' Subsidiaries),
on the one hand, and of SSCC, JSCE or the Borrower or any Subsidiary of the Loan
Parties, on the other hand, being ignored, or in the assets and liabilities of
SSCC, JSCE or the Borrower or any Subsidiary of SSCC, JSCE or the Borrower being
substantively consolidated with those of SSCC or any of its subsidiaries (other
than the Loan Parties and the Loan Parties' Subsidiaries) in a bankruptcy,
reorganization or other insolvency proceeding.
ARTICLE VII
Negative Covenants
Each of SSCC, JSCE and the Borrower covenants and agrees with each
Lender, the Administrative Agent, each Senior Managing Agent and Managing Agent,
the Fronting Bank and the Swingline Lender that, so long as this Agreement shall
remain in effect, the LC Exposure shall not equal zero or the principal of or
interest on any Loan or Swingline Loan or any LC Disbursement, Fees or any other
expenses or amounts payable under any Loan Document shall be unpaid, unless the
Required Lenders or, as specified in Section 7.06(d), the Supermajority Lenders
shall otherwise consent in writing, it will not, and will not cause or permit
any of its Subsidiaries to:
SECTION 7.01. Indebtedness. Create, incur, assume or permit to exist any
Indebtedness, except, without duplication:
(a) the 1993 Senior Notes, the Senior Notes and Guarantees in
respect of each thereof, the other Indebtedness existing on the Closing
Date and set forth on Schedule 7.01(a) and Indebtedness of JSF incurred
pursuant to the Receivables Program Documents;
(b) in the case of the Borrower, Indebtedness created hereunder
and under the Loan Documents;
(c) in the case of each Guarantor, its Guarantee of the
Obligations pursuant to the Guarantee Agreement;
(d) Indebtedness of JSCE or any of its Subsidiaries the net
proceeds of which are used substantially concurrently to refinance
Indebtedness described in paragraph (a) above
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so long as (i) such refinancing Indebtedness is in an aggregate
principal amount not greater than the aggregate principal amount of the
Indebtedness being refinanced plus the amount of any premiums required
to be paid thereon, (ii) such Indebtedness has a later final maturity
than the Tranche B Maturity Date and a longer weighted average life than
the Term Loans and (iii) each of the covenants, events of default and
other provisions thereof (including any Guarantees thereof) shall be no
more adverse to the Lenders than those contained in the Indebtedness
being refinanced unless each of such provisions is approved in writing
by the Required Lenders; provided, however, that, if the proceeds of
Revolving Loans are used to repurchase or redeem any 10-Year Senior
Notes, the Borrower may incur Indebtedness otherwise meeting the
requirements of this paragraph (d) (as if such Indebtedness were used to
refinance such 10-Year Senior Notes) to repay such Revolving Loans;
(e) in the case of the Borrower and its Material Subsidiaries,
Capital Lease Obligations in an amount not to exceed $300,000,000 when
added to the amount of (i) all other Capital Lease Obligations then
existing (other than Capital Lease Obligations described in paragraph
(a) above), (ii) all outstanding Indebtedness (other than Indebtedness
incurred under this Agreement) created, incurred or assumed in respect
of the purchase or construction price of property and (iii) all
outstanding bonds described in paragraph (i) below;
(f) Indebtedness of the Borrower and the Subsidiaries created,
incurred or assumed in respect of the purchase or construction of
property of the Borrower and the Subsidiaries and any refinancings
thereof, provided that (i) the amount of such Indebtedness, when added
to the amount of (x) all other Indebtedness (other than Indebtedness
incurred under this Agreement) of the Borrower then existing that was
created, incurred or assumed in respect of the purchase or construction
of property, (y) all then-existing Capital Lease Obligations (other than
Capital Lease Obligations described in paragraph (a) above) and (z) all
outstanding bonds described in paragraph (i) below, does not exceed
$300,000,000; (ii) such Indebtedness to be created, incurred or assumed
in respect of the purchase or construction price of property shall be so
created, incurred or assumed substantially contemporaneously with such
purchase or construction (and in any event not later than 90 days after
the earlier to occur of either the placement in service of, or the final
payment on, such property); and (iii) such Indebtedness is not secured
by any Lien other than a Lien permitted by Section 7.02(a)(vi);
(g) Indebtedness of the Borrower evidencing obligations to make
payments in respect of rights to cut, harvest or otherwise acquire
timber on property owned by any other Person, provided that the
aggregate amount of such Indebtedness shall not exceed $10,000,000 at
any time outstanding;
(h) Indebtedness of the Borrower and its Material Subsidiaries in
respect of letters of credit that are not secured by any of the
Collateral not exceeding in the aggregate $25,000,000 at any time;
(i) Indebtedness of the Borrower consisting of industrial
development bonds and pollution control bonds, provided that the amount
of any such bonds shall not at any time
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exceed $300,000,000 when added to the amount of (i) all other
outstanding industrial development bonds and pollution control bonds,
(ii) all then-existing Capital Lease Obligations (other than Capital
Lease Obligations described in paragraph (a) above) and (iii) all
outstanding Indebtedness created, incurred or assumed in respect of the
purchase or construction price of property;
(j) Rate Protection Agreements and Currency Agreements;
(k) Indebtedness incurred in connection with (i) Permitted
Equipment Financings in an aggregate principal amount of up to
$100,000,000 or (ii) Permitted Timber Financings;
(l) Guarantees by JSCE of Indebtedness of the Borrower permitted
under this Section 7.01;
(m) Guarantees of obligations or Indebtedness not otherwise
provided for above, to the extent that such Indebtedness is incurred in
the ordinary course of business and does not exceed $25,000,000 in the
aggregate at any time outstanding;
(n) intercompany loans and advances permitted by Section 7.04;
and
(o) Indebtedness of the Borrower to JSF arising because any sale
or purported sale of Program Receivables to JSF is required to be
recharacterized as a loan.
SECTION 7.02. Liens. (a) Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
Person) now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except:
(i) any Lien created under the Loan Documents;
(ii) Liens securing any Permitted Equipment Financing and any
Permitted Timber Financing;
(iii) the Liens granted pursuant to the Receivables Program
Documents;
(iv) Liens securing Indebtedness of P.U.I. not in excess of
$15,000,000 at any time outstanding;
(v) Liens securing Capital Lease Obligations pursuant to Capital
Leases existing on the Closing Date;
(vi) Permitted Liens; and
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(vii) Liens securing Capital Lease Obligations permitted by
Section 7.01(e); provided, however, that any such Lien shall only cover
the property subject to the applicable Capital Lease Obligation.
(b) Enter into any agreement prohibiting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired, except (i) with respect to specific property encumbered to
secure payment of particular Indebtedness permitted hereunder and Margin Stock
and (ii) the Senior Note Indentures and the 1993 Senior Note Indenture.
SECTION 7.03. Sale/Leaseback Transactions. Enter into any Sale/Leaseback
Transaction other than (a) Permitted Equipment Financings in an aggregate
principal amount of up to $100,000,000 or (b) any Permitted Timber Financing.
SECTION 7.04. Investments, Loans and Advances. Have outstanding or make
any loan or advance to or have or make any Investment in any other Person or
suffer to exist any such loan or advance or Investment, except as set forth on
Schedule 7.04 and except:
(a) Permitted Investments;
(b) loans, advances or other Investments made by the Borrower or
any Subsidiary of the Borrower to or in any Domestic Subsidiary of the
Borrower and, in the case of loans and advances, evidenced by an
Intercompany Note, or made by any Subsidiary of the Borrower to the
Borrower, in each case in the ordinary course of business and in an
aggregate amount not to exceed $25,000,000 at any time;
(c) any loans or advances made by the Borrower or any Subsidiary
of the Borrower to, or Investments made by the Borrower or any
Subsidiary of the Borrower in, any Foreign Subsidiary and Guarantees
provided by the Borrower of obligations of such Foreign Subsidiary, in
the case of this clause (c) in an aggregate amount not to exceed
$25,000,000 at any time;
(d) loans or advances evidenced by an Intercompany Note and made
by any Loan Party to any other Loan Party (other than SSCC);
(e) [Intentionally Omitted];
(f) Investments consisting of non-cash consideration received in
connection with a sale of assets permitted under Sections 7.05 and 7.16;
(g) the Restatement Date Dividends, the SSCC Loan and the Stone
Capital Contribution, all as consummated on the Restatement Date
pursuant to the terms and conditions of the Transaction Documents,
additional Investments made by SSCC in Stone after the Restatement Date
in an aggregate amount not exceeding $100,000,000 ("Additional Stone
Capital Contributions"), and so long as no Default or Event of Default
shall have
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occurred and be continuing at the time thereof or immediately after
giving effect thereto, loans or advances made by the Borrower to JSCE
and/or SSCC and by JSCE to SSCC for the sole purpose of making
Additional Stone Capital Contributions, all on terms and conditions, and
pursuant to documentation in form and substance, satisfactory to the
Senior Managing Agents;
(h) Investments by SSCC in JSCE and Investments by JSCE in the
Borrower;
(i) Investments by SSCC utilizing proceeds received by SSCC of
cash capital contributions made by JSG or any of its Affiliates (other
than JSCE or any of its Subsidiaries) in SSCC; and
(j) Investments (other than Investments in Stone and its
subsidiaries) not described in clauses (a) through (i) above and not
exceeding in the aggregate $50,000,000, provided that the aggregate
amount of Investments permitted to be made by SSCC under this clause (j)
shall not exceed $15,000,000.
SECTION 7.05. Mergers, Consolidations, Sales of Assets and Acquisitions.
Merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, assign, lease, sublease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all its assets, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or any substantial part of the
assets of any other Person except:
(a) if at the time thereof and immediately after giving effect
thereto no Default or Event of Default shall have occurred and be
continuing, (i) any wholly owned Domestic Subsidiary of SSCC may merge
into or consolidate with the Borrower in a transaction in which the
Borrower is the surviving corporation and (ii) any wholly owned Domestic
Subsidiary of the Borrower may merge into or consolidate with any other
wholly owned Domestic Subsidiary of the Borrower in a transaction in
which the surviving entity is a wholly owned Domestic Subsidiary of the
Borrower, provided that, in each case, (x) no Person other than the
Borrower or a wholly owned Domestic Subsidiary of the Borrower receives
any consideration and (y) in the event that any Loan Party is a party to
such merger or consolidation and is not the surviving entity, the
surviving entity shall, simultaneously with such merger or
consolidation, assume all the obligations of such Loan Party hereunder
and under the other Loan Documents;
(b) purchases of inventory, equipment and real property in the
ordinary course of business;
(c) acquisitions constituting Consolidated Capital Expenditures
permitted by Section 7.13;
(d) acquisitions constituting Investments permitted by Section
7.04; and
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(e) consummation of the Merger.
SECTION 7.06. Restricted Junior Payments. (a) Declare or make, directly
or indirectly, any Restricted Junior Payment or set aside any amount for any
such purpose.
(b) Notwithstanding the provisions of Section 7.06(a), (i) the
Borrower may pay cash dividends to JSCE to be used by JSCE solely to pay cash
dividends to SSCC in accordance with and for the purpose specified in clause
(ii) below, if and to the extent permitted by applicable law, if, at the time of
such payment and immediately after giving effect thereto, (x) no Default or
Event of Default shall have occurred and be continuing and (y) the aggregate
amount of such dividends, together with the aggregate amount of all other cash
dividends paid by the Borrower in the fiscal year in which the dividend is
proposed to be paid, shall not exceed the least of (A) the Borrower's Portion of
Excess Cash Flow, (B) 25% of Consolidated Net Income for the fiscal year
preceding the year in which the dividend is proposed to be paid and (C)
$22,200,000, (ii) JSCE may pay cash dividends to SSCC and SSCC may pay like
dividends to the holders of its Common Stock substantially contemporaneously
with the payment of and out of the proceeds of the dividends referred to in
clause (i) above, (iii) the Borrower and JSCE may pay the Restatement Date
Dividends and SSCC may make the Stone Capital Contribution and (iv) the Borrower
may pay cash dividends to JSCE and JSCE may pay like dividends to SSCC solely
for the purpose of making Additional Stone Capital Contributions in accordance
with Section 7.04(g) if, at the time of such payment and immediately after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing. The limitations of this Section 7.06 shall not prohibit JSCE or SSCC
from paying a dividend in accordance with clauses (i) and (ii) above within 60
days after declaration thereof if, on the declaration date, such dividend could
have been paid in compliance with this Section 7.06.
(c) Notwithstanding the provisions of Section 7.06(a), the
Borrower may purchase in the open market shares of Common Stock ("MIP Shares")
or options to purchase shares of Common Stock ("MIP Options"), provided that (i)
the sum of (x) the aggregate purchase price of all MIP Shares (whether purchased
directly in the open market or upon the exercise of MIP Options) and (y) the
aggregate purchase price of all MIP Options, together with the aggregate
purchase price of all shares of JSG purchased and excluded from the term
"Investments", in each case in such fiscal year shall not exceed $15,000,000,
(ii) MIP Shares, including those purchased upon the exercise of MIP Options,
shall be purchased exclusively for subsequent distribution as additional
compensation to employees of the Borrower pursuant to its management incentive
program, (iii) the Borrower shall not knowingly purchase any MIP Shares from any
Affiliate (acting as principal in such transaction) of the Borrower and (iv) at
the time of any such purchase and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing.
(d) In addition to the requirements of Section 10.08(b), which
shall be unaffected hereby, no waiver, amendment or modification to (i) the
definition of the term "Additional Stone Capital Contributions" or the term
"Supermajority Lenders," (ii) Section 7.06(b)(iv), (iii) this Section 7.06(d) or
(iv) any other provision of this Agreement which would permit Restricted Junior
Payments or Investments to be made (directly or indirectly) by any Person, the
proceeds of which are paid, in whole or in part, to Stone or any of Stone's
subsidiaries in excess of those permitted under the terms
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of this Agreement as in effect on the Restatement Date, shall be effective
except pursuant to an agreement or agreements in writing entered into by SSCC,
JSCE, the Borrower and the Supermajority Lenders.
SECTION 7.07. Transactions with Stockholders and Affiliates. Except to
the extent specifically permitted by the terms of this Agreement, directly or
indirectly enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity securities of such
Person or with any Affiliate of such Person or of any such holder, on terms that
are less favorable to such Person than those that could be obtained at the time
from Persons who are not such a holder or Affiliate, provided that the foregoing
restriction shall not apply to (a) any transaction between such Person and any
of its Material Subsidiaries or between any of its Material Subsidiaries, (b)
customary fees paid to members of the Board of Directors of such Person and its
Subsidiaries, (c) customary compensation (including salaries and bonuses) paid
to officers and employees of such Person, (d) payments made pursuant to the Tax
Sharing Agreement, (e) management and financial services provided by the
Borrower to its Subsidiaries and other entities in which the Borrower has
Investments to the extent that such services are provided by the Borrower in the
ordinary course of its business and senior management of the Borrower has
determined that the providing of such services is in the best interests of the
Borrower, (f) the transactions contemplated by the Receivables Program
Documents, and the 1992 Stock Option Plan and (g) the Restatement Date
Transactions.
SECTION 7.08. Business. (a) Engage at any time in any business or
business activity other than the business currently conducted by it and its
Subsidiaries and business activities reasonably related thereto. Without
limiting the foregoing, neither SSCC nor JSCE shall engage in any business or
conduct any activity other than holding, directly or indirectly, the capital
stock of its Subsidiaries, and activities reasonably related thereto.
(b) In the case of JSC International, engage in any business or
business activity, have any liabilities or hold any assets except that JSC
International may (i) maintain a bank account with a banking institution
reasonably acceptable to the Administrative Agent, (ii) engage in activities
consistent with its being a "Foreign Sales Corporation" as such term is defined
in Section 922 of the Code, and the regulations promulgated thereunder and (iii)
receive advances from the Borrower equal to the gross export revenues of the
Borrower.
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SECTION 7.09. Limitations on Debt Prepayments. (a) Optionally prepay,
repurchase or redeem or otherwise defease or segregate funds with respect to any
Indebtedness for borrowed money (other than Indebtedness under the Loan
Documents) of SSCC, JSCE, the Borrower or any of their respective Subsidiaries;
provided, however, that the foregoing shall not prevent the Borrower from (i)
making any payment pursuant to Section 2.12 or 2.13, (ii) refinancing all or any
portion of the 10-Year Senior Notes on terms permitted by Section 7.01(d), or
(iii) repurchasing all or any portion of the 10-Year Senior Notes pursuant to
the call provision of the 10-Year Senior Note Indenture, provided that at the
time of any such repurchase (other than any repurchase permitted by clause (ii)
above in connection with a refinancing permitted by Section 7.01(d)), the
aggregate outstanding amount of the Term Loans is less than or equal to
$750,000,000.
(b) Permit any amendment, waiver or modification to the terms of
the Senior Note Indentures, the 1993 Senior Note Indenture, the Senior Notes or
the 1993 Senior Notes or any agreement of the Borrower entered into in
connection with the foregoing if the effect of such amendment or modification is
to impose additional or increased scheduled or mandatory repayment, retirement,
repurchase or redemption obligations in respect of such Indebtedness or to
require any scheduled or mandatory payment to be made in respect of such
Indebtedness prior to the date that such payment would otherwise be due.
SECTION 7.10. Amendment of Certain Documents. (a) Amend, modify, cancel
or grant any waiver with respect to any indenture, note or any other instrument
evidencing Indebtedness for money borrowed or preferred or preference stock or
pursuant to which any Indebtedness for money borrowed or such stock was issued
or issue any securities in exchange for any Indebtedness for money borrowed or
any preferred or preference stock; provided, however, that such Person may
amend, modify or grant a waiver with respect to any such indenture, note or
other instrument if such amendment, modification or waiver does not have the
effect of (i) increasing the amounts due in respect of any such indenture, note
or other instrument or any interest rate thereunder, (ii) subjecting any
property of such Person or any property of any Subsidiary of such Person to any
Lien to which it was not so subject immediately prior to any such amendment,
modification or waiver, (iii) shortening the maturity or average life of any
such Indebtedness for borrowed money or (iv) creating or changing any covenant
or similar restriction or event of default having application to such Person to
make any such covenant or similar restriction more restrictive on such Person.
(b) Cause or suffer to exist any amendment or modification to or
supplement of the certificate of incorporation or by-laws (other than the
amendment to SSCC's certificate of incorporatation and by-laws pursuant to the
terms of the Merger Agreement) of such Person, any Loan Document, any
Transaction Document or any Basic Agreement, without the prior written consent
of the Required Lenders, unless such amendment, modification or supplement is
not adverse to the interests of the Lenders hereunder or under the other Loan
Documents.
(c) Permit, cause or suffer to exist any direct or indirect
amendment, modification or supplement to any of the Receivables Program
Documents unless such amendment, modification or supplement is in form and
substance satisfactory to the Senior Managing Agents, provided that (i) any
proposed amendment, modification or supplement to the Receivables Program
Documents
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shall first be submitted by the Borrower to the Senior Managing Agents in
writing and no such amendment, modification or supplement that, in the opinion
of the Senior Managing Agents, has an adverse effect on the Lenders shall be
effected unless the prior written consent of the Required Lenders shall have
been obtained and (ii) no consent of the Senior Managing Agents or the Required
Lenders shall be required for any waiver by the Receivables Program lenders of
their rights under the Receivables Program Documents that is not detrimental in
any respect to the Borrower or JSF and that is not more restrictive, in any
respect, on the Borrower or JSF than the Receivables Program Documents without
giving effect to such waiver.
SECTION 7.11. Limitation on Dispositions of Subsidiary Stock; Creation
of Subsidiaries. (a) Directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of, or permit any of its Subsidiaries to issue to any other
Person, any shares of capital stock or other equity securities of (or warrants,
rights or options to acquire shares or other equity securities of) any of its
Subsidiaries, except (i) to the extent permitted by the Security Documents and
(ii) to qualify directors if and to the extent required by applicable law.
(b) Subject to paragraphs (c) and (d) below, have or create any
Subsidiary not identified on Schedule 4.08; provided, however, that JSCE or the
Borrower may create one or more new Subsidiaries organized under the laws of the
United States or any political subdivision thereof if (i) each such Subsidiary
is a wholly owned Subsidiary and is designated by JSCE or the Borrower as a
Material Subsidiary and (ii) JSCE, the Borrower and each such Subsidiary
complies with the applicable provisions of Section 6.10.
(c) Notwithstanding paragraph (b) above, if at the time thereof
and immediately after giving effect thereto no Default or Event of Default shall
have occurred and be continuing, JSCE or the Borrower may create or cause to be
created one or more Foreign Subsidiaries provided that (i) each such Subsidiary
is a wholly owned Subsidiary and (ii) JSCE, the Borrower and each such
Subsidiary complies with the applicable provisions of Section 6.10 (it being
understood that (x) no Foreign Subsidiary shall be required to become a party to
the Guarantee Agreement or to any Security Document and (y) JSCE or the
Borrower, as the case may be, shall not be required to pledge more than 65% of
the capital stock of any Foreign Subsidiary pursuant to the Pledge Agreement).
(d) Notwithstanding paragraph (b) above, if at the time thereof
and immediately after giving effect thereto no Default or Event of Default shall
have occurred and be continuing, SSCC may create or cause to be created a wholly
owned Subsidiary to be incorporated in the State of Indiana and/or a wholly
owned Subsidiary to be incorporated in the State of Alabama, in each case to own
and operate certain assets of the Loan Parties located in such states, so long
as, upon the incorporation of any such Subsidiary, (i) SSCC shall designate or
shall cause to be designated each such Subsidiary as a Material Subsidiary and
shall cause each such Subsidiary to become a grantor party to the applicable
Security Documents with respect to all its assets, (ii) SSCC shall
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pledge or cause to be pledged to the Collateral Agent for the benefit of the
Secured Parties all the capital stock of each such Subsidiary pursuant to the
Pledge Agreement and (iii) SSCC shall cause to be delivered to the Senior
Managing Agents and the Collateral Agent such documents and opinions of counsel
in connection with the foregoing as may be reasonably requested by the Senior
Managing Agents or the Collateral Agent or their counsel.
SECTION 7.12. Restrictions on Ability of Subsidiaries to Pay Dividends.
Permit their respective Subsidiaries to, directly or indirectly, voluntarily
create or otherwise voluntarily cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary of such Person to
(a) pay dividends or make any other distributions on its capital stock or any
other interest or (b) make or repay loans or advances to such Person except, in
each case, for encumbrances or restrictions under this Agreement, the 1993
Senior Note Indenture, the Senior Note Indentures and, with respect to JSF, the
Receivables Program Documents.
SECTION 7.13. Capital Expenditures. Incur Consolidated Capital
Expenditures, provided that the Borrower and its Subsidiaries may incur
Consolidated Capital Expenditures in any fiscal year in an aggregate amount not
in excess of $200,000,000; provided, however, that such amount in respect of any
fiscal year may be increased by an amount equal to the Borrower's Portion of
Excess Cash Flow. In addition, the amount of Consolidated Capital Expenditures
in any fiscal year may be further increased by an amount equal to the excess of
(a) $200,000,000 over (b) the amount of Consolidated Capital Expenditures
actually made in the immediately preceding fiscal year; provided, however, that
amounts so available under this sentence in any fiscal year or years that are
not so expended, up to a maximum of $75,000,000 on a cumulative basis, shall be
available for any subsequent fiscal year and the amount of Consolidated Capital
Expenditures made in any fiscal year shall first be applied against the
$200,000,000 amount permitted for such year and thereafter applied to the amount
available from prior years. The parties agree that, for purposes of the
preceding sentence, the Borrower shall be deemed on the Closing Date to have
$75,000,000 in unused Consolidated Capital Expenditures from prior years
available for use on and after the Closing Date.
SECTION 7.14. Consolidated EBITDA. Permit Consolidated EBITDA for any
four fiscal quarter period ending on a date set forth below to be less than the
amount set forth opposite such date:
<TABLE>
<CAPTION>
Date Amount
<S> <C>
March 31, 1998 $235,000,000
June 30, 1998 $235,000,000
September 30, 1998 $285,000,000
December 31, 1998 $285,000,000
March 31, 1999 $300,000,000
June 30, 1999 $325,000,000
September 30, 1999 $325,000,000
December 31, 1999 $335,000,000
</TABLE>
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<TABLE>
<S> <C>
March 31, 2000 $335,000,000
June 30, 2000 $335,000,000
September 30, 2000 $350,000,000
December 31, 2000 $375,000,000
March 31, 2001 and thereafter $400,000,000
</TABLE>
SECTION 7.15. Interest Coverage Ratio. Permit the ratio of (a)
Consolidated EBITDA to (b) Consolidated Interest Expense for any four fiscal
quarter period ending on a date set forth below to be less than the ratio set
forth opposite such date:
<TABLE>
<CAPTION>
Date Ratio
<S> <C>
March 31, 1998 1.25 to 1
June 30, 1998 1.25 to 1
September 30, 1998 1.50 to 1
December 31, 1998 1.50 to 1
March 31, 1999 1.65 to 1
June 30, 1999 1.65 to 1
September 30, 1999 1.75 to 1
December 31, 1999 1.75 to 1
March 31, 2000 2.00 to 1
June 30, 2000 2.00 to 1
September 30, 2000 2.25 to 1
December 31, 2000 and thereafter 2.50 to 1
</TABLE>
SECTION 7.16. Disposition of Collateral and other Assets. (a) Sell,
lease, assign, transfer or otherwise dispose of any asset or assets constituting
all or substantially all the Collateral.
(b) Sell, lease, assign, transfer or otherwise dispose of any
portion of a discrete parcel of Timberland Property (other than pursuant to any
Permitted Equipment Financing or any Permitted Timber Financing or to any
Material Subsidiary), unless (i) the fair market value of such parcel of
Timberland Property is less than $10,000,000 and (ii) the aggregate fair market
value of all Timberland Property previously disposed of pursuant to this Section
7.16(b) is less than $50,000,000; provided, however, that the Borrower may
exchange any portion of a discrete parcel of Timberland Property for a
Substitute Parcel if (A) the fair market value of the Substitute Parcel is at
least as great as the fair market value of the parcel of Timberland Property so
exchanged, (B) the release of such exchanged Timberland Property complies in all
respects with the provisions of Section 7.17 and (C) the Borrower complies in
all respects with the applicable provisions of Section 6.10 with respect to the
Substitute Parcel.
(c) Permit any third parties the privilege of entry upon the
Mortgaged Property for cutting and removal of Timber, except under contracts
pursuant to which such third parties are granted the privilege of cutting or
removing Timber for sale, consumption or processing at
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commercially reasonable rates, provided that (i) as to any single contract, the
gross proceeds to be paid in any calendar year shall not exceed $10,000,000,
(ii) as to the aggregate of all such contracts from time to time in effect, such
gross proceeds shall not exceed $50,000,000 in any calendar year, and (iii) the
Borrower may exchange Timber for other timber ("Substitute Timber") if (x) the
fair market value of the Substitute Timber is at least as great as the fair
market value of the Timber so exchanged, (y) the release of such Timber complies
in all respects with the provisions of Section 7.17 and (z) the Borrower
complies in all respects with the applicable provisions of Section 6.10 with
respect to the Substitute Timber.
(d) Except for the sale of Program Receivables as permitted by
the Receivables Program Documents, sell, lease, assign, transfer or otherwise
dispose of any asset or assets (other than to a Material Subsidiary), in a
single transaction or a series of related transactions, having a fair market
value in excess of $5,000,000 unless (i) at least 80% of the consideration
received by SSCC and its Subsidiaries in connection therewith shall be in cash
or cash equivalents and readily marketable securities, (ii) any non-cash
consideration shall consist of debt obligations of the purchaser and (iii) if
any consideration to be received consists of a note or other debt obligation,
such note or other debt obligation shall, either (x) (A) be senior and secured
by a first priority security interest in the asset so sold and (B) shall be
pledged to the Collateral Agent for the benefit of the Lenders to secure the
Obligations pursuant to a written instrument satisfactory to the Collateral
Agent or (y) in the case of any portion of any such consideration consisting of
readily marketable securities, be sold within 30 days of receipt thereof.
SECTION 7.17. Disposition of Mortgaged Property. (a) Sell, lease,
assign, transfer or otherwise dispose of (other than to a Material Subsidiary)
any interest in any Mortgaged Property, including any interest in any Timberland
Property (each, a "Release Transaction"), except (i) in compliance with this
Section 7.17, Section 7.05 and Section 7.16 and (ii) in connection with any
Permitted Equipment Financing or any Permitted Timber Financing. Upon such
compliance, the Borrower shall be entitled to receive from the Collateral Agent
an instrument, in form and substance satisfactory to the Collateral Agent (each,
a "Release"), releasing (or, at the option of the Borrower assigning) the Lien
of any applicable Mortgaged Property. The Borrower shall exercise its rights
under this Section 7.17 by delivery to the Collateral Agent of a notice (each, a
"Release Notice"), which shall refer to this Section 7.17, describe with
particularity the items of property proposed to be covered by the Release and be
accompanied by a counterpart of the release fully executed and acknowledged by
all parties thereto other than the Collateral Agent and be in form for execution
by the Collateral Agent, and a certificate of a Responsible Officer of the
Borrower certifying as to the satisfaction of the Release Conditions. The
Collateral Agent shall execute, acknowledge (if applicable) and deliver to the
Borrower such counterpart within a reasonable time after receipt by the
Collateral Agent of a Release Notice and the satisfaction of the Release
Conditions. The obligation of the Collateral Agent to deliver any Release, and
the Borrower's rights to consummate any sale, lease, assignment, transfer or
other disposition of any interest in Mortgaged Property, shall be subject to the
following conditions (collectively, the "Release Conditions"):
(i) no Default or Event of Default shall have occurred and be
continuing;
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(ii) if such Release relates to only a portion of a discrete
parcel of Mortgaged Property, following such sale, transfer or other
disposition and release of the Lien of any applicable Mortgage with
respect thereto, the affected Mortgaged Property shall have sufficient
utility services and sufficient access to public roads, rail spurs,
harbors, canals, terminal and other transportation structures for the
continued use of such Mortgaged Property in substantially the manner
carried on by the Borrower prior to such Release;
(iii) if such Release relates to only a portion of a discrete
parcel of Mortgaged Property, following such sale, transfer or other
disposition, the affected Mortgaged Property shall comply in all
material respects with applicable laws, rules, regulations and
ordinances relating to environmental protection, zoning, land use and
building and work place safety;
(iv) if such Release relates to only a portion of a discrete
parcel of Mortgaged Property, following such sale, transfer or other
disposition, the value of the affected Mortgaged Property following such
Release (exclusive of the value of the released Mortgaged Property) plus
the value of the proceeds received for such released Mortgaged Property
shall not be less than the value of such Mortgaged Property prior to
such Release;
(v) if such Release relates to only a portion of a discrete
parcel of Mortgaged Property (other than Timberland Property), the title
insurance company that issued the title insurance relating to the
affected Mortgaged Property shall have committed to issue an endorsement
to such title insurance policy confirming that after such Release the
Lien of the applicable Mortgage continues unimpaired as a first priority
Lien upon the remaining Mortgaged Property, subject only to Liens
permitted by the terms of the applicable Mortgage to be prior thereto;
and
(vi) except with respect to Timberland Property, the Borrower
shall have delivered to the Collateral Agent a survey showing the
property proposed to be released.
(b) In connection with any Release Transaction, the Borrower
shall (i) execute, deliver and cause to be recorded, and obtain and deliver,
such instruments as the Collateral Agent may reasonably request, including
amendments to the Security Documents and this Agreement, and (ii) deliver to the
Collateral Agent such evidence of the satisfaction of the Release Conditions as
the Collateral Agent may reasonably require. Without limiting the provisions of
Section 10.05, the Borrower shall reimburse the Collateral Agent, the
Administrative Agent and the Lenders upon demand for all costs or expenses,
including attorneys' fees and disbursements, incurred by each of them in
connection with any action contemplated by this Section 7.17.
SECTION 7.18. Fiscal Year. Cause its fiscal year to end on a date other
than December 31.
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ARTICLE VIII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in any
Loan Document, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other
instrument furnished pursuant to any Loan Document, shall prove to have
been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or Swingline Loan or LC Disbursement when and as the same shall
become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or Swingline Loan or any Fee or any other amount (other than an
amount referred to in paragraph (b) above) due under any Loan Document,
when and as the same shall become due and payable, and such default
shall continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance by
SSCC, JSCE or the Borrower of any covenant, condition or agreement
contained in Section 6.01, 6.05(a), 6.08 or in Article VII;
(e) default shall be made in the due observance or performance by
any Loan Party or any of their respective Subsidiaries of any covenant,
condition or agreement contained in any Loan Document (other than those
defaults specified in paragraph (b), (c) or (d) above) and such default
shall continue unremedied for a period of 30 days after written notice
thereof from the Administrative Agent or any Lender to the Borrower;
(f) any Loan Party or any of their respective Subsidiaries shall
(i) fail to pay any principal or interest, regardless of amount, due in
respect of any Indebtedness in a principal amount in excess of
$5,000,000, when and as the same shall become due and payable (after
giving effect to any applicable grace period), or (ii) fail to observe
or perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such
Indebtedness (after giving effect to any applicable grace period), if
the effect of any failure referred to in this clause (ii) is to cause,
or to permit the holder or holders of such Indebtedness or a trustee on
its or their behalf to cause, such Indebtedness to become due prior to
its stated maturity;
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(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of SSCC, JSCE or the Borrower or any of
their respective Material Subsidiaries, or of a substantial part of the
property or assets of SSCC, JSCE or the Borrower or any such Material
Subsidiary, under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for SSCC, JSCE or the Borrower or any such Material Subsidiary
or for a substantial part of the property or assets of SSCC, JSCE or the
Borrower or any such Material Subsidiary or (iii) the winding-up or
liquidation of SSCC, JSCE or the Borrower or any such Material
Subsidiary; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) SSCC, JSCE or the Borrower or any of their respective
Material Subsidiaries shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition
described in paragraph (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for SSCC, JSCE or the Borrower or any such Material
Subsidiary or for a substantial part of the property or assets of SSCC,
JSCE or the Borrower or any such Material Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 in any one case or $15,000,000
in the aggregate in all such cases (in each case to the extent not
adequately covered by insurance as to which the insurance company has
acknowledged coverage pursuant to a writing reasonably satisfactory to
the Collateral Agent) shall be rendered against SSCC, JSCE or the
Borrower or any of their respective Subsidiaries or any combination
thereof and the same shall remain undischarged for a period of 10
consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of SSCC, JSCE or the Borrower or any Subsidiary to
enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make
a required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of SSCC,
JSCE or the Borrower or any of their respective Subsidiaries to the PBGC
or to a Plan in an aggregate amount exceeding $25,000,000 and, within 30
days after the reporting of any such Reportable Event to the
Administrative Agent pursuant to Section 6.06(b)(i)(A) or after the
receipt by the Administrative Agent of the statement required
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pursuant to Section 6.06(b)(iii), the Administrative Agent shall have
notified the Borrower in writing that (i) the Required Lenders have
reasonably determined that, on the basis of such Reportable Event or
Reportable Events or the failure to make a required payment, there are
reasonable grounds (A) for the termination of such Plan or Plans by the
PBGC, (B) for the appointment by the appropriate United States District
Court of a trustee to administer such Plan or Plans or (C) for the
imposition of a lien in favor of a Plan and (ii) as a result thereof an
Event of Default exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such Plan or Plans; or
the PBGC shall institute proceedings to terminate any Plan or Plans;
(k) (i) SSCC, JSCE or the Borrower or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii) SSCC,
JSCE or the Borrower or such ERISA Affiliate does not have reasonable
grounds for contesting such Withdrawal Liability or is not in fact
contesting such Withdrawal Liability in a timely and appropriate manner
and (iii) the amount of the Withdrawal Liability specified in such
notice, when aggregated with all other amounts required to be paid to
Multiemployer Plans in connection with Withdrawal Liabilities
(determined as of the date or dates of such notification), exceeds
$25,000,000;
(l) SSCC, JSCE or the Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if solely as a result of such
reorganization or termination the aggregate contributions of the
Borrower and its ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or have been or are being terminated have been or
will be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $25,000,000;
(m) there shall have occurred a Change in Control;
(n) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by SSCC, JSCE or the
Borrower or any Guarantor not to be, a valid, perfected, first priority
(except as otherwise expressly provided in this Agreement or such
Security Document) security interest in Collateral with a fair market
value or book value (whichever is greater) in excess, individually or in
the aggregate, of $35,000,000, except to the extent that any such loss
of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates representing securities
pledged under the Pledge Agreement or otherwise take any action within
its control (including the filing of Uniform Commercial Code
continuation statements);
(o) any Loan Document shall not be for any reason, or shall be
asserted by the Loan Party or any Guarantor party thereto (except as
otherwise expressly provided in this Agreement or such Loan Document)
not to be, in full force and effect and enforceable in all material
respects in accordance with its terms;
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(p) the Obligations and the Guarantees thereof pursuant to the
Guarantee Agreement shall cease to constitute, or shall be asserted by
any Loan Party (except as otherwise expressly provided in this Agreement
or such Loan Document) not to constitute, senior indebtedness under the
subordination provisions of any Subordinated Indebtedness, or any such
subordination provisions shall be invalidated or otherwise cease to be a
legal, valid and binding obligation of the parties thereto, enforceable
in accordance with its terms; or
(q) there shall be present on, at, or under any of the Mortgaged
Properties any Hazardous Materials that could reasonably be expected to
result in any liability or obligation under any Environmental Laws,
including costs of remediation, fines, penalties, natural resource
damages or other damages, in an aggregate amount in excess of
$50,000,000;
then, and in every such event (other than an event with respect to the Borrower
or any Guarantor described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may
and, at the request of the Required Lenders, shall, by notice to the Borrower,
take any of or all the following actions, at the same or different times: (i)
terminate forthwith the Commitments and the LC Commitment, (ii) declare the
Loans and the Swingline Loans then outstanding to be forthwith due and payable
in whole or in part, whereupon the principal of the Loans and the Swingline
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Loan Parties
accrued hereunder and under any other Loan Document, shall become forthwith due
and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by SSCC, JSCE and the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding and (iii) exercise any remedies available under any Loan
Document or otherwise; and in any event with respect to the Borrower or a
Guarantor described in paragraph (g) or (h) above, the Commitments and the LC
Commitment shall automatically terminate and the principal of the Loans and the
Swingline Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Loan Parties accrued
hereunder and under any other Loan Document, shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by SSCC, JSCE and the Borrower,
anything contained herein or in any other Loan Document to the contrary
notwithstanding.
ARTICLE IX
The Administrative Agent, the Collateral Agent,
the Senior Managing Agents and the Fronting Bank
In order to expedite the transactions contemplated by this Agreement,
(a) The Chase Manhattan Bank is hereby appointed to act as Administrative Agent
and Collateral Agent for the Fronting Bank, the Swingline Lender and the Lenders
and (b) Bankers Trust Company and The Chase Manhattan Bank are hereby appointed
to act as Senior Managing Agents on behalf of the Managing Agents
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and the Lenders (the Administrative Agent, the Collateral Agent,
the Senior Managing Agents and the Managing Agents for purposes of this Article
are collectively referred to as the "Agents"). Each of the Lenders, the Fronting
Bank and the Swingline Lender hereby irrevocably authorizes each Agent to take
such actions on their behalf and to exercise such powers as are specifically
delegated to such Agent by the terms and provisions hereof and of the other Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. The Administrative Agent is hereby expressly authorized by the Lenders,
the Fronting Bank and the Swingline Lender, without hereby limiting any implied
authority, (a) to receive all Loan Documents on the Closing Date, (b) to receive
on behalf of the Lenders, the Fronting Bank and the Swingline Lender all
payments of principal of and interest on the Loans and the Swingline Loans, all
payments in respect of LC Disbursements and all other amounts due to the
Lenders, the Fronting Bank and the Swingline Lender hereunder, and promptly to
distribute to each Lender, the Fronting Bank and the Swingline Lender its proper
share of each payment so received, (c) to give notice on behalf of each of the
Lenders to the Borrower of any Event of Default specified in this Agreement of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder and (d) to distribute to each Lender, the Fronting Bank and
the Swingline Lender copies of all notices, financial statements and other
materials delivered by the Loan Parties pursuant to this Agreement as received
by the Administrative Agent (including notices of an occurrence of any Event of
Default). The Administrative Agent and the Collateral Agent are hereby expressly
authorized to execute any and all documents (including releases) with respect to
the Collateral and the Program Receivables and the rights of the Secured Parties
with respect thereto, in each case as contemplated by and in accordance with the
terms and provisions of this Agreement and the Security Documents.
None of the Agents or the Fronting Bank or any of their respective
directors, officers, employees or agents shall be liable as such for any action
taken or omitted by any of them except for its, his or her own gross negligence
or wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Loan Parties or any Guarantor of any of the
terms, conditions, covenants or agreements contained in any Loan Document. The
Agents shall not be responsible to the Lenders or the Fronting Bank or the
Swingline Lender for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement, any other Loan Document or any other
instruments or agreements. The Administrative Agent and the Collateral Agent
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (and the
Fronting Bank, with respect to Letters of Credit) and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders, the Fronting Bank and the
Swingline Lender. The Administrative Agent and the Collateral Agent shall, in
the absence of knowledge to the contrary, be entitled to rely on any instrument
or document believed by them in good faith to be genuine and correct and to have
been signed or sent by the proper Person or Persons. None of the Agents or the
Fronting Bank or any of their respective directors, officers, employees or
agents shall have any responsibility to the Loan Parties on account of the
failure of or delay in performance or breach by any Lender (or, in the case of
the Agents, by the Fronting Bank or the Swingline Lender) of any of its
obligations hereunder or to any Lender (or, in the case of the Agents, the
Fronting Bank
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or the Swingline Lender) on account of the failure of or delay in performance or
breach by any other Lender (or, in the case of the Agents, the Fronting Bank or
the Swingline Lender) or the Loan Parties or any Guarantor of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each Agent and the Fronting Bank may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by any of them with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by any of them in accordance with the advice of
such counsel.
The Lenders, the Fronting Bank and the Swingline Lender hereby
acknowledge that none of the Agents or the Fronting Bank shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, any Agent may resign at any time by notifying the Lenders, the
Fronting Bank, the Swingline Lender and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a Lender as the successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the Lenders
and the Fronting Bank, appoint a successor Agent, which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any Agent's resignation hereunder, the provisions
of this Article and Section 10.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent and the
Fronting Bank, in its individual capacity and not as Agent or Fronting Bank, as
the case may be, shall have the same rights and powers as any other Lender and
may exercise the same as though it were not an Agent or the Fronting Bank, as
the case may be, and each Agent and its Affiliates and the Fronting Bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Loan Parties or any of their respective Subsidiaries
or other Affiliates as if it were not an Agent or the Fronting Bank, as the case
may be.
Each Lender agrees (a) to reimburse each Agent and the Fronting Bank, on
demand, in the amount of such Lender's pro rata share (based on its Commitment
hereunder) of any expenses incurred for the benefit of the Lenders by such Agent
or the Fronting Bank, including fees, disbursements and other charges of counsel
and compensation of agents paid for services rendered on behalf of the Lenders,
that shall not have been reimbursed by the Loan Parties and (b) to indemnify and
hold harmless each Agent and the Fronting Bank and any of their respective
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as an Agent or the Fronting Bank, as
the case may be, or any of them in any
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way relating to or arising out of this Agreement or any other Loan Document or
any action taken or omitted by it or any of them under this Agreement or any
other Loan Document, to the extent the same shall not have been reimbursed by
the Loan Parties, provided that (i) no Lender shall be liable to any Agent or
the Fronting Bank for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of such Agent or the
Fronting Bank, as the case may be, or any of their respective directors,
officers, employees or agents and (ii) each Lender that does not have a
Revolving Credit Commitment (other than through the termination thereof) shall
be under no obligation to reimburse or indemnify the Fronting Bank under clauses
(a) and (b) above.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents, any other Lender, the Fronting Bank or the Swingline Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents,
any other Lender, the Fronting Bank or the Swingline Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
None of the Managing Agents shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders in such capacity. Without limiting the foregoing, none
of the Managing Agents shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, upon any of the Managing Agents in deciding to enter into
this Agreement or in taking or not taking action hereunder or under any other
Loan Document.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except as otherwise expressly permitted herein,
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed or sent by
telecopy, as follows:
(a) If to either SSCC or JSCE, to it in care of Jefferson Smurfit
Corporation (U.S.), Jefferson Smurfit Centre, 8182 Maryland Avenue, St.
Louis, MO 63105, Attention of Treasurer (Telecopy No. (314) 746-1281);
with a copy to Jefferson Smurfit Group plc, Beech Hill, Clonskeagh,
Dublin 4, Ireland, Attention of Treasurer (Telecopy No. (011-353)
1269-4481);
(b) If to the Borrower, to it at Jefferson Smurfit Centre, 8182
Maryland Avenue, St. Louis, MO 63105, Attention of Treasurer (Telecopy
No. (314) 746-1281);
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(c) If to BTCo, as Senior Managing Agent, to it at 233 South
Wacker Drive (84th Floor), Chicago, IL 60606, Attention of Loretta
Summers and Albert Chung (Telecopy No.
(312) 993-8218);
(d) If to Chase, as Administrative Agent, Collateral Agent,
Swingline Lender or Senior Managing Agent, to it at 10 South LaSalle
Street (23rd Floor), Chicago, IL 60603- 1907, Attention of Jonathan
Twichell (Telecopy No. (312) 807-4550); with a copy to The Chase
Manhattan Bank, Loan and Agency Services Group, One Chase Manhattan
Plaza, 8th Floor, New York, New York 10081, Attention of Janet Belden
(Telecopy No. (212) 552-5658);
(e) If to the Fronting Bank, at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto; and
(f) If to a Lender, at its address (or telecopy number) set forth
on Schedule 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy, or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01. The Administrative Agent shall deliver to the Borrower a copy of
each Administrative Questionnaire received by it.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Loan Party herein and by the Loan
Parties and the Guarantors in the certificates or other instruments prepared or
delivered in connection with or pursuant to the Existing Credit Agreement, this
Agreement or any other Loan Document shall be considered to have been relied
upon by the Lenders, the Fronting Bank and the Swingline Lender and shall
survive the making by the Lenders of the Loans, the making by the Swingline
Lender of the Swingline Loans and the issuance of Letters of Credit by the
Fronting Bank, regardless of any investigation made by the Lenders, the Fronting
Bank or the Swingline Lender or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or Swingline Loan or any Fee or any other amount payable under this Agreement or
any other Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments and the LC Commitment have not been
terminated.
SECTION 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Senior Managing Agents and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of SSCC, JSCE and the
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Borrower, the Administrative Agent, the Senior Managing Agents, the Fronting
Bank, the Swingline Lender and each Managing Agent and Lender and their
respective successors and assigns, except that none of SSCC, JSCE or the
Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior consent of all the Lenders (and any attempted
assignment by any such Person shall be void).
SECTION 10.04. Successors and Assigns. (a) Subject to Section 10.03,
whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of SSCC, JSCE and the
Borrower, the Senior Managing Agents, the Administrative Agent, the Fronting
Bank, the Swingline Lender, the Managing Agents or the Lenders that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
(b) Each Lender may assign to one or more assignees (treating any
fund that invests in bank loans and any other fund that invests in bank loans
and is managed by the same investment advisor of such fund or by an Affiliate of
such investment advisor as a single assignee), including an Affiliate thereof,
all or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitments and LC Commitment, the
outstanding Letters of Credit and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender, an Affiliate
of the assigning Lender or, in the case of any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
by the same investment advisor of the assigning Lender or by an Affiliate of
such investment advisor, each of the Administrative Agent and the Borrower (and,
in the case of an assignment of a Lender's Revolving Credit Commitment, the
Swingline Lender and the Fronting Bank) must give its prior written consent to
such assignment (which consent shall not be unreasonably withheld), provided
that the consent of the Borrower shall not be required if a Default or an Event
of Default under paragraph (b), (c), (g) or (h) of Article VIII has occurred and
is continuing on the date of the Assignment and Acceptance, (ii) the
Administrative Agent must give notice to BTCo of any assignment (including an
assignment to a Lender or an Affiliate of a Lender), provided that the failure
of the Administrative Agent to give notice to BTCo of any such assignment shall
not affect the validity of such assignment, (iii) except in the case of an
assignment to a Lender, an Affiliate of the assigning Lender or, in the case of
a Lender that is a fund that invests in bank loans, any other fund that invests
in bank loans managed by the same investment advisor or an Affiliate of the
investment advisor, the amount of the Commitment of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or an amount equal to the remaining balance of such
Lender's Commitment), (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, and a
processing and recordation fee of $3,500 and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five Business Days after
the execution thereof and in no event shall precede the date of such recording,
(i) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, shall have the rights and
obligations of a Lender under
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this Agreement and (ii) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto, but shall continue to be entitled to the benefits of Sections 2.14,
2.16, 2.20 and 10.05, as well as to any Fees accrued for its account and not yet
paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment and LC Commitment, and the outstanding balances of its Term Loans
and Revolving Loans, in each case without giving effect to assignments thereof
that have not become effective, are as set forth in such Assignment and
Acceptance; (ii) except as set forth in clause (i) above, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto, or the financial
condition of the Loan Parties or the performance or observance by the Loan
Parties of any of their obligations under this Agreement or under any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of any amendments or
consents entered into prior to the date of such Assignment and Acceptance and
copies of the most recent financial statements delivered pursuant to Section
6.04 and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent, the Senior Managing Agents, the Managing Agents and the Collateral Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent, the Senior Managing
Agent, the Managing Agents and the Collateral Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
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(d) The Administrative Agent, acting for this purpose as agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments and
LC Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and SSCC, JSCE
and the Borrower, the Administrative Agent, the Fronting Bank, the Swingline
Lender and the Lenders shall treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by SSCC, JSCE, the Borrower, the Fronting Bank, the
Swingline Lender and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, together with an
Administrative Questionnaire completed in respect of the assignee (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and the written consent (to the extent
required under paragraph (b) above), of the Administrative Agent, the Borrower
and/or the Swingline Lender and the Fronting Bank to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance and (ii)
record the information contained therein in the Register. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).
(f) Each Lender may, without the consent of SSCC, JSCE, the
Borrower, the Administrative Agent, the Fronting Bank or the Swingline Lender,
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.14, 2.16, 2.20 and 10.05 to the same extent as if they were Lenders,
provided that, except as expressly provided in Section 2.20(a), the Borrower
shall not be required to reimburse the participating lenders or other entities
pursuant to Section 2.14, 2.16, 2.20 or 10.05 in an amount in excess of the
amount that would have been payable thereunder to such Lender had such Lender
not sold such participation, and (iv) SSCC, JSCE, the Borrower, the
Administrative Agent, the Senior Managing Agents, the Managing Agents, the
Fronting Bank, the Swingline Lender and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Loan Parties under the Loan Documents and to
approve any amendment, modification or waiver of any provision of this Agreement
(provided that the participating bank or other entity may be provided with the
right to approve amendments, modifications or waivers affecting it with respect
to (w) any decrease in the Fees payable hereunder with respect to Loans in which
the participating bank or other entity has purchased a participation,
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(x) any change in the amount of principal of, or decrease in the rate at which
interest is payable on, the Loans in which the participating bank or other
entity has purchased a participation, (y) any extension of the final scheduled
maturity of any Loan in which the participating bank or other entity has
purchased a participation or (z) any release of all or substantially all the
Collateral).
(g) Notwithstanding the limitations set forth in paragraph (b)
above, (i) any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank without the prior written consent
of the Borrower, the Administrative Agent, the Fronting Bank or the Swingline
Lender and (ii) any Lender which is a fund may pledge all or any portion of its
rights under this Agreement to its trustee in support of its obligations to its
trustee without the prior written consent of the Borrower, the Fronting Banks or
the Swingline Lender, provided that no such assignment pursuant to clause (i) or
(ii) shall release a Lender from any of its obligations hereunder or substitute
any such Bank or trustee for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal Reserve Bank or trustee , the
Borrower shall, at the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing the Loans made to
the Borrower by the assigning Lender hereunder.
(h) Except as provided in Section 3.10 and Section 2.22,
respectively, neither the Fronting Bank nor the Swingline Lender may assign or
delegate any of its respective rights and duties hereunder without the prior
written consent of the Borrower and the Senior Managing Agents.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses incurred by the Administrative Agent, the Senior Managing
Agents, the Fronting Bank, the Swingline Lender and the Collateral Agent in
connection with the preparation of this Agreement and the other Loan Documents
or in connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Administrative Agent, the Senior Managing
Agents, the Managing Agents, the Fronting Bank, the Swingline Lender, the
Collateral Agent or any Lender in connection with the enforcement or protection
of their rights in connection with this Agreement and the other Loan Documents
or in connection with the Loans made or the Letters of Credit issued hereunder,
including the reasonable fees, disbursements and other charges of Winston &
Strawn, counsel for the Administrative Agent, the Collateral Agent and the
Senior Managing Agents, and, in connection with any such enforcement or
protection, the reasonable fees, disbursements and other charges of any other
counsel (including allocated costs of internal counsel) for the Administrative
Agent, the Senior Managing Agents, the Managing Agents, the Fronting Bank, the
Swingline Lender, the Collateral Agent or any Lender. The Borrower further
agrees to indemnify the Administrative Agent, the Senior Managing Agents, the
Managing Agents, the Fronting Bank, the Swingline Lender, the Collateral Agent
and the Lenders from, and hold them harmless against, any documentary taxes,
assessments or similar charges made by any Governmental Authority by reason of
the execution and delivery of this Agreement or any of the other Loan Documents.
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(b) The Borrower agrees to indemnify the Administrative Agent,
the Senior Managing Agents, the Managing Agents, the Collateral Agent, the
Fronting Bank, the Swingline Lender and each Lender and each of their respective
directors, officers, employees and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, disbursements and other charges, incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document, any
Transaction Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions, the
Restatement Date Transactions and the other transactions contemplated hereby or
thereby, (ii) the use of the Letters of Credit or the proceeds of the Loans and
the Swingline Loans or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans or the Swingline Loans, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent,
the Senior Managing Agents, the Managing Agents, the Fronting Bank, the
Collateral Agent, the Swingline Lender or any Lender. All amounts due under this
Section 10.05 shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized, in addition to any
other right or remedy that any Lender may have by operation of law or otherwise,
at any time and from time to time, without notice to the Borrower (any such
notice being expressly waived by the Borrower), to exercise its banker's lien or
right of setoff and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of any Loan Party
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement and other Loan Documents held by such Lender, irrespective
of whether such Lender shall have made any demand under this Agreement or such
other Loan Document and although such obligations may be unmatured.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN THE MORTGAGES) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 10.08. Waivers; Amendment. (a) No failure or delay on the part
of the Administrative Agent, either Senior Managing Agent, the Managing Agents,
the Fronting Bank, the Swingline Lender, the Collateral Agent or any Lender in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuation of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Senior
Managing Agents, the Managing Agents, the Fronting Bank, the Swingline Lender,
the Collateral Agent and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Loan Parties therefrom
shall in any event be effective unless the same shall be permitted by paragraphs
(b) or (c) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on
the Loan Parties in any case shall entitle the Loan Parties to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement or any of the other Loan Documents nor
any provision hereof or thereof may be waived, amended or modified except (i) in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by JSC, JSCE, the Borrower and the Required Lenders, (ii) in the
case of the Guarantee Agreement, pursuant to an agreement or agreements in
writing entered into by the Guarantors and the Collateral Agent and consented to
by the Required Lenders, (iii) in the case of any of the Security Documents,
pursuant to an agreement or agreements in writing entered into by the parties
thereto and consented to by the Required Lenders or (iv) in the case of a Letter
of Credit, pursuant to an agreement or agreements entered into by the Borrower
and the Fronting Bank; provided, however, that no such agreement shall (A)
change the principal amount of any Loan, extend the final scheduled maturity of
any Loan, extend the scheduled date for payment of interest on any Loan, forgive
any such payment or any part thereof or reduce the rate of interest on any Loan,
in each case without the prior written consent of each Lender affected thereby,
(B) increase the amount or extend the termination date of the Commitment or the
LC Commitment or reduce or extend the date for payment of the Fees of any
Lender, in each case without the prior written consent of such Lender, (C) amend
or modify the pro rata requirements of Section 2.17, the provisions of Section
10.03, the provisions of this Section 10.08(b) or the definition of the term
"Required Lenders" without the prior written consent of each Lender, (D) release
all or substantially all the Collateral, except as expressly permitted by the
Security Documents or this Agreement, without the prior written consent of each
Lender, (E) reduce any Tranche A Term Loan Repayment Amount or extend any
Tranche A Term Loan Repayment Date (other than the Tranche A Maturity Date), in
each case without the prior written consent of Lenders holding Tranche A Term
Loans representing at least 75% of the aggregate outstanding principal amount of
the Tranche A Term Loans, (F) reduce any Tranche B Term Loan Repayment Amount or
extend any Tranche B Term Loan Repayment Date (other than the Tranche B Maturity
Date), in each case without the prior written consent of Lenders holding at
least 75% of the aggregate outstanding principal amount of the Tranche B Term
Loans, (G) change the allocation of prepayments to be made pursuant to Section
2.12(b) or 2.13(d) or (i) without the prior written consent of (1) Lenders
holding more than 50% of the aggregate outstanding principal amount of the
Tranche A Term Loans and (2) Lenders holding
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more than 50% of the aggregate outstanding principal amount of the Tranche B
Term Loans, (H) change the application of prepayments of Tranche A Term Loans
pursuant to Section 2.12(b) or 2.13(d) or (i) without the prior written consent
of Lenders holding Tranche A Term Loans representing more than 50% of the
aggregate outstanding principal amount of the Tranche A Term Loans or (I) change
the application of prepayments of Tranche B Term Loans pursuant to Section
2.12(b) or 2.13(d) or (i) without the prior written consent of Lenders holding
more than 50% of the aggregate outstanding principal amount of the Tranche B
Term Loans; and provided further, that (I) no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent, the Fronting Bank or the Swingline Lender hereunder without
the prior written consent of the Administrative Agent, the Collateral Agent, the
Fronting Bank or the Swingline Lender, respectively, (II) any agreement
described in clause (E), (F), (G), (H) or (I) above that is consented to by the
requisite Lenders as provided therein shall be effective as to the matters
described in such clauses even if it shall not have been consented to by the
Required Lenders and (III) no such agreement shall release any Guarantor from
its obligations under the Guarantee Agreement, without the prior written consent
of Lenders holding Loans, a share of the used LC Commitments and unused
Commitments representing at least 75% of the sum of (x) the aggregate principal
amount of the Loans, (y) the LC Exposure and (z) the aggregate unused
Commitments.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges that are treated as interest under applicable law
(collectively, the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender or the Swingline Lender, shall exceed the
maximum lawful rate (the "Maximum Rate") that may be contracted for, charged,
taken, received or reserved by such Lender or the Swingline Lender in accordance
with applicable law, the rate of interest payable to such Lender or the
Swingline Lender hereunder, together with all Charges payable to such Lender or
the Swingline Lender, shall be limited to the Maximum Rate.
SECTION 10.10. Entire Agreement. This Agreement, the other Loan
Documents and any separate letter agreements with respect to fees payable to the
Administrative Agent or the Senior Managing Agents constitute the entire
contract between the parties relative to the subject matter hereof. Any previous
agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 10.11. Waiver of Jury Trial. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Agreement or any of the other Loan Documents.
Each party hereto (a) certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such other party would
not, in the event of litigation, seek to enforce the foregoing waiver and (b)
acknowledges that it and the other parties hereto have been induced to enter
into this Agreement and the
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other Loan Documents, as applicable, by, among other things, the mutual waivers
and certifications in this Section 10.11.
SECTION 10.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in two or
more counterparts or counterpart signature pages, each of which shall constitute
an original but all of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 10.03.
SECTION 10.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Confidentiality. (a) Each Lender agrees not to disclose
to any Person the Information (as defined below) in accordance with such
Lender's customary procedures for non- disclosure of confidential information of
third parties of this nature and in accordance with safe and sound lending
practices without the prior written consent of the Borrower, which consent shall
not be unreasonably withheld, except that any Lender shall be permitted to
disclose Information (i) to its and its Affiliates' officers, directors,
employees, agents and representatives (including its auditors and counsel) or to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees in
writing to be bound by the provisions of this Section 10.15); (ii) to the extent
(A) required by applicable laws and regulations or by any subpoena or similar
legal process or (B) requested or required by any regulatory authority or The
National Association of Insurance Commissioners or any similar organization, or
any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio; (iii) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Agreement,
(B) becomes available to such Lender on a non-confidential basis from a source
other than a Loan Party or its Affiliates or (C) was available to such Lender on
a non-confidential basis prior to its disclosure to such Lender by a Loan Party
or its Affiliates; (iv) to any actual or prospective assignee of, or prospective
purchaser of a participation in, the rights of such Lender hereunder, in each
case subject to paragraph (c) below; or (v) in connection with any suit, action
or
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proceeding relating to the enforcement of rights hereunder or under any other
Loan Document or in connection with the transactions contemplated hereby. As
used in this Section 10.15, as to any Lender, the term "Information" shall mean
the Confidential Information Memorandum and any other materials, documents and
information that SSCC, JSCE or the Borrower, or any of their Affiliates may have
furnished or may hereafter furnish to any Lender in connection with this
Agreement.
(b) Each Lender agrees that it will use the Information only for
purposes related to the transactions contemplated hereby and by the other Loan
Documents, provided that (i) if the conditions referred to in any of subclauses
(A) through (C) of clause (iii) of paragraph (a) above are met, such Lender may
otherwise use the Information and (ii) if such Lender or any of its Affiliates
is otherwise a creditor of a Loan Party, such Lender or any such Affiliate may
use the Information in connection with its other credits to such Loan Party.
(c) Each Lender agrees that it will not disclose any of the
Information to any actual or prospective assignee of such Lender or participant
in any rights of such Lender under this Agreement unless such actual or
prospective assignee or participant first executes and delivers to such Lender
or the Borrower a confidentiality letter containing substantially the
undertakings set forth in this Section 10.15.
SECTION 10.16. Jurisdiction; Consent to Service of Process. (a) Each of
SSCC, JSCE and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Loan Party or
its properties in the courts of any jurisdiction.
(b) Each of SSCC, JSCE and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
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<PAGE>
SECTION 10.17. Receivables Program. The Lenders hereby acknowledge and
agree that the transfer of Program Receivables by SNC to the Borrower, and the
transfer of Program Receivables by the Borrower to JSF pursuant to the
Receivables Program, constitute true and valid sales for consideration (or, in
the case of Program Receivables contributed by the Borrower to JSF,
contributions for consideration), and not a borrowing by the Borrower or SNC
from JSF secured by such Program Receivables.
SECTION 10.18. Florida Real Property. The parties hereto hereby
acknowledge that the Revolving Loans are secured by real and personal property
located both inside and outside the State of Florida and hereby agree that for
purposes of calculating intangible taxes due under Section 199.133, Florida
Statutes, the first amounts advanced under the Revolving Facility shall be
deemed to be the portion allocable to the Collateral consisting of Real Property
located in the State of Florida, and such portion allocable to such Collateral
shall also be deemed to be the last to be repaid under the terms hereof. Nothing
herein shall limit the Secured Parties' right to recover or realize from the
Collateral located in the State of Florida amounts in excess of that allocated
to the Revolving Loans or to apply amounts so recovered or realized against the
Secured Obligations in such order as the Collateral Agent in its sole discretion
shall determine.
SECTION 10.19. Effect of Restatement. This Agreement shall, except as
otherwise expressly set forth herein, supersede the Existing Credit Agreement
from and after the Restatement Date with respect to the transactions hereunder
and with respect to the Loans and Letters of Credit outstanding under the
Existing Credit Agreement as of Restatement Date. The parties hereto acknowledge
and agree, however, that (i) this Agreement and all other Loan Documents
executed and delivered herewith do not constitute a novation, payment and
reborrowing or termination of the Obligations under the Existing Credit
Agreement and the other Loan Documents as in effect prior to the Restatement
Date, (ii) such Obligations are in all respects continuing with only the terms
being modified as provided in this Agreement and the other Loan Documents, (iii)
the liens and security interests in favor of the Collateral Agent for the
benefit of the Secured Parties securing payment of such Obligations are in all
respects continuing and in full force and effect with respect to all Obligations
and (iv) all references in the other Loan Documents to this Agreement shall be
deemed to refer without further amendment to this Agreement.
SECTION 10.20. Certain Relationships. Nothing contained in this
Agreement and no action taken by the Senior Managing Agents, the Administrative
Agent or any Lender pursuant hereto shall be deemed to constitute the Senior
Managing Agents, the Administrative Agent or the Lenders a partnership, an
association, a joint venture or other entity. Neither the Administrative Agent,
any Managing Agent nor any Lender has any fiduciary relationship with or any
fiduciary duty to the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the
Administrative Agent, Managing Agents and the Lenders, on the one hand and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor.
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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/ Charles A. Hinrichs
--------------------------------------
Name: Charles A. Hinrichs
Title: Vice President and Treasurer
JEFFERSON SMURFIT CORPORATION (U.S.)
By: /s/ Charles A. Hinrichs
--------------------------------------
Name: Charles A. Hinrichs
Title: Vice President and Treasurer
JSCE, INC.
By: /s/ Charles A. Hinrichs
--------------------------------------
Name: Charles A. Hinrichs
Title: Vice President and Treasurer
BANKERS TRUST COMPANY,
individually and as Fronting Bank and Senior
Managing Agent
By: /s/ Robert T. Telesca
--------------------------------------
Name: Robert T. Telesca
Title: Assistant Vice President
<PAGE>
<PAGE>
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent, Collateral Agent and
Senior Managing Agent
By: /s/ Jonathan Twichell
--------------------------------------
Name: Jonathan Twichell
Title: Vice President
AG CAPITAL FUNDING PARTNERS, L.P.
By: Angelo, Gordon & Co., L.P. as Investment
Adviser
By: /s/ Jeffrey H. Aronson
--------------------------------------
Name: Jeffrey H. Aronson
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Michael L. Short
--------------------------------------
Name: Michael L. Short
Title: Senior Vice President
BANK OF IRELAND
By: /s/ F. McDonald
--------------------------------------
Name: F. McDonald
Title: Manager
<PAGE>
<PAGE>
BANK OF MONTREAL
By: /s/ Peter Konigsmann
--------------------------------------
Name: Peter Konigsmann
Title: Director
THE BANK OF NEW YORK
By: /s/ John C. Lambert
--------------------------------------
Name: John C. Lambert
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
--------------------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
BANKBOSTON, N.A.
By: /s/ Gregory R. D. Clark
--------------------------------------
Name: Gregory R. D. Clark
Title: Managing Director
CIBC Inc.
By: /s/ Howard Palmer
--------------------------------------
Name: Howard Palmer
Title: Executive Director
CIBC Oppenheimer Corp., as Agent
<PAGE>
<PAGE>
CHRISTIANIA BANK
By: /s/ Carl Petter Svendsen
--------------------------------------
Name: Carl Petter Svendsen
Title: Senior Vice President
By: /s/ Peter M. Dodge
--------------------------------------
Name: Peter M. Dodge
Title: Senior Vice President
CITIBANK, N.A.
By: /s/ Mark Stanfield Packard
--------------------------------------
Name: Mark Stanfield Packard
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/ Sean Mounier
--------------------------------------
Name: Sean Mounier
Title: First Vice President
By: /s/ Anthony Rock
--------------------------------------
Name: Anthony Rock
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Vladimir Labun
--------------------------------------
Name: Vladimir Labun
Title: First Vice President -- Manager
<PAGE>
<PAGE>
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc., its Managing Member
By: /s/ Peter K. Merrill
--------------------------------------
Name: Peter K. Merrill
Title: Managing Director
DELANO COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By: PIMCO Management Inc.,
a general partner
By: /s/ Bradley W. Paulson
--------------------------------------
Name: Bradley W. Paulson
Title: Vice President
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ John W. Sweeney
--------------------------------------
Name: John W. Sweeney
Title: Assistant Vice President
By: /s/ Beverly G. Cason
--------------------------------------
Name: Beverly G. Cason
Title: Vice President
<PAGE>
<PAGE>
FIRST DOMINION FUNDING I
By: /s/ Andrew H. Marshak
--------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ William J. Oleferchik
--------------------------------------
Name: William J. Oleferchik
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Charles W. Lockyer
--------------------------------------
Name: Charles W. Lockyer
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By: /s/ Chauncey Lufkin
--------------------------------------
Name: Chauncey Lufkin
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By: /s/ Teiji Teramoto
--------------------------------------
Name: Teiji Teramoto
Title: Vice President & Manager
<PAGE>
<PAGE>
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Janet K. Williams
--------------------------------------
Name: Janet K. Williams
Title: Duly Authorized Signatory
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: /s/ Takuya Honjo
--------------------------------------
Name: Takuya Honjo
Title: Senior Vice President
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as
Collateral Manager
By: /s/ Jane Musser Nelson
--------------------------------------
Name: Jane Musser Nelson
Title: Senior Vice President
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING Capital Advisors Inc., as Investment
Advisor
By: /s/ Jane Musser Nelson
--------------------------------------
Name: Jane Musser Nelson
Title: Senior Vice President
<PAGE>
<PAGE>
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, L.D.C.
By: ING Capital Advisors, Inc., as
Investment Advisor
By: /s/ Jane Musser Nelson
--------------------------------------
Name: Jane Musser Nelson
Title: Senior Vice President
ARCHIMEDES II FUNDING L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Agent
By: /s/ Jane Musser Nelson
--------------------------------------
Name: Jane Musser Nelson
Title: Senior Vice President
KZH ING-2 LLC
By: /s/ James Westerhaus
--------------------------------------
Name: James Westerhaus
Title: Authorized Agent
KZH III LLC
By: /s/ Shari Finkelstein
--------------------------------------
Name: Shari Finkelstein
Title: Authorized Agent
<PAGE>
<PAGE>
KZH CRESCENT-2 LLC
By: /s/ Shari Finkelstein
--------------------------------------
Name: Shari Finkelstein
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Shari Finkelstein
--------------------------------------
Name: Shari Finkelstein
Title: Authorized Agent
KZH SHOSHONE LLC
By: /s/ Virginia Conway
--------------------------------------
Name: Virginia Conway
Title: Authorized Agent
THE LONG TERM CREDIT BANK OF JAPAN,
LTD.
By: /s/ Armund J. Schoen, Jr.
--------------------------------------
Name: Armund J. Schoen, Jr.
Title: Senior Vice President
MEESPIERSON CAPITAL CORP
By: /s/ Eugene J. Oliva
--------------------------------------
Name: Eugene J. Oliva
Title: AVP Meespierson Capital Corp.
<PAGE>
<PAGE>
By: /s/ Hendrik J. Vroege
--------------------------------------
Name: Hendrik J. Vroege
Title: Vice President
MERRILL LYNCH GLOBAL
INVESTMENT SERIES: INCOME
STRATEGIES PORTFOLIO
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE
PORTFOLIO
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
<PAGE>
<PAGE>
MERRILL LYNCH DEBT STRATEGIES PORTFOLIO
By: Merrill Lynch Asset Management, L.P.
as Investment Advisor
By: /s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ Gerald S. Kirk
--------------------------------------
Name: Gerald S. Kirk
Title: Assistant Vice President
THE MITZUBISHI TRUST AND BANKING CORPORATION
By: /s/ Beatrice E. Kossodo
--------------------------------------
Name: Beatrice E. Kossodo
Title: Senior Vice President
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Michael T. McLaughlin
--------------------------------------
Name: Michael T. McLaughlin
Title: Principal
<PAGE>
<PAGE>
NATIONSBANK N.A.
By: /s/ Michael L. Short
--------------------------------------
Name: Michael L. Short
Title: Senior Vice President
OCTAGON LOAN TRUST
By: Octagon Credit Investors as Manager
By: /s/ Joyce C. DeLucca
--------------------------------------
Name: Joyce C. DeLucca
Title: Managing Director
OSPREY INVESTMENTS PORTFOLIO
By: /s/ Hans L. Christensen
--------------------------------------
Name: Hans L. Christensen
Title: Vice President
PACIFICA PARTNERS I, L.P.
By: /s/ Michael J. Bacevich
--------------------------------------
Name: Michael J. Bacevich
Title: Senior Vice President
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS,
INC., as its Investment Manager
By: /s/ Michel Prince
--------------------------------------
Name: Michel Prince
Title: CFA - Vice President
<PAGE>
<PAGE>
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Thomas J. Cecka
--------------------------------------
Name Thomas J. Cecka
Title: Vice President
THE SAKURA BANK, LIMITED, NEW YORK
By: /s/ Yoshikazu Nagura
--------------------------------------
Name: Yoshikazu Nagura
Title: Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Stanley Kaminski
--------------------------------------
Name: Stanley Kaminski
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
Title: Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Eric Bellaiche
--------------------------------------
Name: Eric Bellaiche
Title: Director
<PAGE>
<PAGE>
SPS TRADES
By: Chase Securities, Inc.
as Agent for Chase Manhattan Bank
By: /s/ Jonathan Twichell
--------------------------------------
Name: Jonathan Twichell
Title: Vice President
CAPTIVA FINANCE LTD.
By: /s/ John H. Cullinane
--------------------------------------
Name: John H. Cullinane
Title: Director
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company
Its Investment Manager
By: /s/ Justin L. Driscoll
--------------------------------------
Name: Justin L. Driscoll
Title: Senior Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Azar S. Azarpour
--------------------------------------
Name: Azar S. Azarpour
Title: Vice President
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Perry Vavoules
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Name: Perry Vavoules
Title: Senior Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Robert M. Mills
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Name: Robert M. Mills
Title: Investment Officer
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SMURFIT-STONE CONTAINER CORPORATION
1998 LONG TERM INCENTIVE PLAN
(Amended and Restated as of November 23, 1998)
SECTION 1. Purpose.
The purposes of this Smurfit-Stone Container Corporation 1998 Long Term
Incentive Plan (the "Plan") are to promote the interest of Smurfit-Stone
Container Corporation (the "Company") and its shareholders by (i) attracting and
retaining officers, key employees or directors of the Company and its
Affiliates, (ii) motivating such employees or directors by means of
performance-related incentives to achieve longer-range performance goals, and
(iii) enabling such employees or directors to participate in the long-term
growth and financial success of the Company.
SECTION 2. Definitions.
As used in the Plan, the following terms shall have the meanings set
forth below:
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by the Company and (ii) any entity in which the Company has a
significant equity interest, in either case as determined by the Committee.
"Award" shall mean any Option or Performance Award.
"Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Committee" shall mean the Compensation Committee of the Board or any
one or more other committees of the Board, which in any case have been
designated by the Board to administer the Plan. In the absence of any such
delegation to the Compensation or other committee, references herein to the
Committee shall refer to the Board.
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"Common Stock" shall mean the Company's common stock, par value $.01 per
share.
"Director" shall mean any member of the Board.
"Employee" shall mean (i) an officer or employee of the Company or of
any Affiliate, or (ii) an advisor or consultant to the Company or to any
Affiliate, in each case as determined by the Committee.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, as of any given date and except as
otherwise expressly provided by the Committee: (i) with respect to a Share, the
closing price of a Share on the Nasdaq National Market on the last preceding day
on which a sale of shares occurred; and (ii) with respect to any other property,
the fair market value of such property as determined by the Committee in its
sole discretion.
"Non-Employee Director" shall mean a member of the Board who is not an
officer or employee of the Company or of any of its subsidiaries.
"Option" shall mean an option granted under of the Plan.
"Participant" shall mean any Employee or Director granted an Award under
the Plan.
"Performance Award" shall mean any right granted under Section 6(b) of
the Plan.
"Person" shall mean any individual, corporation, company, association,
joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.
"Restoration Option" shall mean an Option described in Section 6(a)(iv)
of the Plan.
"Share" shall mean one share of Common Stock.
"Substitute Awards" shall mean Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired by
the Company or its Affiliate, or with which the Company or its Affiliate
combines.
SECTION 3. Administration.
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(a) Authority of Committee. The Plan shall be administered by the
Committee. Subject to the terms of the Plan and applicable law, in addition to
other express powers and authorizations conferred on the Committee by the Plan,
and except as otherwise limited by the Board, the Committee shall have full
power and authority to (i) designate Participants; (ii) determine the type or
types of Awards to be granted to an eligible Employee or, subject to Section
3(b), Director; (iii) determine the number of Shares to be covered by, or with
respect to which payments, rights, or other matters are to be calculated in
connection with, Awards; (iv) determine the terms and conditions of any Award;
(v) determine whether, to what extent, and under what circumstances Awards may
be exercised, canceled, forfeited, or suspended and the method or methods by
which Awards may be exercised, canceled, forfeited, or suspended; (vi) determine
whether, to what extent, and under what circumstances Shares, other securities,
other Awards, other property and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the holder thereof
or of the Committee; (vii) interpret and administer the Plan and any instrument
or agreement relating to, or Award made under, the Plan; (viii) establish,
amend, suspend, or waive such rules and regulations and appoint such agents as
it shall deem appropriate for the proper administration of the Plan; and (ix)
make any other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan.
(b) Grants of Awards to Non-Employee Directors. Notwithstanding the
provisions of Section 3(a), grants of Awards to Non-Employee Directors must be
approved by the Board.
(c) Committee Discretion Binding. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the sole
discretion of the Committee, may be made at any time and shall be final,
conclusive, and binding upon all Persons, including the Company, any Affiliate,
any Participant, any holder or beneficiary of any Award, any Shareholder and any
Employee or, subject to Section 3(b), Director.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section 4(b)
and (c), the number of Shares with respect to which Awards may be granted under
the Plan shall be 8,500,000. No individual may be granted in any calendar year
Awards covering more than 2,000,000 Shares.
(b) Adjustments. If, after the effective date of the Plan, any Shares
covered by an Award granted under the Plan or by an award granted under any
prior equity award plan of the Company, or to which such an Award or award
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relates, are forfeited, or if such an Award or award terminates or is canceled
without the delivery of Shares, then the Shares covered by such Award or award,
or to which such Award or award relates, or the number of Shares otherwise
counted against the aggregate number of Shares with respect to which Awards may
be granted, to the extent of any such forfeiture, termination or cancellation,
shall again become Shares with respect to which Awards may be granted. In the
event that any Option or other Award granted hereunder or any award granted
under any prior equity award plan of the Company is exercised through the
delivery of Shares or in the event that withholding tax liabilities arising from
such Award or award are, with the approval of the Board, satisfied by the
withholding of Shares by the Company, the number of Shares available for Awards
under the Plan shall be increased by the number of Shares so surrendered or
withheld. Any Shares underlying Substitute Awards shall not be counted against
the Shares available for Awards under the Plan.
(c) Antidilution. In the event that the Committee determines that any
distribution (whether in the form of cash, limited company interests, other
securities, or other property), recapitalization (including, without limitation,
any subdivision or combination of limited company interests), reorganization,
consolidation, combination, repurchase, or exchange of limited company interests
or other securities of the Company, issuance of warrants or other rights to
purchase equity interests or other securities of the Company, or other similar
transaction or event affects the Shares such that an adjustment is determined by
the Committee to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the Plan,
then the Committee may, in such manner as it may deem equitable, adjust any or
all of (i) the number of Shares or other securities of the Company (or number
and kind of other securities or property) with respect to which Awards may be
granted in aggregate and to any individual under Section 4(a), (ii) the number
of Shares or other securities of the Company (or number and kind of other
securities or property) subject to outstanding Awards, and (iii) the grant or
exercise price with respect to any Award, or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Award. Any such
adjustment or arrangement may provide for the elimination without compensation
of any fractional Share which might otherwise become subject to an Option, and
shall be final and binding upon the optionee.
SECTION 5. Eligibility.
Subject to Section 3(b), any Employee or Director shall be eligible to
be designated a Participant.
SECTION 6. Awards.
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(a) Options.
(i) Grant. Subject to the provisions of the Plan, the Committee
shall (subject to Section 3(b)) have sole and complete authority to
determine the Employees and/or Directors to whom Options shall be
granted, the number of Shares to be covered by each Option, the exercise
price therefor and the conditions and limitations applicable to the
vesting and exercise of the Option; provided that no Option shall be
exercisable, in part or in whole, prior to the first anniversary of date
the Option is granted or after the tenth anniversary of the date the
Option is granted.
(ii) Exercise Price. Except in the case of Substitute Awards, the
exercise price of an Option shall be not less than the Fair Market Value
of the Shares subject to the Option on the date the Option is granted.
(iii) Exercise. The Committee may impose such conditions with
respect to the exercise of Options, including without limitation, any
relating to the achievement of specified performance objectives and to
the application of federal or state securities laws, as it may deem
necessary or advisable.
(iv) Restoration Options. In the event that any Participant
delivers Shares in payment of the exercise price of any Option granted
hereunder in accordance with Section 7(b), or in the event that the
withholding tax liability arising upon exercise of any Option by a
Participant is satisfied through the withholding by the Company of
Shares otherwise deliverable upon exercise of the Option, the Committee
shall have the authority to grant or provide for the automatic grant of
a Restoration Option to such Participant. The grant of a Restoration
Option shall be subject to the satisfaction of such conditions or
criteria as the Committee in its sole discretion shall establish from
time to time. A Restoration Option shall entitle the holder thereof to
purchase a number of Shares equal to the number of such Shares so
delivered or withheld upon exercise of the original Option, in the
discretion of the Committee. A Restoration Option shall have a per Share
exercise price and such other terms and conditions as the Committee in
its sole discretion shall determine.
(b) Performance Awards.
(i) Grant. The Committee shall (subject to Section 3(b)) have sole
and complete authority to determine the Employees and/or Directors who
shall receive a "Performance Award", which shall consist of a right
which is (i) denominated in Shares, (ii) valued, as determined by the
Committee, in accordance with the achievement of such performance goals
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during such performance periods as the Committee shall establish, and
(iii) payable at such time and in such form as the Committee shall
determine. Performance goals established under this Section shall be
expressed in terms of the achievement by the Company or any of its
operating units of specified levels of earnings, earnings per Share,
earnings from operations, specified operational objectives, return on
equity, return on assets, Share price and/or the extent of increase or
decrease of any one or more of the foregoing over a specified period.
(ii) Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the
performance goals to be achieved during any performance period, the
length of any performance period, the amount of any Performance Award
and the amount and kind of any payment or transfer to be made pursuant
to any Performance Award.
(iii) Payment of Performance Awards. Performance Awards may be paid
in a lump sum or in installments following the close of the performance
period or, in accordance with procedures established by the Committee,
on a deferred basis.
SECTION 7. General Provisions Applicable to Awards.
(a) Awards May be Granted Separately or Together. Awards may, in the
discretion of the Committee, be granted either alone or in addition to, in
tandem with, or in substitution for any other Award granted under the Plan or
any award granted under any other plan of the Company or any Affiliate. Awards
granted in addition to or in tandem with other Awards or awards granted under
any other plan of the Company or any Affiliate may be granted either at the same
time as or at a different time from the grant of such other Awards or awards.
(b) Forms of Payment by Company Under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement and the requirements of applicable
law, payments or transfers to be made by the Company or an Affiliate upon the
grant, exercise or payment of an Award may be made in such form or forms as the
Committee shall determine, including Shares, other securities, other Awards or
other property, or any combination thereof, and may be made in a single payment
or transfer, in installments, or on a deferred basis, in each case in accordance
with rules and procedures established by the Committee. Such rules and
procedures may include, without limitation, provisions for the payment or
crediting of reasonable interest on installment or deferred payments.
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(c) Limits on Transfer of Awards. Except as otherwise provided by the
Committee with respect to any Award, no Award shall be transferable by a holder
other than by will or the laws of descent and distribution.
(d) Terms of Awards. The term of each Award shall be for such period as
may be determined by the Committee.
(e) Consideration for Grants. Awards may be granted for no cash
consideration, for such nominal cash consideration as may be required by
applicable law or for such greater amount as may be established by the
Committee.
SECTION 8. Amendment and Termination.
(a) Amendments to the Plan. The Board or, if so authorized by the Board,
the Committee, may amend, alter, suspend, discontinue, or terminate the Plan or
any portion thereof at any time; provided that no such amendment, alteration,
suspension, discontinuation or termination shall be made without the approval of
the shareholders of the Company if such approval is necessary to comply with any
tax or regulatory requirement for which or with which the Board deems it
necessary or desirable to qualify or comply. Notwithstanding anything to the
contrary herein, the Board or, if so authorized by the Board, the Committee may
amend the Plan in such manner as may be necessary so as to have the Plan conform
with local rules and regulations in any jurisdiction outside the United States.
(b) Amendments to Awards. Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate,
any Award theretofore granted, prospectively or retroactively and accelerate the
vesting and exercisability of any Award at any time in its sole discretion;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of any Participant or any holder or beneficiary of any Award theretofore
granted shall not to that extent be effective without the consent of the
affected Participant, holder or beneficiary; and provided further that no
outstanding Option may be amended or altered in a manner that would (i) permit
any portion of the Option to become vested and exercisable prior to the first
anniversary of the Option grant date, (ii) extend the term of the Option beyond
the tenth anniversary of the Option grant date or (iii) reduce the exercise
price of the Option (other than pursuant to Section 4(c)).
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. Subject to Section 8(b), the Committee is hereby authorized
to make adjustments in the terms and conditions of, and the criteria included
in,
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Awards in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4(c) hereof) affecting the Company,
any Affiliate, or the financial statements of the Company or any Affiliate, or
of changes in applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
(d) Cancellation. Any provision of this Plan or any Award Agreement to
the contrary notwithstanding, the Committee may, if so authorized by the Board,
cause any Award granted hereunder to be canceled in consideration of a cash
payment or alternative Award made to the holder of such canceled Award equal in
value to the Fair Market Value of such canceled Award.
SECTION 9. Miscellaneous.
(a) No Rights to Awards. No Employee, Director, Participant or other
Person shall have any claim to be granted any Award, and there is no obligation
for uniformity of treatment of Employees, Directors, Participants, or holders or
beneficiaries of Awards. The terms and conditions of Awards need not be the same
with respect to each recipient.
(b) Share Certificates. All certificates for Shares or other securities
of the Company or any Affiliate delivered under the Plan pursuant to any Award
or the exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations, and other requirements of the Securities and Exchange Commission,
any stock market or exchange upon which such Shares or other securities are then
listed or traded, and any applicable Federal or state laws, and the Committee
may cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(c) Delegation. Subject to the terms of the Plan and applicable law, the
Committee, if so authorized by the Board, may delegate to one or more officers
or managers of the Company or any Affiliate, or to a committee of such officers
or managers, the authority, subject to the terms and limitations as the
Committee, as authorized by the Board, shall determine, to make all decisions of
a ministerial nature in connection with the operation of the Plan and Awards
thereunder.
(d) Withholding. A Participant may be required to pay to the Company or
any Affiliate and the Company or any Affiliate shall have the right and is
hereby authorized to withhold from any Award, from any payment due or transfer
made under any Award or under the Plan or from any compensation or other amount
owing to a Participant the amount (in cash, Shares, other securities, other
Awards
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or other property) of any applicable withholding taxes in respect of an
Award, its exercise, or any payment or transfer under an Award or under the Plan
and to take such other action as may be necessary in the opinion of the Company
to satisfy all obligations for the payment of such taxes.
(e) Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement which shall be delivered to the Participant and may, but need not, be
executed by the Participant and shall specify the terms and conditions of the
Award and any rules applicable thereto, including but not limited to the effect,
if any, on such Award of the death, retirement or other termination of
employment of a Participant and of a change in control of the Company.
(f) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other compensation arrangements, including without limitation any such
arrangements that provide for the grant of options and other types of Awards
provided for hereunder (subject to approval of the shareholders of the Company
if such approval is required), and such arrangements may be either generally
applicable or applicable only in specific cases.
(g) No Right to Employment or Directorship. The grant of an Award shall
not be construed as giving a Participant the right to be retained in the employ
of the Company or any Affiliate, or to be retained as a Director. Further, the
Company or an Affiliate may at any time dismiss a Participant from service, free
from any liability or any claim under the Plan, unless otherwise expressly
provided in the Plan, in any Award Agreement or in any other agreement between
the Company or any Affiliate and the Participant.
(h) No Rights as Shareholder. Subject to the provisions of the applicable
Award, no Participant or holder or beneficiary of any Award shall have any
rights as a shareholder with respect to any Shares to be distributed under the
Plan until he or she has become the holder of such Shares.
(i) Governing Law. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan shall be determined in accordance
with the internal laws of the State of Delaware.
(j) Severability. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as
to any Person or Award, or would disqualify the Plan or any Award under any law
deemed applicable by the Committee, such provision shall be construed or deemed
amended to conform to applicable laws, or if it cannot be construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan of the Award, such provision shall be stricken as to such
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jurisdiction, Person or Award and the remainder of the Plan and any such Award
shall remain in full force and effect.
(k) Additional Powers. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Award granted hereunder shall be construed as an offer to sell
securities of the Company, and no such offer shall be outstanding, unless and
until the Committee in its sole discretion has determined that any such offer,
if made, would be in compliance with all applicable requirements of the U.S.
federal securities laws and any other laws to which such offer, if made, would
be subject.
(l) No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.
(m) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated or otherwise eliminated.
(n) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 10. Term of the Plan.
(a) Effective Date. This Plan shall be effective as of the date of its
adoption by the Board (the "Effective Date") subject to the Plan's approval by
the shareholders of the Company.
(b) Expiration Date. No Award shall be granted under the Plan after the
tenth anniversary of the Effective Date. However, unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award theretofore
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granted may, and the authority of the Board or the Committee to amend, alter,
adjust, suspend, discontinue, or terminate any such Award or to waive any
conditions or rights under any such Award shall, extend beyond such date.
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective the 18th day of November
1998, by and between Smurfit-Stone Container Corporation, a Delaware corporation
(the "Company"), and Harold D. Wright, a resident of the State of Illinois (the
"Executive").
WHEREAS, Executive and Stone Container Corporation have
previously entered into the Stone Container Corporation Severance Agreement
dated July 2, 1996 (the "1996 Agreement");
WHEREAS, Stone Container Corporation and Jefferson Smurfit
Corporation on May 10, 1998, agreed to merge to form the Company;
WHEREAS, the parties desire to cancel the 1996 Agreement; and
WHEREAS, as a result of such events the parties desire to set
forth the terms and conditions under which the Executive shall be employed and
upon which the Company shall compensate the Executive.
NOW, THEREFORE, in consideration of the premises and promises
contained herein, the parties agree as follows:
1. Employment. The Company hereby employs the Executive, and
the Executive hereby agrees to continue employment with the Company, as Vice
President. In such capacity, the Executive will perform such duties and services
of an executive and administrative character as shall be assigned to the
Executive from time to time by the Company's Chief Executive Officer (the
"Services").
2. Performance. The Executive agrees to devote the Executive's
best efforts, energies and skills on a full time basis during normal working
hours to performance of the Executive's duties hereunder (except for vacations
and reasonable periods of illness or incapacity). During the term of this
Agreement, the Executive shall not engage in any other business or business
activity, whether or not such business activity is pursued for gain, profit or
other pecuniary advantage; provided, however, that the Executive shall not be
prevented from (i) investing the Executive's assets in such form or manner as
will not require any substantial amount of time or services on the part of the
Executive in the operation of the affairs of the enterprises in which such
investments are made or (ii) engaging in limited outside business activities,
such as serving on the board of directors of an entity or organization which
will not conflict with the Executive's duties hereunder. The principal place for
performance of the Services shall be Chicago, Illinois and the Company will
permit the Executive to perform substantially all of the Services therefrom. The
Executive may be obliged, from time to time, and for reasonable periods of time,
to travel in the performance of the Services.
3. Base Salary. For all duties to be performed by the
Executive hereunder, the Executive shall receive an annual base salary (the
"Base Salary") of $305,000.00, payable by the Company in equal semi-monthly
installments (prorated for any partial
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year). The Base Salary shall be subject to upward adjustment annually on the
basis of an annual salary review to reflect performance. In no event, however,
shall the Base Salary be decreased.
4. Bonus and Stock Options. In addition to Base Salary, the
Executive shall be eligible to participate in incentive programs approved by the
Board of Directors of the Company offered to senior management, including
consideration for an annual bonus (the "Bonus") and the Stock Option Plan of the
Company ("Stock Option Plan") with such Bonus and stock option award
commensurate with awards made to Executive in prior years with Stone Container
Corporation.
5. Vacation. The Executive shall be entitled to five weeks
annual paid vacation, which may be taken at such times as are consistent with
good business practices.
6. Fringe Benefits. The Executive shall be entitled to receive
such fringe benefits as are made available to executive employees of the Company
generally, including participation in any Company retirement and deferred
compensation programs, approved by the Board of Directors but in no case less
than those in effect on November 1, 1998. The Company shall also provide the
Executive with an automobile and pay (or reimburse on a monthly basis) all
reasonable expenses of operation, licensing, repair and maintenance, including
gasoline, parking, insurance and tires and club membership dues. In addition,
all such fringe benefits shall be substantially similar to those which Executive
received immediately prior to November 1, 1998.
7. Insurance. The Executive shall be enrolled in the Company's
senior management group medical and other insurance program(s). The cost of all
insurance coverage shall be paid by the Company and the Executive in accordance
with the Company's standard practice. In addition, the Company shall maintain
life insurance coverage equal to four times the Executive's Base Salary with
beneficiaries to be selected by the Executive.
8. Expenses. The Executive is authorized to incur reasonable
expenses in rendering Services hereunder and in the performance of the
Executive's duties hereunder. The Company will reimburse the Executive in a
timely manner at least monthly for all such expenses upon presentation of an
itemized written accounting therefor (together with such vouchers and other
verifications as the Company may require) within thirty (30) days after they
have been incurred.
9. Confidential Information. The Executive acknowledges that
(i) the Executive holds a senior management position with the Company, (ii) in
connection with the Services being rendered under this Agreement, the Executive
will acquire and make use of confidential information and trade secrets of the
Company ("Confidential Information"), including, but not limited to, financial
statements, client lists, project reports, software design and documentation,
internal memoranda, marketing programs, credit underwriting process and
approach, reports and other materials or records of a proprietary nature which
are not generally known to the public, (iii) the Confidential Information
constitutes a unique and valuable asset of the Company, (iv) maintenance of
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the proprietary character of such information, to the full extent feasible, is
important to the Company, (v) the Confidential Information is sufficiently
secret as to derive economic value from not being generally known to others who
could obtain economic value from its disclosure or use, and (vi) the
Confidential Information is currently the subject of efforts to maintain its
secrecy or confidentiality. Therefore, in order to protect the Confidential
Information, the Executive agrees as follows:
(a) to hold the Confidential Information in strictest
confidence and not to use or disclose such Confidential
Information without the written authorization of the Company,
except in connection with the Services being rendered under
this Agreement, for so long as any such Confidential
Information may remain confidential, secret or otherwise
wholly or partially protectable;
(b) to take all appropriate steps to safeguard any
Confidential Information and to protect it against disclosure,
misuse, espionage, loss and theft; and
(c) to return to the Company upon termination of
employment all materials relating to the Company or its
business, including all Confidential Information, coming into
the Executive's possession during the term of the Executive's
employment with the Company or while employed by a predecessor
to the Company's business.
10. Covenants Not to Compete or Solicit.
10.1. So long as the Executive is employed by the Company and
for a period of one (1) year thereafter, the Executive shall not (except in
connection with the rendering of services hereunder), directly or indirectly, by
or for the Executive or as the agent of another, or through others as the
Executive's agent:
(a) solicit or accept any business from customers of
the Company, or request, induce or advise customers of the
Company to withdraw, curtail or cancel their business with the
Company;
(b) solicit for employment or employ or become
employed by any past, present of future employee of the
Company, or request, induce or advise any employee to leave
the employ of the Company; or
(c) use or disclose any nonpublic information
concerning the Company or its businesses and affairs,
including Confidential Information.
10.2. The Executive agrees that if the Executive shall violate
any of the provisions of this Section 10, the Company shall be entitled to an
accounting and repayment of all profits, compensation, commission, remuneration
or other benefits that the Executive, directly or indirectly, may realize
arising from or related to any such violation. These remedies shall be in
addition to, and not in limitation of, any injunctive relief or other rights to
which the Company may be entitled.
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10.3 The parties agree and acknowledge that the duration,
scope and geographic areas applicable to the covenant not to compete described
in this Section are fair, reasonable and necessary, that adequate compensation
has been received by the Executive for such obligations, and that these
obligations do not prevent the Executive from earning a livelihood. If, however,
for any reason any court determines that the restrictions in this Section 10 are
not reasonable, that consideration is inadequate or that the Executive has been
prevented from earning a livelihood, such restrictions shall be interpreted,
modified or rewritten to included as much of the duration, scope and geographic
area identified in this Section as will render such restrictions valid and
enforceable.
11. Remedies. The Executive acknowledges that the Executive
has carefully read and considered the terms of this Agreement and knows them to
be essential to induce the Company to enter into this Agreement and that any
breach of the provisions contained herein will result in serious and irreparable
injury to the Company. The Executive further acknowledges that the Company's
business interests protected hereby are substantial and legitimate. Therefore,
in the event of a breach of any such provisions, the Company shall be entitled
to equitable relief against the Executive by way of injunction (in addition to,
but not in substitution for, any and all other relief to which the Company may
be entitled at law or in equity) to restrain the Executive from such breach and
to compel compliance by the Executive with the Executive's obligations
hereunder. The Company shall also be entitled to seek a protective order to
ensure the continued confidentiality of its trade secrets and proprietary
information. The Executive hereby waives any requirement of proof that such
breach will cause series or irreparable injury to the Company, or that there is
an adequate remedy at law.
12. Termination.
12.1 Term. Except as provided below, this Agreement shall
remain in full force and effect from the date hereof through April 30, 2000,
(the "Term") and shall be automatically renewed for a period of one year each
May 1 thereafter unless cancellation notice is provided 60 days prior to the end
of such applicable term.
12.2 Termination Payments. Upon the Executive leaving his
employment of the Company by virtue of: (i) by resignation (ii) by involuntary
termination without good reason (iii) by retirement, or (iv) by death or
disability, the Company shall pay the Executive the payouts described in this
Section 12.2 ("Termination Payments") in addition to any payments and benefits
to which the Executive is entitled under Section 6 hereof as follows:
1. Any unpaid Base Salary through the date of termination;
2. Any Bonus for the year in which such termination occurs
prorated as of the date of termination (with such Bonus to be paid
within 60 days of end of fiscal year;
3. Accrued and unpaid vacation pay;
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4. Proceeds, benefits or other sums due under any of the
Company's benefit, insurance, retirement or other plans;
5. Any unreimbursed expenses incurred by the Executive on the
Company's behalf.
6. A lump sum amount equal to three (3) times the sum of:
(a) Executive's Base Salary then in effect and
(b) The product of such Base Salary and a
percentage equal to the greater of (x) the
average percentage that the aggregate amount
earned by Executive under all annual Bonus
or long or short term incentive plans of
Stone Container Corporation or the Company
in respect of the three Years immediately
preceding the Year in which the Date of
Termination occurs represents of the
aggregate amount of salary earned by
Executive from Stone Container Corporation
and the Company for such year, or (y) the
average percentage that the aggregate amount
earned by Executive under all annual Bonus
of long or short term incentive plans of
Stone Container Corporation in respect of
each year during the 1995-1997 period
represented of the aggregate amount of Base
Salary earned by the Executive for such
Year;
7. For the thirty-six (36) month period immediately following
the Date of Termination, the Company shall arrange to provide the
Executive with life, disability, accident and health insurance benefits
and Company-provided perquisites (including, but not limited to a
Company car, and club membership dues), in each case substantially
similar to those which the Executive is receiving immediately prior to
the Notice of Termination; provided, however, that, such health
insurance benefits shall be provided through a third-party insurer.
Benefits and perquisites otherwise receivable by the Executive pursuant
to this Section 7 shall be reduced to the extent comparable benefits or
perquisites are actually received by or made available to the Executive
without cost during the thirty-six month period following the
Executive's termination of employment (and any such benefits and
perquisites actually received by or made available to the Executive
shall be reported to the Company by the Executive).
8. In addition to the retirement benefits to which the
Executive is entitled under each Pension Plan, the Company shall pay
the Executive a lump sum amount, in cash equal to the excess of (a) the
actuarial equivalent of the aggregate retirement pension (taking
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into account any early retirement subsidies associated therewith and
determined as a straight life annuity commencing at the date (but in no
event earlier than the third anniversary of the Date of Termination) as
of which the actuarial equivalent of such annuity is greatest) which
Executive would have accrued under the terms of all Pension Plans
(without regard to any amendment to any Pension Plan made subsequent to
a Change in Control and prior to the Date of Termination, which
amendment adversely affects in any manner the computation of retirement
benefits thereunder), determined as if the Executive were fully vested
thereunder and had accumulated (after the Date of Termination)
thirty-six (36) additional months of service credit thereunder and had
been credited under each Pension Plan during such period with
compensation at the higher of (i) the Executive's compensation (as
defined in such Pension Plan) during the twelve (12) months immediately
preceding the Date of Termination and (ii) the Executive's compensation
(as defined in such Pension Plan) during the twelve (12) months
immediately preceding a Change in Control, over (b) the actuarial
equivalent of the aggregate retirement pension (taking into account any
early retirement subsidies associated therewith and determined as
straight life annuity commencing at the date (but in no event earlier
than the Date of Termination) as of which the actuarial equivalent of
such annuity is greatest) which the Executive had accrued pursuant to
the provisions of the Pension Plans as of the Date of Termination. For
purposes of this Section 8,"actuarial equivalent" shall be determined
using the same assumptions utilized under the Stone Container
Corporation Salaried Employees Retirement Plan immediately prior to the
Date of Termination.
9. If the Executive would have become entitled to benefits
under the Company's post retirement health care of life insurance
plans, as in effect immediately prior to a Change in Control or the
Date of Termination, (whichever is more favorable to the Executive),
had the Executive's employment terminated at any time during the period
of thirty-six (36) months after the Date of Termination, the Company
shall provide such post-retirement health care of life insurance
benefits to the Executive and the Executive's dependents commencing on
the later of (i) the date on which such coverage would have first
become available and (ii) the date on which benefits described in
Section 12.2
Items (1) through (9) are hereinafter referred to as the "Termination Payments".
However, in no event shall Executive receive less than the amounts Executive
would have received as a result of the lump sum payment provided to the
Executive under the 1996 Agreement had the Executive terminated for Good Reasons
as such term is defined in the 1996 Agreement on December 31, 1998.
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12.3 Death. In the event of the death of the Executive during the term
hereof, this Agreement shall terminate at the end of the month in which the
Executive dies. The Company shall pay within thirty (30) days of the date of
death to the Executive's legal representatives or, if the Executive shall have
filed with the Company a designation of a person to receive such payment, such
person, the Termination Payments as set forth in Section 12.2.
12.4. Disability. If, during the Term, the Executive comes
under such illness, physical or mental disability or other incapacity that the
Board of Directors of the Company determines that the Executive is unable to
perform the Executive's duties under this Agreement for a period in excess of
ninety days (90) substantially consecutive days, the Company may terminate this
Agreement by giving notice to the Executive of its intention to terminate due to
disability and this Agreement shall terminate at the end of the month following
the month in which such notice was given. In the event of such termination, the
Company shall pay the Termination Payments, as set forth in Section 12.2, to the
Executive within thirty (30) days of such termination and the Executive's Base
Salary shall be continued (offset by any amounts payable to the Executive under
the Company's benefit plans or short or long term disability insurance or social
security payable) until the earliest of (i) one (1) year after termination, (ii)
the end of the Term, or (iii) the death of the Executive.
12.5 Termination by the Company Without Cause. The Company may
terminate this Agreement without cause upon thirty (30) days' prior written
notice. In the event of such termination, the Company shall pay the Termination
Payments as set forth in Section 12.2 plus one (1) year of Base Salary.
12.6 Resignation. The Executive shall have the right to
terminate the Executive's employment under this Agreement at any time upon
thirty (30) days' prior written notice to the Company. At any time during such
thirty-day notice period, the Company may terminate the Executive (which shall
not be considered a termination under Section 12.5). In the event of such
termination or resignation, the Company shall pay the Termination Payments to
the Executive as set forth in Section 12.2.
12.7 Termination for Cause. Notwithstanding any other
provision hereof, the Company may terminate the Executive's employment under
this Agreement without prior notice at any time for "Cause". For purposes of
this Agreement, "Cause" shall mean (i) fraud, misappropriation or embezzlement
involving property of the Company or other intentional wrongful acts that
materially impair the goodwill or business of the Company or that cause material
damage to their property, goodwill or business; (ii) commission by the Executive
of a felony other than a felony predicated upon the Executive's vicarious
liability; or (iii) a material breach by the Executive of this Agreement,
including any willful and continued failure by the Executive to substantially
perform his duties with the Company (other than any such failure resulting from
the Executive's incapacity due to physical or mental illness), after a demand
for substantial performance is delivered to the Executive by the Board of
Directors of the Company that specifically identifies the manner in which the
Board of Directors believes the Executive has not substantially performed his
duties and after the Executive has been given at least thirty (30) days in which
to cure such alleged performance deficiencies. In the event of such termination,
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the Company shall pay the Termination Payments to the Executive within thirty
(30) days of such termination; provided, however, that the Company shall have no
obligation to pay any Bonus and any stock options that would have been earned by
the Executive for the year in which such termination occurs.
12.8 Vesting of Stock Options. Upon a termination other than a
termination described in Section 12.7, the Executive shall become vested in all
stock options and stock awards granted to the Executive during the period of
employment.
12.9 Effect of Termination. Upon termination of this
Agreement, all obligations of the Company and rights of the Executive under this
Agreement shall cease, except as otherwise provided herein. Notwithstanding
anything to the contrary contained herein, the provisions of Sections 9 through
12 shall survive any termination of this Agreement or employment and shall
remain in full force and effect.
13. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The decision of such
arbitrator(s) shall be conclusive and binding upon the parties hereto. The
Company shall pay to the Executive all legal fees and expenses incurred by the
Executive in disputing in good faith any issue hereunder relating to the
termination of the Executive's employment, in seeking in good faith to obtain or
enforce any benefit or right provided by this Agreement or in connection with
any tax audit or proceedings. Notwithstanding the foregoing, the Company may, in
its discretion, apply to a court of competent jurisdiction for the purposes of
obtaining any relief contemplated by Section 11.
14. Notice. Any notice required to be given, served or
delivered to any of the parties hereto shall be sufficient if it is in writing
and sent by certified or registered mail, with proper postage prepaid, addressed
as follows:
To Executive: Harold D. Wright
950 N. Michigan Avenue #2503
Chicago, IL 60611
To Company: Stone Container Corporation
150 N. Michigan Avenue
Chicago, IL 60601
Attn: Chief Executive Office
or to such other address as a party from time to time may designate by notice
to the other. Notice shall be deemed effective on the date deposited for
delivery in the U.S. mail.
15. Assignment. This Agreement shall inure to the benefit of
and be binding upon the Executive, the Executive's administrative executors and
heirs and the Company, its successors and assigns. This Agreement is for
personal services and may not be assigned or pledged by the Executive in any
manner, by operation of law or otherwise,
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without the written consent of the Company. This Agreement may not be assigned
by the Company; provided however, that if substantially all of the business or
assets of the Company are sold and the Executive agrees to become an employee of
the acquiror, then the Company may assign this Agreement to such acquiror.
16. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
Illinois, and the parties hereby consent to the jurisdiction of Illinois courts
over all matters relating to this Agreement.
17. Entire Agreement. This Agreement contains the entire
agreement of the parties in regard to the subject matter hereof, supersedes all
prior discussions, agreements and understandings of every kind between the
parties and may be changed only by a written document signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. The waiver of any breach of any provision of this Agreement
shall be effective only in the specific instance and for the specific purpose
for which given and shall not operate or be construed as a waiver of any
subsequent breach hereof.
18. Severability. If any provision of this Agreement shall be
prohibited by or invalid under applicable law, or otherwise determined to be
unenforceable, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the date first written above.
EXECUTIVE: SMURFIT-STONE CONTAINER CORP.
/s/ Harold D. Wright By: /s/ Roger W. Stone
- -------------------------- --------------------------
Harold D. Wright Roger W. Stone
Its: President
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EXHIBIT 10.28
October 2, 1998
Jefferson Smurfit Group plc
Beech Hill
Clonskeagh
Dublin 4
Dear Sirs:
In connection with the entry by Jefferson Smurfit Corporation ("JSC")
and Stone Container Corporation ("Stone") into an Agreement and Plan of Merger
dated as of May 10, 1998 (the "Merger Agreement"), you or one or more of your
subsidiaries will make Mr. Raymond M. Curran available to JSC to serve as its
Executive Vice-President-Deputy Chief Executive. In this connection we agree
with you as follows:
1. To pay to you or one or more of your subsidiaries designated by you:
(a) an aggregate amount necessary to reimburse you or such subsidiary
or subsidiaries on a US dollar for US dollar basis for amounts
paid to Mr. Curran not to exceed $1.5 million, or in relation to
funding pension payments for him not to exceed $2.4 million, in
connection with these matters; and
(b) the aggregate amount, if any, which you or one or more of your
subsidiaries may become liable at a future date to pay to Mr.
Curran pursuant to the terms of a Long Term Incentive Plan dated
as of July 1, 1996 between your company and Mr. Curran (the "LTIP
Payment");
provided that the amounts payable under paragraphs (a) and (b) and the amounts
payable under paragraph 3 below shall not exceed in the aggregate US$6,500,000.
2. We agree that the amounts referred to at paragraph 1 (a) above will
be payable promptly on your demand at the later of the closing of the Merger (as
defined in the Merger Agreement) and the assumption of Mr. Curran's duties with
JSC. The amount specified at paragraph 1 (b) above will be payable promptly upon
notice from you to us confirming that you or one or more of your subsidiaries
have made the LTIP Payment to Mr. Curran and the amount thereof.
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3. In addition to the above, we agree that we will reimburse to Mr.
Curran promptly on his request all reasonable direct costs of relocation
incurred by him in relation to his move to the United States and also all
reasonable legal and tax advisory fees incurred by him in connection with such
re-location and the purchase of a residence in Chicago.
4. No amounts will be due hereunder in the event that the closing of
the Merger does not occur or Mr. Curran is unavailable to assume his duties with
JSC.
5. This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware without regard to any applicable conflicts of
law rules.
JEFFERSON SMURFIT CORPORATION
By: /s/ Michael E. Tierney
---------------------------------------
Name: Michael E. Tierney
Title: Vice President, General Counsel
and Secretary
Agreed and Accepted as of
The date first above written:
JEFFERSON SMURFIT GROUP PLC
By: /s/ Michael E. Pettigrew
----------------------------
Name: Michael E. Pettigrew
Title: Secretary
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MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement is made as of this 1st day of
January 1993 by and between JEFFERSON SMURFIT CORPORATION, a Delaware
corporation ("JSC") SMURFIT PACKAGING CORPORATION, a Delaware corporation
("SPC"), and SMURFIT NEWSPRINT CORPORATION, a Delaware corporation ("SNC").
W I T N E S S E T H
WHEREAS, Smurfit Newsprint Corporation of California Inc. ("SNCC"), a
Delaware corporation and wholly owned subsidiary of SPC, has been merged into
SPC effective as of December 31, 1992; and
WHEREAS, SNCC will continue to operate as a division of SPC; and
WHEREAS, JSC and SNC have jointly provided certain management services
for SNCC pursuant to a certain Management Services Agreement; and
WHEREAS, SPC wishes to have JSC and SNC continue to jointly manage the
business and affairs of its SNCC division, including its reclamation operations
(together hereinafter referred to as the "SNCC division"), in accordance with
the terms and to the extent set forth herein; and
WHEREAS, the parties hereto wish to set forth certain matters
concerning the provision of such services by JSC and/or SNC.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, JSC, SPC and SNC agree as follows:
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1. Management Services.
(a) The parties hereby agree that, during the period beginning
on the date hereof and continuing throughout the term hereof, JSC, SNC and their
respective subsidiaries and affiliates shall jointly provide to SPC (x) general
management, supervision and administrative services, and the preparation of the
annual and long-term business plans of SPC's SNCC division ("General Management
Services"), and (y) such of the following services ("Elective Services") as SPC
shall in accordance with Paragraph 2 hereof determine its SNCC division requires
at any time during the term hereof:
(i) Management operating information systems (i.e., cost
estimating, customer order entry and reporting, invoicing, roll
stock inventory and reporting, payroll reporting, price
tracking, sales analysis, forecasting, purchase order
reporting, and credit management reporting);
(ii) Management financial information services (i.e.,
general ledger, payroll, accounts receivable, accounts payable
and fixed assets reports), accounting services, internal
auditing services, tax reporting and related services, and
financial management and treasury services;
(iii) Legal services;
(iv) Manufacturing and engineering services;
(v) Research and development services and services
pertaining to patents;
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(vi) Employee pension plan and benefits management,
employee group insurance management, property and casualty
insurance management, risk management services, and employee
health and safety and personnel management services;
(vii) Traffic and transportation management and leased-car
program services; (viii) Purchasing services;
(ix) Industrial relations services;
(x) Public relations and marketing services;
(xi) Planning services;
(xii) Compliance Program administration and services; and
(xiii) All other services to be provided to SPC by JSC
and/or SNC, and their subsidiaries and affiliates in accordance
with Paragraph 2 hereof.
(The General Management Services and the Elective Services are hereinafter
sometimes referred to collectively as the "Services", and the General Management
Services and each of the Elective Services are hereinafter sometimes referred to
individually as a "Service").
(b) Any Service provided to SPC hereunder shall be reasonably necessary
in the conduct of its respective businesses.
(c) Any Service hereunder shall be provided to SPC only by JSC and SNC
and their
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subsidiaries and affiliates or such consultants, subcontractors or agents as may
be selected from time to time by JSC and/or SNC.
2. Election by SPC.
(a) At any time hereafter, the Chairman of the Board and Chief
Executive Officer and/or the President and Chief Operating Officer of SPC shall
notify JSC and/or SNC as to the Elective Services (if any) that JSC and/or SNC
is (are) to provide to SPC. Thereafter, JSC or SNC shall submit a fee proposal
for same, and if accepted by either of said officers of SPC, JSC and/or SNC
shall provide and SPC shall obtain and pay JSC and/or SNC therefor, those
Elective Services as to which the parties have agreed.
3. Fees; Payment.
(a) In consideration for the General Management Services provided by
JSC and SNC to SPC hereunder, SPC shall pay to each of JSC and SNC annual fees
or compensation therefor (not including any related out-of-pocket expenses) in
the amount of One Percent (1%) of annual consolidated gross sales of the Pomona
Mill operation of the SNCC division of SPC. In addition, SPC shall pay to JSC
One Percent (1%) of annual consolidated gross sales [net of intercompany sales
by Pacific Recycling Company to the SNCC division of SPC] of the Pacific
Recycling Company division of SPC.
(b) In consideration for each Elective Service provided to SPC
hereunder SPC shall pay to JSC and/or SNC an amount equal to the agreed-upon fee
for the same; provided, however, in no event shall such fee be higher than that
which would be charged in a commercial, unrelated third-party transaction for
comparable services.
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(c) In addition to the fees referred to in Paragraphs 3(a) and 3(b)
hereof, SPC shall also pay to JSC and/or SNC an amount equal to all
out-of-pocket expenses paid by JSC and/or SNC in providing the General
Management Services hereunder and/or Elective Services hereunder including fees
and expenses paid to consultants, subcontractors and other third parties, in
connection with such services.
(d) On or before the twentieth (20th) day of each month, JSC and SNC
shall furnish to SPC bills for the Services hereunder (plus related expenses)
during the immediately preceding month. Each such bill shall specify the fee
billed for each Service provided during such previous month and shall identify
in reasonable detail any out-of-pocket expenses included in such bill.
(e) Each bill furnished to SPC hereunder shall be paid in full within
ten (10) days of the date of such bill. All payments of such bills shall be
sent:
If to JSC at the following address:
Jefferson Smurfit Corporation
8182 Maryland Avenue
P. O. Box 66820
St. Louis, Missouri 63105
Attention: John R. Funke
If to SNC at the following address:
Smurfit Newsprint Corporation
427 Main Street
Oregon City, Oregon 97045
Attention: Mr. Jay D. Lamb
or to such other address as JSC or SNC may specify from time to time by written
notice to SPC.
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4. Direct Expenses.
It is understood that the consideration to be paid by SPC to JSC or SNC
for Services hereunder shall not be in lieu of, and that SPC shall be directly
liable for, direct expenses incurred by SPC, or by JSC or SNC on SPC's behalf,
(other than the out-of-pocket expenses billed to SPC by JSC and/or SNC pursuant
to Paragraphs 3(c) and 3(d) hereof), or by SPC's SNCC division, for services
rendered to SPC or its SNCC division by third parties, including, but not
limited to, legal and accounting fees and insurance premiums. SPC shall pay any
compensation (including employee benefit costs and any related out-of-pocket
expenses) to officers and other employees of SPC who provide substantially
full-time services to SPC, notwithstanding that said officers and other
employees may simultaneously be officers or employees of JSC, SNC or one of
their respective subsidiaries or affiliates.
5. Term.
The term of this Agreement shall commence on the date hereof and shall
continue until terminated upon not less than sixty (60) days' prior written
notice given at any time by any party to the other parties.
6. Events of Default.
Any one of the following shall constitute an Event of Default:
(a) The failure (other than by reason of an Event of Force Majeure (as
defined in Paragraph 8 hereof) or refusal of any party to comply with, and
perform its obligations under, this Agreement and such failure or refusal
continues unremedied for more than sixty (60) days after written notice of the
existence of such failure or refusal shall have been
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given to the failing or refusing party by any of the parties;
(b) JSC, SNC or SPC is declared insolvent or bankrupt by any court of
competent jurisdiction, or a voluntary petition in bankruptcy is filed in any
court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is filed in any court of
competent jurisdiction against JSC, SNC or SPC and within forty-five (45) days
thereafter shall not have been dismissed or stayed (and, in the event of any
such stay, such stay shall not have been set aside and the petition dismissed
within forty-five (45) days after the stay shall have been granted);
(d) A trustee or receiver is appointed for JSC, SNC or SPC and remains
undischarged for more than forty-five (45) days after being appointed;
(e) A proceeding seeking a reorganization, arrangement, liquidation or
dissolution, of JSC, SNC or SPC is instituted in a court of competent
jurisdiction and remains undismissed for more than forty-five (45) days after
being instituted; or
(f) JSC, SNC or SPC voluntarily seeks any such reorganization or
arrangement or makes an assignment for the benefit of creditors.
7. Limitation of Liability; Indemnification.
(a) JSC, SNC and their respective subsidiaries and affiliates shall not
be liable to SPC, to any director, officer, stockholder, consultant or
subcontractor of SPC or to any person or entity controlling SPC, or any such
stockholder, consultant or subcontractor of SPC, for any cost, damage, expense
or loss, including without limitation any special, indirect, consequential or
punitive damages, of SPC or any such officer, director, stockholder,
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consultant, subcontractor or controlling person or entity, allegedly arising out
of (i) JSC's, SNC's and/or their respective subsidiaries' and/or affiliates'
failure to perform any services for SPC hereunder or the misperformance of any
such service, or (ii) SPC's or such officer's, director's, stockholder's,
consultant's, subcontractor's or controlling person's or entity's reliance on
any advice or data JSC, SNC and/or their respective subsidiaries and affiliates
may provide to SPC pursuant to this Agreement.
(b) SPC shall indemnify JSC, SNC and each of their subsidiaries and
affiliates, and their officers, directors, employees, consultants and
subcontractors, and any person or entity controlling JSC, SNC, their
subsidiaries or affiliates, or any such consultant or subcontractor and shall
hold JSC, SNC and each of their subsidiaries and affiliates and each such
officer, director, employee, consultant, subcontractor and controlling person or
entity, harmless against any damage, loss, cost or expense (including court
costs and reasonable attorneys' fees) which JSC, SNC, their respective
subsidiaries and affiliates, or any such officer, director, employee,
consultant, subcontractor or controlling person or entity, may sustain or incur
by reason of any claim, demand, suit or recovery by any person or entity arising
in connection with this Agreement or out of JSC's, SNC's, their subsidiaries' or
affiliates', or any consultant's or subcontractor's, performance of JSC's or
SNC's obligations under this Agreement, provided, however, that no officer of
JSC or SNC may benefit from the foregoing indemnity in the event of his serious
criminal conduct, fraud or dishonesty.
8. Force Majeure.
This Agreement shall not be terminated as a result of any failure of a
party to perform any of its obligations hereunder if such failure is due to
circumstances beyond its
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control (an "Event of Force Majeure"), including, but not limited to, any
requisition by any government authority, act of war, strike, boycott, lockout,
picketing, riot, sabotage, civil commotion, insurrection, epidemic, disease, act
of God, fire, flood, accident, explosion, earthquake, storm, failure of public
utilities or common carriers, mechanical failure, embargo, or prohibition
imposed by any governmental body or agency having authority over the party,
provided that at such time as an Event of Force Majeure no longer exists, the
respective obligations of the parties hereto shall be reinstated and this
Agreement shall continue in full force and effect. The party affected by an
Event of Force Majeure shall give prompt notice thereof to the other parties
hereto and each party shall use its best efforts to minimize the duration and
consequences of, and to eliminate, any such Event of Force Majeure.
9. Notices.
All notices and other communications required by or specifically
provided for in this Agreement shall be in writing and shall be deemed to have
been given (a) when delivered in person, (b) when sent by telex or telecopier
with answer back received, (c) twenty-four (24) hours after having been
deposited with any overnight courier, next-day delivery, or (d) seventy-two (72)
hours after having been deposited in the U. S. mails, certified mail with return
receipt requested and postage prepaid, and in any case addressed to the party
for which it is intended at that party's address as set forth below, or at such
other address as the addressee shall have designated by notice hereunder to the
other parties:
If to JSC
Jefferson Smurfit Corporation
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8182 Maryland Avenue
St. Louis, Missouri 63105
Attention: J. R. Funke, Vice President
If to SNC:
Smurfit Newsprint Corporation
427 Main Street
Oregon City, Oregon 97045
Attention: J. D. Lamb, Vice President
If to SPC:
Smurfit Packaging Corporation
8182 Maryland Avenue
Clayton, Missouri 63105
Attention: J. B. Malloy, Chairman and President
Any notice or request sent by telecopier or similar facsimile telecommunication
shall be confirmed promptly by the sending of a copy of such notice or request
to the addressee thereof by prepaid certified mail, return receipt requested.
10. Amendment; Assignment; Binding Effect.
This Agreement may be amended or modified only by a written instrument
signed by the parties hereto. No party shall assign or transfer this Agreement,
in whole or in part, or any of such party's rights or obligations hereunder, to
any other person or entity without the prior written consent of the other
parties.
11. Waiver; Severability.
The failure of a party to insist in any instance upon the strict and
punctual performance of any provision of this Agreement shall not constitute a
continuing waiver of such provision. No party shall be deemed to have waived any
right, power, or privilege under this Agreement or any provisions hereof unless
such waiver shall have been in
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writing and duly executed by the party to be charged with such waiver, and such
waiver shall be a waiver only with respect to the specific instance involved and
shall in no way impair the rights of the waiving party or the obligations of any
other party in any other respect or at any other time. If any provision of this
Agreement shall be waived, or be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain binding and in full force and effect.
12. Relationship of the Parties.
In all matters relating to this Agreement, each party hereto shall be
solely responsible for the acts of its employees, and employees of one party
shall not be considered employees of any other party. Except as otherwise
provided herein, no party shall have any right, power or authority to create any
obligation, express or implied, on behalf of any other party.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to its conflict of laws
rules and laws.
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14. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, either oral or written, with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
JEFFERSON SMURFIT CORPORATION
By: _________________________
Its: President, Chief Executive Officer and
Chief Operating Officer
SMURFIT NEWSPRINT CORPORATION
By: _________________________
Its: Executive Vice President
SMURFIT PACKAGING CORPORATION
By: _________________________
Its: Executive Vice President
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MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement is made as of the 1st day of
January, 1993 by and between JEFFERSON SMURFIT CORPORATION, a Delaware
corporation ("JSC"), and SMURFIT PACKAGING CORPORATION, a Delaware corporation
("SPC").
W I T N E S S E T H:
WHEREAS, SPC has merged into itself its wholly-owned subsidiaries
Smurfit Plastic Packaging Inc. ("SPPI") and Sequoia Pacific Systems Corporation
("SPSC") effective as of December 31, 1992; and
WHEREAS, each of SPPI and SPSC will continue to operate as divisions of
SPC; and
WHEREAS, SPC wishes to vest control of the management of the business
and affairs of its SPPI and SPSC divisions in JSC in accordance with the terms
and to the extent set forth herein; and
WHEREAS, the parties hereto wish to set forth certain matters
concerning the provision of such services by JSC.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, JSC and SPC agree as follows:
1. Management Services.
(a) The parties hereby agree that, during the period beginning on
the date hereof and continuing throughout the term hereof, JSC and its
subsidiaries and affiliates shall provide to SPC (x) general management,
supervision and administrative services, and the preparation of the annual and
long-term business plans of SPC's SPPI and SPSC divisions ("General Management
Services"), and (y) such of the following services (the
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<PAGE>
"Elective Services") as SPC shall in accordance with Paragraph 2 hereof
determine its SPPI and/or SPSC divisions require at any time during the term
hereof:
(i) Management operating information systems (i.e.,
cost estimating, customer order entry and reporting, invoicing, roll
stock inventory and reporting, payroll reporting, price tracking, sales
analysis, forecasting, purchase order reporting, and credit management
reporting);
(ii) Management financial information services (i.e.,
general ledger, payroll, accounts receivable, accounts payable and
fixed assets reports), accounting services, internal auditing services,
tax reporting and related services, and financial management and
treasury services;
(iii) Legal services;
(iv) Manufacturing and engineering services;
(v) Research and development services and services
pertaining to patents;
(vi) Employee pension plan and benefits management,
employee group insurance management, property and casualty insurance
management, risk management services, and employee health and safety
and personnel management services;
(vii) Traffic and transportation management and
leased-car program services;
(viii) Purchasing services;
(ix) Industrial relations services;
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(x) Public relations and marketing services;
(xi) Planning services;
(xii) Compliance Program administration and services;
and
(xiii) All other services to be provided to SPC by JSC
and its subsidiaries and affiliates in accordance with Paragraph 2
hereof.
(The General Management Services and the Elective Services are hereinafter
sometimes referred to collectively as the "Services", and the General Management
Services and each of the Elective Services are hereinafter sometimes referred to
individually as a "Service").
(b) Any Service provided to SPC hereunder shall be reasonably
necessary in the conduct of its business.
(c) Any Service hereunder shall be provided to SPC only by JSC
and its subsidiaries and affiliates or such consultants, subcontractors or
agents as may be selected from time to time by JSC.
2. Election by SPC.
At any time hereafter, the Chairman of the Board and Chief Executive
Officer and/or the President and Chief Operating Officer of SPC shall notify JSC
as to the Elective Services (if any) that JSC is to provide to SPC's SPPI and/or
SPSC divisions. Thereafter, JSC shall submit a fee proposal for same, and if
accepted by either of said officers of SPC, JSC shall provide and SPC shall
obtain and pay JSC for, those Elective Services as to which the parties have
agreed.
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3. Fees; Payment.
(a) In consideration for the General Management Services provided by
JSC to SPC hereunder, SPC shall pay to JSC annual fees or compensation therefor
(not including any related out-of-pocket expenses) in the amount of One Percent
(1%) of annual consolidated gross sales of the SPSC and SPPI divisions of SPC.
(b) In consideration for each Elective Service provided to SPC
hereunder SPC shall pay to JSC an amount equal to the agreed-upon fee for the
same; provided, however, in no event, shall such fee be higher than that which
would be charged in a commercial, unrelated third-party transaction for
comparable services.
(c) In addition to the fees referred to in Paragraphs (3)a) and 3(b)
hereof, SPC shall also pay to JSC an amount equal to all out-of-pocket expenses
paid by JSC in providing the General Management Services hereunder and/or
Elective Services hereunder including fees and expenses paid to consultants,
subcontractors and other third parties, in connection with such services.
(d) On or before the twentieth (20th) day of each month, JSC shall
furnish to SPC bills for the Services hereunder (plus related expenses) during
the immediately preceding month. Each such bill shall specify the fee billed for
each service provided during such previous month and shall identify in
reasonable detail any out-of-pocket expenses included in such bill.
(e) Each bill furnished to SPC hereunder shall be paid in full within
ten (10) days of the date of such bill. All payments of such bills shall be sent
to JSC at the following address:
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Jefferson Smurfit Corporation
8182 Maryland Avenue
P. O. Box 66820
St. Louis, Missouri 63105
Attention: Mr. John R. Funke
or to such other address as JSC may specify from time to time by written notice
to SPC.
4. Direct Expenses.
It is understood that the consideration to be paid by SPC to JSC for
Services hereunder shall not be in lieu of, and that SPC shall be directly
liable for, direct expenses incurred by SPC, or by JSC on SPC's behalf (other
than the out-of-pocket expenses billed to SPC by JSC pursuant to Paragraphs 3(c)
and 3(d) hereof), or by either the SPPI or SPSC division of SPC, for services
rendered to SPC or its SPPI or SPSC divisions by third parties, including, but
not limited to, legal and accounting fees and insurance premiums. SPC shall pay
any compensation (including employee benefit costs and any related out-of-pocket
expenses) to officers and other employees of SPC who provide substantially
full-time services to SPC, notwithstanding that said officers and other
employees may simultaneously be officers or employees of JSC or one of its
subsidiaries or affiliates.
5. Term.
The term of this Agreement shall commence on the date hereof and shall
continue until terminated upon not less than sixty (60) days' prior written
notice given at any time by either party to the other party.
6. Events of Default.
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Any one of the following shall constitute an Event of Default:
(a) The failure (other than by reason of an Event of Force
Majeure (as defined in Paragraph 8 hereof) or refusal of any party to comply
with, and perform its obligations under, this Agreement and such failure or
refusal continues unremedied for more than sixty (60) days after written notice
of the existence of such failure or refusal shall have been given to the failing
or refusing party by any of the parties;
(b) JSC or SPC is declared insolvent or bankrupt by any court
of competent jurisdiction, or a voluntary petition in bankruptcy is filed in any
court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is filed in any
court of competent jurisdiction against JSC or SPC and within forty-five (45)
days thereafter shall not have been dismissed or stayed (and, in the event of
any such stay, such stay shall not have been set aside and the petition
dismissed within forty-five (45) days after the stay shall have been granted);
(d) A trustee or receiver is appointed for JSC or SPC and
remains undischarged for more than forty-five (45) days after being appointed;
(e) A proceeding seeking a reorganization, arrangement,
liquidation or dissolution, of JSC or SPC is instituted in a court of competent
jurisdiction and remains undismissed for more than forty-five (45) days after
being instituted; or
(f) JSC or SPC voluntarily seeks any such reorganization or
arrangement or makes an assignment for the benefit of creditors.
7. Limitation of Liability; Indemnification.
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<PAGE>
(a) JSC and its subsidiaries and affiliates shall not be
liable to SPC, to any director, officer, stockholder, consultant or
subcontractor, of SPC, or to any person or entity controlling SPC or any such
stockholder, consultant or subcontractor of SPC, for any cost, damage, expense
or loss, including without limitation any special, indirect, consequential or
punitive damages, of SPC or any such officer, director, stockholder, consultant,
subcontractor or controlling person or entity, allegedly arising out of (i)
JSC's and/or its subsidiaries' and/or affiliates' failure to perform any
services for SPC hereunder or the misperformance of any such service, or (ii)
SPC's or such officer's, director's, stockholder's, consultant's,
subcontractor's or controlling person's or entity's reliance on any advice or
data JSC and/or its subsidiaries and affiliates may provide to SPC pursuant to
this Agreement.
(b) SPC shall indemnify JSC and each of its subsidiaries,
affiliates, officers, directors, employees, consultants and subcontractors, and
any Person or entity controlling JSC, its subsidiaries or affiliates, or any
such consultant or subcontractor and shall hold JSC and its subsidiaries and
affiliates and each such officer, director, employee, consultant, sub-contractor
and controlling person or entity, harmless against any damage, loss, cost or
expense (including court costs and reasonable attorneys' fees) which JSC, and
its subsidiaries and affiliates, or any such officer, director, employee,
consultant, sub-contractor or controlling Person or entity, may sustain or incur
by reason of any claim, demand, suit or recovery by any Person or entity arising
in connection with this Agreement or out of JSC's, its subsidiaries' or
affiliates', or any consultant's or subcontractor's, performance of JSC's
obligations under this Agreement, provided, however, that no officer of JSC may
benefit from the foregoing indemnity in the event of his serious criminal
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conduct, fraud or dishonesty.
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8. Force Majeure.
This Agreement shall not be terminated as a result of any failure of a
party to perform any of its obligations hereunder if such failure is due to
circumstances beyond its control (an "Event of Force Majeure"), including, but
not limited to, any requisition by any government authority, act of war, strike,
boycott, lockout, picketing, riot, sabotage, civil commotion, insurrection,
epidemic, disease, act of God, fire, flood, accident, explosion, earthquake,
storm, failure of public utilities or common carriers, mechanical failure,
embargo, or prohibition imposed by any governmental body or agency having
authority over the party, provided that at such time as an Event of Force
Majeure no longer exists, the respective obligations of the parties hereto shall
be reinstated and this Agreement shall continue in full force and effect. The
party affected by an Event of Force Majeure shall give prompt notice thereof to
the other parties hereto and each party each shall use its best efforts to
minimize the duration and consequences of, and to eliminate, any such Event of
Force Majeure.
9. Notices.
All notices and other communications required by or specifically
provided for in this Agreement shall be in writing and shall be deemed to have
been given (a) when delivered in person, (b) when sent by telex or telecopier
with answer back received, (c) twenty-four (24) hours after having been
deposited with any overnight courier, next-day delivery, or (d) seventy-two (72)
hours after having been deposited in the U.S. mails, certified mail with return
receipt requested and postage prepaid, and in any case addressed to the party
for which it is intended at that party's address as set forth below, or at such
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other address as the addressee shall have designated by notice hereunder to the
other party.
If to JSC:
Jefferson Smurfit Corporation
8182 Maryland Avenue
St. Louis, Missouri 63l05
Attention: J. R. Funke, Vice President
If to SPC:
Smurfit Packaging Corporation
8182 Maryland Avenue
St. Louis, Missouri 63105
Attention: J. B. Malloy, Chairman and President
Any notice or request sent by telecopier or similar facsimile telecommunication
shall be confirmed promptly by the sending of a copy of such notice or request
to the addressee thereof by prepaid certified mail, return receipt requested.
10. Amendment; Assignment; Binding Effect.
This Agreement may be amended or modified only by a written instrument
signed by the parties hereto. Neither party shall assign or transfer this
Agreement, in whole or in part, or any of such party's rights or obligations
hereunder, to any other person or entity without the prior written consent of
the other party.
11. Waiver; Severability.
The failure of a party to insist in any instance upon the strict and
punctual performance of any provision of this Agreement shall not constitute a
continuing waiver of such provision. No party shall be deemed to have waived any
right, power, or privilege under this Agreement or any provisions hereof unless
such waiver shall have been in writing and duly executed by the party to be
charged with such waiver, and such waiver
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<PAGE>
shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the waiving party or the obligations of the other
party in any other respect or at any other time. If any provision of this
Agreement shall be waived, or be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain binding and in full force and effect.
12. Relationship of the Parties.
In all matters relating to this Agreement, each party hereto shall be
solely responsible for the acts of its employees, and employees of one party
shall not be considered employees of the other party. Except as otherwise
provided herein, no party shall have any right, power or authority to create any
obligation, express or implied, on behalf of any other party.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to its conflict of laws
rules and laws.
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14. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, either oral or written, with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
JEFFERSON SMURFIT CORPORATION
By:____________________________
James B. Malloy,
President,
Chief Executive Officer and
Chief Operating Officer
SMURFIT PACKAGING CORPORATION
By:____________________________
James E. Terrill
Executive Vice President
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MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement is made as of the 1st day of
January, 1993 by and between JEFFERSON SMURFIT CORPORATION, a Delaware
corporation ("JSC"), and SEQUOIA PACIFIC VOTING EQUIPMENT INC., a Delaware
corporation ("SPVE").
W I T N E S S E T H:
WHEREAS, SPVE wishes to vest control of the management of the business
and affairs of SPVE in JSC in accordance with the terms and to the extent set
forth herein; and
WHEREAS, the parties hereto wish to set forth certain matters
concerning the provision of such services by JSC.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, JSC and SPVE agree as follows:
1. Management Services.
(a) The parties hereby agree that, during the period beginning
on the date hereof and continuing throughout the term hereof, JSC and its
subsidiaries and affiliates shall provide to SPVE (x) general management,
supervision and administrative services, and the preparation of the annual and
long-term business plans of SPVE ("General Management Services"), and (y) such
of the following services (the "Elective Services") as SPVE shall in accordance
with Paragraph 2 hereof determine SPVE requires at any time during the term
hereof:
(i) Management operating information systems (i.e., cost
estimating, customer order entry and reporting, invoicing, roll
stock inventory and reporting,
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<PAGE>
payroll reporting, price tracking, sales analysis,
forecasting, purchase order reporting, and credit management
reporting);
(ii) Management financial information services (i.e.,
general ledger, payroll, accounts receivable, accounts payable
and fixed assets reports), accounting services, internal
auditing services, tax reporting and related services, and
financial management and treasury services;
(iii) Legal services;
(iv) Manufacturing and engineering services;
(v) Research and development services and services
pertaining to patents;
(vi) Employee pension plan and benefits management,
employee group insurance management, property and casualty
insurance management, risk management services, and
employee health and safety and personnel management services;
(vii) Traffic and transportation management and leased-car
program services;
(viii) Purchasing services;
(ix) Industrial relations services;
(x) Public relations and marketing services;
(xi) Planning services;
(xii) Compliance Program administration and services; and
(xiii) All other services to be provided to SPVE by JSC
and its
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subsidiaries and affiliates in accordance with Paragraph 2
hereof.
(The General Management Services and the Elective Services are hereinafter
sometimes referred to collectively as the "Services", and the General Management
Services and each of the Elective Services are hereinafter sometimes referred to
individually as a "Service").
(b) Any Service provided to SPVE hereunder shall be reasonably
necessary in the conduct of its business.
(c) Any Service hereunder shall be provided to SPVE only by
JSC and its subsidiaries and affiliates or such consultants, subcontractors or
agents as may be selected from time to time by JSC.
2. Election by SPVE.
At any time hereafter, the President and Chief Executive Officer of
SPVE shall notify JSC as to the Elective Services (if any) that JSC is to
provide to SPVE. Thereafter, JSC shall submit a fee proposal for same, and if
accepted by said officer of SPVE, JSC shall provide and SPVE shall obtain and
pay JSC for, those Elective Services as to which the parties have agreed.
3. Fees; Payment.
(a) In consideration for the General Management Services provided by
JSC to SPVE hereunder, SPVE shall pay to JSC annual fees or compensation
therefor (not including any related out-of-pocket expenses) in the amount of One
Percent (1%) of annual consolidated gross sales of SPVE.
(b) In consideration for each Elective Service provided to SPVE
hereunder SPVE shall pay to JSC an amount equal to the agreed-upon fee for the
same; provided, however,
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in no event, shall such fee be higher than that which would be charged in a
commercial, unrelated third-party transaction for comparable services.
(c) In addition to the fees referred to in Paragraphs (3)a) and 3(b)
hereof, SPVE shall also pay to JSC an amount equal to all out-of-pocket expenses
paid by JSC in providing the General Management Services hereunder and/or
Elective Services hereunder including fees and expenses paid to consultants,
subcontractors and other third parties, in connection with such services.
(d) On or before the twentieth (20th) day of each month, JSC shall
furnish to SPVE bills for the Services hereunder (plus related expenses) during
the immediately preceding month. Each such bill shall specify the fee billed for
each service provided during such previous month and shall identify in
reasonable detail any out-of-pocket expenses included in such bill.
(e) Each bill furnished to SPVE hereunder shall be paid in full within
ten (10) days of the date of such bill. All payments of such bills shall be sent
to JSC at the following address:
Jefferson Smurfit Corporation
8182 Maryland Avenue
P. O. Box 66820
St. Louis, Missouri 63105
Attention: Mr. John R. Funke
or to such other address as JSC may specify from time to time by written notice
to SPVE.
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4. Direct Expenses.
It is understood that the consideration to be paid by SPVE to JSC for
Services hereunder shall not be in lieu of, and that SPVE shall be directly
liable for, direct expenses incurred by SPVE, or by JSC on SPVE's behalf (other
than the out-of-pocket expenses billed to SPVE by JSC pursuant to Paragraphs
3(c) and 3(d) hereof), for services rendered to SPVE by third parties,
including, but not limited to, legal and accounting fees and insurance premiums.
SPVE shall pay any compensation (including employee benefit costs and any
related out-of-pocket expenses) to officers and other employees of SPVE who
provide substantially full-time services to SPVE, notwithstanding that said
officers and other employees may simultaneously be officers or employees of JSC
or one of its subsidiaries or affiliates.
5. Term.
The term of this Agreement shall commence on the date hereof and shall
continue until terminated upon not less than sixty (60) days' prior written
notice given at any time by either party to the other party.
6. Events of Default.
Any one of the following shall constitute an Event of Default:
(a) The failure (other than by reason of an Event of Force
Majeure (as defined in Paragraph 8 hereof) or refusal of any party to comply
with, and perform its obligations under, this Agreement and such failure or
refusal continues unremedied for more than sixty (60) days after written notice
of the existence of such failure or refusal shall have been given to the failing
or refusing party by any of the parties;
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(b) JSC or SPVE is declared insolvent or bankrupt by any court of
competent jurisdiction, or a voluntary petition in bankruptcy is filed in any
court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is filed in any
court of competent jurisdiction against JSC or SPVE and within forty-five (45)
days thereafter shall not have been dismissed or stayed (and, in the event of
any such stay, such stay shall not have been set aside and the petition
dismissed within forty-five (45) days after the stay shall have been granted);
(d) A trustee or receiver is appointed for JSC or SPVE and
remains undischarged for more than forty-five (45) days after being appointed;
(e) A proceeding seeking a reorganization, arrangement,
liquidation or dissolution, of JSC or SPVE is instituted in a court of competent
jurisdiction and remains undismissed for more than forty-five (45) days after
being instituted; or
(f) JSC or SPVE voluntarily seeks any such reorganization or
arrangement or makes an assignment for the benefit of creditors.
7. Limitation of Liability; Indemnification.
(a) JSC and its subsidiaries and affiliates shall not be
liable to SPVE, to any director, officer, stockholder, consultant or
subcontractor, of SPVE, or to any person or entity controlling SPVE or any such
stockholder, consultant or subcontractor of SPVE, for any cost, damage, expense
or loss, including without limitation any special, indirect, consequential or
punitive damages, of SPVE or any such officer, director, stockholder,
consultant, subcontractor or controlling person or entity, allegedly arising out
of (i) JSC's
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and/or its subsidiaries' and/or affiliates' failure to perform any services for
SPVE hereunder or the misperformance of any such service, or (ii) SPVE's or such
officer's, director's, stockholder's, consultant's, subcontractor's or
controlling person's or entity's reliance on any advice or data JSC and/or its
subsidiaries and affiliates may provide to SPVE pursuant to this Agreement.
(b) SPVE shall indemnify JSC and each of its subsidiaries,
affiliates, officers, directors, employees, consultants and subcontractors, and
any Person or entity controlling JSC, its subsidiaries or affiliates, or any
such consultant or subcontractor and shall hold JSC and its subsidiaries and
affiliates and each such officer, director, employee, consultant, sub-contractor
and controlling person or entity, harmless against any damage, loss, cost or
expense (including court costs and reasonable attorneys' fees) which JSC, and
its subsidiaries and affiliates, or any such officer, director, employee,
consultant, sub-contractor or controlling Person or entity, may sustain or incur
by reason of any claim, demand, suit or recovery by any Person or entity arising
in connection with this Agreement or out of JSC's, its subsidiaries' or
affiliates', or any consultant's or subcontractor's, performance of JSC's
obligations under this Agreement, provided, however, that no officer of JSC may
benefit from the foregoing indemnity in the event of his serious criminal
conduct, fraud or dishonesty.
8. Force Majeure.
This Agreement shall not be terminated as a result of any
failure of a party to perform any of its obligations hereunder if such failure
is due to circumstances beyond its control (an "Event of Force Majeure"),
including, but not limited to, any requisition by any
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government authority, act of war, strike, boycott, lockout, picketing, riot,
sabotage, civil commotion, insurrection, epidemic, disease, act of God, fire,
flood, accident, explosion, earthquake, storm, failure of public utilities or
common carriers, mechanical failure, embargo, or prohibition imposed by any
governmental body or agency having authority over the party, provided that at
such time as an Event of Force Majeure no longer exists, the respective
obligations of the parties hereto shall be reinstated and this Agreement shall
continue in full force and effect. The party affected by an Event of Force
Majeure shall give prompt notice thereof to the other parties hereto and each
party each shall use its best efforts to minimize the duration and consequences
of, and to eliminate, any such Event of Force Majeure.
9. Notices.
All notices and other communications required by or
specifically provided for in this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered in person, (b) when sent by telex
or telecopier with answer back received, (c) twenty-four (24) hours after having
been deposited with any overnight courier, next-day delivery, or (d) seventy-two
(72) hours after having been deposited in the U.S. mails, certified mail with
return receipt requested and postage prepaid, and in any case addressed to the
party for which it is intended at that party's address as set forth below, or at
such other address as the addressee shall have designated by notice hereunder to
the other party.
If to JSC:
Jefferson Smurfit Corporation
8182 Maryland Avenue
St. Louis, Missouri 63l05
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Attention: J. R. Funke, Vice President
If to SPVE:
Sequoia Pacific Voting Equipment Inc.
Jones & Gifford Avenue
P. O. Box 1399
Jamestown, New York 14702
Attention: J. A. Hayssen, President
Any notice or request sent by telecopier or similar facsimile telecommunication
shall be confirmed promptly by the sending of a copy of such notice or request
to the addressee thereof by prepaid certified mail, return receipt requested.
10. Amendment; Assignment; Binding Effect.
This Agreement may be amended or modified only by a written
instrument signed by the parties hereto. Neither party shall assign or transfer
this Agreement, in whole or in part, or any of such party's rights or
obligations hereunder, to any other person or entity without the prior written
consent of the other party.
11. Waiver; Severability.
The failure of a party to insist in any instance upon the
strict and punctual performance of any provision of this Agreement shall not
constitute a continuing waiver of such provision. No party shall be deemed to
have waived any right, power, or privilege under this Agreement or any
provisions hereof unless such waiver shall have been in writing and duly
executed by the party to be charged with such waiver, and such waiver shall be a
waiver only with respect to the specific instance involved and shall in no way
impair the rights of the waiving party or the obligations of the other party in
any other
9
<PAGE>
<PAGE>
respect or at any other time. If any provision of this Agreement shall be
waived, or be invalid, illegal or
10
<PAGE>
<PAGE>
unenforceable, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain binding and in full force and effect.
12. Relationship of the Parties.
In all matters relating to this Agreement, each party hereto
shall be solely responsible for the acts of its employees, and employees of one
party shall not be considered employees of the other party. Except as otherwise
provided herein, no party shall have any right, power or authority to create any
obligation, express or implied, on behalf of any other party.
13. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to its
conflict of laws rules and laws.
11
<PAGE>
<PAGE>
14. Entire Agreement.
This Agreement constitutes the entire Agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, either oral or written, with respect
thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
JEFFERSON SMURFIT CORPORATION
By:____________________________
James B. Malloy, President,
Chief Executive Officer and
Chief Operating Officer
SEQUOIA PACIFIC VOTING EQUIPMENT INC.
By:____________________________
J. A. Hayssen, President and
Chief Executive Officer
12
<PAGE>
<PAGE>
PENSION AND INSURANCE SERVICES AGREEMENT
This Pension and Insurance Services Agreement is made this first day of
January 1997 by and between Jefferson Smurfit Corporation, a Delaware
corporation ("JSC") and Smurfit Packaging Corporation, a Delaware Corporation
(the "Company").
W I T N E S S E T H:
WHEREAS, commencing on the date hereof, the Company desires to obtain
from JSC, and JSC is willing to provide to the Company, certain pension and
insurance services on behalf of the Company's Pacific Recycling Company, Sequoia
Pacific Systems, Sequoia Pacific Voting Equipment, Smurfit Newsprint Corporation
of California and Smurfit Plastic Packaging, Inc. divisions, in accordance with
the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, JSC and the Company agree as follows:
l. (a) Beginning on the date hereof, and continuing until this
Agreement is terminated pursuant to Paragraph 4 hereof, JSC, through its Smurfit
Pension and Insurance Services Company division, shall provide or otherwise make
available to the Company, on behalf of the Company's Pacific Recycling Company,
Sequoia Pacific Systems, Sequoia Pacific Voting Equipment, Smurfit Newsprint
Corporation of California and Smurfit Plastic Packaging, Inc. divisions,
payroll, pension and insurance services ("Services") of the type and scope
provided to Jefferson Smurfit Corporation. Notwithstanding the foregoing, the
<PAGE>
<PAGE>
Services shall not include, and JSC shall not provide to the Company, any
services with respect to employee benefit plans operated as a multi-employer
union plan. The Services shall not include any services related to plan design
or establishment of new plans.
(b) In connection with the Services, administrative and pension fund
investment policy shall be determined by the Administrative Committee of
Jefferson Smurfit Corporation Retirement Plans.
(c) The Company shall formally appoint the Administrative Committee of
Jefferson Smurfit Corporation Retirement Plans as Plan Administrator of the
Company's pension and 401(k) plans.
2. (a) Subject to Paragraphs 2 (c) and 2 (d) hereof,in consideration
for the Services provided by JSC to the Company pursuant to this Agreement:
(l) (i) The Company shall pay to JSC a fee of $25,730 for the Services
on behalf of the Company's Pacific Recycling Company division for the period
beginning on the date hereof and ending on December 31, 1997 and thereafter an
annual fee as negotiated pursuant to Paragraph 2(d), in each case payable as
provided in paragraph 2(b) hereof.
(ii) The Company shall pay to JSC a fee of $86,560 for the Services on
behalf of the Company's Sequoia Pacific Systems division for the period
beginning on the date hereof and ending on December 31, 1997 and thereafter an
annual fee as negotiated pursuant to Paragraph 2(d), in each case payable as
provided in paragraph 2(b) hereof.
<PAGE>
<PAGE>
(iii) The Company shall pay to JSC a fee of $6,480 for the Services on
behalf of the Company's Sequoia Pacific Voting Equipment division for the period
beginning on the date hereof and ending on December 31, 1997 and thereafter an
annual fee as negotiated pursuant to Paragraph 2(d), in each case payable as
provided in paragraph 2(b) hereof.
(iv) The Company shall pay to JSC a fee of $102,770 for the Services on
behalf of the Company's Smurfit Newsprint Corporation of California division for
the period beginning on the date hereof and ending on December 31, 1997 and
thereafter an annual fee as negotiated pursuant to Paragraph 2(d), in each case
payable as provided in paragraph 2(b) hereof.
(v) The Company shall pay to JSC a fee of $118,930 for the Services on
behalf of the Company's Smurfit Plastic Packaging, Inc. division for the period
beginning on the date hereof and ending on December 31, 1997 and thereafter an
annual fee as negotiated pursuant to Paragraph 2(d), in each case payable as
provided in paragraph 2(b) hereof.
(2) The Company shall pay third parties for services incurred,
including but not limited to, administrative, consulting and actuarial
services. Additionally, the Company will be responsible for and shall
timely make actuarially determined pension contributions.
(3) The Company shall reimburse JSC for all costs paid for the benefit
of the Company under insurance policies, and for travel and entertainment
expenses incurred in providing the Services to the Company as provided in
Paragraph 2(b) hereof.
<PAGE>
<PAGE>
(b) The fees provided in Paragraph 2(a) (1) hereof shall be
payable by the Company to JSC on a quarterly basis within 30 days after the
beginning of the quarter to which such payment is attributable. The Company
shall reimburse JSC for insurance premiums and for travel and entertainment
expenses as provided in Paragraph (2) (a) (3) hereof from time to time upon
receipt by the Company from JSC of an invoice setting forth in reasonable detail
such fees and premiums, or of such documents or receipts substantiating such
travel and entertainment expenses; as the case may be.
(c) In addition to the fees and reimbursements payable by the Company
to JSC pursuant to Paragraph 2(a) hereof, in the event that at any time during
the term of this Agreement the performance by JSC of its obligations hereunder
requires unusual additional expenditures, including time by JSC personnel, and
for services rendered by third parties, JSC shall be entitled to charge an
additional fee to the Company as shall be reasonable and appropriate in light of
all factors relevant to adequately compensating JSC for providing the Services.
(d) The annual fees payable by the Company to JSC pursuant to Paragraph
2(a) hereof shall be revised on January 1, l998 and annually thereafter, (i) as
shall be reasonable and appropriate in light of all factors then existing and
relevant with respect to adequately compensating JSC for the Services and (ii)
as agreed by the parties hereto.
3. The term of this Agreement shall commence on the date hereof and
continue until
<PAGE>
<PAGE>
December 31, 1997, and shall automatically renew from year to year thereafter
until terminated by either party; provided, however, that each of the Company
and JSC may terminate this Agreement only upon not less than ninety days' prior
written notice given to the other party at any time on or after the first
anniversary of the date hereof.
4. Nothing contained herein shall be construed to relieve the directors
and officers of the Company from the performance of their respective duties, or
limit the exercise of their powers, in accordance with the certificate of
incorporation or by-laws of the Company, any applicable provisions of law, or
otherwise, or to limit any liability of any person arising in connection with
the conduct or status of such person as a director or officer of the Company.
5. Subject to such rights and limitations in ERISA as may not be waived
or modified by contract, JSC shall not be liable to the Company or to any
director, officer or employee of the Company, for any cost, damage, expense or
loss, including without limitation any special, indirect, consequential or
punitive damages, of the Company or any such officer or director, allegedly
arising out of (i) JSC's failure to perform any Services for the Company
hereunder unless such failure to perform results from the gross negligence of
JSC, or (ii) the Company's or such officer's, director's or employee's reliance
on any advice or data JSC may provide to the Company pursuant to this Agreement.
JSC makes no warranties of any kind, express or implied, with respect to the
Services provided hereunder except as expressly set forth herein.
6. Any notice or other communication required by or specifically
provided for in this
<PAGE>
<PAGE>
Agreement shall be in writing and shall be deemed to have been given when
delivered in person, when sent by telex, telecopier or similar
telecommunications device with answerback received, or seventy-two (72) hours
after being deposited in the U.S. mails, first class postage prepaid, addressed
as follows:
If to JSC:
Jefferson Smurfit Corporation
8182 Maryland Ave.
Clayton, Missouri 63105
Attn: Lyle L. Meyer
If to the Company:
Smurfit Packaging Corporation
8182 Maryland Ave.
Clayton, Missouri 63105
Attn: Michael W. J. Smurfit, Jr.
or to such other address as such party shall have designated by notice hereunder
to the other party.
7. This Agreement shall not be assignable by either party except with
the prior written consent of the other party hereto. Subject to the foregoing,
this Agreement shall inure to the benefit of, and be binding upon, the parties
and their respective successors and assigns.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Missouri without giving effect to its conflict of laws.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
JEFFERSON SMURFIT CORPORATION
By___________________________
Lyle L. Meyer
Vice President
SMURFIT PACKAGING CORPORATION
By____________________________
Michael W. J. Smurfit, Jr.
Chairman and Chief Executive Officer
<PAGE>
<PAGE>
PENSION AND INSURANCE SERVICES AGREEMENT
This Pension and Insurance Services Agreement is made this first day of
January 1997 by and between Jefferson Smurfit Corporation, a Delaware
corporation ("JSC") and Smurfit Latin America ("SLA"), a Division of Smurfit
Packaging Corporation, a Delaware Corporation.
W I T N E S S E T H:
WHEREAS, commencing on the date hereof, SLA desires to obtain from JSC,
and JSC is willing to provide to SLA, certain pension and insurance services, in
accordance with the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, JSC and SLA agree as follows:
l. (a) Beginning on the date hereof, and continuing until this
Agreement is terminated pursuant to Paragraph 3 hereof, JSC, through its Smurfit
Pension and Insurance Services Company division, shall provide or otherwise make
available to SLA the same pension and insurance services which it provides for
itself ("Services"). Notwithstanding the foregoing, the Services shall not
include, and JSC shall not provide to SLA, any services with respect to employee
benefit plans operated as a multi-employer union plan. Further, the Services
shall not include any services related to plan design or establishment of new
plans.
(b) In connection with the Services, administrative and pension fund
<PAGE>
<PAGE>
investment policy shall be determined by the Administrative Committee of
Jefferson Smurfit Corporation Retirement Plans.
2. (a) Subject to Paragraphs 2 (c) and 2 (d) hereof,in consideration
for the Services provided by JSC to SLA pursuant to this Agreement:
(l) SLA shall pay to JSC a fee of $215,500 for the Services for the
period beginning on the date hereof and ending on December 31, 1997 and
thereafter an annual fee as negotiated pursuant to Paragraph 2(d), in each case
payable as provided in paragraph 2(b) hereof.
(2) Subject to SLA's prior approval, SLA shall pay third parties,
retained by JSC, for services rendered in respect of this Agreement, including
but not limited to, administrative, consulting and actuarial services.
(3) SLA shall reimburse JSC for all reasonable costs paid by JSC for
the benefit of SLA under insurance policies, and for travel and entertainment
expenses incurred by JSC in providing the Services to SLA as provided in
Paragraph 2(b) hereof.
(b) The fee provided in Paragraph 2(a) (1) hereof shall be payable by
SLA to JSC on a quarterly basis, in four equal installments of $53,875 each,
within 30 days after the beginning of the quarter to which such payment is
attributable. SLA shall reimburse JSC for insurance premiums and for travel and
entertainment expenses as provided in Paragraph (2) (a) (3) hereof from time to
time upon receipt by SLA from JSC of invoices setting forth in
<PAGE>
<PAGE>
reasonable detail such fees and premiums, or of such documents or receipts
substantiating such travel and entertainment expenses; as the case may be.
(c) In addition to the fees and reimbursements payable by SLA to JSC
pursuant to Paragraph 2(a) hereof, in the event that at any time during the term
of this Agreement the performance by JSC of its obligations hereunder requires
unusual additional expenditures, including time by JSC personnel, and for
services rendered by third parties, JSC shall be entitled to charge an
additional fee to SLA as shall be reasonable and appropriate in light of all
factors relevant to adequately compensating JSC for providing the Services.
(d) The annual fee payable by SLA to JSC pursuant to Paragraph 2(a)
hereof shall be revised on January 1, l998 and annually thereafter, (i) as shall
be reasonable and appropriate in light of all factors then existing and relevant
with respect to adequately compensating JSC for the Services and (ii) as agreed
by the parties hereto.
3. The term of this Agreement shall commence on the date hereof and
continue until December 31, 1997, and shall automatically renew from year to
year thereafter until terminated by either party; provided, however, that each
of SLA and JSC may terminate this Agreement only upon not less than ninety days'
prior written notice given to the other party at any time on or after the first
anniversary of the date hereof.
4. Nothing contained herein shall be construed to relieve the officers
of SLA from the performance of their respective duties, or limit the exercise of
their powers in accordance with
<PAGE>
<PAGE>
any applicable provisions of law, or otherwise, or limit any liability of any
person arising in connection with the conduct or status of such person as an
officer of SLA.
5. Subject to such rights and limitations in ERISA as may not be waived
or modified by contract, JSC shall not be liable to SLA or to any officer or
employee of SLA, for any cost, damage, expense or loss, including without
limitation any special, indirect, consequential or punitive damages, of SLA or
any such officer, allegedly arising out of (i) JSC's failure to perform any
Services for SLA hereunder or the misperformance of any Services, unless such
failure or misperformance results from the gross negligence of JSC, or (ii)
SLA's or such officer's or employee's reliance on any advice or data JSC may
provide to SLA pursuant to this Agreement. JSC makes no warranties of any kind,
express or implied, with respect to the Services provided hereunder except as
expressly set forth herein.
6. Any notice or other communication required by or specifically
provided for in this Agreement shall be in writing and shall be deemed to have
been given when delivered in person, when sent by telex, telecopier or similar
telecommunications device with answerback received, or seventy-two (72) hours
after being deposited in the U.S. mails, first class postage prepaid, addressed
as follows:
If to JSC:
Smurfit Pension and Insurance
Services Company
8182 Maryland Ave.
<PAGE>
<PAGE>
Clayton, Missouri 63105
Attn: Lyle L. Meyer
If to SLA:
Smurfit Latin America
#1 Turnberry Place
19495 Biscayne Blvd., Ste. 300
North Miami Beach, FL 33180
Attn: German Esguerra
or to such other address as such party shall have designated by notice hereunder
to the other party.
7. This Agreement shall not be assignable by either party except with
the prior written consent of the other party hereto. Subject to the foregoing,
this Agreement shall inure to the benefit of, and be binding upon, the parties
and their respective successors and assigns.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Missouri without giving effect to its conflict of laws
provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
JEFFERSON SMURFIT CORPORATION
By___________________________
Lyle L. Meyer
Vice President
<PAGE>
<PAGE>
SMURFIT LATIN AMERICA DIVISION
SMURFIT PACKAGING CORPORATION
By____________________________
Pietro Filesi
Group Vice President & COO
<PAGE>
<PAGE>
EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
Organized Under Pecentage
Consolidated Subsidiaries: the Laws of Ownership
- -------------------------- ----------- ---------
<S> <C> <C>
A.H. Julius Rohde GmbH ........................................................... Germany 100%
Atlanta & Saint Andrews Bay Railroad Co. ......................................... Florida 100%
CCA de Baja California, S.A. de C.V .............................................. Mexico D.F. 100%
Cameo Container Corporation ...................................................... Illinois 100%
Cartomills France, S.A.R.L ....................................................... France 100%
Cartonnages Robert Delubac S.A.R.L ............................................... France 98.8%
Cousins Leasing Corporation ...................................................... New York 100%
DST Design Service Team, GmbH .................................................... Germany 100%
Dongguan Stone Millenium Paper & Packging Industries, Ltd. ....................... British Virgin 100%
Islands
Eurosave Institut fur Verpackungslogistik GmbH ................................... Germany 100%
Eurotrend Gesellschaft GmbH ...................................................... Germany 100%
Grundstrucks-Verwaltungsgesellschaft Altona mbh .................................. Germany 95%
IFP Institut Fur Packungssdesign GmbH ............................................ Germany 100%
IDENTITY Agent Fur Markendesign GmbH ............................................. Germany 100%
Indonesian Container Investments Corporation ..................................... British Virgin 100%
Islands
Industrial Cordobesa, S.A ........................................................ Spain 98%
Inversiones Stone de Argentina (BVI) Ltd ......................................... British Virgin 100%
Islands
Inversiones Stone de Chile (BVI) Ltd ............................................. British Virgin 100%
Islands
JSC Acquisition Corporation ...................................................... Delaware 100%
JSC Special Purpose Corporation .................................................. Delaware 100%
JSC International Sales, Inc. .................................................... Barbados 100%
JSCE, Inc. ....................................................................... Delaware 100%
Jefferson Smurfit Finance Corporation ............................................ Delaware 100%
Jefferson Smurfit Corporation (U.S.) ............................................. Delaware 100%
Leasing-Kontor fur Investitionsguter GmbH ........................................ Germany 100%
Orangeburg Trucking, Inc. ........................................................ South Carolina 100%
Packaging Unlimited, Inc. ........................................................ Delaware 100%
PT Stone Millenium Container Indonesia ........................................... Indonesia 100%
Quingdao Stone Millenium Paper & Packaging Industries, Ltd. ...................... British Virgin 100%
Islands
Smurfit Newsprint Corporation .................................................... Delaware 100%
SSJ Corporation .................................................................. Delaware 100%
Societe Europeenne de Carton S.A.R.L ............................................. France 95%
Southwest Forest Insurance Company, Ltd. ......................................... Bermuda 100%
Speditions-Gesellschaft Visurgis mbh ............................................. Germany 100%
Ston Forestal, S.A ............................................................... Costa Rica 100%
Ston Forestal Panama S.A ......................................................... Panama 100%
Stone Cartomills Luxembourg ...................................................... Luxembourg 100%
Stone Cartomills, S.A ............................................................ Belgium 100%
Stone Cevennes Emballages, S.A ................................................... France 98.8%
Stone Communications Corporation ................................................. Delaware 100%
Stone Container Administradora Argentina ......................................... British Virgin 100%
Islands
Stone Container Asia Corporation ................................................. Delaware 100%
Stone Container Australia Pty., Ltd. ............................................. Australia 100%
Stone Container (Canada) Inc. .................................................... Canada 100%
Stone Container de Mexico S.A. de C.V ............................................ Mexico 100%
Stone Container Finance Company of Canada ........................................ Canada 100%
Stone Container GmbH ............................................................. Germany 100%
Stone Container International Corporation ........................................ U.S. Virgin
Islands 100%
Stone Container Latin America Corporation ........................................ Delaware 100%
Stone Espana S.A ................................................................. Spain 100%
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Organized Under Pecentage
Consolidated Subsidiaries: the Laws of Ownership
- -------------------------- ----------- ---------
<S> <C> <C>
Stone Europa Carton AG ........................................................... Germany 100%
Stone Europapel S.A .............................................................. Spain 98%
Stone Global, Inc. ............................................................... Delaware 100%
Stone Graficarton S.A ............................................................ Spain 98.4%
Stone LAKI Corporation ........................................................... British Virgin 100%
Islands
Stone Millennium (China) Holdings, Ltd. .......................................... British Virgin 50%
Islands
Stone Papers, Inc. ............................................................... Delaware 100%
Stone Receivables Corporation .................................................... Delaware 100%
Stone/River House Australian Investments, Inc. ................................... Delaware 100%
Stone Snowflake Newsprint Company ................................................ Delaware 100%
Stone Truepenny H.K. Limited ..................................................... Hong Kong 100%
Stone Truepenny International, Inc. .............................................. British Virgin 100%
Islands
Stone-Ven Investments, Inc. ...................................................... Delaware 100%
Trobox Kartonnages B.V ........................................................... Netherlands 100%
Trobox Verpakkingen B.V .......................................................... Netherlands 100%
WWG Weser-Werstoff-Gesellschaft mbH .............................................. Germany 51%
Wellpappenwerk Waren GmbH ........................................................ Germany 100%
Non-consolidated Entities:
Abitibi-Consolidated, Inc. ....................................................... Canada 25%
Aspamill Inc. .................................................................... Canada 45%
Associated Paper Mills (Ontario) Limited ......................................... Canada 45%
B.C. Shipper Supplies Ltd. ....................................................... Canada 50%
Cajofe Industries S.A ............................................................ France 50%
Cartonex Bernal S.A .............................................................. Argentina 50%
Cartonex S.A. I.C.F.Y.F .......................................................... Argentina 50%
Cartonnages De France S.A ........................................................ France 48.8%
Corrupac S.A ..................................................................... Chile 50%
Dalton Paper Products ............................................................ Georgia 50%
Dyne-A-Pak ....................................................................... Canada 45%
Europa Carton B.V ................................................................ Netherlands 50%
Europa Carton Faltschachtel GmbH ................................................. Germany 50%
Europa Carton Holding B.V ........................................................ Netherlands 50%
FCP Robinson Cartons Ltd. ........................................................ United Kingdom 50%
Financiere Carton Papier ......................................................... France 50%
Florida Coast Paper Company, L.L.C ............................................... Delaware 50%
Florida Coast Paper Corporation .................................................. Delaware 50%
Florida Coast Paper Finance Corporation .......................................... Delaware 50%
Florida Coast Paper Holding Company, L.L.C ....................................... Delaware 50%
GfA-Gesellschaft fur Altpapier und Rohstoffe ..................................... Germany 33.3%
Groupement Forestier de Champlain Inc. ........................................... Canada 10%
Groveton Paper Board, Inc. ....................................................... New Hampshire 62.94%
ICO, Inc. ........................................................................ Canada 42%
ICP Logistiques S.A .............................................................. France 50%
Indupa Vertriebgesellschaft mbh & Co. KG.......................................... Germany 50%
Laimbeer Packaging Company L.L.C. ................................................ Delaware 50%
MacMillan Bathurst ............................................................... Canada 50%
MacMillan Bathurst, Inc........................................................... Canada 50%
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Organized Under Pecentage
Non-consolidated Entitiies: the Laws of Ownership
- --------------------------- ----------- ---------
<S> <C> <C>
Maritime Containers Limited ............................... Canada 35%
Maritime Paper Products Limited ........................... Canada 35%
ORPACK-Stone Corporation .................................. Delaware 49%
Paroco Rohstoffvetwertung GmbH ............................ Germany 49%
Rohstoffhandel Kiel GmbH .................................. Germany 37.5%
Rollcraft Inc. ............................................ Canada 45%
Rosenbloom Group Inc. ..................................... Canada 45%
S&G Packaging Company, L.L.C .............................. Delaware 65%
SCI Les Chenes ............................................ France 50%
St. Germain Cartonnages S.A ............................... France 50%
Serpac Containers Limited ................................. Canada 49.5%
Shanghai Stone Millennium Packaging & Paper Industries Ltd. China 50%
Shiffenhaus Canada Inc. ................................... Canada 16.66%
Smurfit/CIMIC Holdings Limited ............................ Cayman Islands 42.5%
Specialty Container ....................................... Canada 40%
Stone Container (Hong Kong) Limited ....................... Hong Kong 50%
Stone Container Japan Company, Ltd. ....................... Japan 50%
Stone MGC S.A ............................................. France 50%
Tradepak Internacional S.A. de C.V ........................ Mexico 30.8%
Tradepak International, Inc. .............................. Delaware 35.9%
Trans-Seal Corporation .................................... Japan 50%
Venepal S.A.C.A ........................................... Venezuela 19.7%
Venepal-Stone Forestal S.A ................................ Venezuela 59.1%
Vertriebsgesellschaft Rohstoffhandel Kiel GmbH ........... Germany 50%
Weedon Holdings Ltd. ...................................... United Kingdom 40%
</TABLE>
<PAGE>
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statements (i)
on Form S-3 (No. 333-66967) pertaining to the registration of shares of
Smurfit-Stone Container Corporation to be issued upon conversion of Stone
Container Corporation Series E Preferred Stock and Stone Container Corporation
6 3/4 percent Convertible Subordinated Debentures; (ii) on Form S-8 (No.
333-68221) pertaining to registration of shares under the Smurfit-Stone
Container Corporation Long Term Incentive Plan and shares under Stone Container
Corporation option plans converted to Smurfit-Stone Container Corporation shares
in the merger agreement; (iii) on Form S-8 (No. 33-57085) pertaining to
registration of shares under the Smurfit-Stone Container Corporation 1992 Stock
Option Plan; (iv) on Form S-8 (No. 333-31961) pertaining to registration of
additional shares under the Smurfit-Stone Container Corporation 1992 Stock
Option Plan; (v) on Form S-8 (No. 333-47143) pertaining to the registration of
shares under the Smurfit-Stone Container Corporation Management Incentive Plan;
and, (vi) on Form S-8 (No. 333-66421) pertaining to the registration of shares
under the Smurfit-Stone Container Corporation Hourly Savings Plan, the
Smurfit-Stone Container Corporation Savings Plan and the Smurfit Packaging
Corporation Savings Plan, of our report dated February 11, 1999, except for
Notes 5 and 15, as to which the date is March 23,1999 with respect to the
consolidated financial statements and schedule of Smurfit-Stone Container
Corporation included in the Annual Report (Form 10-K) for the year ended
December 31, 1998.
Ernst & Young LLP
Ernst & Young LLP
St. Louis, Missouri
March 25, 1999
<PAGE>
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Michael W. J. Smurfit, Roger W. Stone, and Patrick J. Moore, and each of them,
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign Annual Reports on Form 10-K and all required interim reports
and to file the same, with all exhibits thereto, and other documents in
connection therewith, regarding Smurfit-Stone Container Corporation, a Delaware
corporation, with the Securities and Exchange Commission and any other
regulatory authority, granting unto said attorney-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Michael W. J. Smurfit Chairman of the Board
- ---------------------------------------- and Director
Michael W. J. Smurfit
/s/ Roger W. Stone President, Chief Executive
- ---------------------------------------- Officer and Director
Roger W. Stone (Principal Executive Officer)
/s/ Raymond M. Curran Executive Vice President and
- ---------------------------------------- Deputy Chief Executive Officer
Raymond M. Curran Officer and Director
/s/ Patrick J. Moore Vice President and Chief Financial
- ----------------------------------------- Officer (Principal Accounting Officer) and
Patrick J. Moore (Principal Financial Officer)
/s/ Dionisio Garza Director
- -----------------------------------------
Dionisio Garza
/s/ Richard A. Giesen Director
- -----------------------------------------
Richard A. Giesen
/s/ Alan E. Goldberg Director
- -----------------------------------------
Alan E. Goldberg
/s/ Richard W. Graham Director
- -----------------------------------------
Richard W. Graham
/s/ Matthew S. Kaplan Director
- -----------------------------------------
Matthew S. Kaplan
/s/ James J. O'Connor Director
- -----------------------------------------
James J. O'Connor
/s/ Jerry K. Pearlman Director
- -----------------------------------------
Jerry K. Pearlman
/s/ Thomas A. Reynolds, III Director
- -----------------------------------------
Thomas A. Reynolds, III
/s/ Dermot F. Smurfit Director
- -----------------------------------------
Dermot F. Smurfit
</TABLE>
Date: February 11, 1999
<PAGE>
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<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
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<COMMON> 2
0
0
<OTHER-SE> 1,634
<TOTAL-LIABILITY-AND-EQUITY> 11,631
<SALES> 3,469
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<INCOME-PRETAX> (307)
<INCOME-TAX> (114)
<INCOME-CONTINUING> (194)
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<CHANGES> (3)
<NET-INCOME> (200)
<EPS-PRIMARY> (1.61)
<EPS-DILUTED> (1.61)
</TABLE>
