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Exhibit 10.2
THIRD AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
THIRD AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT (this "Agreement")
dated as of June 20, 2001 between BOWATER INCORPORATED, a corporation duly
organized and validly existing under the laws of the State of Delaware (the
"Company"); each of the Subsidiaries of the Company from time to time designated
as "Subsidiary Borrowers" hereunder pursuant to Section 7.02(a) of the Existing
Credit Agreement as defined below (each, a "Subsidiary Borrower" and, together
with the Company, the "Borrowers"); each of the lenders that is a signatory
hereto identified under the caption "BANKS" on the signature pages hereto or
that, pursuant to Section 12.06(b) of the Existing Credit Agreement, shall
become a "Bank" hereunder (individually, a "Bank" and, collectively, the
"Banks"); BANK OF AMERICA, N.A., as documentation agent; SUNTRUST BANKS INC., as
syndication agent; and THE CHASE MANHATTAN BANK, as administrative agent for the
Banks (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Borrowers, the Banks, and the
Administrative Agent are party to a Second Amended and Restated 364-Day Credit
Agreement dated as of June 21, 2000 (as heretofore amended and modified by
Amendment No. 1 to said Credit Agreement dated as of July 31, 2000, the
"Existing Credit Agreement"), providing for the making of loans by the Banks to
the Borrowers in an aggregate original principal amount up to $750,000,000; and
WHEREAS, the parties hereto desire to amend the Existing Credit Agreement
in certain respects (including to reduce the aggregate amount of the Commitments
thereunder) and to restate the Existing Credit Agreement in its entirety;
NOW, THEREFORE, the parties hereto agree to amend the Existing Credit
Agreement as set forth in Section 2 hereof and to restate the Existing Credit
Agreement to read in its entirety as set forth in the Existing Credit Agreement
(which Existing Credit Agreement is incorporated herein by this reference), as
amended by the amendments set forth in Section 2 hereof:
Section 1. Definitions. Capitalized terms used but not otherwise defined
herein have the meanings given them in the Existing Credit Agreement.
Section 2. Amendments. Subject to the satisfaction of the conditions
specified in Section 3 hereof, the Existing Credit Agreement shall be amended as
follows:
2.01. General. Each reference to the "Agreement" or to the "Existing
Credit Agreement" and words of similar import in the Existing Credit
Agreement, as amended and restated hereby, and in the promissory notes
Third Amended and Restated 364-Day Credit Agreement
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(provided for in Section 2.08(d) of the Existing Credit Agreement) shall be
a reference to the Existing Credit Agreement as amended and restated hereby
and as the same may be further amended, supplemented and otherwise modified
and in effect from time to time.
2.02. Definitions. Section 1.01 of the Existing Credit Agreement shall
be amended by adding and amending and restating the following definitions
(to the extent already included in said Section 1.01), as follows:
"Alliance" shall mean Alliance Forest Products Inc., a
corporation existing under the laws of Canada.
"Alliance Arrangement" shall mean the arrangement in respect of
Alliance and its shareholders under the provisions of Section 192 of
the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as
amended, on the terms and conditions set forth in the Plan of
Arrangement under and as defined in the Alliance Arrangement
Agreement.
"Alliance Arrangement Agreement" shall mean the Arrangement
Agreement dated as of April 1, 2001 between the Company and Alliance.
"Applicable Margin" shall mean: (a) with respect to Base Rate
Loans, 0.0000% per annum, except that during any Level V Period the
rate shall be 0.2500%; and (b) with respect to Eurodollar Loans, the
rate for such Loan for each rating level period set forth in the
schedule below:
Rating Eurodollar Loans
Level I Period 0.3150%
Level II Period 0.4200%
Level III Period 0.5250%
Level IV Period 0.6250%
Level V Period 1.0500%
Any change in the Applicable Margin for any Loan by reason of a change
in the Standard & Poor's Rating or the Moody's Rating shall become
effective on the date two Business Days after the announcement or
publication by the respective rating agencies of a change in such
rating or, in the absence of such announcement or publication, two
Business Days after the effective date of such changed rating.
Third Amended and Restated 364-Day Credit Agreement
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"Commitment" shall mean, for each Bank, the obligation of such
Bank to make Syndicated Loans in an aggregate amount at any one time
outstanding up to but not exceeding (a) in the case of a Bank that is
a party to the Third Amendment and Restatement on the date thereof,
the amount set opposite the name of such Bank on Schedule I thereto
under the caption "Commitment" or (b) in the case of any other Bank,
the aggregate amount of the Commitments acquired by it pursuant to
Section 12.06 hereof (in each case, as the same may be reduced from
time to time pursuant to Section 2.04 hereof or increased or reduced
pursuant to said Section 12.06(b)).
"Revolving Credit Termination Date" shall mean June 19, 2002, as
such date may from time to time be extended as provided in Section
2.10 of the Existing Credit Agreement.
"Third Amendment and Restatement" shall mean the Third Amended
and Restated 364-Day Credit Agreement dated as of June 20, 2001
between the Company, the Subsidiary Borrowers, the Banks and the
Administrative Agent.
2.03. Initial and Subsequent Loans. Section 7.03 of the Existing Credit
Agreement shall be amended by inserting "Section 8" in lieu of the reference to
"Section 8.01" in clause (b) therein.
2.04. Prohibition of Fundamental Changes. Section 9.05 of the Existing
Credit Agreement shall be amended by inserting ", and may consummate the
Alliance Arrangement" immediately after the word "hereof" in clause (a) therein.
2.05. Limitation on Liens. Section 9.06 of the Existing Credit Agreement
shall be amended by inserting "Section 9.11(g)" in lieu of the reference to
"Section 9.11(f)" in clause (j) therein.
2.06. Indebtedness. Section 9.11 of the Existing Credit Agreement shall be
amended by (i) deleting the "and" at the end of clause (e) therein, (ii)
deleting the "(f)" in clause (f) therein and placing the remaining text thereof
into a new clause "(g)" therein and (iii) inserting a new clause (f) therein to
read in its entirety as follows:
"(f) Indebtedness of (i) Bowater Pulp and Paper Canada Inc. in an
aggregate principal amount up to but not exceeding $110,000,000 and (ii)
one or more Subsidiaries of the Company in respect of bonds, debentures,
notes or similar instruments in a principal amount up to but not exceeding
$600,000,000 in the aggregate as to all such Subsidiaries, to be incurred
in connection with the refinancing of Indebtedness incurred by the Company
in connection with the Alliance Arrangement; and".
2.07. Dispositions. Schedule V to the Existing Credit Agreement shall be
amended by adding "timberlands located in the southeastern United States that
support the Company's Catawba operations" thereto.
Third Amended and Restated 364-Day Credit Agreement
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Section 3. Conditions. The amendment and restatement of the Existing Credit
Agreement contemplated hereby shall become effective as of June 20, 2001 (the
"Restatement Effective Date") upon the satisfaction prior to such date of each
of the following conditions to effectiveness (including, without limitation,
that each document to be received by the Administrative Agent shall be in form
and substance satisfactory to the Administrative Agent):
3.01. Execution. The Administrative Agent (or its counsel) shall have
received from each party hereto either (a) a counterpart of this Agreement
signed on behalf of such party or (b) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
3.02. Opinion. The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent and the
Banks and dated the Restatement Effective Date) of Wendy C. Shiba, Esq.,
Vice President, Secretary and Assistant General Counsel of the Company,
substantially in the form of Exhibit B to the Existing Credit Agreement
(with appropriate modifications to reflect the amendment and restatement
thereof contemplated hereby). The Company hereby requests such counsel to
deliver such opinion.
3.03. Certificate as to Incumbency. The Administrative Agent shall
have received a certificate of the Secretary or an Assistant Secretary of
the Company in respect of each of the officers (a) who are authorized to
sign this Agreement on the Company's behalf and (b) who will, until
replaced by another officer or officers duly authorized for that purpose,
act as its representative for the purposes of signing documents and giving
notices and other communications in connection with this Agreement, the
promissory notes and the transactions contemplated hereby.
3.04. Certificate of Authorized Officer. The Administrative Agent
shall have received a certificate of a duly authorized financial officer of
the Company, dated the Restatement Effective Date, stating that (a) no
Default has occurred and is continuing as of such date, and (b) the
representations and warranties contained in Section 8 of the Existing
Credit Agreement, as amended and restated hereby, are true and complete on
and as of such date with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly stated
to have been made as of a specific date, as of such specific date).
3.05. Fees and Expenses. The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to the Restatement
Effective Date, including (i) for the account of any Bank, the up-front fee
that the Company shall have agreed to pay or deliver to such Bank and (ii)
to the extent invoiced, including reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder.
Third Amended and Restated 364-Day Credit Agreement
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The Administrative Agent shall notify the Company and the Banks of the
occurrence of the Restatement Effective Date, and such notice shall be
conclusive and binding.
Section 4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
Section 5. Expenses. Without limiting its obligations under Section 12.03
of the Existing Credit Agreement, the Company agrees to pay, on demand, all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent as documented in reasonable detail, in connection
with the preparation and administration of this Agreement and the transactions
contemplated hereby.
Section 6. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 7. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amended and
Restated 364-Day Credit Agreement to be duly executed as of the date first above
written.
COMPANY
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BOWATER INCORPORATED
By: /s/ William G. Harvey
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Name: William G. Harvey
Title: Vice President and Treasurer
By: /s/ Wendy C. Shiba
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Name: Wendy C. Shiba
Title: Vice President, Secretary and
Assistant General Counsel
BANKS
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THE CHASE MANHATTAN BANK,
as Administrative Agent and a Bank
By: /s/ Gary L. Spevack
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Name: Gary L. Spevack
Title: Vice President
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BANK OF AMERICA, N.A.,
as Documentation Agent and a Bank
By: /s/ Kevin F. Sullivan
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Name: Kevin F. Sullivan
Title: Managing Director
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SUNTRUST BANKS INC.,
as Syndication Agent and a Bank
By: /s/ Nathan Bickford
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Name: Nathan Bickford
Title: Assistant Vice President
Third Amended and Restated 364-Day Credit Agreement
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THE BANK OF NEW YORK
By: /s/ David C Siegel
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Name: David C. Siegel
Title: Vice President
Third Amended and Restated 364-Day Credit Agreement
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TORONTO DOMINION (TEXAS), INC.
By: /s/ Jill Hall
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Name: Jill Hall
Title: Vice President
Third Amended and Restated 364-Day Credit Agreement
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WACHOVIA BANK, N.A.
By: /s/ Debra L. Coheley
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Name: Debra L. Coheley
Title: Senior Vice President
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THE BANK OF NOVA SCOTIA
By: /s/ William E. Zarrett
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Name: William E. Zarrett
Title: Managing Director
Third Amended and Restated 364-Day Credit Agreement
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BANK OF MONTREAL
By: /s/ Shahrokh Z. Shah
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Name: Shahrokh Z. Shah
Title: Vice President
Third Amended and Restated 364-Day Credit Agreement
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Andreas Schroeter
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Name: Andreas Schroeter
Title: Director
By: /s/ Walter T. Duffy III
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Name: Walter T. Duffy III
Title: Associate Director
Third Amended and Restated 364-Day Credit Agreement
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CIBC INC.
By: /s/ Howard Palmer
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Name: Howard Palmer
Title: Executive Director
Third Amended and Restated 364-Day Credit Agreement
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Schedule I
BANK COMMITMENT
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The Chase Manhattan Bank $70,000,000
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Bank of America, N.A. $55,000,000
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SunTrust Banks Inc. $55,000,000
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The Bank of New York $45,000,000
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Toronto Dominion (Texas), Inc. $45,000,000
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Wachovia Bank, N.A. $45,000,000
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The Bank of Nova Scotia $45,000,000
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Bank of Montreal $45,000,000
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Westdeutsche Landesbank
Girozentrale, New York Branch $30,000,000
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CIBC Inc. $15,000,000
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Third Amended and Restated 364-Day Credit Agreement
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