CREDIT AGREEMENT
DATED AS OF OCTOBER 26, 2001
Between:
BOWATER CANADIAN FOREST PRODUCTS INC.
(as Borrower)
BOWATER INCORPORATED
(as Guarantor)
THE BANK OF NOVA SCOTIA
(as Administrative Agent)
-and-
THE BANKS FROM TIME TO TIME
PARTIES THERETO
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SECOND AMENDING AGREEMENT
DATED AS OF OCTOBER 7, 2003
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MCCARTHY TETRAULT LLP
(Montreal)
SECOND AMENDING AGREEMENT
(Credit Agreement dated as of October 26, 2001)
THIS AGREEMENT is made as of October 7, 2003, between BOWATER
CANADIAN FOREST PRODUCTS INC. (formerly Bowater Pulp and Paper Canada Inc.), a
corporation duly amalgamated and validly existing under the Canada Business
Corporations Act (the "Borrower"), BOWATER INCORPORATED, a corporation duly
organized and validly existing under the General Corporation Law of the State of
Delaware (the "Guarantor") and THE BANK OF NOVA SCOTIA ("ScotiaBank"), as
administrative agent, and each of the Banks (as defined in the Credit Agreement
referred to below) party hereto.
RECITALS
A. The Borrower, the Guarantor, various financial institutions,
as lenders, and ScotiaBank, as administrative agent, entered into a credit
agreement dated as of October 26, 2001, as amended from time to time (the
"Canadian Credit Agreement") providing for a 364-day revolving credit facility
in the principal amount of US $100,000,000.
B. Pursuant to the Canadian Credit Agreement, the Guarantor has
guaranteed the prompt payment in full when due of the Guaranteed Obligations (as
defined in the Canadian Credit Agreement).
C. The Borrower and the Guarantor, together with various
subsidiaries of the Guarantor, each as a borrower, various financial
institutions, as lenders, and JPMorgan Chase Bank, as administrative agent,
entered into a credit agreement dated as of May 22, 2002, as amended from time
to time (the "US Credit Agreement") providing for a revolving credit facility
and term loans in an aggregate principal amount of US $800,000,000.
D. On October 18, 2002, the parties entered into a First Amending
Agreement (the "First Amending Agreement") to amend the Canadian Credit
Agreement.
E. The parties wish to further amend the Canadian Credit
Agreement in order to (i) provide for an extension of the Revolving Credit
Termination Date, (ii) revise the margins for the calculation of interest rates
and the rates at which facility fees are calculated, (iii) conform the
definition of Consolidated Net Worth to the provisions of the US Credit
Agreement, and (iv) add a covenant to the effect that if any change is made to
the terms and conditions of the US Credit Agreement that is favourable or
beneficial to the lenders thereunder, then conforming changes will be made to
the Canadian Credit Agreement.
NOW, THEREFORE, the parties have made and entered into this
Agreement.
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ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS AND EXPRESSIONS
Unless such terms or expressions are defined differently,
capitalized terms and expressions used in this Agreement and defined in the
Canadian Credit Agreement have the respective meanings given to them in the
Canadian Credit Agreement.
ARTICLE 2
AMENDMENTS
2.1 EXTENSION OF REVOLVING CREDIT TERMINATION DATE
The definition of the term "Revolving Credit Termination Date"
in section 1.01 of the Canadian Credit Agreement is amended as follows:
""Revolving Credit Termination Date" shall mean October 22,
2004, as such date may from time to time be extended as provided in
Section 2.09 hereof".
2.2 APPLICABLE MARGIN WITH RESPECT TO US BASE RATE LOANS AND CDN
PRIME RATE LOANS
The Applicable Margin for any Level V Period with respect to
US Base Rate Loans and Cdn Prime Rate Loans shall be 0.750%.
2.3 APPLICABLE MARGIN WITH RESPECT TO OTHER LOANS
The Applicable Margin for any Level V Period with respect to
Loans other than US Base Rate Loans and Cdn Prime Rate Loans shall be 1.750%.
2.4 FACILITY FEES
The facility fee payable under Section 2.04(a) of the Canadian
Credit Agreement during any Level V Period shall be 0.500%.
2.5 CONSOLIDATED NET WORTH
The definition of the term "Consolidated Net Worth" in section
1.01 of the Canadian Credit Agreement is amended as follows:
""Consolidated Net Worth" means, as at any date, the sum, for
the Guarantor and its Consolidated Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP), of the
following:
(a) the amount of common stock, plus
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(b) the amount of any Preferred Stock, plus
(c) the amount of additional paid-in capital and retained
earnings (or, in the case of an additional paid-in
capital or retained earnings deficit, minus the
amount of such deficit), plus
(d) equity adjustments from (i) foreign currency
translations, (ii) unrealized gain/(loss) on hedged
transactions and (iii) any other items of accumulated
other comprehensive income (or loss), other than
minimum pension liability adjustments (in each case
of the foregoing clauses (i) through (iii), in the
case of negative adjustments, minus the amount of
such adjustments), it being understood that these
adjustments will be reflected in accordance with FASB
Statement No. 130 as accumulated other comprehensive
income (or loss), minus
(e) the unpaid principal amount of the loan (if any) to
the Guarantor's Employee Stock Ownership Plan (ESOP),
minus
(f) the cost of treasury stock."
2.6 CONFORMING AMENDMENTS
The following clause is added after section 9.13 of the
Canadian Credit Agreement:
"9.14 Conforming Amendments. If the Guarantor negotiates any
amendment to the terms and conditions of the US Credit Agreement (including any
changes to interest or fees payable thereunder), the Guarantor shall forthwith
notify the Administrative Agent and, if a similar amendment is deemed by the
Administrative Agent, acting on behalf of the Majority Banks, to be more
favourable or beneficial to the Banks than the existing terms of this Agreement,
the Borrower and the Guarantor shall, at the request of the Administrative
Agent, take such steps as may be necessary to amend this Agreement accordingly
and concurrently with the US Credit Agreement."
ARTICLE 3
GENERAL
3.1 CONFIRMATION OF CREDIT AGREEMENT
The parties acknowledge and agree that, except as amended
pursuant to this Agreement and to the First Amending Agreement, the provisions
of the Canadian Credit Agreement, including the guarantee granted by the
Guarantor, remain in full force and effect, unamended.
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3.2 AMENDMENT AND RENEWAL FEES
In consideration of the extension of the Revolving Credit
Termination Date and the amendments provided for herein, the Borrower shall pay
to each Bank a fee in an amount equal to 15 basis points of such Bank's
Commitment.
3.3 COUNTERPARTS
This Agreement may be executed in separate counterparts, all
of which taken together shall constitute one and the same instrument, and a
party may execute this Agreement by signing any such counterpart.
3.4 GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
3.5 EFFECTIVE DATE
This Agreement and the amendments to the Canadian Credit
Agreement provided for herein shall become effective on October 25, 2003.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
BOWATER CANADIAN FOREST PRODUCTS INC.,
as Borrower
By: /s/ William G. Harvey
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William G. Harvey
Vice President and Treasurer
BOWATER INCORPORATED, as Guarantor
By: /s/ David G. Maffucci
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David G.Maffucci
Senior Vice President and
Chief Financial Officer
[Signatures of the Agent and the Banks Follow]
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THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ David Maddocks
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David Maddocks
Director
By: /s/ Anuj Dhawan
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Anuj Dhawan
Associate Director
This is a counterpart signature page to the Second Amending
Agreement dated as of October 7, 2003 between Bowater Canadian Forest Products
Inc., as borrower, Bowater Incorporated, as guarantor, The Bank of Nova Scotia
as administrative agent and each of the lenders parties hereto as a Bank.
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THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ David Angel
------------------------------------
David Angel
Director
By: /s/ John Santillo
------------------------------------
John Santillo
Associate Director
This is a counterpart signature page to the Second Amending
Agreement dated as of October 7, 2003 between Bowater Canadian Forest Products
Inc., as borrower, Bowater Incorporated, as guarantor, The Bank of Nova Scotia
as administrative agent and each of the lenders parties hereto as a Bank.
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THE TORONTO-DOMINION BANK,
as a Bank
Per:
By: /s/ Debbi Brito
------------------------------------
Asst. Mgr. Corporate
Credit & Compliance
This is a counterpart signature page to the Second Amending
Agreement dated as of October 7, 2003 between Bowater Canadian Forest Products
Inc., as borrower, Bowater Incorporated, as guarantor, The Bank of Nova Scotia
as administrative agent and each of the lenders parties hereto as a Bank.
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CANADIAN IMPERIAL BANK OF COMMERCE,
as a Bank
By: /s/ Mark Chandler
------------------------------------
Mark Chandler
Executive Director
By: /s/ Bill Wolfe
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Bill Wolfe
Executive Director
This is a counterpart signature page to the Second Amending
Agreement dated as of October 7, 2003 between Bowater Canadian Forest Products
Inc., as borrower, Bowater Incorporated, as guarantor, The Bank of Nova Scotia
as administrative agent and each of the lenders parties hereto as a Bank.
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BANK OF MONTREAL,
as a Bank
By: /s/ Bruno Jarry
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Bruno Jarry
Director
BY:_____________________________________
This is a counterpart signature page to the Second Amending
Agreement dated as of October 7, 2003 between Bowater Canadian Forest Products
Inc., as borrower, Bowater Incorporated, as guarantor, The Bank of Nova Scotia
as administrative agent and each of the lenders parties hereto as a Bank.