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EXHIBIT 10.1
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT dated as of June
23, 1999 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 (individually, a
"Bank" and, collectively, the "Banks"); 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 364-Day Credit Agreement dated as of
June 24, 1998 (as in effect prior to the date hereof, the "Existing Credit
Agreement"), providing for the making of loans by the Banks to the Company and
the Borrowers in an aggregate original principal amount up to $650,000,000; and
WHEREAS, the parties hereto desire to amend in certain
respects and to restate in its entirety the Existing Credit Agreement;
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 (and, in the case of Sections 2.03 and
2.04 below, Section 4 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 (provided for in Section 2.08(d) of the Existing Credit
Agreement) shall be a reference to the Existing Credit Agreement as
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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:
"Amendment and Restatement" shall mean the Amended
and Restated 364-Day Credit Agreement dated as of June 23,
1999 between the Company, the Subsidiary Borrowers, the Banks
and the Administrative Agent.
"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
Amendment and Restatement on the date thereof, the amount set
opposite the name of such Bank on the signature pages to the
Amendment and Restatement or (b) in the case of any other
Bank, the aggregate amount of the Commitments of other Banks
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
21, 2000, as such date may from time to time be extended as
provided in Section 2.10 of the Existing Credit Agreement.
2.03 Utilization Fee. (a) Section 2.05 of the Existing Credit
Agreement is amended by (i) (for convenience of reference only)
re-entitling said Section 2.05 "Facility and Utilization Fees", (ii)
placing the existing text of said Section 2.05 in its entirety and
without change into a paragraph designated "(a)" under said Section
2.05 and (iii) adding a new paragraph "(b)" thereto to read in its
entirety as follows:
"(b) The Company shall pay to the Administrative
Agent for account of each Bank a utilization fee at a rate per
annum equal to 0.25% on the aggregate outstanding principal
amount of the Syndicated Loans made by such Bank hereunder for
any period (during the period from and including June 23, 1999
to but not including the earlier of the date Commitments are
terminated and the Revolving Credit Termination Date) that the
aggregate principal outstanding amount of all Syndicated Loans
hereunder exceeds 50% of the net amount of the Commitments
after deducting the aggregate principal outstanding amount of
all Money Market Loans hereunder at such time. Accrued
utilization fee shall be payable on each Quarterly Date and on
the earlier of the date the Commitments are terminated and the
Revolving Credit Termination Date."
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(b) Sections 4.02 and 11.03 of the Existing Credit Agreement
are amended by adding the words "or utilization fee" after the term
"facility fee" appearing therein.
(c) Section 4.03 of the Existing Credit Agreement is amended
by adding the words "and utilization fee" after the term "facility fee"
appearing therein.
2.04. Lien Basket. Section 9.06(j) of the Existing Credit
Agreement is amended by replacing "10%" with "15%".
2.05. Indebtedness Basket. Section 9.11(f) of the Existing
Credit Agreement is amended by replacing "10%" with "15%".
Section 3. Conditions. The amendment and restatement of the
Existing Credit Agreement contemplated hereby shall become effective as of June
23, 1999 (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 Amended and Restated 364-Day Credit 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 Amended and Restated 364-Day Credit Agreement) that such
party has signed a counterpart of this Amended and Restated 364-Day
Credit 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 Amended and Restated 364-Day Credit 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 Amended and Restated
364-Day Credit 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
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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. Aggregate Outstanding Amount. On the Restatement
Effective Date, the aggregate outstanding principal amount of all Loans
made by the Banks to the Borrowers shall not be greater than
$150,000,000.
3.06. 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, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.
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. Effectiveness of Five-Year Credit Agreement
Amendments. Subject to the conditions precedent set forth in Section 3 hereof,
Sections 2.03 and 2.04 hereof shall become effective as of the Restatement
Effective Date upon the due execution and delivery of an amendment by the
required parties to the Five-Year Credit Agreement dated as of June 24, 1998
(the "Five-Year Agreement"), between the Company, the Subsidiary Borrowers, the
Banks party thereto and The Chase Manhattan Bank, as administrative agent
thereunder, that effects amendments to the Five-Year Agreement corresponding to
those contained in Sections 2.03 and 2.04 hereof.
Section 5. Readjustment of Loans. On the Restatement Effective
Date, the Banks shall take such actions, and make such adjustments among
themselves, as shall be necessary so that their outstanding Syndicated Loans are
held hereunder ratably in accordance with their respective Commitments as set
forth on the signature pages hereto under the caption "Commitment".
Section 6. Counterparts. This Amended and Restated 364-Day
Credit 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 Amended
and Restated 364-Day Credit Agreement by signing any such counterpart.
Section 7. 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, in connection with the
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preparation and administration of this Amended and Restated 364-Day Credit
Agreement and the transactions contemplated hereby.
Section 8. Binding Effect. This Amended and Restated 364-Day
Credit Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 9. Governing Law. This Amended and Restated 364-Day
Credit 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
Amended and Restated 364-Day Credit Agreement to be duly executed as of the date
first above written.
COMPANY
BOWATER INCORPORATED
Witness: /s/ Duane A. Owens By: /s/ William Harvey
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Name: William Harvey
Title: Vice President & Treasurer
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Robert Anastasio
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Name: Robert Anastasio
Title: Vice President
BANKS
Commitment
$16,500,000 THE CHASE MANHATTAN BANK
By: /s/ Robert Anastasio
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Name: Robert Anastasio
Title: Vice President
$15,000,000 THE BANK OF NEW YORK
By: /s/ Ann Marie Hughes
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Name: Ann Marie Hughes
Title: Vice President
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$15,000,000 NATIONSBANK, N.A
By: /s/ Michael W. Colon
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Name: Michael W. Colon
Title: Vice President
$15,000,000 FIRST UNION NATIONAL BANK
By: /s/ J. Andrew Phelps
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Name: J. Andrew Phelps
Title: AVP
$15,000,000 TORONTO DOMINION (TEXAS), INC.
By: /s/ Alva J. Jones
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Name: Alva J. Jones
Title: Vice President
$15,000,000 WACHOVIA BANK, N.A.
By: /s/ Suzanne Morrison
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Name: Suzanne Morrison
Title: Vice President
$12,000,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Robert Bottamedi
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Name: Robert Bottamedi
Title: Vice President
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$12,000,000 THE BANK OF NOVA SCOTIA
By: /s/ Patrick J. Hawes
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Name: Patrick J. Hawes
Title: Comptroller
$12,000,000 SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ J. Lee Lamprecht
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Name: J. Lee Lamprecht
Title: S.V.P.
$7,500,000 WESTDEUTSCHE LANDESBANK
GIROZENTRALE
NEW YORK BRANCH
By: /s/ Cynthia M. Niesen
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Name: Cynthia M. Niesen
Title: Managing Director
By: /s/ Walter T. Duffy
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Name: Walter T. Duffy III
Title: Vice President
$7,500,000 BANK OF MONTREAL
By: /s/ Brian L. Banke
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Name: Brian L. Banke
Title: Director
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$7,500,000 DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK, AG
CAYMAN ISLANDS BRANCH
By: /s/ Eric K. Zimmerman
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Name: Eric K. Zimmerman
Title: Assistant Vice President
By: /s/ Kurt A. Morris
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Name: Kurt A. Morris
Title: Vice President