<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1995
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 1-8712
BOWATER INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 62-0721803
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 East Camperdown Way, P.O. Box 1028, Greenville, SC 29602
(Address of principal executive offices) (Zip Code)
(803) 271-7733
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the 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
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes No
APPLICABLE ONLY TO CORPORATE ISSUERS
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of November 3, 1995.
Class Outstanding at November 3, 1995
Common Stock, $1.00 Par Value 39,067,761 Shares
<PAGE>
BOWATER INCORPORATED
I N D E X
Page
Number
PART I FINANCIAL INFORMATION
1. Financial Statements:
Consolidated Balance Sheet at September 30, 1995
and December 31, 1994 3
Consolidated Statement of Operations for the
Three and Nine Months Ended September 30, 1995
and October 1, 1994 4
Consolidated Statement of Capital Accounts
for the Nine Months Ended September 30, 1995 5
Consolidated Statement of Cash Flows for the
Nine Months Ended September 30, 1995 and October
1, 1994 6
Notes to Consolidated Financial Statements 7-8
2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9-13
PART II OTHER INFORMATION
6. Exhibits and Reports on Form 8-K 14
SIGNATURES 15
(2)
<PAGE>
PART I BOWATER INCORPORATED AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(Unaudited)
(In Thousands)
<TABLE>
<CAPTION>
September 30, December 31,
1995 1994
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents .......................... $ 206,687 $ 154,768
Accounts receivable, net ........................... 228,154 197,473
Inventories (Note 2) ............................... 168,246 151,097
Other current assets ............................... 15,957 10,487
Total current assets ............................. 619,044 513,825
Timber and timberlands ............................... 430,238 426,354
Fixed assets, net .................................... 1,733,117 1,785,046
Intangible assets .................................... 24,351 54,721
Other assets ......................................... 72,611 71,416
$ 2,879,361 $ 2,851,362
LIABILITIES AND CAPITAL
Current liabilities:
Current instalments of long-term debt .............. $ 1,600 $ 1,604
Accounts payable and accrued liabilities ........... 216,235 184,766
Income taxes payable ............................... 57,455 13,966
Dividends payable .................................. 10,636 10,276
Total current liabilities ........................ 285,926 210,612
Long-term debt, net of current instalments (Note 3) .. 816,924 1,116,887
Other long-term liabilities .......................... 163,897 157,936
Deferred income taxes ................................ 311,165 261,923
Minority interests in subsidiaries ................... 143,543 142,087
Commitments and contingencies (Note 4)
Redeemable LIBOR preferred stock ..................... 74,588 74,492
Shareholders' equity:
Series B convertible preferred stock .............. 111,333 111,333
Series C cumulative preferred stock (Note 5) ...... 81,892 81,892
Common stock ...................................... 39,482 37,121
Additional paid-in capital ........................ 406,550 336,990
Retained earnings ................................. 464,968 344,852
Equity adjustment from foreign currency translation (1,394) (3,410)
Loan to ESOT ...................................... (8,443) (9,643)
Treasury stock, at cost ........................... (11,070) (11,710)
Total shareholders' equity ....................... 1,083,318 887,425
$ 2,879,361 $ 2,851,362
</TABLE>
See accompanying notes to consolidated financial statements.
(3)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited, In Thousands Except Per Share Amounts
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, October 1, September 30, October 1,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Net sales .......................................................... $ 520,907 $ 348,151 $ 1,457,221 $ 977,109
Cost of sales (Note 6) ............................................. 299,428 268,921 882,020 797,540
Depreciation, amortization and cost of timber harvested............. 43,201 41,166 130,593 124,398
Gross profit ................................................... 178,278 38,064 444,608 55,171
Selling and administrative expense (Note 6) ........................ 23,642 17,241 75,039 54,764
Operating income ............................................... 154,636 20,823 369,569 407
Other expense (income):
Interest income .................................................. (2,328) (2,112) (5,570) (6,059)
Interest expense, net of capitalized interest (Note 7)............ 19,004 24,619 62,618 74,222
Gain on sale of timberlands ...................................... (1,489) (27,389) (1,874) (27,979)
Estimated loss on planned sale of BCPI (Note 8) .................. 30,000 -- 30,000 --
Other, net (Note 9) .............................................. (11,403) (1,779) (16,218) (3,703)
33,784 (6,661) 68,956 36,481
Income (loss) before income taxes and minority interests............ 120,852 27,484 300,613 (36,074)
Provision for income taxes (Note 10) ............................... 55,838 8,003 122,350 (15,512)
Minority interests in net income of subsidiaries ................... 6,911 8,955 15,276 5,233
Income (loss) before extraordinary charge .......................... 58,103 10,526 162,987 (25,795)
Extraordinary charge, net of taxes of $3,276 and
$7,084 respectively (Note 3) ..................................... (5,233) -- (11,317) --
Net income (loss) ............................................. $ 52,870 $ 10,526 $ 151,670 $ (25,795)
Earnings (loss) per common and common equivalent share (Note 11):
Income (loss) before extraordinary charge ........................ $ 1.27 $ 0.16 $ 3.66 $ (1.04)
Extraordinary charge ............................................. (0.12) -- (0.27) --
Net income (loss) .............................................. $ 1.15 $ 0.16 $ 3.39 $ (1.04)
Average common and common equivalent shares outstanding............. 43,420 36,971 42,250 36,527
Earnings (loss) per common share - assuming full dilution (Note 11):
Income (loss) before extraordinary charge ........................ $ 1.25 $ 0.16 $ 3.57 $ (1.04)
Extraordinary charge ............................................. (0.12) -- (0.26) --
Net income (loss) .............................................. $ 1.13 $ 0.16 $ 3.31 $ (1.04)
Average common and common equivalent shares outstanding.............. 44,301 36,971 43,273 36,527
</TABLE>
See accompanying notes to consolidated financial statements.
(4)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CAPITAL ACCOUNTS
Nine Months Ended September 30, 1995
(Unaudited)
(In Thousands Except Per Share Amounts)
<TABLE>
<CAPTION>
Series A Series B Series C Equity
LIBOR Convertible Cumulative Additional Adjustment -
Preferred Preferred Preferred Common Paid in Retained Foreign Loan to Treasury
Stock Stock Stock Stock Capital Earnings Currency ESOT Stock
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31,
1994 .................$ 74,492 $ 111,333 $ 81,892 $ 37,121 $ 336,990 $ 344,852 $ (3,410) $ (9,643) $ (11,710)
Net income .............. -- -- -- -- -- 151,670 -- -- --
Dividends on common stock
($.45 per share)....... -- -- -- -- -- (17,029) -- -- --
Dividends on preferred stock:
LIBOR ($2.02 per
share) ............... -- -- -- -- -- (3,030) -- -- --
Series B ($4.94 per
share) ............... -- -- -- -- -- (6,037) -- -- --
Series C ($6.30 per
share) ............... -- -- -- -- -- (5,355) -- -- --
Increase in stated value of
LIBOR preferred stock .. 96 -- -- -- -- (96) -- -- --
Common stock issued for
exercise of stock
options ................ -- -- -- 2,361 53,831 -- -- -- --
Tax benefit on exercise of stock
options.................. -- -- -- -- 15,400 -- -- -- --
Reduction in loan to ESOT . -- -- -- -- -- -- -- 1,200 --
Treasury stock used for
employee benefit and dividend
reinvestment plans...... -- -- -- -- 329 (7) -- -- 640
Foreign currency
translation ............ -- -- -- -- -- -- 2,016 -- --
Balance at September 30,
1995 ...................$ 74,588 $ 111,333 $ 81,892 $ 39,482 $ 406,550 $ 464,968 $ (1,394) $ (8,443) $ (11,070)
</TABLE>
See accompanying notes to consolidated financial statements.
(5)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(In Thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30, October 1,
1995 1994
<S> <C> <C>
Cash flow from (used for) operating activities:
Operating income $ 369,569 $ 407
Depreciation, amortization and cost of timber harvested 130,593 124,398
Changes in working capital:
Receivables (30,681) (19,285)
Inventories (17,149) (8,177)
Accounts payable and accrued liabilities 33,407 5,011
Other working capital (3,050) 656
Interest paid, net of capitalized interest (62,105) (64,380)
Interest received 5,570 6,059
Income taxes paid (9,180) (20,786)
Other income, net 6,857 10,627
423,831 34,530
Cash flow from (used for) investing activities:
Cash invested in fixed assets, timber and
timberlands (69,347) (81,870)
Disposition of fixed assets, timber and timberlands 3,096 29,368
(66,251) (52,502)
Cash flow from (used for) financing activities:
Issuance of Series B & C preferred stock, net of issuance costs -- 193,225
Cash dividends, including minority interests (31,057) (24,396)
Payments of long term debt (316,868) (1,203)
Redemption of preferred stock of subsidiary (15,000) (2,500)
Stock options exercised 56,192 4,237
Other 1,072 1,205
(305,661) 170,568
Increase in cash and cash equivalents 51,919 152,596
Cash and cash equivalents:
Beginning of year 154,768 81,666
End of period $ 206,687 $ 234,262
See accompanying notes to consolidated financial statements.
(6)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(1) The accompanying consolidated financial statements include the accounts of
Bowater Incorporated and Subsidiaries (the Company). The consolidated
balance sheets, statements of operations, capital accounts and cash flows
are unaudited. However, in the opinion of Company management, all
adjustments (consisting of normal recurring adjustments) necessary for
fair presentation of the interim financial statements have been made. The
results of the interim period ended September 30, 1995 are not necessarily
indicative of the results to be expected for the full year.
(2) The composition of inventories at September 30, 1995 and December 31, 1994
was as follows (in thousands):
September 30, 1995 December 31, 1994
(Unaudited)
At lower of cost or market:
Raw materials ................ $ 55,711 $ 37,597
Work in process .............. 2,775 3,333
Finished goods ............... 48,768 38,971
Mill stores and other supplies 79,159 80,723
186,413 160,624
Excess of current cost over
LIFO inventory value ........ (18,167) (9,527)
$ 168,246 $ 151,097
(3) On March 8, 1995, the Company completed an offer repurchasing
approximately $182 million of the $200 million principal amount of 8.5%
Notes previously outstanding. As a result, the Company recorded a first
quarter extraordinary charge of $6.1 million, net of taxes of $3.8
million, for the premium and expenses relating to the repurchase. On a
fully diluted basis, the earnings per share effect was $.14.
On July 31, 1995, the Company completed an offer repurchasing
approximately $117 million of the $125 million principal amount of 8.25%
Notes previously outstanding. As a result, the Company recorded a third
quarter extraordinary charge of $5.2 million, net of taxes of $3.3
million, for the premium and expenses relating to the repurchase. On a
fully diluted basis, the earnings per share effect was $.12.
(4) The Company is involved in various litigation relating to contracts,
commercial disputes, tax, environmental issues, workers' compensation and
other matters. The Company's management is of the opinion that the
ultimate disposition of these matters will not have a material adverse
effect on the Company's operations or its financial condition taken as a
whole.
(5) On October 16, 1995, the Company commenced an offer to purchase the
outstanding Depositary Shares, each representing a one-fourth interest in
a share of its 8.4% Series C Cumulative Preferred Stock having a face
value of $85 million. Unless extended, the offer will expire on November
15, 1995. The purchase price for each Depositary Share is $27.875.
(7)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(6) The line items entitled "Cost of sales" and "Selling and administrative
expense" in the Company's Consolidated Statement of Operations for the
nine months ended September 30, 1995, include charges of approximately
$18,000,000 and $6,000,000, respectively, relating to companywide
personnel reductions.
(7) Total interest expense for the third quarter of 1995 and 1994 was
$19,332,000 and $24,675,000, respectively, and for the first nine months
of 1995 and 1994, interest expense totaled $63,513,000 and $74,409,000,
respectively. The 1995 expense is lower due to a lower level of debt
compared to the 1994 expense.
(8) During the third quarter of 1995, the Company recorded an estimated loss
on the planned sale of its paper converting subsidiary, Bowater
Communications Papers, Inc. (BCPI) totaling $30.0 million in the
Consolidated Statement of Operations. Due to the loss deduction
limitation imposed by Federal income tax regulations, there are no
anticipated tax benefits relating to this loss. The Company reflected
this loss in the Consolidated Balance Sheet at September 30, 1995, as a
reduction of the purchased goodwill associated with BCPI on the line
entitled, "Intangible assets".
(9) The line item entitled "Other, net" in the Company's Consolidated
Statement of Operations for the third quarter and nine months ended
September 30, 1995, includes income of $7.1 million relating to the
settlement of a disputed charge with an equipment vendor.
(10) The effective tax rate for the third quarter of 1995 was 46.2 percent
versus 29.1 percent for the third quarter of 1994. On a year to date
basis, the effective rate was 40.7 percent in 1995 and 43.0 percent in
1994. Factors causing the disparity in these rates include the
recognition of an anticipated loss on the sale of BCPI in 1995 with no
related tax benefits, the application of a lower Canadian capital gains
tax rate to the sale of non-strategic timberlands in Nova Scotia in 1994,
and the significantly different levels of pretax income/loss reported in
these periods.
(11) The average number of common and common equivalent shares outstanding
increased at September 30, 1995, by 4,012,765 and 4,893,616 for the
primary and fully diluted earnings per share calculations, respectively,
as compared to October 1, 1994. The shares of Series B preferred stock
are common stock equivalents. The effect of the conversion of the Series
B preferred stock was antidilutive in 1994 and therefore those shares
were not used in calculating 1994's per share amounts. The calculation
of earnings per share for the third quarter and nine months ended
September 30, 1995, includes a deduction of $2,777,000 and $8,480,000,
respectively, for the dividend requirements of the Company's LIBOR and
Series C preferred stock and the amortization of the difference between
the net proceeds from the LIBOR preferred stock and its mandatory
redemption value. For the third quarter and nine months ended October 1,
1994, the calculation of per share amounts included a deduction of
$4,654,000 and $12,166,000, respectively, for the same items as well as
the dividend requirement of the Company's Series B preferred stock.
(8)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Management's Discussion and Analysis
of Financial Condition and Results of Operations
Summary
Net income for the third quarter of 1995 totaled $52.9 million, or
$1.13 per fully diluted share, on net sales of $520.9 million. Included in
1995's third quarter earnings was a charge of $30.0 million, or $.68 per fully
diluted share, related to the anticipated loss on the planned sale of BCPI and
an extraordinary charge of $5.2 million, or $.12 per fully diluted share,
related to the prepayment of $117 million of 8.25% Notes previously
outstanding. For the third quarter of 1994, the Company recorded net income
of $10.5 million, or $.16 per fully diluted share, on net sales of $348.2
million. Included in net income for the quarter was a $10.6 million gain
after tax, or $.29 per share, realized on the sale of non-strategic
timberlands primarily in Nova Scotia.
For the first nine months of 1995, the Company's net income was $151.7
million, or $3.31 per fully diluted share, on net sales of $1,457.2 million.
In addition to the two third quarter charges mentioned above, net income
includes an extraordinary charge of $6.1 million, or $.14 per fully diluted
share, for the prepayment of $182 million of 8.5% Notes previously
outstanding. For the first nine months of 1994, the Company incurred a net
loss of $25.8 million, or $1.04 per fully diluted share, on net sales of
$977.1 million.
Product Line Information:
(Unaudited, $ in thousands)
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, October 1, September 30, October 1,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Net sales:
Newsprint ........... $ 219,154 $ 156,071 $ 584,840 $ 441,182
Directory and
uncoated specialties 52,394 36,817 145,007 114,972
Coated groundwood ... 127,502 77,323 337,082 222,134
Pulp ................ 66,005 38,631 186,128 93,066
Communication papers 56,576 46,818 193,326 135,756
Lumber, stumpage and
other products ..... 26,382 23,799 90,120 67,102
Distribution costs .. (27,106) (31,308) (79,282) (97,103)
$ 520,907 $ 348,151 $ 1,457,221 $ 977,109
Operating income ...... $ 154,636 $ 20,823 $ 369,569 $ 407
</TABLE>
In the first quarter of 1995, the Company changed its classification of mill
handling expenses. These expenses are now classified as a cost of sale. In 1994,
the Company classified these expenses as a distribution cost. For comparison
purposes, the third quarter and nine months ended October 1, 1994 amounts for
the line entitled "Distribution costs" would be approximately $2.8 million and
$9.2 million lower, respectively. Prior year financial statements have not been
restated due to the prospective nature of the change.
(9)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Management's Discussion and Analysis
of Financial Condition and Results of Operations
Three Months Ended September 30, 1995 versus October 1, 1994
For the third quarter of 1995, the Company reached a new record for
operating income of $154.6 million. This compares to $20.8 million in the
third quarter of 1994. All of the Company's major product lines had improved
operating results due to higher transaction prices. A detailed review of the
Company's major product lines for the third quarter of 1995 follows.
The Company's average newsprint transaction price for the third quarter
of 1995 increased 50 percent compared to the same period last year and
increased 10 percent compared to the second quarter of 1995. The Company
implemented a 7 percent reduction in discounts allowed off list price in
December of 1994, and during the second quarter of 1995, reduced newsprint
discounts further while increasing the list price for a total of $125 per
metric ton. On September 1, 1995, the Company implemented a $75 per metric ton
list price increase. Since the beginning of 1994, stronger economic growth in
major consuming countries around the world has improved newsprint demand. This
growth, coupled with no significant capacity increases, has enabled the Company
to increase prices. Despite growth in the world market, consumption of
newsprint by U. S. daily newspapers declined approximately 6 percent comparing
the third quarter of 1995 to the same period last year, as a result of
conservation measures taken by the newspapers. Inventory levels of U. S. daily
newspaper publishers increased approximately 13 percent at September 30, 1995
compared to September 30, 1994 levels. Future newsprint price changes will
depend on global economic conditions and capacity decisions.
For the third quarter of 1995, the Company's coated groundwood paper
average transaction prices were 56 percent higher than the same period of 1994
and 11 percent higher compared to the second quarter of 1995. The Company's
tonnage shipments of coated groundwood paper increased 5 percent compared to
the third quarter of 1994. From October, 1994, through July, 1995, the Company
has increased its coated groundwood paper list price and reduced the discounts
allowed off list price by a total of $370 per short ton. Strong demand led to
these price increases as exemplified by U. S. magazine advertising pages, which
increased during the past three quarters and increased 5 percent in the third
quarter of 1995 compared to the third quarter of 1994. The continuation of
favorable market conditions in the third quarter enabled the Company to
announce an additional list price increase and discount reduction totaling
approximately $60 per short ton, effective October 1, 1995.
(10)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Management's Discussion and Analysis
of Financial Condition and Results of Operations
Three Months Ended September 30, 1995 versus October 1, 1994
The Company's average transaction prices for market pulp increased 67
percent in the third quarter of 1995 compared to the third quarter of 1994 and
9 percent compared to the second quarter of 1995. Since January 1995, through
June, 1995, the Company has increased its pulp prices by $220 per metric ton.
These price increases are a result of a worldwide economic expansion,
especially in the Far East and Europe, which significantly increased demand.
NORSCAN (U.S., Canada, Finland, Norway, and Sweden) shipments of softwood
market pulp during the third quarter of 1995 remained level with the same
period last year, while the Company's tonnage shipments increased 2 percent
comparing these periods. NORSCAN softwood inventory levels at the end of
September, 1995, increased slightly compared to September, 1994 levels.
Although there have been no significant market pulp expansions in the U. S. in
1995, new pulp mills have started up in Indonesia and Canada. This increase in
capacity may effect future price changes.
The Communication Papers Division results improved in the third quarter
of 1995 compared to the same period last year. Average transaction prices
increased significantly in the third quarter of 1995, offset in part by higher
raw material costs.
Operating results of the Company's lumber and stumpage products
decreased during the third quarter of 1995 compared to the third quarter of
1994 due mainly to lower lumber prices. Lumber prices continued to fall in the
third quarter of 1995, as a result of fewer housing starts.
Cost Reduction Program
The Company's manufacturing costs for the third quarter of 1995 and the
first nine months of 1995 increased compared to the same periods last year due
to higher raw material costs and higher maintenance costs at three of its five
paper mills. Certain fixed costs, however, decreased comparing these same
periods, partly offsetting the rise in raw material and maintenance costs. The
Company's current operating results continue to benefit from its cost reduction
program. Through September 30, 1995, the Company: reduced its outstanding debt
by approximately $300 million or 27 percent; reduced employment levels by 20
percent or 350 positions companywide; reduced capital expenditures by $12.5
million compared to the first nine months of 1994; and announced an offer to
purchase its outstanding 8.4% Series C Cumulative Preferred Stock. In addition
to cost reductions, the Company also continued efforts to monetize certain
nonstrategic assets in 1995. This has led to the sale of some timberlands and
the announcement of the Company's intention to sell BCPI, the Company's
wholly-owned paper converting subsidiary.
(11)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Management's Discussion and Analysis
of Financial Condition and Results of Operations
Nine Months Ended September 30, 1995 versus October 1, 1994
For the first nine months of 1995, the Company's operating income was
$369.6 million, compared to $.4 million in the first nine months of 1994. All
of the Company's major product lines had improved operating results due to
higher transaction prices.
The Company's average newsprint transaction price for the first nine
months of 1995 increased 42 percent compared to the same period last year. From
December, 1994, through September, 1995, the Company has increased its newsprint
list price and reduced the discounts allowed off list price by approximately
$250 per metric ton.
During the first nine months of 1995, the Company's coated groundwood
average transaction prices increased 41 percent from the same period last year,
while tonnage shipments increased 7 percent comparing the same periods. During
the first nine months of 1995, the Company reduced discounts and increased the
list price by a total of approximately $300 per short ton.
Average transaction prices for market pulp also increased in the
first nine months of 1995. The Company's average transaction prices increased
by approximately $330 per metric ton, or 76 percent compared to the first nine
months of 1994.
Liquidity and Capital Resources
The Company's operations generated $423.8 million of cash in the first
nine months of 1995 compared to $34.5 million in the same period last year.
This $389.3 million improvement came from several sources, the most significant
of which was the $369.2 million improvement in operating income. Tax payments
in the first nine months were $11.6 million lower than the same period last
year. Under the Federal estimated tax payment rules, the Company has been able
to defer payment of taxes on a significant portion of 1995's income until the
first quarter of 1996. Also, taxes paid in 1994 included a payment of $29.4
million related to prior tax years. Cash required for working capital
decreased $4.3 million. Interest paid decreased $2.3 million, comparing the
same periods, due to a lower level of outstanding debt in 1995. Due to the
strength of the markets it serves, the Company anticipates that the improvement
in cash flow from operations experienced in the first nine months will
continue.
Capital spending in the first nine months of 1995 was $12.5 million
below spending levels in 1994. The largest single capital expenditure in 1995
will be $14 million to complete a new effluent treatment facility at Bowater's
Liverpool, Nova Scotia mill. The Company will continue to closely monitor its
investment of capital and will fund total capital expenditures for 1995 of
approximately $105 million from internal cash flow.
(12)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
Management's Discussion and Analysis
of Financial Condition and Results of Operations
Liquidity and Capital Resources
On March 8, 1995, the Company prepaid approximately $182 million of its
8.5% Notes due 2001 having a face value of $200 million. On July 31, 1995, the
Company prepaid approximately $117 million of its 8.25% Notes due 1999, having a
face value of $125 million. The Company funded the debt prepayments from its
available cash and marketable securities. On October 16, 1995, the Company
commenced an offer to purchase the outstanding Depositary Shares, each
representing a one-fourth interest in a share of its 8.4% Series C Cumulative
Preferred Stock having a face value of $85 million. Unless extended, the offer
will expire on November 15, 1995. The purchase price for each Depositary Share
is $27.875.
On June 30, 1995, the Company's subsidiary, Calhoun Newsprint Company
(CNC), redeemed the remaining 150,000 shares of Series A Cumulative Serial
Preferred Stock ($100 par value) from its minority shareholder, Advance
Publications, Inc., requiring a cash payment of $15,000,000.
During the first nine months of 1995, the Company used $362.9 million of
cash for financing activities which included the prepayment of certain long term
debt, the payment of dividends, and the redemption of CNC's preferred stock.
Offsetting this amount was $56.2 million received from the exercise of stock
options during this period. The increase in the amount of stock option
exercises, compared to the first nine months of 1994, was due to significant
increases in the price of the Company's common stock since January 1, 1995. The
stock option exercises will also generate $15.4 million of future tax benefits
for the Company.
On May 22, 1995, the Company announced its intention to sell its
wholly-owned subsidiary, Bowater Communications Paper, Inc. (BCPI), a leading
converter and marketer of stock continuous forms. Although a well managed,
profitable operation, BCPI no longer fits within the Company's plans to focus on
core pulp and papermaking businesses.
The Company's $200 million Credit Agreement was due to expire in
December, 1995. During the third quarter of 1995, the Company canceled this
Agreement and signed a new $150 million Credit Agreement which expires in
September, 2000.
On October 11, 1995, Standard and Poor's raised the Company's credit
ratings on its senior debt from BBB-minus to BBB with a stable outlook, and on
its preferred stock from BB-plus to BBB-minus.
(13)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits (numbered in accordance with Item 601 of Regulation S-K):
Exhibit No. Description
3.1 Bylaws of the Company, amended as of July 26, 1995.
10.1 Credit Agreement, dated as of September 26, 1995,
among the Company, each of the banks signatory
thereto (the "Banks"), and The Chase Manhattan
Bank (National Association), as administrative
agent for the Banks.
10.2 Modification of Employment Agreement dated as of
October 1, 1995, by and between the Company and
Robert C. Lancaster.
27.1 Financial Data Schedule (electronic filing only).
(b) Reports on Form 8-K:
None
(14)
<PAGE>
BOWATER INCORPORATED AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements 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.
BOWATER INCORPORATED
By D. G. Maffucci
D. G. Maffucci
Senior Vice President -
Chief Financial Officer and
Treasurer
By M. F. Nocito
M. F. Nocito
Vice President - Controller
Dated: November 13, 1995
(15)
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
3.1 Bylaws of the Company, amended as of July 26, 1995.
10.1 Credit Agreement, dated as of September 26, 1995, among the Company, each of
the banks signatory thereto (the "Banks"), and The Chase Manhattan Bank
(National Association), as administrative agent for the Banks.
10.2 Modification of Employment Agreement dated as of October 1, 1995, by and
between the Company and Robert C. Lancaster.
27.1 Financial Data Schedule (electronic filing only).
</TABLE>
<PAGE>
As amended as of
July 26, 1995
BY-LAWS
OF
BOWATER INCORPORATED
ARTICLE 1
CERTIFICATE OF INCORPORATION
The purpose of the Corporation, certain rights and
powers of the Corporation and of its directors and stockholders, the
location of its registered office in the State of Delaware and its
capital stock shall all be as set forth in the Certificate of
Incorporation of the Corporation; and the management of the business
and the conduct of the affairs of the Corporation shall be subject to
the provisions of the said Certificate, which is hereby made a part of
these By-Laws. In case of any irreconcilable inconsistency between
the Certificate of Incorporation and these By-Laws, provisions in the
Certificate of Incorporation shall prevail.
All references in these By-Laws to the Certificate
of Incorporation shall be construed to mean the Certificate of
Incorporation of the Corporation as from time to time amended.
<PAGE>
ARTICLE 2
PLACE OF MEETINGS AND LOCATION OF OFFICES
The registered office of the Corporation in the State of
Delaware shall be in the City of Wilmington, County of New Castle, and
the Corporation shall have a resident agent, who may be either an
individual or a corporation, in charge thereof.
The stockholders and directors may hold their meetings and
have an office or offices outside of the State of Delaware.
ARTICLE 3
MEETINGS OF STOCKHOLDERS
Section 3.1. Annual Meeting. The annual meeting
of stockholders for the election of Directors and for such other
matters as may be properly brought before the stockholders meeting
shall be held in each year on such date and at such time and place
either within or without the State of Delaware as shall be determined
by resolution of the Board of Directors of the Corporation.
(7/26/95) Any business properly brought before an annual
meeting of stockholders may be transacted at that meeting. To be
properly brought before an annual meeting, the business must be (i)
specified in the written notice of the meeting (or any supplement
thereto) given by or at the direction of the Board of Directors or
otherwise brought before the meeting by or at the direction of the
Board of Directors, or (ii) otherwise properly brought before the
meeting by a stockholder. For business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given
2
<PAGE>
written notice of the proposed business, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the
Corporation, such that the Secretary shall receive such notice at
least 120 days prior to the anniversary date of the immediately
preceding annual meeting or not later than 10 days after notice or
public disclosure of the date of the annual meeting shall be given or
made to stockholders, whichever date shall be earlier. Subject to
Section 3.11 of these By-Laws, any such notice shall set forth as to
each item of business the stockholder shall propose to bring before
the annual meeting:
(a) a description of such item of business and the
reasons for conducting it at such meeting and, in the event that such
item of business shall include a proposal to amend either the
Certificate of Incorporation or these By-Laws, the text of the
proposed amendment;
(b) the name and address of the stockholder
proposing such item of business;
(c) the class and number of shares held of record,
held beneficially and represented by proxy by such stockholder as of
the record date for the meeting (if such a date has been established)
and as of the date of such notice and a representation that the
stockholder intends to appear in person or by proxy at the meeting to
propose such item of business; and
(d) any material interest of the stockholder in
such item of business.
Only business that shall have been properly brought
before an annual meeting of stockholders in accordance with these
3
<PAGE>
By-Laws shall be conducted at such meeting, and the officer or other
person presiding over the meeting as provided in Section 3.5 of these
By-Laws may refuse to permit any business to be brought before such
meeting that shall not have been properly brought before it in
accordance with these By-Laws.
Section 3.2. Special Meetings. Special meetings
of the stockholders may be called by the Board of Directors, the
Chairman of the Board of Directors, the President of the Corporation,
or a Committee of the Board of Directors which has been duly
designated by the Board of Directors and whose powers and authority,
as provided in a resolution of the Board of Directors or in these
By-Laws, include the power to call such meetings, and special meetings
may not be called by any other person or persons. Each such call
shall state the time, place and purpose of the meeting. The place of
the meeting may be any place stated in the call, within or outside the
State of Delaware.
(7/23/84) Section 3.3. Notice of Meetings. No action shall
be taken by the stockholders of the Corporation except at an annual or
special meeting of stockholders. Notice of each annual or special
meeting of the stockholders stating the place, day and hour thereof
and the purposes for which the meeting is to be held shall be given
the manner specified by Article 5 by the Secretary (or by a person
designated for the purpose either by the Secretary or by the person or
persons calling the meeting or by the Board of Directors), not less
than ten (10) or more than sixty (60) days prior to the meeting,
except that where the matter to be acted on is a merger or
consolidation of the Corporation, or a sale, lease or exchange of all
4
<PAGE>
or substantially all of its assets, such notice shall be given not
less than twenty (20) days nor more than sixty (60) days prior to such
meeting.
If any any meeting action is proposed to be taken
which, if taken, would entitle any stockholders to appraisal rights
pursuant to section 262 of the Delaware General Corporation Law, the
notice of such meeting shall also contain a statement of such purpose
and to that effect and shall be accompanied by a copy of that
statutory section.
Section 3.4. Stockholders List. The officer who
has charge of the transfer books for shares of the Corporation shall
prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept open at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 3.5. Organization of Meetings. At each
meeting of the stockholders the Chairman, or, in his absence, the
President, or, in their absence, any Vice President, or in all their
5
<PAGE>
absence, a stockholder, director or officer appointed by the Board of
Directors, or if they fail to act, chosen by a majority vote of the
stockholders present in person or by proxy and entitled to vote
thereat, shall act as chairman; and the Secretary, or, in his absence,
an Assistant Secretary, or, in the absence of the Secretary and all
Assistant Secretaries , a person whom the chairman of such meeting
shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
Section 3.6. Quorum. At any meeting of the
stockholders, unless otherwise provided by law or by the Certificate
of Incorporation, the holders of one-third of the shares of stock
issued and outstanding and entitled to vote upon a question to be
considered at the meeting, present in person or by proxy, shall be
necessary to and shall constitute a quorum for the consideration of
such question. If, however, a meeting of stockholders cannot be
organized because a quorum has not attended, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other
than announcement at the meeting at which the adjournment is taken of
the time and place of the adjourned meeting, until a quorum shall be
present or represented. In case of a meeting for the election of
directors, such meeting may be adjourned only from day to day or for
such longer periods, not exceeding fifteen days each, until such
directors have been elected. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted
which might have been transacted had a quorum been present at the time
originally fixed for the meeting. If the adjournment is for more than
6
<PAGE>
thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 3.7. Vote Required. When a quorum is
present at any meeting, all elections of directors shall be determined
by plurality vote, and all other questions brought before such meeting
shall be determined by the vote of stockholders present, in person or
by proxy, entitled to cast at least a majority of the votes which all
stockholders present are entitled to cast on the particular matter,
unless the question is one upon which, by express provision of the
laws of the State of Delaware or of the Certificate of Incorporation,
a different vote is required, in which case such express provision
shall govern and control the decision of such question.
Section 3.8. Voting. Each stockholder having the
right to vote shall at every meeting of the stockholders be entitled
to vote in person or by proxy; and unless otherwise provided by
statute or the Certificate of Incorporation, each stockholder of
record shall be entitled to one vote for each outstanding share
registered in his name on the books of the Corporation as of the
record date for determining the stockholders entitled to notice of and
to vote at such meeting.
Section 3.9. Proxies; Appointment and Revocation.
Each proxy shall be in writing, executed by the stockholder giving the
proxy or by his attorney thereunto authorized, or by a telegram, cable
or telex, filed with the Secretary of the Corporation; but no proxy
shall be voted after three years from its date, unless the proxy
expressly provides for a longer period. A proxy, unless coupled with
7
<PAGE>
an interest, shall be revocable at will, notwithstanding any other
agreement or any provision in the proxy to the contrary, but the
revocation of a proxy shall not be effective until notice thereof has
been given to the Secretary of the Corporation. A proxy shall not be
revoked by the death or incapacity of the maker unless, before the
vote is counted or the authority is exercised, written notice of such
death or incapacity is given to the Secretary of the Corporation.
Section 3.10. Judges of Election. In advance of
any meeting of stockholders, the Board of Directors may appoint judges
of election, who need not be stockholders, to act at such meeting or
any adjournment thereof. If judges of election be not so appointed,
the chairman of any such meeting may, and on the request of any
stockholder or his proxy shall, make such appointment at the meeting.
The number of judges shall be one or three as shall be determined by
the Board of Directors, except that, if appointed at the meeting on
the request of any stockholder or his proxy shall, make such
appointment at the meeting. The number of judges shall be one or
three as shall be determined by the Board of Directors, except that,
if appointed at the meeting on the request of one or more stockholders
or proxies, the holders of a majority of the shares of the Corporation
present and entitled to vote shall determine whether one or three
judges are to be appointed. No person who is a candidate for office
shall act as a judge.
In case any person appointed as a judge fails to
appear or fails or refuses to act, the vacancy may be filled by
8
<PAGE>
appointment made by the Board of Directors in advance of the convening
of the meeting, or at the meeting by the officer or person acting as
chairman.
The judges of election shall determine the number
of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the
authenticity, validity and effect of proxies, receive votes or
ballots, hear and determine all challenges and questions in any way
arising in connection with the right to vote, count and tabulate all
votes, determine the result, and do such other acts as may be proper
to conduct the election or vote with fairness to all stockholders.
The judges of election shall perform their duties impartially, in good
faith, to the best of their ability, and as expeditiously as is
practical. If there be three judges of election, the decision, act or
certificate of a majority shall be effective in all respects as the
decision, act or certificate of all.
On request of the chairman of the meeting, or of
any stockholder or his proxy, the judges shall make a report in
writing of any challenge or question or matter determined by them, and
execute a certificate of any fact found by them. Any report or
certificate made by them shall be prima facie evidence of the facts
stated therein.
(7/26/95) Section 3.11. Notification of Nominations. Subject
to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
9
<PAGE>
directors. Any stockholder entitled to vote for the election of
directors at a meeting may nominate persons for election as directors
only if written notice of the intent of such stockholder to make such
nomination shall be given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not
later than (i) with respect to an election to be held at an annual
meeting of stockholders, 120 days prior to the anniversary date of the
immediately preceding annual meeting and (ii) with respect to an
election to be held at a special meeting of stockholders for the
election of directors, the close of business on the seventh day
following the date on which notice of such meeting shall first be
given to stockholders. Each such notice shall set forth:
(a) the name and address of the stockholder who
shall intend to make the nomination and of the person or persons to be
nominated;
(b) the class and number of shares held of record,
held beneficially and represented by proxy by such stockholder as of
the record date of the meeting (if such a date has been established)
and as of the date of such notice and a representation that the
stockholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(c) a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder;
(d) such other information regarding each nominee
proposed by such stockholder as would have been required to be
10
<PAGE>
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee been nominated,or
intended to be nominated, by the Board of Directors; and
(e) the consent in writing of each nominee to
serve as a director of the Corporation if so elected.
The officer or other person presiding over the
meeting as provided in Section 3.5 of these By-Laws may refuse to
acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
ARTICLE 4
BOARD OF DIRECTORS
Section 4.1. Number, Election and Tenure. A Board
of Directors shall be chosen by ballot at the annual meeting of
stockholders or at a special meeting for that purpose held in place
thereof. No director need be a stockholder.
The number of directors constituting the whole
Board shall be not less than nine nor more than fifteen as fixed from
time to time by resolution of the whole Board; provided, that no
decrease in the number of directors shall shorten the term of any
incumbent director.
The Board of Directors shall be and is divided into
three classes, Class I, Class II and Class III. No one class shall
have more than one director more than any other class. If a fraction
is contained in the quotient arrived at by dividing the authorized
number of directors by three, then if such fraction is one-third, the
11
<PAGE>
extra director shall be a member of Class III, and if such fraction is
two-thirds, one of the extra directors shall be a member of Class III
and one of the extra directors shall be a member of Class II, unless
otherwise provided for from time to time by resolution of the Board of
Directors.
Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which
such director was elected; provided, however, that each initial
director in Class I shall serve for a term ending on the date of the
annual meeting next following the end of calendar year 1984; each
initial director in Class II shall serve for a term ending on the date
of the annual meeting next following the end of calendar year 1985;
and each initial director in Class III shall serve for a term ending
on the date of the annual meeting next following the end of calendar
year 1986.
In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such
shall nevertheless continue as director of the class of which he is a
member until the expiration of his current term, or his prior death,
retirement or resignation, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three classes of
directors so as to ensure that no one class has more than one director
more than any other class. To the extent possible consistent with the
foregoing rule, any newly created directorships shall be added to
those classes whose terms of office are to expire at the latest dates
following such allocation, and any newly eliminated directorships
12
<PAGE>
shall be subtracted from those classes whose terms of office are to
expire at the earliest dates following such allocation, unless
otherwise provided for from time to time by resolution of the Board of
Directors. Notwithstanding any provisions to the contrary contained
herein, each director shall serve until a successor is elected and
qualified or until his earlier death, resignation or removal.
Section 4.2. Resignation. Any director may resign
at any time by written notice to the Board of Directors, the Chairman,
the President or the Secretary. Such resignation shall take effect
immediately upon receipt thereof or at any later time specified
therein. Unless otherwise specified in any such notice, acceptance of
such resignation shall not be necessary to make it effective.
Section 4.3. Removal. A director may be removed
only for cause and only by the affirmative vote of the holders of at
least 75% of the shares then entitled to vote at an election of
directors, at a special meeting of the stockholders called and held
for that purpose.
Section 4.4. Vacancies; New Directorships. Any
vacancies in the Board of Directors occurring for any reason and any
newly created directorships resulting from any increase in the number
of directors may be filled only by the Board of Directors, acting by
(i) a vote of at least a majority of the remaining directors then in
office, though less than a quorum, if no Acquiring Stockholder (as
defined in the Certificate of Incorporation) has become such in the
twelve months immediately preceding the occurrence of such vacancy or
the creation of such new directorship, or (ii) a vote of at least 75%
of the Continuing Directors (as defined in the Certificate of
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<PAGE>
Incorporation) then in office, though less than a quorum, if an
Acquiring Stockholder has become such in the twelve months immediately
preceding in the occurrence of such vacancy or the creation of such
new directorship. Each director so chosen shall hold office until the
next election of directors of the class of which he is a member and
until his successor is duly elected and shall qualify, or until his
earlier death, resignation or removal. If there are no directors in
office, then an election of directors may be held in the manner
provided by statute. When one or more directors shall resign from the
board effective at a future date, the directors then in office,
including those who have so resigned, shall have power to fill such
vacancy or vacancies by acting in the manner specified in the first
sentence of this Section (except that for purposes of determining
whether clause (i) or clause (ii) shall be applicable, a vacancy shall
be deemed to have occurred at the time of such resignation), the vote
thereon to take effect when such resignation or resignations shall
become effective; and each such director so chosen shall hold office
as provided in this Section in the filling of other vacancies.
Section 4.5. Powers of Directors. The business
and affairs of the Corporation shall be managed by or under the
direction of its Board of Directors which shall have and may exercise
without limit all the powers of the Corporation and do all lawful acts
and things on its behalf, except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws.
Section 4.6. Meetings of the Board of Directors.
Regular meetings of the Board of Directors may be held at such place
and at such times as the Board may by vote from time to time
14
<PAGE>
determine, and, if so determined, no notice thereof need be given. If
any meeting date shall fall upon a legal holiday, such meeting shall
be held on the next succeeding business day at the same hour and at
the same place at which the meeting was to have been held.
Special meetings of the Board of Directors may be
held at any time and at any place when called by the Chairman, Vice
Chairman, President or by any four or more directors, upon five days'
notice thereof (which may include Sundays and holidays) being given to
each director in the manner specified in Article 5 hereof, or at any
time without call or formal notice, provided all the directors are
present or waive notice thereof in writing, signed before or after the
meeting.
Section 4.7. Meetings by Telephone Conference.
Members of the Board of Directors, or any committee designated by the
Board, may participate in any meeting of the Board or such Committee
by conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to these By-Laws shall
constitute presence in person at such meeting.
Section 4.8. Quorum of the Board of Directors. A
majority of the whole Board of Directors shall constitute a quorum for
the transaction of business. A majority of the directors present,
whether or not a quorum, may adjourn any meeting from time to time,
and the meeting may be held as adjourned without further notice. When
a quorum is present at any meeting, the vote of a majority of the
directors in attendance thereat shall be the act of the Board of
Directors, except where a vote of a larger number of the directors is
15
<PAGE>
required by law, by the Certificate of Incorporation or by these
By-Laws.
Section 4.9. Organization of Meetings. At each
meeting of the Board of Directors the Chairman, or, in his absence,
the Vice Chairman, or, in their absence, the President, or, in all
their absence, a director chosen by a majority of the directors
present, shall act as chairman; and the Secretary, or, in his absence,
an Assistant Secretary, or, in the absence of the Secretary and all
Assistant Secretaries, a person whom the chairman of such meeting
shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
Section 4.10. Action by Written Consent. Any
action required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
Section 4.11. Committees of Directors. The Board
of Directors may, by resolution or resolutions passed by a majority of
the whole Board, designate one or more committees, each committee to
consist of two or more of the directors of the Corporation, which, to
the extent provided in said resolution or resolutions, and subject to
the authority of the Board of Directors, shall have and may exercise
the powers of the Board of Directors in the management of the business
and affairs of the Corporation when the Board is not in session, and
may have power to authorize the seal of the Corporation to be affixed
to all papers which may require it. The Board of Directors may
16
<PAGE>
designate one or more directors as alternate members of any committee
who may replace any absent or disqualified member at any meeting of
such committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of such
absent or disqualified member. Such committee or committees shall
have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. The foregoing and any
other provision of these By-Laws notwithstanding, any delegation to a
committee of the power of the Board of Directors to take such actions
as would require a greater than majority vote or a specified vote of a
specified class of the directors in order for the Board itself to
adopt such actions must be made by such greater than majority vote or
such specified vote of the specified class of directors.
Section 4.12. Restrictions on Authority of
Committees. No committee shall have any power or authority to amend
the Certificate of Incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors, fix any
of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation
or the conversion into, or the exchange of such shares for, shares of
any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation), to adopt an
agreement of merger or consolidation, to recommend to the stockholders
17
<PAGE>
the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, to recommend to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, to
amend the By-Laws of the Corporation, or, unless the resolution
creating such committee expressly so provides, to declare a dividend,
authorize the issuance of stock or adopt a certificate of ownership
and merger pursuant to Section 253 of the Delaware General Corporation
Law.
Section 4.13. Procedures for Committees. Each
committee shall keep regular minutes of its proceedings and all action
by such committee shall be reported to the Board of Directors at its
meeting next succeeding such action. Each committee shall fix its own
rules of procedure, provided that such rules are consistent with these
By-Laws, and shall meet where and as provided by such rules or by
resolution of the Board of Directors. The presence of a majority of
the then appointed number of each committee shall constitute a quorum
and in every case in which a quorum is present an affirmative vote by
a majority of the members of the Committee present shall be the act of
the committee.
Section 4.14. Compensation of Directors. The
directors shall receive such compensation for their services as the
Board of Directors may from time to time determine; provided, however,
that directors who are also officers or employees of the Corporation
or a subsidiary of the Corporation shall not be entitled to any such
compensation as a director; and all directors shall be reimbursed for
their expenses of attendance at each regular or special meeting of the
Board of Directors. Members of any committee of directors may be
18
<PAGE>
allowed like compensation and reimbursement for expenses for serving
as members of any such committee and for attending committee meetings.
(1/23/85) Section 4.15. Mandatory Retirement. Inside
directors - those employed by the company - are required to resign at
age 65 (or at the time of retirement or other termination from company
employment, if earlier). Outside directors will not be able to stand
for re-election after reaching age 70.
ARTICLE 5
NOTICES
Section 5.1. Method of Giving Notice. Whenever,
under the provisions of any statute, or the Certificate of
Incorporation or these By-laws, notice is required to be given to any
director or stockholder, such notice shall be in writing and may be
delivered personally or by mail. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to such
person at this address as it appears on the records of the
Corporation. Notice to any director may also be given by telegram,
cable or telex or by leaving he notice at the residence or usual place
of business of such director.
Section 5.2. Waiver of Notice. Whenever any
notice is required to be given under the provisions of any statute,
the Certificate of Incorporation or these By-laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice,
whether given before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting of
19
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stockholders, in person or by proxy, or at a meeting of the Board of
Directors shall constitute a waiver of notice of such meeting, except
when a person attends such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Except in the case of a special meeting of stockholders or of the
Board of Directors, neither the business to be transacted at, nor the
purpose of, any meeting need be specified in any written waiver of
notice unless so required by the Certificate of Incorporation or these
By-laws.
ARTICLE 6
OFFICERS AND AGENTS
Section 6.1. Election, Tenure, etc. The Board of
Directors shall choose a President and a Secretary, and it may, if it
so determines, choose a Chairman of the Board and a Vice Chairman of
the Board from among its members. The Board of Directors may
determine from time to time which officers shall be designated Chief
Executive Officer and Chief Financial Officer, respectively, of the
Corporation. The Board of Directors may also choose one or more Vice
Presidents, a Controller and one or more Assistant Controllers, a
General Counsel and one or more Assistant General Counsels, one or
more Assistant Secretaries, a Treasurer and one or more Assistant
Treasurers. Each such officer shall hold such office until the first
meeting of the Board of Directors after the annual meeting of
stockholders next succeeding his election, and until his successor is
20
<PAGE>
elected and qualified or until his earlier death, resignation or
removal. Any officer may resign by written notice to the Corporation
and may be removed at any time with or without cause by the Board of
Directors. The officers shall receive such remuneration for services
under such terms as the Board of Directors shall determine. Except in
respect of the offices of President and Secretary, any person may hold
two or more offices. Each officer shall have in addition to such
duties and powers herein set forth such duties and powers not
inconsistent with these By-laws as the Board of Directors shall from
time to time designate.
Section 6.2. Executive Officers. The Chairman,
the Vice Chairman, the President, and the Vice President(s) shall have
such powers and functions as shall be determined by the Board of
Directors.
Section 6.3. Treasurer. The Treasurer shall,
subject to the direction and the supervision of the Board of Directors
(or such officer as the Board may appoint), have the care and control
of the funds of the Corporation. He shall maintain banking
arrangements and receive, have custody of and distribute the
Corporation's monies. He shall invest the surplus funds of the
Corporation as required and provide for the custody and delivery of
the investment securities in exchange for cash when appropriate. The
Treasurer shall have such number of Assistant Treasurers to assist him
in his duties having such powers as the Board of Directors shall from
time to time determine and appoint.
Section 6.4. Controller. The Controller shall,
subject to the direction and under the supervision of the Board of
21
<PAGE>
Directors (or such officer as the Board may appoint), keep or cause to
be kept accurate books of accounts which shall be the property of the
Corporation. He shall establish, coordinate and administer, as an
integral part of management, an adequate system for the control of
operations. He shall maintain systems for measuring actual operations
with operating plans and standards and report thereon. He shall
establish and maintain internal fiscal controls. The Controller shall
have such number of Assistant Controllers to assist him in his duties,
having such powers as the Board of Directors shall from time to time
determine and appoint.
Section 6.5. Secretary. The Secretary shall have
custody of the valuable papers of the Corporation (except the books of
account) and of the corporate seal and shall record all the
proceedings of the meetings of the stockholders, the Board of
Directors and the various committees of the Board in books kept for
those purposes and in the absence of the Secretary from any such
meeting an Assistant Secretary or a Secretary pro tempore shall record
the proceedings thereof.
The Secretary shall have such number of Assistant
Secretaries to assist him in his duties having such powers as the
Board of Directors may from time to time determine.
ARTICLE 7
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
Section 7.1. Authority of Officers. The Board of
Directors, except as otherwise provided in these By-laws, may
22
<PAGE>
authorize any officer or officers, agent or agents or employee or
employees of the Corporation to enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation,
and such authority may be general or confined to specific instances;
and, unless so authorized by the Board of Directors, no officer, agent
or employee shall have any power or authority to bind the Corporation
by any contract or engagement or to pledge its credit or to render it
liable pecuniarily for any purpose or to any amount.
Section 7.2. Authorized Loan; Security. No loan
shall be contracted on behalf of the Corporation, and no negotiable
paper shall be issued, endorsed or accepted in its name, unless
authorized by the Board of Directors. Such authority may be general
or confined to specific instances. When so authorized, the officer or
officers thereunder authorized may effect loans and advances at any
time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and of such
loans and advances may make, execute and deliver promissory notes or
other evidences of indebtedness of the Corporation; and, when
authorized as aforesaid, as security for the payment of any and all
loans, advances, indebtedness and liabilities of the Corporation, such
officers may mortgage, pledge, hypothecate or transfer any real or
personal property at any time owned or held by the Corporation, and to
that end execute instruments of mortgage or pledge or otherwise
transfer such property.
Section 7.3. Endorsement of Checks, etc. All
checks, drafts, bills of exchange or other orders for the payment of
money, obligations, notes or other evidences of indebtedness, bills of
23
<PAGE>
lading, warehouse receipts and insurance certificates of the
Corporation shall be signed or endorsed by such officer or officers,
agent or agents, attorney or attorneys or employee or employees of the
Corporation as shall from time to time be determined by resolution of
the Board of Directors. Each such officer or employee shall give such
bond, if any, as the Board of Directors may require.
Section 7.4. Deposit of Funds. All funds of the
Corporation not otherwise employed shall be deposited from time to
time to the credit of the Corporation in such banks, trust companies
or other depositaries as the Board of Directors may from time to time
designate, or as may be designated by an officer of officers, agent or
agents, attorney or attorneys or employee or employees of the
Corporation to whom such power may be delegated by the Board of
Directors.
Section 7.5. Bank Accounts. The Board of
Directors may from time to time authorize the opening and keeping of
general and special bank accounts with such banks, trust companies or
other depositaries as it may designate or as may be designated by an
officer or officers, agent or agents, attorney or attorneys or
employee or employees of the Corporation to whom power in that respect
shall have been delegated by the Board of Directors. The Board may
make such special rules and regulations with respect to such bank
accounts, not inconsistent with the provisions of these By-laws, as it
may deem expedient.
Section 7.6. Rights of Corporation as Stockholder.
Unless otherwise provided by resolution adopted by the Board of
Directors, the President or any Vice President may from time to time
24
<PAGE>
appoint an attorney or attorneys, or agent or agents, to exercise in
the name and on behalf of the Corporation the powers and rights which
the Corporation may have as the holder of stock or other securities in
any other corporation, to vote or to consent in respect of such stock
or other securities; and the President or any Vice President may
instruct the person or persons so appointed as to the manner of
exercising such powers and rights and may execute or cause to be
executed in the name and on behalf of the Corporation and under its
corporate seal, or otherwise, all such written proxies, powers of
attorney or other written instruments as he may deem necessary or
appropriate in order that the Corporation may exercise such powers and
rights.
ARTICLE 8
UNCERTIFICATED SHARES AND STOCK CERTIFICATES
Section 8.1. Uncertificated Shares. The Board of
Directors may provide by resolution or resolutions that some or all of
any or all classes or series of the Corporation's stock shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to
the corporation. Within a reasonable time after the issuance or
transfer or uncertificated stock, the Corporation shall send to the
registered owner thereof a written notice containing (a) any written
restriction on the transfer or registration of transfer of such stock
which is imposed by the Certificate of Incorporation or these By-Laws,
25
<PAGE>
(b) if such stock is issued pursuant to a voting trust agreement, a
statement of that fact and (c) if the Corporation shall be authorized
to issue more than one class of stock or more than one series of any
class, a full or summary statement of, or a statement that the
Corporation will furnish without charge to each stockholder who so
requests, the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights. Except as expressly provided by
law, the rights and obligations of the holders of uncertificated stock
and the rights and obligations of the holders of certificates
representing stock of the same class and series shall be identical.
Section 8.2. Stock Certificates. Notwithstanding
the adoption by the Board of Directors of a resolution providing for
uncertificated shares, every holder of stock represented by
certificates and upon request every holder of uncertificated shares
shall be entitled to a certificate, in such form as shall in
conformity to law be prescribed from time to time by the Board of
Directors, representing the number of shares owned by him in the
Corporation and registered in certificate form. Such certificate
shall be signed by, or in the name of the Corporation by the Chairman,
the Vice Chairman, the President or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall bear the seal of the Corporation; provided,
however, that, where such certificate is signed (1) by a transfer
agent or an assistant transfer agent or (2) by a transfer clerk acting
on behalf of the Corporation and a registrar, the signatures of the
26
<PAGE>
Chairman, Vice Chairman, President, Vice President, Treasurer,
Assistant Treasurer, Secretary or Assistant Secretary may be
facsimile. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any
such certificate or certificates shall have ceased to be such officer
or officers of the Corporation, whether because of death, resignation
or otherwise, before such certificate or certificates is issued, such
certificate or certificates may be issued by the Corporation with the
same effect as if he were such officer at the date of issue.
Section 8.3. Registration of Transfer. The Board
of Directors shall cause suitable records to be kept for the registry
and transfer of the shares of the capital stock of the Corporation.
Upon presentation to the Corporation or its transfer agent of a
certificate for shares duly indorsed by an appropriate person or an
instruction requesting the transfer, pledge or release of
uncertificated shares originated by the appropriate person, together
with reasonable assurance that such indorsement or instruction is
genuine and effective and such evidence of the payment of transfer
taxes and compliance with other provisions of law as the Corporation
or its transfer agent may require, the transfer, pledge or release
shall be registered as requested. No transfer of shares of stock
represented by a certificate shall be valid except upon the surrender
and cancellation of the old certificate or as provided in section 8.4
of these By-Laws.
Section 8.4. Loss of Certificate. In case of the
mutilation or of the alleged loss, theft or destruction of a
certificate of stock, a new certificate of stock or uncertificated
27
<PAGE>
shares may be issued in the place thereof. In the case of the
mutilation, loss, theft or destruction of a certificate, the Board of
Directors may, in its discretion, require the owner of the mutilated,
lost, stolen or destroyed certificate, or his legal representative, to
give the Corporation a bond sufficient to indemnify the Corporation
against any claim that may be made against it on account of the
alleged mutilation, loss, theft or destruction of such certificate or
the issuance of such new certificate or uncertificated shares,
accompanied by appropriate affidavit of mutilation, loss, theft or
destruction. A new certificate or uncertificated shares may be issued
without requiring a bond when in the judgment of the Board of
Directors it is proper to do so. The Board of Directors, however, may
in its discretion refuse to issue any such new certificates or
uncertificated shares except pursuant to legal proceedings under the
laws of the State of Delaware.
(4/22/86) Section 8.5. Restrictions on Transfer. The Board
of Directors may impose restrictions on the transfer of the rights, to
be distributed as a dividend pursuant to the Rights Agreement, dated
as of April 22, 1986, by and between the Corporation and Morgan
Guaranty Trust Company of New York, as and to the extent required by
such Rights Agreement, as amended from time to time.
ARTICLE 9
GENERAL PROVISIONS
Section 9.1. Fixing Record Date. In order that
the Corporation may determine the stockholders entitled to notice of
28
<PAGE>
or to vote at any meeting of stockholders of any adjournment thereof,
or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty
days prior to any other action. If no record date is fixed, then (a)
the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding
the day on which the meeting is held and (b) the record date for
determining stockholder for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of
record entitled to notice of, or to vote at, a meeting of stockholders
shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned
meeting in which case notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
Section 9.2. Registered Stockholders. The
Corporation shall be entitled to recognize a person registered on its
books as the holder of shares as the sole owner of such shares for all
purposes, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound
to recognize any equitable or other claim to or interest in such share
29
<PAGE>
or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by
the laws of Delaware. Without limiting the generality of the
foregoing, the Corporation shall be entitled to recognize the
exclusive right of a person whose holding of shares is so registered
on its books as of any record dated fixed or determined pursuant to
section 9.1 of these By-Laws to be treated as the sole owner of such
shares for the purpose for which such record date was so fixed or
determined.
Section 9.3. Dividends. Dividends upon the
outstanding stock of the Corporation, of any class or series, subject
to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in
shares of the corporation of any class or series, subject to the
provisions of the Certificate of Incorporation.
Section 9.4. Reserves. Before payment of any
dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the directors from time to
time in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such
other purpose as the directors shall think conducive to the interest
of the Corporation, and the directors may modify or abolish any such
reserve in the manner in which it was created.
Section 9.5. Fiscal Year. Except as from time to
time otherwise provided by the Board of Directors, the fiscal year of
30
<PAGE>
the Corporation shall be the calendar year.
Section 9.6. Seal. The seal of the Corporation
shall, subject to alteration by the Board of Directors, consist of a
flat faced circular die with the words "Bowater Incorporated,
Delaware, 1964, Corporate Seal" cut or engraved thereon. The seal may
be used by causing it or a facsimile thereof, to be impressed or
affixed or in any other manner reproduced.
ARTICLE 10
AMENDMENTS
New By-Laws of the Corporation may be adopted or
the By-Laws of the Corporation may be amended or repealed by a vote of
either a majority of the directors of the Corporation or a majority of
the voting power of the Corporation; provided, however, that any
By-Laws concerning the election of removal of directors, the range of
the number of directors, the exact number of directors within such
range or the method of fixing either such range or the exact number of
directors within such range, the classification of the Board of
Directors, the filling of vacancies on the Board of Directors, the
requirement, if then in the Certificate of Incorporation and these
By-Laws, that all stockholder action must be taken at an annual or
special meeting, the calling of special meetings of the stockholders,
or the method of adopting, amending or repealing of By-Laws may not be
amended, adopted or repealed, nor shall any other By-Law be amended,
adopted or repealed which will have the effect of modifying or
31
<PAGE>
permitting the circumvention of such By-Laws, unless such adoption,
amendment or repeal is approved by the affirmative vote of 75% of the
Continuing Directors (where such adoption, amendment or repeal may be
effected by the Board of Directors) or by the affirmative vote of the
holders of not less than 75% of the voting power of the Corporation.
The foregoing notwithstanding, in case of any irreconcilable
inconsistency between the Certificate of Incorporation and the By-Laws
of the Corporation, provisions in the Certificate of Incorporation
shall prevail.
32
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CONFORMED COPY
************************************************************
BOWATER INCORPORATED
_____________________________
CREDIT AGREEMENT
Dated as of September 26, 1995
______________________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
************************************************************
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to
which it is attached but is inserted for convenience of reference
only.
<TABLE>
<CAPTION>
Page
<S> <C>
Section 1. Definitions and Accounting Matters................................................................. 1
1.01 Certain Defined Terms.......................................................................... 1
1.02 Accounting Terms and Determinations............................................................ 15
1.03 Classes and Types of Loans..................................................................... 16
Section 2. Commitments, Loans, Notes and Prepayments.......................................................... 16
2.01 Syndicated Loans............................................................................... 16
2.02 Borrowings of Syndicated Loans................................................................. 17
2.03 Money Market Loans............................................................................. 17
2.04 Changes of Commitments......................................................................... 22
2.05 Facility Fee................................................................................... 22
2.06 Lending Offices................................................................................ 23
2.07 Several Obligations; Remedies Independent...................................................... 23
2.08 Notes.......................................................................................... 23
2.09 Prepayments and Conversions or Continuations
of Loans....................................................................................... 24
Section 3. Payments of Principal and Interest................................................................. 24
3.01 Repayment of Loans............................................................................. 24
3.02 Interest....................................................................................... 25
Section 4. Payments; Pro Rata Treatment; Computations;
Etc................................................................................................ 26
4.01 Payments....................................................................................... 26
4.02 Pro Rata Treatment............................................................................. 27
4.03 Computations................................................................................... 28
4.04 Minimum Amounts................................................................................ 28
4.05 Certain Notices................................................................................ 28
4.06 Non-Receipt of Funds by the Administrative
Agent.......................................................................................... 29
4.07 Sharing of Payments, Etc....................................................................... 30
Section 5. Yield Protection, Etc.............................................................................. 32
5.01 Additional Costs............................................................................... 32
5.02 Limitation on Types of Loans................................................................... 36
5.03 Illegality..................................................................................... 37
5.04 Treatment of Affected Loans.................................................................... 37
(i)
<PAGE> Page
5.05 Compensation................................................................................... 38
5.06 U.S. Taxes..................................................................................... 39
Section 6. Conditions Precedent............................................................................... 40
6.01 Initial Loan................................................................................... 40
6.02 Initial and Subsequent Loans................................................................... 42
Section 7. Representations and Warranties..................................................................... 43
7.01 Corporate Existence............................................................................ 43
7.02 Financial Condition............................................................................ 43
7.03 Litigation..................................................................................... 44
7.04 No Breach...................................................................................... 44
7.05 Action......................................................................................... 44
7.06 Approvals...................................................................................... 45
7.07 Use of Credit.................................................................................. 45
7.08 ERISA.......................................................................................... 45
7.09 Taxes.......................................................................................... 45
7.10 Investment Company Act......................................................................... 46
7.11 Public Utility Holding Company Act............................................................. 46
7.12 Material Agreements and Liens.................................................................. 46
7.13 Environmental Matters.......................................................................... 47
7.14 Subsidiaries, Etc.............................................................................. 47
7.15 True and Complete Disclosure................................................................... 47
Section 8. Covenants of the Company........................................................................... 48
8.01 Financial Statements Etc....................................................................... 48
8.02 Litigation..................................................................................... 51
8.03 Existence, Etc................................................................................. 51
8.04 Insurance...................................................................................... 52
8.05 Prohibition of Fundamental Changes............................................................. 53
8.06 Limitation on Liens............................................................................ 53
8.07 Consolidated Net Worth......................................................................... 55
8.08 Total Debt to Total Capital Ratio.............................................................. 55
8.09 Transactions with Affiliates................................................................... 55
8.10 Use of Proceeds................................................................................ 56
Section 9. Events of Default.................................................................................. 56
Section 10. The Administrative Agent........................................................................... 60
10.01 Appointment, Powers and Immunities............................................................. 60
10.02 Reliance by Administrative Agent............................................................... 61
10.03 Defaults....................................................................................... 61
10.04 Rights as a Bank............................................................................... 61
10.05 Indemnification................................................................................ 62
10.06 Non-Reliance on Administrative Agent and
Other Banks................................................................................. 62
(ii)
<PAGE> Page
10.07 Failure to Act................................................................................. 63
10.08 Resignation or Removal of Administrative Agent................................................. 63
Section 11. Miscellaneous...................................................................................... 64
11.01 Waiver......................................................................................... 64
11.02 Notices........................................................................................ 64
11.03 Expenses, Etc.................................................................................. 64
11.04 Amendments, Etc................................................................................ 66
11.05 Successors and Assigns......................................................................... 66
11.06 Assignments and Participations................................................................. 66
11.07 Survival....................................................................................... 68
11.08 Captions....................................................................................... 69
11.09 Counterparts................................................................................... 69
11.10 Governing Law; Submission to Jurisdiction...................................................... 69
11.11 Waiver of Jury Trial........................................................................... 69
11.12 Treatment of Certain Information............................................................... 69
SCHEDULE I - Material Agreements and Liens
SCHEDULE II - Subsidiaries
SCHEDULE III - Litigation
EXHIBIT A-1 - Form of Syndicated Note
EXHIBIT A-2 - Form of Money Market Note
EXHIBIT B - Form of Opinion of Counsel to
the Company
EXHIBIT C - Form of Opinion of Special
New York Counsel to Chase
EXHIBIT D - Form of Money Market Quote Request
EXHIBIT E - Form of Money Market Quote
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G - Form of Confidentiality Agreement
(iii)
<PAGE>
CREDIT AGREEMENT dated as of September 26, 1995, among:
BOWATER INCORPORATED, a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Company");
each of the lenders that is a signatory hereto identified under
the caption "BANKS" on the signature pages hereto or which,
pursuant to Section 11.06(b) hereof, shall become a "Bank"
hereunder (individually, a "Bank" and, collectively, the
"Banks"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a
national banking association, as administrative agent for the
Banks (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
The Company has requested that the Banks make loans to
it in an aggregate principal amount not exceeding $150,000,000 at
any one time outstanding, and the Banks are prepared to make such
loans upon the terms and conditions hereof. Accordingly, the
parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the
following terms shall have the following meanings (all terms
defined in this Section 1.01 or in other provisions of this
Agreement in the singular to have the same meanings when used in
the plural and vice versa):
"Affiliate" shall mean any Person that directly or
indirectly controls, or is under common control with, or is
controlled by, the Company and, if such Person is an individual,
any member of the immediate family (including parents, spouse,
children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members
of such immediate family and any Person who is controlled by any
such member or trust. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or
otherwise); provided that, in any event, any Person that owns
directly or indirectly securities having 10% or more of the
voting power for the election of directors or other governing
body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing,
(a) no individual shall be an Affiliate solely by reason of his
or her being a director, officer or employee of the Company or
any of its Subsidiaries and (b) none of the Subsidiaries of the
Company shall be Affiliates.
Credit Agreement
<PAGE>
- 2 -
"Applicable Lending Office" shall mean, for each Bank
and for each Type of Loan, the "Lending Office" of such Bank (or
of an affiliate of such Bank) designated for such Type of Loan on
the signature pages hereof or such other office of such Bank (or
of an affiliate of such Bank) as such Bank may from time to time
specify to the Administrative Agent and the Company as the office
by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean: (a) with respect to
Base Rate Loans, 0% per annum; 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 0.2000%
Level II Period 0.2250%
Level III Period 0.2850%
Level IV Period 0.3250%
Level V Period 0.5000%
Any change in the Applicable Margin for any Eurodollar Loan by
reason of a change in the Standard & Poor's Rating or the Moody's
Rating shall become effective on the date of announcement or
publication by the respective rating agencies of a change in such
rating or, in the absence of such announcement or publication, on
the effective date of such changed rating.
"Bankruptcy Code" shall mean the Federal Bankruptcy
Code of 1978, as amended from time to time.
"Base Rate" shall mean, for any day, a rate per annum
equal to the higher of (a) the Federal Funds Rate for such day
plus 1/2 of 1% and (b) the Prime Rate for such day. Each change
in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Base Rate Loans" shall mean Syndicated Loans that bear
interest at rates based upon the Base Rate.
"Business Day" shall mean (a) any day on which
commercial banks are not authorized or required to close in New
York City and (b) if such day relates to the giving of notices or
Credit Agreement
<PAGE>
- 3 -
quotes in connection with a LIBOR Auction or to a borrowing of, a
payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a LIBOR Market Loan or a notice by the Company with
respect to any such borrowing, payment, prepayment, Conversion or
Interest Period, any day on which dealings in Dollar deposits are
carried out in the London interbank market.
"Capital Lease Obligations" shall mean, for any Person,
all obligations of such Person to pay rent or other amounts under
a lease of (or other agreement conveying the right to use)
Property to the extent such obligations are required to be
classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards
Board), and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined
in accordance with GAAP (including such Statement No. 13).
"Chase" shall mean The Chase Manhattan Bank (National
Association).
"Class" shall have the meaning assigned to such term in
Section 1.03 hereof.
"Closing Date" shall mean the date on which this
Agreement shall have been executed and delivered by all parties
hereto.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"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 this Agreement on the date hereof,
the amount set opposite the name of such Bank on the signature
pages hereof under the caption "Commitment" or (b) in the case of
any other Bank, the aggregate amount of the Commitments of other
Banks acquired by it pursuant to Section 11.06(b) 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 11.06(b)). The original aggregate principal amount of
the Commitments is $150,000,000.
"Consolidated Subsidiary" shall mean, for any Person,
each Subsidiary of such Person (whether now existing or hereafter
created or acquired) the financial statements of which shall be
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(or should have been) consolidated with the financial statements
of such Person in accordance with GAAP.
"Consolidated Net Worth" shall mean, as at any date,
the sum, for the Company and its Consolidated Subsidiaries
(determined on a consolidated basis without duplication in
accordance with GAAP), of the following:
(a) the amount of common stock, plus
(b) the amount of any Preferred Stock, plus
(c) the amount of additional paid-in capital and
retained earnings (or, in the case of an additional paid-in
capital or retained earnings deficit, minus the amount of
such deficit), plus
(d) equity adjustments from foreign currency
translations (or, in the case of negative adjustments, minus
the amount of such adjustments), minus
(e) the unpaid principal amount of the loan to the
Company's Employee Stock Ownership Plan (ESOP), minus
(f) the cost of treasury stock.
"Continue", "Continuation" and "Continued" shall refer
to the continuation pursuant to Section 2.09 hereof of a Fixed
Rate Loan of one Type as a Fixed Rate Loan of the same Type from
one Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to
a conversion pursuant to Section 2.09 hereof of one Type of
Syndicated Loans into another Type of Syndicated Loans, which may
be accompanied by the transfer by a Bank (at its sole discretion)
of a Loan from one Applicable Lending Office to another.
"Default" shall mean an Event of Default or an event
that with notice or lapse of time or both would become an Event
of Default.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Environmental Laws" shall mean any and all present and
future Federal, state, local and foreign laws, rules and
regulations, and any orders or decrees, in each case as now or
hereafter in effect, relating to the regulation or protection of
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human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or
wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes.
"Equity Rights" shall mean, with respect to any Person,
any outstanding subscriptions, options, warrants, commitments,
preemptive rights or agreements of any kind (including, without
limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital
stock of any class, or partnership or other ownership interests
of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade
or business that is a member of any group of organizations
(i) described in Section 414(b) or (c) of the Code of which the
Company is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under
Section 302(f) of ERISA and Section 412(n) of the Code, described
in Section 414(m) or (o) of the Code of which the Company is a
member.
"Eurodollar Loans" shall mean Syndicated Loans the
interest rates on which are determined on the basis of rates
referred to in the definition of "Fixed Base Rate" in this
Section 1.01.
"Event of Default" shall have the meaning assigned to
such term in Section 9 hereof.
"Existing Credit Agreement" shall mean the Credit
Agreement dated as of December 8, 1992 among the Company, each of
the lenders party thereto and Chase as agent for such lenders, as
amended by Amendment No. 1 thereto and in effect on the date
hereof.
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of
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1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (a) if the day for
which such rate is to be determined is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published
on the next succeeding Business Day and (b) if such rate is not
so published for any Business Day, the Federal Funds Rate for
such Business Day shall be the average rate charged to Chase on
such Business Day on such transactions as determined by the
Administrative Agent.
"Fixed Base Rate" shall mean, with respect to any Fixed
Rate Loan for any Interest Period therefor: the arithmetic mean
(rounded upwards, if necessary, to the nearest 1/16 of 1%) of the
respective rates per annum quoted by each Reference Bank at
approximately 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two Business Days prior to the first day
of such Interest Period for the offering by such Reference Bank
to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in
an amount comparable to the principal amount of the Eurodollar
Loan or LIBOR Market Loan to be made by such Reference Bank for
such Interest Period. If any Reference Bank is not participating
in any Fixed Rate Loan during any Interest Period therefor, the
Fixed Base Rate for such Loan for such Interest Period shall be
determined by reference to the amount of the Loan that such
Reference Bank would have made or had outstanding had it been
participating in such Loan during such Interest Period; provided
that in the case of any LIBOR Market Loan, the Fixed Base Rate
for such Loan shall be determined with reference to deposits of
$15,000,000. If any Reference Bank does not timely furnish such
information for determination of any Fixed Base Rate, the
Administrative Agent shall determine such Fixed Base Rate on the
basis of the information timely furnished by the remaining
Reference Banks.
"Fixed Rate Loans" shall mean Eurodollar Loans and, for
the purposes of the definition of "Fixed Base Rate" in this
Section 1.01 and for the purposes of Section 5 hereof, LIBOR
Market Loans.
"GAAP" shall mean generally accepted accounting
principles applied on a basis consistent with those which, in
accordance with the last sentence of Section 1.02(a) hereof, are
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to be used in making the calculations for purposes of determining
compliance with this Agreement.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the
payment or maintenance of, or otherwise to be or become
contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person,
or an agreement to purchase, sell or lease (as lessee or lessor)
Property, products, materials, supplies or services primarily for
the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss,
and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other
similar instrument for the benefit of another Person, but
excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used
as a verb shall have a correlative meaning.
"Indebtedness" shall mean, for any Person:
(a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of Property to another Person subject to
an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of
Property or services, other than trade accounts payable (other
than for borrowed money) arising, and accrued expenses incurred,
in the ordinary course of business, so long as such trade
accounts payable are payable within 90 days of the date the
respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person;
(d) obligations (contingent or otherwise) of such Person in
respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for account of
such Person; (e) Capital Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
"Interest Period" shall mean:
(a) with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or
Converted from a Loan of another Type or the last day of the
next preceding Interest Period for such Loan and ending on
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the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Company may
select as provided in Section 4.05 hereof, except that each
Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month;
(b) with respect to any Set Rate Loan, the period
commencing on the date such Set Rate Loan is made and ending
on any Business Day up to 360 days thereafter, as the
Company may select as provided in Section 2.03(b) hereof;
and
(c) with respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and
ending on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter, as the
Company may select as provided in Section 2.03(b) hereof,
except that each Interest Period that commences on the last
Business Day of a calendar month (or any day for which there
is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest
Period for any Eurodollar Loan or Money Market Loan would
otherwise end after the Revolving Credit Termination Date, such
Interest Period shall end on the Revolving Credit Termination
Date; (ii) each Interest Period that would otherwise end on a day
which is not a Business Day shall end on the next succeeding
Business Day (or, in the case of an Interest Period for a
Eurodollar Loan or a LIBOR Market Loan, if such next succeeding
Business Day falls in the next succeeding calendar month, on the
next preceding Business Day); and (iii) notwithstanding
clause (i) above, no Interest Period for any Loan (other than a
Set Rate Loan) shall have a duration of less than one month and,
if the Interest Period for any Eurodollar or LIBOR Market Loan
would otherwise be a shorter period, such Loan shall not be
available hereunder for such period.
"Interest Rate Protection Agreement" shall mean, for
any Person, an interest rate swap, cap or collar agreement or
similar arrangement between such Person and one or more financial
institutions providing for the transfer or mitigation of interest
risks either generally or under specific contingencies.
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"Investment" shall mean, for any Person: (a) the
acquisition (whether for cash, Property, services or securities
or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of
any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by
the Person entering into such short sale); (b) the making of any
deposit with, or advance, loan or other extension of credit to,
any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or
otherwise, to resell such Property to such Person, but excluding
any such advance, loan or extension of credit having a term not
exceeding 90 days representing the purchase price of inventory or
supplies sold by such Person in the ordinary course of business);
(c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of
any other Person and (without duplication) any amount committed
to be advanced, lent or extended to such Person; or (d) the
entering into of any Interest Rate Protection Agreement.
"Level I Period" shall mean any period during which
(a) no Event of Default has occurred and is continuing and
(b) the Standard & Poor's Rating is at or above A- (or any
successor rating) or the Moody's Rating is at or above A3 (or any
successor rating).
"Level II Period" shall mean any period, other than a
Level I Period, during which (a) no Event of Default has occurred
and is continuing and (b) the Standard & Poor's Rating is at or
above BBB+ (or any successor rating) or the Moody's Rating is at
or above Baa1 (or any successor rating).
"Level III Period" shall mean any period, other than a
Level I Period or a Level II Period, during which (a) no Event of
Default has occurred and is continuing and (b) the Standard &
Poor's Rating is at or above BBB (or any successor rating) or the
Moody's Rating is at or above Baa2 (or any successor rating).
"Level IV Period" shall mean any period, other than a
Level I Period, a Level II Period or a Level III Period, during
which (a) no Event of Default has occurred and is continuing and
(b) the Standard & Poor's Rating is at or above BBB- (or any
successor rating) or the Moody's Rating is at or above Baa3 (or
any successor rating).
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"Level V Period" shall mean any period that is not a
Level I Period, a Level II Period, a Level III Period or a
Level IV Period.
"LIBO Margin" shall have the meaning assigned to such
term in Section 2.03(c)(ii)(C) hereof.
"LIBO Rate" shall mean, for any LIBOR Market Loan, a
rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal
to the rate of interest specified in the definition of "Fixed
Base Rate" in this Section 1.01 for the Interest Period for such
Loan.
"LIBOR Auction" shall mean a solicitation of Money
Market Quotes setting forth LIBO Margins based on the LIBO Rate
pursuant to Section 2.03 hereof.
"LIBOR Market Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of LIBO Rates
pursuant to a LIBOR Auction.
"Lien" shall mean, with respect to any Property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such Property. For purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any
Property that it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating
lease) relating to such Property.
"Loans" shall mean Syndicated Loans and Money Market
Loans.
"Majority Banks" shall mean, subject to the last
paragraph of Section 11.04 hereof, Banks having at least 66-2/3%
of the aggregate amount of the Commitments or, if the Commitments
shall have terminated, Banks holding at least 66-2/3% of the
aggregate unpaid principal amount of the Loans.
"Margin Stock" shall mean "margin stock" within the
meaning of Regulations U and X.
"Material Adverse Effect" shall mean a material adverse
effect on (a) the Property, business, operations, financial
condition, liabilities or capitalization of the Company and its
Subsidiaries taken as a whole, (b) the ability of the Company to
perform its obligations hereunder and under the Notes, (c) the
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validity or enforceability of this Agreement or of the Notes,
(d) the rights and remedies of the Banks and the Administrative
Agent hereunder and under the Notes or (e) the timely payment of
the principal of or interest on the Loans or other amounts
payable in connection therewith.
"Money Market Borrowing" shall have the meaning
assigned to such term in Section 2.03(b) hereof.
"Money Market Loans" shall mean the loans provided for
by Section 2.03 hereof.
"Money Market Notes" shall mean the promissory notes
provided for by Section 2.08(b) hereof and all promissory notes
delivered in substitution or exchange therefor, in each case as
the same shall be modified and supplemented and in effect from
time to time.
"Money Market Quote" shall mean an offer in accordance
with Section 2.03(c) hereof by a Bank to make a Money Market Loan
with one single specified interest rate.
"Money Market Quote Request" shall have the meaning
assigned to such term in Section 2.03(b) hereof.
"Moody's" shall mean Moody's Investors Service, Inc. or
any successor corporation thereto.
"Moody's Rating" shall mean, at any time, the then
current rating (including the failure to rate) by Moody's of the
Company's senior unsecured long term public debt.
"Multiemployer Plan" shall mean a multiemployer plan
defined as such in Section 3(37) of ERISA to which contributions
have been made by the Company or any ERISA Affiliate and which is
covered by Title IV of ERISA.
"Notes" shall mean the Syndicated Notes and the Money
Market Notes.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Person" shall mean any individual, corporation,
company, voluntary association, partnership, joint venture,
trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
Credit Agreement
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"Plan" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate
and that is covered by Title IV of ERISA, other than a
Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any
principal of any Loan or any other amount under this Agreement or
any Note that is not paid when due (whether at stated maturity,
by acceleration or otherwise), a rate per annum during the period
from and including the due date to but excluding the date on
which such amount is paid in full equal to 2% plus the Base Rate
as in effect from time to time plus the Applicable Margin (if
any) for Base Rate Loans (provided that, if the amount so in
default is principal of a Eurodollar Loan or a Money Market Loan
and the due date thereof is a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" for such
principal shall be, for the period from and including such due
date to but excluding the last day of such Interest Period,
2% plus the interest rate for such Loan as provided in
Section 3.02 hereof and, thereafter, the rate provided for above
in this definition).
"Preferred Stock" shall mean (a) the LIBOR Preferred
Stock, Series A of the Company, (b) the Series B Convertible
Preferred Stock, (c) the Series C Cumulative Preferred Stock and
(d) any other preferred stock hereafter issued by the Company
that does not have any requirement for the Company to purchase,
redeem, retire or otherwise acquire the same on or before the
Revolving Credit Termination Date.
"Prime Rate" shall mean the rate of interest from time
to time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of
Chase, located on the date hereof at 1 Chase Manhattan Plaza, New
York, New York 10081.
"Property" shall mean any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed
and whether tangible or intangible.
"Quarterly Dates" shall mean the quarterly
anniversaries of the Closing Date; provided that, if any such
date is not a Business Day, the respective Quarterly Date shall
be the next preceding Business Day.
Credit Agreement
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"Reference Banks" shall mean Chase, Canadian Imperial
Bank of Commerce and NationsBank of North Carolina, N.A. (or
their respective Applicable Lending Offices, as the case may be).
"Regulations A, D, U and X" shall mean, respectively,
Regulations A, D, U and X of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be
modified and supplemented and in effect from time to time.
"Regulatory Change" shall mean, with respect to any
Bank, any change after the date of this Agreement in Federal,
state or foreign law or regulations (including, without
limitation, Regulation D) or the adoption or making after such
date of any interpretation, directive or request applying to a
class of banks including such Bank of or under any Federal, state
or foreign law or regulations (whether or not having the force of
law and whether or not failure to comply therewith would be
unlawful) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Reserve Requirement" shall mean, for any Interest
Period for any Eurodollar Loan or LIBOR Market Loan, the average
maximum rate at which reserves (including, without limitation,
any marginal, supplemental or emergency reserves) are required to
be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement
shall include any other reserves required to be maintained by
such member banks by reason of any Regulatory Change with respect
to (i) any category of liabilities that includes deposits by
reference to which the Fixed Base Rate for Eurodollar Loans or
LIBOR Market Loans (as the case may be) is to be determined as
provided in the definition of "Fixed Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or
other assets that includes Eurodollar Loans or LIBOR Market
Loans.
"Revolving Credit Termination Date" shall mean the
Quarterly Date falling on or nearest to the date five years after
the date hereof.
"Set Rate" shall have the meaning assigned to such term
in Section 2.03(c)(ii)(D) hereof.
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"Set Rate Auction" shall mean a solicitation of Money
Market Quotes setting forth Set Rates pursuant to Section 2.03
hereof.
"Set Rate Loans" shall mean Money Market Loans the
interest rates on which are determined on the basis of Set Rates
pursuant to a Set Rate Auction.
"Standard & Poor's" shall mean Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc., or any successor
corporation thereto.
"Standard & Poor's Rating" shall mean, at any time, the
then current rating (including the failure to rate) by Standard &
Poor's of the Company's senior unsecured long term public debt.
"Subsidiary" shall mean, for any Person, any
corporation, partnership or other entity of which at least a
majority of the securities or other ownership interests having by
the terms thereof ordinary voting power to elect a majority of
the board of directors or other persons performing similar
functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have
voting power by reason of the happening of any contingency) is at
the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person. "Wholly
Owned Subsidiary" shall mean any such corporation, partnership or
other entity of which all of the equity securities or other
ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are so owned or controlled.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof, which may be Base Rate Loans and/or
Eurodollar Loans.
"Syndicated Notes" shall mean the promissory notes
provided for by Section 2.08(a) hereof and all promissory notes
delivered in substitution or exchange therefor, in each case as
the same shall be modified and supplemented and in effect from
time to time.
"Total Assets" shall mean, at any time, the aggregate
book value of all of the assets of the Company and its
Consolidated Subsidiaries at such time determined on a
consolidated basis (without duplication) in accordance with GAAP.
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"Total Capital" shall mean, at any time, Consolidated
Net Worth plus Total Debt.
"Total Debt" shall mean, at any time, the aggregate
outstanding principal amount of all Indebtedness of the Company
and its Consolidated Subsidiaries at such time determined on a
consolidated basis (without duplication) in accordance with GAAP;
provided that the term "Total Debt" shall include any preferred
stock that does not qualify as Preferred Stock, but shall not
include Indebtedness in respect of commercial documentary letters
of credit.
"Type" shall have the meaning assigned to such term in
Section 1.03 hereof.
1.02 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial
matters required to be delivered to the Banks hereunder shall
(unless otherwise disclosed to the Banks in writing at the time
of delivery thereof in the manner described in subsection (b)
below) be prepared, in accordance with generally accepted
accounting principles applied on a basis consistent with those
used in the preparation of the latest financial statements
furnished to the Banks hereunder (which, prior to the delivery of
the first financial statements under Section 8.01 hereof, shall
mean the audited financial statements as at December 31, 1994
referred to in Section 7.02 hereof). All calculations made for
the purposes of determining compliance with this Agreement shall
(except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied
on a basis consistent with those used in the preparation of the
latest annual or quarterly financial statements furnished to the
Banks pursuant to Section 8.01 hereof (or, prior to the delivery
of the first financial statements under Section 8.01 hereof, used
in the preparation of the audited financial statements as at
December 31, 1994 referred to in Section 7.02 hereof) unless
(i) the Company shall have objected to determining such
compliance on such basis at the time of delivery of such
financial statements or (ii) the Majority Banks shall so object
in writing within 30 days after delivery of such financial
statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of
the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the
first financial statements delivered under Section 8.01 hereof,
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shall mean the audited financial statements as at December 31,
1994 referred to in Section 7.02 hereof).
(b) The Company shall deliver to the Banks at the same
time as the delivery of any annual or quarterly financial
statement under Section 8.01 hereof (i) a description in
reasonable detail of any material variation between the
application of accounting principles employed in the preparation
of such statement and the application of accounting principles
employed in the preparation of the next preceding annual or
quarterly financial statements as to which no objection has been
made in accordance with the last sentence of subsection (a) above
and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination
of compliance with the covenants set forth in Section 8 hereof,
the Company will not change the last day of its fiscal year from
December 31 of each year, or the last days of the first three
fiscal quarters in each of its fiscal years from March 31,
June 30 and September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan
refers to whether such Loan is a Money Market Loan or a
Syndicated Loan, each of which constitutes a Class. The "Type"
of a Loan refers to whether such Loan is a Base Rate Loan, a
Eurodollar Loan, a Set Rate Loan or a LIBOR Market Loan, each of
which constitutes a Type. Loans may be identified by both Class
and Type.
Section 2. Commitments, Loans, Notes and Prepayments.
2.01 Syndicated Loans. Each Bank severally agrees, on
the terms and conditions of this Agreement, to make loans to the
Company in Dollars during the period from and including the
Closing Date to but not including the Revolving Credit
Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Commitment
of such Bank as in effect from time to time. Subject to the
terms and conditions of this Agreement, during such period the
Company may borrow, repay and reborrow the amount of the
Commitments by means of Base Rate Loans and Eurodollar Loans and
during such period and thereafter the Company may Convert Loans
of one Type into Loans of another Type (as provided in
Section 2.09 hereof) or Continue Loans of one Type as Loans of
the same Type (as provided in Section 2.09 hereof); provided that
(a) the aggregate principal amount of all Syndicated Loans,
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together with the aggregate principal amount of all Money Market
Loans, at any one time outstanding shall not exceed the aggregate
amount of the Commitments; and (b) no more than fifteen different
Interest Periods for both Syndicated Loans and Money Market Loans
may be outstanding at the same time (for which purpose Interest
Periods described in different lettered clauses of the definition
of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous).
2.02 Borrowings of Syndicated Loans. The Company
shall give the Administrative Agent (which shall promptly notify
the Banks) notice of each borrowing hereunder as provided in
Section 4.05 hereof. Not later than 1:00 p.m. New York time on
the date specified for each borrowing of Syndicated Loans
hereunder, each Bank shall make available the amount of the
Syndicated Loan or Loans to be made by it on such date to the
Administrative Agent, at account number NYAO-DI-900-9-000002
maintained by the Administrative Agent with Chase at the
Principal Office, in immediately available funds, for account of
the Company. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be
made available to the Company by depositing the same, in
immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by the
Company.
2.03 Money Market Loans.
(a) In addition to borrowings of Syndicated Loans,
during any Level I Period, Level II Period, Level III Period or
Level IV Period prior to the Revolving Credit Termination Date
the Company may, as set forth in this Section 2.03, request the
Banks to make offers to make Money Market Loans to the Company in
Dollars. The Banks may, but shall have no obligation to, make
such offers and the Company may, but shall have no obligation to,
accept any such offers in the manner set forth in this
Section 2.03. Money Market Loans may be LIBOR Market Loans or
Set Rate Loans (each a "Type" of Money Market Loan), provided
that:
(i) there may be no more than fifteen different
Interest Periods for both Syndicated Loans and Money Market
Loans outstanding at the same time (for which purpose
Interest Periods described in different lettered clauses of
the definition of the term "Interest Period" shall be deemed
to be different Interest Periods even if they are
coterminous); and
Credit Agreement
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(ii) the aggregate principal amount of all Money Market
Loans, together with the aggregate principal amount of all
Syndicated Loans, at any one time outstanding shall not
exceed the aggregate amount of the Commitments at such time.
(b) When the Company wishes to request offers to make
Money Market Loans, it shall give the Administrative Agent (which
shall promptly notify the Banks) notice (a "Money Market Quote
Request") so as to be received no later than 11:00 a.m. New York
time on (x) the fourth Business Day prior to the date of
borrowing proposed therein, in the case of a LIBOR Auction or
(y) the Business Day next preceding the date of borrowing
proposed therein, in the case of a Set Rate Auction (or, in any
such case, such other time and date as the Company and the
Administrative Agent, with the consent of the Majority Banks, may
agree). The Company may request offers to make Money Market
Loans for up to three different Interest Periods in a single
notice (for which purpose Interest Periods in different lettered
clauses of the definition of the term "Interest Period" shall be
deemed to be different Interest Periods even if they are
coterminous); provided that the request for each separate
Interest Period shall be deemed to be a separate Money Market
Quote Request for a separate borrowing (a "Money Market
Borrowing"). Each such notice shall be substantially in the form
of Exhibit D hereto and shall specify as to each Money Market
Borrowing:
(i) the proposed date of such borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Money Market
Borrowing, which shall be at least $5,000,000 (or a larger
integral multiple of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) hereof to be violated;
(iii) the duration of the Interest Period applicable
thereto;
(iv) whether the Money Market Quotes requested for a
particular Interest Period are seeking quotes for
LIBOR Market Loans or Set Rate Loans; and
(v) if the Money Market Quotes requested are seeking
quotes for Set Rate Loans, the date on which the Money
Market Quotes are to be submitted if it is before the
proposed date of borrowing (the date on which such Money
Market Quotes are to be submitted is called the "Quotation
Date").
Credit Agreement
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Except as otherwise provided in this Section 2.03(b), no Money
Market Quote Request shall be given within five Business Days (or
such other number of days as the Company and the Administrative
Agent, with the consent of the Majority Banks, may agree) of any
other Money Market Quote Request.
(c) (i) Each Bank may submit one or more Money Market
Quotes, each containing an offer to make a Money Market Loan
in response to any Money Market Quote Request; provided
that, if the Company's request under Section 2.03(b) hereof
specified more than one Interest Period, such Bank may make
a single submission containing one or more Money Market
Quotes for each such Interest Period. Each Money Market
Quote must be submitted to the Administrative Agent not
later than (x) 2:00 p.m. New York time on the fourth
Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) 10:00 a.m. New York time on
the Quotation Date, in the case of a Set Rate Auction (or,
in any such case, such other time and date as the Company
and the Administrative Agent, with the consent of the
Majority Banks, may agree); provided that any Money Market
Quote may be submitted by Chase (or its Applicable Lending
Office) only if Chase (or such Applicable Lending Office)
notifies the Company of the terms of the offer contained
therein not later than (x) 1:00 p.m. New York time on the
fourth Business Day prior to the proposed date of borrowing,
in the case of a LIBOR Auction or (y) 9:45 a.m. New York
time on the Quotation Date, in the case of a Set Rate
Auction. Subject to Sections 5.02(b), 5.03, 6.02 and 9
hereof, any Money Market Quote so made shall be irrevocable
except with the consent of the Administrative Agent given on
the instructions of the Company.
(ii) Each Money Market Quote shall be substantially in
the form of Exhibit E hereto and shall specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
(B) the principal amount of the Money Market Loan
for which each such offer is being made, which
principal amount shall be at least $5,000,000 (or a
larger integral multiple of $1,000,000); provided that
the aggregate principal amount of all Money Market
Loans for which a Bank submits Money Market Quotes
(x) may be greater or less than the Commitment of such
Bank but (y) may not exceed the principal amount of the
Credit Agreement
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Money Market Borrowing for a particular Interest Period
for which offers were requested;
(C) in the case of a LIBOR Auction, the margin
above or below the applicable LIBO Rate (the "LIBO
Margin") offered for each such Money Market Loan,
expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) to be added
to or subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate
of interest per annum (rounded upwards, if necessary,
to the nearest 1/10,000th of 1%) offered for each such
Money Market Loan (the "Set Rate"); and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the
Company, no Money Market Quote shall contain qualifying,
conditional or similar language or propose terms other than
or in addition to those set forth in the applicable Money
Market Quote Request and, in particular, no Money Market
Quote may be conditioned upon acceptance by the Company of
all (or some specified minimum) of the principal amount of
the Money Market Loan for which such Money Market Quote is
being made.
(d) The Administrative Agent shall (x) in the case of
a Set Rate Auction, as promptly as practicable after the Money
Market Quote is submitted (but in any event not later than
10:15 a.m. New York time on the Quotation Date) or (y) in the
case of a LIBOR Auction, by 4:00 p.m. New York time on the day a
Money Market Quote is submitted, notify the Company of the terms
(i) of any Money Market Quote submitted by a Bank that is in
accordance with Section 2.03(c) hereof and (ii) of any Money
Market Quote that amends, modifies or is otherwise inconsistent
with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money
Market Quote. The Administrative Agent's notice to the Company
shall specify (A) the aggregate principal amount of the Money
Market Borrowing for which offers have been received and (B) the
respective principal amounts and LIBO Margins or Set Rates, as
the case may be, so offered by each Bank (identifying the Bank
that made each Money Market Quote).
Credit Agreement
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(e) Not later than 11:00 a.m. New York time on (x) the
third Business Day prior to the proposed date of borrowing, in
the case of a LIBOR Auction or (y) the Quotation Date, in the
case of a Set Rate Auction (or, in any such case, such other time
and date as the Company and the Administrative Agent, with the
consent of the Majority Banks, may agree), the Company shall
notify the Administrative Agent of its acceptance or
nonacceptance, which acceptance or nonacceptance shall be
irrevocable, of the offers so notified to it pursuant to
Section 2.03(d) hereof (and the failure of the Company to give
such notice by such time shall constitute nonacceptance) and the
Administrative Agent shall promptly notify each affected Bank.
In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period
that are accepted. The Company may accept any Money Market Quote
in whole or in part (provided that any Money Market Quote
accepted in part shall be at least $1,000,000 or an integral
thereof); provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set
forth in the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $5,000,000 (or a larger
integral multiple of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) hereof to be violated;
(iii) acceptance of offers may be made only in ascending
order of LIBO Margins or Set Rates, as the case may be, in
each case beginning with the lowest rate so offered; and
(iv) the Company may not accept any offer where the
Administrative Agent has advised the Company that such offer
fails to comply with Section 2.03(c)(ii) hereof or otherwise
fails to comply with the requirements of this Agreement
(including, without limitation, Section 2.03(a) hereof).
If offers are made by two or more Banks with the same
LIBO Margins or Set Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which
offers are permitted to be accepted for the related Interest
Period pursuant to the foregoing provisions of this
Section 2.03(e), the principal amount of Money Market Loans in
respect of which such offers are accepted shall be allocated by
the Company among such Banks as nearly as possible (in amounts of
at least $1,000,000 or integral multiples thereof) in proportion
to the aggregate principal amount of such offers. Determinations
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by the Company of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan
has been accepted shall, not later than 1:00 p.m. New York time
on the date specified for the making of such Loan, make the
amount of such Loan available to the Administrative Agent at
account number NYAO-DI-900-9-000002 maintained by the
Administrative Agent with Chase at the Principal Office in
immediately available funds, for account of the Company. The
amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to
the Company on such date by depositing the same, in immediately
available funds, in an account of the Company maintained with
Chase at the Principal Office designated by the Company.
(g) The Company shall pay to the Administrative Agent
a fee of $1,250 each time the Company gives a Money Market Quote
Request to the Administrative Agent.
2.04 Changes of Commitments.
(a) The aggregate amount of the Commitments shall be
automatically reduced to zero at the close of business on the
Revolving Credit Termination Date.
(b) The Company shall have the right at any time or
from time to time (i) so long as no Syndicated Loans or Money
Market Loans are outstanding, to terminate the Commitments and
(ii) to reduce the aggregate unused amount of the Commitments
(for which purpose use of the Commitments shall be deemed to
include the aggregate principal amount of all Money Market
Loans); provided that (x) the Company shall give notice of each
such termination or reduction as provided in Section 4.05 hereof
and (y) each partial reduction shall be in an aggregate amount at
least equal to $5,000,000 and in integral multiples of $5,000,000
in excess thereof.
(c) The Commitments once terminated or reduced may not
be reinstated.
2.05 Facility Fee. The Company shall pay to the
Administrative Agent for account of each Bank a facility fee on
the amount of such Bank's Commitment as then in effect, for the
period from and including the date of this Agreement to but not
including the earlier of the date such Commitment is terminated
and the Revolving Credit Termination Date, at a rate per annum
equal to (a) 0.1000% during any Level I Period, (b) 0.1150%
Credit Agreement
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during any Level II Period , (c) 0.1400% during any Level III
Period, (d) 0.1750% during any Level IV Period and (e) 0.2000%
during any Level V Period. Accrued facility 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. Any change in a facility fee by reason of a change in the
Standard & Poor's Rating or the Moody's Rating shall become
effective on the date of announcement or publication by the
respective rating agencies of a change in such rating or, in the
absence of such announcement or publication, on the effective
date of such changed rating.
2.06 Lending Offices. The Loans of each Type made by
each Bank shall be made and maintained at such Bank's Applicable
Lending Office for Loans of such Type.
2.07 Several Obligations; Remedies Independent. The
failure of any Bank to make any Loan to be made by it on the date
specified therefor shall not relieve any other Bank of its
obligation to make its Loan on such date, but neither any Bank
nor the Administrative Agent shall be responsible for the failure
of any other Bank to make a Loan to be made by such other Bank,
and no Bank shall have any obligation to the Administrative Agent
or any other Bank for the failure by such Bank to make any Loan
required to be made by such Bank. The amounts payable by the
Company at any time hereunder and under the Notes to each Bank
shall be a separate and independent debt and each Bank shall be
entitled to protect and enforce its rights arising out of this
Agreement and the Notes, and it shall not be necessary for any
other Bank or the Administrative Agent to consent to, or be
joined as an additional party in, any proceedings for such
purposes.
2.08 Notes.
(a) The Syndicated Loans made by each Bank shall be
evidenced by a single promissory note of the Company
substantially in the form of Exhibit A-1 hereto, dated the date
hereof, payable to the order of such Bank in a principal amount
equal to the amount of its Commitment as originally in effect and
otherwise duly completed.
(b) The Money Market Loans made by any Bank shall be
evidenced by a single promissory note of the Company
substantially in the form of Exhibit A-2 hereto, dated the date
hereof, payable to the order of such Bank and otherwise duly
completed.
Credit Agreement
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(c) The date, amount, Type, interest rate and duration
of Interest Period (if applicable) of each Loan of each Class
made by each Bank to the Company, and each payment made on
account of the principal thereof, shall be recorded by such Bank
on its books and, prior to any transfer of the Note evidencing
the Loans of such Class held by it, endorsed by such Bank on the
schedule attached to such Note or any continuation thereof;
provided that the failure of such Bank to make any such
recordation or endorsement shall not affect the obligations of
the Company to make a payment when due of any amount owing
hereunder or under such Note in respect of the Loans to be
evidenced by such Note.
(d) No Bank shall be entitled to have its Notes
subdivided, by exchange for promissory notes of lesser
denominations or otherwise, except in connection with a permitted
assignment of all or any portion of such Bank's Commitment, Loans
and Notes pursuant to Section 11.06(b) hereof.
2.09 Prepayments and Conversions or Continuations of
Loans. Subject to Sections 4.04 and 5 hereof, the Company shall
have the right to prepay Syndicated Loans, or to Convert
Syndicated Loans of one Type into Syndicated Loans of another
Type or Continue Syndicated Loans of one Type as Syndicated Loans
of the same Type, at any time or from time to time, provided that
the Company shall give the Administrative Agent notice of each
such prepayment, Conversion or Continuation as provided in
Section 4.05 hereof (and, upon the date specified in any such
notice of prepayment, the amount to be prepaid shall become due
and payable hereunder). Money Market Loans may not be prepaid.
Notwithstanding the foregoing, and without limiting the rights
and remedies of the Banks under Section 9 hereof, in the event
that any Event of Default shall have occurred and be continuing,
the Agent may (and at the request of the Majority Banks shall)
suspend the right of the Company to Convert any Loan into a Fixed
Rate Loan, or to Continue any Loan as a Fixed Rate Loan, in which
event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case
may be, as Base Rate Loans.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans.
(a) The Company hereby promises to pay to the
Administrative Agent for account of each Bank that makes any
Money Market Loan the principal amount of such Money Market Loan,
Credit Agreement
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and such Money Market Loan shall mature, on the last day of the
Interest Period for such Money Market Loan.
(b) The Company hereby promises to pay to the Agent
for account of each Bank the principal of such Bank's Syndicated
Loans on the Revolving Credit Termination Date.
3.02 Interest. The Company hereby promises to pay to
the Administrative Agent for account of each Bank interest on the
unpaid principal amount of each Loan made by such Bank for the
period from and including the date of such Loan to but excluding
the date such Loan shall be paid in full, at the following rates
per annum:
(a) during such periods as such Loan is a Base Rate
Loan, the Base Rate (as in effect from time to time) plus
the Applicable Margin (if any);
(b) during such periods as such Loan is a Eurodollar
Loan, for each Interest Period relating thereto, the Fixed
Base Rate for such Loan for such Interest Period plus the
Applicable Margin;
(c) if such Loan is a LIBOR Market Loan, the LIBO Rate
for such Loan for the Interest Period therefor plus (or
minus) the LIBO Margin quoted by the Bank making such Loan
in accordance with Section 2.03 hereof; and
(d) if such Loan is a Set Rate Loan, the Set Rate for
such Loan for the Interest Period therefor quoted by the
Bank making such Loan in accordance with Section 2.03
hereof.
Notwithstanding the foregoing, the Company hereby promises to pay
to the Administrative Agent for account of each Bank interest at
the applicable Post-Default Rate on any principal of any Loan
made by such Bank and on any other amount payable by the Company
hereunder or under the Notes held by such Bank to or for account
of such Bank, which shall not be paid in full when due (whether
at stated maturity, by acceleration or otherwise), for the period
from and including the due date thereof to but excluding the date
the same is paid in full. Accrued interest on each Loan shall be
payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Fixed Rate Loan or a Money
Market Loan, on the last day of each Interest Period therefor
and, if such Interest Period is longer than 90 days (in the case
of a Set Rate Loan) or three months (in the case of a Eurodollar
Loan or a LIBOR Market Loan), at 90-day or three-month intervals,
Credit Agreement
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respectively, following the first day of such Interest Period,
and (iii) in the case of any Loan, upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted),
except that interest payable at the Post-Default Rate shall be
payable from time to time on demand of the Bank for whose account
such interest is payable. Promptly after the determination of
any interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Banks to
which such interest is payable and to the Company.
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made
by the Company under this Agreement and the Notes shall be made
in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent at account
number NYAO-DI-900-9-000002 maintained by the Administrative
Agent with Chase at the Principal Office, not later than
1:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding
Business Day).
(b) Any Bank for whose account any such payment is to
be made may (but shall not be obligated to) debit the amount of
any such payment that is not made by such time to any ordinary
deposit account of the Company with such Bank (with notice to the
Company and the Administrative Agent); provided that such
Bank's failure to give such notice shall not affect the validity
thereof.
(c) The Company shall, at the time of making each
payment under this Agreement or any Note for account of any Bank,
specify to the Administrative Agent (which shall so notify the
intended recipient(s) thereof) the Loans or other amounts payable
by the Company hereunder to which such payment is to be applied
(and in the event that the Company fails to so specify, or if an
Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment to the Banks for
application in such manner as the Majority Banks, subject to
Section 4.02 hereof, may determine to be appropriate).
Credit Agreement
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(d) Each payment received by the Administrative Agent
under this Agreement or any Note for account of any Bank shall be
paid by the Administrative Agent promptly to such Bank, in
immediately available funds, for account of such Bank's
Applicable Lending Office for the Loan or other obligation in
respect of which such payment is made.
(e) If the due date of any payment under this
Agreement or any Note would otherwise fall on a day that is not a
Business Day, such date shall be extended to the next succeeding
Business Day, and interest shall be payable on any principal so
extended for the period of such extension.
4.02 Pro Rata Treatment. Except to the extent
otherwise provided herein: (a) each borrowing of Syndicated
Loans under Section 2.01 hereof shall be made from the Banks,
each payment of facility fee under Section 2.05 hereof shall be
made for account of the Banks, and each termination or reduction
of the amount of the Commitments under Section 2.04 hereof shall
be applied to the respective Commitments of the Banks, pro rata
according to the amounts of their respective Commitments; (b) the
making, Conversion and Continuation of Loans of a particular Type
(other than Conversions provided for by Section 5.04 hereof)
shall be made pro rata among the Banks according to the amounts
of their respective Commitments (in the case of making of Loans)
or their respective Loans (in the case of Conversions and
Continuations of Loans), and the then current Interest Period for
each Loan of such Type shall be coterminous; (c) each payment or
prepayment of principal of Syndicated Loans by the Company shall
be made for account of the Banks pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans held
by them; provided that if immediately prior to giving effect to
any such payment in respect of any Syndicated Loans the
outstanding principal amount of the Syndicated Loans shall not be
held by the Banks pro rata in accordance with their respective
Commitments in effect at the time such Loans were made (by reason
of a failure of a Bank to make a Loan hereunder in the
circumstances described in the last paragraph of Section 11.04
hereof), then such payment shall be applied to the Syndicated
Loans in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the
Syndicated Loans being held by the Banks pro rata in accordance
with their respective Commitments; and (d) each payment of
interest on Syndicated Loans by the Company shall be made for
account of the Banks pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective
Banks.
Credit Agreement
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4.03 Computations. Interest on Money Market Loans and
Eurodollar Loans and facility fee shall be computed on the basis
of a year of 360 days and actual days elapsed (including the
first day but excluding the last day) occurring in the period for
which payable and interest on Base Rate Loans shall be computed
on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding
the last day) occurring in the period for which payable.
Notwithstanding the foregoing, for each day that the Base Rate is
calculated by reference to the Federal Funds Rate, interest on
Base Rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 Minimum Amounts. Except for Conversions or
prepayments made pursuant to Section 5.04 hereof, each borrowing,
Conversion and partial prepayment of principal of Loans shall be
in an aggregate amount at least equal to $5,000,000 or in
integral multiples of $1,000,000 in excess thereof (borrowings,
Conversions or prepayments of or into Loans of different Types
or, in the case of Eurodollar Loans, having different Interest
Periods at the same time hereunder to be deemed separate
borrowings, Conversions and prepayments for purposes of the
foregoing, one for each Type or Interest Period). Anything in
this Agreement to the contrary notwithstanding, the aggregate
principal amount of Eurodollar Loans having the same Interest
Period shall be in an amount at least equal to $5,000,000 or in
integral multiples of $1,000,000 in excess thereof and, if any
Eurodollar Loans would otherwise be in a lesser principal amount
for any period, such Loans shall be Base Rate Loans during such
period.
4.05 Certain Notices. Except as otherwise provided in
Section 2.03 hereof with respect to Money Market Loans, notices
by the Company to the Administrative Agent of terminations or
reductions of the Commitments and of borrowings, Conversions,
Continuations and optional prepayments of Loans, of Types of
Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time on
the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified
below:
Credit Agreement
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Number of
Business
Notice Days Prior
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the
amount of the Commitments to be terminated or reduced. Each such
notice of borrowing, Conversion, Continuation or optional
prepayment shall specify the Loans to be borrowed, Converted,
Continued or prepaid and the amount (subject to Section 4.04
hereof) and Type of each Loan to be borrowed, Converted,
Continued or prepaid (and, in the case of a Conversion, the Type
of Loan to result from such Conversion) and the date of
borrowing, Conversion, Continuation or optional prepayment (which
shall be a Business Day). Each such notice of the duration of an
Interest Period shall specify the Loans to which such Interest
Period is to relate. The Administrative Agent shall promptly
notify the Banks of the contents of each such notice. In the
event that the Company fails to select the Type of Loan, or the
duration of any Interest Period for any Fixed Rate Loan, within
the time period and otherwise as provided in this Section 4.05,
such Loan (if outstanding as a Fixed Rate Loan) will be
automatically Converted into a Base Rate Loan on the last day of
the then current Interest Period for such Loan or (if outstanding
as a Base Rate Loan) will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan.
4.06 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a
Bank or the Company (the "Payor") prior to the date on which the
Payor is to make payment to the Administrative Agent of (in the
case of a Bank) the proceeds of a Loan to be made by such Bank
hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Banks
hereunder (such payment being herein called the "Required
Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the
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Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date; and,
if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on
demand, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date (the "Advance Date")
such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a
rate per annum equal to the Federal Funds Rate for such day and,
if such recipient(s) shall fail promptly to make such payment,
the Administrative Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest as
aforesaid, provided that if the recipient(s) shall fail to
return, and the Payor shall fail to make, the Required Payment to
the Administrative Agent within three Business Days of the
Advance Date, then, retroactively to the Advance Date, the Payor
and the recipient(s) shall each be obligated to pay interest on
the Required Payment as follows:
(i) if the Required Payment shall represent a payment
to be made by the Company to the Banks, the Company and the
recipient(s) shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required
Payment at the Post-Default Rate (and, in case the
recipient(s) shall return the Required Payment to the
Administrative Agent, without limiting the obligation of the
Company under Section 3.02 hereof to pay interest to such
recipient(s) at the Post-Default Rate in respect of the
Required Payment); and
(ii) if the Required Payment shall represent proceeds
of a Loan to be made by the Banks to the Company, the Payor
and the Company shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required
Payment at the rate of interest provided for such Required
Payment pursuant to Section 3.02 hereof (and, in case the
Company shall return the Required Payment to the
Administrative Agent, without limiting any claim the Company
may have against the Payor in respect of the Required
Payment).
4.07 Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and
without limitation of) any right of set-off, banker's lien or
Credit Agreement
<PAGE>
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counterclaim a Bank may otherwise have, each Bank shall be
entitled, at its option, to offset balances held by it for
account of the Company at any of its offices, in Dollars or in
any other currency, against any principal of or interest on any
of such Bank's Loans or any other amount payable to such Bank
hereunder, that is not paid when due (regardless of whether such
balances are then due to the Company), in which case it shall
promptly notify the Company and the Administrative Agent thereof,
provided that such Bank's failure to give such notice shall not
affect the validity thereof.
(b) If any Bank shall obtain from the Company payment
of any principal of or interest on any Loan of any Class owing to
it or payment of any other amount under this Agreement through
the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of
such payment, such Bank shall have received a greater percentage
of the principal of or interest on the Loans of such Class or
such other amounts then due hereunder by the Company to such Bank
than the percentage received by any other Bank, it shall promptly
purchase from such other Banks participations in (or, if and to
the extent specified by such Bank, direct interests in) the Loans
of such Class or such other amounts, respectively, owing to such
other Banks (or in interest due thereon, as the case may be) in
such amounts, and make such other adjustments from time to time
as shall be equitable, to the end that all the Banks shall share
the benefit of such excess payment (net of any expenses that may
be incurred by such Bank in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of
and/or interest on the Loans of such Class or such other amounts,
respectively, owing to each of the Banks. To such end all the
Banks shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored.
(c) The Company agrees that any Bank so purchasing
such a participation (or direct interest) may exercise all rights
of set-off, banker's lien, counterclaim or similar rights with
respect to such participation as fully as if such Bank were a
direct holder of Loans or other amounts (as the case may be)
owing to such Bank in the amount of such participation.
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to
exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the
Company. If, under any applicable bankruptcy, insolvency or
Credit Agreement
<PAGE>
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other similar law, any Bank receives a secured claim in lieu of a
set-off to which this Section 4.07 applies, such Bank shall, to
the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Banks
entitled under this Section 4.07 to share in the benefits of any
recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to each Bank from
time to time such amounts as such Bank may reasonably determine
to be necessary to compensate such Bank for any costs that such
Bank determines are attributable to its making or maintaining of
any Fixed Rate Loans or its obligation to make any Fixed Rate
Loans hereunder, or any reduction in any amount receivable by
such Bank hereunder in respect of any of such Loans or such
obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting
from any Regulatory Change that:
(i) changes the basis of taxation of any amounts
payable to such Bank under this Agreement or its Notes in
respect of any of such Loans (other than taxes imposed on or
measured by the overall net income of such Bank or of its
Applicable Lending Office for any of such Loans by the
jurisdiction in which such Bank has its principal office or
such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit
or similar requirements (other than the Reserve Requirement
utilized in the determination of the Fixed Base Rate for
such Loan) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of,
such Bank (including, without limitation, any of such Loans
or any deposits referred to in the definition of "Fixed Base
Rate" in Section 1.01 hereof), or any commitment of such
Bank (including, without limitation, the Commitment of such
Bank hereunder); or
(iii) imposes any other condition affecting this
Agreement or its Notes (or any of such extensions of credit
or liabilities) or its Commitment.
If any Bank requests compensation from the Company under this
Section 5.01(a), the Company may, by notice to such Bank (with a
copy to the Administrative Agent), suspend the obligation of such
Credit Agreement
<PAGE>
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Bank thereafter to make or Continue Loans of the Type with
respect to which such compensation is requested, or to Convert
Loans of any other Type into Loans of such Type, until the
Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall
be applicable), provided that such suspension shall not affect
the right of such Bank to receive the compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason
of any Regulatory Change, any Bank either (i) incurs Additional
Costs based on or measured by the excess above a specified level
of the amount of a category of deposits or other liabilities of
such Bank that includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in
this Agreement or a category of extensions of credit or other
assets of such Bank that includes Eurodollar Loans or
(ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets that it may hold, then, if such
Bank so elects by notice to the Company (with a copy to the
Administrative Agent), the obligation of such Bank to make or
Continue, or to Convert Loans of any other Type into, Loans of
such Type hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of
Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the
Company shall pay directly to each Bank from time to time on
request such amounts as such Bank may reasonably determine to be
necessary to compensate such Bank (or, without duplication, the
bank holding company of which such Bank is a subsidiary) for any
costs that it determines are attributable to the maintenance by
such Bank (or any Applicable Lending Office or such bank holding
company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the
force of law and whether or not failure to comply therewith would
be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government
or governmental or supervisory authority implementing at the
national level the Basle Accord (including, without limitation,
the Final Risk-Based Capital Guidelines of the Board of Governors
of the Federal Reserve System (12 C.F.R. Part 208, Appendix A;
12 C.F.R. Part 225, Appendix A) and the Final Risk-Based Capital
Guidelines of the Office of the Comptroller of the Currency
Credit Agreement
<PAGE>
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(12 C.F.R. Part 3, Appendix A)), of capital in respect of its
Commitment or Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of
return on assets or equity of such Bank (or any Applicable
Lending Office or such bank holding company) to a level below
that which such Bank (or any Applicable Lending Office or such
bank holding company) could have achieved but for such law,
regulation, interpretation, directive or request). For purposes
of this Section 5.01(c), "Basle Accord" shall mean the proposals
for risk-based capital framework described by the Basle Committee
on Banking Regulations and Supervisory Practices in its paper
entitled "International Convergence of Capital Measurement and
Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement
thereof.
(d) Each Bank shall notify the Company of any event
occurring after the date of this Agreement entitling such Bank to
compensation under paragraph (a) or (c) of this Section 5.01 as
promptly as practicable, but in any event within 45 days, after
such Bank obtains actual knowledge thereof; provided that (i) if
any Bank fails to give such notice within 45 days after it
obtains actual knowledge of such an event, such Bank shall, with
respect to compensation payable pursuant to this Section 5.01 in
respect of any costs resulting from such event, only be entitled
to payment under this Section 5.01 for costs incurred from and
after the date 45 days prior to the date that such Bank does give
such notice and (ii) each Bank will designate a different
Applicable Lending Office for the Loans of such Bank affected by
such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank, except
that such Bank shall have no obligation to designate an
Applicable Lending Office located in the United States of
America. Each Bank will furnish to the Company a certificate
setting forth in reasonable detail the basis and amount of each
request by such Bank for compensation under paragraph (a) or (c)
of this Section 5.01. Determinations and allocations by any Bank
for purposes of this Section 5.01 of the effect of any Regulatory
Change pursuant to paragraph (a) or (b) of this Section 5.01, or
of the effect of capital maintained pursuant to paragraph (c) of
this Section 5.01, on its costs or rate of return of maintaining
Loans or its obligation to make Loans, or on amounts receivable
by it in respect of Loans, and of the amounts required to
compensate such Bank under this Section 5.01, shall be
conclusive, provided that such determinations and allocations are
made on a reasonable basis.
Credit Agreement
<PAGE>
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(e) Without limiting the effect of the foregoing, the
Company shall pay to each Bank on the last day of each Interest
Period for each Syndicated Loan made by such Bank to the Company
so long as such Bank is maintaining reserves against
"Eurocurrency liabilities" under Regulation D (or, unless the
provisions of paragraph (b) above are applicable, so long as such
Bank is, by reason of any Regulatory Change, maintaining reserves
against any other category of liabilities which includes deposits
by reference to which the interest rate on Eurodollar Loans is
determined as provided in this Agreement or against any category
of extensions of credit or other assets of such Bank which
includes any Eurodollar Loans) an additional amount (determined
by such Bank and notified to the Company by such Bank with a copy
to the Administrative Agent) equal to the product of the
following for each Eurodollar Loan for each day during such
Interest Period:
(i) the principal amount of such Eurodollar Loan
outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of
which is the rate (expressed as a decimal) at which interest
accrues on such Eurodollar Loan for such Interest Period as
provided in this Agreement (less the Applicable Margin) and
the denominator of which is one minus the effective rate
(expressed as a decimal) at which such reserve requirements
are imposed on such Bank on such day minus (y) such
numerator; and
(iii) 1/360.
(f) Without limiting the effect of the foregoing, if,
at any time after any Bank shall submit a Money Market Quote that
is the basis for the interest rate payable under this Agreement
on any LIBOR Market Loan made by such Bank, any Regulatory Change
occurs that results in such Bank maintaining reserves against any
category of liabilities which includes deposits by reference to
which the interest rate on LIBOR Market Loans is determined as
provided in this Agreement or against any category of extensions
of credit or other assets of such Bank which includes any
LIBOR Market Loans, then the Company shall pay to such Bank an
additional amount (determined by such Bank and notified to the
Company by such Bank with a copy to the Administrative Agent),
for each day during the Interest Period for the LIBOR Market Loan
to which such Money Market Quote relates that occurs on or after
the date of such Regulatory Change, equal to the product of the
following:
Credit Agreement
<PAGE>
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(i) the principal amount of such LIBOR Market Loan
outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of
which is the rate (expressed as a decimal) at which interest
accrues on such LIBOR Market Loan for such Interest Period
as provided in this Agreement (without giving effect to the
LIBO Margin) and the denominator of which is one minus the
effective rate (expressed as a decimal) at which such
reserve requirements are imposed on such Bank on such day
minus (y) such numerator; and
(iii) 1/360.
The Company shall pay any additional amount required to be paid
pursuant to this Section 5.01(f) in respect of any LIBOR Market
Loan on the last day of the Interest Period for such LIBOR Market
Loan.
5.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if, on or prior to the
determination of any Fixed Base Rate for any Interest Period:
(a) the Administrative Agent determines, which
determination shall be conclusive, that quotations of
interest rates for the relevant deposits referred to in the
definition of "Fixed Base Rate" in Section 1.01 hereof are
not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of
interest for either Type of Fixed Rate Loans as provided
herein; or
(b) the Majority Banks determine (or any Bank that has
outstanding a Money Market Quote with respect to a
LIBOR Market Loan determines), which determination shall be
conclusive, and notify (or notifies, as the case may be) the
Administrative Agent that the relevant rates of interest
referred to in the definition of "Fixed Base Rate" in
Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans (or LIBOR Market Loans, as the
case may be) for such Interest Period is to be determined
are not likely adequately to cover the cost to such Banks
(or to such quoting Bank) of making or maintaining such Type
of Loans for such Interest Period;
then the Administrative Agent shall give the Company and each
Bank prompt notice thereof and, so long as such condition remains
in effect, the Banks (or such quoting Bank) shall be under no
Credit Agreement
<PAGE>
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obligation to make additional Loans of such Type, to Continue
Loans of such Type or to Convert Loans of any other Type into
Loans of such Type, and the Company shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Loans of
such Type, either prepay such Loans or Convert such Loans into
another Type of Loan in accordance with Section 2.09 hereof.
5.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any
Bank or its Applicable Lending Office to honor its obligation to
make or maintain Eurodollar Loans or LIBOR Market Loans
hereunder, then such Bank shall promptly notify the Company
thereof (with a copy to the Administrative Agent) and such Bank's
obligation to make or Continue, or to Convert Loans of any other
Type into, Eurodollar Loans shall be suspended until such time as
such Bank may again make and maintain Eurodollar Loans (in which
case the provisions of Section 5.04 hereof shall be applicable),
and such Bank shall no longer be obligated to make any LIBOR
Market Loan that it has offered to make.
5.04 Treatment of Affected Loans. If the obligation
of any Bank to make a particular Type of Fixed Rate Loans or to
Continue, or to Convert Loans of any other Type into, Loans of a
particular Type shall be suspended pursuant to Section 5.01
or 5.03 hereof (Loans of such Type being herein called "Affected
Loans" and such Type being herein called the "Affected Type"),
such Bank's Affected Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest
Period(s) for Affected Loans (or, in the case of a Conversion as
a result of Section 5.01(b) or 5.03 hereof, on such earlier date
as such Bank may specify to the Company with a copy to the
Administrative Agent) and, unless and until such Bank gives
notice as provided below that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Bank's Affected Loans have
been so Converted, all payments and prepayments of principal
that would otherwise be applied to such Bank's Affected
Loans shall be applied instead to its Base Rate Loans;
(b) all Loans that would otherwise be made or
Continued by such Bank as Loans of the Affected Type shall
be made or Continued instead as Base Rate Loans, and all
Loans of such Bank that would otherwise be Converted into
Loans of the Affected Type shall be Converted instead into
(or shall remain as) Base Rate Loans; and
Credit Agreement
<PAGE>
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(c) if Loans of other Banks of the Affected Type are
subsequently Converted into Loans of another Type (other
than Base Rate Loans), such Bank's Base Rate Loans shall be
automatically Converted on the Conversion date for such
Loans of the other Banks into Loans of such other Type to
the extent necessary so that, after giving effect thereto,
all Loans held by such Bank and the Banks whose Loans are so
Converted are held pro rata (as to principal amounts, Types
and Interest Periods) in accordance with their respective
Commitments.
If such Bank gives notice to the Company with a copy to the
Administrative Agent that the circumstances specified in
Section 5.01 or 5.03 hereof that gave rise to the Conversion of
such Bank's Affected Loans pursuant to this Section 5.04 no
longer exist (which such Bank agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the
Affected Type made by other Banks are outstanding, such Bank's
Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such
outstanding Loans of the Affected Type, to the extent necessary
so that, after giving effect thereto, all Loans held by the Banks
holding Loans of the Affected Type and by such Bank are held pro
rata (as to principal amounts, Types and Interest Periods) in
accordance with their respective Commitments.
5.05 Compensation. The Company shall pay to the
Administrative Agent for account of each Bank, upon the request
of such Bank through the Administrative Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such
Bank) to compensate it for any loss, cost or expense that such
Bank determines is attributable to:
(a) any payment, prepayment or Conversion of a Fixed
Rate Loan or a Set Rate Loan made by such Bank for any
reason (including, without limitation, the acceleration of
the Loans pursuant to Section 9 hereof) on a date other than
the last day of the Interest Period for such Loan;
(b) any failure by the Company for any reason
(including, without limitation, the failure of any of the
conditions precedent specified in Section 6 hereof to be
satisfied) to borrow a Fixed Rate Loan or a Set Rate Loan
(with respect to which, in the case of a Money Market Loan,
the Company has accepted a Money Market Quote) from such
Bank on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02
or 2.03(b) hereof; or
Credit Agreement
<PAGE>
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(c) any failure for any reason (including, without
limitation, as provided in Section 5.02 or 5.03 hereof) of a
Loan of such Bank to be Continued as or Converted into a
Fixed Rate Loan on the date for such Continuation or
Conversion specified in the relevant notice given pursuant
to Section 2.09 hereof.
Without limiting the effect of the preceding sentence, such
compensation shall include an amount equal to the excess, if any,
of (i) the amount of interest that otherwise would have accrued
on the principal amount so paid, prepaid or Converted or not
borrowed, Continued or Converted for the period from the date of
such payment, prepayment, Conversion or failure to borrow,
Continue or Convert to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow,
Continue or Convert, the Interest Period for such Loan that would
have commenced on the date specified for such borrowing,
Continuation or Conversion) at the applicable rate of interest
for such Loan provided for herein over (ii) the amount of
interest that otherwise would have accrued on such principal
amount at a rate per annum equal to the interest component of the
amount such Bank would have bid in the London interbank market
(if such Loan is a Eurodollar Loan or a LIBOR Market Loan) or the
United States secondary certificate of deposit market (if such
Loan is a Set Rate Loan) for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such
Bank).
5.06 U.S. Taxes.
(a) The Company agrees to pay to each Bank that is not
a U.S. Person such additional amounts as are necessary in order
that the net payment of any amount due to such non-U.S. Person
hereunder after deduction for or withholding in respect of any
U.S. Tax imposed with respect to such payment (or in lieu
thereof, payment of such U.S. Tax by such non-U.S. Person), will
not be less than the amount stated herein to be then due and
payable, provided that the foregoing obligation to pay such
additional amounts shall not apply:
(i) to any payment to a Bank hereunder unless such
Bank is, on the date hereof (or on the date it becomes a
Bank as provided in Section 11.06(b) hereof) and on the date
of any change in the Applicable Lending Office of such Bank,
either entitled to submit a Form 1001 (relating to such Bank
and entitling it to a complete exemption from withholding on
all interest to be received by it hereunder in respect of
Credit Agreement
<PAGE>
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the Loans) or Form 4224 (relating to all interest to be
received by such Bank hereunder in respect of the Loans), or
(ii) to any U.S. Tax imposed solely by reason of the
failure by such non-U.S. Person to comply with applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity
or connections with the United States of America of such
non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition
to relief or exemption from such U.S. Tax.
For the purposes of this Section 5.06(a), (w) "Form 1001" shall
mean Form 1001 (Ownership, Exemption, or Reduced Rate
Certificate) of the Department of the Treasury of the United
States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively
Connected with the Conduct of a Trade or Business in the United
States) of the Department of the Treasury of the United States of
America (or in relation to either such Form such successor and
related forms as may from time to time be adopted by the relevant
taxing authorities of the United States of America to document a
claim to which such Form relates), (y) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a
corporation, partnership or other entity created or organized in
or under any laws of the United States of America, or any estate
or trust that is subject to Federal income taxation regardless of
the source of its income and (z) "U.S. Taxes" shall mean any
present or future tax, assessment or other charge or levy imposed
by or on behalf of the United States of America or any taxing
authority thereof or therein.
(b) Within 30 days after paying any amount to the
Administrative Agent or any Bank from which it is required by law
to make any deduction or withholding, and within 30 days after it
is required by law to remit such deduction or withholding to any
relevant taxing or other authority, the Company shall deliver to
the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
Section 6. Conditions Precedent.
6.01 Initial Loan. The obligation of any Bank to make
its initial Loan hereunder is subject to the receipt by the
Administrative Agent (with sufficient copies for each Bank that
requests a copy) of the following documents, each of which shall
Credit Agreement
<PAGE>
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be satisfactory to the Administrative Agent (and to the extent
specified below, to each Bank) in form and substance:
(a) Corporate Documents. The following documents,
each certified as indicated below:
(i) a copy of the charter, as amended and in
effect, of the Company certified by the Secretary of
State of the State of Delaware, and a certificate from
such Secretary of State as to the good standing of and
charter documents filed by the Company;
(ii) a certificate of the Secretary or an
Assistant Secretary of the Company, certifying (A) that
attached thereto is a true and complete copy of the
by-laws of the Company as amended and in effect at all
times from the date on which the resolutions referred
to in clause (B) were adopted to and including the date
of such certificate, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by
the board of directors of the Company authorizing the
execution, delivery and performance of this Agreement
and the Notes and the extensions of credit hereunder,
and that such resolutions have not been modified,
rescinded or amended and are in full force and effect,
(C) that the charter of the Company has not been
amended since the date of the certification thereto
furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer
of the Company executing this Agreement and the Notes
and each other document to be delivered by the Company
from time to time in connection therewith (and the
Administrative Agent and each Bank may conclusively
rely on such certificate until it receives notice in
writing from the Company); and
(iii) a certificate of another officer of the
Company, as to the incumbency and specimen signature of
the Secretary or Assistant Secretary, as the case may
be, of the Company;
(b) Officer's Certificate. A certificate of a senior
officer of the Company, to the effect set forth in the first
sentence of Section 6.02 hereof;
(c) Opinion of Counsel to the Company. An opinion of
Wendy C. Shiba, Esq., Secretary and Assistant General
Counsel of the Company, substantially in the form of
Credit Agreement
<PAGE>
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Exhibit B hereto and covering such other matters as the
Administrative Agent or any Bank may reasonably request (and
the Company hereby instructs such counsel to deliver such
opinion to the Banks and the Administrative Agent);
(d) Opinion of Special New York Counsel to Chase. An
opinion of Milbank, Tweed, Hadley & McCloy, special New York
counsel to Chase, substantially in the form of Exhibit C
hereto (and Chase hereby instructs such counsel to deliver
such opinion to the Banks);
(e) Notes. The Notes, duly completed and executed;
and
(f) Termination of the Existing Credit Agreement.
Evidence that all commitments of the lenders to extend
credit under the Existing Credit Agreement shall have been
terminated, and all principal of and interest on the loans
thereunder, and all fees and any other amounts payable by
the Company thereunder, shall have been paid in full; and
(g) Other Documents. Such other documents as the
Administrative Agent or any Bank or special New York counsel
to Chase may reasonably request.
The obligation of any Bank to make its initial extension of
credit hereunder is also subject to the payment or delivery by
the Company of such fees and other consideration as the Company
shall have agreed to pay or deliver to any Bank or an affiliate
thereof or the Administrative Agent in connection herewith.
6.02 Initial and Subsequent Loans. The obligation of
any Bank to make any Loan (including any Money Market Loan and
such Bank's initial Syndicated Loan) to the Company upon the
occasion of each borrowing hereunder is subject to the further
conditions precedent that, both immediately prior to the making
of such Loan and also after giving effect thereto and to the
intended use thereof:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by the
Company in Section 7 hereof (other than in the last sentence
of Section 7.02 hereof and in Section 7.03 hereof) shall be
true and complete on and as of the date of the making of
such Loan with the same force and effect as if made on and
as of such date (or, if any such representation or warranty
Credit Agreement
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is expressly stated to have been made as of a specific date,
as of such specific date); and
(c) if such borrowing is a Money Market Loan or will
increase the aggregate outstanding principal amount of
Syndicated Loans, the representations and warranties
contained in the last sentence of Section 7.02 hereof and in
Section 7.03 hereof shall be true and complete on and as of
the date of making such Loan with the same force and effect
as if made on and as of such date.
Each notice of borrowing by the Company hereunder shall
constitute a certification by the Company to the effect set forth
in the preceding sentence (both as of the date of such notice
and, unless the Company otherwise notifies the Administrative
Agent prior to the date of such borrowing, as of the date of such
borrowing).
Section 7. Representations and Warranties. The
Company represents and warrants to the Administrative Agent and
the Banks that:
7.01 Corporate Existence. Each of the Company and its
Subsidiaries: (a) is a corporation, partnership or other entity
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization; (b) has all
requisite corporate or other power, and has all material
governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now
being or as proposed to be conducted; and (c) is qualified to do
business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could
have a Material Adverse Effect.
7.02 Financial Condition. The Company has heretofore
furnished to each of the Banks (i) the consolidated balance sheet
of the Company and its Consolidated Subsidiaries as at December
31, 1994 and the related consolidated statements of operations,
capital accounts and cash flows of the Company and its
Consolidated Subsidiaries for the fiscal year ended on said date,
with the opinion thereon of KPMG Peat Marwick LLP and (ii) the
unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at June 30, 1995 and the related
consolidated statements of operations, capital accounts and cash
flows of the Company and its Consolidated Subsidiaries for the
six-month period ended on such date. Such financial statements
are complete and correct and fairly present the consolidated
Credit Agreement
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financial condition of the Company and its Consolidated
Subsidiaries, as at said dates and the consolidated results of
their operations for the fiscal year and six-month period ended
on said dates (subject, in the case of such financial statements
as at June 30, 1995, to normal year-end audit adjustments), all
in accordance with generally accepted accounting principles and
practices applied on a consistent basis; and neither the Company
nor any of its Subsidiaries had on the date thereof any material
contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from
any unfavorable commitments, except as referred to or reflected
or provided for in said balance sheets as at said dates. There
has been no material adverse change in the Property, business,
operations, financial condition, liabilities or capitalization of
the Company and its Consolidated Subsidiaries taken as a whole
since the last day of the fiscal year of the Company as to which
financial statements have most recently been delivered pursuant
to Section 8.01(b) hereof (or, if no such financial statements
have yet been delivered, since June 30, 1995).
7.03 Litigation. Except as disclosed to the Banks in
Schedule III hereto, there are no legal or arbitral proceedings,
or any proceedings by or before any governmental or regulatory
authority or agency, now pending or (to the knowledge of the
Company) threatened against the Company or any of its
Subsidiaries which, if adversely determined, would have a
Material Adverse Effect.
7.04 No Breach. None of the execution and delivery of
this Agreement and the Notes, the consummation of the
transactions herein contemplated or compliance with the terms and
provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of the Company,
or any applicable law or regulation in any material respect, or
any order, writ, injunction or decree of any court or
governmental authority or agency, or any agreement or instrument
in any material respect to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their
Property is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any
Property of the Company or any of its Subsidiaries pursuant to
the terms of any such agreement or instrument.
7.05 Action. The Company has all necessary corporate
power, authority and legal right to execute, deliver and perform
its obligations under this Agreement and the Notes and to borrow
under this Agreement; the execution, delivery and performance by
Credit Agreement
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the Company of this Agreement and the Notes and the borrowings by
the Company under this Agreement have been duly authorized by all
necessary corporate action on its part (including, without
limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by the
Company and constitutes, and each of the Notes when executed and
delivered for value will constitute, its legal, valid and binding
obligation, enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of
creditors' rights and (b) the application of general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
7.06 Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any
governmental or regulatory authority or agency, or any securities
exchange, are necessary for the execution, delivery or
performance by the Company of this Agreement or the Notes or for
the legality, validity or enforceability hereof or thereof, or
for any borrowing by the Company under this Agreement.
7.07 Use of Credit. Neither the Company nor any of
its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or
carrying Margin Stock, and no part of the proceeds of any
extension of credit hereunder will be used to buy or carry any
Margin Stock. Not more than 25% of the value of the Properties
of the Company and its Subsidiaries subject to the provisions of
Section 8.05 or Section 8.06 hereof is represented by Property
constituting Margin Stock.
7.08 ERISA. Each Plan, and, to the knowledge of the
Company, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material
respects in compliance with, the applicable provisions of ERISA,
the Code and any other Federal or state law, and no event or
condition has occurred and is continuing as to which the Company
would be under an obligation to furnish a report to the Banks
under Section 8.01(e) hereof.
7.09 Taxes. The Company and its Subsidiaries are
members of an affiliated group of corporations filing
consolidated returns for Federal income tax purposes, of which
the Company is the "common parent" (within the meaning of
Section 1504 of the Code) of such group. The Company and its
Credit Agreement
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Subsidiaries have filed all Federal income tax returns and all
other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Company or any of its
Subsidiaries. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of the Company,
adequate. Neither the Company nor any of its Subsidiaries has
given or been requested to give a waiver of the statute of
limitations relating to the payment of Federal, state, local and
foreign taxes or other impositions.
7.10 Investment Company Act. Neither the Company nor
any of its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
7.11 Public Utility Holding Company Act. Neither the
Company nor any of its Subsidiaries is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and
correct list, as of the date of this Agreement, of each credit
agreement, loan agreement, indenture, guarantee, letter of credit
or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any
extension of credit) to, or guarantee by, the Company or any of
its Subsidiaries the aggregate principal or face amount of which
equals or exceeds (or may equal or exceed) $25,000,000, and the
aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in
Part A of said Schedule I.
On the date hereof, the maximum aggregate principal or
face amount of all Indebtedness and all other extensions of
credit outstanding (or that may become outstanding) under each
credit agreement, loan agreement, indenture, guarantee, letter of
credit or other arrangement to which the Company or any of its
Subsidiaries is a party, or guarantee by the Company or any of
its Subsidiaries, that is not listed in Part A of Schedule I
hereto does not exceed an amount equal to $5,000,000.
(b) Part B of Schedule I hereto is a complete and
correct list, as of the date of this Agreement, of each Lien
Credit Agreement
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securing Indebtedness of any Person the aggregate principal or
face amount of which equals or exceeds (or may equal or exceed)
$25,000,000 and covering any Property of the Company or any of
its Subsidiaries, and the aggregate Indebtedness secured (or
which may be secured) by each such Lien and the Property covered
by each such Lien is correctly described in Part B of said
Schedule I.
7.13 Environmental Matters. Each of the Company and
its Subsidiaries has obtained all environmental, health and
safety permits, licenses and other authorizations required under
all Environmental Laws to carry on its business as now being or
as proposed to be conducted, except to the extent failure to have
any such permit, license or authorization would not have a
Material Adverse Effect. Each of such permits, licenses and
authorizations is in full force and effect and each of the
Company and its Subsidiaries is in compliance with the terms and
conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply therewith would not have a
Material Adverse Effect.
7.14 Subsidiaries, Etc. Set forth in Schedule II
hereto is a complete and correct list, as of the date of this
Agreement, of all of the Subsidiaries of the Company together
with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding
ownership interests in such Subsidiary and (iii) the nature of
the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such
ownership interests. Except as disclosed in Schedule II hereto,
(x) each of the Company and its Subsidiaries owns, free and clear
of Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in
Schedule II hereto, (y) all of the issued and outstanding capital
stock of each such Person organized as a corporation is validly
issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
7.15 True and Complete Disclosure. The information,
reports, financial statements, exhibits and schedules furnished
in writing by or on behalf of the Company to the Administrative
Agent or any Bank in connection with the negotiation, preparation
or delivery of this Agreement or included herein or delivered
Credit Agreement
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pursuant hereto, when taken as a whole do not contain any untrue
statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading.
All written information furnished after the date hereof by the
Company and its Subsidiaries to the Administrative Agent and the
Banks in connection with this Agreement and the transactions
contemplated hereby will be true, complete and accurate in every
material respect, or (in the case of projections) based on
reasonable estimates, on the date as of which such information is
stated or certified. There is no fact known to the Company that
could have a Material Adverse Effect that has not been disclosed
herein or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Banks for use
in connection with the transactions contemplated hereby.
Section 8. Covenants of the Company. The Company
covenants and agrees with the Banks and the Administrative Agent
that, so long as any Commitment or Loan is outstanding and until
payment in full of all amounts payable by the Company hereunder:
8.01 Financial Statements Etc. The Company shall
deliver to the Administrative Agent (with sufficient copies for
each Bank, which the Administrative Agent shall promptly furnish
to such Bank):
(a) as soon as available and in any event within
60 days after the end of each of the quarterly fiscal
periods of each fiscal year of the Company, consolidated
statements of operations, capital accounts and cash flows of
the Company and its Consolidated Subsidiaries for such
period and for the period from the beginning of the
respective fiscal year to the end of such period, and the
related consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at the end of such period,
setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding
period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of the Company,
which certificate shall state that said consolidated
financial statements fairly present the consolidated
financial condition and results of operations of the Company
and its Consolidated Subsidiaries in accordance with
generally accepted accounting principles, consistently
applied, as at the end of, and for, such period (subject to
normal year-end audit adjustments);
Credit Agreement
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(b) as soon as available and in any event within
120 days after the end of each fiscal year of the Company,
consolidated statements of operations, capital accounts and
cash flows of the Company and its Consolidated Subsidiaries
for such fiscal year and the related consolidated balance
sheet of the Company and its Consolidated Subsidiaries as at
the end of such fiscal year, setting forth in each case in
comparative form the corresponding consolidated figures for
the preceding fiscal year, and accompanied by an opinion
thereon of independent certified public accountants of
recognized national standing, which opinion shall state that
said consolidated financial statements fairly present the
consolidated financial condition and results of operations
of the Company and its Consolidated Subsidiaries as at the
end of, and for, such fiscal year in accordance with
generally accepted accounting principles;
(c) promptly upon their becoming available, copies of
all registration statements and regular periodic reports, if
any, which the Company shall have filed with the Securities
and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all
financial statements, reports and proxy statements so
mailed;
(e) as soon as possible, and in any event within
ten days after the Company knows or has reason to believe
that any of the events or conditions specified below with
respect to any Plan or Multiemployer Plan has occurred or
exists, a statement signed by a senior financial officer of
the Company setting forth details respecting such event or
condition and the action, if any, that the Company or its
ERISA Affiliate proposes to take with respect thereto (and a
copy of any report or notice required to be filed with or
given to PBGC by the Company or an ERISA Affiliate with
respect to such event or condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued
thereunder, with respect to a Plan, as to which PBGC
has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event (provided that
a failure to meet the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA,
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including, without limitation, the failure to make on
or before its due date a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA,
shall be a reportable event regardless of the issuance
of any waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under
Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA
of a notice of intent to terminate any Plan or any
action taken by the Company or an ERISA Affiliate to
terminate any Plan;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or
the receipt by the Company or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has
been taken by PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Company or any ERISA
Affiliate that results in liability under Section 4201
or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of a purchaser default)
or the receipt by the Company or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241
or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the Company
or any ERISA Affiliate to enforce Section 515 of ERISA,
which proceeding is not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a
part if the Company or an ERISA Affiliate fails to
timely provide security to the Plan in accordance with
the provisions of said Sections;
(f) promptly after the Company knows or has reason to
believe that any Default has occurred, a notice of such
Default stating that such notice is a "Notice of Default"
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and describing the same in reasonable detail and, together
with such notice or as soon thereafter as possible, a
description of the action that the Company has taken or
proposes to take with respect thereto; and
(g) from time to time such other information regarding
the financial condition, operations, business or prospects
of the Company or any of its Subsidiaries (including,
without limitation, any Plan or Multiemployer Plan and any
reports or other information required to be filed under
ERISA) as any Bank or the Administrative Agent may
reasonably request.
The Company will furnish to the Administrative Agent (with
sufficient copies for each Bank, which the Administrative Agent
shall promptly furnish to such Bank), at the time it furnishes
each set of financial statements pursuant to paragraph (a) or (b)
above, a certificate of a senior financial officer of the Company
(i) to the effect that no Default has occurred and is continuing
(or, if any Default has occurred and is continuing, describing
the same in reasonable detail and describing the action that the
Company has taken or proposes to take with respect thereto) and
(ii) setting forth in reasonable detail the computations
necessary to determine whether the Company is in compliance with
Sections 8.07 and 8.08 hereof as of the end of the respective
quarterly fiscal period or fiscal year.
8.02 Litigation. The Company will promptly give to
the Administrative Agent (which shall promptly furnish the same
to each Bank) notice of all legal or arbitral proceedings, and of
all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of
such legal or other proceedings, affecting the Company or any of
its Subsidiaries, except proceedings which, if adversely
determined, would not have a Material Adverse Effect. Without
limiting the generality of the foregoing, the Company will give
to the Administrative Agent (which shall promptly furnish the
same to each Bank) notice of the assertion of any environmental
claim by any Person against, or with respect to the activities
of, the Company or any of its Subsidiaries and notice of any
alleged violation of or non-compliance with any Environmental
Laws or any permits, licenses or authorizations, other than any
environmental claim or alleged violation which, if adversely
determined, would not have a Material Adverse Effect.
8.03 Existence, Etc. The Company will, and will cause
each of its Subsidiaries to:
Credit Agreement
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(a) preserve and maintain its legal existence and all
of its material rights, privileges, licenses and franchises
(provided that nothing in this Section 8.03 shall prohibit
any transaction expressly permitted under Section 8.05
hereof);
(b) comply with the requirements of all applicable
laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such
requirements could have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its
income or profits or on any of its Property prior to the
date on which penalties attach thereto, except for any such
tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained in
accordance with generally accepted accounting principles;
(d) maintain all of its Properties used or useful in
its business in good working order and condition, ordinary
wear and tear excepted;
(e) keep adequate records and books of account, in
which complete entries will be made in accordance with
generally accepted accounting principles consistently
applied; and
(f) permit representatives of any Bank or the
Administrative Agent, during normal business hours, to
examine, copy and make extracts from its books and records,
to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent
reasonably requested by such Bank or the Administrative
Agent (as the case may be).
8.04 Insurance. The Company will, and will cause each
of its Subsidiaries to, keep insured by financially sound and
reputable insurers (which insurers shall, in any event, have an
A.M. Best rating of "B+" or better) all Property of a character
usually insured by corporations engaged in the same or similar
business similarly situated against loss or damage of the kinds
and in the amounts customarily insured against by such
corporations and carry such other insurance as is usually carried
by such corporations.
Credit Agreement
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8.05 Prohibition of Fundamental Changes. The Company
will not, nor will it permit any of its Subsidiaries to, enter
into any transaction of merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution). The Company will not, nor will it
permit any of its Subsidiaries to, convey, sell, lease, transfer
or otherwise dispose of, in one transaction or a series of
transactions, all or a substantial part of its business or
Property, whether now owned or hereafter acquired (including,
without limitation, receivables and leasehold interests, but
excluding any inventory or other Property sold or disposed of in
the ordinary course of business and on ordinary business terms).
Notwithstanding the foregoing provisions of this Section 8.05:
(a) any Subsidiary of the Company may be merged or
consolidated with or into: (i) the Company if the Company
shall be the continuing or surviving corporation or (ii) any
other such Subsidiary; provided that if any such transaction
shall be between a Subsidiary and a Wholly Owned Subsidiary,
the Wholly Owned Subsidiary shall be the continuing or
surviving corporation;
(b) any Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any or all of its Property
(upon voluntary liquidation or otherwise) to the Company or
a Wholly Owned Subsidiary of the Company;
(c) the Company or any Subsidiary of the Company may
merge or consolidate with any other Person if (i) in the
case of a merger or consolidation of the Company, the
Company is the surviving corporation and, in any other case,
the surviving corporation is a Wholly-Owned Subsidiary of
the Company and (ii) after giving effect thereto no Default
would exist; and
(d) in addition to the dispositions permitted pursuant
to clauses (a) through (c) of this Section 8.05, the Company
or any Subsidiary of the Company may sell or otherwise
dispose of Property (including, without limitation, by
merger or consolidation) if, after giving effect to any such
sale or disposition, the book value of such Property,
together with the aggregate book value of the Property so
sold or disposed of since December 31, 1994 does not exceed
20% of Total Assets at the date of (and before giving effect
to) such sale or disposition.
8.06 Limitation on Liens. The Company will not, nor
will it permit any of its Subsidiaries to, create, incur, assume
Credit Agreement
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or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, except:
(a) Liens in existence on the date hereof and listed
in Part B of Schedule I hereto;
(b) Liens imposed by any governmental authority for
taxes, assessments or charges not yet due or which are being
contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the
books of the Company or the affected Subsidiaries, as the
case may be, in accordance with GAAP;
(c) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business which are not overdue for a
period of more than 30 days or which are being contested in
good faith and by appropriate proceedings and Liens securing
judgments but only to the extent for an amount and for a
period not resulting in an Event of Default under
Section 9(h) hereof;
(d) pledges or deposits under worker's compensation,
unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(f) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Property or
minor imperfections in title thereto which, in the
aggregate, are not material in amount, and which do not in
any case materially detract from the value of the Property
subject thereto or interfere with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(g) Liens on Property of any corporation which becomes
a Subsidiary of the Company after the date of this
Agreement; provided that such Liens are in existence at the
time such corporation becomes a Subsidiary of the Company
and were not created in anticipation thereof;
Credit Agreement
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(h) Liens upon real and/or tangible personal Property
acquired after the date hereof (by purchase, construction or
otherwise) by the Company or any of its Subsidiaries, each
of which Liens either (A) existed on such Property before
the time of its acquisition and was not created in
anticipation thereof, or (B) was created solely for the
purpose of securing Indebtedness representing, or incurred
to finance, refinance or refund, the cost (including the
cost of construction) of such Property; provided that no
such Lien shall extend to or cover any Property of the
Company or such Subsidiary other than the Property so
acquired and improvements thereon;
(i) Liens securing obligations of the Company or any
of its Subsidiaries incurred in conjunction with industrial
revenue bonds or pollution control bonds of any facilities
used by the Company or any of its Subsidiaries;
(j) additional Liens upon real and/or personal
Property created after the date hereof; provided that the
aggregate outstanding amount of Indebtedness secured thereby
and incurred on and after the date hereof shall not at any
time exceed 10% of Total Assets at such time; and
(k) any extension, renewal or replacement of the
foregoing; provided that the Liens permitted hereunder shall
not be spread to cover any additional Indebtedness or
Property (other than a substitution of like Property).
8.07 Consolidated Net Worth. The Company will not
permit Consolidated Net Worth at any time to be less than
(a) $800,000,000 plus (b) 50% of the consolidated net income of
the Company and its Consolidated Subsidiaries for each fiscal
quarter of the Company from and including the third fiscal
quarter in 1995 to and including the fiscal quarter ending on (or
most recently ended prior to) such time; provided that, if there
is a consolidated net loss for any such fiscal quarter,
consolidated net income for such fiscal quarter shall, for the
purposes of clause (b) of this Section 8.07, be deemed to be
zero.
8.08 Total Debt to Total Capital Ratio. The Company
will not permit the ratio of (a) Total Debt at any time to
(b) Total Capital at such time to exceed 0.60 to 1.
8.09 Transactions with Affiliates. Except as
expressly permitted by this Agreement, the Company will not, nor
will it permit any of its Subsidiaries to, directly or
Credit Agreement
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indirectly: (a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or
purchase or acquire Property from an Affiliate; or (d) enter into
any other transaction directly or indirectly with or for the
benefit of an Affiliate (including, without limitation,
guarantees and assumptions of obligations of an Affiliate);
provided that (x) any Affiliate who is an individual may serve as
a director, officer or employee of the Company or any of its
Subsidiaries and receive reasonable compensation for his or her
services in such capacity and (y) the Company and its
Subsidiaries may enter into transactions (other than extensions
of credit by the Company or any of its Subsidiaries to an
Affiliate) so long as the monetary or business consideration
arising therefrom would be substantially as advantageous to the
Company and its Subsidiaries as the monetary or business
consideration which would obtain in a comparable transaction with
a Person not an Affiliate.
8.10 Use of Proceeds. The Company will use the
proceeds of the Loans hereunder solely for working capital and
other general corporate purposes (in compliance with all
applicable legal and regulatory requirements); provided that
neither the Administrative Agent nor any Bank shall have any
responsibility as to the use of any of such proceeds.
Section 9. Events of Default. If one or more of the
following events (herein called "Events of Default") shall occur
and be continuing:
(a) The Company shall default in the payment when due
(whether at stated maturity or upon optional prepayment) of
any principal of or interest on any Loan, any fee or any
other amount payable by it hereunder; or
(b) The Company or any of its Subsidiaries shall
default in the payment when due of any principal of or
interest on any Indebtedness (other than the Indebtedness
hereunder and under the Notes) aggregating $25,000,000 or
more, or in the payment when due of any amount under any
Interest Rate Protection Agreement in respect of a notional
principal amount of Indebtedness aggregating $75,000,000 or
more; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any
such Indebtedness or any event specified in any such
Interest Rate Protection Agreement shall occur if the effect
of such event is to cause, or (with the giving of any notice
or the lapse of time or both) to permit the holder or
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holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full
(whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities
evidencing such Indebtedness trade at a level specified in
relation to the par value thereof or, in the case of an
Interest Rate Protection Agreement, to permit the payments
owing under such Interest Rate Protection Agreement to be
liquidated; or
(c) Any representation, warranty or certification made
or deemed made herein (or in any modification or supplement
hereto) by the Company, or any certificate furnished to any
Bank or the Administrative Agent pursuant to the provisions
hereof, shall prove to have been false or misleading as of
the time made or deemed made or furnished in any material
respect; or
(d) The Company shall default in the performance of
any of its obligations under any of Sections 8.01(f), 8.05,
8.06, 8.07 or 8.08 hereof; or the Company shall default in
the performance of any of its other obligations in this
Agreement and such default shall continue unremedied for a
period of 30 days after notice thereof to the Company by the
Administrative Agent or any Bank (through the Administrative
Agent); or
(e) The Company or any of its Subsidiaries shall admit
in writing its inability to, or be generally unable to, pay
its debts as such debts become due; or
(f) The Company or any of its Subsidiaries shall
(i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case
under the Bankruptcy Code, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code
or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
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(g) A proceeding or case shall be commenced, without
the application or consent of the Company or any of its
Subsidiaries, in any court of competent jurisdiction,
seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the
like of the Company or such Subsidiary or of all or any
substantial part of its Property, or (iii) similar relief in
respect of the Company or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed for a period
of 60 or more days; or an order, judgment or decree
approving or ordering any of the foregoing shall be entered
against the Company or such Subsidiary in an involuntary
case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of
money in excess of $10,000,000 in the aggregate (exclusive
of judgment amounts fully covered by insurance where the
insurer has admitted liability in respect of such judgment)
or in excess of $50,000,000 in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction
against the Company or any of its Subsidiaries and the same
shall not be discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and
the Company or the relevant Subsidiary shall not, within
said period of 30 days, or such longer period during which
execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed
during such appeal; or
(i) An event or condition specified in Section 8.01(e)
hereof shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or
condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur
or in the opinion of the Majority Banks shall be reasonably
likely to incur a liability to a Plan, a Multiemployer Plan
or PBGC (or any combination of the foregoing) which would
constitute, in the determination of the Majority Banks, a
Material Adverse Effect; or
(j) A reasonable basis shall exist for the assertion
against the Company or any of its Subsidiaries of (or there
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shall have been asserted against the Company or any of its
Subsidiaries) claims or liabilities, whether accrued,
absolute or contingent, based on or arising from the
generation, storage, transport, handling or disposal of
hazardous materials (within the meaning of any Environmental
Law) by the Company or any of its Subsidiaries, or any
predecessor in interest of the Company or any of its
Subsidiaries, or relating to any site or facility owned,
operated or leased by the Company or any of its
Subsidiaries, which claims or liabilities (insofar as they
are payable by the Company or any of its Subsidiaries but
after deducting any portion thereof which is reasonably
expected to be paid by other creditworthy Persons jointly
and severally liable therefor), in the judgment of the
Majority Banks are reasonably likely to be determined
adversely to the Company or any of its Subsidiaries, and the
amount thereof is, singly or in the aggregate, reasonably
likely to have a Material Adverse Effect; or
(k) During any period of 25 consecutive calendar
months, a majority of the Board of Directors of the Company
shall no longer be composed of individuals (i) who were
members of said Board on the first day of such period,
(ii) whose election or nomination to said Board was approved
by individuals referred to in clause (i) above constituting
at the time of such election or nomination at least a
majority of said Board or (iii) whose election or nomination
to said Board was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of said Board;
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9 with respect
to the Company, (A) the Administrative Agent may and, upon
request of the Majority Banks, shall, by notice to the Company,
terminate the Commitments and they shall thereupon terminate, and
(B) the Administrative Agent may and, upon request of Banks
holding at least 66-2/3% of the aggregate unpaid principal amount
of the Loans shall, by notice to the Company declare the
principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Company
hereunder and under the Notes (including, without limitation, any
amounts payable under Section 5.05 hereof) to be forthwith due
and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities
of any kind, all of which are hereby expressly waived by the
Company; and (2) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Section 9 with
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respect to the Company, the Commitments shall automatically be
terminated and the principal amount then outstanding of, and the
accrued interest on, the Loans and all other amounts payable by
the Company hereunder and under the Notes (including, without
limitation, any amounts payable under Section 5.05 hereof) shall
automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Company.
Section 10. The Administrative Agent.
10.01 Appointment, Powers and Immunities. Each Bank
hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent hereunder with such powers as are
specifically delegated to the Administrative Agent by the terms
of this Agreement, together with such other powers as are
reasonably incidental thereto. The Administrative Agent (which
term as used in this sentence and in Section 10.05 and the first
sentence of Section 10.06 hereof shall include reference to its
affiliates and its own and its affiliates' officers, directors,
employees and agents):
(a) shall have no duties or responsibilities except
those expressly set forth in this Agreement, and shall not
by reason of this Agreement be a trustee for any Bank;
(b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties
contained in this Agreement, or in any certificate or other
document referred to or provided for in, or received by any
of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of
this Agreement, any Note or any other document referred to
or provided for herein or for any failure by the Company or
any other Person to perform any of its obligations hereunder
or thereunder;
(c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and
(d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other
document or instrument referred to or provided for herein or
in connection herewith, except for its own gross negligence
or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of
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any such agents or attorneys-in-fact selected by it in good
faith. The Administrative Agent may deem and treat the payee of
any Note as the holder thereof for all purposes hereof unless and
until a notice of the assignment or transfer thereof shall have
been filed with the Administrative Agent, together with the
consent of the Company to such assignment or transfer (to the
extent provided in Section 11.06(b) hereof).
10.02 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including, without
limitation, any thereof by telephone, telecopy, telegram or
cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative
Agent. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in
accordance with instructions given by the Majority Banks, and
such instructions of the Majority Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the
Banks.
10.03 Defaults. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default
(other than the non-payment of principal of or interest on Loans
or of facility fee) unless the Administrative Agent has received
notice from a Bank or the Company specifying such Default and
stating that such notice is a "Notice of Default". In the event
that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give
prompt notice thereof to the Banks (and shall give each Bank
prompt notice of each such non-payment). The Administrative
Agent shall (subject to Sections 10.01, 10.07 and 11.04 hereof)
take such action with respect to such Default as shall be
directed by the Majority Banks, provided that, unless and until
the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to
such Default as it shall deem advisable in the best interest of
the Banks except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with
the consent or upon the authorization of the Majority Banks or
all of the Banks.
10.04 Rights as a Bank. With respect to its
Commitment and the Loans made by it, Chase (and any successor
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acting as Administrative Agent) in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any
other Bank and may exercise the same as though it were not acting
as the Administrative Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. Chase (and any
successor acting as Administrative Agent) and its affiliates may
(without having to account therefor to any Bank) accept deposits
from, lend money to, make investments in and generally engage in
any kind of banking, trust or other business with the Company
(and any of its Subsidiaries or Affiliates) as if it were not
acting as the Administrative Agent, and Chase (and any such
successor) and its affiliates may accept fees and other
consideration from the Company for services in connection with
this Agreement or otherwise without having to account for the
same to the Banks.
10.05 Indemnification. The Banks agree to indemnify
the Administrative Agent (to the extent not reimbursed under
Section 11.03 hereof, but without limiting the obligations of the
Company under said Section 11.03) ratably in accordance with the
aggregate principal amount of the Loans held by the Banks (or, if
no Loans shall be outstanding, ratably in accordance with their
respective Commitments), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent (including by any Bank) arising
out of or by reason of any investigation in or in any way
relating to or arising out of this Agreement or any other
documents contemplated by or referred to herein or the
transactions contemplated hereby (including, without limitation,
the costs and expenses that the Company is obligated to pay under
Section 11.03 hereof but excluding, unless a Default has occurred
and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or
the enforcement of any of the terms hereof or of any such other
documents, provided that no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or
willful misconduct of the party to be indemnified.
10.06 Non-Reliance on Administrative Agent and Other
Banks. Each Bank agrees that it has, independently and without
reliance on the Administrative Agent or any other Bank, and based
on such documents and information as it has deemed appropriate,
made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent
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or any other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this
Agreement. The Administrative Agent shall not be required to
keep itself informed as to the performance or observance by the
Company of this Agreement or any other document referred to or
provided for herein or to inspect the Properties or books of the
Company or any of its Subsidiaries. Except for notices, reports
and other documents and information expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning
the affairs, financial condition or business of the Company or
any of its Subsidiaries (or any of their affiliates) that may
come into the possession of the Administrative Agent or any of
its affiliates.
10.07 Failure to Act. Except for action expressly
required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall receive
further assurances to its satisfaction from the Banks of their
indemnification obligations under Section 10.05 hereof against
any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action.
10.08 Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent
may resign at any time by giving notice thereof to the Banks and
the Company, and the Administrative Agent may be removed at any
time with or without cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right
to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within 30 days
after the retiring Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor Administrative Agent,
that shall be a bank which has an office in New York, New York
and which has a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its
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duties and obligations hereunder. After any retiring
Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 10 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 the
Administrative Agent.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the
Administrative Agent or any Bank to exercise and no delay in
exercising, and no course of dealing with respect to, any right,
power or privilege under this Agreement or any Note shall operate
as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided
by law.
11.02 Notices. All notices, requests and other
communications provided for herein (including, without
limitation, any modifications of, or waivers or consents under,
this Agreement) shall be given or made in writing (including,
without limitation, by telecopy), or, with respect to notices
given pursuant to Section 2.03 hereof, by telephone, confirmed in
writing by telecopier by the close of business on the day the
notice is given, delivered (or telephoned, as the case may be) to
the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof); or, as to any
party, at such other address as shall be designated by such party
in a notice to each other party. Except as otherwise provided in
this Agreement, all such communications shall be deemed to have
been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in
each case given or addressed as aforesaid.
11.03 Expenses, Etc. The Company agrees to pay or
reimburse (a) the Administrative Agent for paying all reasonable
out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses
of Milbank, Tweed, Hadley & McCloy, special New York counsel to
Chase) in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement and the Notes and the
making of the Loans hereunder and (ii) the negotiation and
preparation of any modification, supplement or waiver of any of
the terms of this Agreement or any of the Notes (whether or not
consummated); (b) each Bank and the Administrative Agent for
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paying its reasonable out-of-pocket costs and expenses
(including, without limitation, the reasonable fees and expenses
of its legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom,
(ii) the negotiation of any restructuring or "work-out" (whether
or not consummated) of the obligations of the Company hereunder
and (iii) the enforcement of this Section 11.03; and (c) each
Bank and the Administrative Agent for paying all transfer, stamp,
documentary or other similar taxes, assessments or charges levied
by any governmental or revenue authority in respect of this
Agreement or any of the Notes or any other document referred to
herein.
The Company hereby agrees to indemnify the
Administrative Agent and each Bank and their respective
directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses,
liabilities, claims, damages and expenses incurred by any of them
(including, without limitation, any and all losses, liabilities,
claims, damages and expenses incurred by the Administrative Agent
to any Bank, whether or not the Administrative Agent or any Bank
is a party thereto) arising out of or by reason of any
investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings)
relating to the extensions of credit hereunder or any actual or
proposed use by the Company or any of its Subsidiaries of the
proceeds of any of the extensions of credit hereunder, including,
without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of the Person to be
indemnified). Without limiting the generality of the foregoing,
the Company will indemnify the Administrative Agent and each Bank
from, and hold the Administrative Agent and each Bank harmless
against, any losses, liabilities, claims, damages or expenses
described in the preceding sentence (but excluding, as provided
in the preceding sentence, any loss, liability, claim, damage or
expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any
Environmental Law as a result of the past, present or future
operations of the Company or any of its Subsidiaries (or any
predecessor in interest to the Company or any of its
Subsidiaries), or the past, present or future condition of any
site or facility owned, operated or leased by the Company or any
of its Subsidiaries (or any such predecessor in interest), or any
release (within the meaning of any Environmental Law) or
threatened release of any hazardous materials (within the meaning
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of any Environmental Law) from any such site or facility,
including any such release or threatened release which shall
occur during any period when the Administrative Agent or any Bank
shall be in possession of any such site or facility following the
exercise by the Administrative Agent or any Bank of any of its
rights and remedies hereunder.
11.04 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may
be modified or supplemented only by an instrument in writing
signed by the Company, the Administrative Agent and the Majority
Banks, or by the Company and the Administrative Agent acting with
the consent of the Majority Banks, and any provision of this
Agreement may be waived by the Majority Banks or by the
Administrative Agent acting with the consent of the Majority
Banks; provided that: (a) no modification, supplement or waiver
shall, unless by an instrument signed by all of the Banks or by
the Administrative Agent acting with the consent of all of the
Banks: (i) increase or extend the term of the Commitments, or
extend the time or waive any requirement for the reduction or
termination of the Commitments, (ii) extend any date fixed for
the payment of principal of or interest on any Loan or any fee
hereunder, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable
thereon or any fee is payable hereunder, (v) alter the rights or
obligations of the Company to prepay Loans, (vi) alter the terms
of any of Sections 2.07, 4.07, 5 and 11.03 hereof or this
Section 11.04, (vii) modify the definition of the term "Majority
Banks" or modify in any other manner the number or percentage of
the Banks required to make any determinations or waive any rights
hereunder or to modify any provision hereof, or (viii) waive any
of the conditions precedent set forth in Section 6 hereof; and
(b) any modification or supplement of Section 10 hereof, or of
any of the rights or duties of the Administrative Agent
hereunder, shall require the consent of the Administrative Agent.
11.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
11.06 Assignments and Participations.
(a) The Company may not assign all or any portion of
its rights or obligations hereunder or under the Notes without
the prior consent of all of the Banks and the Administrative
Agent.
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(b) Each Bank may assign all or any portion of its
Loans, its Notes, and its Commitment (but only with the consent
of the Company and the Administrative Agent, which consent may
not be unreasonably withheld or delayed); provided that
(i) no such consent by the Company or the
Administrative Agent shall be required in the case of any
assignment to another Bank;
(ii) except to the extent the Company and the
Administrative Agent shall otherwise consent, any such
partial assignment shall be in an amount at least equal to
$10,000,000;
(iii) each such assignment by a Bank of its Loans, Notes
or Commitment shall be made in such manner so that the same
portion of its Loans, Notes and Commitment is assigned to
the respective assignee; and
(iv) upon each such assignment, the assignor and
assignee shall deliver to the Company and the Administrative
Agent a Notice of Assignment in the form of Exhibit F
hereto.
Upon execution and delivery by the assignor and the assignee to
the Company and the Administrative Agent of such Notice of
Assignment, and upon consent thereto by the Company and the
Administrative Agent to the extent required above, the assignee
shall have, to the extent of such assignment (unless otherwise
consented to by the Company and the Administrative Agent), the
obligations, rights and benefits of a Bank hereunder holding the
Commitment and Loans (or portions thereof) assigned to it and
specified in such Notice of Assignment (in addition to the
Commitment and Loans, if any, theretofore held by such assignee)
and the assigning Bank shall, to the extent of such assignment,
be released from the Commitment (or portion thereof) so assigned.
Upon each such assignment the assigning Bank shall pay the
Administrative Agent an assignment fee of $2,500.
(c) A Bank may sell or agree to sell to one or more
other Persons (each a "Participant") a participation in all or
any part of any Loans held by it, or in its Commitment, provided
that such Participant shall not have any other rights or
obligations under this Agreement or any Note (the Participant's
rights against such Bank in respect of such participation to be
those set forth in the agreements executed by such Bank in favor
of the Participant). All amounts payable by the Company to any
Bank under Section 5 hereof in respect of Loans held by it, and
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its Commitment, shall be determined as if such Bank had not sold
or agreed to sell any participations in such Loans and
Commitment, and as if such Bank were funding each of such Loan
and Commitment in the same way that it is funding the portion of
such Loan and Commitment in which no participations have been
sold. In no event shall a Bank that sells a participation agree
with the Participant to take or refrain from taking any action
hereunder except that such Bank may agree with the Participant
that it will not, without the consent of the Participant, agree
to (i) increase or extend the term of such Bank's Commitment,
(ii) extend any date fixed for the payment of principal of or
interest on the related Loan or Loans or any portion of any fee
hereunder payable to the Participant, (iii) reduce the amount of
any such payment of principal, (iv) reduce the rate at which
interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee, or (v) consent to
any modification, supplement or waiver hereof to the extent that
the same, under Section 11.04 hereof, requires the consent of
each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 11.06,
any Bank may assign and pledge all or any portion of its Loans
and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the
assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Bank
from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary
notwithstanding, the Company shall not, and shall not permit any
of its Subsidiaries to, acquire (whether by assignment,
participation or otherwise), and no Bank may assign or
participate to the Company or any of its Subsidiaries or
Affiliates, any interest in any Loan without the prior consent of
each Bank.
11.07 Survival. The obligations of the Company under
Sections 5.01, 5.05, 5.06 and 11.03 hereof and the obligations of
the Banks under Section 10.05 hereof shall survive the repayment
of the Loans and the termination of the Commitments. In
addition, each representation and warranty made, or deemed to be
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made by a notice of any Loan, herein or pursuant hereto shall
survive the making of such representation and warranty, and no
Bank shall be deemed to have waived, by reason of making any
Loan, any Default which may arise by reason of such
representation or warranty proving to have been false or
misleading, notwithstanding that such Bank or the Administrative
Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the
time such Loan was made.
11.08 Captions. The table of contents and captions
and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
11.09 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
11.10 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York. The Company
hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and
of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to
this Agreement, the Notes or the transactions contemplated
hereby. The Company irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient
forum.
11.11 Waiver of Jury Trial. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
11.12 Treatment of Certain Information. (a) The
Company acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided
to the Company or one or more of its Subsidiaries (in connection
with this Agreement or otherwise) by any Bank or by one or more
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subsidiaries or affiliates of such Bank and the Company hereby
authorizes each Bank to share any information delivered to such
Bank by the Company and its Subsidiaries pursuant to this
Agreement, or in connection with the decision of such Bank to
enter into this Agreement, to any such subsidiary or affiliate of
such Bank, it being understood that any such subsidiary or
affiliate receiving such information shall be bound by the
provisions of paragraph (b) below as if it were a Bank hereunder.
Such authorization shall survive the repayment of the Loans and
the termination of the Commitments.
(b) Each Bank and the Administrative Agent agrees (on
behalf of itself and each of its affiliates, directors, officers,
employees and representatives) to use reasonable precautions to
keep confidential, in accordance with their customary procedures
for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public
information supplied to it by the Company pursuant to this
Agreement that is identified by the Company as being confidential
at the time the same is delivered to the Banks or the
Administrative Agent, provided that nothing herein shall limit
the disclosure of any such information (i) after such information
shall have become public (other than through a violation of this
Section 11.12), (ii) to the extent required by statute, rule,
regulation or judicial process, (iii) to counsel for any of the
Banks or the Administrative Agent, (iv) to bank examiners (or any
other regulatory authority having jurisdiction over any Bank or
the Administrative Agent), or to auditors or accountants, (v) to
the Administrative Agent or any other Bank (or to Chase
Securities, Inc.), (vi) in connection with any litigation to
which any one or more of the Banks or the Administrative Agent is
a party, or in connection with the enforcement of rights or
remedies hereunder, (vii) to a subsidiary or affiliate of such
Bank as provided in paragraph (a) above or (viii) to any assignee
or participant (or prospective assignee or participant) so long
as such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective Bank a
Confidentiality Agreement substantially in the form of Exhibit G
hereto (or executes and delivers to such Bank an acknowledgement
to the effect that it is bound by the provisions of this
Section 11.12(b), which acknowledgement may be included as part
of the respective assignment or participation agreement pursuant
to which such assignee or participant acquires an interest in the
Loans hereunder); provided, further, that (x) unless specifically
prohibited by applicable law or court order, each Bank and the
Administrative Agent shall, prior to disclosure thereof, notify
the Company of any request for disclosure of any such non-public
information (A) by any governmental agency or representative
Credit Agreement
<PAGE>
- 71 -
thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such
governmental agency) or (B) pursuant to legal process and (y) in
no event shall any Bank or the Administrative Agent be obligated
or required to return any materials furnished by the Company.
The obligations of each Bank under this Section 11.12 shall
supersede and replace the obligations of such Bank under the
confidentiality letter in respect of this financing signed and
delivered by such Bank to the Company prior to the date hereof;
in addition, the obligations of any assignee that has executed a
Confidentiality Agreement in the form of Exhibit G hereto shall
be superseded by this Section 11.12 upon the date upon which such
assignee becomes a Bank hereunder pursuant to Section 11.06(b)
hereof.
Credit Agreement
<PAGE>
- 72 -
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 INCORPORATED
By /s/ David G. Maffucci
Title: Vice President --
Treasurer
Address for Notices:
55 East Camperdown Way
Greenville, South Carolina 29602
Attention: David G. Maffucci
Telecopier No.: 803-282-9219
Telephone No.: 803-282-9469
Credit Agreement
<PAGE>
- 73 -
BANKS
Commitment THE CHASE MANHATTAN BANK
$20,000,000 (NATIONAL ASSOCIATION)
By /s/ Hans H. Heinsen
Title: Managing Director
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
(National Association)
1 Chase Manhattan Plaza
New York, New York 10081
Attention: Hans H. Heinsen
Telecopier No.: 212-552-7773
Telephone No.: 212-552-2396
Credit Agreement
<PAGE>
- 74 -
Commitment CIBC INC.
$20,000,000
By /s/ Roger Colden
Name: Roger Colden
Title: Vice President
Lending Office
for Base Rate Loans and Eurodollar
Loans:
CIBC Inc.
c/o Canadian Imperial Bank
of Commerce
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Lending Office for
Money Market Loans:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
Short Term Asset Sales
New York, New York 10017
Address for Notices:
CIBC Inc.
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Telecopier: 770-319-4954
Telephone: 770-319-4902
Attention: Roger Colden
Credit Agreement
<PAGE>
- 75 -
Commitment
$20,000,000 NATIONSBANK, N.A. (CAROLINAS)
By /s/ Michael Short
Name: Michael Short
Title: Vice President
Lending Office
for all Loans:
NationsBank
101 North Tryon
Charlotte, NC 28255
Attn: Corporate Credit Services
Address for Notices:
NationsBank
NationsBank Corporate Center
100 North Tryon Street, 8th Floor
Charlotte, NC 28255
Telecopier: 704-386-3271
Telephone: 704-386-6274
Attention: Michael Short
Credit Agreement
<PAGE>
- 76 -
Commitment THE BANK OF NEW YORK
$18,000,000
By /s/ H.S. Griffith
Name: H.S. Griffith
Title: Senior Vice President
Lending Office
for all Loans:
The Bank of New York
One Wall Street
New York, New York 10286
Address for Notices:
The Bank of New York
One Wall Street
New York, New York 10286
Telecopier: 212-635-6797
Telephone: 212-635-6730
Attention: U.S. Commercial Banking
Loan Administration
Credit Agreement
<PAGE>
- 77 -
Commitment MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
$18,000,000
By /s/ Elizabeth R. Gile
Name: Elizabeth R. Gile
Title: Vice President
Lending Office
for all Loans:
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Address for Notices:
Morgan Guaranty Trust Company
of New York
c/o J.P. Morgan Services, Inc.
500 Stanton Christiana Road
Newark, Delaware 19713
Telecopier: 302-634-1094
Telephone: 302-634-1800
Attention: Multi-Option Unit
Loan Department
Credit Agreement
<PAGE>
- 78 -
Commitment THIRD NATIONAL BANK OF NASHVILLE
$18,000,000
By /s/ Robert W. Meyer
Name: Robert W. Meyer
Title: First Vice President
Lending Office
for all Loans:
Third National Bank in
Nashville
201 Fourth Avenue North
Nashville, TN 37219
Address for Notices:
Third National Bank in
Nashville
201 Fourth Avenue North
Nashville, TN 37219
Telecopier: 615-259-4119
Telephone: 615-748-4396
Attention: Robert W. Meyer
Credit Agreement
<PAGE>
- 79 -
Commitment THE TORONTO-DOMINION BANK
$18,000,000
By /s/ Jorge A. Garcia
Name: Jorge A. Garcia
Title: Manager, Credit
Administration
Lending Office
for all Loans:
The Toronto-Dominion Bank
909 Fannin Street
Suite 1700
Houston, Texas 77010
Address for Notices:
The Toronto-Dominion Bank
909 Fannin Street
Suite 1700
Houston, Texas 77010
Telecopier: 713-951-9921
Telephone: 713-693-8242
Attention: Manager, Credit
Administration
Credit Agreement
<PAGE>
- 80 -
Commitment WACHOVIA BANK OF SOUTH CAROLINA,
N.A.
$18,000,000
By /s/ Suzanne L. Braun
Name: Suzanne L. Braun
Title: Corporate Banking Officer
Lending Office
for all Loans:
Wachovia Bank of South Carolina,
N.A.
1401 Main Street, Suite 705
Columbia, South Carolina 29226
Address for Notices:
Wachovia Bank of South Carolina,
N.A.
1401 Main Street, Suite 705
Columbia, South Carolina 29226
Telecopier: 803-765-3232
Telephone: 803-765-3049
Attention: Suzanne L. Braun
Credit Agreement
<PAGE>
- 81 -
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/ Hans H. Heinsen
Title: Managing Director
Address for Notices to
Chase as Administrative Agent:
The Chase Manhattan Bank
(National Association)
4 Chase Metrotech Center-13th
Floor
Brooklyn, New York 11245
Attention: New York Agency
Telecopier No.: (718) 242-6910
Telephone No.: (718) 242-7979
Credit Agreement
<PAGE>
SCHEDULE I
Material Agreements and Liens
[See Sections 7.11 and 8.06(a)]
Part A - Material Agreements
Part B - Liens
Schedule I
<PAGE>
SCHEDULE II
Subsidiaries
[See Section 7.13]
Schedule III
<PAGE>
SCHEDULE III
Litigation
None.
Schedule III
<PAGE>
EXHIBIT A-1
[Form of Syndicated Note]
PROMISSORY NOTE
$_______________ September 26, 1995
New York, New York
FOR VALUE RECEIVED, BOWATER INCORPORATED, a Delaware
corporation (the "Company"), hereby promises to pay to the order
of __________________ (the "Bank"), for account of its
respective Applicable Lending Offices provided for by the Credit
Agreement referred to below, at the principal office of The Chase
Manhattan Bank (National Association) at 1 Chase Manhattan Plaza,
New York, New York 10081, the principal sum of _______________
Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Syndicated Loans made by the Bank
to the Company under the Credit Agreement), in lawful money of
the United States of America and in immediately available funds,
on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of
each such Syndicated Loan, at such office, in like money and
funds, for the period commencing on the date of such Syndicated
Loan until such Syndicated Loan shall be paid in full, at the
rates per annum and on the dates provided in the Credit
Agreement.
The date, amount, Type, interest rate and duration of
Interest Period (if applicable) of each Syndicated Loan made by
the Bank to the Company, and each payment made on account of the
principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on
the schedule attached hereto or any continuation thereof,
provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of
the Company to make a payment when due of any amount owing under
the Credit Agreement or hereunder in respect of the Syndicated
Loans made by the Bank.
This Note is one of the Syndicated Notes referred to in
the Credit Agreement dated as of September 26, 1995 (as modified
and supplemented and in effect from time to time, the "Credit
Agreement") between the Company, the lenders party thereto
(including the Bank) and The Chase Manhattan Bank (National
Association), as Administrative Agent, and evidences Syndicated
Loans made by the Bank thereunder. Terms used but not defined in
this Note have the respective meanings assigned to them in the
Credit Agreement.
Syndicated Note
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of
the maturity of this Note upon the occurrence of certain events
and for prepayments of Loans upon the terms and conditions
specified therein.
Except as permitted by Sections 11.06(b) and (d) of the
Credit Agreement, this Note may not be assigned by the Bank to
any other Person.
This Note shall be governed by, and construed in
accordance with, the law of the State of New York.
BOWATER INCORPORATED
By_________________________
Title:
Syndicated Note
<PAGE>
- 3 -
SCHEDULE OF SYNDICATED LOANS
This Note evidences Syndicated Loans made, Continued or
Converted under the within-described Credit Agreement to the
Company, on the dates, in the principal amounts, of the Types,
bearing interest at the rates and having Interest Periods (if
applicable) of the durations set forth below, subject to the
payments, Continuations, Conversions and prepayments of principal
set forth below:
Date Prin- Amount Paid,
Made, cipal Prepaid, Unpaid
Continued Amount Type Duration Continued Principal
or of Interest of or Notation
Converted Loan Rate Period Converted Amount Made by
Syndicated Note
<PAGE>
EXHIBIT A-2
[Form of Money Market Note]
PROMISSORY NOTE
September 26, 1995
New York, New York
FOR VALUE RECEIVED, BOWATER INCORPORATED, a Delaware
corporation (the "Company"), hereby promises to pay to the order
of __________________ (the "Bank"), for account of its respective
Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the principal office of The Chase Manhattan
Bank (National Association) at 1 Chase Manhattan Plaza, New York,
New York 10081, the aggregate unpaid principal amount of the
Money Market Loans made by the Bank to the Company under the
Credit Agreement, in lawful money of the United States of America
and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Money Market
Loan, at such office, in like money and funds, for the period
commencing on the date of such Money Market Loan until such Money
Market Loan shall be paid in full, at the rates per annum and on
the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and maturity date
of each Money Market Loan made by the Bank to the Company, and
each payment made on account of the principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of
this Note, endorsed by the Bank on the schedule attached hereto
or any continuation thereof, provided that the failure of the
Bank to make any such recordation or endorsement shall not affect
the obligations of the Company to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect
of the Money Market Loans made by the Bank.
This Note is one of the Money Market Notes referred to
in the Credit Agreement dated as of September 26, 1995 (as
modified and supplemented and in effect from time to time, the
"Credit Agreement") between the Company, the lenders party
thereto (including the Bank) and The Chase Manhattan Bank
(National Association), as Administrative Agent, and evidences
Money Market Loans made by the Bank thereunder. Terms used but
not defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
Money Market Note
<PAGE>
- 2 -
The Credit Agreement provides for the acceleration of
the maturity of this Note upon the occurrence of certain events
and for prepayments of Money Market Loans upon the terms and
conditions specified therein.
Except as permitted by Sections 11.06(b) and (d) of the
Credit Agreement, this Note may not be assigned by the Bank to
any other Person.
This Note shall be governed by, and construed in
accordance with, the law of the State of New York.
BOWATER INCORPORATED
By_________________________
Title:
Money Market Note
<PAGE>
- 3 -
SCHEDULE OF MONEY MARKET LOANS
This Note evidences Money Market Loans made under the
within-described Credit Agreement to the Company, on the dates,
in the principal amounts, of the Types, bearing interest at the
rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Maturity Amount Unpaid, Paid
Date Type or Prepaid
of Principal Interest Date of Principal Notation
Loan Amount Rate Loan Amount Made by
Money Market Note
<PAGE>
EXHIBIT B
[Form of Opinion of Counsel to the Company]
__________, 199__
Each of the Banks party to the
Credit Agreement referred to
below and The Chase Manhattan Bank
(National Association), as
Administrative Agent for said Banks
1 Chase Manhattan Plaza
New York, New York 10081
Ladies and Gentlemen:
I am the Secretary and Assistant General Counsel of
Bowater Incorporated, a corporation organized under the laws of
Delaware (the "Company") and I am delivering this opinion
pursuant to Section 6.01(c) of the Credit Agreement (the "Credit
Agreement") dated as of September 26, 1995, between the Company,
the banks party thereto (the "Banks") and The Chase Manhattan
Bank (National Association), as Administrative Agent, providing
for loans to be made by said Banks to the Company in an aggregate
principal amount not exceeding $150,000,000. All capitalized
terms used but not defined herein have the respective meanings
given to such terms in the Credit Agreement.
In rendering the opinions expressed below, I have
examined:
(i) the Credit Agreement;
(ii) the Notes (collectively with the Credit Agreement,
the "Credit Documents"); and
(iii) such corporate records, agreements and instruments
of the Company and such other documents and
records as I have deemed necessary as a basis for
the opinions expressed below.
In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me
as originals and the conformity with authentic original documents
of all documents submitted to me as copies. When relevant facts
were not independently established, I have relied upon statements
of governmental officials and upon representations made in or
pursuant to the Credit Documents and certificates of appropriate
representatives of the Company.
Opinion of Counsel to the Company
<PAGE>
- 2 -
In rendering the opinions expressed below, I have
assumed, with respect to all of the documents referred to in this
opinion letter, that (except, to the extent set forth in the
opinions expressed below, as to the Company):
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and
constitute legal, valid, binding and enforceable
obligations of, all of the parties to such
documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power
and authority (corporate or other) to execute,
deliver and perform such documents.
Based upon and subject to the foregoing and subject
also to the comments and qualifications set forth below, and
having considered such questions of law as I have deemed
necessary as a basis for the opinions expressed below, I am of
the opinion that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
2. The Company has all requisite corporate power to
execute and deliver, and to perform its obligations under,
each Credit Document and has all requisite corporate power
to borrow under the Credit Agreement.
3. The execution, delivery and performance by the
Company of the Credit Documents and the borrowings by the
Company under the Credit Agreement have been duly authorized
by all necessary corporate action on the part of the
Company.
4. Each Credit Document has been duly executed and
delivered by the Company.
5. Each Credit Document (assuming, in the case of the
Notes, execution and delivery thereof for value) constitutes
the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
Opinion of Counsel to the Company
<PAGE>
- 3 -
reorganization, moratorium or other similar laws relating to
or affecting the rights of creditors generally and except as
the enforceability of the Credit Documents is subject to the
application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
6. No authorization, approval or consent of, and no
filing or registration with, any governmental or regulatory
authority or agency is required on the part of the Company
for the execution, delivery or performance by the Company
of, or for the legality, validity or enforceability of, the
Credit Documents or for any borrowing by the Company under
the Credit Agreement.
7. The execution, delivery and performance by the
Company of, and the consummation by the Company of the
transactions contemplated by, the Credit Documents do not
and will not (a) violate any provision of the charter or
by-laws of the Company, (b) violate any applicable law, rule
or regulation in any material respect, (c) violate any
order, writ, injunction or decree of any court or
governmental authority or agency or any arbitral award
applicable to the Company of which I have knowledge (after
due inquiry) or (d) result in a breach of, constitute a
default under, require any consent under, or result in the
acceleration or required prepayment of any indebtedness
pursuant to the terms of, any agreement or instrument of
which I have knowledge (after due inquiry) to which the
Company is a party or by which the Company is bound or to
which the Company is subject or result in the creation or
imposition of any Lien upon any Property of the Company or
any of its Subsidiaries pursuant to the terms of any such
agreement or instrument.
8. Except as set forth in Schedule III to the Credit
Agreement, I have no knowledge (after due inquiry) of any
legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency,
now pending or threatened against the Company or any of its
Subsidiaries or any of their respective Properties that, if
adversely determined, could have a Material Adverse Effect.
The foregoing opinions are subject to the following
comments and qualifications:
Opinion of Counsel to the Company
<PAGE>
- 4 -
A. The enforceability of Section 11.03 of the Credit
Agreement may be limited by (i) laws rendering
unenforceable indemnification contrary to Federal or state
securities laws and the public policy underlying such laws
and (ii) laws limiting the enforceability of provisions
exculpating or exempting a party, or requiring
indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves
gross negligence, recklessness, willful misconduct or
unlawful conduct.
B. The enforceability of provisions in the Credit
Documents to the effect that terms may not be waived or
modified except in writing may be limited under certain
circumstances.
C. I express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other
than the State of New York) that limit the interest, fees or
other charges such Bank may impose, (ii) Section 4.07(c) of
the Credit Agreement, (iii) the second sentence of
Section 11.10 of the Credit Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit
Documents and (iv) any purported waiver of the right to
trial by jury.
The foregoing opinions are limited to matters involving
the Federal laws of the United States of America, the Delaware
General Corporation Law and the law of the State of New York and
I do not express any opinion as to the laws of any other
jurisdiction.
At the request of my client, this opinion letter is,
pursuant to Section 6.01(c) of the Credit Agreement, provided to
you by me in my capacity as Secretary and Assistant General
Counsel of the Company and may not be relied upon, used,
published or communicated by any Person for any purpose other
than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, my prior written
consent.
Very truly yours,
Opinion of Counsel to the Company
<PAGE>
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
__________, 199__
Each of the Banks party to the
Credit Agreement referred to
below and The Chase Manhattan Bank
(National Association), as
Administrative Agent for said Banks
1 Chase Manhattan Plaza
New York, New York 10081
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank (National Association) ("Chase") in connection
with the Credit Agreement dated as of September 26, 1995 (the
"Credit Agreement") between Bowater Incorporated (the "Company"),
the banks party thereto (the "Banks") and Chase, as
Administrative Agent, providing for loans to be made by said
lenders to the Company in an aggregate principal amount not
exceeding $150,000,000. All capitalized terms used but not
defined herein have the respective meanings given to such terms
in the Credit Agreement. This opinion letter is being delivered
pursuant to Section 6.01(d) of the Credit Agreement.
In rendering the opinion expressed below, we have
examined:
(i) the Credit Agreement;
(ii) the Notes (collectively with the Credit Agreement,
the "Credit Documents"); and
(iii) such corporate records of the Company and such
other documents as we have deemed necessary as a
basis for the opinion expressed below.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us
as originals and the conformity with authentic original documents
of all documents submitted to us as copies. When relevant facts
were not independently established, we have relied upon
statements of governmental officials and upon representations
made in or pursuant to the Credit Documents and certificates of
appropriate representatives of the Company.
Opinion of Special Counsel to Chase
<PAGE>
- 2 -
In rendering the opinion expressed below, we have
assumed, with respect to all of the documents referred to in this
opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except
to the extent set forth in the opinion below as to
the Company) constitute legal, valid, binding and
enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power
and authority (corporate or other) to execute,
deliver and perform such documents.
Based upon and subject to the foregoing and subject
also to the comments and qualifications set forth below, and
having considered such questions of law as we have deemed
necessary as a basis for the opinion expressed below, we are of
the opinion that each Credit Document (assuming, in the case of
the Notes, execution and delivery thereof for value) constitutes
the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally and except as the
enforceability of the Credit Documents is subject to the
application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of
specific performance, injunctive relief or any other equitable
remedy and (b) concepts of materiality, reasonableness, good
faith and fair dealing.
The foregoing opinion is subject to the following
comments and qualifications:
A. The enforceability of Section 11.03 of the Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws
and the public policy underlying such laws and (ii) laws
limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent
Opinion of Special Counsel to Chase
<PAGE>
- 3 -
the action or inaction involves gross negligence,
recklessness, willful misconduct or unlawful conduct.
B. The enforceability of provisions in the Credit
Documents to the effect that terms may not be waived or
modified except in writing may be limited under certain
circumstances.
C. We express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other
than the State of New York) that limit the interest, fees or
other charges such Bank may impose, (ii) Section 4.07(c) of
the Credit Agreement and (iii) the second sentence of
Section 11.10 of the Credit Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit
Documents.
The foregoing opinion is limited to matters involving
the Federal laws of the United States of America and the law of
the State of New York, and we do not express any opinion as to
the laws of any other jurisdiction.
At the request of our client, this opinion letter is,
pursuant to Section 6.01(d) of the Credit Agreement, provided to
you by us in our capacity as special New York counsel to Chase
and may not be relied upon by any Person for any purpose other
than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written
consent.
Very truly yours,
Opinion of Special Counsel to Chase
<PAGE>
EXHIBIT D
[Form of Money Market Quote Request]
[Date]
To: The Chase Manhattan Bank (National Association), as
Administrative Agent
From: Bowater Incorporated
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Credit Agreement dated as of
September 26, 1995 (as modified and supplemented and in effect
from time to time, the "Credit Agreement") between Bowater
Incorporated, the lenders party thereto and The Chase Manhattan
Bank (National Association), as Administrative Agent, we hereby
give notice that we request Money Market Quotes for the following
proposed Money Market Borrowing(s):
</TABLE>
<TABLE>
<CAPTION>
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4]
<S> <C> <C> <C> <C>
</TABLE>
__________________________
* All numbered footnotes appear on the last page of this Exhibit.
Terms used herein have the meanings assigned to them in the
Credit Agreement.
BOWATER INCORPORATED
By_________________________
Title:
Money Market Quote Request
<PAGE>
- 2 -
__________________________
[1] For use if a Set Rate in a Set Rate Auction is requested to
be submitted before the Borrowing Date.
[2] Each amount must be $5,000,000 or a larger integral multiple
of $1,000,000.
[3] Insert either "LIBO Margin" (in the case of LIBOR Market
Loans) or "Set Rate" (in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market
Loan or, in the case of a Set Rate Loan, a period of up to
360 days after the making of such Set Rate Loan and ending on
a Business Day.
Money Market Quote Request
<PAGE>
EXHIBIT E
[Form of Money Market Quote]
To: The Chase Manhattan Bank (National Association), as
Administrative Agent
Attention:
Re: Money Market Quote to
Bowater Incorporated (the "Borrower")
This Money Market Quote is given in accordance with
Section 2.03(c) of the Credit Agreement dated as of September 26,
1995 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between Bowater Incorporated, the lenders
party thereto and The Chase Manhattan Bank (National Association), as
Administrative Agent. Terms defined in the Credit Agreement are used
herein as defined therein.
In response to the Borrower's invitation dated __________,
199_, we hereby make the following Money Market Quote(s) on the
following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Money Market Loan(s) in the
following principal amount[s], for the following Interest
Period(s) and at the following rate(s):
Borrowing Quotation Interest
Date Date[*1] Amount[*2] Type[*3] Period[*4] Rate[*5]
__________________________
* All numbered footnotes appear on the last page of this
Exhibit.
Money Market Quote
<PAGE>
- 2 -
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions
set forth in the Credit Agreement, irrevocably obligate[s] us to
make the Money Market Loan(s) for which any offer(s) (is/are)
accepted, in whole or in part (subject to the third sentence of
Section 2.03(e) of the Credit Agreement).
Very truly yours,
[NAME OF BANK]
By_________________________
Authorized Officer
Dated: __________, ____
__________________________
[1] As specified in the related Money Market Quote Request.
[2] The principal amount bid for each Interest Period may not
exceed the principal amount requested. Bids must be made
for at least $5,000,000 (or a larger integral multiple of
$1,000,000).
[3] Indicate "LIBO Margin" (in the case of LIBOR Market Loans)
or "Set Rate" (in the case of Set Rate Loans).
[4] One, two, three or six months, in the case of a LIBOR Market
Loan or, in the case of a Set Rate Loan, a period of up to
360 days after the making of such Set Rate Loan and ending
on a Business Day, as specified in the related Money Market
Quote Request.
[5] For a LIBOR Market Loan, specify margin over or under the
LIBO Rate determined for the applicable Interest Period.
Specify percentage (rounded to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS". For a Set Rate Loan,
specify rate of interest per annum (rounded to the nearest
1/10,000 of 1%).
Money Market Quote
<PAGE>
EXHIBIT F
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
Bowater Incorporated
_________________________
_________________________
Attention: _____________
The Chase Manhattan Bank, N.A.,
as Administrative Agent
4 Chase Metrotech Center -- 13th Floor
Brooklyn, New York 11245
Attention: New York Agency
Re: Credit Agreement dated as of September 26, 1995
(as modified and supplemented and in effect from
time to time, the "Credit Agreement"), between
Bowater Incorporated (the "Company"), the lenders
party thereto and The Chase Manhattan Bank
(National Association), as Administrative Agent.
Dear Ladies and Gentlemen:
We hereby give notice that, effective as of the date
hereof, [Name of Assignor] (the "Assignor") has assigned its
rights and obligations with respect to % (representing
$_____________) of the Assignor's outstanding [Commitment and]
[Loans] (such interest in such rights and obligations being
hereinafter referred to as the "Assigned Interest") under the
Credit Agreement to [Name of Assignee] (the "Assignee"). The
Assignee hereby agrees (i) to become a "Bank" pursuant to
Section 11.06(b) of the Credit Agreement (if not already a Bank
under the Credit Agreement) and (ii) agrees to assume all the
obligations of the Assignor thereunder with respect to the
Assigned Interest.
Notice of Assignment
<PAGE>
- 2 -
The address for notices, lending office(s) and payment
instructions for the Assignee are as follows:
Address for Notices:
Attention:
Telephone:
Telecopier:
Lending Office for Base Rate Loans:
Lending Office for Loans other than Base Rate
Loans:
Payment Instructions:
Please sign and return the enclosed copy of this letter
to the undersigned to indicate your receipt hereof, and your
consent to or notice of (as applicable) the above-mentioned
assignment and assumption, and your agreement to the release of
the Assignor from its obligations under the Credit Agreement with
respect to the Assigned Interest. As a condition to the
effectiveness of the above-mentioned assignment and assumption,
Notice of Assignment
<PAGE>
- 3 -
the Administrative Agent shall have received on the date hereof
an assignment fee of $2,500.
Very truly yours,
[NAME OF ASSIGNOR]
By
Title:
[NAME OF ASSIGNEE]
By
Title:
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
BOWATER INCORPORATED
By
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Administrative Agent
By
Title:
Notice of Assignment
<PAGE>
EXHIBIT G
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement dated as of September 26, 1995
(as modified and supplemented and in effect from
time to time, the "Credit Agreement"), between
Bowater Incorporated (the "Company"), the lenders
party thereto and The Chase Manhattan Bank
(National Association), as Administrative Agent.
Dear Ladies and Gentlemen:
As a Bank party to the Credit Agreement, we have agreed
with the Company pursuant to Section 11.12 of the Credit
Agreement to use reasonable precautions to keep confidential,
except as otherwise provided therein, all non-public information
identified by the Company as being confidential at the time the
same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to
provide you, as a prospective [holder of a participation in the
Loans (as defined in the Credit Agreement)] [assignee Bank], with
certain of such non-public information subject to the execution
and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such
information will not be made available to you until your
execution and return to us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you
agree (on behalf of yourself and each of your affiliates,
directors, officers, employees and representatives and for the
benefit of us and the Company) that (A) such information will not
be used by you except in connection with the proposed
[participation][assignment] mentioned above and (B) you shall use
reasonable precautions, in accordance with your customary
procedures for handling confidential information and in
accordance with safe and sound banking practices, to keep such
information confidential, provided that nothing herein shall
limit the disclosure of any such information (i) after such
Confidentiality Agreement
<PAGE>
- 2 -
information shall have become public (other than through a
violation of Section 11.12 of the Credit Agreement), (ii) to the
extent required by statute, rule, regulation or judicial process,
(iii) to your counsel or to counsel for any of the Banks or the
Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Bank or the
Administrative Agent), or to auditors or accountants, (v) to the
Administrative Agent or any other Bank (or to Chase Securities,
Inc.), (vi) in connection with any litigation to which you or any
one or more of the Banks or the Administrative Agent are a party,
or in connection with the enforcement of rights or remedies under
the Credit Agreement, (vii) to a subsidiary or affiliate of yours
as provided in Section 11.12(a) of the Credit Agreement or
(viii) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers
to you a Confidentiality Agreement substantially in the form
hereof; provided, further, that (x) unless specifically
prohibited by applicable law or court order, you agree, prior to
disclosure thereof, to notify the Company of any request for
disclosure of any such non-public information (A) by any
governmental agency or representative thereof (other than any
such request in connection with an examination of your financial
condition by such governmental agency) or (B) pursuant to legal
process and (y) that in no event shall you be obligated to return
any materials furnished to you pursuant to this Confidentiality
Agreement.
If you are a prospective assignee, your obligations
under this Confidentiality Agreement shall be superseded by
Section 11.12 of the Credit Agreement on the date upon which you
become a Bank under the Credit Agreement pursuant to
Section 11.06(b) thereof.
Confidentiality Agreement
<PAGE>
- 3 -
Please indicate your agreement to the foregoing by
signing as provided below the enclosed copy of this
Confidentiality Agreement and returning the same to us.
Very truly yours,
[INSERT NAME OF BANK]
By_________________________
The foregoing is agreed to
as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________
Confidentiality Agreement
<PAGE>
MODIFICATION OF EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day
of October, 1995, by and between Bowater Incorporated, a Delaware
corporation having a mailing address of 55 East Camperdown Way,
Greenville, South Carolina 29602 (the "Corporation"), and Robert
C. Lancaster, of 118 Tuscany Way, Greer, SC 29650 (the
"Executive").
WHEREAS, the Corporation now employs the Executive pursuant
to an Employment Agreement dated as of July 1, 1993 (the
"Employment Agreement") and a Severance Agreement dated as of
July 1, 1993 (the "Severance Agreement"); and
WHEREAS, the Executive and the Corporation wish to continue
the Executive's employment until a specified and agreed upon
date, whereupon the Executive may retire from the employment of
the Corporation and be entitled to receive certain benefits;
NOW, THEREFORE, the parties hereto agree to the following:
1. Severance Agreement. The Severance Agreement is
hereby terminated as of the date hereof.
2. Employment Agreement. The Employment Agreement is
hereby modified as follows:
(a) Term. Section 2 of the Employment Agreement is
amended to read in its entirety as follows:
"2. Term. The term of this Agreement will end on
September 30, 1997, unless terminated earlier by the
Executive's death."
(b) Position and Duties. Section 3 of the Employment
Agreement is amended in its entirety to read as follows:
"3. Position and Duties. Throughout the term hereof,
the Executive will have the employment status of an
exempt employee. The Executive is relieved as of the
date hereof of the obligation to devote his full
working time to the performance of duties under his
Employment Agreement."
-1-
<PAGE>
(c) Compensation and Benefits. Section 5 of the
Employment Agreement is amended in its entirety to read as
follows:
"5. Compensation and Benefits.
(a) Base Salary. The Corporation will pay to
the Executive a base salary at his current annual
rate in substantially equal periodic installments
on the Corporation's regular pay dates. All
applicable taxes and other authorized deductions
will be deducted from each paycheck.
(b) Bonus Plan. In addition to the base salary,
the Executive will be entitled to a bonus equal
to 33/12 times the bonus amount paid in 1995 for
the calendar year 1994, to be paid on November 1,
1995, and subject to all applicable withholding
requirements. This bonus is in lieu of any bonus
for which the Executive may have been eligible
under the Corporation's 1995, 1996 or 1997 Annual
Incentive Plans. The Executive will be eligible
to receive a prorated award under the Long Term
Cash Incentive Plan based upon twenty-one (21)
months' of participation.
(c) Benefit Plans. The Corporation will make
contributions on the Executive's behalf to the
Corporation's various benefit plans and programs
(except for long-term disability and business
travel accident insurance) in which the Executive
is eligible to participate in accordance with the
provisions thereof as in effect from time to
time. The Executive will continue to be
responsible for all required employee
contributions.
(d) Vacations. The Executive will be entitled
to be paid for all vacation accrued as of
September 30, 1995, but will no longer accrue
vacation from and after September 30, 1995.
(e) Perquisites. The Executive will be entitled
to Key Executive outplacement assistance from
Right Associates until he has secured new
employment,and to all other executive perquisites
to which he is currently entitled through
September 30, 1997."
(d) Noncompetition. Section 7 of the Employment
Agreement is hereby deleted.
-2-
<PAGE>
(e) Severance Pay. Section 8 of the Employment
Agreement is amended in its entirety to read as follows:
"8. Terminal Leave of Absence. The Executive will be
on a terminal paid leave of absence from the date
hereof through September 30, 1997. This terminal paid
leave of absence is in lieu of any severance pay the
Executive would otherwise be entitled to. The
Executive's entitlement to compensation, benefits, or
payments under the Corporation's health, life
insurance, retirement, stock option, and savings (but
not long-term disability or business travel accident
insurance) plans, policies or arrangements will not,
except as otherwise required by law or regulation, be
affected by the Executive's leave of absence status
and will continue to be governed by the applicable
provisions of such plans as though the Executive had
continued to render services in the active employment
of the Corporation to the end of the term of this
Agreement."
(f) Governing Law. Section 11 is hereby amended in its
entirety to read as follows:
"11. Governing Law. The Employment Agreement and
this Modification of Employment Agreement shall be
governed by and interpreted in accordance with the
substantive laws of the State of Delaware."
(g) Ratification. In all respects, except as herein
provided, the Employment Agreement is hereby ratified and
confirmed.
3. Supplemental Retirement Plan.
(a) Retirement Benefit. The period of the terminal leave
of absence is hereby designated as a "leave of absence with the
consent of the Participant's employer" which is intended to be
included within the definition of "Continuous Employment" in the
Supplemental Benefit Plan for Designated Employees of Bowater
Incorporated and Affiliated Companies as Amended and Restated
Effective August 22, 1990 (the "Supplemental Benefit Plan"), and
compensation paid during the terminal leave of absence is
intended to be included within the definition of "Earnings" in
the Supplemental Benefit Plan. This instrument further confirms
that if the Executive's Employment Agreement as amended hereunder
is terminated at any time by his death, then (1) the Executive's
surviving Spouse (as defined in the Supplemental Benefit Plan),
or the Executive's estate if there is no surviving Spouse, will
be entitled to receive the balance of the compensation payable
herein pursuant to Sections 5(a) and(b) of the Employment
Agreement as amended hereunder; and (2) the Executive's surviving
Spouse (as defined in the Supplemental Benefit Plan) will be
-3-
<PAGE>
entitled to the sixty (60%) percent Spouse's Pre-Retirement Death
Benefit as provided in the Supplemental Benefit Plan, determined
by reference to the benefit projected to September 30, 1997, at
the compensation levels herein provided. The determination of
the Corporation's Human Resources and Compensation Committee of
the Board of Directors (the "HRCC") of the Executive's
eligibility upon retirement at any time after the expiration of
the term of this Agreement (as well as his Spouse's eligibility
upon his death) to receive benefits from the Supplemental Benefit
Plan is hereby confirmed. Specifically, the HRCC hereby confirms
that the Executive shall be entitled to group medical insurance
and life insurance benefits pursuant to Article 5 of the
Supplemental Benefit Plan upon expiration of the term of this
Agreement, regardless of whether the Executive postpones
receiving retirement benefits under Article 3 of the Supplement
Benefit Plan until a later time. The HRCC further confirms that
the Executive shall be entitled to postpone receiving retirement
benefits under Article 3 of the Supplemental Benefit Plan until
the Executive commences receiving retirement benefits under the
Corporation's qualified defined benefit pension plan. Retirement
benefits paid to the Executive under Article 3 of the
Supplemental Benefit Plan shall be computed as of the date that
such retirement benefits commence, not as of the termination date
of this Agreement.
(b) Waiver. The Corporation hereby waives the provisions
of Sections 6.01 and 6.02(b) of the Supplemental Benefit Plan.
4. Stock Options. The HRCC has affirmed by their
approval of this Modification that the terminal leave of absence
will not interrupt or terminate employment for purposes of
determining the Executive's continued eligibility to become
vested in, and to exercise, options awarded pursuant to the
Corporation's 1984, 1988 and 1992 Stock Option and Stock
Incentive Plans.
Upon the Executive's retirement at the completion of
his terminal leave of absence, the Executive, his heirs,
executors and administrators will be granted the longest period
permissible within which to exercise the rights granted to the
Executive pursuant to the Corporation's 1984, 1988 and 1992 Stock
Incentive Plans consistent with applicable law, regulation,
Corporation policy and practice, and provisions of the relevant
plans and awards.
5. Effectiveness Contingent Upon Release. This
Modification shall not be effective unless and until the
Executive has executed a certain Waiver and Release Agreement
(the "Release Agreement"), and the seven-day revocation period
provided for therein has expired. If the Executive should breach
the terms of the Release Agreement in the future, this
Modification, the Employment Agreement and the Severance
Agreement shall immediately become null and void, and be deemed
canceled.
-4-
<PAGE>
6. Binding Agreement. Except as provided in Section 5
above, this Modification and the Employment Agreement shall inure
to the benefit of and be enforceable by the Executive, his heirs,
executors, administrators, successors and assigns. This
Modification and the Employment Agreement shall be binding upon
the Corporation, its successors and assigns.
IN WITNESS WHEREOF, the Corporation and the Executive have
executed this Agreement as of the day and year first above
written.
BOWATER INCORPORATED
By /s/ RICHARD F. FRISCH /s/ ROBERT C. LANCASTER
Name: Richard F. Frisch Robert C. Lancaster
Title: Vice President-Human Resources
-5-
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1995
<PERIOD-START> JUL-1-1995 JAN-01-1995
<PERIOD-END> SEP-30-1995 SEP-30-1995
<CASH> 206,687 206,687
<SECURITIES> 0 0
<RECEIVABLES> 228,154 228,154
<ALLOWANCES> 0 0
<INVENTORY> 168,246 168,246
<CURRENT-ASSETS> 619,044 619,044
<PP&E> 2,990,195 2,990,195
<DEPRECIATION> 1,257,078 1,257,078
<TOTAL-ASSETS> 2,879,361 2,879,361
<CURRENT-LIABILITIES> 285,926 285,926
<BONDS> 816,924 816,934
<COMMON> 39,482 39,482
74,588 74,588
193,225 193,225
<OTHER-SE> 850,611 850,611
<TOTAL-LIABILITY-AND-EQUITY> 2,879,361 2,879,361
<SALES> 520,907 1,457,221
<TOTAL-REVENUES> 520,907 1,457,221
<CGS> 299,428 882,020
<TOTAL-COSTS> 366,271 1,087,652
<OTHER-EXPENSES> 14,780 6,338
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 19,004 62,618
<INCOME-PRETAX> 120,852 300,613
<INCOME-TAX> 55,838 122,350
<INCOME-CONTINUING> 58,103 162,987
<DISCONTINUED> 0 0
<EXTRAORDINARY> (5,233) (11,317)
<CHANGES> 0 0
<NET-INCOME> 52,870 151,670
<EPS-PRIMARY> $1.15 $3.39
<EPS-DILUTED> $1.13 $3.31
</TABLE>
