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EXHIBIT 10.4
CONFORMED COPY
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of July 31, 2000 (this "Amendment")
to the Second Amended and Restated 364-Day Credit Agreement (the "Credit
Agreement") dated as of June 21, 2000 between BOWATER INCORPORATED, a
corporation duly organized and validly existing under the laws of the State of
Delaware (the "Company"); each of the Subsidiaries of the Company from time to
time designated as "Subsidiary Borrowers" hereunder pursuant to Section 7.02(a)
of the Credit Agreement as defined below (each, a "Subsidiary Borrower" and,
together with the Company, the "Borrowers"); each of the lenders that is a
signatory hereto identified under the caption "BANKS" on the signature pages
hereto or that, pursuant to Section 12.06(b) of the Credit Agreement, shall
become a "Bank" hereunder (individually, a "Bank" and, collectively, the
"Banks"); and THE CHASE MANHATTAN BANK, as administrative agent for the Banks
(in such capacity, together with its successors in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Borrowers, the Banks, and
the Administrative Agent are party to the Credit Agreement which provides for
the making of loans by said Banks to the Borrowers in an aggregate original
principal amount up to $150,000,000; and
WHEREAS, the parties hereto desire to amend in certain
respects the Credit Agreement to increase the aggregate amount of the
Commitments under the Credit Agreement from $150,000,000 to $750,000,000 and to
amend the Credit Agreement in certain other respects.
NOW, THEREFORE, the parties hereto agree to amend the Credit
Agreement as set forth in Section 2 hereof:
Section 1. Definitions. Capitalized terms used but not
otherwise defined herein have the meanings given them in the Credit Agreement.
Section 2. Amendments. Subject to the satisfaction of the
conditions specified in Section 3 hereof, the Credit Agreement shall be amended
as follows:
2.01. Definitions. Section 1.01 of the Credit Agreement shall
be amended by adding and amending (to the extent already included in said
Section 1.01) the following definitions, as follows:
"Amendment No. 1" shall mean Amendment No. 1 to the Second
Amendment and Restatement.
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"Commitment" shall mean, for each Bank, the obligation of such
Bank to make Syndicated Loans in an aggregate amount at any one time
outstanding up to but not exceeding (a) in the case of a Bank that is a
party to the Credit Agreement after giving effect to Amendment No. 1,
the amount set opposite the name of such Bank on Schedule I to
Amendment No. 1 under the caption "Commitment" or (b) in the case of
any other Bank, the aggregate amount of the Commitments acquired by it
pursuant to Section 12.06 hereof (in each case, as the same may be
reduced from time to time pursuant to Section 2.04 hereof or increased
or reduced pursuant to said Section 12.06(b)).
"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 the
numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as the applicable Borrower
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 at least 7 and up to 360 days thereafter,
as the applicable Borrower 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
applicable Borrower 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 (other than a Term 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 that 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); (iii) if an Interest Period in respect of a Term Loan
would otherwise commence before and end after the Maturity
Date, such Interest Period shall end on the Maturity Date;
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and (iv) 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.
"Maturity Date" shall have the meaning set forth in Section
2.10(d) hereof.
"Syndicated Loans" shall mean the loans provided for by
Section 2.01 hereof, which may be Base Rate Loans and/or Eurodollar
Loans and shall include each Term Loan.
"Term Loan" shall have the meaning set forth in Section
2.10(d) hereof.
2.02. Syndicated Loans. Section 2.01 of the Credit Agreement
shall be amended to read in its entirety as follows:
"2.01 Syndicated Loans. Each Bank severally agrees, on the
terms and conditions of this Agreement, to make loans to the Borrowers
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 Borrowers 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 Borrowers 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) subject to Section
2.10(d) hereof, the aggregate principal amount of all Syndicated Loans
of all Borrowers, together with the aggregate principal amount of all
Money Market Loans of all Borrowers, 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 of all Borrowers 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)."
2.03. Facility Fee. Section 2.05(a) of the Credit Agreement
shall be amended to read in its entirety as follows:
"(a) 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) 0.0600% during any Level I
Period, (b) 0.0800% during any Level II Period, (c) 0.1000% during any
Level III Period, (d) 0.1250% during any Level IV Period and (e)
0.2000% during any Level V Period; provided that if such Bank continues
to have a Loan outstanding after such Bank's Commitment terminates,
then such facility fee shall
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continue to accrue on the daily aggregate principal amount of Loans of
such Bank from and including the date on which its Commitment
terminates to but excluding the date on which such Bank ceases to have
any Loans outstanding. Accrued facility fee shall be payable on each
Quarterly Date, on the Maturity 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
two Business Days after 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 date two Business
Days after the effective date of such changed rating."
2.04. Utilization Fee. Section 2.05(b) of the Credit Agreement
shall be amended to read in its entirety as follows:
"(b) The Company shall pay to the Administrative Agent for
account of each Bank a utilization fee at a rate per annum equal to
0.25% on the aggregate outstanding principal amount of the Syndicated
Loans made by such Bank hereunder for any period (during the period
from and including June 23, 1999 to but not including the earlier of
the date Commitments are terminated and the Revolving Credit
Termination Date) that the aggregate principal outstanding amount of
all Syndicated Loans hereunder exceeds 33% of the net amount of the
Commitments after deducting the aggregate outstanding principal amount
of all Money Market Loans hereunder at such time; provided however that
if the aggregate principal amount of Syndicated Loans converted to Term
Loans on the Revolving Credit Termination Date exceeds 33% of the net
amount of the Commitments in effect on the Revolving Credit Termination
Date (prior to the reduction of the Commitments to zero on such date)
after deducting the aggregate outstanding principal amount of all Money
Market Loans hereunder at such date, the Company shall pay to the
Administrative Agent for the account of each Bank a utilization fee at
a rate per annum equal to 0.25% on the aggregate outstanding principal
amount of the Term Loans made by such Bank during the period from and
including the Revolving Credit Termination Date to but excluding the
date on which such Bank ceases to have any Term Loans outstanding.
Accrued utilization fee shall be payable on each Quarterly Date, on the
Maturity Date and on the earlier of the date the Commitments are
terminated and the Revolving Credit Termination Date."
2.05. Term-Out Option. Section 2.10 of the Credit Agreement
shall be amended by adding paragraph (d) thereto to read in its entirety as
follows:
"(d) Term-Out Option. If the Revolving Credit Termination Date
shall not have been extended pursuant to Section 2.10(c) hereof, each
Borrower may, by notice to the Administrative Agent not less than 10
days prior to the Revolving Credit Termination Date convert all
Syndicated Loans made to such Borrower that are outstanding on the
Revolving Credit Termination Date to term loans (each, a "Term Loan"
and collectively, the "Term Loans"). Each Term Loan shall bear
interest, until the payment in full thereof, at the rates provided for
in Section 3.02 and shall otherwise constitute a Syndicated Loan for
all purposes of this Agreement. The relevant Borrower hereby
unconditionally
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promises to pay to the Administrative Agent for account of the Banks
the unpaid principal amount of the Term Loans made to such Borrower
that are outstanding on the date that is one year after the Revolving
Credit Termination Date (or, if such date is not a Business Day, the
next preceding Business Day) (the "Maturity Date"). Anything in this
Section 2.10(d) to the contrary notwithstanding, any such conversion
shall be subject to the conditions precedent that: (i) no Default shall
have occurred and be continuing on the Revolving Credit Termination
Date and (ii) each of the representations and warranties made by the
Company in Section 8 hereof, and by each Subsidiary Borrower in its
respective Subsidiary Borrower Designation Letter, shall be true and
complete on and as of such Revolving Credit Termination Date with the
same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date). Each notice of
conversion delivered by a Borrower in accordance with this Section
2.10(d) shall constitute a certification by such Borrower to the effect
set forth in the preceding sentence (both as of the date of such notice
and, unless such Borrower, after delivery of such notice, otherwise
notifies the Administrative Agent prior to the Revolving Credit
Termination Date, as of such date)."
2.06. Repayments of Loans. Section 3.01(b) of the Credit
Agreement shall be amended to read in its entirety as follows:
"(b) Repayment of Syndicated Loans. Each Borrower hereby
promises to pay to the Administrative Agent for account of each Bank
the principal of such Bank's Syndicated Loans to such Borrower on the
Revolving Credit Termination Date, provided that, to the extent a
Borrower shall have elected to convert any portion of the outstanding
Syndicated Loans into Term Loans pursuant to Section 2.10(d), such Term
Loans shall mature (and such Borrower hereby unconditionally promises
to pay to the Administrative Agent for the account of each Bank the
then unpaid principal amount of each Term Loan) on the Maturity Date."
2.07. Compensation. Section 5.05(b) of the Credit Agreement
shall be amended to read in its entirety as follows:
"(b) any failure by such Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 hereof to be satisfied, or the failure of any of
the conditions precedent to the conversion requested by such Borrower
of Syndicated Loans to Term Loans pursuant to Section 2.10(d) 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, such Borrower 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 to effect a conversion pursuant to
Section 2.10(d) hereof pursuant to a notice given pursuant to Section
2.10(d) hereof; or"
Section 3. Conditions. This Amendment shall become effective
as of July 31, 2000 (the "Facility Increase Effective Date") upon the
satisfaction prior to such date of each of the following conditions to
effectiveness (including, without limitation, that each document to be
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received by the Administrative Agent shall be in form and substance satisfactory
to the Administrative Agent):
3.01. Execution. The Administrative Agent (or its counsel)
shall have received from each party hereto (including each Bank that is
a party to the Credit Agreement) either (a) a counterpart of this
Amendment signed on behalf of such party or (b) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Amendment) that such
party has signed a counterpart of this Amendment.
3.02. Opinion. The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent and
the Banks and dated the Facility Increase Effective Date) of Wendy C.
Shiba, Esq., Vice President, Secretary and Assistant General Counsel of
the Company, substantially in the form of Exhibit A hereto. The Company
hereby requests such counsel to deliver such opinion.
3.03. Certificate as to Incumbency. The Administrative Agent
shall have received a certificate of the Secretary or an Assistant
Secretary of the Company in respect of each of the officers (a) who are
authorized to sign this Amendment on the Company's behalf and (b) who
will, until replaced by another officer or officers duly authorized for
that purpose, act as its representative for the purposes of signing
documents and giving notices and other communications in connection
with this Amendment, the promissory notes and the transactions
contemplated hereby.
3.04. Certificate of Authorized Officer. The Administrative
Agent shall have received a certificate of a duly authorized financial
officer of the Company, dated the Facility Increase Effective Date,
stating that (a) no Default has occurred and is continuing as of such
date, and (b) the representations and warranties contained in Section 8
of the Credit Agreement are true and complete on and as of such date
with the same force and effect as if made on and as of such date (or,
if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
3.05. Fees and Expenses. The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Facility Increase Effective Date, including (i) for the account of each
Bank that has delivered to the Administrative Agent prior to such date
a commitment letter in which it commits to increase its Commitment as
result of this Amendment by an amount of at least $65,000,000, an
up-front fee in an amount equal to 0.15% of the increase in such Bank's
final allocated Commitment, (ii) for the account of each Bank that has
delivered to the Administrative Agent prior to such date a commitment
letter in which it commits to increase its Commitment as result of this
Amendment by an amount of less than $65,000,000, an up-front fee in an
amount equal to 0.10% of the increase in such Bank's final allocated
Commitment and (iii) to the extent invoiced, including reimbursement or
payment of all reasonable out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.
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The Administrative Agent shall notify the Company and the Banks of the
occurrence of the Facility Increase Effective Date, and such notice shall be
conclusive and binding.
Section 4. Readjustment of Loans. On the Facility Increase
Effective Date, the Banks shall take such actions, and make such adjustments
among themselves, as shall be necessary so that their outstanding Syndicated
Loans are held under the Credit Agreement ratably in accordance with their
respective Commitments as set forth on Schedule I hereto under the caption
"Commitment".
Section 5. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be identical and all of which, when
taken together, shall constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
Section 6. Expenses. Without limiting its obligations under
Section 12.03 of the Credit Agreement, the Company agrees to pay, on demand, all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent as documented in reasonable detail, in connection
with the preparation and administration of this Amendment and the transactions
contemplated hereby.
Section 7. Binding Effect. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 8. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
COMPANY
BOWATER INCORPORATED
By: /s/ David G. Maffucci
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Title: Senior Vice President and
Chief Financial Officer
By: /s/ William G. Harvey
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Title: Vice President
and Treasurer
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Gary L. Spevack
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Title: Vice President
BANKS
THE CHASE MANHATTAN BANK
By: /s/ Gary L. Spevack
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Title: Vice President
THE BANK OF NEW YORK
By: /s/ David C. Siegel
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Title: Vice President
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BANK OF AMERICA, N.A.
By: /s/ Kevin F. Sullivan
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Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Sarah T. Warren
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Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Carolyn R. Faeth
----------------------------------
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Donald E. Sellers, Jr.
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Title: Senior Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Lewis Reford
----------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ William E. Zarrett
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Title: Managing Director
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SUNTRUST BANKS, INC.
By: /s/ Nathan Bickford
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Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Cynthia M. Niesen
----------------------------------
Title: Managing Director
By: /s/ Walter T. Duffy
----------------------------------
Title: Associate Director
BANK OF MONTREAL
By: /s/ Amy K. Dumser
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Title: Director
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DG BANK, DEUTSCHE
GENOSSENSCHAFTSBANK, AG
CAYMAN ISLANDS BRANCH
By: /s/ J.W. Somers
----------------------------------
Title: Senior Vice President
By: /s/ Kurt A. Morris
----------------------------------
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Thomas Comfort
----------------------------------
Title: Group Vice President
By: /s/ Carla S. Waggoner
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Title: Assistant Vice President
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Schedule I
BANK COMMITMENT
---- ----------
The Chase Manhattan Bank $76,000,000
Bank of America, N.A. $70,500,000
First Union National Bank $66,500,000
The Bank of New York $66,500,000
Wachovia Bank, N.A. $66,500,000
Toronto Dominion (Texas), Inc. $66,500,000
SunTrust Banks, Inc. $63,500,000
Morgan Guaranty Trust Company of New York
$63,500,000
The Bank of Nova Scotia $63,500,000
Bank of Montreal $46,750,000
Westdeutsche Landesbank
Girozentrale, New York Branch $46,750,000
ABN AMRO Bank N.V. $46,750,000
DG Bank, Deutsche Genossenschaftsbank,
AG, Cayman Islands Branch $ 6,750,000
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Total $750,000,000
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