SEVENTH AMENDMENT AND WAIVERWaiver Agreement |
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ABITIBIBOWATER INC | BOWATER ALABAMA LLC | BOWATER AMERICA INC | BOWATER NUWAY MID-STATES INC | WACHOVIA BANK, NATIONAL ASSOCIATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.17
SEVENTH AMENDMENT AND WAIVER
This Seventh Amendment and Waiver (the “ Agreement ”) to the Credit Agreement referred to below is dated as of August 7, 2008 and effective in accordance with Section 4 below, by and among BOWATER INCORPORATED, a corporation organized under the laws of Delaware (“ BI ”), BOWATER ALABAMA LLC (formerly known as Bowater Alabama Inc.), a limited liability company organized under the laws of Alabama (“ BA ”), BOWATER NEWSPRINT SOUTH LLC, a limited liability company organized under the laws of Delaware (“ BNS ”), BOWATER NEWSPRINT SOUTH OPERATIONS LLC (formerly known as Bowater Newsprint South Inc.), a limited liability company organized under the laws of Delaware and the successor by merger to Bowater Mississippi LLC (“ BNSO ”), each in its capacity as a Borrower under the Credit Agreement referred to below (BI, BA, BNS and BNSO are collectively referred to herein as the “ Borrower ”), certain Subsidiaries and Affiliates of the Borrower party hereto (the “ Grantors ”), ABITIBIBOWATER INC., a corporation organized under the laws of Delaware (the “ Parent ”), the Lenders and the Canadian Lenders party hereto (collectively, the “ Consenting Lenders ”) pursuant to an authorization (in the form attached hereto as Exhibit A , each a “ Lender Authorization ”) and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent (the “ Administrative Agent ”) for the Lenders party to the Credit Agreement referred to below.
STATEMENT OF PURPOSE:
The Borrower, the Lenders, certain other financial institutions and the Administrative Agent are parties to the Credit Agreement dated as of May 31, 2006 (as amended by that certain First Amendment dated as of July 20, 2007, that certain Second Amendment dated as of October 31, 2007, that certain Third Amendment and Waiver dated as of February 25, 2008, that certain Fourth Amendment dated as of March 31, 2008, that certain Fifth Amendment dated as of April 30, 2008, that certain Sixth Amendment dated as of June 30, 2008, as amended hereby and as further amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”).
The Borrower has requested that the Administrative Agent, the Lenders and the Canadian Lenders agree to amend the Credit Agreement and waive certain requirements of the Collateral Assignment of Bonds and Indenture of Trust and Subordination dated as of May 30, 2008 by and between BA and the Administrative Agent (as amended, restated supplemented or otherwise modified from time to time, the “ Collateral Assignment ”), in each case as more specifically set forth herein. Subject to the terms and conditions set forth herein, the Administrative Agent and each of the Consenting Lenders have agreed to grant such requests of the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms . Except as otherwise provided herein, all capitalized undefined terms used in this Agreement (including, without limitation, in the introductory paragraph and the statement of purpose hereto) shall have the meanings assigned thereto in the Credit Agreement (as amended by this Agreement).
2. Waiver of Bond Delivery Requirement . Pursuant to Section 13.2 of the Credit Agreement and subject to the terms and conditions hereof, including, without limitation, the conditions to effectiveness set forth in Section 4 hereof, the Consenting Lenders and the Administrative Agent hereby waive the provisions of Section 10 of the Collateral Assignment requiring BA to deliver original Assigned Bonds (as defined in the Collateral Assignment) or original Replacement Bonds (as defined in the Collateral Assignment) to the Administrative Agent.
3. Credit Agreement Amendment . The table in Section 9.2 of the Credit Agreement is hereby amended and restated as follows:
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Applicable Period |
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Minimum Ratio |
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Third Amendment Effective Date to March 31, 2008 |
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0.75 to 1.00 |
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April 1, 2008 through and including June 30, 2008 |
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1.00 to 1.00 |
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July 1, 2008 through and including September 30, 2008 |
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1.40 to 1.00 |
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October 1, 2008 through and including December 31, 2008 |
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1.75 to 1.00 |
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January 1, 2009 and thereafter |
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2.00 to 1.00 |
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4. Conditions to Effectiveness . Upon the satisfaction of each of the following conditions, this Agreement shall be deemed effective as of June 29, 2008:
(a) the Administrative Agent shall have received counterparts of this Agreement executed by the Administrative Agent (on behalf of itself and each of the Consenting Lenders by virtue of each Consenting Lender’s execution of a Lender Authorization), the Borrower, the Parent and each of the Grantors;
(b) the Administrative Agent shall have received executed Lender Authorizations from the requisite Consenting Lenders;
(c) the Administrative Agent shall have been reimbursed for all fees and out-of-pocket charges and other expenses incurred in connection with this Agreement, including, without limitation, the reasonable fees and disbursements of counsel for the Administrative Agent;
(d) the Borrower shall have paid to the Administrative Agent (or its applicable affiliates), for the account of each Consenting Lender (including the Administrative Agent and the Canadian Administrative Agent) that executes and delivers this Agreement or a Lender Authorization to the Administrative Agent (or its counsel) on or prior to 5:00 p.m. (Eastern Time) on August 6, 2008, an amendment fee in an amount equal to (a) 10 basis points times the principal amount of such Consenting Lender’s Commitment plus (b) 10 basis points times the
principal amount of such Consenting Lender’s “Commitment” (as defined in the Canadian Credit Agreement);
(e) the Administrative Agent shall have received a corresponding amendment to the Canadian Credit Agreement, in form and substance substantially consistent with this Agreement (with such changes as are applicable only to the Canadian Credit Agreement), duly executed by the Canadian Administrative Agent, the Canadian Borrower, the Parent, each Canadian Guarantor and the requisite Consenting Lenders (whether directly or through a lender authorization); and
(f) the Administrative Agent shall have received such other instruments, documents and certificates as the Administrative Agent shall reasonably request in connection with the execution of this Agreement.
5. Effect of the Agreement . Except as expressly provided herein, the Credit Agreement, the Collateral Assignment and the other Loan Documents shall remain unmodified and in full force and effect. Except as expressly set forth herein, this Agreement shall not be deemed (a) to be a waiver of, or consent to, a modification or amendment of, any other term or condition of the Credit Agreement, the Collateral Assignment or any other Loan Document, (b) to prejudice any other right or rights which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement, the Collateral Assignment or the other Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended, restated, supplemented or otherwise modified from time to time, (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Borrower or any other Person with respect to any waiver, amendment, modification or any other change to the Credit Agreement, the Collateral Assignment or the Loan Documents or any rights or remedies arising in favor of the Lenders or the Administrative Agent, or any of them, under or with respect to any such documents or (d) to be a waiver of, or consent to or a modification or amendment of, any other term or condition of any other agreement by and among the Borrower, on the one hand, and the Administrative Agent or any other Lender, on the other hand. References in the Credit Agreement to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, and “hereof”)






