AMENDMENT NO. 1 TO CREDIT AGREEMENT
EXHIBIT 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 (this “Amendment”) dated as of April 28, 2011 to the ABL Credit Agreement
dated as of December 9, 2010 (the “Credit Agreement”) among AbitibiBowater Inc., a Delaware
corporation (“AbitibiBowater”), the Subsidiaries of AbitibiBowater party thereto (together with
AbitibiBowater, collectively, the “Borrowers”), the Lenders party thereto from time to time and
Citibank, N.A., as Administrative Agent (the “Administrative Agent”) and Collateral Agent.
The parties hereto agree as follows:
Section 1. Defined Terms; References. Unless otherwise
specifically defined herein, each term used herein that is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
“hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each
reference to “this Agreement” and each other similar reference contained in the Credit
Agreement shall, as of the Amendment Effective Date (as defined below), refer to the
Credit Agreement as amended hereby.
Section 2. Amendment to Section 10.19 of the Credit Agreement. Section 10.19 of the
Credit Agreement is amended by replacing “April 30, 2011” with “July 31, 2011”.
Section 3. Amendment to Section 5.03(d) of the Credit Agreement. Section 5.03(d) of
the Credit Agreement is amended and restated to read in its entirety as follows:
“(i) All amounts deposited or held in all of the U.S. Collection Accounts with respect to each
U.S. Loan Party and available for transfer (other than amounts which are payable to Subsidiaries or
Affiliates of AbitibiBowater that are not Loan Parties and which were sent or deposited to the
incorrect lockbox or deposit account by the account debtor) shall be transferred not less
frequently than once per Business Day (it being understood that any amounts deposited in a U.S.
Collection Account after such daily transfer has occurred shall be transferred on the following
Business Day), or, solely in the case of amounts held in the U.S. Collection Accounts set forth on
Schedule 5.03(d), not less frequently than weekly, into one or more accounts with the
Administrative Agent or a financial institution reasonably acceptable to the Administrative Agent
(each a “Core U.S. Concentration Account” and collectively, the “Core U.S. Concentration Accounts”)
unless such amounts are otherwise required or permitted to be applied pursuant to Section 5.02;
provided, however, that so long as no Dominion Period then exists, the Borrowers shall be permitted
to retain in each U.S. Collection Account funds in an aggregate amount not to exceed at any time
the sum of (x) the amount required (as reasonably determined by AbitibiBowater) to satisfy the
payment of outstanding obligations owing in respect of checks or similar obligations issued by any
U.S. Loan Party with respect to such U.S
Collection Account plus (y) $100,000 (provided that the aggregate amount of funds retained in all
U.S. Collection Accounts pursuant to this clause (y) shall not exceed $500,000 at any time) and
(ii) all amounts deposited or held in all of the Canadian Collection Accounts with respect to each
Canadian Loan Party and available for transfer shall be transferred not less frequently than once
per Business Day (it being understood that any amounts deposited in a Canadian Collection Account
after such daily transfer has occurred shall be transferred on the following Business Day), or,
solely in the case of amounts held in the Canadian Collection Accounts set forth on Schedule
5.03(d), not less frequently than weekly, into one or more accounts with the Administrative Agent
or a financial institution reasonably acceptable to the Administrative Agent (each a “Core Canadian
Concentration Account” and collectively, the “Core Canadian Concentration Accounts”) unless such
amounts are otherwise required or permitted to be applied pursuant to Section 5.02; provided,
however, that so long as no Dominion Period then exists, the Borrowers shall be permitted to retain
in each Canadian Collection Account funds in an aggregate amount not to exceed at any time the sum
of (x) the amount required (as reasonably determined by AbitibiBowater) to satisfy the payment of
outstanding obligations owing in respect of checks or similar obligations issued by any Canadian
Loan Party with respect to such Canadian Collection Account plus (y) $100,000 (provided that the
aggregate amount of funds retained in all Canadian Collection Accounts pursuant to this clause (y)
shall not exceed $700,000 at any time). Except as, and to the extent, permitted by this Section
5.03(d), and Section 10 each Collection Account shall have a zero balance immediately following the
transfer of funds pursuant to the immediately preceding sentences. So long as no Dominion Period
then exists, the Borrowers and the other Loan Parties shall be permitted to transfer cash from the
Core Concentration Accounts to other Deposit Accounts to be used for working capital and general
corporate purposes all subject to the requirements of this Agreement (including this Section
5.03(d)). If a Dominion Period exists, all collected amounts held in the Core Concentration
Accounts shall be applied as provided in Section 5.03(e) or (f), as applicable.
Section 4. Representations of Borrower. Each of the Borrowers
represents and warrants that (a) the representations and warranties of the Borrowers set
forth in Section 8 of the Credit Agreement and in the Loan Documents will be true and
correct in all material respects on and as of the Amendment Effective Date with the same
effect as though such representations and warranties had been made on and as of the
Amendment Effective Date (it being understood and agreed that (x) any representation or
warranty which by its terms is made as of a specified date shall be required to be true
and correct in all material respects only as of such specified date and (y) any
representation or warranty that is qualified as to “materiality”, “Material Adverse
Effect” or similar language shall be true and correct in all respects on such date) and
(b) no Default or Event of Default will have occurred and be continuing on the Amendment
Effective Date.
Section 5. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. Delivery
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of an executed counterpart hereof by facsimile or electronic transmission shall be as
effective as delivery of an original executed counterpart hereof.
Section 6. Effectiveness. This Amendment shall become effective
on the date when the following conditions are met (the “Amendment Effective Date”):
(a) the Administrative Agent shall have received from each of the Borrowers and the
Lenders party hereto, who constitute the Required Lenders, (x) a counterpart of this
Amendment signed on behalf of such party or (y) evidence satisfactory to the
Administrative Agent (which may include a facsimile or other electronic transmission) that
such party has signed a counterpart of this Amendment; and
(b) the Borrowers shall have paid all expenses of the Agents payable pursuant to
Section 13.01(a) of the Credit Agreement to the extent invoiced on or prior the Amendment
Effective Date (including, without limitation, the reasonable fees and disbursements of
counsel to the Agents).
Section 7. Reference To and Effect Upon the Credit Agreement.
(a) Except as expressly set forth herein, all terms, conditions, covenants,
representations and warranties contained in the Credit Agreement and the other Loan
Documents and all rights of the Agents, the Issuing Lenders, the Swingline Lenders and the
Lenders and all obligations of the Loan Parties, shall remain in full force and effect.
The Borrowers hereby confirm that the Credit Agreement and the other Loan Documents are in
full force and effect.
(b) This Amendment shall constitute a Loan Document for all purposes of the Credit
Agreement and all the other Loan Documents.
Section 8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
[Signature Pages Follow]
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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.
| U.S. BORROWERS: ABITIBIBOWATER INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President and Chief Legal Officer |
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| ABIBOW US INC., as successor to | ||||
| Bowater Incorporated, as a U.S. Borrower |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| ABIBOW RECYCLING LLC, as successor | ||||
| to Abitibi-Consolidated Corp., as a U.S. Borrower |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President and Chief Legal Officer |
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| CANADIAN BORROWER: ABIBOW CANADA INC., as successor to |
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Abitibi-Consolidated Inc., as a Canadian Borrower |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Secretary | |||
| CITIBANK, N.A., as Administrative Agent and Lender |
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| By: | /s/ Miles XxXxxxx | |||
| Name: | Miles XxXxxxx | |||
| Title: | Vice President and Director | |||
| Xxxxx Fargo Capital Finance, LLC, as Lender |
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| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice President | |||
| SIEMENS FINANCIAL SERVICES, INC., as Lender |
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| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | SVP & CRO | |||
| JPMORGAN CHASE BANK, N.A., as Lender |
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| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Director | |||
[Signature page to Amendment No. 1]
| Export Development Canada, as Lender |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Senior Asset Manager | |||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Asset Manager | |||
| CITIBANK, N.A., CANADIAN BRANCH, as Lender |
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| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Authorized Officer | |||
| CIT Bank, as Lender |
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| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
| CIBC Inc., as Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Executive Director CIBC World Markets Corp. Authorized Signatory |
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| Canadian Imperial Bank of Commerce, as Lender |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Executive Director | |||
| BARCLAYS BANK PLC, as Lender |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| THE BANK OF NOVA SCOTIA, as Lender |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| Bank of Montreal, as Lender |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director and Group Head |
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