Exhibit 10.3
Amended and Restated
Receivables Sale Agreement
Dated as of September 24, 1999, as amended
and Restated as of December 22, 1999
among
Quebecor World Finance Inc.,
as the Seller,
Quebecor Printing (USA) Holdings Inc.,
as the Initial Collection Agent,
ABN AMRO Bank N.V.,
as the Agent and a Purchaser Agent,
The other Purchaser Agents
from time to time party hereto,
The Related Bank Purchasers
from time to time party hereto,
and
Amsterdam Funding Corporation, as a
Conduit Purchaser
and
The other Conduit Purchasers
from time to time party hereto
Table of Contents
PAGE
Article I Purchases from Seller and Settlements 1
Section 1.1. Sales 1
Section 1.2. Interim Liquidations. 2
Section 1.3. Selection of Discount Rates and Tranche Periods. 2
Section 1.4. Fees and Other Costs and Expenses 2
Section 1.5. Maintenance of Sold Interest; Deemed Collection 3
Section 1.6. Reduction in Commitments 3
Section 1.7. Optional Repurchases. 3
Section 1.8. Assignment of Purchase Agreement and RPA Limited Guaranty. 3
Section 1.9. Extension of Scheduled Termination Date. 4
Article II Sales to and from Conduit Purchasers; Allocations 4
Section 2.1. Required Purchases from an Uncommitted Conduit Purchaser. 4
Section 2.2. Purchases by an Uncommitted Conduit Purchaser. 4
Section 2.3. Allocations and Distributions 4
Article III Administration and Collections 5
Section 3.1. Appointment of Collection Agent 5
Section 3.2. Duties of Collection Agent 6
Section 3.3. Reports 6
Section 3.4. Lock-Box Arrangements 6
Section 3.5. Enforcement Rights 7
Section 3.6. Collection Agent Fee 7
Section 3.7. Responsibilities of the Seller 7
Section 3.8. Actions by Seller 7
Section 3.9. Indemnities by the Collection Agent. 8
Article IV Representations and Warranties 8
Section 4.1. Representations and Warranties 8
Article V Covenants 9
Section 5.1. Covenants of the Seller 9
Article VI Indemnification 12
Section 6.1. Indemnities by the Seller 12
Section 6.2. Increased Cost and Reduced Return 13
Section 6.3. Other Costs and Expenses 13
Section 6.4. Withholding Taxes 14
Section 6.5. Payments and Allocations 14
Article VII Conditions Precedent 14
Section 7.1. Conditions to Closing 14
Section 7.2. Conditions to Each Purchase 15
Article VIII The Agent 15
Section 8.1. Appointment and Authorization 15
Section 8.2. Delegation of Duties 15
Section 8.3. Exculpatory Provisions 16
Section 8.4. Reliance by Agent and Purchaser Agent 16
Section 8.5. Assumed Payments 16
Section 8.6. Notice of Termination Events 16
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Section 8.7. Non-Reliance on Agent and Other Purchasers 17
Section 8.8. Agent and Affiliates. 17
Section 8.9. Indemnification 17
Section 8.10. Successor Agent. 17
Article IX Miscellaneous 17
Section 9.1. Termination 17
Section 9.2. Notices 17
Section 9.3. Payments and Computations 18
Section 9.4. Sharing of Recoveries 18
Section 9.5. Right of Setoff 18
Section 9.6. Amendments 18
Section 9.7. Waivers 19
Section 9.8. Successors and Assigns; Participations; Assignments 19
Section 9.9. Intended Tax Characterization 20
Section 9.10. Confidentiality 20
Section 9.11. Agreement Not to Petition. 20
Section 9.12. Excess Funds 21
Section 9.13. No Recourse 21
Section 9.14. Headings; Counterparts. 21
Section 9.15. Cumulative Rights and Severability. 21
Section 9.16. Governing Law; Submission to Jurisdiction 21
Section 9.17. WAIVER OF TRIAL BY JURY 21
Section 9.18. Entire Agreement. 21
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SCHEDULES DESCRIPTION
Schedule I Definitions
Schedule II Related Bank Purchasers and Commitments of Committed Purchasers
Schedule III Obligors
EXHIBITS DESCRIPTION
Exhibit A Form of Incremental Purchase Request
Exhibit B [RESERVED]
Exhibit C Form of Periodic Report
Exhibit D Addresses and Names of Seller and Originator
Exhibit E Subsidiaries
Exhibit F Lock-Boxes and Lock-Box Banks
Exhibit G Form of Lock-Box Letter
Exhibit H Compliance Certificate
Exhibit I Credit and Collection Policy
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Amended and Restated
Receivables Sale Agreement
THIS AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT, dated as of December 22,
1999, is among Quebecor World Finance Inc., a Delaware corporation, as Seller
(the "SELLER"), Quebecor Printing (USA) Holdings Inc., a Delaware corporation,
as initial Collection Agent (the "INITIAL COLLECTION AGENT," and, together with
any successor thereto, the "COLLECTION AGENT"), ABN AMRO Bank N.V., as agent for
the Purchasers (the "AGENT"), the Purchaser Agents party hereto, the Conduit
Purchasers party hereto, and the Related Bank Purchasers party hereto.
Preliminary Statement
The Seller, Initial Collection Agent, Agent, Amsterdam and certain liquidity
providers are parties to a Receivables Sale Agreement, dated as of September 24,
1999 (the "ORIGINAL CREDIT AGREEMENT"); Subject to and upon the terms and
conditions set forth herein, the parties desire to amend and restated the
Original Credit Agreement in the form of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained herein and
the other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
Article I
Purchases from Seller and Settlements
SECTION 1.1. SALES.
(a) THE SOLD INTEREST. Subject to the terms and conditions hereof, the
Seller may, from time to time before the Termination Date, sell to the Conduit
Purchasers or, only if an Uncommitted Conduit Purchaser declines to make the
applicable purchase, ratably to the Related Bank Purchasers for such Uncommitted
Conduit Purchaser an undivided percentage ownership interest in the Eligible
Receivables identified by the Seller as provided in Section 7.2 (the "SOLD
RECEIVABLES"), the Related Security and all related Collections; PROVIDED THAT
the aggregate principal amount of Sold Receivables shall equal the Sold
Receivable Balance. Any such purchase (a "PURCHASE") shall be made by each
relevant Purchaser remitting funds to the Seller, through the Agent, pursuant to
Section 1.1(c) or by the Collection Agent remitting Collections to the Seller
pursuant to Section 1.1(d). The aggregate percentage ownership interest so
acquired by a Purchaser in the Sold Receivables, the Related Security and
related Collections (its "PURCHASE INTEREST") shall equal at any time such
Purchaser's Investment divided by the Aggregate Investment. The sum of all
Purchasers' Purchase Interests at any time is referred to herein as the "SOLD
INTEREST", which at any time is the aggregate percentage ownership interest then
held by the Purchasers in the Sold Receivables, the Related Security and
Collections.
(b) UNCOMMITTED CONDUIT PURCHASERS' PURCHASE OPTION AND COMMITTED
PURCHASERS' COMMITMENTS. Subject to Section 1.1(d) concerning Reinvestment
Purchases, at no time will an Uncommitted Conduit Purchaser have any obligation
to make a Purchase. Each Committed Purchaser severally hereby agrees, subject to
Section 7.2 and the other terms and conditions hereof (including, in the case of
an Incremental Purchase (as defined below), the condition that the related
Uncommitted Conduit Purchaser has refused to make a requested Purchase), to make
Purchases before the Termination Date, based on the applicable Purchaser Group's
Ratable Share of each Purchase (and, in the case of each Related Bank Purchaser,
its Commitment Percentage of its Purchaser Group's Ratable Share of such
Purchase), to the extent its Investment would not thereby exceed its Commitment,
the Aggregate Investment would not thereby exceed the Purchase Limit, and the
Matured Aggregate Investment would not thereby exceed the Aggregate Commitments.
Each Purchaser's first Purchase and each additional Purchase by such Purchaser
not made from Collections pursuant to Section 1.1(d) is referred to herein as an
"INCREMENTAL PURCHASE." Each Purchase made by a Purchaser with the proceeds of
Collections in which it has a Purchase Interest, which does not increase the
outstanding Investment of such Purchaser, is referred to herein as a
"REINVESTMENT PURCHASE." All Purchases hereunder shall be made ratably by each
Purchaser Group in accordance with the Commitment of such Purchaser Group.
(c) INCREMENTAL PURCHASES. In order to request an Incremental Purchase
from a Purchaser, the Seller must provide to the Agent and each Purchaser Agent
an irrevocable written request (including by telecopier or other facsimile
communication) substantially in the form of Exhibit A, by (i) 10:00 a.m.
(Chicago time) three Business Days before the requested date (the "PURCHASE
DATE") of such Purchase, in the case of each Purchase by an Uncommitted Conduit
Purchaser and in the case of each Purchase by the Committed Purchasers that is
to accrue Discount at the LIBOR Rate and (ii) 10:00 a.m. (Chicago time) one
Business Day before the requested Purchase Date in the case of each Purchase by
the Committed Purchasers that is to accrue Discount at the Prime Rate, or, in
each of the foregoing cases, such later time or day as a Conduit Purchaser shall
agree. Each such notice shall specify the requested Purchase Date (which must be
a Business Day) and the requested amount (the "PURCHASE Amount") of such
Purchase, which must be in a minimum amount of $1,000,000 and multiples thereof
(or, if less, an amount equal to the Maximum Incremental Purchase Amount). All
Incremental Purchases must be requested
ratably from all Conduit Purchasers unless upon such request, in the case of an
Uncommitted Conduit Purchaser, such Uncommitted Conduit Purchaser, in its sole
discretion, determines not to make its Ratable Share of the requested Purchase
(which determination shall be made within one Business Day after the Seller's
request for an Incremental Purchase), in which case the Seller may request
(which such request may only be made on and after January 3, 2000) such Ratable
Share of the Incremental Purchase be made by the Related Bank Purchasers of such
Uncommitted Conduit Purchaser on the originally requested Purchase Date. Each
Purchaser Agent shall promptly notify the related Purchasers from which a
Purchase is requested of the contents of such request. If a Ratable Share of an
Incremental Purchase is requested from an Uncommitted Conduit Purchaser and such
Uncommitted Conduit Purchaser determines, in its sole discretion, to make the
requested Purchase, such Uncommitted Conduit Purchaser shall transfer to the
Agent's Account its Ratable Share of such Incremental Purchase by no later than
12:00 noon (Chicago time) on the Purchase Date. If a Ratable Share of an
Incremental Purchase is requested from a Committed Conduit Purchaser or the
Related Bank Purchasers for a Purchaser Group (which such request of the Related
Bank Purchasers may only be made on and after January 3, 2000), subject to
Section 7.2 and the other terms and conditions hereof, each Committed Conduit
Purchaser or the Related Bank Purchasers for a Purchaser Group shall transfer
the applicable Purchaser Group's Ratable Share of the requested Purchase Amount
(and, in the case of each Related Bank Purchaser, its Commitment Percentage of
its Purchaser Group's Ratable Share of such Purchase) into the Agent's Account
by no later than 12:00 noon (Chicago time) on the Purchase Date. The Agent shall
transfer to the Seller Account the proceeds of any Incremental Purchase
delivered into the Agent's Account. Notwithstanding anything in this Agreement
to the contrary, the Committed Purchasers shall have no Commitment to make an
Incremental Purchase prior to January 3, 2000.
(d) REINVESTMENT PURCHASES. Unless an Uncommitted Conduit Purchaser has
provided to the Agent, its Purchaser Agent, the Seller, and the Collection Agent
a notice (which notice has not been revoked) that it no longer wishes to make
Reinvestment Purchases (in which case such Uncommitted Conduit Purchaser's
Reinvestment Purchases, but not those of its Related Bank Purchasers or any
Committed Conduit Purchaser, shall cease), on each day before the Termination
Date that any Collections are received by the Collection Agent and no Interim
Liquidation is in effect a Purchaser's Purchase Interest in such Collections
shall automatically be used to make a Reinvestment Purchase by such Purchaser.
An Uncommitted Conduit Purchaser may revoke any notice provided under the first
sentence of this Section 1.1(d) by notifying the Agent, its Purchaser Agent, the
Seller, and the Collection Agent that it will make Reinvestment Purchases.
(e) SECURITY INTEREST. To secure all of the Seller's obligations under
the Transaction Documents, the Seller hereby grants to the Agent (for the
benefit of the Purchasers and any other Person to whom any amount is owed
hereunder) a security interest in all of the Seller's rights in the Sold
Receivables, the Related Security, the Collections, the Lock- Box Accounts and
all proceeds of the foregoing.
SECTION 1.2. INTERIM LIQUIDATIONS. (a) OPTIONAL. The Seller may at any
time direct that Reinvestment Purchases cease and that an Interim Liquidation
commence for all Purchasers by giving the Agent, each Purchaser Agent and the
Collection Agent at least three Business Days' prior written (including telecopy
or other facsimile communication) notice specifying the date on which the
Interim Liquidation shall commence and, if desired, when such Interim
Liquidation shall cease (identified as a specific date prior to the Termination
Date or as when the Aggregate Investment is reduced to a specified amount). If
the Seller does not so specify the date on which an Interim Liquidation shall
cease, it may cause such Interim Liquidation to cease at any time before the
Termination Date, subject to Section 1.2(b) below, by notifying the Agent, each
Purchaser Agent and the Collection Agent in writing (including by telecopy or
other facsimile communication) at least three Business Days before the date on
which it desires such Interim Liquidation to cease.
(b) MANDATORY. If at any time before the Termination Date any condition
in Section 7.2 is not fulfilled, the Seller shall immediately notify the Agent,
each Purchaser Agent and the Collection Agent, whereupon Reinvestment Purchases
shall cease and an Interim Liquidation shall commence, which shall cease only
upon the Seller confirming to the Agent that the conditions in Section 7.2 are
fulfilled.
SECTION 1.3. SELECTION OF DISCOUNT RATES AND TRANCHE PERIODS. The
Discount Rates, Tranche Periods and related matters for all Investment of each
Purchaser Group shall be set forth in and governed by the terms of, the Rate
Supplement for such Purchaser Group.
SECTION 1.4. FEES AND OTHER COSTS AND EXPENSES. (a) The Seller shall
pay to each Purchaser Agent for the benefit of its Purchaser Group, such amounts
as agreed to with the Seller in the Pricing Letter and Fee Letter, if any, for
such Purchaser Group.
(b) Investment shall be payable solely from Collections and from
amounts payable under Sections 1.5, 1.7 and 6.1 (to the extent amounts paid
under Section 6.1 indemnify against reductions in or non-payment of
Receivables). The Seller shall pay, as a full recourse obligation, all amounts
payable pursuant to Sections 1.5, 1.7
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and 6.1 and all other amounts payable hereunder (other than Investment) and
under the Rate Supplements, including, without limitation, all Discount, fees
described in the Pricing Letters and Fee Letters and amounts payable under
Article VI.
SECTION 1.5. MAINTENANCE OF SOLD INTEREST; DEEMED COLLECTION. (a)
GENERAL. If at any time before the Termination Date the Eligible Receivable
Balance is less than the sum of the Aggregate Investment (or, if a Termination
Event exists, the Matured Aggregate Investment) plus the Aggregate Reserve, the
Seller shall pay to the Agent an amount equal to such deficiency for application
to reduce the Investments of the Purchasers ratably in accordance with the
principal amount of their respective Investments, applied FIRST to Prime
Tranches and SECOND to the other Tranches with the shortest remaining maturities
unless otherwise specified by the Seller.
(b) DEEMED COLLECTIONS. If on any day the outstanding balance of a Sold
Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) or other similar reason not
arising from the financial inability of the Obligor to pay undisputed
indebtedness, the Seller shall be deemed to have received on such day a
Collection on such Sold Receivable in the amount of such reduction or
cancellation. If on any day any representation, warranty, covenant or other
agreement of the Seller related to a Receivable is not true or is not satisfied,
the Seller shall be deemed to have received on such day a Collection in the
amount of the outstanding balance of such Sold Receivable. All such Collections
deemed received by the Seller under this Section 1.5(b) ("DEEMED COLLECTIONS")
shall be remitted by the Seller to the Collection Agent in accordance with
Section 5.1(i).
(c) PAYMENT ASSUMPTION. Unless an Obligor otherwise specifies or
another application is required by contract or law, any payment received by the
Seller from any Obligor shall be applied as a Collection of Sold Receivables of
such Obligor (starting with the oldest such Sold Receivable) and remitted to the
Collection Agent as such.
SECTION 1.6. REDUCTION IN COMMITMENTS. (a) The Seller may, upon thirty
days' notice to the Agent and each Purchaser Agent, reduce the Aggregate
Commitment in increments of $1,000,000, so long as the Aggregate Commitment as
so reduced equals at least the outstanding Matured Aggregate Investment. Each
such reduction in the Aggregate Commitment shall reduce the Commitment of each
Purchaser Group in accordance with its Ratable Share (and, in the case of each
Related Bank Purchaser, its Commitment Percentage of its Purchaser Group's
Ratable Share of such reduction) and shall ratably reduce the Purchase Limit so
that the Aggregate Commitment remains at least 102% of the Purchase Limit and
the Purchase Limit is not less than the outstanding Aggregate Investment.
(b) Unless all parties hereto agree in writing, the Seller shall reduce
on April 3, 2000 by $81,600,000 the Aggregate Commitment and the Matured
Aggregate Investment. Each such redution in the Aggregate Commitment shall
reduce the Commitment of each Purchaser Group in accordance with its Ratable
Share (and, in the case of each Related Bank Purchaser, its Commitment
Percentage of its Purchaser Group's Ratable Share of such reduction) and shall
ratably reduce the Purchase Limit so that the Aggregate Commitment remains at
least 102% of the Purchase Limit and the Purchase Limit is not less than the
outstanding Aggregate Investment.
SECTION 1.7. OPTIONAL REPURCHASES. At any time that the Aggregate
Investment is less than 10% of the Aggregate Commitment in effect on the date
hereof, the Seller may, upon thirty days' notice to the Agent and each Purchaser
Agent, repurchase the entire Sold Interest from the Purchasers at a price equal
to the outstanding Matured Aggregate Investment and all other amounts then owed
hereunder.
SECTION 1.8. ASSIGNMENT OF PURCHASE AGREEMENT AND RPA LIMITED GUARANTY.
The Seller hereby assigns and otherwise transfers to the Agent (for the benefit
of the Agent, each Purchaser Agent, each Purchaser and any other Person to whom
any amount is owed hereunder), all of the Seller's right, title and interest in,
to and under the Purchase Agreement and RPA Limited Guaranty to the extent of
the Sold Receivables. The Seller shall execute, file and record all financing
statements, continuation statements and other documents required to perfect or
protect such assignment. This assignment includes to the extent related to the
Sold Receivables (a) all monies due and to become due to the Seller from the
Originator or the Parent under or in connection with the Purchase Agreement and
the RPA Limited Guaranty (including fees, expenses, costs, indemnities and
damages for the breach of any obligation or representation related to such
agreement) and (b) all rights, remedies, powers, privileges and claims of the
Seller against the Originator, the Parent or Quebecor Printing Inc. under or in
connection with the Purchase Agreement and the RPA Limited Guaranty. All
provisions of the Purchase Agreement and the RPA Limited Guaranty shall inure to
the benefit of, and may be relied upon by, the Agent, each Purchaser Agent, each
Purchaser and each such other Person. At any time that a Termination Event has
occurred and is continuing, the Agent shall have the sole right to enforce the
Seller's rights and remedies under the Purchase Agreement and the RPA Limited
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Guaranty to the same extent as the Seller could absent this assignment, but
without any obligation on the part of the Agent, any Purchaser Agent, any
Purchaser or any other such Person to perform any of the obligations of the
Seller under the Purchase Agreement (or the promissory note executed
thereunder). All amounts distributed to the Seller under the Purchase Agreement
or the RPA Limited Guaranty from Sold Receivables sold to the Seller thereunder
shall constitute Collections hereunder and shall be applied in accordance
herewith.
SECTION 1.9. EXTENSION OF SCHEDULED TERMINATION DATE. No later than 60
days prior to the Scheduled Termination Date the Seller may request in a written
notice to the Agent that the Scheduled Termination Date then in effect be
extended by three hundred sixty (360) days. The Agent will promptly inform each
Purchaser Agent of any such request and each Purchaser Agent shall notify the
Agent in writing no later than 30 days after its receipt of such notice whether
its Purchaser Group agrees to such extension (each such Purchaser Group agreeing
to such extension being a "CONSENTING PURCHASER GROUP"). In the event that a
Purchaser Agent shall fail timely to so notify the Agent whether its Purchaser
Group agrees to such extension, such Purchaser Group shall be deemed to have
refused to grant the requested extension. Upon receipt by the Agent of the
consent to such extension of all the Purchaser Groups no later than 30 days
after its receipt of such notice, the Scheduled Termination Date shall be
automatically extended an additional three hundred sixty (360) days. If the
Instructing Group consents to such extension but fewer than all the Purchaser
Groups so consent, and if the Seller still desires to extend the Scheduled
Termination Date, the Seller may seek to replace any Purchaser Group that is a
non-Consenting Purchaser Group pursuant to Section 9.8.
If the Seller and all the Purchaser Groups do not agree to the extension and
each non-Consenting Conduit Purchaser is not replaced, the Scheduled Termination
Date shall take place as scheduled. If the Scheduled Termination Date is
extended, any non-Consenting Purchaser Group shall be replaced on the effective
date of the assignment as set forth above and all amounts owing to such
Purchaser Group hereunder shall, on such effective date, be paid in full
pursuant to the terms of Section 9.8 hereof.
Article II
Sales to and from Conduit Purchasers; Allocations
SECTION 2.1. REQUIRED PURCHASES FROM AN UNCOMMITTED CONDUIT PURCHASER.
(a) Each Uncommitted Conduit Purchaser may, at any time, sell to the relevant
Related Bank Purchasers pursuant to the relevant Transfer Agreement any
percentage designated by such Uncommitted Conduit Purchaser of such Uncommitted
Conduit Purchaser Investment and its related Uncommitted Conduit Purchaser
Settlement (each, a "PUT").
(b) Any portion of any Investment of an Uncommitted Conduit Purchaser
and related Uncommitted Conduit Purchaser Settlement purchased by a Related Bank
Purchaser shall be considered part of such Related Bank Purchaser's Investment
and related Uncommitted Conduit Purchaser Settlement from the date of the
relevant Put. Immediately upon any purchase by a Related Bank Purchaser of any
portion of the relevant Uncommitted Conduit Purchaser Investment, the Seller
shall pay to the relevant Purchaser Agent (for the ratable benefit of each such
Purchaser) an amount equal to the sum of (i) the Assigned Uncommitted Conduit
Purchaser Settlement and (ii) all unpaid Discount owed to such Uncommitted
Conduit Purchaser (whether or not then due) to the end of each applicable
Tranche Period to which any Investment being Put has been allocated, (iii) all
accrued but unpaid fees (whether or not then due) payable to such Uncommitted
Conduit Purchaser in connection herewith at the time of such purchase and (iv)
all accrued and unpaid costs, expenses and indemnities due to such Uncommitted
Conduit Purchaser from the Seller in connection herewith.
SECTION 2.2. PURCHASES BY AN UNCOMMITTED CONDUIT PURCHASER. Each
Uncommitted Conduit Purchaser may at any time deliver to its Purchaser Agent and
each relevant Related Bank Purchaser a notification of assignment in
substantially the form provided by the relevant Transfer Agreement. If an
Uncommitted Conduit Purchaser delivers such notice, each relevant Related Bank
Purchaser shall sell to such Uncommitted Conduit Purchaser and such Uncommitted
Conduit Purchaser shall purchase in full from each such Related Bank Purchaser,
the Investment of the Related Bank Purchasers on the last day of the relevant
Tranche Periods, at a purchase price equal to such Investment plus accrued and
unpaid Discount thereon. Any sale from any Related Bank Purchaser to the
relevant Uncommitted Conduit Purchaser pursuant to this Section 2.2 shall be
without recourse, representation or warranty except for the representation and
warranty that the Investment sold by such Related Bank Purchaser is free and
clear of any Adverse Claim created or granted by such Related Bank Purchaser and
that such Related Bank Purchaser has not suffered a Bankruptcy Event.
SECTION 2.3. ALLOCATIONS AND DISTRIBUTIONS.
(a) NON-REINVESTMENT PERIODS. Before the Termination Date unless an
Interim Liquidation is in effect, on each day during a period that an
Uncommitted Conduit Purchaser is not making Reinvestment Purchases (as
established under Section 1.1(d)), the Collection Agent (i) shall set aside and
hold solely for the benefit of the applicable Uncommitted Conduit Purchaser (or
deliver to the applicable Purchaser Agent, if so instructed pursuant
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to Section 3.2(a)) such Uncommitted Conduit Purchaser's Purchase Interest in all
Collections received on such day and (ii) shall distribute on the last day of
each CP Tranche Period to the applicable Purchaser Agent (for the benefit of
such Uncommitted Conduit Purchaser) the amounts so set aside up to the amount of
such Uncommitted Conduit Purchaser's Purchase Amount and, to the extent not
already paid in full, all Discount thereon and all other amounts then due from
the Seller in connection with such Purchase Amount and Tranche Period. As
provided in Section 1.4(c) all Discount and other amounts payable hereunder
other than the Purchase Amount are payable by the Seller. If any part of the
Sold Interest in any Collections is applied to pay any such amounts pursuant to
this Section 2.3(a) and after giving effect to such application the Aggregate
Investment PLUS the Aggregate Reserve is greater than the Eligible Receivable
Balance, the Seller shall pay to the Collection Agent the amount so applied to
the extent necessary so that after giving effect to such payment the Aggregate
Investment PLUS the Aggregate Reserve is no greater than the Eligible Receivable
Balance, for distribution as part of the Purchase Interest in Collections.
(b) TERMINATION DATE AND INTERIM LIQUIDATIONS. On each day during any
Interim Liquidation and on each day on and after the Termination Date the
Collection Agent shall set aside and hold solely for the account of each
Purchaser Agent, for the benefit of each Purchaser Group to the extent provided
below, (or deliver to each Purchaser Agent, if so instructed pursuant to Section
3.2(a)) and for the account of the Agent, the Sold Interest in all Collections
received on such day and such Collections shall be allocated as follows:
(i) FIRST, ratably to each Purchase Group until all Investment of, and
Discount and interest due but not already paid to, each Purchaser Group has been
paid in full; and
(ii) SECOND, ratably to such Purchaser Group until all amounts owed to
such Purchaser Group have been paid in full.
(iii) THIRD, to the Agent until all amounts owed to the Agent (other
than amounts owing the Agent in its role as a Purchaser Agent) have been paid in
full;
(iv) FOURTH, to each Purchaser Agent until all amounts owed to such
Persons have been paid in full;
(v) FIFTH, to any other Person to whom any amounts are owed under the
Transaction Documents until all such amounts have been paid in full; and
(vi) SIXTH, to the Seller (or as otherwise required by applicable law).
Unless an Interim Liquidation has ended by such date (in which case Reinvestment
Purchases shall resume to the extent provided in Section 1.1(d)), on the last
day of each Tranche Period (unless otherwise instructed by a Purchaser Agent
pursuant to Section 3.2(a)), the Collection Agent shall pay to the appropriate
parties, from such set aside Collections, all amounts allocated to such Tranche
Period and all Tranche Periods that ended before such date that are due in
accordance with the priorities in clauses (i) and (ii) above. No distributions
shall be made to pay amounts under clauses (iii), (iv), (v), and (vi) above
until sufficient Collections have been set aside to pay all amounts described in
clause (i) that may become payable for all outstanding Tranche Periods. All
distributions by the Agent shall be made ratably within each priority level in
accordance with the respective amounts then due each Person included in such
level unless otherwise agreed by all Purchaser Agents. As provided in Section
1.4(b) all Discount, interest and other amounts payable hereunder other than
Investment are payable by the Seller. If any part of the Sold Interest in any
Collections is applied to pay any such amounts pursuant to this Section 2.3(b)
and after giving effect to such application the Matured Aggregate Investment
PLUS the Aggregate Reserve is greater than the Eligible Receivable Balance, the
Seller shall pay to the Collection Agent the amount so applied to the extent
necessary so that after giving effect to such payment the Aggregate Investment
PLUS the Aggregate Reserve is no greater than the Eligible Receivable Balance,
for distribution as part of the Sold Interest in Collections.
Article III
Administration and Collections
SECTION 3.1. APPOINTMENT OF COLLECTION AGENT. (a) The servicing,
administering and collecting of the Receivables shall be conducted by a Person
(the "COLLECTION AGENT") designated to so act on behalf of the Purchasers under
this Article III. As the Initial Collection Agent, the Parent is hereby
designated as, and agrees to perform the duties and obligations of, the
Collection Agent. The Parent acknowledges that the Agent, each Purchaser Agent
and each Purchaser have relied on the Parent's agreement to act as Collection
Agent (and the agreement of any of the sub-collection agents to so act) in
making the decision to execute and deliver this Agreement and agrees that it
will not voluntarily resign as Collection Agent nor permit any sub-collection
agent to voluntarily resign as a sub-collection agent. At any time after the
occurrence of a Collection Agent Replacement Event, the Seller, with the written
consent of the Agent, may designate a new Collection Agent to succeed the Parent
(or any successor Collection Agent); PROVIDED THAT if the Seller and Agent can
not agree on a new Collection Agent within three days of the occurrence of a
Collection Agent Replacement Event, the Agent may designate a new Collection
Agent.
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(b) The Parent may, and if requested by the Agent shall, delegate its
duties and obligations as Collection Agent to an Affiliate (acting as a
sub-collection agent). Notwithstanding such delegation, the Parent shall remain
primarily liable for the performance of the duties and obligations so delegated,
and the Agent, each Purchaser Agent and each Purchaser shall have the right to
look solely to the Parent for such performance. The Agent may at any time after
the occurrence of a Collection Agent Replacement Event remove or replace any
sub-collection agent.
(c) If replaced, the Collection Agent agrees it will terminate, and
will cause each existing sub-collection agent to terminate, its collection
activities in a manner requested by the Agent to facilitate the transition to a
new Collection Agent. The Collection Agent shall cooperate with and assist any
new Collection Agent (including providing access to, and transferring, all
Records and allowing (to the extent permitted by applicable law and contract)
the new Collection Agent to use all licenses, hardware or software necessary or
desirable to collect the Receivables). The Parent irrevocably agrees to act (if
requested to do so) as the data-processing agent for any new Collection Agent in
substantially the same manner as the Parent conducted such data-processing
functions while it acted as the Collection Agent.
SECTION 3.2. DUTIES OF COLLECTION AGENT. (a) The Collection Agent shall
take, or cause to be taken, all action necessary or advisable to collect each
Receivable in accordance with this Agreement, the Credit and Collection Policy
and all applicable laws, rules and regulations using the skill and attention the
Collection Agent exercises in collecting other receivables or obligations owed
solely to it. The Collection Agent shall, in accordance herewith, set aside all
Collections to which a Purchaser is entitled. If so instructed by the
appropriate Purchaser Agent, after the occurrence of a Collection Agent
Replacement Event, the Collection Agent shall transfer to the appropriate
Purchaser Agent the amount of Collections to which the related Purchaser Group
are entitled by the Business Day following receipt. Each party hereto hereby
appoints the Collection Agent to enforce such Person's rights and interests in
the Sold Receivables, but (notwithstanding any other provision in any
Transaction Document) the Agent shall at all times after the occurrence of a
Collection Agent Replacement Event have the sole right to direct the Collection
Agent to commence or settle any legal action to enforce collection of any Sold
Receivable.
(b) If no Termination Event exists and the Collection Agent determines
that such action is appropriate in order to maximize the Collections, the
Collection Agent may, in accordance with the Credit and Collection Policy,
extend the maturity of any Receivable (but no such extension shall be for a
period more than thirty (30) days) or adjust the outstanding balance of any
Receivable. Any such extension or adjustment shall not alter the status of a
Receivable as a Defaulted Receivable or Delinquent Receivable or limit any
rights of the Agent, any Purchaser Agent or the Purchasers hereunder. If a
Termination Event exists, the Collection Agent may make such extensions or
adjustments only with the prior consent of the Instructing Group.
(c) The Collection Agent shall turn over to the Seller (i) any
Collections in excess of the Aggregate Investment plus the Aggregate Reserve,
less all reasonable costs and expenses of the Collection Agent for servicing,
collecting and administering the Receivables and (ii) subject to Section 1.5(c),
the collections and records for any indebtedness owed to the Seller that is not
a Sold Receivable. The Collection Agent shall keep a copy in its files of all
such records which it turns over to the Seller. The Collection Agent has no
obligations concerning indebtedness that is not a Receivable other than to
deliver the collections and records for such indebtedness to the Seller when
required by this Section 3.2(c).
(d) Each Purchase hereunder shall constitute a representation and
warranty by the Collection Agent that the Eligible Receivable Balance as of the
date such Purchase is made is greater than or equal to the Sold Receivable
Balance.
SECTION 3.3. REPORTS. On or before the twentieth day of each month,
and, after the occurrence of a Termination Event, at such other times covering
such other periods as is requested by the Agent or the Instructing Group, the
Collection Agent shall deliver to the Agent and each Purchaser Agent a report
reflecting information as of the close of business of the Collection Agent for
the immediately preceding fiscal month or such other preceding period as is
requested (each a "PERIODIC REPORT"), containing the information described on
Exhibit C (with such modifications or additional information as reasonably
requested by the Agent or the Instructing Group and, prior to the occurrence of
a Termination Event, agreed to by the Seller).
SECTION 3.4. LOCK-BOX ARRANGEMENTS. The Agent is hereby authorized to
give notice at any time after the occurrence of a Collection Agent Replacement
Event to any or all Lock-Box Banks that the Agent is exercising its rights under
the Lock-Box Letters and to take all actions permitted under the Lock-Box
Letters. The Seller agrees to take any action requested by the Agent to
facilitate the foregoing. After the Agent takes any such action under the
Lock-Box Letters, the Seller shall immediately deliver to the Agent any
Collections received by the Seller. If the Agent takes control of any Lock-Box
Account, the Agent shall distribute Collections it receives in accordance
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herewith and shall deliver to the Collection Agent, for distribution under
Section 3.2, all other amounts it receives from such Lock-Box Account.
SECTION 3.5. ENFORCEMENT RIGHTS. (a) The Agent may at any time after
the occurrence of a Collection Agent Replacement Event direct the Obligors and
the Lock-Box Banks to make all payments on the Sold Receivables directly to the
Agent or its designee. The Agent may, and the Seller shall at the Agent's
request, withhold the identity of the Purchasers from the Obligors and Lock-Box
Banks. Upon the Agent's request after the occurrence of a Collection Agent
Replacement Event, the Seller (at the Seller's expense) shall (i) give notice to
each Obligor of the Agent's ownership of the Sold Interest and direct that
payments on Sold Receivables be made directly to the Agent or its designee, (ii)
assemble for the Agent all Records and collateral security for the Sold
Receivables and the Related Security and transfer to the Agent (or its
designee), or (to the extent permitted by applicable law and contract) license
to the Agent (or its designee) the use of, all software useful to collect the
Sold Receivables and (iii) segregate in a manner acceptable to the Agent all
Collections the Seller receives and, promptly upon receipt, remit such
Collections in the form received, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(b) After the occurrence of a Collection Agent Replacement Event, the
Seller hereby irrevocably appoints the Agent as its attorney-in-fact coupled
with an interest exclusively for the purposes described in clauses (i) and (ii)
below, with full power of substitution and with full authority in the place of
the Seller, to take any and all steps deemed desirable by the Agent, in the name
and on behalf of the Seller to (i) collect any amounts due under any Sold
Receivable, including endorsing the name of the Seller on checks and other
instruments representing Collections and enforcing such Sold Receivables and the
Related Security, and (ii) exercise any and all of the Seller's rights and
remedies under the Purchase Agreement and the RPA Limited Guaranty. The Agent's
powers under this Section 3.5(b) shall not subject the Agent to any liability if
any action taken by it proves to be inadequate or invalid, nor shall such powers
confer any obligation whatsoever upon the Agent.
(c) Except as otherwise expressly provided herein or in any other
Transaction Document to which it is a party, none of the Agent, any Purchaser
Agent or any Purchaser shall have any obligation to take or consent to any
action to realize upon any Sold Receivable or Related Security or to enforce any
rights or remedies related thereto.
SECTION 3.6. COLLECTION AGENT FEE. On or before the twentieth day of
each calendar month, the Seller shall pay to the Collection Agent a fee for the
immediately preceding calendar month as compensation for its services (the
"COLLECTION AGENT FEE") equal to (a) at all times the Parent or an Affiliate of
any Quebecor Entity is the Collection Agent, such consideration as is acceptable
to it, the receipt and sufficiency of which is hereby acknowledged, and (b) at
all times any other Person is the Collection Agent, a reasonable amount agreed
upon by the Agent and the new Collection Agent on an arm's-length basis
reflecting rates and terms prevailing in the market at such time. The Collection
Agent may apply to payment of the Collection Agent Fee only the portion of the
Collections in excess of the Sold Interest plus Collections that fund
Reinvestment Purchases. The Agent may, with the consent of the Instructing
Group, pay the Collection Agent Fee to the Collection Agent from the Sold
Interest in Collections. The Seller shall be obligated to reimburse any such
payment.
SECTION 3.7. RESPONSIBILITIES OF THE SELLER. The Seller shall, or shall
cause the Originator to, pay when due all Taxes payable in connection with the
Receivables and the Related Security or their creation or satisfaction. The
Seller shall, and shall cause the Originator to, perform all of its obligations
under agreements related to the Receivables and the Related Security to the same
extent as if interests in the Receivables and the Related Security had not been
transferred hereunder or, in the case of the Originator, under the Purchase
Agreement. The Agent's, any Purchaser Agent's or any Purchaser's exercise of any
rights hereunder shall not relieve the Seller or the Originator from such
obligations. None of the Agent, any Purchaser Agent or any Purchaser shall have
any obligation to perform any obligation of the Seller or of the Originator or
any other obligation or liability in connection with the Receivables or the
Related Security.
SECTION 3.8. ACTIONS BY SELLER. The Seller shall defend and indemnify
the Agent, each Purchaser Agent and each Purchaser against all costs, expenses,
claims and liabilities for any action taken by the Seller, the Originator or any
other Affiliate of the Seller or of the Originator (whether acting as Collection
Agent or otherwise) related to any Receivable and the Related Security, or
arising out of any alleged failure of compliance of any Sold Receivable or the
Related Security with the provisions of any law or regulation. If any goods
related to a Sold Receivable are repossessed, the Seller agrees to resell, or to
have the Originator or another Affiliate resell, such goods in a commercially
reasonable manner for the account of the Agent and remit, or have remitted, to
the Agent the Purchasers' share in the gross sale proceeds thereof net of any
out-of-pocket expenses and any equity of redemption of the Obligor thereon. Any
such moneys collected by the Seller or the Originator or other Affiliate of the
Seller pursuant to this Section 3.8 shall be segregated and held in trust for
the Agent and remitted to the Agent's
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Account within one Business Day of receipt as part of the Sold Interest in
Collections for application as provided herein.
SECTION 3.9. INDEMNITIES BY THE COLLECTION AGENT. Without limiting any
other rights any Person may have hereunder or under applicable law, the
Collection Agent hereby indemnifies and holds harmless the Agent, each Purchaser
Agent and each Purchaser and their respective officers, directors, agents and
employees (each an "INDEMNIFIED PARTY") from and against any and all damages,
losses, claims, liabilities, penalties, Taxes, costs and expenses (including
attorneys' fees and court costs) (all of the foregoing collectively, the
"INDEMNIFIED LOSSES") at any time imposed on or incurred by any Indemnified
Party arising out of or otherwise relating to:
(i) any representation or warranty made by or on behalf of the
Collection Agent in this Agreement, any other Transaction Document, any Periodic
Report or any other information or report delivered by the Collection Agent
pursuant hereto, which shall have been false or incorrect in any material
respect when made;
(ii) the failure by the Collection Agent to comply with any applicable
law, rule or regulation related to any Receivable or the Related Security;
(iii) any loss of a perfected security interest (or in the priority of
such security interest) as a result of any commingling by the Collection Agent
of funds to which the Agent, any Purchaser Agent or any Purchaser is entitled
hereunder with any other funds; or
(iv) any failure of the Collection Agent to perform its duties or
obligations in accordance with the provisions of this Agreement or any other
Transaction Document to which the Collection Agent is a party; whether arising
by reason of the acts to be performed by the Collection Agent hereunder or
otherwise, excluding only Indemnified Losses to the extent (a) a final judgment
of a court of competent jurisdiction determined that such Indemnified Losses
resulted solely from gross negligence or willful misconduct of the Indemnified
Party seeking indemnification, (b) solely due to the credit risk of the Obligor
and for which reimbursement would constitute recourse to the Collection Agent
for uncollectible Receivables, or (c) such Indemnified Losses include Taxes on,
or measured by, the overall net income of the Agent, any Purchaser Agent or any
Purchaser computed in accordance with the Intended Tax Characterization;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of the Collection Agent or limit the recourse of the Agent, any
Purchaser Agent and each Purchaser to the Collection Agent for any amounts
otherwise specifically provided to be paid by the Collection Agent hereunder.
Article IV
Representations and Warranties
SECTION 4.1. REPRESENTATIONS AND WARRANTIES. The Seller represents and
warrants to the Agent and each Purchaser that:
(a) EXISTENCE AND POWER. Each of the Seller and each Quebecor Entity is
duly organized, validly existing and in good standing under the laws of its
state of organization and has all corporate or other organizational power and
authority and all governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its business is
now conducted, except where failure to obtain such license, authorization,
consent or approval would not have a material adverse effect on (i) its ability
to perform its obligations under, or the enforceability of, any Transaction
Document, (ii) its business or financial condition, (iii) the interests of the
Agent, any Purchaser Agent or any Purchaser under any Transaction Document or
(iv) the enforceability or collectibility of a material portion of the Sold
Receivables.
(b) AUTHORIZATION AND NO CONTRAVENTION. The execution, delivery and
performance by each of the Seller and each Quebecor Entity of each Transaction
Document to which it is a party (i) are within its corporate or other
organizational powers, (ii) have been duly authorized by all necessary corporate
or other organizational action, (iii) do not contravene or constitute a default
under (A) any applicable law, rule or regulation, which contravention or default
may have a material adverse effect upon (I) the financial condition of the
Seller, the Quebecor Entities and the Subsidiaries, taken as a whole or (II) the
collectibility of a material portion of the Sold Receivables, (B) its or any
Subsidiary's charter, by-laws or other constituent documents or (C) any material
agreement, order or other instrument to which it or any Subsidiary is a party or
its property is subject, which contravention or default may have a material
adverse effect upon (I) the financial condition of the Seller, the Quebecor
Entities and the Subsidiaries, taken as a whole or (II) the collectibility of a
material portion of the Sold Receivables and (iv) will not result in any Adverse
Claim on any Sold Receivable, the Related Security or Collection or result in
the acceleration of any indebtedness of the Seller, any Quebecor Entity or any
Subsidiary.
(c) NO CONSENT REQUIRED. Other than the filing of financing statements
no approval, authorization or other action by, or filings with, any Governmental
Authority or other Person is required in connection with the execution, delivery
and performance by the Seller or any Quebecor Entity of any Transaction Document
to which it is a party or any transaction contemplated thereby.
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(d) BINDING EFFECT. Each Transaction Document to which the Seller or
any Quebecor Entity is a party constitutes the legal, valid and binding
obligation of such Person enforceable against that Person in accordance with its
terms, except as limited by bankruptcy, insolvency, or other similar laws of
general application relating to or affecting the enforcement of creditors'
rights generally and subject to general principles of equity.
(e) PERFECTION OF OWNERSHIP INTEREST. Immediately preceding its sale of
Sold Receivables to the Seller, the Originator was the owner of, and effectively
sold, such Sold Receivables to the Seller and, from and after the date occurring
30 days after the first Incremental Purchase, free and clear of any Adverse
Claim. The Seller owns the Sold Receivables, and, from and after the date
occurring 30 days after the first Incremental Purchase, free of any Adverse
Claim other than the interests of the Purchasers (through the Agent) therein
that are created hereby, and each Purchaser shall at all times have a valid
undivided percentage ownership interest, which shall, upon filing the UCC
financing statements referred to in Section 7.1(b), be a perfected security
interest for purposes of Article 9 of the applicable Uniform Commercial Code, in
the Sold Receivables and Collections to the extent of its Purchase Interest then
in effect.
(f) ACCURACY OF INFORMATION. All information furnished by the Seller,
any Quebecor Entity or any Affiliate of any such Person to the Agent, any
Purchaser Agent or any Purchaser in connection with any Transaction Document, or
any transaction contemplated thereby, is true and accurate in all material
respects (and is not incomplete by omitting any information necessary to prevent
such information from being materially misleading).
(g) NO ACTIONS, SUITS. There are no actions, suits or other proceedings
(including matters relating to environmental liability) pending or threatened
against or affecting the Seller, any Quebecor Entity or any Subsidiary, or any
of their respective properties, that (i) if adversely determined (individually
or in the aggregate), may have a material adverse effect on the financial
condition of the Seller, the Quebecor Entities and the Subsidiaries, taken as a
whole or on the collectibility of a material portion of the Sold Receivables or
(ii) involve any Transaction Document or any transaction contemplated thereby.
None of the Seller, any Quebecor Entity or any Subsidiary is in default of any
contractual obligation or in violation of any order, rule or regulation of any
Governmental Authority, which default or violation may have a material adverse
effect upon (i) the financial condition of the Seller, the Quebecor Entities and
the Subsidiaries, taken as a whole or (ii) the collectibility of a material
portion of the Sold Receivables.
(h) NO MATERIAL ADVERSE CHANGE. Since September 28, 1999, there has
been no material adverse change in the collectibility of a material portion of
the Sold Receivables or the Seller's, the Quebecor Entity's or the
Subsidiaries', taken as a whole (i) financial condition, business, operations or
prospects or (ii) ability to perform its obligations under any Transaction
Document.
(i) ACCURACY OF EXHIBITS; LOCK-BOX ARRANGEMENTS. All information on
Exhibits D-F (listing offices and names of the Seller and the Originator and
where they maintain Records; the Subsidiaries; and Lock Boxes) is true and
complete in all material respects, subject to any changes permitted by, and
notified to the Agent in accordance with, Article V. The Seller has delivered a
copy of all Lock-Box Agreements to the Agent. The Seller has not granted any
interest in any Lock-Box or Lock-Box Account to any Person other than the Agent
and, upon delivery to a Lock-Box Bank of the related Lock-Box Letter, the Agent
will have exclusive ownership and control of the Lock-Box Account at such
Lock-Box Bank.
(j) SALES BY THE ORIGINATOR. Each sale by the Originator to the Seller
of an interest in Receivables and their Collections has been made in accordance
with the terms of the Purchase Agreement, including the payment by the Seller to
the Originator of the purchase price described in the Purchase Agreement. Each
such sale has been made for "REASONABLY EQUIVALENT VALUE" (as such term is used
in Section 548 of the Bankruptcy Code) and not for or on account of "ANTECEDENT
DEBT" (as such term is used in Section 547 of the Bankruptcy Code) owed by the
Originator to the Seller.
(k) YEAR 2000 PROBLEM. Each of the Seller and each Quebecor Entity has
reviewed the areas within its business and operations which could be adversely
affected by, and have developed or are developing a program to address on a
timely basis, the "YEAR 2000 PROBLEM" (that is, the risk that computer
applications used by such Person and its Subsidiaries may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date on or after December 31, 1999). Based on such program, such Person
believes that the "YEAR 2000 PROBLEM" will not have a material adverse effect on
such Person.
Article V
Covenants
SECTION 5.1. COVENANTS OF THE SELLER. The Seller hereby covenants and
agrees to comply with the following covenants and agreements, unless the Agent
(with the consent of the Instructing Group) shall otherwise consent:
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(a) FINANCIAL REPORTING. The Seller will, and each Quebecor Entity and
each Subsidiary will, maintain a system of accounting established and
administered in accordance with GAAP and will furnish to the Agent, each
Purchaser Agent and each Purchaser:
(i) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 90 days after the end of each fiscal year of Quebecor Printing Inc.,
commencing with the fiscal year ending December 31, 1999:
(a) the consolidated balance sheet of Quebecor Printing Inc. as the end
of such fiscal year and the related consolidated statement of income, retained
earnings and cash flows for such fiscal year, setting forth in comparative form
the figures as at the end of and for the previous fiscal year, and
(b) an audit report of KPMG, or any one of the five (5) largest firms
of accountants nationally recognized in the United States of America or in
Canada, as the case may be, which report shall include an opinion of such
auditors which opinion shall not be qualified and shall state that such
financial statements were prepared in accordance with GAAP and that the audit by
such auditors in connection with such financial statements has been made in
accordance with generally accepted auditing standards,
(ii) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in any
event within 60 days after the close of each of the first three quarterly
accounting periods in each fiscal year of Quebecor Printing Inc., commencing
with the quarterly period ending September 25, 1999, the consolidated balance
sheet of Quebecor Printing Inc. and the related consolidated statements of
income, retained earnings and cash flows for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, setting forth in each case in comparative form the figures for the
corresponding periods of the previous fiscal year, subject to normal year-end
auditing adjustments; and
(iii) OFFICER'S CERTIFICATE. Each time financial statements are
furnished pursuant to clause (i) or (ii) of this Section 5.1(a), a compliance
certificate (in substantially the form of Exhibit H) signed by a Designated
Financial Officer, dated the date of such financial statements;
(iv) PUBLIC REPORTS. Promptly upon becoming available, a copy of each
report or proxy statement filed by Quebecor Printing Inc. with the Securities
Exchange Commission; and
(v) OTHER INFORMATION. With reasonable promptness, such other
information (including non-financial information) as may reasonably be requested
by the Agent, any Purchaser Agent or any Purchaser (with a copy of such request
to the Agent).
(b) NOTICES. Promptly upon becoming aware of any of the following the
Seller will notify the Agent and each Purchaser Agent and provide a description
of:
(i) POTENTIAL TERMINATION EVENTS. The occurrence of any Potential
Termination Event;
(ii) REPRESENTATIONS AND WARRANTIES. The failure of any representation
or warranty herein to be true (when made) in any material respect;
(iii) DOWNGRADING. The downgrading, withdrawal or suspension of any
rating by any rating agency of any indebtedness of Quebecor Printing Inc.;
(iv) LITIGATION. The institution of any litigation, arbitration
proceeding or governmental proceeding reasonably likely to have a material
adverse effect on the financial condition of the Seller, the Quebecor Entities
and the Subsidiaries, taken as a whole or on the collectibility of a material
portion of the Sold Receivables; or
(v) CHANGES IN BUSINESS. Any change in, or proposed change in, the
character of any Quebecor Entity's business that could impair the collectibility
or quality of a material portion of the Sold Receivables. If the Agent or any
Purchaser Agent receives such a notice, the Agent or such Purchaser Agent shall
promptly give notice thereof to each Purchaser and, until each Conduit Purchaser
has no Investment after the Termination Date, to each CP Dealer and each Rating
Agency.
(c) CONDUCT OF BUSINESS. The Seller will perform, and will cause each
Quebecor Entity and Subsidiary to perform, all actions necessary to remain duly
organized, validly existing and in good standing in its jurisdiction of
incorporation or organization and to maintain all requisite authority to conduct
its business in each jurisdiction in which it conducts business except where the
failure to do so would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the financial condition of the
Seller, the Quebecor Entities and any Subsidiary, taken as a whole or on the
collectibility of a material portion of the Sold Receivables.
(d) COMPLIANCE WITH LAWS. The Seller will comply, and will cause each
Quebecor Entity and Subsidiary to comply, with all laws, regulations, judgments
and other directions or orders imposed by any Governmental Authority to which
such Person or any Receivable, any Related Security or Collection may be subject
except where the failure to do so would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the financial
condition of the Seller, the Quebecor Entities and any Subsidiary, taken as a
whole or on the collectibility of a material portion of the Sold Receivables.
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(e) FURNISHING INFORMATION AND INSPECTION OF RECORDS. The Seller will
furnish to the Agent, each Purchaser Agent and the Purchasers such information
concerning the Receivables and the Related Security as the Agent, any Purchaser
Agent or a Purchaser may reasonably request. The Seller will, and will cause the
Originator to, permit, at any time during regular business hours upon reasonable
advance written notice, the Agent, any Purchaser Agent or any Purchaser (or any
representatives thereof) (i) to examine and make copies of all Records, (ii) to
visit the offices and properties of the Seller for the purpose of examining the
Records and (iii) to discuss matters relating hereto with any of the Seller's or
the Originator's officers, directors, employees or independent public
accountants having knowledge of such matters. Once a year, the Agent may (at the
expense of the Seller which, prior to the occurrence of a Termination Event,
shall not exceed $15,000 per year) have an independent public accounting firm
conduct an audit of the Records or make test verifications of the Receivables
and Collections. Once a year, each Purchaser Agent may (at the expense of the
Seller which, prior to occurrence of a Termination Event, shall not exceed
$5,000 per year) have an independent public accounting firm conduct an audit of
the Records or make test verifications of the Receivables and Collections.
(f) KEEPING RECORDS. (i) The Seller will, and will cause the Originator
to, have and maintain (A) administrative and operating procedures (including an
ability to recreate Records if originals are destroyed), (B) adequate
facilities, personnel and equipment and (C) all Records and other information
necessary or advisable for collecting the Sold Receivables (including Records
adequate to permit the timely identification of each new Sold Receivable and all
Collections of, and adjustments to, each existing Receivable). The Seller will
give the Agent prior notice of any material change in such administrative and
operating procedures.
(ii) The Seller will, (A) at all times from and after the date hereof,
use its best efforts to identify the Agent's and the Purchasers' interest in the
Sold Receivables and the Collections on its computer and master data processing
books and records and (B) upon the request of the Agent in the case of Sold
Receivables constituting chattel paper, so xxxx each contract relating to a Sold
Receivable and deliver to the Agent all such contracts (including all multiple
originals of such contracts), with any appropriate endorsement or assignment, or
segregate (from all other receivables then owned or being serviced by the
Seller) the Sold Receivables and all contracts relating to each Sold Receivable
and hold in trust and safely keep such contracts so legended in separate filing
cabinets or other suitable containers at such locations as the Agent may
specify.
(g) PERFECTION. (i) The Seller will, and will cause the Originator to,
at its expense, promptly execute and deliver all instruments and documents and
take all action necessary or requested by the Agent (including the execution and
filing of financing or continuation statements, amendments thereto or
assignments thereof) to enable the Agent, for the benefit of the Purchasers, to
exercise and enforce all its rights hereunder and to vest and maintain vested in
the Agent, for the benefit of the Purchasers, a valid, and from and after the
date occurring 30 days after the first Incremental Purchase hereunder, a first
priority perfected security interest in the Sold Receivables, the Collections,
the Purchase Agreement, the Lock-Box Accounts and proceeds thereof free, and
clear of any Adverse Claim (and a perfected ownership interest in the Sold
Receivables and Collections to the extent of the Sold Interest). The Agent will
be permitted to sign and file any continuation statements, amendments thereto
and assignments thereof without the Seller's signature.
(ii) The Seller will, and will cause the Originator to, only change its
name, identity or corporate structure or relocate its chief executive office or
the Records following the delivery to the Agent of all financing statements,
instruments and other documents (including direction letters) requested by the
Agent.
(iii) Each of the Seller and the Originator will at all times maintain
its chief executive offices within a jurisdiction in the USA in which Article 9
of the UCC is in effect. If the Seller or the Originator moves its chief
executive office to a location that imposes Taxes, fees or other charges to
perfect the Agent's and the Purchasers' interests hereunder or the Seller's
interests under the Purchase Agreement, the Seller will pay all such amounts and
any other costs and expenses incurred in order to maintain the enforceability of
the Transaction Documents, the Sold Interest and the interests of the Agent, the
Purchaser Agents and the Purchasers in the Sold Receivables, the Related
Security, Collections, Purchase Agreement and Lock-Box Accounts.
(h) PERFORMANCE OF DUTIES. The Seller will perform, and will cause each
Quebecor Entity and Subsidiary and the Collection Agent (if an Affiliate) to
perform, its respective duties or obligations in accordance with the provisions
of each of the Transaction Documents. The Seller (at its expense) will, and will
cause each Quebecor Entity to, (i) fully and timely perform in all material
respects all agreements required to be observed by it in connection with each
Sold Receivable, (ii) comply in all material respects with the Credit and
Collection Policy, and (iii) refrain from any action that may impair the rights
of the Agent, the Purchaser Agents or the Purchasers in the Sold Receivables,
the Related Security, Collections, Purchase Agreement or Lock-Box Accounts.
(i) PAYMENTS ON RECEIVABLES, ACCOUNTS. The Seller will, and will cause
the Originator to, at all times instruct all Obligors to deliver payments on the
Sold Receivables to a Lock-Box Account. If any such payments or
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other Collections are received by the Seller or the Originator, it shall hold
such payments in trust for the benefit of the Agent, the Purchaser Agents and
the Purchasers and promptly (but in any event within two Business Days after the
Seller or any Originator becomes aware of such receipt) remit such funds into a
Lock-Box Account. The Seller will cause each Lock-Box Bank to comply with the
terms of each applicable Lock-Box Letter. The Seller will not permit the funds
of any Affiliate (other than payments on Receivables) to be deposited into any
Lock-Box Account. If such funds are nevertheless deposited into any Lock-Box
Account, the Seller will promptly identify such funds for segregation. The
Seller will not, and will not permit any Collection Agent or other Person to,
commingle Collections or other funds to which the Agent or any Purchaser is
entitled with any other funds other than collections on Receivables. The Seller
shall only add, and shall only permit the Originator to add, a Lock-Box Bank,
Lock-Box, or Lock-Box Account to those listed on Exhibit F if the Agent has
received notice of such addition, a copy of any new Lock-Box Agreement and an
executed and acknowledged copy of a Lock-Box Letter substantially in the form of
Exhibit G (with such changes as are acceptable to the Agent) from any new
Lock-Box Bank. The Seller shall only terminate a Lock-Box Bank or Lock-Box, or
close a Lock-Box Account, upon 30 days (or such fewer days as consented to by
the Agent) advance notice to the Agent.
(j) SALES AND ADVERSE CLAIMS RELATING TO RECEIVABLES. Except as
otherwise provided herein, the Seller will not, and will not permit the
Originator to, (by operation of law or otherwise) dispose of or otherwise
transfer, or create or suffer to exist any Adverse Claim upon, any Sold
Receivable or any proceeds thereof.
(k) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise
permitted in Section 3.2(b) and then subject to Section 1.5, the Seller will
not, and will not permit the Originator to, extend, amend, rescind or cancel any
Sold Receivable.
(l) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. The Seller will
not make any material change in the character of its business and will not, and
will not permit the Originator to, make any material change to the Credit and
Collection Policy without the prior written approval of the Agent and the
Instructing Group.
Article VI
Indemnification
SECTION 6.1. INDEMNITIES BY THE SELLER. Without limiting any other
rights any Person may have hereunder or under applicable law, the Seller hereby
indemnifies and holds harmless, on an after-Tax basis, the Agent, each Purchaser
Agent and each Purchaser and their respective officers, directors, agents and
employees (each an "INDEMNIFIED PARTY") from and against any and all damages,
losses, claims, liabilities, penalties, Taxes, costs and expenses (including
attorneys' fees and court costs) (all of the foregoing collectively, the
"INDEMNIFIED LOSSES") at any time imposed on or incurred by any Indemnified
Party arising out of or otherwise relating to any Transaction Document, the
transactions contemplated thereby or any action taken or omitted by any of the
Indemnified Parties (including any action taken by the Agent as attorney-in-fact
for the Seller pursuant to Section 3.5(b)), whether arising by reason of the
acts to be performed by the Seller hereunder or otherwise, excluding only
Indemnified Losses to the extent (a) a final judgment of a court of competent
jurisdiction holds such Indemnified Losses resulted solely from gross negligence
or willful misconduct of the Indemnified Party seeking indemnification, (b)
solely due to the credit risk of the Obligor and for which reimbursement would
constitute recourse to the Seller or the Collection Agent for uncollectible
Receivables or (c) such Indemnified Losses include Taxes on, or measured by, the
overall net income of the Agent, any Purchaser Agent or any Purchaser computed
in accordance with the Intended Tax Characterization. Without limiting the
foregoing indemnification, but subject to the limitations set forth in clauses
(a), (b) and (c) of the previous sentence, the Seller shall indemnify each
Indemnified Party for Indemnified Losses relating to or resulting from:
(i) any representation or warranty made by the Seller, any Quebecor
Entity or the Collection Agent (or any employee or agent of the Seller, any
Quebecor Entity or the Collection Agent) under or in connection with this
Agreement, any Periodic Report or any other information or report delivered by
the Seller, any Quebecor Entity or the Collection Agent pursuant hereto, which
shall have been false or incorrect in any material respect when made or deemed
made;
(ii) the failure by the Seller, any Quebecor Entity, or the Collection
Agent to comply with any applicable law, rule or regulation related to any Sold
Receivable, or the nonconformity of any Sold Receivable with any such applicable
law, rule or regulation;
(iii) the failure of the Seller to vest and maintain vested in the
Agent, for the benefit of the Purchasers, a perfected ownership or security
interest in the Sold Interest and the property conveyed pursuant to Section
1.1(e) and Section 1.8, free and clear of any Adverse Claim;
(iv) any commingling of funds to which the Agent, any Purchaser Agent
or any Purchaser is entitled hereunder with any other funds;
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(v) any failure of a Lock-Box Bank to comply with the terms of the
applicable Lock-Box Letter;
(vi) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Sold Receivable,
or any other claim resulting from the sale or lease of goods or the rendering of
services related to such Sold Receivable or the furnishing or failure to furnish
any such goods or services or other similar claim or defense not arising from
the financial inability of any Obligor to pay undisputed indebtedness;
(vii) any failure of the Seller or any Quebecor Entity, or any
Affiliate of any thereof, to perform its duties or obligations in accordance
with the provisions of this Agreement or any other Transaction Document to which
such Person is a party (as a Collection Agent or otherwise);
(viii) any action taken by the Agent as attorney-in-fact for the Seller
pursuant to Section 3.5(b);
(ix) any environmental liability claim, products liability claim or
personal injury or property damage suit or other similar or related claim or
action of whatever sort, arising out of or in connection with any Sold
Receivable or any other suit, claim or action of whatever sort relating to any
of the Transaction Documents; or
(x) litigation and related costs of collection relating to any
inability to enforce any judgment rendered in the United States against any
Obligor of any Sold Receivable in such Obligor's country of domicile in respect
of any Receivable without reexamination or relitigation of the matters
adjudicated upon, or any inability to obtain any judgment in or utilize the
court or other adjudication system of, any foreign jurisdiction in which such an
Obligor may be located, except, in each case, to the extent the applicable Sold
Receivable is uncollectible on account of the insolvency or bankruptcy of such
Obligor or its financial inability to pay.
SECTION 6.2. INCREASED COST AND REDUCED RETURN. If the adoption after
the date hereof of any applicable law, rule or regulation, or any change therein
after the date hereof, or any change in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Funding Source, the Agent, any
Purchaser Agent or any Purchaser (collectively, the "FUNDING PARTIES") with any
request or directive (whether or not having the force of law) after the date
hereof of any such Governmental Authority (a "REGULATORY CHANGE") (a) subjects
any Funding Party to any charge or withholding on or in connection with a
Funding Agreement or this Agreement (collectively, the "FUNDING DOCUMENTS") or
any Receivable, (b) changes the basis of taxation of payments to any of the
Funding Parties of any amounts payable under any of the Funding Documents
(except for changes in the rate of Tax on the overall net income of such Funding
Party), (c) imposes, modifies or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or any credit extended by, any of the
Funding Parties, (d) has the effect of reducing the rate of return on such
Funding Party's capital to a level below that which such Funding Party could
have achieved but for such adoption, change or compliance (taking into
consideration such Funding Party's policies concerning capital adequacy) or (e)
imposes any other condition, and the result of any of the foregoing is (x) to
impose a cost on, or increase the cost to, any Funding Party of its commitment
under any Funding Document or of purchasing, maintaining or funding any interest
acquired under any Funding Document, (y) to reduce the amount of any sum
received or receivable by, or to reduce the rate of return of, any Funding Party
under any Funding Document or (z) to require any payment calculated by reference
to the amount of interests held or amounts received by it hereunder, then, upon
demand by the Agent, the Seller shall pay to the Agent for the account of the
Person such additional amounts as will compensate the Agent or such Purchaser
(or, in the case of a Conduit Purchaser, will enable such Conduit Purchaser to
compensate any Funding Source) for such increased cost or reduction. Without
limiting the foregoing, the Seller acknowledges and agrees that the fees and
other amounts payable by the Seller to the Purchasers, the Purchaser Agents, and
the Agent have been negotiated on the basis that the unused portion of each
Committed Purchaser's Commitment is treated as a "SHORT TERM COMMITMENT" for
which there is no regulatory capital requirement and the Commitment of each
Enhancement Bank carries the same capital requirement as a funded loan in the
same amount. If any Committed Purchaser determines it is required to maintain
capital against its Unused Commitment, or if any Enhancement Bank is required to
maintain capital on its Unused Commitment (or any Purchaser is required to
maintain capital against its Investment) in excess of the amount of capital it
would be required to maintain against a funded loan in the same amount, such
Purchaser shall be entitled to compensation under this Section 6.2.
SECTION 6.3. OTHER COSTS AND EXPENSES. The Seller shall pay to the
Agent (with respect to amounts owed to it) or the applicable Purchaser Agent
(with respect to amounts owed to it or any Purchaser in its Purchaser Group) on
demand all reasonable costs and expenses in connection with (a) the preparation,
execution, delivery and administration (including amendments of any provision)
of the Transaction Documents, (b) the sale of the Sold Interest, (c) the
perfection of the Agent's rights in the Sold Receivables and Collections, (d)
the enforcement by the Agent, any Purchaser Agent or the Purchasers of the
obligations of the Seller under the Transaction Documents or of any Obligor
under a Sold Receivable and (e) the maintenance by the Agent of the Lock-Boxes
and Lock-Box
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Accounts, including fees, costs and expenses of legal counsel for the Agent and
each Purchaser Agent relating to any of the foregoing or to advising the Agent,
any Purchaser Agent, and any Funding Source about its rights and remedies under
any Transaction Document or any related Funding Agreement and all reasonable
costs and expenses (including counsel fees and expenses) of the Agent, each
Purchaser Agent, each Purchaser and each Funding Source in connection with the
enforcement of the Transaction Documents or any Funding Agreement and in
connection with the administration of the Transaction Documents following a
Termination Event. The Seller shall reimburse the Agent and each Conduit
Purchaser for the cost of the Agent's or such Conduit Purchaser auditors (which
may be employees of such Person) auditing the books, records and procedures of
the Seller. The Seller shall reimburse each Conduit Purchaser for any amounts
such Conduit Purchaser must pay to any Funding Source pursuant to any Funding
Agreement on account of any Tax. The Seller shall reimburse such Conduit
Purchaser on demand for all other costs and expenses incurred by such Conduit
Purchaser or any shareholder of such Conduit Purchaser in connection with the
Transaction Documents or the transactions contemplated thereby, including a PRO
RATA share of the cost of auditing such Conduit Purchaser's books by certified
public accountants, the cost of the Ratings and the fees and reasonable
out-of-pocket expenses of counsel of the Agent, each Conduit Purchaser or any
shareholder, or administrator, of each Conduit Purchaser for advice relating to
such Conduit Purchaser operation.
SECTION 6.4. WITHHOLDING TAXES. (a) All payments made by the Seller
hereunder shall be made without withholding for or on account of any present or
future taxes (other than overall net income taxes on the recipient). If any such
withholding is so required, the Seller shall make the withholding, pay the
amount withheld to the appropriate authority before penalties attach thereto or
interest accrues thereon and pay such additional amount as may be necessary to
ensure that the net amount actually received by each Purchaser, each Purchaser
Agent and the Agent free and clear of such taxes (including such taxes on such
additional amount) is equal to the amount that Purchaser or the Agent (as the
case may be) would have received had such withholding not been made. If the
Agent, any Purchaser Agent or any Purchaser pays any such taxes, penalties or
interest the Seller shall reimburse the Agent, such Purchaser Agent or such
Purchaser for that payment on demand. If the Seller pays any such taxes,
penalties or interest, it shall deliver official tax receipts evidencing that
payment or certified copies thereof to the Purchaser, such Purchaser Agent or
Agent on whose account such withholding was made (with a copy to the Agent if
not the recipient of the original) on or before the thirtieth day after payment.
(b) Before the first date on which any amount is payable hereunder for
the account of any Purchaser not incorporated under the laws of the USA such
Purchaser shall deliver to the Seller and the Agent each two (2) duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or
successor applicable form) certifying that such Purchaser is entitled to receive
payments hereunder without deduction or withholding of any United States federal
income taxes. Each such Purchaser shall replace or update such forms when
necessary to maintain any applicable exemption and as requested by the Agent or
the Seller.
SECTION 6.5. PAYMENTS AND ALLOCATIONS. If any Person seeks compensation
pursuant to this Article VI, such Person shall deliver to the Seller and its
Purchaser Agent a certificate setting forth the amount due to such Person, a
description of the circumstance giving rise thereto and the basis of the
calculations of such amount, which certificate shall be conclusive as to amount
absent manifest error. The Seller shall pay to the Agent amounts owed to it or
to the applicable Purchaser Agent amounts owed to such Purchaser Agent or owed
to any Purchaser in its Purchase Group, for the account of such Person the
amount shown as due on any such certificate within 10 Business Days after
receipt of the notice.
Article VII
Conditions Precedent
SECTION 7.1. CONDITIONS TO CLOSING. This Agreement shall become
effective on the first date all conditions in this Section 7.1 are satisfied. On
or before such date, the Seller shall deliver to the Agent the following
documents in form, substance and quantity acceptable to the Agent:
(a) A certificate of the Secretary of each of the Seller and each
Quebecor Entity certifying (i) the resolutions of the Seller's and each Quebecor
Entity's board of directors approving each Transaction Document to which it is a
party, (ii) the name, signature, and authority of each officer who executes on
the Seller's or any Quebecor Entity's behalf a Transaction Document (on which
certificate the Agent and each Purchaser may conclusively rely until a revised
certificate is received), (iii) the Seller's and each Quebecor Entity's
certificate or articles of incorporation certified by the Secretary of State of
its state of incorporation, (iv) a copy of the Seller's and each Quebecor
Entity's by-laws and (v) good standing certificates issued by the Secretaries of
State of each jurisdiction where the Seller or any Quebecor Entity is organized.
(b) All instruments and other documents required, or deemed desirable
by the Agent, to perfect the Agent's first priority interest in the Sold
Receivables, Collections, the Purchase Agreement and the Lock-Box Accounts in
all appropriate jurisdictions.
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(c) UCC search reports from all jurisdictions the Agent requests.
(d) Executed copies of (i) all consents and authorizations necessary in
connection with the Transaction Documents (ii) all Lock-Box Letters, (iii) a
Periodic Report covering the month ended November __, 1999 and (iv) each
Transaction Document.
(e) Favorable opinions of counsel to the Seller and each Quebecor
Entity covering such matters as any Purchaser Agent or the Agent may request.
(f) Such other approvals, opinions or documents as the Agent or any
Purchaser Agent may request.
(g) All legal matters related to the Purchase are satisfactory to the
Purchasers.
SECTION 7.2. CONDITIONS TO EACH PURCHASE. The obligation of each
Committed Purchaser to make any Purchase, and the right of the Seller to request
or accept any Purchase, are subject to the conditions (and each Purchase shall
evidence the Seller's representation and warranty that clauses (a)-(e) of this
Section 7.2 have been satisfied) that on the date of such Purchase before and
after giving effect to the Purchase:
(a) no Potential Termination Event (or in the case of a Reinvestment
Purchase, a Termination Event) shall then exist or shall occur as a result of
the Purchase;
(b) the Termination Date has not occurred;
(c) after giving effect to the application of the proceeds of such
Purchase, (x) the outstanding Matured Aggregate Investment would not exceed the
Aggregate Commitment and (y) the outstanding Aggregate Investment would not
exceed the Purchase Limit;
(d) the representations and warranties in Section 4.1 are true and
correct in all material respects on and as of such date (except to the extent
such representations and warranties relate solely to an earlier date and then
are true and correct as of such earlier date);
(e) the Seller has identified on its books and records the Sold
Receivables and after giving effect to the application of the proceeds of such
Purchase, the Aggregate Investment plus the Aggregate Reserve does not exceed
the Eligible Receivable Balance; and
(f) each of the Seller and each Quebecor Entity is in full compliance
with the Transaction Documents (including all covenants and agreements in
Article V). Nothing in this Section 7.2 limits the obligations of each Related
Bank Purchaser to its related Conduit Purchaser (including any applicable
Transfer Agreement).
Article VIII
The Agent
SECTION 8.1. APPOINTMENT AND AUTHORIZATION. (a) Each Purchaser and each
Purchaser Agent hereby irrevocably designates and appoints ABN AMRO Bank N.V. as
the "AGENT" under the Transaction Documents and authorizes the Agent to take
such actions and to exercise such powers as are delegated to the Agent thereby
and to exercise such other powers as are reasonably incidental thereto. The
Agent shall hold, in its name, for the benefit of each Purchaser, the Purchase
Interest of the Purchaser. The Agent shall not have any duties other than those
expressly set forth in the Transaction Documents or any fiduciary relationship
with any Purchaser, and no implied obligations or liabilities shall be read into
any Transaction Document, or otherwise exist, against the Agent. The Agent does
not assume, nor shall it be deemed to have assumed, any obligation to, or
relationship of trust or agency with, the Seller. Notwithstanding any provision
of this Agreement or any other Transaction Document, in no event shall the Agent
ever be required to take any action which exposes the Agent to personal
liability or which is contrary to the provision of any Transaction Document or
applicable law.
(b) Each Purchaser hereby irrevocably designates and appoints the
respective institution identified on the applicable signature page hereto or in
the related Transfer Supplement (as applicable) as its Purchaser Agent
hereunder, and each authorizes such Purchaser Agent to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to such Purchaser Agent by the
terms of this Agreement, if any, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Purchaser Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or other Purchaser Agent or the Agent, and no
implied obligations or liabilities on the part of such Purchaser Agent shall be
read into this Agreement or otherwise exist against such Purchaser Agent. No
Purchaser Agent assumes, nor shall it be deemed to have assumed, any obligation
to, or relationship of trust or agency with, the Seller.
SECTION 8.2. DELEGATION OF DUTIES. The Agent and each Purchaser Agent
may execute any of their respective duties through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Neither the Agent nor any Purchaser Agent shall be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
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SECTION 8.3. EXCULPATORY PROVISIONS. Neither the Agent, any Purchaser
Agent nor any of their respective directors, officers, agents or employees shall
be liable for any action taken or omitted (i) with the consent or at the
direction of the Instructing Group or (ii) in the absence of such Person's gross
negligence or willful misconduct. Neither the Agent nor any Purchaser Agent
shall be responsible to any Purchaser or other Person for (i) any recitals,
representations, warranties or other statements made by the Seller, any Quebecor
Entity or any of their Affiliates, (ii) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any Transaction Document, (iii)
any failure of the Seller, any Quebecor Entity or any of their Affiliates to
perform any obligation or (iv) the satisfaction of any condition specified in
Article VII. Neither the Agent nor any Purchaser Agent shall not have any
obligation to any Purchaser or any Purchaser Agent to ascertain or inquire about
the observance or performance of any agreement contained in any Transaction
Document or to inspect the properties, books or records of the Seller, any
Quebecor Entity or any of their Affiliates.
SECTION 8.4. RELIANCE BY AGENT AND PURCHASER AGENTS. (a) Each Purchaser
Agent and the Agent shall in all cases be entitled to rely, and shall be fully
protected in relying, upon any document, other writing or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person and upon advice and statements of legal counsel (including counsel
to the Seller), independent accountants and other experts selected by the Agent
or such Purchaser Agent. Each Purchaser Agent and the Agent shall in all cases
be fully justified in failing or refusing to take any action under any
Transaction Document unless it shall first receive such advice or concurrence of
the Purchasers, and assurance of its indemnification, as it deems appropriate.
(b) The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the
Instructing Group, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Purchasers, the Agent and Purchaser
Agents.
(c) Each Purchaser Agent shall determine with its Purchaser Group the
number of such Purchasers (each, a "VOTING BLOCK"), which shall be required to
request or direct such Purchaser Agent to take action, or refrain from taking
action, under this Agreement on behalf of such Purchasers. Such Purchaser Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of its appropriate Voting
Block, and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of such Purchaser Agent's Purchasers.
(d) Unless otherwise advised in writing by a Purchaser Agent or by any
Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party
to this Agreement may assume that (i) such Purchaser Agent is acting for the
benefit and on behalf of each of the Purchasers in respect of which such
Purchaser Agent is identified as being the "PURCHASER AGENT" in the definition
of "PURCHASER AGENT" hereto, as well as for the benefit of each assignee or
other transferee from any such Person, and (ii) each action taken by such
Purchaser Agent has been duly authorized and approved by all necessary action on
the part of the Purchasers on whose behalf it is purportedly acting. Each
Purchaser Agent and the Purchasers in its Purchaser Group shall agree amongst
themselves as to the circumstances and procedures for removal and resignation of
such Purchaser Agent.
SECTION 8.5. ASSUMED PAYMENTS. Unless the Agent shall have received
notice from the applicable Purchaser Agent before the date of any Incremental
Purchase that the applicable Purchaser Group will not make available to the
Agent the amount it is scheduled to remit as part of such Incremental Purchase,
the Agent may assume such Purchaser Group has made such amount available to the
Agent when due (an "ASSUMED PAYMENT") and, in reliance upon such assumption, the
Agent may (but shall have no obligation to) make available such amount to the
appropriate Person. If and to the extent that any Purchaser Group shall not have
made its Assumed Payment available to the Agent, such Purchaser Group and the
Seller hereby agrees to pay the Agent forthwith on demand such unpaid portion of
such Assumed Payment up to the amount of funds actually paid by the Agent,
together with interest thereon for each day from the date of such payment by the
Agent until the date the requisite amount is repaid to the Agent, at a rate per
annum equal to the Federal Funds Rate for the first three days such amounts are
past due and thereafter at a rate per annum equal to the Federal Funds Rate plus
2%.
SECTION 8.6. NOTICE OF TERMINATION EVENTS. Neither any Purchaser Agent
nor the Agent shall be deemed to have knowledge or notice of the occurrence of
any Potential Termination Event unless the Agent or such Purchaser Agent has
received notice from any Purchaser or the Seller stating that a Potential
Termination Event has occurred hereunder and describing such Potential
Termination Event. If the Agent receives such a notice, it shall promptly give
notice thereof to each Purchaser Agent whereupon each Purchaser Agent shall
promptly give notice thereof to the members of its Purchaser Group. If a
Purchaser Agent receives such a notice from any Person other than the Agent, it
shall promptly give notice thereof to the Agent and each Purchaser Agent
whereupon each Purchaser Agent shall promptly give notice thereof to the members
of its Purchaser Group. The Agent shall take such action concerning a Potential
Termination Event as may be directed by the Instructing Group (or, if required
for such action, all of the Purchasers), but until the Agent receives such
directions, the Agent may (but shall not be
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obligated to) take such action, or refrain from taking such action, as the Agent
deems advisable and in the best interests of the Purchasers.
SECTION 8.7. NON-RELIANCE ON AGENT AND OTHER PURCHASERS. Each Purchaser
expressly acknowledges that neither the Agent, the Purchaser Agents nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Agent hereafter taken, including any review of the affairs of the Seller or
any Quebecor Entity, shall be deemed to constitute any representation or
warranty by the Agent. Each Purchaser represents and warrants to the Agent and
the Purchaser Agents that, independently and without reliance upon the Agent,
any Purchaser Agent or any other Purchaser and based on such documents and
information as it has deemed appropriate, it has made and will continue to make
its own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Seller,
the Quebecor Entities, and the Receivables and its own decision to enter into
this Agreement and to take, or omit, action under any Transaction Document. The
Agent shall deliver each month to any Purchaser Agent that so requests a copy of
the Periodic Report(s) received covering the preceding calendar month. Except
for items delivered hereunder, the Agent shall not have any duty or
responsibility to provide any Purchaser or Purchaser Agent with any information
concerning the Seller, any Quebecor Entity or any of their Affiliates that comes
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
SECTION 8.8. AGENT AND AFFILIATES. Each of the Purchaser Agents, the
Agent and their respective Affiliates may extend credit to, accept deposits from
and generally engage in any kind of business with the Seller, any Quebecor
Entity or any of their Affiliates and ABN AMRO may exercise or refrain from
exercising its rights and powers as if it were not the Agent. The parties
acknowledge that ABN AMRO acts as agent for Amsterdam and subagent for
Amsterdam's management company in various capacities, as well as providing
credit facilities and other support for Amsterdam not contained in the
Transaction Documents.
SECTION 8.9. INDEMNIFICATION. Each Purchaser Group shall indemnify and
hold harmless the Agent and its officers, directors, employees, representatives
and agents (to the extent not reimbursed by the Seller or any Quebecor Entity
and without limiting the obligation of the Seller or any Quebecor Entity to do
so), ratably in accordance with its Ratable Share from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, settlements,
costs, expenses and disbursements of any kind whatsoever (including in
connection with any investigative or threatened proceeding, whether or not the
Agent or such Person shall be designated a party thereto) that may at any time
be imposed on, incurred by or asserted against the Agent or such Person as a
result of, or related to, any of the transactions contemplated by the
Transaction Documents or the execution, delivery or performance of the
Transaction Documents or any other document furnished in connection therewith
(but excluding any such liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses or disbursements resulting solely from
the gross negligence or willful misconduct of the Agent or such Person as
finally determined by a court of competent jurisdiction).
SECTION 8.10. SUCCESSOR AGENT. The Agent may, upon at least thirty (30)
days notice to the Seller and each Purchaser Agent, resign as Agent. Such
resignation shall not become effective until a successor agent is appointed by
an Instructing Group (with the approval of the Seller) and has accepted such
appointment. Upon such acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall succeed to and become vested with
all the rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Transaction Documents.
After any retiring Agent's resignation hereunder, the provisions of Article VI
and this Article VIII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent.
Article IX
Miscellaneous
SECTION 9.1. TERMINATION. Each Uncommitted Purchaser shall cease to be
a party hereto when the Termination Date has occurred, such Uncommitted
Purchaser holds no Investment and all amounts payable to it hereunder have been
indefeasibly paid in full. This Agreement shall terminate following the
Termination Date when no Investment is held by a Purchaser and all other amounts
payable hereunder have been indefeasibly paid in full, but the rights and
remedies of the Agent, each Purchaser Agent and each Purchaser under Article VI
and Section 8.9 shall survive such termination.
SECTION 9.2. NOTICES. Unless otherwise specified, all notices and other
communications hereunder shall be in writing (including by telecopier or other
facsimile communication or, if agreed by all parties, e-mail), given to the
appropriate Person at its address or telecopy number set forth on the signature
pages hereof or at such other address or telecopy number as such Person may
specify, and effective when received at the address specified by such Person.
Each party hereto, however, authorizes the Agent and each Purchaser Agent to act
on telephone
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notices of Purchases and Discount Rate and Tranche Period selections from any
person the Agent or such Purchaser Agent in good faith believes to be acting on
behalf of the relevant party and, at the Agent's or such Purchaser Agent's
option, to tape record any such telephone conversation. Each party hereto agrees
to deliver promptly a confirmation of each telephone notice given or received by
such party (signed by an authorized officer of such party), but the absence of
such confirmation shall not affect the validity of the telephone notice. The
Agent's or such Purchaser Agent's records of all such conversations shall be
deemed correct and, if the confirmation of a conversation differs in any
material respect from the action taken by the Agent or such Purchaser Agent, the
records of the Agent or such Purchaser Agent shall govern absent manifest error.
The number of days for any advance notice required hereunder may be waived
(orally or in writing) by the Person receiving such notice and, in the case of
notices to the Agent or any Purchaser Agent, the consent of each Person to which
the Agent or such Purchaser Agent is required to forward such notice.
SECTION 9.3. PAYMENTS AND COMPUTATIONS. Notwithstanding anything herein
to the contrary, any amounts to be paid or transferred by the Seller or the
Collection Agent to, or for the benefit of, any Purchaser or any other Person
shall be paid or transferred to the Agent or the appropriate Purchaser Agent
(for the benefit of such Purchaser or other Person). The Agent or the
appropriate Purchaser Agent shall promptly (and, if reasonably practicable, on
the day it receives such amounts) forward each such amount to the Person
entitled thereto and such Person shall apply the amount in accordance herewith.
All amounts to be paid or deposited hereunder shall be paid or transferred on
the day when due in immediately available Dollars (and, if due from the Seller
or Collection Agent, by 1:00 p.m. (Chicago time), with amounts received after
such time being deemed paid on the Business Day following such receipt). The
Seller hereby authorizes the Agent to debit the Seller Account for application
to any amounts owed by the Seller hereunder. The Seller shall, to the extent
permitted by law, pay to the Agent or the appropriate Purchaser Agent upon
demand, for the account of the applicable Person, interest on all amounts not
paid or transferred by the Seller or the Collection Agent when due hereunder at
a rate equal to the Prime Rate plus 2%, calculated from the date any such amount
became due until the date paid in full. Any payment or other transfer of funds
scheduled to be made on a day that is not a Business Day shall be made on the
next Business Day, and any Discount Rate or interest rate accruing on such
amount to be paid or transferred shall continue to accrue to such next Business
Day. All computations of interest, fees, and Discount shall be calculated for
the actual days elapsed based on a 360 day year.
SECTION 9.4. SHARING OF RECOVERIES. Each Purchaser agrees that if it
receives any recovery, through set-off, judicial action or otherwise, on any
amount payable or recoverable hereunder in a greater proportion than should have
been received hereunder or otherwise inconsistent with the provisions hereof,
then the recipient of such recovery shall purchase for cash an interest in
amounts owing to the other Purchasers (as return of Investment or otherwise),
without representation or warranty except for the representation and warranty
that such interest is being sold by each such other Purchaser free and clear of
any Adverse Claim created or granted by such other Purchaser, in the amount
necessary to create proportional participation by the Purchasers in such
recovery (as if such recovery were distributed pursuant to Section 2.3). If all
or any portion of such amount is thereafter recovered from the recipient, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
SECTION 9.5. RIGHT OF SETOFF. During a Termination Event, each
Purchaser is hereby authorized (in addition to any other rights it may have) to
setoff, appropriate and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and any other
indebtedness held or owing by such Purchaser (including by any branches or
agencies of such Purchaser) to, or for the account of, the Seller against
amounts due and owing by the Seller hereunder.
SECTION 9.6. AMENDMENTS. Except as otherwise expressly provided herein,
no amendment or waiver hereof shall be effective unless signed by the Seller and
the Instructing Group. In addition, no amendment of any Transaction Document
shall, without the consent of (a) all the Purchasers, (i) extend the Termination
Date or the date of any payment or transfer of Collections by the Seller to the
Collection Agent or by the Collection Agent to the Agent or any Purchaser Agent,
(ii) reduce the rate or extend the time of payment of Discount for any LIBOR
Tranche or Prime Tranche, (iii) reduce or extend the time of payment of any fee
payable to the Purchasers, (iv) except as provided herein, release, transfer or
modify any Committed Purchaser's Purchase Interest or change any Commitment, (v)
amend the definition of Instructing Group, Termination Event or Section 1.1,
1.2, 1.5, 1.7(a), 2.1, 2.2, 2.3, 7.2 or 9.6, Article VI, Section 7.4 of the
Purchase Agreement, the RPA Limited Guaranty, the RSA Limited Guaranty or any
obligation of any Quebecor Entity thereunder, (vi) consent to the assignment or
transfer by the Seller or the Originator of any interest in the Receivables
other than transfers under the Transaction Documents or permit any Quebecor
Entity to transfer any of its obligations under any Transaction Document except
as expressly contemplated by the terms of the Transaction Documents, or (vii)
amend any defined term relevant to the
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restrictions in clauses (i) through (vi) in a manner which would circumvent the
intention of such restrictions or (b) the Agent and each affected Purchaser
Agent, amend any provision hereof if the effect thereof is to affect the
indemnities to, or the rights or duties of, the Agent or any Purchaser Agent or
to reduce any fee payable for the Agent's or such Purchaser Agent's own account.
Notwithstanding the foregoing, the amount of any fee or other payment due and
payable from the Seller to any Person may be changed or otherwise adjusted
solely with the consent of the Seller and the party to which such payment is
payable. Any amendment hereof shall apply to each Purchaser equally and shall be
binding upon the Seller, the Purchasers, and the Agent and each Purchaser Agent.
If required by the Rating Agencies for any Conduit Purchaser, no material
amendment hereof or assignment, termination, resignation or removal hereunder
shall be effective unless a statement is obtained from the applicable Rating
Agencies that its Rating will not be downgraded, withdrawn or suspended as a
result of such amendment, assignment, termination, resignation or removal.
SECTION 9.7. WAIVERS. No failure or delay of the Agent, any Purchaser
Agent or any Purchaser in exercising any power, right, privilege or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right, privilege or remedy preclude any other or
further exercise thereof or the exercise of any other power, right, privilege or
remedy. Any waiver hereof shall be effective only in the specific instance and
for the specific purpose for which such waiver was given. After any waiver, the
Seller, the Purchasers, the Purchaser Agents and the Agent shall be restored to
their former position and rights and any Potential Termination Event waived
shall be deemed to be cured and not continuing, but no such waiver shall extend
to (or impair any right consequent upon) any subsequent or other Potential
Termination Event. Any additional Discount that has accrued after a Termination
Event before the execution of a waiver thereof, solely as a result of the
occurrence of such Termination Event, may be waived by the Agent or related
Purchaser Agent at the direction of the Purchaser entitled thereto.
SECTION 9.8. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. Except as otherwise provided herein, the Seller may not assign or
transfer any of its rights or delegate any of its duties without the prior
consent of the Agent and the Purchasers.
(b) PARTICIPATIONS. Any Purchaser may sell to one or more Persons (each
a "PARTICIPANT") participating interests in the interests of such Purchaser
hereunder and under the Transfer Agreement. Such Purchaser shall remain solely
responsible for performing its obligations hereunder, and the Seller, the Agent
and the applicable Purchaser Agent shall continue to deal solely and directly
with such Purchaser in connection with such Purchaser's rights and obligations
hereunder and under the Transfer Agreement. Each Participant shall be entitled
to the benefits of Article VI and shall have the right of setoff through its
participation in amounts owing hereunder to the same extent as if it were a
Purchaser hereunder and under the applicable Transfer Agreement, which right of
setoff is subject to such Participant's obligation to share with the Purchasers
as provided in Section 9.4. A Purchaser shall not agree with a Participant to
restrict such Purchaser's right to agree to any amendment hereto or to the
applicable Transfer Agreement, except amendments described in clause (a) of
Section 9.6.
(c) ASSIGNMENTS BY RELATED BANK PURCHASERS. Any Related Bank Purchaser
may assign to one or more Persons ("PURCHASING COMMITTED PURCHASERS"),
acceptable to the applicable Purchaser Agent in its sole discretion and, prior
to the occurrence of a Termination Event, subject to the prior written consent
of the Seller (which consent will not be unreasonably withheld) any portion of
its Commitment as a Related Bank Purchaser hereunder and under the applicable
Transfer Agreement and Purchase Interest pursuant to a supplement hereto and to
the Transfer Agreement (a "TRANSFER SUPPLEMENT") in form satisfactory to the
applicable Purchaser Agent executed by each such Purchasing Committed Purchaser,
such selling Committed Purchaser and the applicable Purchaser Agent. Any such
assignment by a Related Bank Purchaser must be for an amount of at least Ten
Million Dollars. Each Purchasing Committed Purchasers shall pay a fee of Three
Thousand Dollars to the applicable Purchaser Agent. Any partial assignment shall
be an assignment of an identical percentage of such selling Related Bank
Purchaser Investment and its Commitment as a Related Bank Purchaser hereunder
and under any applicable Transfer Agreement. Upon the execution and delivery to
the applicable Purchaser Agent of the Transfer Supplement and payment by the
Purchasing Committed Purchaser to the selling Related Bank Purchaser of the
agreed purchase price, such selling Related Bank Purchaser shall be released
from its obligations hereunder and under the applicable Transfer Agreement to
the extent of such assignment and such Purchasing Committed Purchaser shall for
all purposes be a Related Bank Purchaser party hereto and shall have all the
rights and obligations of a Related Bank Purchaser hereunder to the same extent
as if it were an original party hereto and to the applicable Transfer Agreement
with a Commitment as a Related Bank Purchaser, any Investment and any related
Assigned Settlement described in the Transfer Supplement.
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(d) REPLACEABLE RELATED BANK PURCHASER. If any Related Bank Purchaser
(a "REPLACEABLE PURCHASER") shall (i) petition the Seller for any amounts under
Section 6.2 or (ii) have a short-term debt rating lower than the "A-1" by S&P
and "P-1" by Xxxxx'x (unless such Related Bank Purchaser is also an Enhancement
Bank), the Seller or applicable Conduit Purchaser may designate a replacement
financial institution (a "REPLACEMENT RELATED BANK PURCHASER") acceptable to the
Agent and the applicable Conduit Purchaser, in its sole discretion and, prior to
the occurrence of a Termination Event, subject to the prior written consent of
the Seller (which consent will not be unreasonably withheld) to which such
Replaceable Related Bank Purchaser shall, subject to its receipt of an amount
equal to its Investment, any related Assigned Settlement, and accrued Discount
and fees thereon (plus, from the Seller, any Early Payment Fee that would have
been payable if such transferred Investment had been paid on such date) and all
amounts payable under Section 6.2, promptly assign all of its rights,
obligations and Commitment hereunder and under the applicable Transfer
Agreement, together with all of its Purchase Interest, and any related Assigned
Settlement, to the Replacement Related Bank Purchaser in accordance with Section
9.8(c).
(e) ASSIGNMENT BY CONDUIT PURCHASERS. Each party hereto agrees and
consents (i) to each Conduit Purchaser's assignment, participation, grant of
security interests in or other transfers of any portion of not less than
$25,000,000 of, or any of its beneficial interest in, the Purchase Interest and
the related Assigned Settlement and (ii) to the complete assignment by such
Conduit Purchaser of all of its rights and obligations hereunder to any Person
reasonably acceptable to the Seller and the Agent, and upon such assignment such
Conduit Purchaser shall be released from all obligations and duties hereunder.
Each new Conduit Purchaser shall pay a fee of Three Thousand Dollars to the
Agent. Each Conduit Purchaser shall promptly notify each party hereto of any
such assignment. Upon such an assignment of any portion of a Conduit Purchaser's
Purchase Interest and the related Assigned Settlement and the payment to the
Agent of the fee specified above, the assignee shall have all of the rights of
such Conduit Purchaser hereunder relate to such Purchase Interest and related
Assigned Settlement.
(f) OPINIONS OF COUNSEL. If required by the Agent or any Purchaser
Agent or to maintain the Ratings, each Transfer Supplement must be accompanied
by an opinion of counsel of the assignee as to such matters as the Agent or such
Purchaser Agent may reasonably request.
SECTION 9.9. INTENDED TAX CHARACTERIZATION. It is the intention of the
parties hereto that, for the purposes of all Taxes, the transactions
contemplated hereby shall be treated as a loan by the Purchasers (through the
Agent) to the Seller that is secured by the Sold Receivables (the "INTENDED TAX
CHARACTERIZATION"). The parties hereto agree to report and otherwise to act for
the purposes of all Taxes in a manner consistent with the Intended Tax
Characterization. As provided in Section 5.1(g), the Seller hereby grants to the
Agent, for the ratable benefit of the Purchasers, a security interest in all
Sold Receivables, Related Security and Collections to secure the payment of all
amounts other than Investment owing hereunder and (to the extent of the Sold
Interest) to secure the repayment of all Investment.
SECTION 9.10. CONFIDENTIALITY. The parties hereto agree to hold the
Transaction Documents or any other confidential or proprietary information
received in connection therewith in confidence and agree not to provide any
Person with copies of any Transaction Document or such other confidential or
proprietary information other than to (i) any officers, directors, members,
managers, employees or outside accountants, auditors or attorneys thereof, (ii)
any prospective or actual assignee or participant which (in each case) has
signed a confidentiality agreement in form and substance acceptable to the
Seller, (iii) any rating agency, (iv) any surety, guarantor or credit or
liquidity enhancer to the Agent, any Purchaser Agent or any Purchaser which (in
each case) has signed a confidentiality agreement substantially in the form of
the confidentiality agreement signed by the Agent prior to the date hereof, (v)
any Conduit Purchaser's administrator, management company, referral agents,
issuing agents or depositaries or CP Dealers, and (vi) Governmental Authorities
with appropriate jurisdiction. Notwithstanding the above stated obligations,
PROVIDED that the other parties hereto are given notice of the intended
disclosure or use, the parties hereto will not be liable for disclosure or use
of such information which such Person can establish by tangible evidence: (i)
was required by law, including pursuant to a valid subpoena or other legal
process, (ii) was in such Person's possession or known to such Person prior to
receipt or (iii) is or becomes known to the public through disclosure in a
printed publication (without breach of any of such Person's obligations
hereunder).
SECTION 9.11. AGREEMENT NOT TO PETITION. Each party hereto agrees, for
the benefit of the holders of the privately or publicly placed indebtedness for
borrowed money for each Conduit Purchaser, not, prior to the date which is one
(1) year and one (1) day after the payment in full of all such indebtedness, to
acquiesce, petition or otherwise, directly or indirectly, invoke, or cause such
Conduit Purchaser to invoke, the process of any Governmental Authority for the
purpose of (a) commencing or sustaining a case against such Conduit Purchaser
under any federal or state bankruptcy, insolvency or similar law (including the
Federal Bankruptcy Code), (b) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official for such Conduit
-20-
Purchaser, or any substantial part of its property, or (c) ordering the winding
up or liquidation of the affairs of such Conduit Purchaser.
SECTION 9.12. EXCESS FUNDS. Other than amounts payable under Section
9.4, each Conduit Purchaser shall be required to make payment of the amounts
required to be paid pursuant hereto only if such Conduit Purchaser has Excess
Funds (as defined below). If such Conduit Purchaser does not have Excess Funds,
the excess of the amount due hereunder (other than pursuant to Section 9.4) over
the amount paid shall not constitute a "CLAIM" (as defined in Section 101(5) of
the Federal Bankruptcy Code) against such Conduit Purchaser until such time as
such Conduit Purchaser has Excess Funds. If such Conduit Purchaser does not have
sufficient Excess Funds to make any payment due hereunder (other than pursuant
to Section 9.4), then such Conduit Purchaser may pay a lesser amount and make
additional payments that in the aggregate equal the amount of deficiency as soon
as possible thereafter. The term "EXCESS FUNDS" means the excess of (a) the
aggregate projected value of such Conduit Purchaser's assets and other property
(including cash and cash equivalents), over (b) the sum of (i) the sum of all
scheduled payments of principal, interest and other amounts payable on publicly
or privately placed indebtedness of such Conduit Purchaser for borrowed money,
plus (ii) the sum of all other liabilities, indebtedness and other obligations
of such Conduit Purchaser for borrowed money or owed to any credit or liquidity
provider, together with all unpaid interest then accrued thereon, plus (iii) all
taxes payable by such Conduit Purchaser to the Internal Revenue Service, plus
(iv) all other indebtedness, liabilities and obligations of such Conduit
Purchaser then due and payable, but the amount of any liability, indebtedness or
obligation of such Conduit Purchaser shall not exceed the projected value of the
assets to which recourse for such liability, indebtedness or obligation is
limited. Excess Funds shall be calculated once each Business Day.
SECTION 9.13. NO RECOURSE. The obligations of each Conduit Purchaser,
their respective management companies, their respective administrators and
referral agents (each a "PROGRAM ADMINISTRATOR") under any Transaction Document
or other document (each, a "PROGRAM DOCUMENT") to which a Program Administrator
is a party are solely the corporate obligations of such Program Administrator
and no recourse shall be had for such obligations against any Affiliate,
director, officer, member, manager, employee, attorney or agent of any Program
Administrator.
SECTION 9.14. HEADINGS; COUNTERPARTS. Article and Section Headings in
this Agreement are for reference only and shall not affect the construction of
this Agreement. This Agreement may be executed by different parties on any
number of counterparts, each of which shall constitute an original and all of
which, taken together, shall constitute one and the same agreement.
SECTION 9.15. CUMULATIVE RIGHTS AND SEVERABILITY. All rights and
remedies of the Purchasers, the Purchaser Agents and Agent hereunder shall be
cumulative and non-exclusive of any rights or remedies such Persons have under
law or otherwise. Any provision hereof that is prohibited or unenforceable in
any jurisdiction shall, in such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof and without affecting such provision in any other
jurisdiction.
SECTION 9.16. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK. THE SELLER 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 THE
BOUROUGH OF MANHATTAN FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF, OR
RELATING TO, THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
The Seller hereby irrevocably waives, to the fullest extent permitted by law,
any objection it may now or hereafter have to the venue of any such proceeding
and any claim that any such proceeding has been brought in an inconvenient
forum. Nothing in this Section 9.16 shall affect the right of the Agent, any
Purchaser Agent or any Purchaser to bring any action or proceeding against the
Seller or its property in the courts of other jurisdictions.
SECTION 9.17. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, OR IN CONNECTION WITH,
ANY TRANSACTION DOCUMENT OR ANY MATTER ARISING THEREUNDER.
SECTION 9.18. ENTIRE AGREEMENT. The Transaction Documents constitute
the entire understanding of the parties thereto concerning the subject matter
thereof. Any previous or contemporaneous agreements, whether written or oral,
concerning such matters are superseded thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date hereof.
ABN AMRO BANK N.V., as the Agent ABN AMRO BANK N.V., as the Related Bank
Purchaser for Amsterdam and as the
Amsterdam Purchaser Agent
By: By:
------------------------------ ------------------------------
Title: Title:
By: By:
------------------------------ ------------------------------
Title: Title:
Address: Structured Finance, Address: Structured Finance,
Asset Securitization Asset Securitization
000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Purchaser Agent- Attention: Enhancer-Amsterdam
Amsterdam Telephone: (000) 000-0000
Telephone: (000) 000-0000 Telecopy: (000) 000-0000
Telecopy: (000) 000-0000
AMSTERDAM FUNDING CORPORATION, as
an Uncommitted Conduit Purchaser
By:
------------------------------
Title:
Address: c/o Global Securitization Services, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
QUEBECOR WORLD FINANCE INC., as Seller
By:
------------------------------
Title:
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Vice President, Legal Affairs
and Secretary
Telephone: (000) 000-0000
Telecopy: (302) _________
with a copy to : Imprimeries Quebecor S.A.
Xxxxxxxxxx xx Xxxxxxx-Xxxxxx
-00-
Xxxxx xxx Xxxxxxxxx 00
Chayette 8 XX 0000, Xxxxxxxx
Xxxxxxxxxxx
Telephone: 00-00-000-0000
Telecopy: 00-00-000-0000
QUEBECOR PRINTING (USA) HOLDINGS INC.,
as Initial Collection Agent
By:
------------------------------
Title:
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Vice President
Telephone: (000) 000-0000
Telecopy: (302) _________
with a copy to : Imprimeries Quebecor S.A.
Succursale de Granges-Paccot
Route des Xxxxxxxxx 00
Xxxxxxxx 0 XX 0000, Xxxxxxxx
Xxxxxxxxxxx
Telephone: 00-00-000-0000
Telecopy: 00-00-000-0000
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Schedule I
Definitions
The following terms have the meanings set forth, or referred to, below:
"ABN AMRO" means ABN AMRO Bank N.V. in its individual capacity and not in its
capacity as the Agent.
"ADVERSE CLAIM" means, for any asset or property of a Person, a lien, security
interest, charge, mortgage, pledge, hypothecation, assignment or encumbrance, or
any other right or similar claim, in, of or on such asset or property in favor
of any other Person, except those created by the Transaction Documents.
"AFFILIATE" means, for any Person, any other Person which, directly or
indirectly, is in control of, or is controlled by, such Person. For purposes of
this definition, "CONTROL" means the power, directly or indirectly, to either
(i) vote ten percent (10%) or more of the securities having ordinary voting
power for the election of directors of a Person or (ii) cause the direction of
the management and policies of a Person.
"AGENT" is defined in the first paragraph hereof.
"AGENT'S ACCOUNT" means the account designated to the Seller, the Purchaser
Agents and the Purchasers by the Agent.
"AGGREGATE COLLECTIONS" means the sum of all amounts paid on a Receivable plus
all amounts deemed paid on any Sold Receivable under Section 1.5(b) or that
would be deemed paid under Section 1.5(b) if such Receivable were a Sold
Receivable.
"AGGREGATE COMMITMENT" means the aggregate of all Commitments of each Purchaser
Group, as such amount may be reduced pursuant to Section 1.6.
"AGGREGATE INVESTMENT" means the sum of the Investments of all Purchasers.
"AGGREGATE RESERVE" means, at any time at which such amount is calculated, the
sum of the Loss Reserve, the Discount Reserve and the Dilution Reserve.
"AMSTERDAM" is defined in the first paragraph hereof.
"ASSIGNED SETTLEMENT" means, for each Related Bank Purchaser for an Uncommitted
Conduit Purchaser for any Put, the product of such Related Bank Purchaser's
Purchased Percentage and the amount of the an Uncommitted Conduit Purchaser
Settlement being transferred pursuant to such Put.
"BANKRUPTCY EVENT" means, for any Person, that (a) such Person makes a general
assignment for the benefit of creditors or any proceeding is instituted by or
against such Person seeking to adjudicate it bankrupt or insolvent, or seeking
the liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property or such Person
generally does not pay its debt as such debts become due or admits in writing
its inability to pay its debts generally or (b) such Person takes any corporate
action to authorize any such action.
"BUSINESS DAY" means any day other than (a) a Saturday, Sunday or other day on
which banks in New York City, New York or Chicago, Illinois are authorized or
required to close, (b) a holiday on the Federal Reserve calendar and, (c) solely
for matters relating to a LIBOR Tranche, a day on which dealings in Dollars are
not carried on in the London interbank market.
"CHARGE-OFF" means any Receivable that has or should have been (in accordance
with the Credit and Collection Policy) charged off or written off by the Seller.
"COLLECTION" means any amount paid, or deemed paid, on a Sold Receivable or by
the Seller as a Deemed Collection under Section 1.5(b).
"COLLECTION AGENT" is defined in Section 3.1(a).
"COLLECTION AGENT FEE" is defined in Section 3.6.
"COLLECTION AGENT REPLACEMENT EVENT" means the occurrence of any one or more of
the following:
(a) the Collection Agent (or any sub-collection agent) fails to observe
or perform any material term, covenant or agreement under any Transaction
Document;
(b) any written representation, warranty, certification or statement
made by the Collection Agent in, or pursuant to, any Transaction Document proves
to have been incorrect in any material adverse respect when made; or
(c) the Collection Agent suffers a Bankruptcy Event.
"COMMITMENT" means, for each Committed Purchaser, the amount set forth on
Schedule II for such Committed Purchaser or in a Transfer Supplement, and, for
each, Purchaser Group, the amount set forth on Schedule II for such Purchaser
Group, in each case, as adjusted in accordance with Sections 1.6 and 9.8.
"COMMITMENT PERCENTAGE" means, for each Related Bank Purchaser in a Purchaser
Group, such Related Bank Purchaser's Commitment divided by the total of all
Commitments of all Related Bank Purchasers in such Purchaser Group.
"COMMITTED CONDUIT PURCHASER" means each Person party to this Agreement and
listed as such on Schedule II hereto and each other Person that becomes a
Committed Conduit Purchaser pursuant to a Transfer Supplement.
"COMMITTED PURCHASERS" means each Related Bank Purchaser for an Uncommitted
Conduit Purchaser and each Committed Conduit Purchaser.
"CONDUIT PURCHASER" means each Committed Conduit Purchaser and Uncommitted
Conduit Purchaser.
"CONDUIT PURCHASER INVESTMENT PERCENTAGE" means a fraction, expressed as a
decimal, obtained by dividing the Investment of a Conduit Purchaser by the
Investment of all Purchasers.
"CONCENTRATION LIMIT" means (i) with respect to the Obligors with senior
unsecured long-term indebtedness rated A- (or higher) by S&P and A3 (or higher)
by Moody's, an amount not to exceed 5% of the Aggregate Investment plus
Aggregate Reserves, (ii) with respect to Obligors that do not satisfy the
requirements of clause (i) above but have senior unsecured long-term
indebtedness rated BBB (or higher) by S&P and Baa2 (or higher) by Moody's, an
amount not to exceed 4% of the Aggregate Investment plus Aggregate Reserves, and
(iii) with respect to all other Obligors, an amount not to exceed 3.33% of the
Aggregate Investment plus Aggregate Reserves.
"CP DEALER" means, at any time, each Person a Conduit Purchaser then engages as
a placement agent or commercial paper dealer.
"CP RATE" means, for any CP Tranche Period, a rate per annum as established
pursuant to the applicable Rate Supplement.
"CREDIT AND COLLECTION POLICY" means the Seller's credit and collection policy
and practices relating to Receivables attached hereto as Exhibit I.
"DEEMED COLLECTIONS" is defined in Section 1.5(b).
"DEFAULT RATIO" means at the end of any fiscal month, the ratio (expressed as a
percentage), of (a) the then aggregate outstanding balance of all Defaulted
Receivables (minus Charge-Offs) at the end of such fiscal month to (b) the then
aggregate outstanding balance of all Receivables (minus Charge-Offs) at the end
of such fiscal month.
"DEFAULTED RECEIVABLE" means any Receivable (a) which is unpaid more than 90
days past its original due date or (b) the Obligor on which has suffered a
Bankruptcy Event.
"DELINQUENCY RATIO" means at the end of any fiscal month, the ratio (expressed
as a percentage), of (a) the sum of the aggregate outstanding balance of all
Delinquent Receivables as of the end of such fiscal month to (b) the sum of the
aggregate outstanding balance of all Receivables (minus Charge-Offs) as of the
end of each fiscal month.
"DELINQUENT RECEIVABLE" means any Receivable (other than a Charge-Off or
Defaulted Receivable) on which any amount is unpaid more than 60 days past its
original due date.
"DESIGNATED FINANCIAL OFFICER" means the president, chief financial officer,
treasurer, assistant treasurer or controller of the Seller or the relevant
Quebecor Entity , as applicable.
"DILUTION RATIO" means at the end of any fiscal month, the ratio (expressed as a
percentage), of (a) the aggregate amount of payments that would be owed by the
Seller pursuant to the first sentence of Section 1.5(b) for such period if all
Receivables were Sold Receivables to (b) the Aggregate Collections received
during such period.
"DILUTION RESERVE" means, at any time, an amount equal to the product of (i) the
Sold Receivable Balance as of the last day of the immediately preceding monthly
period times (ii) the Dilution Reserve Percentage.
"DILUTION RESERVE PERCENTAGE" means, at any time, an amount, expressed as a
percentage, equal to the excess of (i) 1.5 times the highest three-month average
Dilution Ratio (expressed as a decimal) as of the last day of each of the last
12 (twelve) fiscal months over (ii) 5%.
"DISCOUNT" means, for any Tranche Period, (a) the product of (i) the Discount
Rate for such Tranche Period, (ii) the total amount of Investment allocated to
the Tranche Period, and (iii) the number of days elapsed during the Tranche
Period divided by (b) 360 days.
"DISCOUNT RATE" means, (i) for any Tranche Period relating to a CP Tranche, the
CP Rate applicable thereto, (ii) for any Tranche Period relating to a LIBOR
Tranche, the LIBOR Rate applicable thereto and (iii) for any Tranche Period
relating to a Prime Tranche, the Prime Rate applicable thereto.
"DISCOUNT RESERVE" means, at any time, the product of (a) 1.5 multiplied by (b)
the rate calculated under clause (a) of the definition of Prime Rate plus 2%
multiplied by (c) Aggregate Investment multiplied by (d) a fraction, the
numerator of which is the Turnover Ratio, expressed in days, most recently
calculated and the denominator of which is 360.
"DOLLAR" and "$" means lawful currency of the United States of America.
"EARLY PAYMENT FEE" is defined in the applicable Rate Supplement.
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) the Obligor of which (a) is a resident of, or organized under the
laws of, or with its chief executive office in, the USA or, with respect to not
more than 3% of the aggregate principal amount of Receivables, Canada; (b) is
not an Affiliate of any of the parties hereto or the Originator; (c) is not a
government or a governmental
I-2
subdivision or agency; (d) has not suffered a Bankruptcy Event; (e) is a
customer of the Originator in good standing; and (f) does not have more than 25%
in aggregate principal amount of its Receivables that are Defaulted Receivables
or are Receivables that became Charge-Offs;
(ii) which is stated to be due and payable within 90 days after the
invoice date therefor;
(iii) which is not a Delinquent Receivable, Defaulted Receivable or a
Charge-Off;
(iv) which is an "ACCOUNT" or "CHATTEL PAPER" within the meaning of
Section 9-105 and Section 9-106, respectively of the UCC of all applicable
jurisdictions;
(v) which is denominated and payable only in Dollars in the USA;
(vi) which constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance with its terms
subject to no offset, counterclaim, defense or other Adverse Claim, and is not
an executory contract or unexpired lease within the meaning of Section 365 of
the Bankruptcy Code;
(vii) which (a) contains an obligation to pay a determinable sum of
money and is subject to no contingencies other than performance, (b) does not
require the Obligor under such contract to consent to the transfer, sale or
assignment of the rights and duties of the Originator under such contract, (c)
does not contain a confidentiality provision that purports to restrict any
Purchaser's exercise of rights under this Agreement, including, without
limitation, the right to review such contract and (d) directs that payment be
made to a Lock-Box or other collection account;
(viii) which does not, in whole or in part, contravene any law, rule or
regulation applicable thereto (including, without limitation, those relating to
usury, truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy);
(ix) which satisfies all applicable requirements of the Credit and
Collection Policy and was generated in the ordinary course of the Originator's
business from the sale of goods or provision of services to a related Obligor
solely by the Originator;
(x) the purchase of which with proceeds of notes would constitute a
"current transaction" within the meaning of Section 3(a)(3) of the Securities
Act of 1933, as amended;
(xi) which, in the case of an Originator with its chief executive
office located in a state that imposes a recording, intangibles or other similar
tax when added to the aggregate principal amount of all other Receivables of
Originators with their chief executive office located in such state, does not
exceed the amount specified on the UCC financing statement filed by the Agent to
perfect a lien on the Receivables sold by all such Originators and for which
such tax has been paid;
(xii) the Originator of which has 100% (or, in the case of Quebecor
Printing Xxxxxx Inc., not less than 90%) of its outstanding voting stock or
other equity interest owned and controlled, either directly or indirectly, by
Quebecor Printing Inc.; and
(xiii) which does not exceed the Concentration Limit or Special Limit.
"ELIGIBLE RECEIVABLE BALANCE" means, at any time, the aggregate outstanding
principal balance of all Sold Receivables that are Eligible Receivables.
"ENHANCEMENT BANK" means any Person providing credit support to a Purchaser for
such Purchaser's account under an Enhancement Agreement, including pursuant to
an unfunded commitment.
"FACE AMOUNT" means the face amount of any commercial paper issued by a Conduit
Purchaser on a discount basis or, if not issued on a discount basis, the
principal amount of such note and interest scheduled to accrue thereon to its
stated maturity.
"FEDERAL FUNDS RATE" means for any day the greater of (i) the highest rate per
annum as determined by ABN AMRO at which overnight Federal funds are offered to
ABN AMRO for such day by major banks in the interbank market, and (ii) if ABN
AMRO is borrowing overnight funds from a Federal Reserve Bank that day, the
highest rate per annum at which such overnight borrowings are made on that day.
Each determination of the Federal Funds Rate by ABN AMRO shall be conclusive and
binding on the Seller except in the case of manifest error.
"FEE LETTER" means, for each Purchaser Group, the letter agreement, if any,
among the Seller, the Purchaser Agent for the applicable Purchaser Group and the
Enhancement Bank.
"FUNDING AGREEMENT" means any agreement or instrument executed by a Conduit
Purchaser and executed by or in favor of any Funding Source or executed by any
Funding Source at the request of a Conduit Purchaser.
"FUNDING SOURCE" means, for a Conduit Purchaser, any insurance company, bank or
other financial institution providing liquidity, back-up purchase or credit
support for such Conduit Purchaser.
"GAAP" means generally accepted accounting principles in the USA or Canada, as
applicable, applied on a consistent basis.
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"GOVERNMENTAL AUTHORITY" means any (a) Federal, state, municipal or other
governmental entity, board, bureau, agency or instrumentality, (b)
administrative or regulatory authority (including any central bank or similar
authority) or (c) court, judicial authority or arbitrator, in each case, whether
foreign or domestic.
"INCREMENTAL PURCHASE" is defined in Section 1.1(b).
"INITIAL COLLECTION AGENT" is defined in the first paragraph hereof.
"INSTRUCTING GROUP" means (i) at any time there are three or more Purchaser
Groups, the Purchaser Agents representing Purchaser Groups with at least 662/3%
of the Commitments and (ii) at any time there are fewer than three Purchaser
Groups, the Purchaser Agents representing Purchaser Groups with 100% of the
Commitments.
"INTENDED TAX CHARACTERIZATION" is defined in Section 9.9.
"INTERIM LIQUIDATION" means any time before the Termination Date during which no
Reinvestment Purchases are made by any Purchaser, as established pursuant to
Section 1.2.
"INVESTMENT" means, for each Purchaser (or Purchaser Group), (a) the sum of (i)
all Incremental Purchases by such Purchaser (or Purchaser Group) and (ii) the
aggregate amount of any payments or exchanges made by, or on behalf of, such
Purchaser (or Purchaser Group) to any other Purchaser (or Purchaser Group) to
acquire Investment from such other Purchaser minus (b) all Collections, amounts
received from other Purchasers and other amounts received or exchanged and, in
each case, applied by the Agent or such Purchaser (or Purchaser Group) to reduce
such Purchaser's (or Purchaser Group's) Investment. A Purchaser's (or Purchaser
Group's) Investment shall be restored to the extent any amounts so received or
exchanged and applied are rescinded or must be returned for any reason.
"LIBOR" means, for any Tranche Period for a LIBOR Tranche or other time period,
the rate per annum (rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) for deposits in Dollars for a period
equal to such Tranche Period or other period, which appears on Page 3750 of the
Telerate Service (or any successor page or successor service that displays the
British Bankers' Association Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) two Business Days before the commencement
of such Tranche Period or other period. If for any Tranche Period for a LIBOR
Tranche no such displayed rate is available (or, for any other period, if such
displayed rate is not available or the need to calculate LIBOR is not notified
to the Agent at least 3 Business Days before the commencement of the period for
which it is to be determined), the Agent shall determine such rate based on the
rates ABN AMRO is offered deposits of such duration in the London interbank
market.
"LIBOR RATE" means, for any LIBOR Tranche Period, a rate established pursuant to
the applicable Rate Supplement.
"LIQUIDATION PERIOD" means, for an Uncommitted Conduit Purchaser only, all times
when such Uncommitted Purchaser is not making Reinvestment Purchases pursuant to
Section 1.1(d) and, for all Purchasers, all times (x) during an Interim
Liquidation and (y) on and after the Termination Date.
"LOCK-BOX" means each post office box or bank box listed on Exhibit F, as
revised pursuant to Section 5.1(i).
"LOCK-BOX ACCOUNT" means each account maintained by the Collection Agent at a
Lock-Box Bank for the purpose of receiving or concentrating Collections.
"LOCK-BOX AGREEMENT" means each agreement between the Collection Agent and a
Lock-Box Bank concerning a Lock-Box Account.
"LOCK-BOX BANK" means each bank listed on Exhibit F, as revised pursuant to
Section 5.1(i).
"LOCK-BOX LETTER" means a letter in substantially the form of Exhibit G (or
otherwise acceptable to the Agent) from the Seller and the Collection Agent to
each Lock-Box Bank, acknowledged and accepted by such Lock-Box Bank and the
Agent.
"LOSS RESERVE" means, at any time, the product of (i) 10% multiplied by (ii) the
Sold Receivable Balance.
"LOSS-TO-LIQUIDATION RATIO" means at the end of any fiscal month, the ratio
(expressed as a percentage) of the principal amount of Charge-Offs made during
such fiscal month to the Aggregate Collections during such fiscal month.
"MATURED AGGREGATE INVESTMENT" means, at any time, the aggregate Matured Value
of all Conduit Purchasers' Investments plus the total Investments of all other
Purchasers then outstanding.
"MATURED VALUE" means, of any Investment, the sum of such Investment and all
unpaid Discount scheduled to become due (whether or not then due) on such
Investment during all Tranche Periods to which any portion of such Investment
has been allocated.
"MAXIMUM INCREMENTAL PURCHASE AMOUNT" means, at any time, the lesser of (a) the
difference between the Purchase Limit and the Aggregate Investment then
outstanding and (b) the difference between the Aggregate Commitment and the
Matured Aggregate Investment then outstanding.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
I-4
"OBLIGOR" means, for any Receivable, each Person obligated to pay such
Receivable and each guarantor of such obligation.
"ORIGINATOR" means, collectively each Subsidiary listed on Schedule III hereto
and such other Subsidiaries approved in writing by the Agent from time to time
that become a party to the Purchase Agreement, and also individually, as the
context shall require.
"PARENT" means Quebecor Printing (USA) Holdings Inc., a Delaware corporation.
"PERIODIC REPORT" is defined in Section 3.3.
"PERMITTED INVESTMENTS" shall mean (a) evidences of indebtedness, maturing not
more than thirty (30) days after the date of purchase thereof, issued by, or the
full and timely payment of which is guaranteed by, the full faith and credit of,
the federal government of the United States of America, (b) repurchase
agreements with banking institutions or broker-dealers that are registered under
the Securities Exchange Act of 1934 fully secured by obligations of the kind
specified in clause (a) above, (c) money market funds denominated in Dollars
rated not lower than A-1 (and without the "r" symbol attached to any such
rating) by S&P and P-1 by Moody's or otherwise acceptable to the Rating Agencies
or (d) commercial paper denominated in Dollars issued by any corporation
incorporated under the laws of the United States or any political subdivision
thereof, provided that such commercial paper is rated at least A-1 (and without
any "r" symbol attached to any such rating) thereof by S&P and at least Prime-1
thereof by Moody's.
"PERSON" means an individual, partnership, corporation, association, joint
venture, Governmental Authority or other entity of any kind.
"POTENTIAL TERMINATION EVENT" means any Termination Event or any event or
condition that with the lapse of time or giving of notice, or both, would
constitute a Termination Event.
"PRICING LETTER" means for each Purchaser Group the letter agreement, if any,
among the Related Bank Purchasers, the Purchaser Agent for the applicable
Purchaser Group and the Seller.
"PRIME RATE" means, (A) for any period, the daily average during such period of
(a) the greater of (i) the floating commercial loan rate per annum of ABN AMRO
(which rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer by ABN AMRO) announced from time to
time as its prime rate or equivalent for Dollar loans in the USA, changing as
and when said rate changes and (ii) the Federal Funds Rate plus 0.75%; or (B) in
reference to a Prime Tranche, the "PRIME RATE" specified in the applicable Rate
Supplement.
"PURCHASE" is defined in Section 1.1(a).
"PURCHASE AGREEMENT" means the Receivables Purchase Agreement dated as of
September 24, 1999 among the Seller and the Originators.
"PURCHASE AMOUNT" is defined in Section 1.1(c).
"PURCHASE DATE" is defined in Section 1.1(c).
"PURCHASE INTEREST" means, for a Purchaser, the percentage ownership interest in
the Sold Receivables and Collections held by such Purchaser, calculated when and
as described in Section 1.1(a).
"PURCHASE LIMIT" means $400,000,000.
"PURCHASED PERCENTAGE" means, for any Put, for each Committed Purchaser, its
Commitment Percentage or such lesser percentage as is necessary to prevent the
Purchase Price of such Purchaser from exceeding its Unused Commitment (unless,
in the case of an Enhancement Bank, it elects not to reduce its Purchased
Percentage in whole or in part).
"PURCHASER" means each Conduit Purchaser, Enhancement Bank and the Related Bank
Purchasers.
"PURCHASER AGENT" means each Person party to this Agreement and listed as such
on Schedule II hereto and each other Person who becomes a party to this
Agreement as a Purchaser Agent pursuant to a Transfer Supplement.
"PURCHASER GROUP" means, for each Conduit Purchaser, such Conduit Purchaser, its
Related Bank Purchasers (if any), and the Purchasers party to its Transfer
Agreement.
"PUT" is defined in Section 2.1(a).
"QUEBECOR ENTITY" means Quebecor Printing Inc., the Parent and each Originator.
"RATABLE SHARE" means, for each Purchaser Group, such Purchaser Group's
aggregate Commitments divided by the aggregate Commitments of all Purchaser
Groups.
"RATE SUPPLEMENT" means each Rate Supplement among the Seller, the Collection
Agent, a Purchaser Agent and the applicable Related Bank Lenders.
"RATING AGENCY" means, for any Conduit Purchaser, each rating agency such
Conduit Purchaser chooses to rate its commercial paper notes.
"RATINGS" means, for any Conduit Purchaser, the ratings by the Rating Agencies
of the indebtedness for borrowed money of such Conduit Purchaser.
I-5
"RECEIVABLE" means each obligation of an Obligor to pay for merchandise sold or
services rendered by the Originator and includes the Originator's rights to
payment of any interest or finance charges and all proceeds of the foregoing.
During any Interim Liquidation and on and after the Termination Date, the term
"RECEIVABLE" shall only include receivables existing on the date such Interim
Liquidation commenced or Termination Date occurred, as applicable. Deemed
Collections shall reduce the outstanding balance of Receivables hereunder, so
that any Receivable that has its outstanding balance deemed collected shall
cease to be a Receivable hereunder after (x) the Collection Agent receives
payment of such Deemed Collections under Section 1.5(b) or (y) if such Deemed
Collection is received before the Termination Date, an adjustment to the Sold
Interest permitted by Section 1.5(c) is made.
"RECORDS" means, for any Sold Receivable, all contracts, books, records and
other documents or information (including computer programs, tapes, disks,
software and related property and rights) relating to such Sold Receivable or
the related Obligor.
"REINVESTMENT PURCHASE" is defined in Section 1.1(b).
"RELATED BANK PURCHASERS" means each Person party to this Agreement and listed
as such on Schedule II hereto and each other Person that becomes a Related Bank
Purchaser pursuant to a Transfer Supplement.
"RELATED SECURITY" means all of the Originator's rights in the merchandise
(including returned goods) and contracts relating to the Sold Receivables, all
security interests, guaranties and property securing or supporting payment of
the Sold Receivables, all Records and all proceeds of the foregoing.
"RPA LIMITED GUARANTY" means the Receivables Purchase Agreement Limited Guaranty
dated the date hereof executed by Quebecor Printing Inc. in favor of the Seller.
"RSA LIMITED GUARANTY" means the Receivables Sale Agreement Limited Guaranty
dated the date hereof executed by Quebecor Printing Inc. in favor of the Agent.
"SCHEDULED TERMINATION DATE" means September 18, 2000, as such date may be
extended pursuant to the terms of Section 1.9.
"SELLER" is defined in the first paragraph hereof.
"SELLER ACCOUNT" means the Seller's account designated by the Seller to the
Agent in writing.
"SOLD INTEREST" is defined in Section 1.1(a).
"SOLD RECEIVABLE" is defined in Section 1.1(a).
"SOLD RECEIVABLE BALANCE" means, at any time, an amount equal to the quotient
obtained by dividing (I) the sum of (i) Aggregate Investment plus (ii) the
Discount Reserve by (II) the difference between (i) 90% and (ii) the Dilution
Reserve Percentage.
"SPECIAL LIMIT" means, with respect to any Obligor, the amount agreed to from
time to time by the Agent and the Seller.
"S&P" means Standard & Poor's Ratings Group.
"SUBORDINATED NOTES" means each revolving promissory note issued by the Seller
to an Originator under the Purchase Agreement.
"SUBSIDIARY" means any Person of which at least a majority of the voting stock
(or equivalent equity interests) is owned or controlled by the Seller or any
Quebecor Entity or by one or more other Subsidiaries of the Seller or such
Quebecor Entity. The Subsidiaries of the Parent on the date hereof are listed on
Exhibit E.
"TAXES" means all taxes, charges, fees, levies or other assessments (including
income, gross receipts, profits, withholding, excise, property, sales, use,
license, occupation and franchise taxes and including any related interest,
penalties or other additions) imposed by any jurisdiction or taxing authority
(whether foreign or domestic).
"TERMINATION DATE" means the earliest of (a) the Business Day designated by the
Seller with no less than thirty (30) Business Days prior notice to the Agent,
(b) the occurrence of a Termination Event and (c) the Scheduled Termination
Date.
"TERMINATION EVENT" means the occurrence of any one or more of the following:
(a) any representation, warranty, certification or statement made by
the Seller or any Quebecor Entity in, or pursuant to, any Transaction Document
proves to have been incorrect in any material respect when made (including
pursuant to Section 7.2); or
(b) the Collection Agent, any Quebecor Entity or the Seller fails to
make any payment or other transfer of funds hereunder when due (including any
payments under Section 1.5(a)) and such failure remains unremedied for three (3)
Business Days after notice of such failure shall have been given by the Agent or
any Purchaser; or
(c) the Seller fails to observe or perform any covenant or agreement
contained in Sections 1.6(b), 5.1(g), 5.1(i) or 5.1(j) of this Agreement or the
Originator fails to perform any covenant or agreement in
I-6
Sections 5.1(e) or (j) of the Purchase Agreement and such failure remains
unremedied for three (3) Business Days or notice of such failure shall have been
given by the Agent or any Purchaser; or
(d) the Seller or the Collection Agent (or any sub-collection agent)
fails to observe or perform any other term, covenant or agreement under any
Transaction Document, and such failure remains unremedied for ten Business Days
after notice of such failure shall have been given by the Agent or any
Purchaser; or
(e) any Quebecor Entity or any Subsidiary suffers a Bankruptcy Event;
or
(f) the three-month rolling average Delinquency Ratio exceeds 4.50%,
the three-month rolling average Default Ratio exceeds 6.50%, the three-month
rolling average Dilution Ratio exceeds 15%, the three-month rolling average
Loss-to Liquidation Ratio exceeds 1% or the three-month rolling average Turnover
Ratio exceeds 90 days; or
(g) (i) the Seller, any Quebecor Entity or any Affiliate, directly or
indirectly, disaffirms or contests the validity or enforceability of any
Transaction Document or (ii) any Transaction Document fails to be the
enforceable obligation of Quebecor Printing Inc., the Seller or any Affiliate
party thereto; or
(h) with respect to any indebtedness of any Quebecor Entity or any
Subsidiary in the aggregate outstanding principal amount of $25,000,000:
(i) failure to pay, in accordance with its terms and when due and
payable (subject to any applicable grace period), any of the principal or
interest of such indebtedness, or any such indebtedness shall, in whole or in
part, have been required to be repaid prior to the stated maturity thereof, in
accordance with the provision of any agreement evidencing, providing for the
creation of or concerning such indebtedness, or
(ii) (y) any event shall have occurred and be continuing that
accelerates such maturity or requires such repayment or permits (or, with the
passage of time or the giving of notice or both, would permit) any holder or
holders of such indebtedness, any trustee or agent acting on behalf of such
holder or holders or any other Person so to accelerate such maturity or require
any such repayment, and said holder or holders, trustee or agent, acting on
behalf of such holder or holders have accelerated said maturity or required such
repayment and (z) if the agreement evidencing, providing for the creation of or
concerning such indebtedness provides for a cure period for such event, such
event shall not be cured prior to the end of such cure period, ;PROVIDED THAT no
Termination Event shall be deemed to have occurred if the failure to pay or
perform under the relevant agreement is waived, rescinded or annulled in writing
by the relevant creditor(s);
(i) the long-term unsecured, unsubordinated indebtedness of Quebecor
Printing Inc. is rated less than BBB- by S&P or Baa3 by Xxxxx'x (or S&P or
Xxxxx'x has withdrawn or suspended such rating);
(j) Quebecor Printing Inc. shall fail to own and control, directly or
indirectly, 100% of the outstanding voting stock of the Seller and the Parent;
or
(k) a Collection Agent Replacement Event has occurred and is
continuing.
Notwithstanding the foregoing, a failure of a representation or warranty or
breach of any covenant described in clause (a), (c) or (d) above related to a
Sold Receivable shall not constitute a Termination Event if the Seller has been
deemed to have collected such Sold Receivable pursuant to Section 1.5(b).
"TRANCHE" means a portion of the Investment of a Conduit Purchaser or of the
Related Bank Purchasers allocated to
a Tranche Period pursuant to Section 1.3. A Tranche is a (i) CP Tranche, (ii)
LIBOR Tranche or (iii) Prime Tranche depending whether Discount accrues during
its Tranche Period based on a (i) CP Rate, (ii) LIBOR Rate, or (iii) Prime Rate.
"TRANCHE PERIOD" means a period of days ending on a Business Day selected
pursuant to Section 1.3, which (i) for a CP Tranche shall not exceed 270 days,
(ii) for a LIBOR Tranche shall not exceed 180 days, and (iii) for a Prime
Tranche shall not exceed 30 days.
"TRANSACTION DOCUMENTS" means this Agreement, each Fee Letter, each Pricing
Letter, the Purchase Agreement, the Subordinated Notes, the RPA Limited
Guaranty, the RSA Limited Guaranty and all other documents, instruments and
agreements executed or furnished in connection herewith and therewith.
"TRANSFER AGREEMENT" means each transfer or asset purchase agreement entered
into among an Uncommitted Conduit Purchaser, its Purchaser Agent and its Related
Bank Purchasers in connection with this Agreement.
"TRANSFER SUPPLEMENT" is defined in Section 9.8.
"TURNOVER RATIO" means an amount, expressed in days, obtained by multiplying (a)
a fraction, (i) the numerator of which is equal to the sum of the aggregate
principal amount of all Receivables as of the last day of the immediately
preceding fiscal month and (ii) the denominator of which is equal to the sum of
the Aggregate Collections during such fiscal month; times (b) 30.
"UCC" means, for any state, the Uniform Commercial Code as in effect in such
state.
"UNCOMMITTED CONDUIT PURCHASER" means each Person party to this Agreement and
listed as such on Schedule II hereto and each other Person that becomes an
Uncommitted Conduit Purchaser pursuant to a Transfer Supplement.
I-7
"UNCOMMITTED CONDUIT PURCHASER SETTLEMENT" means the sum of all claims and
rights to payment pursuant to Section 1.5 or 1.7 or any other provision owed to
an Uncommitted Conduit Purchaser (or owed to the Agent or Purchaser Agent or the
Collection Agent for the benefit of an Uncommitted Conduit Purchaser) by the
Seller that, if paid, would be applied to reduce Investment.
"USA" means the United States of America (including all states and political
subdivisions thereof).
"UNUSED AGGREGATE COMMITMENT" means, at any time, the difference between the
Aggregate Commitment then in effect and the outstanding Matured Aggregate
Investment.
"UNUSED COMMITMENT" means, for any Committed Purchaser at any time, the
difference between its Commitment and its Investment then outstanding.
The foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Unless otherwise inconsistent with the terms
of this Agreement, all accounting terms used herein shall be interpreted, and
all accounting determinations hereunder shall be made, in accordance with GAAP.
Amounts to be calculated hereunder shall be continuously recalculated at the
time any information relevant to such calculation changes.
I-8
Schedule II
Purchasers
Uncommitted Conduit Purchasers Name of Related Bank Purchasers Commitments of Related Bank
Purchasers
AMSTERDAM FUNDING CORPORATION ABN AMRO BANK, N.V. $408,000,000
Committed Conduit Purchasers Commitments of Committed Conduit Purchasers
Exhibit A
to
Receivables Sale Agreement
Form of Incremental Purchase Request
____________, ____
ABN AMRO Bank N.V., as Agent
Asset Securitization, Structured Finance
Suite 725
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Purchaser Agent-Amsterdam
Re: Amended and Restated Receivables Sale Agreement dated as of December 22,
1999 (the "SALE AGREEMENT") among Quebecor
World Finance Inc., as Seller, Quebecor Printing (USA)
Holdings Inc., as Initial Collection Agent,
ABN AMRO Bank N.V., as Agent,
and the Purchasers thereunder
Ladies and Gentlemen:
The undersigned Seller under the above-referenced Sale Agreement hereby confirms
its has requested an Incremental Purchase of $___________ to be made ratably by
the Conduit Purchasers under the Sale Agreement. [IN THE EVENT AN UNCOMMITTED
PURCHASER IS UNABLE OR UNWILLING TO MAKE THE REQUESTED INCREMENTAL PURCHASE, THE
SELLER HEREBY REQUESTS AN INCREMENTAL PURCHASE OF $____________ BY THE RELATED
BANK LENDERS FOR SUCH UNCOMMITTED PURCHASER UNDER THE SALE AGREEMENT AT THE
[LIBOR RATE WITH A TRANCHE PERIOD OF _______ MONTHS.] [PRIME RATE]].
Attached hereto as Schedule I is information relating to the proposed
Incremental Purchase required by the Sale Agreement. If on the date of this
Incremental Purchase Request ("NOTICE"), an Interim Liquidation is in effect,
this Notice revokes our request for such Interim Liquidation so that
Reinvestment Purchases shall immediately commence in accordance with Section
1.1(d) of the Sale Agreement.
The Seller hereby certifies that both before and after giving effect to [EACH
OF] the proposed Incremental Purchase[S] contemplated hereby and the use of the
proceeds therefrom, all of the requirements of Section 7.2 of the Sale Agreement
have been satisfied.
Very truly yours,
QUEBECOR WORLD FINANCE INC.
By
-------------------------------
Title
Schedule I
to
Incremental Purchase Requests
Summary of Information Relating to Proposed Sale(s)
1. DATES, AMOUNTS, PURCHASER(S), PROPOSED TRANCHE PERIODS
A1 Date of Notice _________
A2 Measurement Date (the last
Business Day of the month
immediately preceding the
month in which the Date of
Notice occurs) _________
A3 Proposed Purchase Dates _________ _________ _________ _________
(each of which is a Business Day)
A4 Respective Proposed
Incremental Purchase on
each such Purchase Date $_________ $_________ $_________ $________
(each Incremental (A4A) (A4B) (A4C) (A4D)
Purchase must be in a
minimum amount of
$1,000,000 and multiples
thereof, or, if less, an
amount equal to the
Maximum Incremental
Purchase Amount)
A5 Proposed Allocation
among Purchasers
Conduit
Purchaser $_________ $_________ $_________ $_________
Conduit
Purchaser $_________ $_________ $_________ $_________
Related Bank
Lenders $_________ $_________ $_________ $_________
Related Bank
Lenders $_________ $_________ $_________ $_________
Enhancement Bank $_________ $_________ $_________ $_________
Enhancement Bank $_________ $_________ $_________ $_________
A6 Tranche Period
and Tranche Rate(s) for Committed
Purchasers
Starting Date _________ _________ _________ _________
Ending Date _________ _________ _________ _________
Number of Days _________ _________ _________ _________
Prime or LIBOR
(for Committed
Purchasers only) _________ _________ _________ _________
Each proposed Purchase Date must be a Business Day and, other than the initial
Incremental Purchase, must occur no later than two weeks after the Measurement
Date set forth above. The choice of Measurement Date is a risk undertaken by the
Seller. If a selected Measurement Date is not the applicable Purchase Date, the
Seller's choice
and disclosure of such date shall not in any manner diminish or
waive the obligation of the Seller to assure the Purchasers that, after giving
effect to the proposed Purchase, the actual Sold Interest as of the date of such
proposed Purchase does not exceed 100%.
A-2
Exhibit B
to
Receivables Sale Agreement
[Reserved]
Exhibit C
Form of Periodic Report
Exhibit D
Addresses and Names of Seller and Originator
1. LOCATIONS. (a) The chief executive office of the Seller and the
Originator are located at the following address:
SELLER:
Quebecor World Finance Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
ORIGINATORS:
Quebecor Printing Xxxxxx
Xxxxx Xxxxxx Xxxx, Xxxxx 000
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Quebecor Printing Buffalo Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx, XX 00000
Quebcor Printing Xxxxxx XX Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Quebecor Printing Dallas, L.P.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Quebecor Printing Dickson Inc.
0000 Xxx Xxxxxxxx Xxxx
Xxx 000
Xxxxxxx, XX 00000
Quebecor Printing Dubuque Inc.
0000 Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Quebecor Printing Eagle Inc.
0000 Xxxx 00xx Xxxxxxx
Xxxxxx Xxxx, XX 00000
Quebecor Printing Xxxxx Press Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Quebecor Printing Fairfield Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Quebecor Printing Hazelton Inc.
Humboldt Industrial Park, Xxxxx 000 Xxxxx
Xxxxxxxx, XX 00000
Quebecor Printing Kingsport Inc.
Press and Roller Streets
Kingsport, TN 37662
Quebecor List Services Chicago Inc.
00000 X. Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Quebecor Printing Lincoln Inc.
0000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Quebecor Printing Loveland Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
Quebecor Printing Memphis II Inc.
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
QP Memphis Corp.
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Quebecor Printing Mt Xxxxxx XX Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xx. Xxxxxx, XX 00000
Quebecor Printing Olive Branch Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Quebecor Printing Xxxxxxx Inc.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Quebecor Xxxxx Printing Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Quebecor Printing St. Cloud Inc.
000 Xxxxxx Xxxx Xxxx X.X.
Xx. Xxxxx, XX 00000
Quebecor Printing St. Xxxx Inc.
0000 Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Quebecor Printing San Xxxx Inc.
000 Xxxx Xxxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Quebecor Printing Xxxxxx Inc.
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000-0000
Quebecor Printing Vermont Inc.
Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Quebecor World (USA) Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
No such address was different at any time since June 25, 1999
(b) The following are all the locations where the Seller and the
Originator directly or through its agents maintain any Records:
[SAME AS (A) ABOVE]
2. NAMES. The following is a list of all names (including trade names
or similar appellations) used by the Seller and the Originator or any of its
divisions or other business units that generate Receivables:
[SAME AS (A) ABOVE]
-2-
Exhibit E
Subsidiaries
Arcata Corporation
Holyoke Lithograph Co., Inc.
Xxxx X. Xxxxxx Company II Inc.
National Magazine Mailers, Inc.
Nova Marketing Services
Print Northwest Company L.P.
Printing Acquisition Inc.
Q.P. New York Corp.
QP Memphis Corp.
Quebecor Direct Brookfield Inc.
Quebecor List Services Chicago Inc.
Quebecor Xxxxx Printing Inc.
Quebecor Printing (USA) Corp.
Quebecor Printing Atglen Inc.
Quebecor Printing Atlanta Inc.
Quebecor Printing Aviation Inc.
Quebecor Printing Buffalo Inc.
Quebecor Printing Capital Corporation
Quebecor Printing Capital GP
Quebecor Printing Xxxxxx XX Inc.
Quebecor Printing Dallas, L.P.
Quebecor Printing Delaware L.L.C.
Quebecor Printing Xxxxxxx Inc.
Quebecor Printing Directory Sales Corp.
Quebecor Printing Dubuque Inc.
Quebecor Printing Eagle Inc.
Quebecor Printing Xxxxx Press Inc.
Quebecor Printing Fairfield Inc.
Quebecor Printing Federated Inc.
Quebecor Printing Franklin Inc.
Quebecor Printing Xxxxxxxx Inc.
Quebecor Printing Xxxxxxxx Inc.
Quebecor Printing Holding Company
Quebecor Printing Kingsport Inc.
Quebecor Printing Lincoln Inc.
Quebecor Printing Loveland Inc.
Quebecor Printing Memphis II Inc.
Quebecor Printing Memphis Inc.
Quebecor Printing Mt. Xxxxxx Inc.
Quebecor Printing Nevada Inc.
Quebecor Printing Olive Branch Inc.
Quebecor Printing Xxxxxxx Inc.
Quebecor Printing Providence Inc.
Quebecor Printing San Xxxx Inc.
Quebecor Printing Xxxxxx Inc.
Quebecor Printing Seattle Inc.
Quebecor Printing Semline Inc.
Quebecor Printing St. Cloud Inc.
Quebecor Printing St. Xxxx Inc.
Quebecor Printing Vermont Inc.
Quebecor Printing Warehousing Inc.
The Xxxx Company
QUEBECOR WORLD (USA) INC. AND ITS SUBSIDIARIES:
Acme Printing Company, Inc.
BCK 140 Partnership
Central Florida Press, L.C.
Century Graphics Corporation
DB Acquistion Corp.
Xxxxxxx Brothers, Incorporated
Xxxxxx Printing/Waukee, Inc.
Xxxxx Road Properties, Inc.
Great Western Publishing, Inc.
Great Western Trucking
Image Technologies
Infiniti Graphics, Inc.
Xxxxxxx & Xxxxxx Enterprises Inc.
KRI Dresden, Inc.
KRI TN, L.P.
KRI, Inc.
Xxxxxxx Acquisition Corporation
Lagnaippe Advertising, Inc.
Lagnaippe Inserts, Inc.
Lagnaippe Marketing Group
Xxxxxx Dominion, Inc.
Xxxxxx Lithotech, Inc.
Lightspeed Digital Express L.L.C.
Magna Graphic, Inc.
Magna Graphic/Midwest Inc.
Magna/Ruttles L.L.C.
-2-
Metroweb Acquisition L.P.
Nimrod Press
Northeast Graphics Inc.
Packaging Graphics
RAI, Inc.
Xxxx Communications Company
Taconic Holdings, Inc.
The Xxxxxxx & Xxxxxx Co.
The Xxxxxx Companies, Inc.
The Xxxxxx Company, Inc.
UP/Graphics Inc.
WCP TN L.P.
WCP-D, Inc.
WCX, L.L.C.
WCY, L.L.C.
WCZ, L.L.C.
World Color Book Services, Inc.
World Color Finance, Inc.
World Color Foreign Sales Corporation
World Color Systems, Inc.
World Color Tennesee, Inc.
-3-
Exhibit F
Lock Boxes and Lock-Box Banks
BANK LOCK-BOX NUMBER COLLECTION ACCOUNT
Bank of America, N.A. 81880-03219 81885-11363
Wachovia Bank, N.A. 101073 00000-000
Xxxxxxxx Bank, N.A. 101629 00000-000
Xxxxxxxx Bank, N.A. 101771 00000-000
Xxxxxxxx Bank, N.A. 101268 00000-000
Xxxxxxxx Bank, N.A. 101312 00000-000
Xxxxxxxx Bank, N.A. 945559 00000-000
Xxxxxxxx Bank, N.A. 751214 00000-000
Xxxxxxxx Bank, N.A. 751359 00000-000
Xxxxxxxx Bank, N.A. 751429 00000-000
Xxxxxxxx Bank, N.A. 751442 00000-000
Xxxxxxxx Bank, N.A. 751444 00000-000
Xxxxxxxx Bank, N.A. 751447 00000-000
Xxxxxxxx Bank, N.A. 751448 00000-000
Xxxxxxxx Bank, N.A. 751449 00000-000
Xxxxxxxx Bank, N.A. 751450 00000-000
Xxxxxxxx Bank, N.A. 751451 00000-000
Xxxxxxxx Bank, N.A. 751452 00000-000
Xxxxxxxx Bank, N.A. 751453 00000-000
Xxxxxxxx Bank, N.A. 751454 00000-000
Xxxxxxxx Bank, N.A. 751566 00000-000
Xxxxxxxx Bank, N.A. 751916 00000-000
Xxxxxxxx Bank, N.A. 751919 00000-000
Xxxxxxxx Bank, N.A. 751950 00000-000
Xxxxxxxx Bank, N.A. 751567 00000-000
Xxxxxxxx Bank, N.A. 951018 00000-000
Xxxxxxxx Bank, N.A. 951006 00000-000
Xxxxxxxx Bank, N.A. 951045 00000-000
Xxxxxxxx Bank, N.A. 951105 00000-000
Xxxxxxxx Bank, N.A. 951167 00000-000
Xxxxxxxx Bank, N.A. 945592 00000-000
Xxxxxxxx Bank, N.A. 951198 00000-000
Xxxxxxxx Bank, N.A. 951467 00000-000
Xxxxxxxx Bank, N.A. 951470 00000-000
Xxxxxxxx Bank, N.A. 951473 00000-000
Xxxxxxxx Bank, N.A. 951476 00000-000
Xxxxxxxx Bank, N.A. 951406 12440-135
Exhibit G
to Receivables Sale Agreement
Form of Lock Box Letter
[Name of Lock Box Bank]
Ladies and Gentlemen:
Reference is made to the lock-box numbers _______________ in __________ and the
associated lock-box demand deposit account number ____________ maintained with
you (such lock-boxes and associated lock-box demand deposit account,
collectively, the "ACCOUNTS"), each in the name of [NAME OF ORIGINATOR]
("[___]"). [___] hereby confirms it has sold all Receivables (as defined below)
to Quebecor World Finance Inc. (the "SELLER"). In connection with the Amended
and Restated Receivables Sale Agreement, dated as of December 22, 1999 (as
amended, supplemented or otherwise modified from time to time, the "RECEIVABLES
SALE AGREEMENT"), among the Seller, the Initial Collection Agent, the Conduit
Purchasers from time to time party thereto, the Enhancement Banks from time to
time party thereto, the Related Bank Purchasers from time to time party thereto
and ABN AMRO Bank N.V., as agent (the "AGENT") for the Conduit Purchasers, the
Related Bank Purchasers and the Enhancer (collectively, the "PURCHASERS"), the
Seller has assigned to the Agent for the benefit of the Purchasers an undivided
percentage interest in the accounts, chattel paper, instruments or general
intangibles (collectively, the "RECEIVABLES") under which payments are or may
hereafter be made to the Accounts, and has granted to the Agent for the benefit
of the Purchasers a security interest in its retained interest in such
Receivables. As is the customary practice in this type of transaction, we hereby
request that you execute this letter agreement. All references herein to "WE"
and "US" refer to [_____] and the Seller, jointly and severally. Your execution
hereof is a condition precedent to our continued maintenance of the Accounts
with you.
We hereby transfer exclusive dominion and control of the Accounts to the Agent,
subject only to the condition subsequent that the Agent shall have given you
notice that a "TERMINATION EVENT" and/or "COLLECTION AGENT REPLACEMENT EVENT"
has occurred and is continuing under the Receivables Sale Agreement and of its
election to assume such dominion and control, which notice shall be in
substantially the form attached hereto as Annex A (the "AGENT'S NOTICE").
At all times prior to the receipt of the Agent's Notice described above, all
payments to be made by you out of, or in connection with the Accounts, are to be
made in accordance with the instructions of the Seller or its agent. We hereby
irrevocably instruct you, at all times from and after the date of your receipt
of the Agent's Notice as described above, to make all payments to be made by you
out of, or in connection with, the Accounts directly to the Agent, at its
address set forth below its signature hereto or as the Agent otherwise notifies
you, or otherwise in accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of your
receipt of the Agent's Notice as described above, the Agent shall be irrevocably
entitled to exercise in our place and stead any and all rights in connection
with the Accounts, including, without limitation, (a) the right to specify when
payments are to be made out of, or in connection with, the Accounts and (b) the
right to require preparation of duplicate monthly bank statements on the
Accounts for the Agent's audit purposes and mailing of such statements directly
to an address specified by the Agent. At all times from and after the date of
your receipt of the Agent's Notice, neither we nor any of our affiliates shall
be given any access to the Accounts.
The Agent's Notice may be personally served or sent by telex, facsimile or U.S.
mail, certified return receipt requested, to the address, telex or facsimile
number set forth under your signature to this letter agreement (or to such other
address, telex or facsimile number as to which you shall notify the Agent in
writing). If the Agent's Notice is given by telex or facsimile, it will be
deemed to have been received when the Agent's Notice is sent and the answerback
is received (in the case of telex) or receipt is confirmed by telephone or other
electronic means (in the case of facsimile). All other notices will be deemed to
have been received when actually received or, in the case of personal delivery,
delivered.
By executing this letter agreement, you acknowledge the existence of the Agent's
right to dominion and control of the Accounts and its ownership of and security
interest in the amounts from time to time on deposit therein and agree that from
the date hereof the Accounts shall be maintained by you for the benefit of, and
amounts from time to time therein held by you as agent for, the Agent on the
terms provided herein. The Accounts are to be entitled "Quebecor World Finance
Inc. and ABN AMRO Bank N.V., as Agent for the Purchasers" with the subline
"[NAME OF ORIGINATOR]". Except as otherwise provided in this letter agreement,
payments to the Accounts are to be
processed in accordance with the standard procedures currently in effect. All
service charges and fees in connection with the Accounts shall continue to be
payable by us under the arrangements currently in effect. By executing this
letter agreement, you (a) irrevocably waive and agree not to assert, claim or
endeavor to exercise, (b) irrevocably bar and estop yourself from asserting,
claiming or exercising and (c) acknowledge that you have not heretofore received
a notice, writ, order or other form of legal process from any other party
asserting, claiming or exercising, any right of set-off, banker's lien or other
purported form of claim with respect to the accounts or any funds from time to
time therein. Except for your right to payment of your service charge and fees
and to make deductions for returned items, you shall have no rights in the
Accounts or funds therein, except deductions for service charges, fees and
returned or misplaced items. To the extent you may ever have any additional
rights, you hereby expressly subordinate all such rights to all rights of the
Agent.
You may terminate this letter agreement by canceling the Accounts maintained
with you, which cancellation and termination shall become effective only upon
thirty (30) days prior written notice thereof from you to the Agent in the
absence of fraud or abuse. Incoming mail addressed to the Accounts (including,
without limitation, any direct funds transfer to the Accounts) received after
such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Receivables Sale Agreement is no longer in
effect. Except as otherwise provided in this paragraph, this letter agreement
may not be terminated without the prior written consent of the Agent.
This letter agreement contains the entire agreement between the parties with
respect to the subject matter hereof, and may not be altered, modified or
amended in any respect, nor may any right, power or privilege of any party
hereunder be waived or released or discharged, except upon execution by you, us
and the Agent of a written instrument so providing. The terms and conditions of
any agreement between us and you (a "LOCK-BOX SERVICE AGREEMENT") (whether now
existing or executed hereafter) with respect to the lock-box arrangements, to
the extent not inconsistent with this letter agreement, will remain in effect
between you and us. In the event that any provision in this letter agreement is
in conflict with, or inconsistent with, any provision of any such Lock-Box
Service Agreement, this letter agreement will exclusively govern and control.
Each party agrees to take all actions reasonably requested by any other party to
carry out the purposes of this letter agreement or to preserve and protect the
rights of each party hereunder.
[___] agrees to indemnify, defend and hold harmless you and your affiliates,
directors, officers, employees, agents, successors and assigns (each, an
"INDEMNITEE") from and against any and all liabilities, losses, claims, damages,
demands, costs and expenses of every kind (including but not limited to costs
incurred as a result of items being deposited in the Account and being unpaid
for any reason, reasonable attorney's fees and the reasonable charges of your
in-house counsel) incurred or sustained by any Indemnitee arising out of your
performance of the services contemplated by this Lock-Box Letter, except to the
extent such liabilities, losses, claims, damages, demands, costs and expenses
are the direct result of your gross negligence or willful misconduct. The
provisions of this paragraph shall survive the termination of this Lock-Box
Letter.
In the event [___] becomes subject to a voluntary or involuntary proceeding
under the United States Bankruptcy Code, or if you are otherwise served with
legal process which you in good faith believe affects funds in the Account you
may suspend disbursements from the Account otherwise required by the terms
hereof until such time as you receive an appropriate court order or other
assurances satisfactory to you establishing that the funds may continue to be
disbursed according to the instructions contained in this Lock-Box Letter.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF __________. This letter agreement may be executed in any number of
counterparts and all of such counterparts taken together will be deemed to
constitute one and the same instrument.
Please indicate your agreement to the terms of this letter agreement by signing
in the space provided below. This letter agreement will become effective
immediately upon execution of a counterpart of this letter agreement by all
parties hereto.
Very truly yours,
[NAME OF ORIGINATOR]
By:
---------------------------------
Title:
QUEBECOR WORLD FINANCE INC.
By:
---------------------------------
Title:
Accepted and confirmed as of
G-2
the date first written above:
By: ABN AMRO BANK N.V., as Agent
By:
---------------------------------
Title:
By:
---------------------------------
Title:
Address of notice:
ABN AMRO Bank N.V.
Structured Finance, Asset Securitization
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Purchaser Agent
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
Acknowledged and agreed to as of the date first written above:
[NAME OF BANK]
By:
---------------------------------
Title:
Address for notice:
-------------------------------
-------------------------------
-------------------------------
G-3
ANNEX A TO
LOCK-BOX LETTER
[Name of Bank]
Re: Quebecor World Finance Inc.
Lock Box Numbers ______________
Lock-Box Account Number ____________
Ladies and Gentlemen:
Reference is made to the letter agreement dated __________, ____ (the "LETTER
AGREEMENT") among [NAME OF ORIGINATOR], Quebecor World Finance Inc., the
undersigned, as Agent, and you concerning the above-described lock-boxes and
lock-box account (collectively, the "ACCOUNTS"). We hereby give you notice that
a "TERMINATION EVENT" and/or "COLLECTION AGENT REPLACEMENT EVENT" has occurred
and is continuing under the Receivables Sale Agreement (as defined in the Letter
Agreement) and of our assumption of dominion and control of the Accounts as
provided in the Letter Agreement.
We hereby instruct you not to permit any other party to have access to the
Accounts and to make all payments to be made by you out of or in connection with
the Accounts directly to the undersigned upon our instructions, at our address
set forth above.
Very truly yours,
ABN AMRO BANK N.V.
By:
---------------------------------
Title:
By:
---------------------------------
Title:
cc: Quebecor World Finance Inc.
G-4
Exhibit H
To Receivables Sale Agreement
Compliance Certificate
To: ABN AMRO Bank N.V., as Agent, and
each Purchaser
This Compliance Certificate is furnished pursuant to Section 5.1(a)(iii) of the
Amended and Restated Receivables Sale Agreement, dated as of December 22, 1999
(as amended, supplemented or otherwise modified through the date hereof, the
"SALE AGREEMENT"), among Quebecor World Finance Inc. (the "SELLER"), Quebecor
Printing (USA) Holdings Inc. (the "INITIAL COLLECTION AGENT"), the Conduit
Purchasers from time to time party thereto, the Enhancement Banks from time to
time party thereto, the Related Bank Purchasers from time to time party thereto,
and ABN AMRO Bank N.V. as agent for the Purchasers (in such capacity, the
"AGENT"). Terms used in this Compliance Certificate and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Sale
Agreement.
THE UNDERSIGNED HEREBY REPRESENTS, WARRANTS, CERTIFIES AND CONFIRMS THAT:
1. The undersigned is a duly elected Designated Financial Officer of
the undersigned.
2. Attached hereto is a copy of the financial statements described in
Section 5.1(a)(i) or 5.1(a)(ii) of the Sale Agreement.
3. The undersigned has reviewed the terms of the Transaction Documents
and has made, or caused to be made under his/her supervision, a detailed review
of the transactions and the conditions of the Seller and the Originator during
and at the end of the accounting period covered by the attached financial
statements.
4. The examinations described in paragraph 3 hereof did not disclose,
and the undersigned has no knowledge of, the existence of any condition or event
which constitutes a Potential Termination Event, during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Compliance Certificate, except as set forth below.
5. Based on the examinations described in paragraph 3 hereof, the
undersigned confirms that the representations and warranties contained in
Article IV of the Sale Agreement are true and correct as though made on the date
hereof, except as set forth below.
6. The undersigned confirms that Year 2000 remediation efforts are
proceeding as scheduled. Described below are the exceptions, if any, to
paragraphs 4 and 5 listing, in detail, the nature of the condition or event, the
period during which it has existed and the action the undersigned has taken, is
taking or proposes to take with respect to each such condition or event:
The foregoing certifications are made and delivered this ____ day of
___________, _____.
QUEBECOR PRINTING INC.
By:
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Designated Financial Officer
Exhibit I
Credit and Collection Policy
