EXHIBIT 10.27
EXECUTION COPY
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "AGREEMENT") is made and entered into as
of December 9, 2002, among MANUFACTURERS AND TRADERS TRUST COMPANY, not
individually but solely as trustee (the "TRUSTEE") for the BIG FLOWER
RECEIVABLES MASTER TRUST (the "TRUST"), ▇▇▇▇▇▇ RECEIVABLES, LLC (formerly BFP
Receivables Corporation) ( "VR"), ▇▇▇▇▇▇, INC. ("▇▇▇▇▇▇" or the "SERVICER"), and
EAGLEFUNDING CAPITAL CORPORATION ("EAGLE"), as sole holder of the Certificates
(as defined below).
STATEMENT OF FACTS
I. Pursuant to that certain Receivables Purchase Agreement, dated as
of March 19, 1996, as supplemented by the First Supplemental Receivables
Purchase Agreement, dated as of December 29, 2000 (collectively, the "ORIGINAL
RECEIVABLES PURCHASE AGREEMENT"), in each case, between VR (then known as BFP
Receivables Corporation), ▇▇▇▇▇▇ (then known as Big Flower Press Holdings, Inc.)
and certain subsidiaries of ▇▇▇▇▇▇ (collectively, the "SELLERS"), VR has
purchased from time to time from the Sellers certain receivables and related
assets resulting from the sale of goods or the provision of services to
customers of the Sellers.
II. Pursuant to that certain Big Flower Receivables Master Trust
Pooling and Servicing Agreement, dated as of March 19, 1996 (as amended,
restated, supplemented or otherwise modified from time to time, the "POOLING
AGREEMENT"), among VR, Vertis, as servicer thereunder, and the Trustee, VR has
transferred the "Transferred Assets" (as defined therein) to the Trustee.
III. Eagle purchased certain fractional undivided interests in the
Trust and the Transferred Assets, which interests are evidenced by the Series
1996-2 Certificates (the "CERTIFICATES" and, together with the Transferred
Assets, the "OVERALL RECEIVABLES ASSETS"), issued pursuant to the Series 1996-2
Supplement to the Pooling Agreement dated as of October 4, 1996, as amended by
the First Amendment to Series 1996-2 Supplement to Pooling and Servicing
Agreement, dated as of March 29, 2002, the Second Amendment to Series 1996-2
Supplement to Pooling and Servicing Agreement, dated as of July 31, 2002 and the
Third Amendment to Series 1996-2 Supplement to Pooling and Servicing Agreement,
dated as of November 20, 2002 (the "SERIES SUPPLEMENT"), among VR, the Servicer
and the Trustee and consented to by Eagle.
IV. VR, ▇▇▇▇▇▇ and the Sellers desire to amend and restate the
Pooling Agreement and the Original Receivables Purchase Agreement and to
terminate the Series Supplement (collectively, the "TRANSACTION AGREEMENTS") and
to provide for the release of all interests (including, without limitation, each
security interest, if any) held by Eagle in the Overall Receivables Assets.
V. VR, as issuer, ▇▇▇▇▇▇, as Servicer and the Trustee have entered
into an Amended and Restated Indenture and Servicing Agreement (the "Indenture")
dated as of December 9, 2002, which provides for, among other things, the
reconveyance of the Transferred Assets by the Trustee to VR, except for the
security interest in the Transferred Assets retained by the Trustee and assigned
by the Trustee in its role as trustee under the Pooling Agreement to Trustee for
the benefit of Noteholders under the Indenture.
STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless otherwise expressly defined herein, all
capitalized terms used herein shall have the respective meanings given such
terms (a) in the Series Supplement, (b) if not defined in the foregoing, in the
Pooling Agreement, or (c) if not defined in the foregoing, in the Original
Receivables Purchase Agreement.
2. RELEASE OF INTERESTS BY EAGLE. (a) The total obligations due to
Eagle, if paid to Eagle on or before [11:00 a.m.] (New York City time) on
December 9, 2002 (the "EXPECTED PAYOFF DATE"), will be $ 130,086,877.78 (the
"PAYOFF AMOUNT"), which amounts, as set forth on Schedule I attached hereto,
include:
(i) all outstanding principal, accrued interest, fees, expenses,
costs, liquidated damages and other amounts, if any, which are due and payable
to Eagle pursuant to the Transaction Agreements and the Certificates, and
(ii) all costs and expenses incurred by Eagle in connection with
the negotiation and execution of this Agreement and the transactions
contemplated herein.
If the payment of the Payoff Amount does not occur before 11:00 a.m.
(New York City time) on the Expected Payoff Date, (i) ▇▇▇▇▇▇ will designate a
new date for payment of the Payoff Amount and notify Eagle thereof no later than
1:00 p.m. (New York City time) one Business Day prior to the new Expected Payoff
Date, (ii) Eagle will, no later than 5:00 p.m. on the Business Day immediately
before such new payoff date, recalculate the Payoff Amount by written notice to
the other parties hereto to reflect additional accrued and unpaid interest, plus
fees and expenses and (iii) such recalculation shall, absent timely objection
from ▇▇▇▇▇▇, be conclusive evidence of such Payoff Amount.
The Payoff Amount may be paid to Eagle by or on behalf of VR, the
Trust, the Trustee, ▇▇▇▇▇▇, the Sellers, or the Servicer (each individually a
"Receivables Seller Party" and collectively, the "Receivables Seller Parties").
This Agreement does not (i) create any indebtedness, liability or
other obligation of any Receivables Seller Party or (ii) constitute an agreement
of any Receivables Seller Party to
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pay or be responsible for any indebtedness, liability or other obligation of any
other Receivables Seller Party.
(b) Payment of the Payoff Amount shall be made by and on behalf of
the Receivables Seller Parties by way of a wire transfer of immediately
available funds to the following account (the "TERMINATION PAYMENT ACCOUNT"):
Bank Name : Bankers Trust Company
City and State: New York, NY
ABA Routing No.: 021001003
Account Number: 014 19 647
Reference: Eagle Funding-Big Flower
Collateral Acct#33708
Attention: ▇▇▇▇▇ ▇▇/Conduit Management Services
(c) Subject to the terms and conditions of this Agreement and in
consideration of the payment in full of the Payoff Amount in immediately
available funds, Eagle, hereby (i) acknowledges and agrees that payment of the
Payoff Amount will constitute payment in full of all obligations of the
Receivables Seller Parties under the Transaction Agreements and that, upon
payment of the Payoff Amount as described above, the Series Supplement will
automatically terminate and that none of the Receivables Seller Parties or any
guarantor or obligor of any such Person shall have any further obligation or
liability to Eagle under the Transaction Agreements, except for indemnities and
such other obligations that by the express terms of the Transaction Agreements
survive the termination thereof, (ii) represents and warrants that Eagle has not
assigned to any other Person any of its rights as holder of the Certificates and
(iii) represents and warrants that the interests being reconveyed hereunder by
Eagle are reconveyed free and clear of any lien or security interest created by
Eagle. Eagle further agrees that, concurrently with its receipt of the Payoff
Amount in immediately available funds, all security interests and liens, if any,
that each Receivables Seller Party or any guarantor or obligor of the
obligations under the Transaction Agreements have granted to Eagle with respect
to the transactions contemplated by the Transaction Agreements, whether or not
specifically referred to herein, shall be automatically released.
(d) Immediately upon the payment of the Payoff Amount in immediately
available funds as described above, (i) Eagle and the Trustee each hereby
authorizes each Receivables Seller Party to file and record financing statement
amendments with respect to each financing statement covering the Overall
Receivables Assets described on SCHEDULE II and such other financing statements
which evidence the liens and security interests granted in connection with the
transactions contemplated by the Transaction Agreements and may be of record in
favor of the Trustee or Eagle; (ii) Eagle will deliver (or cause to be
delivered) to the Trustee the originals of each Certificate for surrender and
cancellation; and (iii) Eagle will deliver, at the expense of the Receivables
Seller Parties but in no event at the expense of the Trustee or Eagle, such
documents as any Receivables Seller Party may reasonably request in connection
with Eagle's above-described release of the security interests granted to Eagle
pursuant to the Transaction Agreements.
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3. RECONVEYANCE BY THE TRUST. (a) Subject to the terms and
conditions of this Agreement, (i) VR will, concurrently with the payment of the
Payoff Amount in immediately available funds as described above, be
automatically deemed without the need for any further action to have contributed
an amount equal to the Payoff Amount (the "CONTRIBUTION") to the Trust, and (ii)
the Trustee, upon receipt of such Contribution, shall in accordance with the
terms of Section 2.1(d) of the Indenture, assign, transfer, and convey to VR, in
consideration of VR's interests in the Trust, all of the Trustee's and the
Trust's rights, titles and interests in and to the Transferred Assets
transferred by VR to the Trustee (on behalf of the Trust) pursuant to the
Pooling Agreement, except that the Trustee (in its capacity as Trustee under the
Pooling Agreement) shall retain a security interest in the Transferred Assets
and hold such security interest as Trustee for the benefit of Noteholders under
the Indenture.
(b) The Trust, without recourse, except as specifically set forth
herein, hereby (i) represents and warrants that prior to the receipt of the
Payoff Amount and surrender of the Certificates in accordance with Section 2(d)
above, the Series 1996-2 Certificates are the only "Certificates" issued by the
Trust that are outstanding as of the date hereof, (ii) agrees that upon receipt
by the Trustee (on behalf of the Trust) of the Contribution by VR, the Series
Supplement shall automatically terminate and that neither VR nor any Affiliate
of VR nor any guarantor or obligor of any such Person shall have any further
obligation or liability to the Trust under the Series Supplement, except for
indemnities and such other obligations that by the express terms of the Series
Supplement survive the termination thereof and (iii) represents and warrants
that the Trustee has not granted any lien or security interest in any of the
Transferred Assets to any Person other than through the issuance of Certificates
to Eagle and pursuant to the terms of the Indenture. The Servicer hereby
represents and warrants that (i) the UCC filings described on SCHEDULE II hereto
describe all of the currently effective UCC financing statements filed in
connection with the transactions contemplated by the Transaction Agreements
against VR, each Seller and each Affiliate of VR in favor of the Trust or
Trustee with respect to the transactions contemplated by the Transaction
Agreements and (ii) other than as set forth on SCHEDULE II, no filing in
connection with the transactions contemplated by the Transaction Agreements has
been made with respect to any obligation of VR, any Seller or any Affiliate of
VR under any of the Transaction Agreements or with respect to any collateral or
security therefor.
(c) Upon receipt of the Contribution and concurrently with the
reconveyance of the Transferred Assets as described in Section 3(a) above, VR,
the Sellers and the Servicer and the Trust authorize the Trustee to file and
record financing statement amendments with respect to each financing statement
described on SCHEDULE II and such other financing statements as may be of record
with respect to VR or any other Receivables Seller Party in favor of the Trust
to reflect the terms of this Agreement; and the Trustee, on behalf of the Trust,
hereby authorizes the filing of such amendment or will execute such other
documents as VR or ▇▇▇▇▇▇ may reasonably request to reflect the terms of this
Agreement; PROVIDED that such other documents shall be prepared by the
requesting party at the expense of the Receivables Seller Parties and in no
event at the expense of the Trustee or Eagle.
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4. TERMINATION OF SERIES SUPPLEMENT. Upon the effectiveness of this
Agreement as set forth in Section 5, the Series Supplement shall terminate,
except for indemnities and such other obligations that by the express terms of
the Series Supplement survive the termination thereof. The parties hereto
acknowledge and agree that all of the releases and reconveyances described in
paragraphs 2 and 3 shall occur simultaneously and automatically upon payment of
the Payoff Amount to Eagle as described in Section 2(b) above and that, unless
such Payoff Amount is paid in accordance with such Section so as to make this
Agreement effective, none of such releases and reconveyances shall be deemed to
have occurred.
5. EFFECTIVENESS OF THIS AGREEMENT. This Agreement shall be
effective as of this date upon the satisfaction of all of the following
conditions precedent:
(a) One or more counterparts of this Agreement shall have been
executed and delivered by each of the Trustee, VR, ▇▇▇▇▇▇ and Eagle; and
(b) Eagle shall have received payment of the Payoff Amount in
accordance with Section 2(b) above.
6. REPRESENTATIONS AND WARRANTIES. Each of the parties hereto
represents and warrants that it has the full corporate or other power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and that this Agreement has been duly and validly executed and
delivered by it (and assuming the due and valid execution and delivery hereof by
all other parties hereto) constitutes a legal, valid and binding obligation of
such party enforceable against it in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws of general application relating to or affecting the
enforcement of creditors' rights or by general principles of equity.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY NEW YORK LAW,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
8. MISCELLANEOUS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. This Agreement may be executed in any number of several counterparts,
and each such counterpart shall constitute an original and all such counterparts
together shall constitute one and the same instrument. The delivery of an
executed counterpart hereof by facsimile shall constitute delivery of an
executed counterpart hereof.
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IN WITNESS, each of the parties hereto, by their respective duly
authorized signatories, has executed and delivered this Agreement as of the date
first above written.
MANUFACTURERS AND TRADERS TRUST
COMPANY, not in its individual
capacity but solely as Trustee under
the Pooling Agreement on behalf of
the Trust and the Indenture on
behalf of the Noteholders
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇ RECEIVABLES, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
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EAGLEFUNDING CAPITAL CORPORATION
as sole Certificateholder
By: Fleet Securities, Inc., its
Attorney-in-Fact
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
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SCHEDULE I
Calculation/Breakdown of Payment Amount
principal: $ 130,000,000.00
interest: $ 86,877.78
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total: $ 130,086,877.78
SCHEDULE II
UCC Financing Statements
DEBTOR:
Name: BFP Receivables Corporation
Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jurisdiction Filing Number Filing Date
------------ ------------- -----------
Maryland - State Department of 160857270 March 22, 1996
Assessments and Taxation
DEBTOR:
Name: ▇▇▇▇▇▇, Inc.
Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jurisdiction Filing Number Filing Date
------------ ------------- -----------
Maryland - State Department of 160857271 March 22, 1996
Assessments and Taxation
Maryland - State Department of 181086317 June 8, 2001
Assessments and Taxation
California - Secretary of State 0116260260 June 8, 2001
Texas - Secretary of State 01-110925 June 8, 2001
DEBTOR:
Name: Webcraft, LLC
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jurisdiction Filing Number Filing Date
------------ ------------- -----------
▇▇▇▇▇▇▇▇▇▇ County, PA - Prothonotary 296967 June 8, 2001
Pennsylvania - Secretary of the 34031661 June 8, 2001
Commonwealth
New Jersey - Secretary of State 2047539 June 8, 2001
Name: Webcraft Chemicals, LLC
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jurisdiction Filing Number Filing Date
------------ ------------- -----------
▇▇▇▇▇▇▇▇▇▇ County, PA - Prothonotary 296968 June 8, 2001
Pennsylvania - Secretary of the 34031657 June 8, 2001
Commonwealth
New Jersey - Secretary of State 2047540 June 8, 2001