Exhibit 10.1
RECEIVABLES PURCHASE AGREEMENT
dated as of September 24, 1999
among
THE SELLERS PARTIES HERETO
and
QUEBECOR WORLD FINANCE INC.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS....................................................................1
SECTION 1.1 Defined Terms................................................1
ARTICLE II
PURCHASES AND SALES............................................................5
SECTION 2.1. Sales and Purchases of Receivables..........................5
SECTION 2.2. Purchase Price..............................................5
SECTION 2.3. Payments and Computations...................................6
SECTION 2.4. Rights of the Purchaser.....................................7
SECTION 2.5. Consent to Assignment of this Agreement.....................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES.................................................8
SECTION 3.1. Representations and Warranties of Sellers...................8
SECTION 3.2. Representations and Warranties of the Purchaser.............9
ARTICLE IV
CONDITIONS PRECEDENT..........................................................10
SECTION 4.1. Conditions to Closing......................................10
ARTICLE V
COVENANTS.....................................................................10
SECTION 5.1. Affirmative Covenants of Sellers...........................10
ARTICLE VI
TERMINATION...................................................................14
SECTION 6.1. Termination................................................14
ARTICLE VII
INDEMNIFICATION...............................................................14
SECTION 7.1. Indemnities by Sellers.....................................14
SECTION 7.2. Indemnities by the Purchaser...............................14
SECTION 7.3. Indemnification Procedures.................................15
SECTION 7.4. Special Indemnities by the Seller..........................15
ARTICLE VIII
REPURCHASE AMOUNTS AND DEEMED COLLECTIONS.....................................17
SECTION 8.1. Repurchase Amounts.........................................17
SECTION 8.2. Deemed Collections.........................................17
ARTICLE IX
MISCELLANEOUS.................................................................18
SECTION 9.1. Waivers and Amendments.....................................18
SECTION 9.2. Notices....................................................18
SECTION 9.3. Governing Law; Submission to Jurisdiction; Integration;
Service of Process....................................19
SECTION 9.4. Severability and Counterparts..............................19
SECTION 9.5. Successors and Assigns.....................................20
SECTION 9.6. Waiver of Confidentiality..................................20
SECTION 9.7. Characterization of the Transactions Contemplated by the
Agreement.............................................20
SECTION 9.8. Notification...............................................21
SECTION 9.9. Termination of Agreement...................................21
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EXHIBITS
Exhibit A Sellers
Exhibit B Form of Revolving Subordinated Promissory Note
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RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT, dated as of September 24, 1999
(this "Agreement"), is by and among the selling entities set forth on Exhibit A
attached hereto (collectively the "Sellers" and individually a "Seller") and
Quebecor World Finance Inc., a Delaware corporation (the "Purchaser").
R E C I T A L S
WHEREAS, the Sellers desire to sell, and the Purchaser desires to
purchase, from time to time, all of the Sellers' right, title and interest in,
to and under each of the Sellers respective present and future Receivables from
time to tome owing to it, and related rights.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual benefits to be derived
under this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Sellers and the Purchaser
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"Adverse Claim" means, for any asset or property of any Person, a lien,
security interest, charge, mortgage, pledge, hypothecation, assignment or
encumbrance, or any other right or claim, in, of or on any such asset or
property in favor of any other Person.
"Agent" shall have the meaning given to it in the RSA.
"Business Day" means any day excluding Saturday, Sunday, and any day on
which banks in New York, New York are authorized or required by law to be
closed.
"Closing Date" means the first Business Day on which all of the
conditions set forth in Section 4.1 of this Agreement have been satisfied.
"Collection Agent" means, with respect to any date, the Servicer or
such other Person appointed to administer and collect the Receivables pursuant
to Section 3.1(b) of the RSA.
"Collections" means, with respect to any Receivable, all amounts paid
on or with respect to such Receivable (including, without limitation, any
proceeds from collateral
securing such Receivable, or any guaranty of such Receivable, or any Deemed
Collections or Repurchase Amounts paid on account of such Receivable).
"Contract" means any agreement or invoice generated in the ordinary
course of business of any Seller pursuant to which an Obligor shall be obligated
to pay for services rendered to, or merchandise sold to, such Obligor by the
Seller.
"Credit and Collection Policies" means the credit and collection
policies and practices relating to the Receivables and the related Contracts of
the Sellers.
"Charge Off" means any Receivable, that has or should have been (in
accordance with its respective Credit and Collection Policy) charged off or
written off by a Seller.
"Deemed Collections" shall have the meaning set forth in Section 8.2.
"Eligible Receivable" means, at any time, any Receivable:
(i) which is stated to be due and payable within 90 days after the
invoice therefor;
(ii) which is not a Defaulted Receivable or a Charge-Off;
(iii) 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;
(iv) which is denominated and payable only in Dollars in the USA;
(v) 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;
(vi) 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 a related Contract to consent to the transfer, sale or
assignment of the rights and duties of the respective Seller under such
Contract, (c) does not contain a confidentiality provision that purports to
restrict the Purchaser's exercise of rights under this Agreement, and (d)
directs that payment be made to a Lock-Box Account or other collection account;
(vii) 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);
(viii) which satisfies all applicable requirements of the Credit and
Collection Policy of the respective Seller and was generated in the ordinary
course of such Seller's
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business from the sale of goods or provision of services to a related Obligor
solely by such Seller;
(ix) 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;
(x) which, in the case of a Seller 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 Sellers
with their chief executive office located in such state, does not exceed the
amount specified on the UCC financing statement filed by the respective Seller
to perfect the ownership interests of such Receivables sold by all such Sellers
and for which such tax has been paid; and
"Government Authority" means any (i) federal, state, municipal or other
governmental entity, board, bureau, agency or instrumentality, (ii)
administrative or regulatory authority (including any central bank or similar
authority), or (iii) court, judicial authority or arbitrator, in each case,
whether foreign or domestic.
"Indemnified Amounts" means damages, losses, claims, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements);
"Indemnified Party" means each Person that is entitled to be
indemnified against Indemnified Amounts pursuant to Article VII of this
Agreement.
"Indemnifying Party" means any Person that is obligated to indemnify
any other Person against Indemnified Amounts pursuant to Article VII of this
Agreement.
"Law" means any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree, or award
of any Official Body.
"Lock-Box Account" means each account maintained by the Collection
Agent on behalf of the Purchaser at a Lock-Box Bank for the purpose of receiving
or concentrating Collections.
"Lock-Box Agreement" means each agreement entered into by a Purchaser
and a Lock-Box Bank with respect to a Lock-Box Account.
"Lock-Box Bank" means each bank at which a Lock-Box Account is
maintained.
"Lock-Box Letter" means a letter from the Purchaser and the Collection
Agent to each Lock-Box Bank, acknowledged and accepted by such Lock-Box Bank.
"Obligor" means, with respect to any Receivable, each Person obligated
to pay such Receivable and each guarantor of such obligation.
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"Official Body" means any federal, state or local government or
political subdivision or any agency, authority, bureau, central bank commission,
department or instrumentality of any such government or political subdivision,
or any court, tribunal, grand jury, or arbitrator, in each case whether foreign
or domestic.
"Outstanding Balance" means, with respect to any Receivable at any
time, the then outstanding principal amount thereof (excluding any accrued and
unpaid finance charges and interest related thereto).
"Person" means an individual, corporation, association, joint venture,
trust, unincorporated organization, Governmental Authority or other entity of
any kind.
"Purchaser Indemnified Parties" shall have the meaning given to it in
Section 7.1 of this Agreement.
"Purchase Price" means, with respect to each sale and assignment of
Receivables to the Purchaser by any Seller pursuant to Section 2.1 of this
Agreement, the amount payable by the Purchaser to such Seller in consideration
of such sale and assignment, which amount shall be equal to (i) 98.5% of the
aggregate then outstanding Outstanding Balance of the Receivables included in
such sale and assignment, or (ii) such other amount as may be agreed to by the
Seller and the Purchaser.
"Purchaser" means Quebecor World Finance Inc., a Delaware corporation.
"Receivable" means each obligation of any Person to pay for merchandise
sold or services rendered by any Seller to such Person, and includes all of such
Seller's rights in and to (i) the payment of any interest or finance charges
with respect to such obligation, (ii) the merchandise (including returned goods)
and Contracts relating to such obligation, (iii) all security interests,
guarantees and property securing or supporting payment of such obligation, (iv)
all Records relating to or evidencing such obligation, and (v) all proceeds of
the foregoing (including, without limitation, all Collections on such
obligation).
"Records" means, with respect to each Receivable, all Contracts, books,
records and other documents or information (including computer programs, tapes,
disks, software, and related property and rights) related to or evidencing such
Receivable.
"Repurchase Amount" shall have the meaning set forth in Section 8.1.
"RSA" means the Receivables Sale Agreement, dated as of September 24,
1999 by and among the Purchaser, Amsterdam Funding Corporation, the Servicer and
others, as may be amended, supplemented and modified from time to time.
"Revolving Subordinated Note" means the revolving promissory note
issued by the Purchaser to each Seller to finance any part of the Purchase Price
for Sold Receivables sold by such Seller to the Purchaser that is not paid to
such Seller in cash, as
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such promissory note may be amended, supplemented or modified by such Seller and
the Purchaser from time to time.
"Sellers" means each of the entities named in Exhibit A hereto and such
other entities affiliated with any Seller, if any, that are agreed by the
Sellers and the Purchaser from time to time after the date of this Agreement.
"Seller Indemnified Parties" shall have the meaning given to it in
Section 7.2 of this Agreement.
"Sold Receivables" means all of Receivables sold to the Purchaser by
the Sellers or any Seller pursuant to Section 2.1 of this Agreement.
"Servicer" means Quebecor Printing (USA) Holdings, Inc., as the initial
Collection Agent.
"Termination Date" means the earlier of (a) the Business Day designated
by the Sellers or the Purchaser with no less than thirty (30) days prior notice
to the other, or (c) such other date as is agreed to by the Sellers and the
Purchaser.
"Termination Event" shall have the meaning given to it in the RSA.
ARTICLE II
PURCHASES AND SALES
SECTION 2.1. SALES AND PURCHASES OF RECEIVABLES. Upon the terms and
subject to the conditions set forth in this Agreement, on the Closing Date and
each subsequent Business Day prior to the Termination Date, each of the Sellers
shall sell and assign to the Purchaser, and the Purchaser shall purchase, all of
such Seller's right, title and interest in, to and under all of the then
outstanding Receivables of such Seller that are Eligible Receivables and that
have not been sold and assigned to the Purchaser on or prior to such day
pursuant to this Agreement; provided, however, that notwithstanding any such
sale and assignment, the Purchaser shall not assume, and shall not have, any
obligation or liability under or with respect to any Contract related to any
such then Sold Receivable. Each of the Sellers with respect to its Sold
Receivables shall (i) remain responsible for all of its obligations under the
Contracts related to such Sold Receivables, and (ii) observe and perform all of
the conditions and obligations to be observed and performed by it under such
Contracts in accordance with the terms of such Contracts.
SECTION 2.2. PURCHASE PRICE. (a) The Purchase Price for each sale and
assignment of Receivables by each Seller to the Purchaser pursuant to Section
2.1 of this Agreement shall be payable to such Seller within five Business Days
of the date of such sale and assignment. At the election of the Purchaser, all
or any part of the Purchase Price payable to such Seller with respect to any
sale and assignment of such Receivables to the Purchaser may be paid by
borrowings under the Revolving Subordinated Note
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issued by the Purchaser to such Seller rather than cash; provided, however, that
(i) unless otherwise agreed to by such Seller, on the Closing Date, the
Purchaser shall pay such Seller in cash an amount not less than seventy-five
percent (75%) of the Purchase Price payable for such Receivables then being sold
and assigned to the Purchaser on the relevant Closing Date, and (ii) after such
Closing Date, the Purchaser shall not be permitted to increase its borrowings
under the Revolving Subordinated Note issued to such Seller without the prior
written consent of such Seller if immediately prior to, or immediately after
giving effect to, such increase the stockholders' equity of the Purchaser (as
determined in accordance with generally accepted accounting practices) would be
less than five percent (5%) of the aggregate amount then payable under the
Revolving Subordinated Note issued to such Seller.
(b) The Purchaser may prepay all or any part of the amounts
outstanding under any Revolving Subordinated Note at any time without premium or
penalty.
(c) Unless otherwise agreed to by the applicable Seller and
the Purchaser, all Collections on the Sold Receivables sold by such Seller to
the Purchaser shall be applied to reduce the amounts then payable to such Seller
pursuant to the terms of this Agreement (including, without limitation, all
amounts then payable under the related Revolving Subordinated Note) until all
such amounts have been paid in full. If the aggregate amount of cash received by
a Seller from the Purchaser pursuant to this Agreement, and the Collection Agent
on account of Collections pursuant to the RSA relative to such Seller's Sold
Receivables, on any day exceeds the aggregate amount then payable to such Seller
pursuant to this Agreement (including, without limitation, all amounts payable
under such Seller's Revolving Subordinated Note), such Seller shall promptly
transfer such excess amount to the Purchaser.
(d) Consistent with the Purchaser's ownership of Sold
Receivables, the Purchaser shall be solely responsible for servicing,
administering and collecting such Receivables, and the Sellers shall have no
rights or obligations whatsoever in this regard. The Purchaser has appointed the
Servicer as the initial Collection Agent of the Sold Receivables pursuant to the
RSA to administer the collection, administration and servicing of Sold
Receivables on behalf of the Purchaser in accordance with the terms and
conditions of the RSA. In furtherance thereof, the Purchaser shall cause the
Collection Agent to make and maintain all appropriate record-keeping entries to
reflect (i) all amounts payable by the Purchaser to each Seller pursuant to this
Agreement on each day (including, without limitation, all amounts then payable
under such Seller's Revolving Subordinated Note), and (ii) all payments received
by such Seller on each day from (1) the Purchaser pursuant to this Agreement,
and (2) the Collection Agent on account of Collections pursuant to the RSA
relative to such Seller's Sold Receivables.
SECTION 2.3. PAYMENTS AND COMPUTATIONS. All amounts to be paid or
deposited by any of the Sellers, on the one hand, or the Purchaser, on the other
hand, pursuant to the terms of this Agreement shall be paid or deposited to or
in an account designated by, or on behalf of, the party entitled to receive such
amounts no later than 1:00 p.m. (New York City time) on the day when due in
immediately available funds. Each of the Sellers
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and the Purchaser shall pay interest on all amounts not paid or deposited when
due under this Agreement at a rate equal to 2% per annum plus the rate then
payable on the Revolving Subordinated Note. All computations of discount,
interest and all per annum fees under this Agreement shall be made on the basis
of a year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
SECTION 2.4. RIGHTS OF THE PURCHASER.
(a) The Purchaser, or the Collection Agent on behalf of the Purchaser,
shall be entitled to: (i) receive all Collections on the Sold Receivables; (ii)
endorse all drafts, checks and other forms of payment on account of the Sold
Receivables and to settle, adjust and forgive any amounts payable with respect
to the Sold Receivables; and (iii) exercise all other rights and incidences of
ownership of the Sold Receivables.
(b) Each of the Sellers shall promptly deliver to the Purchaser or as
the Purchaser may direct, including to the Collection Agent on behalf of the
Purchaser pursuant to the RSA, evidence of the creation of its respective Sold
Receivables, including invoices, charge slips, credit memoranda and notes
evidencing such creation, necessary for the Purchaser to realize upon such Sold
Receivables.
(c) Each of the Sellers agrees that from time to time, it will promptly
execute and deliver at its own expense, all further reasonable instruments and
documents, and take all further action that the Purchaser may reasonably request
in writing in order to perfect, protect or more fully evidence the Purchaser's
ownership interest in the Receivables sold to the Purchaser by such Seller, and
upon the Purchaser's request, each of the Sellers will execute such further
financing or continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices, as may be necessary or
appropriate or as the Purchaser may reasonably request.
(d) Anything herein to the contrary notwithstanding:
(i) Each of the Sellers shall perform its obligations under
the Contracts related to the Receivables sold to the Purchaser by such Seller to
the same extent as if such Receivables had not been sold hereunder, and the
exercise by the Purchaser of its rights hereunder shall not release any such
Seller from any of its duties or obligations with respect to any Receivables
sold to the Purchaser by such Seller or under the related Contracts; and
(ii) The Purchaser shall not have any obligation or liability
with respect to any related Contracts, nor shall the Purchaser be obligated to
perform any of the obligations of the Sellers thereunder.
SECTION 2.5. CONSENT TO ASSIGNMENT OF THIS AGREEMENT. The Agent, on
behalf of the Purchasers (as defined in the RSA), is intended to be a third
party beneficiary of this Agreement. The Sellers hereby consent to the
assignment by the Purchaser to Agent, for the benefit of the Purchasers (as
defined in RSA), of all of the Purchaser's right and title to and interest in
this Agreement with respect to the Sold Receivables that are Eligible
Receivables (as defined in the RSA) as security for the Purchaser's obligations
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under the RSA. The Sellers consent to the Purchaser's agreement that, following
a Termination Event, the Agent shall have the sole right to enforce the
Purchaser's rights and remedies under this Agreement with respect to all of the
Sold Receivables that are Eligible Receivables (as defined in RSA) (including,
without limitation, all of the Purchaser's rights to enforce the Sellers' rights
and remedies under the Contracts); provided, however, that under no
circumstances shall the Agent have any obligation to perform any of the
Purchaser's obligations under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each Seller
represents and warrants to the Purchaser that:
(a) Corporate Existence and Power. Each Seller 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 is not reasonably likely to have a material adverse effect on (i)
its ability to perform its obligations under, or the enforceability of, this
Agreement, (ii) its business or financial condition, (iii) the interests of the
Purchaser under this Agreement, 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 Seller of this Agreement (i) is within its
corporate or other organizational powers, (ii) has been duly authorized by all
necessary corporate or other organizational action, (iii) does not contravene or
constitute a default under (A) any applicable law, rule or regulation, (B) its
charter or by-laws, or (C) any material agreement, order or other instrument to
which it is a party or its property is subject, and (iv) will not result in any
Adverse Claim on any Sold Receivable.
(c) No Consent Required. Except as contemplated hereby, no
approval, authorization or other action by, filings with, or notices to, any
Governmental Authority or other Person is required to be obtained or made by any
Seller in connection with the execution, delivery and performance by such Seller
of this Agreement or any transaction contemplated by this Agreement.
(d) Binding Effect. This Agreement constitutes the legal,
valid and binding obligation of each Seller enforceable against each Seller in
accordance with its terms, except as limited by (i) bankruptcy, insolvency, or
other similar laws relating to or affecting the enforcement of creditors'
rights, and (ii) general principles of equity.
(e) Good Title, No Disputes. Immediately prior to each sale
and assignment of its Sold Receivables to the Purchaser pursuant to Section 2.1
of this
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Agreement, each Seller will have undivided good title to, and be the sole legal
and beneficial owner of, all of such Sold Receivables, free and clear of all
Adverse Claims. All of its respective Sold Receivables will be transferred by
each Seller to the Purchaser, free and clear of all Adverse Claims, and such
Sold Receivables shall not be subject to any dispute with or set off or defense
by its related Obligor. From and after the filing of the UCC financing
statements referred to in Section 5.1(e) the Purchaser's ownership interest in
the Sold Receivables shall at all times be duly perfected by all required
filings, notices and registrations under all applicable laws.
(f) No Actions, Suits. There are no actions, suits or other
proceedings (including matters relating to environmental liability) pending or
threatened against or affecting any Seller, or any of its properties, that (i)
if adversely determined (individually or in the aggregate), may have a material
adverse effect on the financial condition of such Seller, or on the
collectibility of a material portion of its Sold Receivables, or (ii) involve
this Agreement or any transaction contemplated by this Agreement. No Seller 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 (a) the financial condition of such Seller, or (b)
the collectibility of a material portion of such Seller's Sold Receivables that
are Eligible Receivables.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to the Sellers that:
(a) Corporate Existence and Power. The Purchaser is a
corporation duly organized, validly existing, and in good standing under the
laws of its state of incorporation and has all corporate 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 is not reasonably likely to have a material adverse effect on its
ability to perform its obligations under, or the enforceability of, this
Agreement or the Revolving Subordinated Note.
(b) Corporate Authorization and No Contravention. The
execution, delivery, and performance by the Purchaser of this Agreement (i) is
within its corporate powers, (ii) has been duly authorized by all necessary
corporate action, and (iii) does not contravene or constitute a default under
(A) any applicable law, rule or regulation, (B) its charter or by-laws, or (C)
any agreement, order or other instrument to which it is a party or its property
is subject.
(c) No Consent Required. Except as contemplated hereby, no
approval, authorization or other action by, filings with, or notices to, any
Governmental Authority or other Person is required to be obtained or made by the
Purchaser in connection with the execution, delivery and performance by the
Purchaser of this Agreement or any transaction contemplated by this Agreement.
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(d) Binding Effect. This Agreement constitutes the legal,
valid and binding obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms, except as limited by (i) bankruptcy, insolvency,
or other similar laws relating to or affecting the enforcement of creditors'
rights, and (ii) general principles of equity.
(e) No Actions, Suits. There are no actions, suits or other
proceedings pending or threatened against or affecting the Purchaser or any of
its properties.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. CONDITIONS TO CLOSING. This Agreement shall become
effective on the first date on which all conditions in this Section 4.1 are
satisfied:
(a) all of the conditions precedent to the effectiveness of
the RSA shall have been satisfied or waived; and
(b) an executed copy of the Revolving Subordinated Note shall
have been delivered by the Purchaser to the Sellers.
ARTICLE V
COVENANTS
SECTION 5.1. AFFIRMATIVE COVENANTS OF SELLERS. At all times from the
date of this Agreement until the first date after the Termination Date on which
all amounts due and owing with respect to the Sold Receivables have been paid in
full or written-off in accordance with the Credit and Collection Policies,
unless the Purchaser shall give its prior consent (which consent shall not be
unreasonably withheld or delayed), each Seller hereby agrees as follows:
(a) Conduct of Business. Each Seller will 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 such Seller, or on the collectibility of a material
portion of its Sold Receivables.
(b) Compliance with Laws. Each Seller will comply with all
laws, regulations, judgments and other directions or orders imposed by any
Governmental Authority to which it 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 such Seller, or on the
collectibility of a material portion of its Sold Receivables.
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(c) Furnishing Information and Inspection of Records. Each
Seller will from time to time furnish to the Purchaser such information
concerning the Sold Receivables, as the Purchaser may reasonably request. Each
Seller will permit, at any time during regular business hours upon reasonable
advance written notice, the Purchaser (or any representatives thereof) to: (i)
examine and make copies of any or all of the Records relating to or evidencing
its Sold Receivables, (ii) visit the offices and properties of such Seller for
the purpose of examining any or all of the Records relating to or evidencing its
Sold Receivables, and (iii) discuss matters relating to this Agreement and/or
its Sold Receivables with any of the officers, directors, employees or
independent public accountants of any Sellers who have knowledge of such
matters.
(d) Keeping Records. Each Seller will have and maintain (i)
administrative and operating procedures (including an ability to recreate
Records relating to or evidencing its Sold Receivables if originals are
destroyed), (ii) adequate facilities, personnel and equipment, and (iii) all
Records and other information necessary for collecting such Sold Receivables
(including Records adequate to permit the identification of each Sold Receivable
and all Collections on, and all adjustments to, each Sold Receivable). Each
Seller will use its best efforts to identify the Purchaser's interest in its
Sold Receivables on its computer and master data processing books and records.
(e) Perfection. (i) Each Seller will promptly execute and
deliver all instruments and documents and take all action necessary or
reasonably requested by the Purchaser (including the execution and filing of
financing or continuation statements, amendments thereto or assignments thereof)
to enable the Purchaser to (1) exercise and enforce all of its rights under this
Agreement, and (2) vest and maintain vested in the Purchaser a valid, first
priority perfected ownership interest in the applicable Sold Receivables free
and clear of all Adverse Claims. Each Seller hereby agrees that the Purchaser
will be permitted to sign and file any continuation statements, amendments
thereto and assignments thereof with respect to such Sold Receivables without
the signature of such Seller.
(ii) Each Seller will not change its name, identity or
corporate structure or relocate its chief executive office or the Records
relating to or evidencing its respective Sold Receivables unless it has (1)
given at least ten (10) days advance notice to the Purchaser, and (2) delivered
to the Purchaser all financing statements, instruments and other documents
(including direction letters) required to maintain the Purchaser's ownership
interest in such Sold Receivables or otherwise reasonably requested by the
Purchaser.
(iii) Each Seller will maintain its chief executive office
within a jurisdiction in the United States of America at all times after the
date of this Agreement. If any Seller moves its chief executive office to a
location that imposes taxes, fees or other charges to perfect the Purchaser's
ownership interests in its respective Sold Receivables, such Seller will pay all
such amounts and any other costs and expenses incurred in order to maintain the
enforceability of (1) this Agreement, and (2) its
11
respective Sold Receivables or the Purchaser's ownership interests in such Sold
Receivables.
(f) Performance of Duties. Each Seller will perform all of its
duties and obligations under this Agreement. Each Seller will (i) fully and
timely perform in all material respects all of the obligations required to be
performed by it in connection with its respective Sold Receivables, and (ii)
comply in all material respects with its respective Credit and Collection
Policy. In the event that any Person other than the Servicer is appointed as the
Collection Agent at any time, the Servicer shall, upon the request of the
Purchaser, promptly deliver all Records relating to or evidencing the Sold
Receivables to such Collection Agent (or its designee) at the location
designated by the Purchaser or such Collection Agent; provided, however, that
any such Collection Agent shall provide the Servicer with reasonable access to
such Records.
(g) Payments on Receivables. Each Seller will at all times
instruct all Obligors to deliver all Collections on its respective Sold
Receivables to a Lock-Box Account. If any Collections on a Seller's respective
Sold Receivables are received by such Seller, such Seller shall hold such
Collections in trust for the benefit of the Purchaser and promptly (but in any
event within two Business Days after receipt) deposit such Collections into a
Lock-Box Account. Each Seller shall use its reasonable best efforts to prevent
any funds other than Collections on its respective Sold Receivables from being
deposited into any Lock-Box Account; provided, however, that if any funds other
than such Collections are nevertheless deposited into any Lock-Box Account, such
applicable Seller will identify and remit such funds to the owner of such funds
as soon as practicable. Any payment by an Obligor to any Seller shall, except as
otherwise instructed by the Purchaser, be remitted to the Collection Agent as a
Collection on the Receivables of such Obligor (starting with the oldest such
Sold Receivable) to the extent of any amounts then due and payable thereunder
before being applied to any other Receivable or other indebtedness of such
Obligor.
(h) Extension or Amendment of Receivables. Except as permitted
by the Credit and Collection Policies, the Sellers shall not amend or otherwise
modify the terms of any Sold Receivable, or otherwise amend, modify or waive any
term or condition of any Contract related to or evidencing such Sold Receivable.
(i) Change in Business or Credit and Collection Policy. Each
of the Sellers agrees not to make any material change in the character of its
business or its Credit and Collection Policy without the prior consent of the
Purchaser.
(j) Adverse Claims. Each of the Sellers agrees not to sell,
assign (by operation of law or otherwise) or otherwise dispose of, or create or
suffer to exist any Adverse Claim on or against any of its respective Sold
Receivables.
(k) Separateness Covenants. Each Seller shall do all things
necessary and appropriate to maintain its existence separate and apart from the
Purchaser, including, without limitation:
12
(i) practicing and adhering to corporate formalities, such as
maintaining appropriate books and records;
(ii) refraining from (1) guaranteeing or otherwise becoming
liable for any obligations of the Purchaser, (2) having obligations
guaranteed by the Purchaser, and (3) holding itself out as responsible
for debts of the Purchaser or for decisions or actions with respect to
the affairs of the Purchaser;
(iii) maintaining all of its deposit and other bank accounts
and all of its assets separate from those of the Purchaser;
(iv) maintaining all of its financial records separate and
apart from those of the Purchaser and ensuring that any consolidated
financial statements or other public information contain appropriate
disclosures concerning the Purchaser's separate existence;
(v) reimbursing the Purchaser out of the Seller's own funds
for any services provided to the Seller by employees, officers,
consultants, and agents of the Purchaser;
(vi) maintaining office space separate and apart from that of
the Purchaser or allocating fairly and reasonably any overhead for
shared office space;
(vii) accounting for and managing all of its liabilities
separately from the Purchaser (including, without limitation, payment
directly by the Seller of all payroll, accounting and other
administrative expenses and taxes);
(viii) allocating, on an arm's-length basis, all corporate
operating services, leases and expenses shared between the Seller and
the Purchaser (including, without limitation, those associated with the
services of shared consultants and agents and shared computer equipment
and software);
(ix) refraining from filing or otherwise initiating or
supporting the filing of a motion in any bankruptcy or other insolvency
proceeding involving the Purchaser to substantively consolidate the
assets and liabilities of the Seller with the assets and liabilities of
the Purchaser;
(x) maintaining adequate capitalization in light of its
business and purpose;
(xi) refraining from commingling assets with those of the
Purchaser;
13
(xii) refraining from acquiring obligations or securities of
the Purchaser (other than the Revolving Subordinated Note) and
refraining from loaning any funds to the Purchaser;
(xiii) using separate stationery, invoices, and checks from
the Purchaser; and
(xiv) correcting any known misunderstanding regarding the
separate identity of the Purchaser.
ARTICLE VI
TERMINATION
SECTION 6.1. TERMINATION. This Agreement shall terminate upon the
Termination Date; provided, however, that the following rights and obligations
shall survive the termination of this Agreement: (i) the indemnification and
payment provisions of Article VII of this Agreement, and (ii) the Purchaser's
obligations under the Revolving Subordinated Note.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. INDEMNITIES BY THE SELLERS. Without limiting any other
rights that the Purchaser may have under this Agreement or under applicable law,
each Seller hereby agrees to indemnify the Purchaser, and any permitted assigns
and its officers, directors, agents and employees (collectively, the "Purchaser
Indemnified Parties") from and against any and all Indemnified Amounts awarded
against or incurred by the Purchaser Indemnified Parties in any action or
proceeding between such Seller and any of the Purchaser Indemnified Parties or
between any of the Purchaser Indemnified Parties and any other Person or
otherwise, arising out of or as a result of any breach by such Seller of any of
its representations, warranties and covenants in this Agreement.
SECTION 7.2. INDEMNITIES BY THE PURCHASER. Without limiting any other
rights that the Sellers may have under this Agreement or under applicable law,
the Purchaser hereby agrees to indemnify each Seller and its officers,
directors, agents and employees and any permitted assigns (collectively, the
"Seller Indemnified Parties") from and against any and all Indemnified Amounts
awarded against or incurred by such Seller Indemnified Parties in any action or
proceeding between the Purchaser and any of such Seller Indemnified Parties or
between any of such Seller Indemnified Parties and any other Person or
otherwise, arising out of or as a result of any breach by the Purchaser of any
of its representations, warranties and covenants in this Agreement; provided,
however, that notwithstanding any other provision to the contrary in this
Agreement, until the first day after the Termination Date on which all amounts
due and owing with respect to the Sold Receivables have been paid in full or
written-off in accordance with the
14
Credit and Collection Policies, all of the Purchaser's obligations under this
Section 7.2 shall be satisfied by increasing the amount outstanding under the
Revolving Subordinated Note by the aggregate amount of the Indemnified Amounts,
if any, that become payable to the Seller Indemnified Parties.
SECTION 7.3. INDEMNIFICATION PROCEDURES. In the event that any claim,
action or proceeding for Indemnified Amounts is made or brought against any
Indemnified Party, such Indemnified Party shall promptly notify the Indemnifying
Party in writing; provided, however, that no delay on the part of such
Indemnified Party in notifying the Indemnifying Party shall relieve the
Indemnifying Party from any obligation under this Agreement unless (and then
solely to the extent) the Indemnifying Party is prejudiced by such delay. The
Indemnifying Party will have the right to defend such claim or proceeding with
counsel of its choice reasonably satisfactory to the Indemnified Party so long
as the Indemnifying Party notifies the Indemnified Party that it will assume the
defense thereof within twenty (20) days after notice from the Indemnified Party
of such claim, action or proceeding and the Indemnifying Party reimburses the
Indemnified Party for any fees and expenses incurred by it during such twenty
(20) day period; provided, however, that the Indemnified Party may retain
separate co-counsel at its sole cost and expense and participate in the defense
of such claim, action or proceeding; and provided further that the Indemnified
Party may retain its own counsel at the sole cost and expense of the
Indemnifying Party if: (i) the employment of such counsel has been specifically
authorized in writing by the Indemnifying Party; (ii) the Indemnifying Party has
failed to assume the defense and employ counsel within thirty (30) days of
receiving notice of such claim or proceeding; and (iii) the named parties to any
such action (including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall have been
advised by its counsel that there may be one or more legal defenses available to
it that are different from or additional to those available to the Indemnifying
Party (in which case the Indemnifying Party shall not have the right to assume
the defense of such action on behalf of such Indemnified Party). The
Indemnifying Party shall not be liable for any settlement of any such action
effected without the written consent of the Indemnifying Party; provided,
however, if any action is settled with the written consent of the Indemnifying
Party, the Indemnifying Party agrees to indemnify and hold harmless any
Indemnified Party from and against any loss or liability by reason of such
settlement.
SECTION 7.4. SPECIAL INDEMNITIES BY THE SELLERS. Without limiting any
other rights any Purchaser Indemnified Party may have hereunder or under
applicable law, each Seller hereby indemnifies and holds harmless, the Purchaser
or any successor to or assignee of the Purchaser, whether on its own behalf or
derivatively on behalf of the Purchaser, and their respective affiliates,
successors and assigns, from and against any and all Indemnified Amounts at any
time imposed on or incurred by any such party arising out of or otherwise
relating to any one or more of the following, excluding only Indemnified Amounts
to the extent (a) a final judgment of a court of competent jurisdiction holds
such Indemnified Amounts resulted solely from gross negligence or willful
misconduct of such party seeking indemnification, or (b) due to the credit risk
of
15
the Obligor and for which reimbursement would constitute recourse to such Seller
or the Collection Agent for uncollectible Sold Receivables:
(i) any representation or warranty made by such
Seller, under or in connection with this Agreement or any other
information or report delivered by such Seller pursuant thereto,
which shall have been false or incorrect in any material respect
when made or deemed made;
(ii) the failure by such Seller to comply with any
applicable law, rule or regulation related to any Sold
Receivable of such Seller sold to the Purchaser hereunder, or
the nonconformity of any such Sold Receivable with any such
applicable law, rule or regulation;
(iii) the failure of such Seller to vest and maintain
vested in the Purchaser a perfected ownership interest in any
Sold Receivable of such Seller sold to the Purchaser hereunder,
free and clear of any Adverse Claim;
(iv) any commingling of Collections or other funds
received by such Seller to which the Purchaser is entitled
hereunder with any other funds;
(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 of such Seller sold to the
Purchaser hereunder, 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 or otherwise relating to the collectibility of any
Sold Receivables of such Seller;
(vii) any failure of such Seller to perform its
duties or obligations in accordance with the provisions of this
Agreement;
(viii) 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 of such
Seller sold to the Purchaser hereunder;
16
ARTICLE VIII
REPURCHASE AMOUNTS AND DEEMED COLLECTIONS
SECTION 8.1. (a) REPURCHASE AMOUNTS. Each Seller hereby covenants and
agrees with the Purchaser that if any of such Seller's representations and
warranties contained in Section 3.1 with respect to any Sold Receivable sold to
the Purchaser by such Seller was incorrect when made (a) such Seller shall upon
notice from the Purchaser repurchase such Sold Receivable from the Purchaser at
a price equal to the Outstanding Balance of such Sold Receivable (after giving
effect to the receipt of any moneys collected from whatever source on account of
such Sold Receivable) (such amount being the "REPURCHASE AMOUNT"). The amount
due in respect of the foregoing repurchase obligation shall be paid to the
Purchaser by deposit to the Lock-Box Account within two Business Days following
notice to such Seller of such breach.
(b) With respect to all Sold Receivables, the Repurchase
Amount of which has been received by the Purchaser as set forth in Section 8.1
above, the Purchaser shall, at the expense of the applicable Seller, convey,
transfer and assign to such Seller all right, title and interest of such Seller
in and to such Sold Receivables free and clear of all Adverse Claims. The
Purchaser shall execute such necessary documents and instruments of transfer and
assignment prepared by such Seller and take such other actions as shall be
reasonably requested by such Seller to effect the repurchase of any such Sold
Receivables.
SECTION 8.2. (a) DEEMED COLLECTIONS. If on any day the Outstanding
Balance of a Sold Receivable of any Seller is either (i) reduced as a result of
any defective, rejected or returned goods or services, any discount, or any
adjustment by such Seller, or (ii) reduced or cancelled as a result of a setoff
in respect of any claim by the Obligor thereof against such Seller (whether such
claim arises out of the same or a related transaction or an unrelated
transaction), which events shall not arise from the financial inability of the
Obligor thereof relative to such Sold Receivable, such Seller shall be deemed to
have received on such day a Collection of such Sold Receivable (a "DEEMED
COLLECTION") in the amount of such reduction or cancellation and shall make the
payment required to be made by it to the Lock-Box Account in connection with
such Collection on the day required.
(b) Without limiting the effect of Article VII, no Seller
shall otherwise be liable for any deficiency in Collections of any of
the Sold Receivables sold by such Seller to the Purchaser.
17
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. WAIVERS AND AMENDMENTS. No failure or delay on the part of
any party to this Agreement in exercising any power, right or remedy of such
party under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or remedy.
The rights and remedies provided in this Agreement shall be cumulative and
nonexclusive of any rights or remedies provided by law. Any provision of this
Agreement may be amended if, but only if, such amendment is in writing and is
signed by the parties hereto.
SECTION 9.2. NOTICES. Except as provided below, all communications and
notices provided for under this Agreement shall be in writing (including bank
wire, telex, telecopy or electronic facsimile transmission or similar writing)
and shall be given to the other party at its address or telecopy number set
forth below or at such other address or telecopy number as such party may
hereafter specify for the purposes of notice to such party. Each such notice or
other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section 9.2 and
confirmation is received, (ii) two (2) Business Days after the date on which
such notice or communication is delivered to a nationally or internationally
recognized overnight courier service, or (iii) if given by any other means, when
received at the address specified in this Section 9.2.
If to any of the Sellers:
β/β ββββββββ ββββββββ (βββ) Corp.
βββ ββββββββββ ββββββ
βββββ βββ
ββββββ, ββ βββββ
Attention: General Counsel and Secretary
Telephone: (βββ) βββ-ββββ
With a copy to:
Imprimeries Quebecor S.A.
ββββββββββ ββ βββββββ-ββββββ
βββββ βββ βββββββββ ββ,
Chayette 8 ββ ββββ, ββββββββ
βββββββββββ
Tel: ββ-ββ-βββ-ββββ
Fax: ββ-ββ-βββ-ββββ
and
18
If to the Purchaser:
Quebecor World Finance Inc.
βββ ββββββββ ββββββ
βββββ βββ
ββββββββββ, ββ βββββ
Attention: Vice President, Legal Affairs and Secretary
Telephone: (βββ) βββ-ββββ
With a copy to:
Imprimeries Quebecor S.A.
ββββββββββ ββ βββββββ-ββββββ
βββββ βββ βββββββββ ββ,
Chayette 8 ββ ββββ, ββββββββ
βββββββββββ
Tel: ββ-ββ-βββ-ββββ
Fax: ββ-ββ-βββ-ββββ
SECTION 9.3. GOVERNING LAW; SUBMISSION TO JURISDICTION; INTEGRATION;
SERVICE OF PROCESS. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE SELLERS AND THE
PURCHASER 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 CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT. Each of the Sellers and the Purchaser hereby irrevocably waives,
to the fullest extent it may effectively do so, any objection that it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court, any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum and any claim based on its immunity from suit.
Nothing in this Section 9.3 shall affect the right of the Purchaser or any
Seller to bring any action or proceeding against the other or its property in
the courts of other jurisdictions.
(b) This Agreement contains the final and complete integration
of all prior expressions by the Sellers and the Purchaser with respect to the
subject matter of this Agreement and shall constitute the entire Agreement among
the Sellers and the Purchaser with respect to the subject matter of this
Agreement superseding all prior oral or written understandings.
SECTION 9.4. SEVERABILITY AND COUNTERPARTS. Any provisions of this
Agreement that are prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in
19
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. This Agreement may be executed in any number of separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.
SECTION 9.5. SUCCESSORS AND ASSIGNS. (a) This Agreement shall be
binding on each Seller and the Purchaser and their successors and assigns;
provided, however, that no Seller may assign any of its rights or delegate any
of its duties under this Agreement without the prior written consent of the
Purchaser. No provision of this Agreement shall in any manner restrict the
ability of the Purchaser to assign, participate, grant security interests in, or
otherwise transfer, any Sold Receivable.
(b) Each Seller hereby agrees and consents to the complete
assignment by the Purchaser from time to time of all or any part of its rights,
title and interest in and to this Agreement and the respective Sold Receivables
to the Agent for the benefit of the Purchasers (as defined in the RSA).
SECTION 9.6. WAIVER OF CONFIDENTIALITY. Each of the Sellers hereby
consents to the disclosure of any nonpublic information with respect to it
received by the Purchaser to any nationally recognized rating agency rating
Amsterdam Funding Corporation's commercial paper, the Agent, and the Liquidity
Providers or the Enhancer (each as defined in the RSA) in connection with the
RSA.
SECTION 9.7. CHARACTERIZATION OF THE TRANSACTIONS CONTEMPLATED BY THE
AGREEMENT. It is the intention of the Sellers and the Purchaser that (i) the
transactions contemplated by this Agreement constitute an absolute and
irrevocable sale, assignment, transfer and conveyance to the Purchaser of all of
the Sellers' right, title and interest in, to and under all of the Sold
Receivables, free and clear of all Adverse Claims, without any recourse except
as herein specifically provided, and (ii) the Sellers have no interest or right
whatsoever in any of the Sold Receivables. The Sellers and the Purchaser do not
intend the transactions contemplated by this Agreement to be, or for any purpose
to be characterized as, a lending transaction secured by the Sold Receivables
from the Sellers to the Purchaser or otherwise. If, however, the transactions
contemplated by this Agreement should nevertheless be deemed a financing rather
than a true sale, the Sellers and the Purchaser intend that (i) the Sellers
shall be deemed to have granted to the Purchaser, and the Sellers hereby grant
to the Purchaser, a first priority perfected security interest in all of the
Sellers' right, title and interest in, to and under the Sold Receivables, and
(ii) this Agreement shall constitute a security agreement under applicable law.
Each party to this Agreement agrees that it will account for all transactions
under this Agreement as purchases and sales of Receivables for all purposes, and
that it will not take any action inconsistent with that characterization.
Notwithstanding any other provision of this Agreement, regardless of whether the
transactions contemplated by this Agreement are deemed to be a sale or
financing, the Sellers and the Purchaser agree that the Purchaser shall not have
any recourse against any Seller or any of its affiliates as a result of any
uncollectible Sold Receivable.
20
SECTION 9.8. NOTIFICATION. Notwithstanding anything in this Agreement
or elsewhere, the Purchaser shall be entitled, acting directly or through the
Collection Agent, and at any time, to give notice to any Obligor of the
Purchaser's purchase of any Sold Receivable, PROVIDED that the giving of notice
shall in no way release the applicable Seller of its obligations under this
Agreement.
SECTION 9.9. TERMINATION OF AGREEMENT. Upon the occurrence of the
Termination Date, the Purchaser shall have no further obligation to purchase
Receivables under this Agreement, but the provisions of this Agreement shall
continue in full force and effect in relation to any Sold Receivables which the
Purchaser then owns.
21
IN WITNESS WHEREOF, each of the Sellers and the Purchaser have executed
and delivered this Receivables Purchase Agreement as of the date first written
above.
SELLERS NAMED IN EXHIBIT A
By:
--------------------------------
Name:
Title:
QUEBECOR WORLD FINANCE INC.
By:
--------------------------------
Name:
Title:
22
EXHIBIT A--SELLERS
Quebecor Printing Atglen Inc., a Delaware corporation
Quebecor Printing Buffalo Inc., a New York corporation
Quebecor Printing ββββββ ββ Inc., a Delaware corporation
Quebecor Printing Dallas, L.P., a Delaware limited partnership
Quebecor Printing Dickson Inc., a Tennessee corporation
Quebecor Printing Dubuque Inc., a Delaware corporation
Quebecor Printing Eagle Inc., a Missouri corporation
Quebecor Printing βββββ Press Inc., a Massachusetts corporation
Quebecor Printing Fairfield Inc., a Delaware corporation
Quebecor Printing ββββββββ Inc., a Pennsylvania corporation
Quebecor Printing Kingsport Inc., a California corporation
Quebecor List Services Chicago Inc., a Delaware corporation
Quebecor Printing Lincoln Inc., a Delaware corporation
Quebecor Printing Loveland Inc., a Delaware corporation
Quebecor Printing Memphis II Inc., a Delaware corporation
QP Memphis Corp., a Delaware corporation
Quebecor Printing Mt. ββββββ ββ Inc., a Delaware corporation
Quebecor Printing Olive Branch Inc., a Delaware corporation
Quebecor Printing βββββββ Inc., a Michigan corporation
Quebecor βββββ Printing Inc., an Illinois corporation
Quebecor Printing St. Cloud Inc., a Minnesota corporation
Quebecor Printing St. ββββ Inc., a Minnesota corporation
Quebecor Printing San ββββ Inc., a California corporation
Quebecor Printing ββββββ Inc., a Delaware corporation
Quebecor Printing Vermont Inc., a Delaware corporation
EXHIBIT B
FORM OF REVOLVING SUBORDINATED PROMISSORY NOTE
For value received, Quebecor World Finance Inc., a Delaware corporation
(the "Borrower"), hereby promises to pay to ________________________, a
_________ corporation (the "Lender"), on the Payment Date (as defined below), in
lawful money of the United States of America and in immediately payable funds,
the outstanding principal amount of, and all accrued and unpaid interest due on,
all borrowings made as of the Payment Date by the Borrower from the Lender
pursuant to Article II of that certain Receivables Purchase Agreement, dated as
of September 24, 1999 (the "Receivables Purchase Agreement"), by and among the
Borrower and the Lender. Unless otherwise defined in this Revolving Subordinated
Note (this "Note"), capitalized terms shall have tile meanings given to them in
the Receivables Purchase Agreement.
In the event that the Borrower incurs any liability to the Lender under
the Receivables Purchase Agreement that is not paid as incurred, the Lender
shall automatically be deemed to have advanced under this Note the amount of
such liability. From time to time prior to the Payment Date, the Borrower may,
at its option, repay all or any part of the amounts payable under this Note;
provided, however, that the Borrower shall have no obligation to pay the Lender
any amount payable under this Note prior to the Payment Date. For purposes of
this Note, the term "Payment Date" shall mean one year and one day after (or, if
such day is not a Business Day, the first Business Day thereafter) the first
date on which all of the Amsterdam Obligations (as defined below) have been
paid.
The Borrower covenants and agrees, and the Lender by its acceptance of
this Note also covenants and agrees, that the payment of principal and interest
on this Note shall be subordinated in right of payment to the prior payment of
all amounts payable to Amsterdam, or its successors and assigns ("Amsterdam
Obligations"). As a result, upon the occurrence of any Bankruptcy Event (as
defined in the RSA), no payment shall be made by the Borrower with respect to
any amount due under this Note until after all of the Amsterdam Obligations have
been paid in the event that the Lender receives any payment or other
distribution of any kind or character from or on behalf of the Borrower in
payment of any amount owing under this Note after the occurrence of a Bankruptcy
Event and prior to the date that all of the Amsterdam Obligations have been
paid, such payment or other distribution shall promptly be returned by the
Lender to the Borrower.
Borrower further agrees to pay, in lawful money of the United States of
America and in immediately available funds, interest at the rate of eight
percent (8%) on all amounts outstanding under this Note until such amounts have
been paid. The interest payable for any month shall be due on the last Business
Day of that month; provided, however, that at the option of the Borrower, all or
any part of the interest due under this Note may be deferred until the Payment
Date.
All amounts owed by the Borrower shall be recorded in the books and
records of the Lender. On the Payment Date, all amounts then remaining unpaid on
this Note shall be immediately due and payable without notice of default,
presentment or demand for payment, protest or notice of nonpayment or dishonor,
or notices or demands of any kind, all of which are
expressly waived by the Borrower. The Borrower agrees to pay all costs and
expenses, including without limitation attorneys' fees, incurred in connection
with the interpretation or enforcement of this Note.
This Note has been executed and delivered in and shall be construed and
interpreted in accordance with and governed by the laws of the State of New
York.
QUEBECOR WORLD FINANCE, INC.
By:
-------------------------------------
Name: ββββββ β. βββββββ
Title: Vice President, Legal Affairs
and Secretary
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December 22, 1999
Quebecor World Finance Inc.
βββ ββββββββ ββββββ
βββββ βββ
ββββββββββ, ββ βββββ
Attention: Vice President, Legal Affairs and Secretary
Dear Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement dated as
of September 24, 1999 (the "Agreement") among the Sellers party thereto and
Quebecor World Finance Inc. (the "Purchaser"). Capitalized terms used herein
without definition shall have the meanings assigned to them in the Agreement.
The Sellers and the Purchaser wish to include Quebecor World (USA) Inc.
("Quebecor World") as a party to the Agreement in the capacity of a Seller, and
Quebecor World wishes to be party to the Agreement in the capacity of a Seller.
Accordingly, the Sellers, Quebecor World and the Purchaser hereby agree that
Quebecor World shall be made party to the Agreement as a Seller, Quebecor World
to be subject to the same terms and conditions of the Agreement as the Sellers.
Exhibit A to the Agreement is hereby amended to include the name of Quebecor
World.
Except as specifically amended hereby, the Agreement shall, in all
respects, remain in full force and effect.
Please sign where noted below to confirm the foregoing agreement.
Very truly yours,
SELLERS NAMED IN EXHIBIT A TO
THE AGREEMENT
By:
-------------------------------
Name: ββββββ βββββββ
Title: Assistant Treasurer
QUEBECOR WORLD (USA) INC.
By:
-------------------------------
Name: ββββββ βββββββ
Title: Assistant Treasurer
ACCEPTED AND AGREED:
QUEBECOR WORLD FINANCE INC.
By:
----------------------------
Name: ββββββ βββββββ
Title: Assistant Treasurer
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