Waiver and Amendment No. 4 to
Amended and Restated
Receivables Purchase
Agreement
This WAIVER AND AMENDMENT NO. 4 TO AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of April 1, 2009
(this " Agreement "), is made by and among
ABITIBI‑CONSOLIDATED U.S. FUNDING CORP. (the " Seller
"), CITIBANK, N.A. (" Citibank "), as a Bank, EUREKA
SECURITISATION, PLC (" Eureka "), as an Investor, CITIBANK,
N.A., LONDON BRANCH, as operating agent (the " Agent ") for
the Investors and the Banks, ABITIBI‑CONSOLIDATED INC. ("
ACI ") and ABITIBI CONSOLIDATED SALES CORPORATION ("
ACSC ").
Preliminary Statements . (1) The Seller, Citibank, Eureka, the
Agent, ACI, in its capacity as Subservicer and an Originator, and
ACSC, in its capacity as Servicer and an Originator, are parties to
that certain Amended and Restated Receivables Purchase Agreement,
dated as of January 31, 2008 (as amended, restated, supplemented
and/or otherwise modified from time to time, the " RPA ";
capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to them in the RPA).
(2) The
Servicer has delivered to the Agent Monthly Reports for January
2009 and February 2009 showing that the average of the Delinquency
Ratios for such calendar months and, in each case, the two
immediately preceding calendar months exceeded the maximum
percentage set forth in clause (i) of Section 7.01(h) of the
RPA (as modified by Waiver and Amendment No. 3 thereto), which
events constitute Events of Termination pursuant to such
Section 7.01(h) of the RPA (collectively, the " Delinquency
Ratio Event of Termination ").
(3) The
Seller has not delivered to the Agent the financial statements
required by Section
5.01(k)(i) of the RPA for the fourth fiscal quarter of the Parent
and ACI, which constitutes an Event of Termination pursuant to
Section 7.01(d) of the RPA (the " Financial Statement Event of
Termination ").
(4) The
Seller has advised the Agent that it may not deliver the financial
statements required by (a) Section 5.01(k)(ii) of the RPA for the
fiscal year of the Parent ended December 31, 2008 and (b) Section
5.01(k)(iii) of the RPA for the fiscal year of the Seller ended
December 31, 2008, in each case within the time period provided for
therein and to the extent not so delivered will constitute an Event
of Termination pursuant to Section 7.01(d) of the RPA (the "
Annual Financial Statement Event of Termination
").
(5) The
Seller has further advised the Agent that the audited financial
statements required to be delivered by Section 5.01(k)(ii) of the
RPA for the fiscal year of the Parent ended December 31, 2008 will
be accompanied by an audit report of independent certified public
accountants of recognized national standing with an Impermissible
Qualification of the type described in clause (i) of the definition
thereof, which, when so delivered, will constitute an Event of
Termination pursuant to Section 7.01(d) of the RPA (the "
Audited Financial Statement Event of Termination
").
(6)
The Seller has advised the Agent that the Servicer did not (and did
not cause the applicable Originator to) pay all sales taxes (being
QST and GST) owing in connection with certain Receivables as
required on March 31, 2009, which constitutes an Event of
Termination pursuant to Section 7.01(d) of the RPA (the " Sales
Tax Event of Termination ").
(7)
The Seller did not provide timely notice of the change in the
address of its principal place of business, chief executive office
and location of receivables records as required by Section 10.01(e)
of the RPA, which constitutes an Event of Termination pursuant to
Section 7.01(d) of the RPA (the " Change of Address Event of
Termination ").
(8)
The Parent, ACI and certain Affiliates thereof are proposing to
enter into an arrangement pursuant to Section 192 of the Canada
Business Corporations Act , as such arrangement is described or
referred to in the Reasons for Judgement on an Interim Basis issued
on March 18, 2009 by the Honourable Mr. Justice Clément
Gascon, J.S.C. (such arrangement, the " CBCA Plan of
Arrangement "). In connection with the proposed CBCA Plan
of Arrangement, an Interim Order was entered on March 13, 2009 by
the Superior Court Sitting in Commercial Division in and for the
District of Montreal (the " Interim Order "), which Interim
Order provides, inter alia , a stay of proceedings of
certain obligations of ACI and certain related parties. As a
result of certain of the events described in the Interim Order and
events that have transpired since the entry thereof (and prior to
the date hereof), consisting of the non-payment of principal and/or
interest on certain Debt listed on Schedule I hereto, an Event of
Termination exists under Section 7.01(e) of the RPA (the "
Initial Interim Order Event of Termination "). In
addition, as a result of stay of proceedings set forth in the
Interim Order, the Parent, ACI and certain Affiliates thereof are
stayed from making payments in respect of principal and interest on
the Debt listed on Schedule I hereto on and after the date hereof,
and not making such principal and/or interest payments will result
in Events of Termination under Section 7.01(e) of the RPA
(collectively, the " Future Interim Order Event of
Termination " and, together with the Delinquency Ratio Event of
Termination, the Financial Statement Event of Termination, the
Annual Financial Statement Event of Termination, the Audited
Financial Statement Event of Termination, the Sales Tax Event of
Termination, the Change of Address Event of Termination and the
Initial Interim Order Event of Termination, the " RPA Events of
Termination ").
(9)
The Seller and the Servicer have requested that the Agent, the
Investor and the Banks waive the RPA Events of
Termination.
(10) The Agent,
the Investor and the Banks are willing to agree to such waiver
subject to the terms and conditions set forth herein.
NOW, THEREFORE,
in consideration of the premises and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
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SECTION
1. Waivers
to the RPA.
(a)
Upon the effectiveness of this Agreement in
accordance with Section 3 hereof, the Banks, the Investor and the
Agent hereby agree to waive the RPA Events of Termination
(including any Event of Termination resulting from the failure to
comply with Section 1 of Waiver and Amendment No. 3 to the RPA);
provided , however , that notwithstanding the
foregoing, it shall be an immediate Event of Termination under the
RPA in the event that (i) the Seller fails to deliver the financial
statements required by Section 5.01(k)(ii) of the RPA for the
fiscal year of the Parent ended Dec ember 31, 2008 to the Agent by
no later than April 30, 2009 (which financial statements may,
however, include an Impermissible Qualification of the type
described in clause (i) of the definition thereof), (ii) the
Seller fails to deliver the financial statements required by
Section 5.01(k)(iii) of the RPA for the fiscal year of the Seller
ended December 31, 2008 to the Agent by no later than April 3,
2009, (iii) the stay of proceedings set forth in the Interim Order
is terminated, amended, lifted or is otherwise not enforced or
recognized by any court or other tribunal having jurisdiction (or
purporting to have jurisdiction) over the Parent or any Originator
to the extent and with the effect that a creditor of Debt
(including, without limitation, the Debt listed on Schedule I
hereto) in circumstances contemplated under Section 7.01(e) of the
RPA would be entitled to enforce its rights against the relevant
obligor with respect to such Debt and would no longer be subject to
the stay or (iv) the Servicer does not pay the sales taxes
described in Preliminary Statement (6) on or prior to the first
Business Day after the effectiveness of this Agreement (to the
extent amounts necessary to pay such sales taxes are released to
the Servicer pursuant to Section 5 hereof).
(b)
The parties hereto acknowledge that the filing of the CBCA Plan of
Arrangement and the entry of the Interim Order does not constitute
an Event of Termination pursuant to Section 7.01(g) of the
RPA.
SECTION 2.
Amendments to the RPA . Upon the effectiveness of this
Agreement in accordance with Section 3 hereof:
(a)
Clause (a) of the definition of "Commitment Termination Date" set
forth in Section 1.01 of the RPA is amended by replacing the date
"July 29, 2009" appearing therein with the date "September 1,
2009".
(b) Clause
(vi) of the definition of "Eligible Receivable" set forth in
Section 1.01 of the RPA is amended and restated in its entirety to
read as follows:
"(vi) which
has been billed and, according to the Contract related thereto, is
required to be paid in full (A) on or after any Insurance Policy
Event, within 60 days of the original billing date therefor, or,
(B) prior to any Insurance Policy Event, within (1) 90 days of the
original billing date therefor or (2) if such Receivable is an
International Receivable, 180 days of the original billing date,
provided that, in each case, the "maximum payment terms" with
respect to such Receivable set forth in the Insurance Policy
permits such payment terms;"
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(c)
The definition of "Eurodollar Rate" set forth in Section 1.01 of
the RPA is amended in its entirety to read as follows:
" Eurodollar Rate " means,
for any Fixed Period, an interest rate per annum equal to the
greater of (i) the rate per annum at which deposits in U.S. dollars
are offered by the principal office of Citibank in London, England
to prime banks in the London interbank market at 11:00 A.M. (London
Time) two Business Days before the first day of such Fixed Period
in an amount substantially equal to the Capital associated with
such Fixed Period on such first day and for a period equal to such
Fixed Period and (ii) 2.50%.
(d)
Clause (a) of the definition of "Facility Termination Date" set
forth in Section 1.01 of the RPA is amended by replacing the date
"January 27, 2011" appearing therein with the date "September 1,
2009".
(e)
The definition of "Net Receivables Pool Balance" set forth in
Section 1.01 of the RPA is amended by adding the following
immediately following new clause (xiii) at the end of clause (xii)
thereof:
"and (xiii) the aggregate amount by which
the Outstanding Balance of Eligible Receivables that are
International Receivables having payment terms in excess of 90 days
after the original billing date exceeds $75,000,000."
(f)
Section 5.01 of the RPA is amended by adding new clauses (u) and
(v) that read as follows:
"(u)
Other Cross Defaults . If the Parent, any Originator
or any Affiliate thereof (other than Bowater Incorporated, Bowater
Newsprint South LLC and their Subsidiaries) shall incur any
Debt
