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Waiver and Amendment No. 4 to Amended and Restated Receivables Purchase Agreement

Receivables Purchase Transfer Agreement

Waiver and Amendment No. 4 to Amended and Restated Receivables Purchase Agreement | Document Parties: ABITIBIBOWATER INC. | ABITIBI CONSOLIDATED SALES CORPORATION | ABITIBI-CONSOLIDATED US FUNDING CORP | Banks, ABITIBI-CONSOLIDATED INC | CITIBANK, NA You are currently viewing:
This Receivables Purchase Transfer Agreement involves

ABITIBIBOWATER INC. | ABITIBI CONSOLIDATED SALES CORPORATION | ABITIBI-CONSOLIDATED US FUNDING CORP | Banks, ABITIBI-CONSOLIDATED INC | CITIBANK, NA

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Title: Waiver and Amendment No. 4 to Amended and Restated Receivables Purchase Agreement
Governing Law: New York     Date: 4/7/2009
Industry: Paper and Paper Products     Law Firm: Kaye Scholer     Sector: Basic Materials

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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


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