Exhibit 10.42
RECEIVABLES REASSIGNMENT AND TERMINATION AGREEMENT
This Receivables Reassignment and Termination Agreement (this
"Reassignment Agreement") dated as of January 28, 2004, by and among Cadmus
Receivables Corp. (the "Seller"), Cadmus Communications Corporation (the "Master
Servicer"), Blue Ridge Asset Funding Corporation (the "Purchaser"), Wachovia
Bank, National Association (the "Agent"), Cadmus Journal Services, Inc.
("Journal Services"), Mack Printing Company ("Mack"), Port City Press, Inc.
("Port City") and Washburn Graphics, Inc. ("Washburn" and, together with Journal
Services, Mack and Port City, the "Originators" and each an "Originator").
PRELIMINARY STATEMENTS
----------------------
WHEREAS, pursuant to the Amended and Restated Purchase and Sale
Agreement (as amended to the date hereof) dated as of May 17, 2000, the
Originators have sold certain accounts receivables and related property to the
Seller;
WHEREAS, the Seller, the Master Servicer, the Purchaser and the Agent
are parties to that certain Second Amended and Restated Receivables Purchase
Agreement, dated as of November 20, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Agreement"). Capitalized terms used
herein and not otherwise defined shall have the respective meanings ascribed
thereto in the Agreement;
WHEREAS, pursuant to the Agreement, the Seller has transferred and
conveyed to the Purchaser, and the Purchaser has acquired from the Seller, an
undivided percentage ownership interest in, (i) the Pool Receivables and (ii)
all Related Assets (clause (i) and (ii) collectively, the "Asset Interest");
WHEREAS, pursuant to the Agreement, the Seller has conveyed a security
interest in all of the Seller's right, title and interest in and to (i) the
Asset Interest, (ii) the Sale Agreement and the other Transaction Documents and
(iii) all proceeds of the foregoing to the Agent, for the benefit of the Secured
Parties,
WHEREAS, the Purchaser desires to sell, transfer and assign to the
Seller the Asset Interest, and the Purchaser, the Agent, the Master Servicer and
the Seller wish to terminate the Agreement and all of the obligations of the
Purchaser to purchase, and the Seller to sell, an interest in the Seller's
Receivables and certain other assets pursuant to the Agreement;
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
---------
1. (a) Subject to the Agent's receipt of the "Transfer Price" as set
forth on Schedule 1 hereto (the "Transfer Price") in accordance with the terms
hereof, (i) the Purchaser does hereby sell, assign, transfer and reconvey,
without recourse, representation or warranty, for the Transfer Price, all of its
right, title and interest in and to the Asset Interest to the Seller and (ii)
the Agent, on behalf of the Secured Parties, does hereby release, terminate and
discharge any and all Liens and other encumbrances on all of the Asset Interest
and any other assets and properties of the Seller. The Seller hereby agrees that
the Seller shall have no recourse against the Agent or the Purchaser with
respect to the Asset Interest or any portion thereof sold, assigned, transferred
and reconveyed and released hereunder.
(b) Simultaneously with the completion of the transfer,
assignment, sale and reconveyance by the Purchaser and the termination of the
Agent's interest, each as provided for in Section 1(a) hereof, the Seller does
hereby sell, assign, transfer and reconvey to each Originator, without recourse,
representation and warranty, each Receivable and all Related Rights thereto to
the Originator from whom the Seller initially acquired such Receivable and
Related Rights under the Sale Agreement and the Seller does hereby release,
terminate and discharge any and all Liens and other encumbrances on all of the
Receivables and Related Rights. Each Originator hereby, simultaneously with the
transfer, assignment, sale and reconveyance by the Seller pursuant to the
preceding sentence, in partial consideration for the reconveyance by the Seller
to such Originator of the Receivables and Related Rights sold by such
Originators to the Seller, cancels the Seller Note issued by the Seller to such
Originator, which Seller Note shall be deemed to have been paid in full and
shall be marked "CANCELLED" by such Originator and promptly returned to the
Seller or destroyed by such Originator. Each Originator hereby indemnifies the
Seller, the Purchaser and the Agent for any loss that may be incurred by the
Seller, the Purchaser and the Agent as a result of any failure by such
Originator to comply with the immediately preceding sentence.
2. On or before January 28, 2004 prior to 12:00 noon (New York time),
the Seller shall pay the following portions of the Transfer Price by wire
transfer in immediately available funds to the following accounts:
Blue Ridge Portion of Transfer Price: $27,765,169.57
Bank Name: Wachovia Bank, National Association
ABA Number: 053000219
Account Name: CP Liability Account
Account Number: 2000010384921
Reference: Cadmus Receivables Corp.
Other Party Portion of Transfer Price consisting of the
following:
Legal $2,800.00
Bank: SunTrust Bank, Richmond, VA
Account Name: Hunton & Williams Operating
Account Number: 001458094
ABA Transit Routing No.: 061000104
Information with Wire: 06968, Wachovia Capital Markets
(58320)
Instruct SunTrust: Give an immediate telephone advice
to Michele Dew (804-788-8540)
2
Amounts received after 12:00 noon (New York time) shall not be deemed
to be received until the following Business Day, and the Transfer Price, will be
increased to reflect additional interest, fees, costs, expenses and other
amounts accruing pursuant to the Agreement and related documents.
3. Each party hereto agrees that, at any time and from time to time,
upon the written request of any other party hereto, it will execute, authorize
and deliver such further documents and do such further acts and things as the
requesting party may reasonably request in order to effect the purposes of this
Reassignment Agreement. Any action taken by the Purchaser or the Agent in
respect of the foregoing shall be at the sole cost and expense of the Master
Servicer.
4. (a) The Agent hereby authorizes the Seller, at the Master Servicer's
sole expense, upon receipt by the Seller of the Agent's written confirmation of
receipt by the Purchaser of the Transfer Price in accordance with Section 2
above, to file UCC-3 termination statements terminating the interests of Agent
in the Asset Interest (such termination statements, the "Agent Termination
Statements").
(b) The Seller hereby authorizes each Originator, at such Originator's
sole expense, upon receipt by the Seller of the Agent's written confirmation of
receipt by the Purchaser of the Transfer Price in accordance with Section 2
above, to file UCC-3 termination statements terminating the interests of the
Seller in the Receivables and the Related Rights (such termination statements,
the "Originator Termination Statements").
5. By executing and delivering this Reassignment Agreement, neither the
Purchaser nor the Agent makes any representation or warranty or assumes any
responsibility with respect to the Asset Interest, except that the Agent
represents and warrants that the rights and interests being transferred by it
and the Purchaser hereby are all of the rights and interest received by the
Agent and the Purchaser from the Seller under the Agreement and are being
transferred free and clear of any Lien created or granted by the Purchaser or
the Agent.
6. Notwithstanding anything to the contrary in the Agreement or any
other Transaction Document, upon receipt by the Seller of the Agent's written
confirmation of receipt of the Transfer Price in accordance with Section 2
above, subject to the proviso to this Section 6: (i) the Agreement and the Sale
Agreement shall each terminate and be of no further force and effect, and (ii)
none of the Seller, any Originator, the Master Servicer, the Purchaser or the
Agent shall have any obligations under, or in connection with the Agreement or
the Sale Agreement; provided, however, that the provisions of the Agreement and
the Sale Agreement (including the reimbursement and indemnification provisions)
which by the terms of the Agreement or the Sale Agreement, as applicable survive
termination of the Agreement and the Sale Agreement shall survive and the
Seller, each Originator and the Master Servicer shall continue to be obligated
to the Agent and the Purchaser to the extent provided for in the Agreement and
the Sale Agreement with respect to amounts constituting payments made in respect
of the Seller's, such Originator's or the Master Servicer's respective
liabilities and obligations under the Agreement, the Sale Agreement and the
other Transaction Documents that are rescinded for any reason or must be
otherwise restored by the Agent or the Purchaser, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise (and each of the
3
Seller, each Originator and the Master Servicer agrees that in any such case
such liabilities or obligations shall be automatically reinstated), in addition
to the aforementioned liabilities and obligations that by the terms of the
Agreement survive termination of the Agreement.
7. The Master Servicer agrees to pay all reasonable costs, fees, and
expenses (including, without limitation, reasonable attorneys' fees and time
charges of attorneys for the Purchaser or the Agent) incurred by the Purchaser
and/or the Agent in connection with the preparation, execution, performance
and/or enforcement of this Reassignment Agreement.
8. (a) THIS REASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) EACH OF THE SELLER, EACH ORIGINATOR AND THE MASTER
SERVICER HEREBY ACKNOWLEDGES AND AGRESS THAT IT IRREVOCABLY (i) SUBMITS TO THE
JURISDICTION, FIRST, OF THE UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL
JURISDICTION IS NOT AVAILABLE, OF ANY NEW YORK STATE COURT, AS APPROPRIATE, IN
EITHER CASE SITTING IN NEW YORK COUNTY, NEW YORK, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN SUCH
NEW YORK STATE OR FEDERAL COURT AND NOT IN ANY OTHER COURT, AND (iii) WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(c) EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR UNDER ANY AMENDMENT,
INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR ARISING FROM ANY BANKING OR OTHER RELATIONSHIP EXISTING
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL NOT BE TRIED BEFORE A JURY.
9. This Reassignment Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Reassignment Agreement by signing any
such counterpart. Delivery of an executed counterpart of a signature page by
facsimile shall be effective as delivery of a manually executed counterpart of
this Reassignment Agreement.
10. Any provisions of this Reassignment Agreement which 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 hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4
11. (a) Each of the Originators, the Seller and the Master Servicer
hereby covenants and agrees that, it will not institute against the Purchaser,
or join any other Person in instituting against the Purchaser, any insolvency
proceeding (namely, any proceeding of the type referred to in the definition of
Event of Bankruptcy) so long as any Commercial Paper Notes issued by the
Purchaser shall be outstanding and there shall not have elapsed one year plus
one day since the last day on which any such Commercial Paper Notes shall have
been outstanding.
(b) Each of the Originators and the Master Servicer hereby
covenants and agrees that, it will not institute against the Seller, or join any
other Person in instituting against the Seller, any insolvency proceeding
(namely, any proceeding of the type referred to in the definition of Event of
Bankruptcy) so long as any Commercial Paper Notes issued by the Purchaser to
fund any Purchase, or maintain any investment by the Purchaser in any Asset
Interest, under the Agreement shall be outstanding and there shall not have
elapsed one year plus one day since the last day on which any such Commercial
Paper Notes shall have been outstanding.
[remainder of page intentionally left blank]
5
IN WITNESS WHEREOF, each of the parties hereto have caused this
Receivables Reassignment and Termination Agreement to be executed by its
respective duly authorized officer(s).
CADMUS RECEIVABLES CORP.,
as Seller
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
-----------------------------
Title: Vice President & Treasurer
CADMUS COMMUNICATIONS CORPORATION,
as Master Servicer
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
-----------------------------
Title: Vice President & Treasurer
CADMUS JOURNAL SERVICES, INC.
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
-----------------------------
Title: Vice President & Treasurer
MACK PRINTING COMPANY
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
-----------------------------
Title: Vice President & Treasurer
[additional signatures to follow]
PORT CITY PRESS, INC.
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
-----------------------------
Title: Vice President & Treasurer
WASHBURN GRAPHICS, INC.
By: /s/ Christopher T. Schools
-----------------------------
Name: Christopher T. Schools
-----------------------------
Title: Vice President & Treasurer
[additional signatures to follow]
BLUE RIDGE ASSET FUNDING CORPORATION,
as Purchaser
By: Wachovia Capital Markets, LLC
as Attorney-In-Fact
By: /s/ Bryan P. McGrath
-----------------------------
Name: Bryan P. McGrath
-----------------------------
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Rodney Sanders
-----------------------------
Name: Rodney Sanders
-----------------------------
Title: Director
[end of signatures]
SCHEDULE 1
TRANSFER PRICE
Total Discount , Principal and Used and Unused Fees: $27,765,169.57
Principal: $27,724,035.00
Discount: $23,754.41
Used: $15,141.12
Unused: $2,239.04
Legal 2,800.00
- --------------------------------------------------------------------------------
Total: $27,757,969.75
================================================================================