Exhibit 99(b)(3)
$800,000,000
TERM LOAN
AND
NON-REVOLVING
CREDIT AGREEMENT
Dated as of August 12, 1999
among
QUEBECOR PRINTING (USA) HOLDINGS INC.,
as Borrower,
IMPRIMERIES QUEBECOR INC. - QUEBECOR PRINTING INC.
and
QUEBECOR PRINTING HOLDING COMPANY,
as Guarantors
THE FINANCIAL INSTITUTIONS NAMED
ON THE SIGNATURE PAGES HERETO,
as Lenders,
ROYAL BANK OF CANADA,
as Lead Arranger and as Administrative Agent
and
BANC OF AMERICA BANK OF MONTREAL, CANADIAN IMPERIAL
SECURITIES LLC, and BANK OF COMMERCE,
as Arrangers and as Co-Syndication Agents
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................. 2
Section 1.2 Headings and Table of Contents.............................. 25
Section 1.3 References.................................................. 25
Section 1.4 Rules of Interpretation..................................... 26
Section 1.5 Accounting Terms and Computations........................... 26
Section 1.6 Time........................................................ 26
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties as of the Date of this
Agreement................................................... 26
2.1.1 Existence; Power................................... 26
2.1.2 Loan Parties and Subsidiaries...................... 27
2.1.3 Authorization and Enforceability................... 27
2.1.4 Breach............................................. 27
2.1.5 Litigation......................................... 28
2.1.6 Compliance with Applicable Laws.................... 28
2.1.7 Governmental Consents.............................. 30
2.1.8 Taxes.............................................. 30
2.1.9 Financial Statements............................... 30
2.1.10 Future Financial Statements........................ 30
2.1.11 No Event of Default................................ 31
2.1.12 Year 2000 Readiness Disclosure..................... 31
2.1.13 No Required Filing................................. 31
2.1.14 Ownership of Property; Liens....................... 31
2.1.15 Labor Matters...................................... 32
2.1.16 Accuracy of Information............................ 32
2.1.17 Canadian Benefit and Pension Plans................. 32
2.1.18 ERISA.............................................. 33
2.1.19 Solvency........................................... 33
2.1.20 Pari Passu......................................... 33
Section 2.2 Representations and Warranties on and as of the
Tender Offer Funding Date................................... 33
2.2.1 Compliance with Exchange Act....................... 33
2.2.2 Shares............................................. 33
2.2.3 Power, Authority, Approval-Tender Offer and
Merger Documents................................... 33
2.2.4 Execution and Delivery-Tender Offer and
Merger Documents................................... 34
2.2.5 Representations and Warranties-Merger
Agreement.......................................... 34
2.2.6 Certain Information................................ 34
2.2.7 Margin Stock....................................... 34
2.2.8 No Impairment...................................... 35
2.2.9 Financial Forecasts................................ 35
2.2.10 No Breach.......................................... 35
2.2.11 Stock Options...................................... 35
Section 2.3 Representations and Warranties on and as of the
Merger Date................................................. 36
2.3.1 Adequate Cash...................................... 36
2.3.2 Merger Approval.................................... 36
2.3.3 Merger Documents................................... 36
2.3.4 Certificate of Merger.............................. 36
2.3.5 No Adverse Change.................................. 36
Section 2.4 Materiality and Survival of Warranties...................... 36
ARTICLE III
THE CREDIT FACILITIES
Section 3.1 Obligations of the Lenders.................................. 37
Section 3.2 The Facility A.............................................. 37
Section 3.3 The Facility B.............................................. 37
Section 3.4 [Intentionally Omitted]..................................... 38
Section 3.5 Purposes of Advances........................................ 38
Section 3.6 Manner of Borrowing......................................... 38
Section 3.7 Mandatory Cancellation of Credit Facilities and
Repayment of Borrowings..................................... 39
3.7.1 Cancellation of Facility A......................... 39
3.7.2 Cancellation of Facility B......................... 39
3.7.3 Repayment from Proceeds of Capital Market
Transactions....................................... 39
3.7.4 Repayment at Maturity.............................. 39
Section 3.8 Extension of the Maturity Date for Certain Borrowings
under Facility A............................................ 40
Section 3.9 Optional Prepayment and Cancellation of Credit
Facilities.................................................. 40
3.9.1 [Intentionally Omitted]............................ 40
3.9.2 Prepayment, Cancellation and Reduction of
Facility A or Facility B........................... 40
3.9.3 Exceptions and Limitations......................... 40
Section 3.10 Conversion Option.......................................... 41
3.10.1 Manner of Conversion............................... 41
3.10.2 Conditions of Conversion........................... 41
3.10.3 Acknowledgements................................... 42
Section 3.11 Deposit of Proceeds of Loans............................... 42
Section 3.12 [Intentionally Omitted].................................... 42
Section 3.13 Reliance on Oral Instructions.............................. 42
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Section 3.14 Borrowings and Repayments Proportional to Commitments..... 42
ARTICLE IV
PAYMENT OF INTEREST AND FEES
Section 4.1 Payment of Interest......................................... 43
4.1.1 Interest on US Prime Rate Loans.................... 43
4.1.2 Interest on Libor Loans............................ 43
Section 4.2 [Intentionally Omitted]..................................... 43
Section 4.3 Commitment Fee.............................................. 43
Section 4.4 Applicable Margin and Fee Rate Matrix....................... 44
Section 4.5 Administrative Agent's Fees and other Fees.................. 46
Section 4.6 Interest on Overdue Amounts................................. 46
4.6.1 Overdue Principal or Interest...................... 46
4.6.2 Other Amounts...................................... 46
4.6.3 Payment............................................ 46
ARTICLE V
CONDITIONS APPLICABLE TO LIBOR LOANS
Section 5.1 Selection of Libor Interest Periods......................... 47
5.1.1 Amount and Availability............................ 47
5.1.2 Selection of Libor Interest Period................. 47
5.1.3 Deemed Conversion.................................. 48
Section 5.2 Alternate Basis of Borrowing................................ 48
ARTICLE VI
[INTENTIONALLY OMITTED]
ARTICLE VII
[INTENTIONALLY OMITTED]
ARTICLE VIII
PAYMENT, TAXES, INCREASED COSTS, EVIDENCE OF INDEBTEDNESS AND TIMING OF
MATURITIES
Section 8.1 Place of Payment of Principal, Interest and Charges......... 49
Section 8.2 Payment to Administrative Agent is Deemed Payment to
Lenders..................................................... 50
Section 8.3 Account Debit Authorization................................. 50
Section 8.4 Application of Payments..................................... 50
8.4.1 Order of Application............................... 50
8.4.2 Event of Default................................... 50
8.4.3 Sharing............................................ 51
Section 8.5 Manner of Payment and Taxes................................. 51
8.5.1 No set-off; no withholding......................... 51
8.5.2 Increased Rate of Interest......................... 51
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8.5.3 Tax Credit......................................... 52
8.5.4 Exemption from U.S. Withholding Taxes.............. 52
8.5.5 Survival of Obligations............................ 53
Section 8.6 Increased Costs and Payment of Portion...................... 53
8.6.1 Increased Costs.................................... 53
8.6.2 Payment of Portion................................. 54
Section 8.7 Illegality.................................................. 55
Section 8.8 Timing of Maturities........................................ 56
Section 8.9 Evidence of Indebtedness.................................... 56
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
PREDISBURSEMENT CONDITIONS
Section 10.1 Predisbursement Conditions................................. 57
10.1.1 Conditions Precedent to Initial Borrowing.......... 57
10.1.1A Additional Conditions Precedent to Initial
Borrowing.......................................... 60
10.1.2 Conditions Precedent to each Borrowing............. 62
Section 10.2 Waiver of Conditions Precedent............................. 63
ARTICLE XI
COVENANTS OF THE LOAN PARTIES
Section 11.1 Affirmative Covenants of the Loan Parties.................. 63
11.1.1 Payment Covenant................................... 63
11.1.2 Corporate Existence................................ 63
11.1.3 Conduct of Business................................ 63
11.1.4 Compliance with Laws............................... 63
11.1.5 Prompt Payment of Taxes and Indebtedness........... 64
11.1.6 Insurance.......................................... 64
11.1.7 Financial Statements and Information............... 64
11.1.8 Consents and Governmental Approvals................ 67
11.1.9 Access............................................. 67
11.1.10 Loan Party Guarantees.............................. 67
11.1.11 Canadian Benefit and Pension Plans and ERISA....... 67
11.1.12 Environmental Matters.............................. 68
11.1.13 Millennium Compliance.............................. 68
11.1.14 Use of Funds....................................... 68
11.1.15 Updating of S&P/▇▇▇▇▇'▇ Credit Rating.............. 68
11.1.16 Certain Intercompany Advances...................... 68
11.1.17 Merger Agreement; Securitization Program........... 68
11.1.18 Merger............................................. 69
11.1.19 Delist Shares...................................... 69
11.1.20 Loans to Acquisition Sub........................... 69
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11.1.21 Officer's Certificate, Opinion of Counsel.......... 69
Section 11.2 Negative Covenants of the Loan Parties..................... 70
11.2.1 Negative Pledge.................................... 70
11.2.2 Sale of Assets..................................... 70
11.2.3 No Investments in Other Persons.................... 70
11.2.4 No Indebtedness.................................... 70
11.2.5 No Modification to Corporate Structure............. 71
11.2.6 No Consensual Restrictions......................... 71
11.2.7 Unauthorized Uses of the Credit Facilities......... 72
11.2.8 No Change in Nature of Business or in Use of
Properties......................................... 72
11.2.9 No Hedge Agreements................................ 72
11.2.10 Financial Ratios................................... 72
11.2.11 Restrictions on Acquisition Sub.................... 73
ARTICLE XII
REIMBURSEMENT OF EXPENSES AND INDEMNITY
Section 12.1 Reimbursement of Expenses.................................. 73
Section 12.2 Indemnity.................................................. 74
Section 12.3 Consultation with Borrower................................. 75
Section 12.4 Survival of Indemnification Obligations.................... 75
ARTICLE XIII
OTHER TAXES
Section 13.1 Other Taxes................................................ 76
Section 13.2 Survival of Obligations.................................... 76
ARTICLE XIV
EVENTS OF DEFAULT
Section 14.1 Events of Default.......................................... 76
14.1.1 Failure to Pay..................................... 76
14.1.2 Representations and Warranties..................... 76
14.1.3 Other Breaches..................................... 76
14.1.4 Bankruptcy......................................... 77
14.1.5 ERISA.............................................. 78
14.1.6 Judgment........................................... 78
14.1.7 Invalidity or Unenforceability..................... 78
14.1.8 Cross-Default...................................... 79
14.1.9 Environmental Claims............................... 80
14.1.10 Material Adverse Effect............................ 80
Section 14.2 Acceleration............................................... 80
Section 14.3 Notices.................................................... 80
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ARTICLE XV
REMEDIES
Section 15.1 Remedies Cumulative........................................ 81
ARTICLE XVI
WAIVER OF DEFAULT
Section 16.1 Waiver of Default.......................................... 81
ARTICLE XVII
THE ADMINISTRATIVE AGENT AND THE LENDERS
Section 17.1 Authorization of Administrative Agent...................... 82
Section 17.2 Notification of Borrowings, Repayments, Etc................ 83
Section 17.3 Details of Borrowings...................................... 83
Section 17.4 Remittance of Amounts Received from the Borrower........... 83
Section 17.5 Assumption as to Payments.................................. 83
17.5.1 Assumed Payment from Borrower...................... 83
17.5.2 Assumed Payment from Lender........................ 84
Section 17.6 Change in Circumstances, Illegality, Increased
Costs, Etc................................................. 84
Section 17.7 Notice of Event of Default................................. 85
Section 17.8 Pro Rata Treatment of Advances and Borrowings.............. 85
17.8.1 Adjustments to Loans and Repayments................ 85
17.8.2 Borrower's Agreement............................... 85
Section 17.9 Adjustments among Lenders after Acceleration............... 85
17.9.1 Adjustments within a Credit Facility............... 85
17.9.2 Adjustments between the Credit Facilities.......... 85
17.9.3 Application of Adjustments......................... 86
17.9.4 Borrower's Acknowledgement......................... 86
Section 17.10 Sharing among the Lenders................................. 87
Section 17.11 Cash Collateral Accounts.................................. 87
Section 17.12 Instructions from Lenders................................. 87
17.12.1 Waivers, Amendments, Etc........................... 87
17.12.2 Notices of Defaults................................ 88
Section 17.13 Reliance on Writings and Legal Advice..................... 89
Section 17.14 Costs and Expenses........................................ 89
Section 17.15 Authority of Administrative Agent to Act.................. 89
Section 17.16 Disclaimer................................................ 90
Section 17.17 Indemnification........................................... 90
Section 17.18 Acknowledgement of Lenders................................ 91
Section 17.19 Administrative Agent's Duty to Deliver Documents.......... 91
Section 17.20 Other Transactions........................................ 91
Section 17.21 No Preference............................................. 92
Section 17.22 Submission of Information................................. 92
Section 17.23 Sharing of Information Concerning this Agreement.......... 92
Section 17.24 No Association among Lenders.............................. 92
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Section 17.25 Successor Administrative Agent............................ 92
Section 17.26 Change of Address......................................... 93
Section 17.27 [Intentionally Omitted]................................... 93
Section 17.28 Amendment of this Article XVII............................ 93
ARTICLE XVIII
SUCCESSORS AND ASSIGNS
Section 18.1 Benefit and Burden of this Agreement....................... 93
Section 18.2 The Loan Parties........................................... 93
Section 18.3 Assignment and Participation............................... 93
Section 18.4 Limitation................................................. 95
Section 18.5 [Intentionally Omitted].................................... 95
Section 18.6 Disclosure................................................. 95
Section 18.7 Processing and Recordation Fee............................. 95
ARTICLE XIX
COMPENSATION
Section 19.1 Set-off, Compensation...................................... 95
ARTICLE XX
JUDGMENT CURRENCY
Section 20.1 Judgment Currency.......................................... 96
ARTICLE XXI
GOVERNING LAW
Section 21.1 Governing Law.............................................. 97
ARTICLE XXII
NOTICE
Section 22.1 Address for Notice......................................... 97
Section 22.2 Notice..................................................... 97
ARTICLE XXIII
MISCELLANEOUS
Section 23.1 Severability............................................... 97
Section 23.2 [Intentionally Omitted].................................... 98
Section 23.3 Survival of Representations and Undertakings............... 98
Section 23.4 Whole Agreement............................................ 98
Section 23.5 Amendments................................................. 98
Section 23.6 Counterparts............................................... 98
Section 23.7 Further Assurances......................................... 98
Section 23.8 [Intentionally Omitted].................................... 99
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Section 23.9 Good Faith and Fair Consideration.......................... 99
Section 23.10 Term of Agreement......................................... 99
Section 23.11 Formal Date............................................... 99
Section 23.12 One Step Transaction...................................... 99
Section 23.13 Submission to Jurisdiction................................ 99
Section 23.14 WAIVER OF TRIAL BY JURY................................... 99
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SCHEDULES
SCHEDULE 1.1.1 Lenders' Commitments
SCHEDULE 1.1.2 Form of Loan Party Guarantee
SCHEDULE 1.1.3 Permitted Encumbrances
SCHEDULE 2.1.2 List of Subsidiaries of QPI
SCHEDULE 3.6 Confirmation of Borrowing
SCHEDULE 3.8 Notice of Extension of Facility A Maturity Date
SCHEDULE 3.9.2 Notice of Prepayment/Cancellation
SCHEDULE 10.1.1.8 Closing Certificate of Compliance
SCHEDULE 10.1.1.14-A Opinion of Canadian Counsel to the Loan Parties
(Loan Documents)
SCHEDULE 10.1.1.14-B Opinion of US Counsel to the Loan Parties
SCHEDULE 10.1.1.14-C Opinion of Canadian Counsel to the Loan Parties
(Transaction Documents)
SCHEDULE 10.1.1.15-A Opinion of Canadian Counsel to the Lenders
SCHEDULE 10.1.1.15-B Opinion of US Counsel to the Lenders
SCHEDULE 11.1.7(c) Certificate of Compliance
SCHEDULE 18.3 Transfer Undertaking
THIS TERM LOAN AND NON-REVOLVING CREDIT AGREEMENT dated as of the 12th day of
August, 1999 is made
AMONG QUEBECOR PRINTING (USA) HOLDINGS INC., a corporation incorporated
under the laws of the State of Delaware and having its registered
office in Wilmington, State of Delaware, U.S.A. ("US Holdings" or,
sometimes, the "Borrower" or a "Restricted Entity"),
IMPRIMERIES QUEBECOR INC. - QUEBECOR PRINTING INC., a corporation
incorporated under the laws of Canada and having its registered
office in Montreal, Province of Quebec, Canada ("QPI" or, sometimes,
a "Guarantor"),
QUEBECOR PRINTING HOLDING COMPANY, a corporation incorporated under
the laws of the State of Delaware and having its registered office
in Wilmington, State of Delaware, U.S.A. ("QPHC" or, sometimes, a
"Guarantor", a "Restricted Entity" or, together with QPI, the
"Guarantors"),
EACH OF THE FINANCIAL INSTITUTIONS NAMED on the signature pages
hereto,
ROYAL BANK OF CANADA, a Canadian chartered bank, (or any of its
affiliates) in its capacity as lead arranger of the Credit
Facilities (in such capacity, or any successor in such capacity, the
"Lead Arranger") and in its capacity as administrative agent for the
Lenders (in such capacity, or any successor in such capacity, the
"Administrative Agent"),
BANC OF AMERICA SECURITIES LLC, BANK OF MONTREAL and CANADIAN
IMPERIAL BANK OF COMMERCE (or any of their respective affiliates),
as co-arrangers of the Credit Facilities (in such capacity, or any
successor in such capacity, together with the Lead Arranger, the
"Arrangers"),
AND BANC OF AMERICA SECURITIES LLC, BANK OF MONTREAL and CANADIAN
IMPERIAL BANK OF COMMERCE (or any of their respective affiliates),
as co-syndication agents (in such capacity, or any successor in such
capacity, the "Co-Syndication Agents" and together with the
Administrative Agent, the "Agents").
WHEREAS QPI and the Borrower have requested the Lenders, individually, and not
solidarily or jointly and severally, to make Credit Facilities available to the
Borrower of up to $800,000,000; and
WHEREAS the Lenders have agreed to provide their respective Commitments to the
Borrower, subject to the terms, conditions and limitations set forth in this
Agreement;
THEREFORE, in consideration of the premises, the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
In this Agreement and the Schedules, as well as in all notices pursuant to this
Agreement, unless something in the subject matter or context is inconsistent
therewith, the following words and phrases shall have the following meanings:
"Acquired Indebtedness" has the meaning ascribed to such expression in Section
11.2.4;
"Acquisition" means a take-over bid or offer to acquire all or a substantial
portion of the Capital Stock of a Person, an acquisition of all or a substantial
portion of the assets of a Person, or any Investment in any Person which is not
a Subsidiary of QPI as a result of which (a) such Person would become a
Subsidiary of QPI, or (b) subject to restrictions applicable to such a
transaction contained in this Agreement, such Person would be merged or
amalgamated with QPI or any of its Subsidiaries;
"Acquisition Sub" means Printing Acquisition Inc., a Delaware corporation;
"Additional Compensation" has the meaning set forth in Section 8.6.1;
"Adjusted Libor" means, for any Libor Interest Period, a rate of interest per
annum equal to:
(a) with respect to a Libor Loan made or to be made by a Lender which is not
subject to the regulations issued from time to time by the Board of
Governors of the Federal Reserve System in the United States of America
(or any successor) in respect of the said Libor Loan: Libor for such Libor
Interest Period, and
(b) with respect to a Libor Loan made or to be made by a Lender which is
subject to the regulations issued from time to time by the Board of
Governors of the Federal Reserve System in the United States of America
(or any successor) in respect of the said Libor Loan: the rate of interest
obtained by dividing (i) Libor for such Libor Loan during the relevant
Libor Interest Period by (ii) a percentage equal to 100% minus the Libor
Rate Reserve Percentage in effect from time to time during such Libor
Interest Period;
"Administrative Agent" means Royal or a successor agent appointed as such in
replacement thereof pursuant to Section 17.25;
"Administrative Agent's Account for Payments" means for all payments from a
Lender or the Borrower pursuant hereto, the following account maintained by the
Administrative Agent, to which payments and transfers are to be effected as
follows:
-▇-
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
ABA #: ▇▇▇▇▇▇▇▇▇
For account: Royal Bank of Canada, New York
Acct #: ▇▇▇-▇-▇▇▇▇▇▇
Beneficiary Name: Quebecor Printing Inc.
Acct #: ▇▇▇-▇▇▇-▇
or such other place(s) or account(s) as may be agreed upon by the Administrative
Agent and the Borrower from time to time and notified to the Lenders;
"Administrative Agent's Branch of Account" means the office or branch of the
Administrative Agent set forth opposite the name of the Administrative Agent on
the signature pages of this Agreement, or any other office or branch of the
Administrative Agent, as may be agreed upon by the Administrative Agent and the
Borrower from time to time and notified to the other Lenders;
"Advance" means a disbursement of funds to the Borrower pursuant to Section 3.6;
"Affected Borrowing" has the meaning set forth in Section 8.7;
"Affected Lender" has the meanings set forth in Sections 5.2 and 8.7;
"Affected Loan" has the meanings set forth in Sections 5.2 and 8.6.2;
"Affiliate" means with respect to any Person, any other Person which, directly
or indirectly, controls or is controlled by, or is under common control with,
such Person, and for the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control with")
means the power, directly or indirectly to direct or cause the direction of the
management and policies of any Person, whether through the ownership of shares
or by contract or otherwise; and without restricting the above, one Person shall
be deemed to be affiliated with another Person if one of them is the Subsidiary
of the other or both are Subsidiaries of the same Person, and if two Persons are
affiliated with the same Person at the same time, they are each deemed to be
affiliated with each other;
"Agents" has the meaning set forth in the description of the parties on the
first page of this Agreement;
"Aggregate Commitment" means the aggregate of the Facility A Total Commitment
and the Facility B Total Commitment;
"Agreement" means this credit agreement, including the Schedules, as the same
may be amended, modified, supplemented or restated from time to time;
"Applicable Law" means, in respect of any Person, property, transaction or
event, all present or future applicable laws, statutes, regulations, treaties,
judgments and decrees and (whether or not having the force of law) all
applicable official directives, rules, guidelines, orders and policies of any
federal, provincial, state, regional, municipal or local governmental or
regulatory or administrative bodies having authority over any of the parties
hereto and all applicable orders and decrees of courts and arbitrators;
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"Applicable Margin" means the percentage rate per annum determined in accordance
with the provisions of Section 4.4 and by reference to the appropriate tier and
the appropriate column, between columns (3) and (4), on the matrix set forth in
Section 4.4;
"Arrangement Letter" means the letter agreement dated as of July 12, 1999
addressed to QPI from Royal Bank of Canada, Bank of America Canada, Bank of
Montreal and Canadian Imperial Bank of Commerce, New York Agency;
"Arrangers" has the meaning set forth in the description of the parties on the
first page of this Agreement;
"Assignee" has the meaning set forth in Section 18.3(b);
"Assigning Lender" has the meaning set forth in Section 18.3(b);
"Benefit Plan" of any Person, means, at any time, any employee benefit plan
(including a Multiemployer Plan), the funding requirements of which (under
section 302 of ERISA or section 412 of the Internal Revenue Code) are, or at any
time within six years immediately preceding the time in question were, in whole
or in part, the responsibility of such Person;
"Borrower" has the meaning set forth in the description of the parties on the
first page of this Agreement;
"Borrower's Account" means an account or accounts of the Borrower maintained
with the Administrative Agent at the Administrative Agent's Branch of Account;
"Borrowing" means a utilization, and "Borrowings" means the aggregate of the
utilizations, at the relevant time by the Borrower of the Credit Facilities by
way of Loans; the total amount of "Borrowings" outstanding at any time is the
aggregate amount of all Loans outstanding at that time;
"Branch of Account" means in respect of each Lender, the branch or office of
such Lender set forth opposite such Lender's name on the signature pages of this
Agreement, or such other office or branch as may be designated by such Lender by
written notice to the Administrative Agent;
"Business Day" means any day other than Saturday, Sunday and any other day
which, in Montreal, Province of Quebec, Toronto, Province of Ontario or New
York, N.Y., is a legal holiday or a day on which commercial banks in Montreal,
Province of Quebec, Toronto, Province of Ontario or New York, N.Y., as the case
may be, are required or authorized by law or by local proclamation to close,
provided that in respect of a Libor Loan, "Business Day" means a day which is
also a day on which dealings in US Dollar deposits may be carried on by and
between banks in the London interbank eurodollar market;
"Canadian Benefit Plan" means any employee benefit plan maintained or
contributed to by QPI or any Restricted Entity in virtue of a legal obligation
to maintain or contribute to such a plan that is not a pension plan accepted for
registration under the ITA or other applicable pension benefits or tax laws of
Canada or a province or territory thereof including, without limitation, all
profit-sharing, savings, supplemental retirement, retiring allowance, severance,
deferred
-4-
compensation, welfare, bonus, supplementary unemployment benefit plans or
arrangements and all life, health, dental and disability plans and arrangements
in which the employees or former employees of QPI or any Restricted Entity
employed in Canada participate or are eligible to participate, but excluding all
stock option or stock purchase plans;
"Canadian GAAP" means generally accepted accounting principles in effect from
time to time in Canada, applicable to the relevant period, applied in a
consistent manner from period to period;
"Canadian Pension Plan" means any plan, program, arrangement or understanding
that is a pension plan for the purpose of any applicable pension benefits or tax
laws of Canada or a province or territory thereof (whether or not registered
under any such laws) which is maintained, administered or contributed to by (in
virtue of a legal obligation to maintain, administer or contribute to such a
plan, program, arrangement or understanding) QPI or any Restricted Entity, in
respect of any person's employment in Canada or a province or territory thereof
with QPI or any Restricted Entity, all related funding agreements and all
related agreements, arrangement and understandings in respect of, or related to,
any benefits to be provided thereunder or the effect thereof on any other
compensation or remuneration of any employee;
"Capital Market Transactions" means any issuance on or after the Formal Date by
any Loan Party or Restricted Entity of debt or equity, including preferred
equity, in the public and/or private markets other than commercial paper issued
under a commercial paper program of QPI;
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent or similar
ownership interests in a Person (other than a corporation) and any and all
warrants or options or other arrangement to purchase any of the foregoing;
"Capitalization" means the sum of QPI's Debt and QPI's Equity;
"Capitalized Lease" means, with respect to a Person, any lease or other
arrangement relating to property or assets which would be required to be
accounted for as a capital lease obligation on a balance sheet of such Person if
such balance sheet were prepared in accordance with GAAP; the amount of any
Capitalized Lease at any date shall be the amount of the obligation in respect
thereof which would be included within such balance sheet;
"Certificate of Merger" means a Certificate of Merger to be filed with the
Secretary of State of the State of Delaware, in such form as required by, and
executed in accordance with, the relevant provisions of the DGCL with respect to
the Merger;
"Commitment" means, with respect to a Lender at any time, the aggregate or, as
the context may require, any one of such Lender's Facility A Commitment and
Facility B Commitment, all as set forth in Schedule 1.1.1;
"Commitment Fee" has the meaning set forth in Section 4.3;
"Commitment Fee Payment Date" has the meaning set forth in Section 4.3;
-5-
"Commitment Fee Rate" means, for the purpose of calculating the Commitment Fee,
the percentage rate per annum determined in accordance with the provisions of
Section 4.4 and by reference to the appropriate tier in column (5) on the matrix
set forth in Section 4.4;
"Computer Equipment" of any Person means the computer equipment and embedded
systems currently owned or used by such Person, including, without limitation,
all ancillary and communication equipment connected to it;
"Computer Software" of any Person means all computer software owned or used by
such Person including, without limitation, all operating systems software
comprised in the Computer Equipment and all applications software and all other
software owned or used by such Person or which such Person is entitled to have
or to use by virtue of its interest in the Computer Equipment or in software
owned or used by such Person;
"Computer Systems" means the Computer Equipment and the Computer Software,
collectively;
"Consolidated" means produced by aggregating the relevant financial statements
or accounts of the Subsidiaries of a Person on a line-by-line basis (i.e.:
adding together corresponding items of assets, liabilities, revenues and
expenses) with the relevant financial statements or accounts of such Person,
eliminating inter-company balances and transactions and providing for any
minority interest in Subsidiaries, all in accordance with GAAP;
"Contingent Liabilities" of any Person means, without duplication, all
contingent liabilities included in the financial statements (including
footnotes) of such Person in accordance with GAAP, and including (without
limitation) all obligations under Guarantees and obligations in respect of
interest rate, foreign exchange or commodity price hedging arrangements, but
specifically excluding any obligation to pay interest on any Indebtedness and
any endorsements of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;
"Conversion Date" means a Business Day notified by the Borrower to the
Administrative Agent pursuant to Section 3.10 as being a date on which the
Borrower has elected to convert a Borrowing already outstanding hereunder into
another basis of Borrowing; or if the Borrower is deemed to have converted a
Borrowing into another basis of Borrowing hereunder pursuant to any of Section
5.1.3, 5.2 or 8.7, it shall mean the day on which such deemed conversion occurs;
"Convertible Indenture" means the Indenture dated as of October 8, 1997 between
WCP, as Issuer and State Street Bank and Trust Company, as Trustee, pursuant to
which the Convertible Notes were issued by WCP;
"Convertible Notes" means the 6% Convertible Senior Subordinated Notes due 2007,
issued by WCP pursuant to the Convertible Indenture;
"Co-Syndication Agents" has the meaning set forth in the description of the
parties on the first page of this Agreement;
"Counsel" means, with regard to matters of Canadian law, with respect to the
Administrative Agent or a Lender, a barrister or solicitor or firm of barristers
or solicitors retained or employed,
-6-
as the case may be, by the Administrative Agent or such Lender, as the case may
be, and with respect to a Loan Party, a barrister or solicitor or firm of
barristers or solicitors retained or employed, as the case may be, by such Loan
Party and acceptable to the Administrative Agent and, with regard to matters of
the laws of the United States of America or any state thereof, with respect to
the Administrative Agent or a Lender, an attorney or a firm of attorneys
retained or employed, as the case may be, by the Administrative Agent or such
Lender, as the case may be, and with respect to a Loan Party, an attorney or
firm of attorneys, retained or employed, or as the case may be, by such Loan
Party and acceptable to the Administrative Agent;
"Credit Facilities" means, collectively, the Facility A and the Facility B, and
"Credit Facility" means any one of them;
"Default" means any event or circumstance which constitutes an Event of Default
or which, with the giving of notice, the making of any determination or the
lapse of time or any combination thereof, would, unless cured or waived, become
an Event of Default;
"Deposit" has the meaning set forth in Section 19.1;
"DGCL" means the General Corporation Law of the State of Delaware, as amended;
"Dividend" means, for any Person, any payment with respect to or on account of
any of such Person's Capital Stock, including any dividend or other distribution
on, any payment of interest on or principal of, and any payment on account of
any purchase, redemption, retirement, exchange, defeasance or conversion of, or
on account of any claim relating to or arising out of the offer, sale or
purchase of, any such Capital Stock, or any return of capital to the holders of
Capital Stock of such Person or any other distribution, payment or delivery of
property or cash to the holders of Capital Stock of such Person as such. For the
purposes of this definition, a "payment" shall include the transfer of any asset
or the incurrence of any Indebtedness or other liability (the amount of any such
payment to be the fair market value of such asset or the amount of such
obligation, respectively) but shall not include the issuance of any Capital
Stock of such Person;
"Dollars" means US Dollars;
"Drawdown Date" means a Business Day notified by the Borrower to the
Administrative Agent pursuant to Section 3.6 as being a date on which the
Borrower has requested a Borrowing to be made available to the Borrower;
"EBITDA" means, for any period for any Person, the sum of (a) the net income of
such Person for such period before extraordinary or unusual items and (b) to the
extent deducted in determining the net income of such Person for such period,
Interest Expense, income taxes (minus income tax credits), non-controlling
interest and depreciation expense and amortization expense of such Person,
provided that any determination of EBITDA with respect to QPI, for any period
which includes a quarter prior to the Tender Offer Funding Date, shall include
EBITDA of WCP based on WCP's Form 10-K or Form 10-Q, as applicable, with respect
to any such quarter which precedes the Tender Offer Funding Date;
-7-
"8 3/8% Indenture" means the Indenture dated as of November 20, 1998 between WCP
as Issuer and The Bank of New York, as Trustee, pursuant to which the 8 3/8%
Notes were issued by WCP;
"8 3/8% Notes" means the 8 3/8% Senior Subordinated Notes due 2008, issued by
WCP pursuant to the 8 3/8% Indenture;
"Environmental Affiliate" means with respect to any Person, another Person whose
liability for any Environmental Claim the first Person has retained, assumed or
otherwise become liable for, either contractually or by operation of law. All
references to compliance by or liabilities of an Environmental Affiliate herein
pertain only to those specific liabilities that QPI or a Restricted Entity has
retained, assumed, or become liable for and not to the entire business of the
Environmental Affiliate;
"Environmental Claims" means any and all material administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating in any way
to any Environmental Law or any Environmental Permit (hereinafter in this
definition, "Claims") including without limitation:
(a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in
connection with Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment;
"Environmental Laws" means all applicable federal, provincial, state, municipal,
local and foreign laws and regulations, ordinances, codes, policies, rules or
guidelines (having the force of law in the case of rules, ordinances, codes,
policies or guidelines) of civil or common law now or hereafter in effect and in
each case as amended and any judicial or administrative order, consent, decree
or judgment relating to pollution or protection of human health, Hazardous
Materials or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata, emissions,
discharges, releases or threatened releases of Hazardous Materials, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials);
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law;
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder;
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA is a
member of the controlled group of QPI or of any Restricted Entity, within the
meaning of Section 414 of the Internal Revenue Code;
"ERISA Event" means:
-8-
(a) (i) the occurrence of a reportable event, within the meaning of Section
4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC,
or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with
respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days,
(b) the application for a minimum funding waiver with respect to a Plan,
(c) the provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA),
(d) the cessation of operations at a facility of QPI or any Restricted Entity
or any ERISA Affiliate in the circumstances described in Section 4062(e)
of ERISA,
(e) the withdrawal by QPI or any Restricted Entity or any ERISA Affiliate from
a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA,
(f) the conditions for imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan,
(g) the adoption of an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA, or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan;
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System of the United States of
America, as in effect from time to time;
"Event of Default" means any of the events or circumstances set out in Section
14.1;
"Excluded Taxes" means any tax on the overall net income of any Lender and any
capital or franchise tax payable by such Lender;
"Existing Actions" means any actions, suits, investigations, litigation or
proceedings with respect to QPI and its Subsidiaries (and, after the Tender
Offer Funding Date, WCP and its Subsidiaries) disclosed in the Public
Information (and, after the Tender Offer Funding Date, with respect to WCP and
its Subsidiaries, in the Merger Disclosure);
-9-
"Existing Indentures" means the Convertible Indenture, the 8 3/8% Indenture and
the 7 3/4% Indenture;
"Existing QPI Facility" means the Credit Agreement dated as of the 28th day of
April, 1999 made among QPI, and US Holdings, and USGP, and each of the financial
institutions named on the signature pages thereof, and Royal, as Administrative
Agent, and Royal, ABN AMRO Bank Canada, Bank of America Canada and Canadian
Imperial Bank of Commerce, as Arrangers, and ABN AMRO Bank Canada, Bank of
America Canada and Canadian Imperial Bank of Commerce as Joint Syndication
Agents, as it may be amended by the QPI Amendment;
"Facility A" means the term loan facility made available to the Borrower
pursuant to Section 3.2;
"Facility A Commitment" means, with respect to each Lender, the obligation of
such Lender to make available to the Borrower, Borrowings under the Facility A
in an aggregate principal amount at any one time outstanding of up to, but not
exceeding, its Lender's Proportion of the Facility A Total Commitment;
"Facility A Extended Maturity Date" means, if the Borrower has exercised its
option to extend the maturity date of up to $300,000,000 of the Advance under
the Facility A pursuant and subject to Section 3.8, the date falling on the
second anniversary of the Tender Offer Funding Date;
"Facility A Extension Period" means the period, if any, from the Facility A
Maturity Date to the Facility A Extended Maturity Date;
"Facility A Lenders" means the collective reference to each Lender identified on
Schedule 1.1.1 as having a Facility A Commitment, and "Facility A Lender" means
any such Lender, the whole provided that each Facility A Lender is a United
States Person or complies with the provisions of Section 8.5.4;
"Facility A Maturity Date" means the date falling on the first anniversary of
the Tender Offer Funding Date;
"Facility A Period" means the period commencing on the Formal Date and ending on
September 8, 1999;
"Facility A Total Commitment" means $650,000,000, to the extent not otherwise
cancelled, reduced or otherwise terminated as herein provided;
"Facility B" means the 364-day non-revolving credit facility made available to
the Borrower pursuant to Section 3.3;
"Facility B Commitment" means, with respect to each Lender, the obligation of
such Lender to make available to the Borrower, Borrowings under the Facility B
in an aggregate principal amount at any one time outstanding of up to, but not
exceeding, its Lender's Proportion of the Facility B Total Commitment;
-10-
"Facility B Lenders" means the collective reference to each Lender identified on
Schedule 1.1.1 as having a Facility B Commitment, and "Facility B Lender" means
any such Lender, the whole provided that each Facility B Lender is a United
States Person or complies with the provisions of Section 8.5.4;
"Facility B Maturity Date" means the date falling on the 364th day following the
Formal Date;
"Facility B Period" means the period commencing on the Formal Date and ending on
the 120th day after the Tender Offer Funding Date;
"Facility B Total Commitment" means $150,000,000, to the extent not otherwise
cancelled, reduced or terminated as herein provided;
"Federal Funds Effective Rate" means, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System in the United States of
America arranged by federal funds brokers, as published for such day (or if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day in New York City, N.Y., U.S.A., the average of the quotations
for such day in respect of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it;
"Final Maturity Date" means the latest to occur of the Facility A Maturity Date,
the Facility A Extended Maturity Date and the Facility B Maturity Date;
"Finance Parties" means collectively each of the Lenders, the Arrangers, the
Co-Syndication Agents and the Administrative Agent and "Finance Party" means any
one of them;
"Financial Company Restricted Entity" means any Restricted Entity which is a
special purpose finance Subsidiary wholly-owned directly or indirectly by QPI
whose activity is limited to raising private and/or public Indebtedness,
provided that the net proceeds from all such private or public Indebtedness are
remitted to QPI, US Holdings or USGP;
"Formal Date" means the date set forth in Section 23.11;
"GAAP" means Canadian GAAP, or as the case may be, generally accepted accounting
principles in effect from time to time in the United States of America,
applicable to the relevant Person, applied in a consistent manner from period to
period;
"Granting Lender" has the meaning set forth in Section 18.3(a);
"Guarantee" of any Person means, without duplication, all guarantees,
endorsements (other than for collection or deposit in the ordinary course of
business) and other obligations (contingent or otherwise) of such Person: to
pay, purchase, provide funds (whether by the advance of money, the purchase of
or subscription for shares or other securities, the purchase of assets or
services, the indemnification in respect of letters of credit and letters of
guarantee issued in respect of Indebtedness) for the payment of, or to make
Investments in any other Person or to maintain the capital, working capital,
solvency or general financial condition of any other Person or to
-11-
indemnify against the consequences of default in the payment of, or otherwise be
responsible for, any Indebtedness, damages, losses or liabilities of any other
Person (and "Guarantor" or "guarantor" shall be construed accordingly); the
amount of each Guarantee shall be deemed to be an amount equal to the
outstanding amount of the primary obligation of the obligor to whom the
Guarantee relates, unless the Guarantee is limited to a determinable amount in
which case the amount of such Guarantee shall be deemed to be such determinable
amount; the word "Guarantee" when used as a verb has the correlative meaning;
"Guarantors" has the meaning set forth in the description of the parties on the
first page of this Agreement;
"Hazardous Materials" means:
(a) any petroleum or petroleum products, radioactive materials, asbestos in
any form that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contains dielectric fluid
containing levels of polychlorinated biphenyls, and radon gas,
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances", "hazardous waste", "hazardous
materials", "extremely hazardous waste", "restricted hazardous waste",
"toxic substances", "toxic pollutants", "contaminants", or "pollutants",
or words of similar import, under any applicable Environmental Law, and
(c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority;
"Hedge Agreement" means any swap agreement, cap agreement, collar agreement,
futures contract, forward contract or similar agreement or arrangement designed
to protect against or mitigate the effect of fluctuations in interest rates,
foreign exchange rates or the prices of commodities;
"HSR" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements ▇▇▇ ▇▇▇▇, as amended,
and the rules and regulations thereunder;
"Indebtedness" of any Person means, without duplication, (in each case, whether
such obligation is with full or limited recourse):
(a) any obligation of such Person for borrowed money,
(b) any obligation of such Person evidenced by a bond, debenture, note or
other similar instrument,
(c) any obligation of such Person to pay the deferred purchase price of
property or services, except a trade account payable that arises in the
ordinary course of business,
(d) any obligation of such Person as lessee under a Capitalized Lease,
-12-
(e) any obligation of such Person to reimburse any other Person in respect of
amounts drawn or drawable under any letter of credit or other Guarantee
(excluding letters of guarantee for the performance of obligations and any
form of "bid bond") issued by such other Person, whether contingent or
non-contingent,
(f) Redeemable Preferred Shares,
(g) any obligation of such Person to purchase securities or other property
that arises out of or in connection with the sale of the same or
substantially similar securities or property,
(h) any Indebtedness of others secured by a Lien on any asset of such Person,
and
(i) any Indebtedness of others Guaranteed by such Person;
"Indemnitees" has the meaning set forth in Section 12.2;
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA;
"Interest Date" means the first day of each month;
"Interest Determination Date" means with respect to a Libor Loan, the date which
is two Business Days prior to the first day of the Libor Interest Period
applicable to such Libor Loan or such other day on which it is market practice
in the relevant interbank market for leading banks to give quotations for
deposits in US Dollars for delivery on the first day of the Libor Interest
Period, as determined by the Administrative Agent;
"Interest Expense" means, for any period for any Person, interest expense of
such Person (including without limitation interest expense attributable to
Capitalized Leases in accordance with GAAP) and Dividends accrued or paid on
Redeemable Preferred Shares;
"Interest Payment Date" means with respect to a US Prime Rate Loan, each
Interest Date or if such Interest Date is not a Business Day, the immediately
following Business Day;
"Internal Revenue Code" means the Internal Revenue Code of 1986 of the United
States, as amended from time to time, and the regulations promulgated and
rulings issued thereunder;
"Investment" of any Person means (a) any Capital Stock, evidence of Indebtedness
or other obligation, security or instrument issued by, or any other interest in,
any other Person, (b) any loan, advance or extension of credit to, guarantee of
Indebtedness of, or any contribution to the capital of, any other Person and (c)
any other investment or interest in any other Person, all as determined in
accordance with GAAP;
"ITA" means the Income Tax Act (Canada) and the regulations promulgated
thereunder, as amended, supplemented or re-enacted from time to time;
"Judgment Conversion Date" has the meaning set forth in Section 20.1;
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"Judgment Currency" means judgment currency as defined in Section 20.1;
"Lenders" means all of the Facility A Lenders and the Facility B Lenders, and
their successors and assigns and "Lender" means any one of them;
"Lender's Proportion" means, at any time:
(a) in respect of any Credit Facility, as to any Lender, the proportion borne
by the Commitment of such Lender under such Credit Facility to the
Facility A Total Commitment or the Facility B Total Commitment, as the
case may be, as it may be adjusted from time to time as a result of
prepayments or cancellations, or further to an assignment pursuant to
Section 18.3, and
(b) in respect of the Aggregate Commitment, as to any Lender, the proportion
borne by the Commitments of such Lender in respect of all Credit
Facilities to the Aggregate Commitment, as it may be adjusted from time to
time as a result of prepayments or cancellations, or further to any
assignment pursuant to Section 18.3;
"Libor" means with respect to a Libor Loan during the relevant Libor Interest
Period:
(a) the rate per annum (expressed on the basis of a 360-day year) determined
by the Administrative Agent as being the rate shown on Telerate page 3750
(as defined in the International Swaps and Derivatives Association, Inc.
definitions, as modified and amended from time to time) as of 11:00 a.m.
(London, England time) on the Interest Determination Date for US Dollar
deposits for a period comparable to such Libor Interest Period, and if
different rates are quoted for US Dollar deposits in varying amounts, in
an amount which is closest to the Administrative Agent's (in its capacity
as Lender) Lender's Proportion of such Libor Loan, or
(b) if for any reason the Telerate rates are unavailable to determine the rate
applicable to a Libor Loan, "Libor" for such Libor Loan during the
relevant Libor Interest Period shall mean the rate of interest per annum
(expressed on the basis of a 360-day year) determined by the
Administrative Agent by reference to the rates quoted on the Reuters
Monitor Screen, page LIBO (or any successor source from time to time) as
being the arithmetic average (rounded upwards, if necessary, to the
nearest whole multiple of 1/16th of 1%) of the rates offered in London,
England by reference banks shown on such screen as of 11:00 a.m. (London,
England time) on the Interest Determination Date to make deposits with
leading banks in the London interbank eurodollar market in US Dollars for
a period comparable to such Libor Interest Period, and if different rates
are quoted for deposits in varying amounts, in the amount which is closest
to the Administrative Agent's (in its capacity as Lender) Lender's
Proportion of such Libor Loan, or
(c) if for any reason neither the Telerate rates nor the Reuters Monitor
Screen rates are available in respect of the relevant Libor Interest
Period, "Libor" for such Libor Loan during the relevant Libor Interest
Period shall mean the annual rate of interest (expressed on the basis of a
year of 360 days and rounded upwards, if necessary, to the nearest whole
multiple of 1/16th of 1%) determined by the Administrative Agent as being
the rate of interest at which the Administrative Agent (in its capacity as
Lender), in accordance with
-14-
its normal practices, would be prepared to offer to leading banks in the
London interbank eurodollar market for delivery on the first day of the
relative Libor Interest Period for a period equal to such Libor Interest
Period based on the number of days comprised therein, deposits in US
Dollars of amounts comparable to its (in its capacity as Lender) Lender's
Proportion of such Libor Loan (and of any other Libor Loan of the
Administrative Agent in its said capacity having a Libor Interest Period
of the same duration and commencing on the same date) to be outstanding
under this Agreement during such Libor Interest Period, at or about 11:00
a.m. (London, England time) on the applicable Interest Determination Date;
"Libor Interest Date" means the last day of each Libor Interest Period or, if
the Borrower selects a Libor Interest Period longer than three months, the date
falling every three months after the beginning of such Libor Interest Period and
the last day of the Libor Interest Period so selected;
"Libor Interest Period" means, with respect to a Libor Loan, the initial period
of approximately one month, two months, three months, six months or up to one
year (as selected by the Borrower and notified to the Administrative Agent
pursuant to Section 3.6 or 3.10, but always subject to availability to each
Lender, respectively) commencing on and including the Drawdown Date or
Conversion Date, as the case may be, applicable to such Libor Loan and ending on
and including the last day of such period, and, thereafter (subject to
availability to each Lender, respectively), each successive period, if any, of
approximately one month, two months, three months, six months or up to one year
(as selected by the Borrower for such Libor Loan and notified to the
Administrative Agent pursuant to Section 5.1), but in all cases expiring no
later than the Facility A Maturity Date or the Facility A Extended Maturity
Date, as the case may be, in the case of a Libor Loan drawn under the Facility A
and the Facility B Maturity Date in the case of a Libor Loan drawn under the
Facility B;
"Libor Loan" or "Libor Loans" means, at any given time, any Loan or Loans or any
portion thereof on which the Borrower must pay interest on a Libor basis in
accordance with Section 4.1.2;
"Libor Rate Reserve Percentage" for any Libor Interest Period for all Libor
Loans comprising part of the same Borrowing means the reserve percentage
applicable two Business Days before the first day of such Libor Interest Period
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) of the United States of America for
determining the reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Libor Loans is determined) having a term equal to such
Libor Interest Period;
"Lien" means any hypothec, security interest, mortgage, pledge, prior claim,
lien, claim, charge, cession, transfer, assignment or encumbrance of whatever
kind or nature that secures the payment of any Indebtedness or liability or the
observance or performance of any obligation,
-15-
including any title retention agreement, lessor's interest under a Capitalized
Lease or analogous instrument in, of, or on any asset or property or the income
or profits therefrom of a Person;
"Loan Account" means the account or accounts established by the Administrative
Agent pursuant to Section 8.9;
"Loan Documents" means this Agreement, each Loan Party Guarantee and each
document, instrument or agreement entered into by or between any Loan Party, any
Lender, the Administrative Agent or any other Person in connection with the
transactions contemplated herein or therein or which is supplemental hereto or
thereto and "Loan Document" means any of the foregoing individually;
"Loan Parties" means, collectively, the Borrower and the Guarantors and "Loan
Party" means any one of them;
"Loan Party Guarantee" means a guarantee executed and delivered by each of the
Guarantors, as required under this Agreement, substantially in the form or to
the effect of Schedule 1.1.2, as amended, restated, supplemented or otherwise
modified from time to time;
"Loans" means at any given time, the aggregate of the loans made available by
the Lenders to, or to the order of, the Borrower under the Credit Facilities and
"Loan" means any one of them;
"Losses" shall have the meaning set forth in Section 12.2;
"Majority Lenders" means, at any time, Lenders:
(a) if no Borrowings are outstanding at such time, whose Commitments then
aggregate more than 50 % of the Aggregate Commitment or, if the Aggregate
Commitment has been reduced to zero, aggregated more than 50 % of the
Aggregate Commitment immediately before the reduction, or
(b) whose Borrowings then aggregate more than 50 % of the aggregate amount of
Borrowings outstanding hereunder under all Credit Facilities at that time;
"Margin Stock" has the meaning specified in Regulation U;
"Material Adverse Change" means, with respect to any Person, any event, change
or other occurrence that has resulted in, or could reasonably be expected to
result in, a material adverse change in the business, condition (financial or
otherwise), operations, performance or properties of such Person and its
Subsidiaries taken as a whole;
"Material(ly) Adverse Effect" means:
(a) any material adverse change in the assets, properties, operations,
financial, condition or business prospects of QPI and the Restricted
Entities, taken as a whole, or
(b) any material impairment:
-16-
(i) in the ability of any Loan Party to timely pay any amounts due
under the Loan Documents;
(ii) in the ability of any Loan Party to fulfil any other covenant or
obligation of a material nature arising under the Loan Documents,
or
(iii) in the validity or enforceability of the Loan Documents;
"Merger" means the merger of Acquisition Sub with and into WCP, with WCP being
the surviving corporation, pursuant to the Merger Agreement;
"Merger Agreement" means the Agreement and Plan of Merger dated as of July 12,
1999 among QPI, Acquisition Sub and WCP, as amended, restated, supplemented or
otherwise modified from time to time as permitted herein;
"Merger Date" means the date upon which the Merger is consummated;
"Merger Disclosure" means the Company Disclosure Schedule referred to in the
Merger Agreement;
"Merger Documents" means the Merger Agreement, all schedules and exhibits
thereto, the Certificate of Merger and any other documents publicly filed in
connection with the Merger;
"Millennium Compliant" means that the Computer Systems are capable of the
following functions immediately before, during and after January 1, 2000:
(a) handling date information involving all and any dates before, during and
after January 1, 2000, including, accepting date input (either from an
internal or external source), providing date output and performing date
calculations in whole or in part and in any date format (i.e., julian,
gregorian, international or any other format),
(b) operating accurately without interruption on and in respect of any and all
dates before, during and after January 1, 2000 and without any change in
performance,
(c) responding to and processing any digit year input (either from an internal
or external source) without creating any ambiguity as to the century, and
(d) receiving, storing, providing and communicating date output information
without creating any ambiguity as to the century;
"Minimum Number of Shares" means the minimum number of Shares, determined on a
fully diluted basis (including, without limitation, all Shares issuable upon
conversion of all of the outstanding Convertible Notes), necessary to approve
the consummation of the Merger in accordance with the provisions of any
applicable corporate statute, anti-takeover statute or provision in WCP's
certificate of incorporation, by-laws or other constituent document or other
applicable legal requirement;
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
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"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which QPI or any Restricted Entity or any ERISA
Affiliate is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions;
"Multiple Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that:
(a) is maintained for employees of QPI or any Restricted Entity or any ERISA
Affiliate and at least one Person other than QPI or any such Restricted
Entity or ERISA Affiliates or
(b) was so maintained and in respect of which QPI or any Restricted Entity or
ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated;
"New Operating Restricted Entity" has the meaning ascribed to such expression in
Section 11.2.4;
"Non-Material Changes" means, with respect to the Tender Offer Documents or the
Merger Documents, non-material amendments, waivers or modifications to the terms
thereof (other than any condition to purchase the Shares) that do not in the
aggregate materially affect the interests of the Arrangers and the Lenders in
the Credit Facilities or the Loan Documents or the likelihood of consummation of
the Merger;
"Non-Recourse Creditor" means (i) a creditor of a Non-Recourse Subsidiary or of
a Project Vehicle whose recourses are limited, in respect of any debt or
liability of such Non-Recourse Subsidiary or Project Vehicle to such creditor,
to the cash flow and other assets of such Non-Recourse Subsidiary or Project
Vehicle, to the Capital Stock of such Non-Recourse Subsidiary or to the
participation of QPI or any of its Restricted Entities in the Project Vehicle
carrying out the specific Project for which such Non-Recourse Subsidiary or
Project Vehicle was formed, the whole to the exclusion of any and all other
recourses whether by way of Guarantees or otherwise against QPI or any of its
Restricted Entities or against any third party having recourse against QPI or
any of its Restricted Entities in respect of such debt or liability or, (ii) a
creditor to whom is owed by QPI or any of its Restricted Entities, Indebtedness
for borrowed money to finance the Start-up Costs of a Project carried out by QPI
or such Restricted Entity and whose recourses in respect of such Indebtedness
for borrowed money are limited to the cash flow and the other assets of such
Project (to the exclusion of any other cash flow or asset);
"Non-Recourse Indebtedness" means Indebtedness for borrowed money (i) contracted
for the purpose of financing the Start-up Costs of a specific Project carried
out (alone or in association with others) by QPI, any of its Restricted Entities
or by a Non-Recourse Subsidiary or a Project Vehicle and (ii) due or otherwise
owing by QPI or such Restricted Entity or Non-Recourse Subsidiary or Project
Vehicle to a creditor being a Non-Recourse Creditor by reason of QPI or such
Restricted Entity or Non-Recourse Subsidiary or Project Vehicle being indebted
or liable to such creditor in respect of such Indebtedness for borrowed money;
"Non-Recourse Subsidiary" means a direct or indirect Subsidiary of QPI who meets
all of the following conditions:
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(i) it was formed to carry out a specific Project, whether alone or in
association with others; and
(ii) its only assets consist of (a) assets relating to such Project or (b)
shares or any other form of participating interest held, directly or
indirectly, in a Project Vehicle, which in turn owns assets relating to
such Project; and
(iii) it owes to one or more creditors Indebtedness for borrowed money or it
owns (directly or indirectly) shares or any other form of participating
interest in a Project Vehicle which owes Indebtedness for borrowed money
to one or more creditors, in all cases contracted for the purpose of
financing the Start-up Costs of such Project or purchasing the
participation of other participants in such Project, where the recourses
of such creditor(s) in relation to such Indebtedness for borrowed money
are limited to (a) the assets of such Project or Project Vehicle, (b)
Capital Stock of such Subsidiary or (c) recourses against such Subsidiary
or Project Vehicle; and
(iv) neither QPI nor any other Restricted Entity is liable or has issued a
Guarantee or has otherwise obligated itself either directly or indirectly
in respect of debts and liabilities of such Subsidiary or Project Vehicle
otherwise than by giving to the creditor of such debts or liabilities and
in relation thereto a recourse limited to (a) the Capital Stock of such
Subsidiary or (b) the participation of QPI or any of its Restricted
Entities in the Project Vehicle carrying out the specific Project for
which such Subsidiary or Project Vehicle was formed,
it being understood and agreed that upon the debts or liabilities of such
Subsidiary to such creditor(s) in respect of such Indebtedness for borrowed
money and any such Guarantee being repaid, released or otherwise satisfied, such
Subsidiary shall then cease, for all purposes of this Agreement, to be a
Non-Recourse Subsidiary;
"Non-Restricted Entity" means (a) each Person less than 50% plus one of the
Capital Stock of which is owned by QPI, directly or indirectly, through a
Restricted Entity, and (b) each Subsidiary of a Non-Restricted Entity;
"Non-US Bank" means a Person that is not a United States Person and that is not
described in Section 881(c)(3) of the Internal Revenue Code;
"Offer to Purchase" means the Offer to Purchase of Acquisition Sub dated July
16, 1999 that sets forth terms and conditions of the Tender Offer in the form
filed on such date with the Securities and Exchange Commission pursuant to
Section 14(d) of the Securities Exchange Act of 1934, as amended;
"Operating Restricted Entity" means any Restricted Entity other than US
Holdings, USGP, QPHC and a Financial Company Restricted Entity;
"Participant" shall have the meaning set forth in Section 18.3(a);
"PBGC" means the Pension Benefit Guaranty Corporation of the United States (or
any successor thereto);
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"Per Share Purchase Price" means $35.69 per Share;
"Permitted Encumbrances" means the encumbrances on assets of the Borrower and
the other Restricted Entities listed in Schedule 1.1.3;
"Person" or "Persons" has the meaning set forth in Section 1.4;
"Plan" means a Single Employer Plan or a Multiple Employer Plan;
"Project" means the acquisition, construction and development of newly acquired
assets (which must include tangible assets) forming an economic unit capable (on
the basis of reasonable initial assumptions) to generate sufficient cash flow to
cover the operating costs and debt service required to finance the undertaking
relating to such assets over a period of time which is less than the projected
economic life of the assets and includes any commercial operation for which such
assets were so acquired, constructed or developed and which is subsequently
carried on with such assets by such economic unit;
"Project Vehicle" means a corporate entity or an unincorporated entity, whether
or not having a legal personality (including a joint-venture, a partnership, a
trust, a co-ownership scheme or other business combination or risk-sharing
scheme) in which QPI or any of its Restricted Entities owns shares or any other
form of ownership or participating interest and which meets all of the following
conditions:
(i) it was formed to carry out a specific Project;
(ii) its only assets consist of assets relating to such Project;
(iii) if such entity is a Subsidiary, it is a Non-Recourse Subsidiary; and
(iv) neither QPI nor any of its Restricted Entities is liable or has
issued a Guarantee or has otherwise obliged itself either directly
or indirectly for or in respect of debts or liabilities incurred to
finance such entity or the Project carried out by such entity
otherwise than by giving to the creditor of such debts or
liabilities and in relation thereto a recourse limited to (a) the
assets of such Project or (b) its shares or other form of ownership
or participating interest in such entity;
"Properties" means the real or immovable properties owned or occupied by QPI or
any Restricted Entity;
"Public Information" means the most recent Form 10-K and the most recent Form
10-Q issued by WCP and the most recent Form 40-F issued by QPI and the
information filed by QPI under Form 6-K, in each of the foregoing cases, prior
to July 12, 1999;
"QPHC" has the meaning set forth in the description of the parties on the first
page of this Agreement;
"QPI" has the meaning set forth in the description of the parties on the first
page of this Agreement;
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"QPI Amendment" means the amendment to the Existing QPI Facility contemplated by
the QPI Waiver Letter;
"QPI LLC" means Quebecor Printing Delaware LLC, a Delaware limited liability
company, all the non-voting common membership interests of which are owned by
USGP and all the voting preferred membership interests of which are owned by
Quebecor Printing Nova Scotia ULC, a wholly owned Subsidiary of USGP;
"QPI Waiver Letter" means the letter from Royal Bank of Canada to the lenders
under the Existing QPI Facility, in substantially the form attached to the
Arrangement Letter, describing certain amendments to be made to the Existing QPI
Facility;
"QPI's Debt" means, without duplication, the aggregate of all Indebtedness of
QPI and its Subsidiaries, determined on a Consolidated basis, in accordance with
Canadian GAAP;
"QPI's Equity" means, without duplication, the sum of shareholders' equity of
QPI and non-controlling interests of QPI, in each case determined on a
Consolidated basis, in accordance with Canadian GAAP;
"Redeemable Preferred Shares" means, with respect to any Person, any share of
such Person's Capital Stock to the extent that it is redeemable, payable or
required to be purchased or otherwise retired or extinguished, or convertible
into any Indebtedness or other liability of such Person, the whole prior to the
Final Maturity Date and at the option of the holder of such Capital Stock or of
such Person, whether or not it pays Dividends at a specified or non-specified
rate and whether or not such Capital Stock has preference over common stock in
any respect;
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System of the United States of America, as in effect from time to time;
"Reportable Event" means, with respect to any Benefit Plan of any Person, (a)
the occurrence of any of the events set forth in ERISA Section 4043(b) (other
than a Reportable Event as to which the provision of 30 days' notice to the
Pension Benefit Guaranty Corporation is waived under applicable regulations),
4068(f) or 4063(a) or the regulations thereunder with respect to such Benefit
Plan, (b) any event requiring such Person or any of its ERISA Affiliates to
provide security to such Benefit Plan under Internal Revenue Code Section
401(a)(29) or (c) any failure to make a payment required by Internal Revenue
Code Section 412(m) with respect to such Benefit Plan;
"Responsible Officer" means, with respect to any Person, the president, the
chief executive officer, the chief financial officer, the corporate controller,
the treasurer, the assistant treasurer, the corporate secretary or the assistant
corporate secretary of such Person, provided that, with respect to financial
matters, it shall mean the chief financial officer, the corporate controller,
the treasurer or the assistant treasurer of such Person;
"Restricted Entity" means any Subsidiary whose Capital Stock is at least 50%
plus one owned directly or indirectly by QPI (including US Holdings, USGP, QPHC,
any Operating Restricted Entity and any Financial Company Restricted Entity);
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"Royal" means Royal Bank of Canada and its successors and permitted assigns;
"S&P/Moody's Credit Rating" has the meaning ascribed to such expression in
Section 4.4;
"Schedules" means the schedules to this Agreement as the same may be amended,
modified, supplemented or restated from time to time;
"7 3/4% Indenture" means the Indenture dated as of February 22, 1999 between
WCP, as Issuer and The Bank of New York, as Trustee, pursuant to which the 7
3/4% Notes were issued by WCP;
"7 3/4% Notes" means the 7 3/4% Senior Subordinated Notes due 2009, issued by
WCP pursuant to the 7 3/4% Indenture;
"Shares" means the shares of common stock, par value $0.01 per share of WCP;
"Single Employer Plan" means a single employer plan, as defined in Section
4001(1)(15) of ERISA, that
(a) is maintained for employees of QPI or any Restricted Entity or ERISA
Affiliate and no Person other than QPI or any Restricted Entity and its
ERISA Affiliates, or
(b) was so maintained and in respect of which QPI or any Restricted Entity or
ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated;
"Solvent" means, when used with respect to any Person, that
(a) the aggregate of such Person's property is, at a fair valuation,
sufficient, or, if disposed of at a fairly conducted sale under legal
process, would be sufficient, to enable payment of all such Person's
obligations and liabilities (including Contingent Liabilities), due and
accruing due,
(b) such Person is able to meet its obligations generally as they become due,
(c) such Person has not ceased paying its current obligations in the ordinary
course of business generally as they become due,
(d) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond its ability to pay as such debts and
liabilities mature,
(e) such person is not engaged, and is not about to engage, in business or a
transaction for which its property would constitute an unreasonably small
capital, and
(f) such Person is otherwise solvent under Applicable Law;
"Standard & Poor's" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.;
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"Start-up Costs" means, in relation to a Project, (i) the costs of acquisition,
construction and/or development of the newly acquired assets forming part of
such Project and which have to be constructed, acquired or developed to form the
economic unit required to be formed to initially constitute such Project and
(ii) the principal amount of money which, at the inception of the commercial
operations to be conducted with such assets, is then reasonably estimated as
being the amount required to provide the Project with a sufficient initial
working capital;
"Subordinated Notes" means the 7 3/4% Notes and the 8 3/8% Notes;
"Subsidiary" means, with respect to any Person, any other Person (a) Capital
Stock of which having ordinary voting power to elect a majority of the board of
directors (or other person having similar functions) or (b) other ownership
interests of which ordinarily constituting a majority voting interest, are at
the time, directly or indirectly, owned or controlled by such first Person, or
by one or more of its Subsidiaries, or by such first Person and one or more of
its Subsidiaries;
"Tax" includes all present and future taxes, levies, imposts, stamp taxes,
duties, charges to tax, fees, deductions, withholdings and any restrictions or
conditions resulting in a charge to tax and all penalty, interest and other
payments on or in respect thereof, imposed, assessed, levied or collected under
the laws of any country or any political subdivision thereof or by any
governmental agency or body or taxing authority thereof, but does not include
Excluded Taxes;
"Tender Offer" means the cash tender offer made by Acquisition Sub to acquire up
to 23,500,000 of the Shares, but not less than the Minimum Number of Shares, for
$35.69 net per Share;
"Tender Offer Documents" means the Offer to Purchase, the related letter of
transmittal, any other tender offer material which is furnished to stockholders
of WCP in connection with the Tender Offer, and the Tender, Voting and Option
Agreement;
"Tender Offer Funding Date" means the Drawdown Date under the Facility A;
"Tender, Voting and Option Agreement" means the Tender, Voting and Option
Agreement dated as of July 12, 1999, among QPI and KKR Associates, certain
investment partnerships controlled by KKR Associates and certain management
stockholders of WCP owning approximately 24.5% of the Shares in the aggregate;
"Termination Event" means, with respect to any Benefit Plan, (a) any Reportable
Event with respect to such Benefit Plan, (b) the termination of such Benefit
Plan, or the filing of a notice of intent to terminate such Benefit Plan, or the
treatment of any amendment to such Benefit Plan as a termination under ERISA
Section 4041(c), (c) the institution of proceedings to terminate such Benefit
Plan under ERISA Section 4042 or (d) the appointment of a trustee to administer
such Benefit Plan under ERISA Section 4042;
"Transaction Documents" means the Merger Agreement and such other agreements and
other related documentation as required to consummate the Tender Offer and
Merger, including the Tender, Voting and Option Agreement;
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"United States Person" means a corporation, partnership or other entity created,
organized or incorporated under the laws of the United States of America or a
State thereof (including the District of Columbia);
"US Dollars", the symbols "$" and "US$", "United States Dollars" or "lawful
money of the United States" each means lawful currency of the United States of
America in immediately available funds or, if such funds are not available, the
form of money of the United States of America that is customarily used in the
settlement of international banking transactions on the day any payment is due
to be made hereunder;
"USGP" means Quebecor Printing Capital GP, a Delaware general partnership;
"US Holdings" has the meaning set forth in the description of the parties on the
first page of this Agreement;
"US Holdings Merger" means the merger of the surviving corporation of the Merger
with US Holdings;
"US Holdings Revolving Credit Agreement" means the $450,000,000 Revolving Credit
Agreement dated as of the date hereof among the parties hereto, as amended,
restated, supplemented or otherwise modified from time to time;
"US Prime Rate" in effect on any one day, means the rate of interest per annum
that is the greater of (a) the rate of interest determined by Royal in its sole
discretion as its US prime commercial lending rate for such day for US Dollar
loans made in the United States, and (b) the annual rate of interest equal to
the sum of the Federal Funds Effective Rate then in effect plus 1/2 of 1% per
annum, in each case as adjusted from time to time without notice to the
Borrower;
"US Prime Rate Loan" or "US Prime Rate Loans" means at any given time, any Loan
or Loans, or any portion thereof, on which the Borrower must pay interest on the
basis of the US Prime Rate in accordance with Section 4.1.1;
"US Restricted Entity" means a Restricted Entity incorporated under the laws of
a state of the United States of America or the District of Columbia;
"WCP" means World Color Press, Inc., a Delaware corporation;
"WCP Existing Bank Credit Agreement" means the Second Amended and Restated
Credit Agreement, dated as of June 6, 1996 among WCP, the lenders party thereto,
Bankers Trust Company, as administrative agent thereunder, BA Securities, Inc.,
as syndication agent thereunder and Citibank N.A., as documentation agent
thereunder, as amended.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA; and
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
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Section 1.2 Headings and Table of Contents
The headings of the Articles, Sections, Subsections or paragraphs herein and the
table of contents are inserted for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
Section 1.3 References
Unless the context otherwise requires or unless otherwise provided, all
references to Sections, Subsections, Articles and Schedules are to Sections,
Subsections, and Articles of and Schedules to, this Agreement. The words
"hereto", "herein", "hereof", "hereunder" and similar expressions mean and refer
to this Agreement.
Section 1.4 Rules of Interpretation
In this Agreement, unless the context otherwise requires or unless otherwise
provided,
(a) the singular includes the plural and vice versa,
(b) "month" means a calendar month,
(c) "person" or "Person" includes any individual, sole proprietorship,
corporation, partnership, trust, unincorporated organization, mutual
company, joint stock company, or other entity, estate, union, employee
organization, government or any agency or political subdivision thereof,
and
(d) "in writing" or "written" includes printing, typewriting or any electronic
means of communication capable of being legibly reproduced at the point of
reception, including telecopier, telex or telegraph, but excluding
electronic mail.
Section 1.5 Accounting Terms and Computations
Each accounting term used in this Agreement has the meaning assigned to it under
GAAP unless otherwise defined herein and reference to any balance sheet item or
income statement item means such item as computed from the applicable statement
prepared in accordance with GAAP.
All financial statements required to be delivered hereunder shall be made and
prepared in accordance with GAAP consistently applied throughout the periods
involved.
Section 1.6 Time
Except where otherwise indicated in this Agreement, any reference to a time
shall mean local time in New York City, New York.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties as of the Date of this Agreement
Each Loan Party represents and warrants (provided that each representation and
warranty contained hereinbelow when made by a Loan Party other than QPI shall
apply only to such Loan Party and its Subsidiaries which are Restricted
Entities) to each of the Finance Parties that:
2.1.1 Existence; Power: each of QPI and the Restricted Entities is a
corporation (or a partnership, as the case may be, and in the case of
USGP, a partnership the sole partners of which are as of the Formal Date
QPI and Graphicor Transport Inc. - Transport Graphicor Inc.) which is
duly incorporated (or constituted, as applicable) and has the necessary
corporate or partnership power and authority to carry on its business as
presently conducted and as proposed to be conducted in connection with
and following the consummation of the Tender Offer, the Merger and the
other transactions contemplated in the Transaction Documents and, to the
extent applicable, enter into the Loan Documents to which it is a party;
2.1.2 Loan Parties and Subsidiaries: Schedule 2.1.2 sets forth a complete and
accurate list of all Subsidiaries of QPI, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation or
organization and the number of outstanding shares of each class of
Capital Stock thereof and the owner of such Capital Stock. Neither QPI
nor any of its Subsidiaries which is a Restricted Entity is, directly or
indirectly, bound by or subject to, any consensual restriction limiting
the ability (whether by covenant, event of default, subordination or
otherwise) of QPI or any Restricted Entity to (a) pay or make the
maximum Dividends permitted by law to its parent entity, (b) pay any
obligation owed to QPI or any Restricted Entity, (c) make any loans or
advances to or Investments in QPI or in any Restricted Entity, (d)
transfer any of its property or assets to QPI or any Restricted Entity
or (e) create any Lien upon its property or assets whether now owned or
hereafter acquired or upon any income or profits therefrom, except any
such restrictions applicable to (i) Imprimeries Didier-Quebecor, S.A.
(France) and its Subsidiaries, (ii) any other Restricted Entity (other
than a Loan Party), whose assets, singly or when taken together with the
assets of all Restricted Entities (other than a Loan Party) subject to
such restrictions, do not exceed at any time 10 % of the Consolidated
assets of QPI, as determined in accordance with GAAP, (iii) WCP and its
Subsidiaries, from and after the date it becomes a Restricted Entity,
with respect to any restriction contained in Sections 4.7 (Limitations
on Restricted Payments), 4.8 (Dividend and Payment Restrictions), 4.10
(Limitations on Sales of Assets), 4.11 (Transactions with Affiliates),
4.12 (Limitations on Liens), 4.13 (Investments in Unrestricted
Subsidiaries) and 4.15 (Limitation on Other Subordinated Indebtedness)
of the 7 3/4% Indenture and the 8 3/8% Indenture, (iv) QPI, with respect
to the restriction on its ability to declare, set aside or pay any
dividends on, or make any other distributions in respect of, any of its
Capital Stock (other than regular quarterly cash dividends in accordance
with its past dividend policy), set forth in Section
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5.2(i)(A) of the Merger Agreement and (v) any restriction contained in
Section 1.11 of any Loan Party Guarantee issued hereunder or under (and
as defined in) the Existing QPI Facility. No Restricted Entity has
outstanding any securities convertible in Capital Stock nor rights to
subscribe or other agreements for the subscription of Capital Stock
that, if exercised or converted, would change the Restricted Entity into
a Non-Restricted Entity;
2.1.3 Authorization and Enforceability: each of this Agreement and the other
Loan Documents has been duly authorized by all necessary corporate and
other actions and constitutes valid and legally binding obligations of
the Loan Parties party to it;
2.1.4 Breach: neither the execution and delivery of this Agreement and the
other Loan Documents by any Loan Party nor compliance with the terms and
provisions hereof or thereof will:
(a) conflict with, violate, or result in a breach of any of the
terms, conditions or provisions of any Applicable Law
(including, without limitation, the US Securities Exchange Act
of 1934, as amended, and the Racketeer Influenced and Corrupt
Organizations Act, enacted as part of the US Organized Crime Act
of 1970 of the United States of America) or regulation
(including, without limitation, Regulation U or Regulation X of
the Board of Governors of the Federal Reserve System in the
United States of America) applicable to such Loan Party, or any
order, injunction, decree, determination or award of any court
or any governmental department, body, commission, board, bureau,
agency or instrumentality applicable to such Loan Party, in each
case in a material manner or to a material extent,
(b) conflict with, violate, result in a breach of, or constitute a
default under, any charter or by-law provision of any Loan
Party, or of any loan agreement, loan or trust indenture, trust
deed, or any other similar agreement or instrument to which such
Loan Party is a party or by which it is bound, except, prior to
the Tender Offer Funding Date, for any breach under the Existing
QPI Facility for which a waiver or amendment has been requested
pursuant to the QPI Waiver Letter, or
(c) result in the creation of a Lien upon any of the properties,
assets or revenues of QPI or any Restricted Entity;
2.1.5 Litigation: except with respect to the Existing Actions, there are no
actions, suits or arbitration proceedings pending or, to the best
knowledge of each Loan Party, threatened involving QPI or any Restricted
Entity which could, if determined adversely, separately or in the
aggregate, have a Material Adverse Effect or which purport to affect the
legality, validity or enforceability of any of the Loan Documents;
2.1.6 Compliance with Applicable Laws: QPI and each Restricted Entity and
their respective businesses and operations are in compliance with all
Applicable Laws,
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except to the extent that any non-compliance with Applicable Laws would
not have a Material Adverse Effect. Without limiting the generality of
the foregoing:
(a) Investment Company Act of 1940 of the United States of America:
neither QPI nor any Restricted Entity is an "investment
company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940 of the
United States of America, as amended, and neither the making of
any Advances, nor the application of the proceeds or repayment
thereof by any Loan Party, nor the consummation of the Tender
Offer and the Merger and the other transactions contemplated
thereby and hereby, will violate any provision of such Act or
any rule, regulation or order of the Securities and Exchange
Commission thereunder;
(b) Competition and Anti-trust Laws: except for matters which would
not have a Material Adverse Effect, QPI and each Restricted
Entity is in compliance with all competition and anti-trust
legislation, and no Loan Party has any indication nor reason to
believe that any of its Acquisitions might be challengeable on
any competition or anti-trust grounds by Canadian, US or other
governmental authorities;
(c) Environmental Matters:
(i) Compliance; Environmental Permits; Communications;
Circumstances. (A) each of QPI, the Restricted Entities
and their Environmental Affiliates is in compliance with
all applicable Environmental Laws, (B) each of QPI, the
Restricted Entities and their Environmental Affiliates
has all Environmental Permits required to operate its
businesses as currently conducted or as anticipated to
be conducted, (C) none of QPI, the Restricted Entities
and their Environmental Affiliates has received any
communication (written or oral), whether from a
governmental authority, citizens group, employee or
otherwise, which communication alleges that QPI, such
Restricted Entity or such Environmental Affiliate is out
of compliance with any Environmental Law and (D) to the
best knowledge of QPI and the Restricted Entities after
due inquiry of appropriate officers, there are no
circumstances that may prevent or interfere in the
future with compliance by QPI, the Restricted Entities
or any Environmental Affiliate with any Environmental
Law, except in each case of (A), (B), (C) and (D) above
for any failure to comply with any Environmental Law or
any failure to have any Environmental Permits which,
singly or in the aggregate with all other such
non-compliances or failures, has not had and could not
reasonably be expected to have a Materially Adverse
Effect;
(ii) Environmental Claims. (A) there is no Environmental
Claim pending or threatened against QPI, any of the
Restricted Entities or any of their Environmental
Affiliates which could reasonably be expected to have a
Materially Adverse Effect and (B) there are no past or
present actions,
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activities, circumstances, conditions, events or
incidents (including, without limitation, the release,
emission, discharge or disposal of any Hazardous
Materials) (y) that could form the basis of any
Environmental Claims against QPI, any Restricted Entity
or any of their Environmental Affiliates and (z) that
singly or in the aggregate could reasonably be expected
to have a Materially Adverse Effect;
(iii) Notices or Orders. neither QPI nor any Restricted Entity
has received any notice or order advising it that it has
or may have any remedial obligation with respect to any
releases, emissions, discharges or disposals of any
Hazardous Materials or that it is or may be responsible
for the costs of any remedial action taken or to be
taken by any other Persons with respect to any such
releases, emissions, discharges or disposals of any
Hazardous Materials, which obligation or cost could
reasonably be expected to have, singly or in the
aggregate, a Materially Adverse Effect,
provided that the representations and warranties contained in this
Section 2.1.6(c), insofar as they relate to Environmental Affiliates
other than a Subsidiary of QPI, shall be made to the knowledge of the
relevant Loan Party, based on normal course of conduct with each such
Environmental Affiliate;
2.1.7 Governmental Consents: QPI and each Restricted Entity and their
respective businesses and operations have all necessary consents,
authorizations, approvals, orders, certificates, and permits from, and
have made all necessary filings with, all federal, provincial,
territorial, state and local authorities to conduct their business,
except to the extent that the failure to obtain or file same would not
have a Material Adverse Effect;
2.1.8 Taxes: QPI and each of the Restricted Entities have filed when due with
the appropriate governmental agencies all tax returns, reports and
statements required to be filed by QPI and each of the Restricted
Entities, and have paid when due all Taxes due and payable on or before
the due date thereof (other than Taxes, the payment of which is being
contested in good faith by appropriate proceedings and in respect of
which adequate reserves have been made in the books of QPI or the
relevant Restricted Entity) and, in the case of Taxes not yet due or
payable, have made adequate provision for such Taxes in their books and
records in accordance with GAAP, the whole except to the extent that
failure to comply with the foregoing would not have a Material Adverse
Effect;
2.1.9 Financial Statements: (a) the Consolidated financial statements of QPI
for the fiscal year ended December 31, 1998 which have been provided to
the Administrative Agent and the Lenders prior to the Formal Date are
complete and correct and present fairly, in accordance with Canadian
GAAP, the Consolidated financial position of QPI and its Subsidiaries
and the Consolidated results of operations, retained earnings and, as
applicable, changes in financial position or cash flows of QPI, for the
respective periods to which such statements relate; (b) except as
disclosed or reflected in such financial
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statements, as at December 31, 1998, neither QPI nor any Restricted
Entity had any liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, could reasonably be
expected to have a Materially Adverse Effect on QPI and the Restricted
Entities taken as a whole; and (c) since December 31, 1998, there has
been no change in the Consolidated financial condition of QPI from that
set forth in the said Consolidated financial statements which could have
a Material Adverse Effect;
2.1.10 Future Financial Statements: the financial statements delivered to the
Administrative Agent for distribution to the Lenders pursuant to Section
11.1.7 shall be complete and correct and present fairly, in accordance
with GAAP (except for changes therein or departures therefrom that are
described in the certificate or report accompanying such statements and
that have been approved in writing by QPI's then current independent
certified public accountants), the Consolidated financial position of
QPI as at their respective dates and the Consolidated results of
operations, retained earnings and cash flows of QPI, for the respective
periods to which such statements relate, and the furnishing of the same
to the Lenders shall constitute a representation and warranty by QPI
made on the date the same are furnished to the Lenders to that effect
and to the further effect that, except as disclosed or reflected in such
financial statements, as at the respective dates thereof, neither QPI
nor any of the Restricted Entities had any liability, contingent or
otherwise, or any unrealized or anticipated loss, that, singly or in the
aggregate, could reasonably be expected to have a Materially Adverse
Effect on QPI and the Restricted Entities taken as a whole;
2.1.11 No Event of Default: no event has occurred and is continuing which
constitutes a Default or an Event of Default;
2.1.12 Year 2000 Readiness Disclosure: QPI has taken all such reasonable
measures to ensure that passage to the Year 2000 will not result in
major disruptions of its operations or those of any of the Restricted
Entities; the effectiveness of these measures, however, is contingent on
the suppliers, customers and other third parties dealing with QPI and
its related companies, including its Subsidiaries, being themselves
Millennium Compliant;
2.1.13 No Required Filing: no registration, publication, order, permit, filing,
consent, authorization, license, decree or approval of, from or with any
Person, including any governmental authority or regulatory or
administrative body, or in any public office or any other place, is
necessary in order to ensure the legality, validity, binding effect and
enforceability of any of the Loan Documents;
2.1.14 Ownership of Property; Liens:
(a) QPI and each Restricted Entity have good and marketable title to
all of their respective properties (except where failure to have
same could not reasonably be expected to have a Material Adverse
Effect), free and clear of all Liens, except Liens permitted
pursuant to Section 11.2.1;
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(b) all material permits required to have been issued or appropriate
to enable the real and immovable property owned or leased by QPI
any of the other Loan Parties or other Restricted Entities to be
lawfully occupied and used for all of the purposes for which
they are currently occupied and used have been lawfully issued
and are in full force and effect, except where the failure to so
hold the same could not reasonably be expected to have a
Material Adverse Effect; and
(c) QPI and each Restricted Entity have obtained and hold in full
force and effect all patents, trade-marks, service marks, trade
names, copyrights and other such intellectual property rights
which are necessary for the operation of their businesses,
except where the failure to so hold the same could not
reasonably be expected to have a Material Adverse Effect; none
of them have granted any license, permit or right to use such
patents, trade-marks, service marks, trade names, copyrights
etc. to any Person to the extent that it could have a Material
Adverse Effect; to the best knowledge and belief of the Loan
Parties after due inquiry, no material product, process, method,
substance, part or other material currently sold by or employed
by QPI or any Restricted Entity in connection with their
businesses infringes any patent, trade-▇▇▇▇, service ▇▇▇▇, trade
name, copyright, license or other intellectual property right
owned by any other Person, and there is not pending or, to the
best knowledge and belief of the Loan Parties after due inquiry,
threatened any claim or litigation against or affecting QPI or
any Restricted Entity contesting their right to sell or use any
such product, process, method, substance, part or other
material, except to the extent that any such infringement, claim
or litigation could not reasonably be expected to have a
Material Adverse Effect;
2.1.15 Labor Matters: there are no strikes or other labor disputes against QPI
or any Restricted Entity and pending or, to the best knowledge and
belief of each of the Loan Parties after due inquiry, anticipated which
could reasonably be expected to have a Materially Adverse Effect and
there are no complaints or charges against QPI or any Restricted Entity
pending or, to the best of each Loan Party's knowledge and belief, after
due inquiry, threatened to be filed with any governmental or regulatory
body or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by QPI
or any Restricted Entity which could have a Material Adverse Effect;
2.1.16 Accuracy of Information: all written information provided by any of the
Loan Parties to the Lenders or the Administrative Agent in respect of
the Loan Parties and their Subsidiaries, is true and accurate in all
material respects and the said information contains no material
misstatement of fact nor does it omit a material fact which is necessary
to make such information not misleading, and there is no fact which the
Loan Parties have not disclosed in writing to the Administrative Agent
which has a Material Adverse Effect;
2.1.17 Canadian Benefit and Pension Plans: the Canadian Pension Plans are duly
registered under the provisions of the ITA and any other Applicable Laws
and no event has occurred which is reasonably likely to cause the loss
of such registered status. The
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Canadian Pension Plans and the Canadian Benefits Plans have been
administered in accordance in all material respects with the ITA and all
other Applicable Laws. All material obligations of QPI and each
Restricted Entity (including fiduciary and funding obligations) required
to be performed in connection with the Canadian Pension Plans and the
funding media therefor have been performed. No promises of benefit
improvements under the Canadian Pension Plans or the Canadian Benefit
Plans have been made except where such improvement could not have a
Material Adverse Effect. There have been no improper withdrawals or
applications of the assets of the Canadian Pension Plans or the Canadian
Benefit Plans. Each of the Canadian Pension Plans and the Canadian
Benefit Plans is funded to the extent required by Applicable Law and
there exist no going concern unfunded actuarial liabilities or solvency
deficiencies in respect of such plans which could reasonably be expected
to have a Material Adverse Effect;
2.1.18 ERISA: QPI and each Restricted Entity are in compliance with all
obligations to which they may be subject under ERISA, as well as under
the regulations or rules issued thereunder, in respect of their Benefit
Plans, except to the extent that any non-compliance therewith would not
have a Material Adverse Effect;
2.1.19 Solvency: as of the date hereof and at all times thereafter, each Loan
Party is and will be, individually and together with the other Loan
Parties, Solvent; and
2.1.20 Pari Passu: the Credit Facilities rank and will at all times rank at
least pari passu with all other unsecured senior debt of the Loan
Parties, including any unsecured senior debt owing by any Loan Party to
any Financial Company Restricted Entity.
Section 2.2 Representations and Warranties on and as of the Tender Offer Funding
Date
QPI represents and warrants to each of the Finance Parties on and as of the
Tender Offer Funding Date, after giving effect to the making of the Loans to be
made on the Tender Offer Funding Date and the purchase by Acquisition Sub of the
Shares pursuant to the Tender Offer, that:
2.2.1 Compliance with Exchange Act: each of the Tender Offer Documents, as
amended to the Tender Offer Funding Date as permitted herein, filed with
the Securities and Exchange Commission or other securities authority
complies as to form in all material respects with the provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder;
2.2.2 Shares: the number of Shares owned beneficially and of record by
Acquisition Sub, together with the number of Shares accepted by
Acquisition Sub for payment in the Tender Offer, is greater than or
equal to the Minimum Number of Shares; the price per Share to be paid by
Acquisition Sub in respect of shares accepted for payment in the Tender
Offer does not exceed the Per Share Purchase Price and the aggregate
amount paid for all Shares accepted for payment in the Tender Offer does
not exceed $838,715,000; all conditions precedent to the consummation of
the Tender Offer have been satisfied (or waived with the consent of the
Arrangers and all Lenders);
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2.2.3 Power, Authority, Approval-Tender Offer and Merger Documents: each of
QPI, Acquisition Sub and WCP has the requisite corporate power and
authority to (a) execute, deliver and perform each of the Tender Offer
Documents and Merger Documents to which it is a party and (b) to file
the Tender Offer Documents and Merger Documents filed by it, or to be
filed by it, with any governmental authority; the execution, delivery
and performance (or filing, as the case may be), of each of the Tender
Offer Documents and Merger Documents which have been executed and to
which QPI, Acquisition Sub or WCP is a party and the consummation of the
transactions contemplated thereby, have been duly approved by the board
of directors of each of QPI, Acquisition Sub and WCP, and the Borrowings
to be made by US Holdings to be loaned or funded to Acquisition Sub and
WCP and the consummation of the transactions contemplated hereby have
been approved by the board of directors of US Holdings, and such
approvals have not been rescinded, revoked or modified in any manner; no
other corporate action or proceedings on the part of QPI, Acquisition
Sub, US Holdings or WCP is necessary to consummate such transactions,
except for, prior to the Merger Date, the approval of the Merger by
WCP's stockholders;
2.2.4 Execution and Delivery-Tender Offer and Merger Documents: each of the
Tender Offer Documents and Merger Documents to which QPI, Acquisition
Sub or WCP is a party (other than the Certificate of Merger) has been
duly executed or delivered (or filed) on behalf of QPI, Acquisition Sub
or WCP, as the case may be, and constitutes its legal, valid and binding
obligation, enforceable against such Person in accordance with its
terms, is in full force and effect and no term or condition thereof has
been amended, modified or waived from the terms and conditions contained
in the Tender Offer Documents and Merger Documents delivered to the
Administrative Agent without the prior written consent of the Arrangers
and all Lenders (other than Non-Material Changes); each of QPI and its
Subsidiaries and (to the best knowledge of QPI) all other parties
thereto have performed and complied, or shall perform and comply, with
all the material terms, provisions, agreements and conditions set forth
in the Tender Offer Documents and the Merger Documents and required to
be performed or complied with by such parties on or before the Tender
Offer Funding Date, and no material breach of any covenant by any such
party exists thereunder and no action has been taken by any competent
governmental authority which restrains, prevents or imposes material
adverse conditions upon, or seeks to restrain, prevent or impose
material adverse conditions upon, the Merger;
2.2.5 Representations and Warranties-Merger Agreement: each of the
representations and warranties of QPI, the Acquisition Sub and WCP
contained in the Merger Agreement is true and correct in all material
respects other than, with respect to WCP's representations and
warranties, such failures to be true and correct that will not
constitute a Material Adverse Change with respect to WCP;
2.2.6 Certain Information: the information contained in the Tender Offer
Documents, the representations and warranties of each of QPI and its
Subsidiaries contained in the Transaction Documents and Loan Documents,
and all certificates and documents delivered to the Arrangers and the
Lenders pursuant to the terms of the Loan Documents, do not contain any
untrue statement of a material fact or omit to state a
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material fact necessary in order to make the statements contained herein
or therein, in light of the circumstances under which they were made,
not misleading;
2.2.7 Margin Stock: none of QPI or any of its Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing or carrying
Margin Stock;
2.2.8 No Impairment: the consummation of the Tender Offer, the Merger and the
transactions contemplated by the Transaction Documents will not impair
the ownership of or rights under (or the license or other right to use,
as the case may be) any permits and governmental approvals, patents,
trademarks, trade names, copyrights, technology, know-how or processes
by any of QPI and its Subsidiaries in any manner which has or is likely
to have a Material Adverse Effect;
2.2.9 Financial Forecasts: the financial forecast Model Number 38 dated July
26, 1999 giving effect to the transactions contemplated in the Merger
Agreement prepared by the management of QPI and the pro forma estimated
balance sheets of (a) QPI and its Subsidiaries at the Tender Offer
Funding Date giving effect to the transactions contemplated in the
Tender Offer and (b) QPI and its Subsidiaries (including WCP and its
Subsidiaries) at the Merger Date giving effect to the transactions
contemplated in the Merger Agreement, have been prepared in good faith,
are based on facts and assumptions believed to be reasonable by such
management, and employ methodology believed to be reasonable by such
management under the circumstances;
2.2.10 No Breach: the execution, delivery, and performance by the Loan Parties,
Acquisition Sub or WCP of the Transaction Documents and the Loan
Documents to which it is or may become a party, the consummation of the
transactions contemplated thereby and compliance with the terms and
provisions thereof and the making and repayment of the Loans and the
intercompany loans related thereto and contemplated hereby, do not and
will not (a) constitute a tortious interference with any contractual
obligation of any Person, (b) conflict with, violate, result in a breach
of, or constitute (with or without notice or lapse of time or both) a
default under the charter, the by-laws, or any indenture (including,
without limitation, the Existing Indentures), trust deed, loan, credit,
note or similar agreement or instrument of any Loan Party, Restricted
Entity or WCP, (c) violate or conflict with any Applicable Law or any
order, injunction, decree, determination or award of any court or
governmental authority, or (d) result in the creation of any Lien upon
the assets of any Loan Party, Restricted Entity or WCP, other than, with
respect to the representations and warranties related to WCP set forth
in clauses (b) (other than with respect to the charter, by-laws and
Existing Indentures), (c) and (d) above of this Section 2.2.10, such
exceptions as will not result in a Material Adverse Change with respect
to WCP or prevent or materially delay the consummation of the Merger
following the consummation of the Tender Offer; and
2.2.11 Stock Options: All employee or directors stock options to purchase
Shares and related stock appreciation rights granted under any stock
option or stock purchase plan, program or arrangement of WCP that are
outstanding as of July 12, 1999 have been cancelled in exchange for (a)
a cash payment from WCP to be made promptly following consummation of
the Offer and (b) a number of shares of QPI Capital Stock
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to be issued promptly following the consummation of the Merger, all as
provided in Section 2.5 of the Merger Agreement.
Section 2.3 Representations and Warranties on and as of the Merger Date
QPI represents and warrants to each of the Finance Parties on and as of the
Merger Date, after giving effect to the Merger, that:
2.3.1 Adequate Cash: QPI, US Holdings and Acquisition Sub collectively have
cash or cash equivalents on hand sufficient to pay an amount within the
range of WCP's reasonable possible liability with respect to any
exercise of dissenters' rights as to the Merger;
2.3.2 Merger Approval: the Merger Agreement has been approved by the Minimum
Number of Shares at a meeting of WCP's stockholders duly called and held
prior to the Merger Date;
2.3.3 Merger Documents: the terms and conditions of the Merger as set forth in
the Merger Documents have not been amended, waived or modified without
the approval of the Arrangers and all Lenders (other than Non-Material
Changes); as of the Merger Date, all conditions precedent to the
consummation of the Merger pursuant to the Merger Agreement have been
satisfied (or waived, with the consent of the Arrangers and the Majority
Lenders); as of the Merger Date, no material breach of any covenant by
any of the parties to the Merger Agreement has occurred and no action
has been taken by any competent authority which restrains, prevents or
imposes material adverse conditions upon, or seeks to restrain, prevent
or impose material adverse conditions upon, the Merger; each of the
representations and warranties of QPI, Acquisition Sub and WCP contained
in the Merger Agreement is true and correct in all material respects;
2.3.4 Certificate of Merger: the Certificate of Merger executed by Acquisition
Sub and WCP has been filed with the Secretary of State of the State of
Delaware and has been filed or recorded in each other place wherein it
is required to be so filed or recorded, in each case evidencing the
consummation of the Merger; such Certificate of Merger complies as to
form and substance with the DGCL and the Merger has been duly
consummated in compliance with all Applicable Law; and
2.3.5 No Adverse Change: since March 31, 1999, there has been no event, change
or other occurrence that has or could reasonably be expected to have a
Material Adverse Effect or a Material Adverse Change with respect to
WCP.
Section 2.4 Materiality and Survival of Warranties
All representations and warranties of the Loan Parties contained herein, and all
representations and warranties of the Loan Parties contained in any certificate
or material delivered hereunder or pursuant to any of the other Loan Documents,
shall be deemed to have been relied upon by the Administrative Agent, the
Lenders and the other Finance Parties notwithstanding any
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investigation heretofore or hereafter made by the Administrative Agent, the
Lenders or the other Finance Parties or by their respective Counsel or by any
other representative of the Administrative Agent, the Lenders or the other
Finance Parties and all such representations and warranties shall be deemed to
be given on the date of this Agreement, on and as of the Tender Offer Funding
Date and on and as of the Merger Date, as the case may be, and, except for the
representations and warranties set forth in Section 2.1.2 (which shall be read
as if they referred to the updated information contained in the most recent
certificate of compliance delivered to the Administrative Agent pursuant to
Section 11.1.7(c)) and Section 2.1.9 (which shall be read as if they referred to
the most recent financial statements delivered to the Administrative Agent
pursuant to Section 11.1.7) on each Drawdown Date, on each Conversion Date, and
on each date of renewal of a Libor Loan hereunder, with the same effect, subject
to and to the extent consistent with the transactions contemplated hereby, as if
made at and as of each such date, by reference to the facts and circumstances
then prevailing.
ARTICLE III
THE CREDIT FACILITIES
Section 3.1 Obligations of the Lenders
Relying on each of the representations and warranties set out in Article II and
subject to the terms and conditions herein contained, the Lenders, individually
and not jointly and severally nor as solidary obligors, agree to make their
respective Commitments available to the Borrower.
Neither the Administrative Agent nor any of the Lenders shall be responsible for
the obligations of any other party to this Agreement. The failure of a Lender to
make available a Borrowing in accordance with its obligations under this
Agreement shall not release any other Lender or the Borrower from their
obligations hereunder.
Section 3.2 The Facility A
The Facility A Lenders hereby establish in favor of the Borrower the Facility A
which shall be available as a single drawdown term loan to be drawn on the
Tender Offer Funding Date. The Borrower shall be entitled to obtain the Advance
under the Facility A by way of US Prime Rate Loans or Libor Loans, or any
combination thereof, the whole up to the Facility A Total Commitment and subject
to the terms and conditions of this Agreement. Such Advance, once made and
prepaid or repaid, may not be reborrowed.
Section 3.3 The Facility B
The Facility B Lenders hereby establish in favor of the Borrower the Facility B
which shall be available as a non-revolving facility during the Facility B
Period. During such period, the Borrower shall be entitled from time to time to
obtain Advances under the Facility B during the Facility B Period by way of US
Prime Rate Loans or Libor Loans, or any combination thereof, the whole up to the
Facility B Total Commitment and subject to the terms and conditions of this
Agreement. Such Advances, once made and prepaid or repaid, may not be
reborrowed.
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Section 3.4 [Intentionally Omitted]
Section 3.5 Purposes of Advances
The proceeds of the Credit Facilities shall be used by the Borrower (a) with
respect to the Facility A, to be loaned or funded by the Borrower to Acquisition
Sub to finance the acquisition of WCP pursuant to the Tender Offer and the
Merger, to pay transaction and restructuring costs in connection with the Tender
Offer and the Merger and to be available for general corporate purposes,
provided that, the maximum aggregate amount available under both the Facility A
and the US Holdings Revolving Credit Agreement to finance the acquisition of the
Shares (including any stock repurchase and payments in respect of the
cancellation of stock options) shall not exceed $890,000,000, and (b) with
respect to the Facility B, to pay the purchase price of any Convertible Notes
tendered for purchase.
Section 3.6 Manner of Borrowing
Subject to the provisions of this Agreement (and in particular Section 10) and
provided no Default or Event of Default has occurred and is continuing (without
having been cured or waived as provided herein), the Borrower may, during the
Facility A Period, request a Borrowing from the Facility A Lenders and, from
time to time during the Facility B Period, request Borrowings from the Facility
B Lenders, as applicable, up to the amount of the Facility A Total Commitment or
Facility B Total Commitment, as the case may be, in a minimum amount of
$10,000,000, and in whole multiples of $1,000,000 in excess thereof (or the
remaining balance available thereunder),
(a) if by way of a US Prime Rate Loan, (i) with respect to the initial
Borrowing, upon giving irrevocable telephone notice to the
Administrative Agent at least by 11:00 a.m. on the requested Drawdown
Date, followed by written confirmation to the Administrative Agent on
the same day by 12:00 noon substantially in the form set forth in
Schedule 3.6 (or such other form as the Administrative Agent may
approve) and (ii) with respect to any other Borrowing, upon giving
irrevocable telephone notice to the Administrative Agent at least by
12:00 noon on the Business Day preceding the Drawdown Date, followed by
written confirmation to the Administrative Agent on the same day
substantially in the form set forth in Schedule 3.6 (or such other form
as the Administrative Agent may approve); and
(b) if by way of a Libor Loan, upon giving irrevocable telephone notice to
the Administrative Agent at least by 12:00 noon on the Business Day
immediately preceding the relevant Interest Determination Date, followed
by written confirmation to the Administrative Agent on the same day
substantially in the form set forth in Schedule 3.6 (or such other form
as the Administrative Agent may approve);
and subject to the terms hereof, the relevant Lenders shall make each such
Advance available to the extent that on the relevant Drawdown Date, the
Aggregate Commitment remaining unadvanced and uncancelled hereunder and, as
appropriate, the amount remaining unadvanced and uncancelled under the Facility
A Total Commitment and/or the Facility B Total Commitment is, in each case, then
sufficient to allow for the requested Borrowing.
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Section 3.7 Mandatory Cancellation of Credit Facilities and Repayment of
Borrowings
3.7.1 Cancellation of Facility A: on the day immediately following the Tender
Offer Funding Date, the Facility A Total Commitment shall be reduced and
cancelled by the amount of such Commitment then remaining unadvanced and
uncancelled hereunder, if any, and such reduction and cancellation shall
permanently reduce the Aggregate Commitment and, to the extent
applicable, each Lender's Commitment in respect thereof in an amount
equal to its Lender's Proportion of the amount of the Facility A Total
Commitment so reduced and cancelled;
3.7.2 Cancellation of Facility B: at 5:00 p.m. on the last day of the Facility
B Period, the Facility B Total Commitment shall be reduced and cancelled
by the amount of such Commitment then remaining unadvanced and
uncancelled hereunder, if any, and such reduction and cancellation shall
permanently reduce the Aggregate Commitment and, to the extent
applicable, each Lender's Commitment in respect thereof in an amount
equal to its Lender's Proportion of the amount of the Facility B Total
Commitment so reduced and cancelled;
3.7.3 Repayment from Proceeds of Capital Market Transactions: within three (3)
Business Days of receipt by any Loan Party or Restricted Entity of any
proceeds from any Capital Market Transaction, the Borrower shall repay
the Borrowings in an amount equal to the net cash proceeds received by
such Person from such Capital Market Transaction. Such repayments shall
be applied first to the Borrowings under the Facility B (to the extent
there are Borrowings then outstanding thereunder) until all such
Borrowings are repaid in full and second to the Borrowings under the
Facility A until all such Borrowings are repaid in full. The Facility B
Total Commitment and/or the Facility A Total Commitment, as the case may
be, shall be reduced and cancelled by the amount of any repayment under
this Section 3.7.3 and any such reduction and cancellation shall
permanently reduce the Aggregate Commitment and, to the extent
applicable, each Lender's Commitment in respect thereof in an amount
equal to its Lender's Proportion of the amount of the Facility B Total
Commitment and/or the Facility A Total Commitment, as the case may be,
so reduced and cancelled; and
3.7.4 Repayment at Maturity: all Borrowings and other amounts outstanding
under each of the Credit Facilities shall be fully and finally paid
(together with interest, fees and all other amounts related thereto) on
the Facility A Maturity Date, the Facility A Extended Maturity Date
and/or the Facility B Maturity Date, as the case may be.
Section 3.8 Extension of the Maturity Date for Certain Borrowings under
Facility A
The Borrower may request an extension of the maturity date for up to
$300,000,000 of the Advance outstanding under the Facility A for an additional
one-year period ending on the Facility A Extended Maturity Date, by giving
notice substantially in the form set forth in Schedule 3.8 to the Administrative
Agent for delivery to each Facility A Lender not more than 90 and not less than
60 days prior to the Facility A Maturity Date (it being understood that any
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portion of the Advance under the Facility A for which an extension is not
requested by the Borrower in the aforesaid manner shall automatically become due
and payable (together with interest, fees and all other amounts related thereto)
on the Facility A Maturity Date). Such notice having been duly given, the
maturity date with respect to the portion of the Advance under the Facility A
requested in such notice shall, on the Facility A Maturity Date (and so long as
no Default or Event of Default shall have occurred and then be continuing),
automatically be extended to the Facility A Extended Maturity Date.
Section 3.9 Optional Prepayment and Cancellation of Credit Facilities
3.9.1 [Intentionally Omitted]
3.9.2 Prepayment, Cancellation and Reduction of Facility A or Facility B: the
Borrower may, at any time, upon giving not less than five (5) Business
Days' prior written notice thereof to the Administrative Agent
substantially in form and substance as set forth in Schedule 3.9.2,
cancel and reduce without penalty the whole or any portion of the
Facility A Total Commitment or Facility B Total Commitment, in an
aggregate minimum amount of $10,000,000 and whole multiples of
$1,000,000 in excess thereof (or the remaining balance of the Facility A
Total Commitment or Facility B Total Commitment). Such notice of
cancellation with respect to any drawn portion of the Facility A Total
Commitment or Facility B Total Commitment shall be without effect unless
on or before the day on which such cancellation is to take effect in
accordance with such notice (a) such drawn portion shall have been
repaid in accordance herewith, and (b) the accrued interest on such
drawn portion and any applicable fees shall have been paid. The amount
by which the Facility A Total Commitment or Facility B Total Commitment
is so reduced and cancelled may not be reinstated hereunder and any such
cancellation and reduction shall be irrevocable and shall permanently
reduce the Aggregate Commitment and, to the extent applicable, each
Lender's Commitment in respect thereof in an amount equal to its
Lender's Proportion of the amount of the Facility A Total Commitment
and/or Facility B Total Commitment so cancelled and reduced; and
3.9.3 Exceptions and Limitations: notwithstanding the terms of Section 3.9.2,
a Borrowing outstanding by way of Libor Loan may not be so prepaid,
unless such prepayment occurs on the last day of the applicable Libor
Interest Period or, if prepayment occurs (for whatever reason) on a day
other than the last day of the applicable Libor Interest Period, unless
such prepayment is made together with the payment to the Administrative
Agent (for the account of the relevant Lenders) of the indemnity payment
required to be made under Section 12.2.5 in connection with the amount
being prepaid to the extent such indemnity has then been determined and
notified to the Borrower (provided, for purposes of clarification, that
if the whole or any portion of such indemnity payment is determined or
notified subsequently, such indemnity shall nevertheless be payable on
demand as provided herein).
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Section 3.10 Conversion Option
3.10.1 Manner of Conversion: subject to the provisions of this Agreement, the
Borrower may, during the term of this Agreement, effective on any
Business Day, convert, in whole or in part, an outstanding Borrowing
under a Credit Facility into any other basis of Borrowing under that
Credit Facility, and in minimum amounts identical to the minimum amounts
required for Borrowings under Section 3.6, upon giving to the
Administrative Agent on behalf of the Lenders the following notice in
respect of the basis of Borrowing into which the outstanding Borrowing
is to be converted:
(a) in the case of a US Prime Rate Loan, irrevocable telephone
notice at least by 12:00 noon on the Business Day preceding the
Conversion Date;
(b) in the case of a Libor Loan, irrevocable telephone notice at
least by 12:00 noon on the Business Day immediately preceding
the relevant Interest Determination Date;
in each case, followed by written confirmation to the Administrative Agent on
the same day substantially in the form set forth in Schedule 3.6 (or such other
form as the Administrative Agent may approve);
3.10.2 Conditions of Conversion: a conversion under Section 3.10.1 may be made
only on condition that:
(a) no Default or Event of Default has occurred and is continuing;
(b) a Libor Loan may be converted, in whole or in part, only on the
last day of the relevant Libor Interest Period, and provided
that if less than all such Libor Loan is converted, then after
such conversion not less than US$10,000,000 (and multiples of
US$1,000,000 in excess thereof) shall remain as a Libor Loan;
(c) a conversion into a Borrowing by way of Libor Loan shall only be
made to the extent that the conditions outlined in Section 5.2
or 8.7 shall not exist in respect thereof on the relevant
Conversion Date; and
(d) on the Conversion Date, the amount of the outstanding Borrowings
(after any such conversion) would not exceed the amount
permitted to be borrowed under the relevant Credit Facility nor
the amount of the Aggregate Commitment at that time; and
3.10.3 Acknowledgements:
(a) the conversion of any Borrowing as provided in this Section 3.10
shall take place without novation and shall not be deemed to
constitute a repayment of any Borrowing hereunder nor a new
advance of funds hereunder; and
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(b) with respect to all matters of calculation and rate
determinations in this Section 3.10, the determination by the
Administrative Agent shall be final and conclusive, save in the
case of manifest error.
Section 3.11 Deposit of Proceeds of Loans
Until such time as the Administrative Agent is otherwise directed by the
Borrower in writing, the Administrative Agent shall deposit to the Borrower's
Account on the applicable Drawdown Date the proceeds of each Borrowing made by
the Borrower on such Drawdown Date.
Section 3.12 [Intentionally Omitted]
Section 3.13 Reliance on Oral Instructions
The Administrative Agent and each Lender shall be entitled to act upon the oral
instructions of any Person which the Administrative Agent or such Lender
believes is a Person the Borrower has identified in writing from time to time to
the Administrative Agent or such Lender as being a Person authorized by the
Borrower to give instructions regarding the drawdown or conversion of Borrowings
and neither the Administrative Agent nor any Lender shall be responsible for any
error or omission in such instructions or in the performance thereof except in
the case of gross negligence or wilful misconduct by the Administrative Agent or
that Lender or their respective employees, representatives or agents. Any such
oral instructions so given shall be promptly confirmed in writing by the
Borrower to the Administrative Agent or Lender. The Borrower may revoke the
authority of such Persons so authorized by notifying the Administrative Agent
and the Lenders, in writing, which notice shall be effective on the Business Day
immediately following the date of its actual receipt by the Administrative Agent
and the Lenders. Any instructions given to any Administrative Agent or any
Lender before the day such notice becomes effective shall remain effective for
the purpose of this Agreement.
Section 3.14 Borrowings and Repayments Proportional to Commitments
Any Borrowing and any repayment under or in respect of any Credit Facility shall
be made through the Administrative Agent and, to the greatest extent possible,
shall be, as to each Lender, proportional to its Commitment in respect of the
Credit Facility which is the subject of the relevant Borrowing, subject to the
other provisions of this Agreement.
ARTICLE IV
PAYMENT OF INTEREST AND FEES
Section 4.1 Payment of Interest
The Borrower covenants and agrees to pay at or before 12:00 noon on each
relevant day hereinafter set forth, interest on Loans outstanding from time to
time accrued from the applicable Drawdown Date, Conversion Date or date of
renewal of such Loans until the date on which repayment in full of such Loans is
received by the Lenders, such interest being calculated at the rates per annum
(subject to the provisions of Section 4.6) determined as follows:
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4.1.1 Interest on US Prime Rate Loans: the Borrower shall pay to the
Administrative Agent for the account of the Lenders on each outstanding
US Prime Rate Loan obtained by it, as evidenced by the Loan Account,
interest in US Dollars for value on each Interest Payment Date at a rate
per annum equal to the US Prime Rate plus the Applicable Margin. Each
change in the fluctuating interest rate for such US Prime Rate Loan will
take place concurrently with the corresponding change in the US Prime
Rate. Such interest shall accrue from day to day, shall be payable
monthly in arrears on each Interest Payment Date and shall be calculated
on the daily outstanding balance of such US Prime Rate Loan on the basis
of the actual number of days elapsed (including the first day but
excluding the last day of any period of time during which a US Prime
Rate Loan is outstanding) in a year of 365 or 366 days, as the case may
be; and
4.1.2 Interest on Libor Loans: the Borrower shall pay to the Administrative
Agent for the account of the Lenders, on each outstanding Libor Loan, as
evidenced by the Loan Account, interest in US Dollars for value on each
Libor Interest Date applicable to such Libor Loan, at a rate per annum
equal to the Adjusted Libor plus the Applicable Margin. Such interest
shall accrue from day to day, shall be payable in arrears on each Libor
Interest Date and shall be calculated on the daily outstanding balance
of such Libor Loan on the basis of the actual number of days elapsed
(including the first day of each Libor Interest Period but excluding the
last day thereof) divided by 360 days.
Each determination by the Administrative Agent of the applicable rate of
interest in respect of a Borrowing pursuant to this Section 4.1 shall, in the
absence of manifest error, be final, conclusive and binding on the Loan Parties.
Upon determination of the rate of interest applicable to a Libor Loan, the
Administrative Agent shall notify the Borrower and each relevant Lender of such
rate.
Section 4.2 [Intentionally Omitted]
Section 4.3 Commitment Fee
On the last Business Day of June, September, December and March of each year and
on (i) the Tender Offer Funding Date in respect of the Facility A and (ii) the
last day of the Facility B Period in respect of the Facility B (each a
"Commitment Fee Payment Date") during the period commencing on the Formal Date
and ending on in respect of (x) the Facility A, the Tender Offer Funding Date
and (y) the Facility B, the last day of the Facility B Period, the Borrower
shall pay to the Administrative Agent for the account of the Lenders at their
respective Branches of Account and to be divided among them according to their
respective Lender's Proportion of the Facility A Commitment and the Facility B
Commitment, as applicable, a non-refundable commitment fee (the "Commitment
Fee") calculated for each day during such period at a rate per annum equal to
the Commitment Fee Rate in effect for such day. The Commitment Fee shall be
calculated on a daily basis on the undrawn portion of the Facility A Commitment
and the Facility B Commitment, as applicable, and on the basis of a year of 360
days. Each payment of the Commitment Fee shall be calculated for the period from
and including the Formal Date or the last Commitment Fee Payment Date, as the
case may be, to, but not including, the next Commitment Fee Payment Date.
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Section 4.4 Applicable Margin and Fee Rate Matrix
In determining the interest rates and fees payable under Sections 4.1 to 4.3
inclusive, reference shall be made to the S&P/▇▇▇▇▇'▇ Credit Rating applicable
as indicated on the following matrix. The Applicable Margin and Commitment Fee
Rate, as the case may be, shall be determined by reference to the appropriate
tier of pricing appearing on the said matrix.
During the period from the Tender Offer Funding Date to the date of consummation
of the US Holdings Merger, the Applicable Margin in respect of Libor Loans and
US Prime Rate Loans at any time in effect in accordance with the following
matrix shall be increased by 0.125 % per annum. Throughout the Facility A
Extension Period, the Applicable Margin in respect of Libor Loans and US Prime
Rate Loans at any time in effect shall, in addition to the aforesaid increase,
be further increased, as and by way of an extension supplement, by 0.25 % per
annum.
-----------------------------------------------------------------------------------------
(1) (2) (3) (4) (5)
-----------------------------------------------------------------------------------------
Commitment Fee
Applicable Applicable Rate in respect
S&P/▇▇▇▇▇'▇ Margin for US Margin for Libor of Facility A
Tier Credit Rating Prime Rate Loans Loans and Facility B
-----------------------------------------------------------------------------------------
I =>A-/A3 0.0 0.50% 0.085%
-----------------------------------------------------------------------------------------
II BBB+/Baa1 0.0 0.65% 0.10%
-----------------------------------------------------------------------------------------
III BBB/Baa2 0.0 0.80% 0.125%
-----------------------------------------------------------------------------------------
IV BBB-/Baa3 0.0 1.00% 0.15%
-----------------------------------------------------------------------------------------
BBB-/Ba1
or
V BB+ /Baa3 0.25% 1.25% 0.20%
-----------------------------------------------------------------------------------------
BB+/Ba1
or
VI Lower 0.75% 1.75% 0.30%
-----------------------------------------------------------------------------------------
For the purposes hereof, "S&P/▇▇▇▇▇'▇ Credit Rating" means the senior unsecured
debt rating obtained by QPI from Standard & Poor's and ▇▇▇▇▇'▇ prior to or after
the Formal Date and as reviewed from time to time on a continuing basis in
accordance with Section 11.1.15 by such rating agencies provided that:
(a) (i) if the two ratings are investment grade (BBB- and Baa3,
respectively) or higher, the Applicable Margin and Commitment
Fee Rate will be based on the higher of the two ratings,
provided that if such ratings are more than one rating
category apart,
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the Applicable Margin and Commitment Fee Rate shall be
established on the basis of one rating category above the
lower rating category of the two;
(ii) if one of the two ratings is investment grade or higher and
the rating of the other is non-investment grade (lower than
BBB- or Baa3, as applicable), the Applicable Margin and
Commitment Fee Rate will be established on the basis of the
pricing applicable to Tier V;
(iii) if the two ratings are non-investment grade, the Applicable
Margin and Commitment Fee Rate will be established on the
basis of the pricing applicable to Tier VI; and
(iv) notwithstanding the foregoing but subject to the second
paragraph of this Section 4.4, from the Formal Date until such
time as QPI's credit rating has been confirmed by both
Standard & Poor's and ▇▇▇▇▇'▇ (having taken into account the
proposed Tender Offer and Merger), the Applicable Margin and
Commitment Fee Rate will be established on the basis of the
pricing applicable to Tier IV;
(b) each change from time to time in the S&P/▇▇▇▇▇'▇ Credit Rating and any
resulting effect on the Applicable Margin and Commitment Fee Rate shall
become effective immediately upon publication of each such change. If
payments of interest or fees have been made based upon ratings which
subsequently prove not to have been appropriate, the Administrative
Agent shall calculate the amounts owing as between the Borrower and the
Lenders in order to give effect to the foregoing and advise the
Borrower and the Lenders of the amounts owing to or by each of them to
the other, the method of payment or settlement to be used and the
timing of any required payment. The parties agree that any payment
required under this Section 4.4(b) is due and payable in accordance
with the instructions given by the Administrative Agent and that any
such payment is governed by Section 17.4;
(c) if either of or both Standard & Poor's or ▇▇▇▇▇'▇ should change their
system of classification after the date hereof, the relevant rating
shall be considered to be at or above a specified level if it is at or
above the new rating which most closely corresponds to the specified
level under the old rating system;
(d) if a S&P/▇▇▇▇▇'▇ Credit Rating ceases to be in effect at any time after
its obtainment, the Applicable Margin and Commitment Fee Rate shall
thenceforth and until a S&P/▇▇▇▇▇'▇ Credit Rating is once again
obtained be based on the pricing applicable to Tier VI appearing on the
matrix set forth hereinabove; and
(e) notwithstanding the provisions of sub-paragraph (d) above, if a
S&P/▇▇▇▇▇'▇ Credit Rating ceases to be available as a result of either
or both Standard & Poor's and ▇▇▇▇▇'▇ no longer being in the business
of rating corporations and such business is not continued by a
successor or assign of such agencies (the "Discontinued Agencies"), QPI
and the Administrative Agent shall jointly (y) select one or more
nationally-recognized credit rating agencies in substitution thereof
and (z) agree on the rating level issued by such substitute agency(ies)
that is equivalent to the ratings specified herein of the Discontinued
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Agencies, whereupon such substitute agency(ies) and equivalent
rating(s) shall replace the Discontinued Agencies and the rating levels
thereof for the purposes of this Agreement.
Section 4.5 Administrative Agent's Fees and other Fees
QPI covenants and agrees to pay the Administrative Agent for its own account and
for the account of the Arrangers, all such fees as may be set forth in the
letter agreement dated as of July 12, 1999 between QPI and the Administrative
Agent. Such fees shall be payable in the amounts, currency and at the times
provided therein.
Section 4.6 Interest on Overdue Amounts
4.6.1 Overdue Principal or Interest: (a) upon a default in the payment of
principal due under this Agreement, the Borrower shall pay interest on
all such principal at a rate per annum equal to the interest rate which
would otherwise be applicable to such principal if it were not in
default, increased by 2 % per annum, and (b) upon a default in the
payment of interest due under this Agreement or any of the other Loan
Documents, the Borrower shall pay interest on such overdue interest at
a rate per annum equal to the rate which would otherwise be applicable,
increased by 2 % per annum;
4.6.2 Other Amounts: at any time, upon a default in the payment of any other
amount due under this Agreement, the Borrower shall pay interest on
such overdue amount (which overdue amount, for greater certainty, shall
not include overdue principal or interest) at a rate per annum equal to
the sum of the US Prime Rate in effect from time to time plus the
Applicable Margin for a US Prime Rate Loan at such time plus 2 % per
annum; and
4.6.3 Payment: in each case under Sections 4.6.1 and 4.6.2, interest shall be
payable on demand and shall be calculated on a daily basis and
compounded monthly from the date such amount becomes due and payable
for so long as such amount remains unpaid and on the basis of a year of
365 or 366 days, as the case may be, or 360 days in the case of Libor
Loans.
All interest provided for in this Agreement shall be payable both before and
after maturity, default and judgment.
ARTICLE V
CONDITIONS APPLICABLE TO LIBOR LOANS
Section 5.1 Selection of Libor Interest Periods
5.1.1 Amount and Availability: all Libor Loans shall be drawn down in US
Dollars in the minimum amounts set forth in Section 3.6 and shall be
for a Libor Interest Period as selected pursuant to Section 5.1.2,
subject to availability to each Lender, respectively;
5.1.2 Selection of Libor Interest Period: if the Borrower has requested a
Borrowing by way of Libor Loan pursuant to Section 3.6 or wishes to
choose a new Libor Interest
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Period for an outstanding Libor Loan (and thus renew such outstanding
Libor Loan without novation) or has chosen to convert an existing
Borrowing into a Libor Loan pursuant to Section 3.10, the Borrower
shall, prior to the relevant Drawdown Date or the expiry of the
relevant Libor Interest Period or the relevant Conversion Date, as the
case may be, give notice to the Administrative Agent in accordance with
the requirements of Section 3.6 stating the selected duration (being a
duration of approximately one month, two months, three months, six
months or up to one year) of the next applicable Libor Interest Period
for such Borrowing or setting forth the intention of the Borrower to
repay or convert such Libor Loan at the end of the current Libor
Interest Period, it being understood that:
(a) in the case of a Borrowing by way of Libor Loans which is
already outstanding, the Libor Interest Period shall commence
on and include the last day of the then current Libor Interest
Period for such Borrowing;
(b) the Libor Interest Period is subject to availability to each
relevant Lender;
(c) whenever the last day of any Libor Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Libor Interest Period shall be extended to occur
on the next succeeding Business Day, provided however, that,
if such extension would cause the last day of such Libor
Interest Period to occur in the next following calendar month,
the last day of such Libor Interest Period shall occur on the
immediately preceding Business Day; and
(d) whenever the first day of any Libor Interest Period occurs on
a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Libor Interest Period,
such Libor Interest Period shall end on the last Business Day
of such succeeding calendar month; and
5.1.3 Deemed Conversion: if, in respect of a Libor Loan which is already
outstanding, the Borrower fails to give notice as provided in Section
5.1.2, the Borrower shall be deemed to have notified the Administrative
Agent on behalf of the relevant Lenders of its intention to convert,
without novation, the relevant Libor Loan into a US Prime Rate Loan.
Section 5.2 Alternate Basis of Borrowing
If at any time during the term of this Agreement, a Lender determines reasonably
and in good faith (which determination shall, in the absence of manifest error,
be final, conclusive and binding upon the Borrower) and notifies the
Administrative Agent in accordance with Section 17.6 that:
(a) adequate and fair means do not exist for ascertaining the rate of
interest with respect to a Libor Loan,
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(b) the cost to such Lender of making, funding or maintaining its Lender's
Proportion of a Libor Loan does not accurately reflect its effective
cost in respect thereof,
(c) the making or continuing of Libor Loans by such Lender has been made
impracticable by the occurrence of any event which materially and
adversely affects the London interbank eurodollar market, or
(d) deposits in US Dollars are not available to such Lender in the London
interbank eurodollar market in sufficient amounts in the ordinary
course of business for the applicable Libor Interest Period to make,
fund or maintain a Libor Loan during such Libor Interest Period,
then, the Administrative Agent shall, on behalf of the Lender affected by such
event or circumstance (the "Affected Lender"), notify the Borrower of such
determination in writing with an indication of the Loans affected by such
determination (each an "Affected Loan"). For so long as the circumstances
referred to in paragraph (a), (b), (c) or (d) above shall continue and until
notice to the contrary is given to the Borrower by the Administrative Agent on
behalf of the Affected Lender, the Affected Lender shall not be obliged to make
any further Affected Loans available under the Credit Facilities. The principal
amount of all outstanding Affected Loans granted by the Affected Lender shall,
at the expiry of the relevant Libor Interest Period, automatically be converted
without novation into a US Prime Rate Loan and thereafter, for so long as the
circumstances referred to in any of paragraphs (a) to (d) above continue, such
Affected Lender shall only be obliged to extend its Lender's Proportion of
Affected Loans in US Prime Rate Loans. Alternatively, the Borrower:
(A) may designate another Lender or a new lender to whom such Affected
Lender's rights, benefits and/or obligations under this Agreement shall
be assigned and such Affected Lender shall effect such transfer to such
designated Lender or new lender in accordance with Section 18.3
provided that (i) no Event of Default or Default has occurred which is
continuing, (ii) the replacement Lender is acceptable to the
Administrative Agent, acting reasonably, (iii) the Borrower has
satisfied all its obligations to such Affected Lender under this
Agreement and (iv) the Borrower has paid the $3,500 processing and
recordation fee required pursuant to Section 18.7 if such replacement
Lender is not an existing Lender, or
(B) may cancel and reduce the whole of the Commitment of such Affected
Lender by giving the notice required under Section 3.9.2 provided that
(i) no Event of Default or Default has occurred which is continuing and
(ii) the Borrower has satisfied all its obligations to such Affected
Lender under this Agreement. The amount by which the Aggregate
Commitment is so reduced and cancelled may not be reinstated hereunder
and any such cancellation and reduction shall be irrevocable and shall
permanently reduce the Aggregate Commitment (without reducing the other
Lenders' own Commitments).
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ARTICLE VI
[INTENTIONALLY OMITTED]
ARTICLE VII
[INTENTIONALLY OMITTED]
ARTICLE VIII
PAYMENT, TAXES, INCREASED COSTS, EVIDENCE OF
INDEBTEDNESS AND TIMING OF MATURITIES
Section 8.1 Place of Payment of Principal, Interest and Charges
Except as otherwise specifically provided herein, all payments of principal,
interest, additional interest, fees and other charges to be made by the Borrower
to the Administrative Agent for the account of the Lenders pursuant to this
Agreement shall be made for value on the day such amount is due, and if such day
is not a Business Day, on the Business Day next following (subject to Section
5.1.2(c)), by payment or transfer of moneys to the appropriate Administrative
Agent's Account for Payments. Any amounts received by the Administrative Agent
from the Borrower after 3:00 p.m. on any Business Day shall be applied on the
next following Business Day to the appropriate payment, repayment or prepayment
due on such day. Until so applied, interest shall continue to accrue as provided
in this Agreement on the amount of such payment, repayment or prepayment.
Section 8.2 Payment to Administrative Agent is Deemed Payment to Lenders
Receipt by the Administrative Agent (for the account of the Lenders) from the
Borrower of funds pursuant to this Agreement, as principal, interest or
otherwise, shall be deemed to be receipt of such funds by the Lenders.
Section 8.3 Account Debit Authorization
The Borrower authorizes and directs the Administrative Agent, in its discretion
(acting in its capacity as Administrative Agent), to automatically debit, by
mechanical, electronic or manual means, the bank accounts of the Borrower
maintained with the Administrative Agent, for all amounts payable by the
Borrower under this Agreement and the other Loan Documents, including but not
limited to the repayment of principal and the payment of interest, fees,
expenses and all other charges for the keeping of such bank accounts.
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Section 8.4 Application of Payments
8.4.1 Order of Application: all payments made by or on behalf of the Borrower
pursuant to this Agreement prior to the occurrence of an Event of
Default shall be applied by the Administrative Agent in accordance with
the provisions of Section 8.4.3 in the following order:
(a) to amounts due pursuant to Section 4.5, as and by way of
Administrative Agent's fees and other fees referred to in such
Section,
(b) to amounts due pursuant to Section 4.3, as and by way of
Commitment Fee,
(c) to amounts due pursuant to Section 12.1, as and by way of
expenses,
(d) to amounts due pursuant to Section 12.2, as and by way of
indemnity,
(e) to amounts due pursuant to Section 4.6, as and by way of
default interest on overdue amounts,
(f) to amounts due pursuant to Sections 4.1, as and by way of
interest,
(g) to amounts due pursuant to Sections 3.7 and 3.9, as and by way
of principal, and
(h) in payment of any other amounts then due and payable by the
Loan Parties hereunder or under any of the other Loan
Documents;
8.4.2 Event of Default: after the occurrence and during the continuance of an
Event of Default, all payments made by or on behalf of the Loan Parties
pursuant to this Agreement and the other Loan Documents and all sums
received or realized on account of amounts owing hereunder or under the
other Loan Documents shall be paid to and be appropriated and applied
proportionately by the Administrative Agent towards the obligations of
the Loan Parties under all Credit Facilities as the Administrative
Agent may decide or the Majority Lenders may direct, but subject to the
provisions of Section 17.9, and any such appropriation and application
shall override any appropriations or applications made by the Borrower;
8.4.3 Sharing: the Lenders agree among themselves that all sums received by
the Lenders for application against amounts owing under this Agreement
and under the other Loan Documents and referred to in one of paragraph
(b) through (h) of Section 8.4.1 shall be shared by each Lender in the
proportion borne by the amounts owing to such Lender under such
subparagraph to the amounts owing to all Lenders under such
subparagraph.
Section 8.5 Manner of Payment and Taxes
8.5.1 No set-off; no withholding: the Borrower shall make all payments to the
Lenders and the Administrative Agent pursuant to this Agreement and the
other Loan Documents to which it is a party in US Dollars and without
set-off, compensation or counterclaim,
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free and clear of, and exempt from, and without deduction for or on
account of, any Tax. If a deduction or withholding is required by
Applicable Law, the Borrower shall:
(a) pay or cause to be paid to the appropriate authority the
amount of the withholding or deduction by no later than the
latest date permitted by that authority (including any
extension of time granted by that authority) or, in the case
of a Tax the payment of which is being contested prior to the
date on which such Tax is due and payable, by no later than
the date on which the authority requires the Tax to be paid,
(b) produce to the Administrative Agent not later than 30 days
after that payment a receipt of that authority evidencing that
it has received the proper amount from the Borrower, and
(c) pay such sums to the Administrative Agent, for the account of
the Lenders or itself, as the case may be, as may be necessary
so that the net amount received by each Lender and the
Administrative Agent after all required deductions or
withholdings (including deductions and withholdings for or on
account of Taxes on any sums payable under this Section) will
not be less than the amount the relevant Lender or the
Administrative Agent would have received had no such deduction
or withholding been required;
8.5.2 Increased Rate of Interest: if the Borrower is prevented by operation
of law or otherwise from paying or causing to be paid to the
Administrative Agent or the Lenders such sums as it may be required to
pay in accordance with Section 8.5.1, the applicable rates of interest
or amount due will be increased to the rates or amount necessary to
yield and to remit to the affected Person the net amount in the
appropriate currency equal to the full amount it would have received
had such Tax not been so deducted or withheld;
8.5.3 Tax Credit: if, as a result of any deduction or withholding the
Borrower makes any payment of any additional amounts to the Lenders and
the Administrative Agent under Sections 8.5.1 and 8.5.2 and the
affected Lender or the Administrative Agent, in its sole reasonable
opinion, determines that it has received or has been granted a credit
against or relief or remission for or repayment of any Tax paid or
payable by it in respect of or which takes into account the deduction,
withholding or other matter giving rise to such payment, the affected
Lender or the Administrative Agent will, to the extent it determines
that it can do so without prejudice to the retention of the amount of
such credit, relief, remission or repayment, pay to the Borrower such
amount as the affected Lender or the Administrative Agent shall, in its
sole reasonable opinion, determine to be attributable to such deduction
or withholding or other matter and which will leave it (after such
payment) in a position which it determines to be no better and no worse
than it would have been if the Borrower had not been required to make
such deduction or withholding or if such other matter had not arisen.
Nothing herein contained shall (a) interfere with the right of the
affected Lender or the Administrative Agent to arrange its taxes or
other affairs in whatever manner it may think fit, (b) oblige the
affected Lender or the Administrative Agent to disclose any information
relating to its taxes or other
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affairs or any computations in respect thereof, (c) require the
affected Lender or the Administrative Agent to do anything that it may
determine would or may prejudice its ability to benefit from any other
credit, relief or remissions for or repayment to which it may be
entitled, or (d) require the affected Lender or the Administrative
Agent to give any priority as to the order in which it may allocate to
any Person or class of Persons any such credit, relief, remission or
repayment;
8.5.4 Exemption from U.S. Withholding Taxes: each Lender which is not a
United States Person shall submit to the Borrower and the
Administrative Agent (a) on or before the first date that interest or
fees are payable to such Lender under the Loan Documents, (i) two duly
completed and signed copies of Internal Revenue Service Form 1001 or
4224 (or successor forms), in either case entitling such Lender to a
complete exemption from withholding of any United States federal income
taxes on all amounts to be received by such Lender under the Loan
Documents, or (ii) in the case of each Lender that is a Non-US Bank,
(x) a duly completed Internal Revenue Service Form W-8 (or successor
form) and (y) a certification in a form acceptable to the
Administrative Agent that such Lender is a Non-US Bank and (b) from
time to time thereafter, prior to the expiration or obsolescence of any
previously delivered form or upon any previously delivered form
becoming inaccurate or inapplicable, such further duly completed and
signed copies of such form, if any, as entitles such Lender to
exemption from withholding of United States federal income taxes to the
maximum extent to which such Lender is then entitled under Applicable
Law. Each such Lender shall promptly notify the Borrower and the
Administrative Agent if (A) it is required to withdraw or cancel any
form or certificate previously submitted by it or any such form or
certificate has otherwise become ineffective or inaccurate or (B)
payments to it are or will be subject to withholding of United States
federal income taxes to a greater extent than the extent to which
payments to it were previously subject; and
8.5.5 Survival of Obligations: the obligations of the Borrower under this
Section 8.5 to effect payments of further sums in connection with the
imposition of Taxes shall, if such sums or Taxes have not been paid,
survive the payment of principal and interest on all the Borrowings,
the termination of all Commitments and the satisfaction of all other
liabilities owed to the Administrative Agent and the Lenders pursuant
to the Loan Documents.
Section 8.6 Increased Costs and Payment of Portion
8.6.1 Increased Costs: If after the date of execution hereof, any
introduction of any Applicable Law or any change or introduction of a
change in any Applicable Law (whether or not having the force of law)
or in the interpretation or application thereof by any court or by any
governmental agency, central bank or other judicial, governmental,
administrative or other authority or entity charged with the
administration thereof or any change in the compliance of any Lender
therewith, or if present or future compliance by a Lender with any new
or changed request or directive (compliance with which is in accordance
with the practice of responsible banks or financial institutions) from
any central bank or other fiscal authority (whether or not having the
force of law), now or hereafter:
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(a) subjects any Lender to, or causes the withdrawal or
termination of a previously granted exemption with respect to,
any Tax or changes the basis of taxation, or increases any
existing Tax, on payments of principal, interest, fees or
other amounts payable by the Borrower to such Lender under
this Agreement,
(b) imposes, modifies or deems applicable any reserve, special
deposit, deposit insurance or similar requirements against
assets held by, or deposits in or for the account of or loans
by or any other acquisition of funds by, an office of such
Lender,
(c) imposes on such Lender or expects there to be maintained by
such Lender any capital adequacy or additional capital
requirements in respect of any Borrowing or any Commitment of
such Lender hereunder or any other condition with respect to
this Agreement, or
(d) imposes any Tax or reserves or deemed reserves with respect to
the undrawn portion of the Aggregate Commitment or the
Commitment of any Lender;
and the result of any of the foregoing, in the sole determination of the
relevant Lender acting reasonably, shall be to increase the cost to, or reduce
the amount of principal, interest or other amount received or receivable by such
Lender hereunder or the effective return to such Lender in respect of making,
maintaining or funding Loans under this Agreement, such Lender shall, acting
reasonably, determine that amount of money which shall compensate such Lender
for such increase in cost or reduction in income (herein referred to as
"Additional Compensation"). Upon such Lender having determined that it is
entitled to Additional Compensation in accordance with the provisions of this
Section 8.6 such Lender shall promptly so notify QPI, the Borrower and the
Administrative Agent. Such Lender shall provide to QPI, the Borrower and the
Administrative Agent a photocopy of, or an extract from, the relevant law, rule,
guideline, regulation, treaty or official directive and a certificate of a
responsible officer of such Lender setting forth the Additional Compensation and
the basis of calculation therefor, which shall be conclusive evidence of such
Additional Compensation in the absence of manifest error. The Borrower shall pay
to such Lender within five days of the giving of such notice such Lender's
Additional Compensation calculated to the date of such notification. Such Lender
shall be entitled to be paid such Additional Compensation from time to time to
the extent that the provisions of this Section 8.6 are then applicable
notwithstanding that such Lender has previously been paid any Additional
Compensation. Such Lender shall make commercially reasonable efforts to limit
the incidence of any such Additional Compensation, including seeking recovery
for the account of the Borrower by appealing any assessment at the expense of
the Borrower upon the Borrower's request, provided such Lender, in its sole
determination, suffers no appreciable economic, legal or regulatory
disadvantage.
The obligation of the Borrower under this Section 8.6.1 shall survive the
repayment of the principal amount of the Borrowings (and interest thereon) and
the payment of all other amounts due hereunder; and
8.6.2 Payment of Portion: Notwithstanding the other provisions hereof, if a
Lender gives the notice provided for in Section 8.6.1 with respect to
any Loan (an "Affected Loan"),
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the Borrower may at its option, upon ten Business Days notice to that
effect given to such Lender (which notice shall be irrevocable with a
copy to the Administrative Agent), unless such prepayment causes a
Default to have occurred hereunder, elect to prepay in full without
penalty such Affected Loan outstanding together with accrued and unpaid
interest on the principal amount so prepaid up to the date of such
prepayment, such Additional Compensation as may be applicable to the
date of such payment and all costs, losses and expenses incurred by
such Lender by reason of the liquidation or re-employment of deposits
or other funds contemplated by Section 12.2 or for any other reason
whatsoever resulting from the repayment of such Affected Loan or any
part thereof on other than the last day of the applicable interest
period, and upon such payment being made, such Lender's obligations in
respect of such Affected Loan to the Borrower under this Agreement
shall terminate. Alternatively, the Borrower:
(a) may designate another Lender or a new lender to whom such Lender's
rights, benefits and/or obligations under this Agreement shall be
assigned and such Lender shall effect such transfer to such designated
Lender or new lender in accordance with Section 18.3 provided that (i)
no Event of Default or Default has occurred which is continuing, (ii)
the replacement Lender is acceptable to the Administrative Agent,
acting reasonably, (iii) the Borrower has satisfied all its obligations
to such Affected Lender under this Agreement and (iv) the Borrower has
paid the $3,500 processing and recordation fee required pursuant to
Section 18.7 if such replacement Lender is not an existing Lender, or
(b) may cancel and reduce the whole of the Commitment of such Lender by
giving the notice required under Section 3.9.2 provided that (i) no
Event of Default or Default has occurred which is continuing and (ii)
the Borrower has satisfied all its obligations to such Lender under
this Agreement. The amount by which the Aggregate Commitment is so
reduced and cancelled may not be reinstated hereunder and any such
cancellation and reduction shall be irrevocable and shall permanently
reduce the Aggregate Commitment (without reducing the other Lenders'
own Commitments).
Section 8.7 Illegality
If the adoption of any Applicable Law, or any change therein or in the
interpretation or application thereof by any court or by any governmental or
other authority or central bank or comparable agency or any other entity charged
with the interpretation or administration thereof or compliance by any Lender
with any request or direction (whether or not having the force of law) of any
such authority, central bank or comparable agency or entity now or hereafter
makes it unlawful or impossible for any Lender to make, fund or maintain the
Borrowings hereunder or any portion of such Borrowings or to perform its
obligations under this Agreement, such Lender (the "Affected Lender") may, by
written notice thereof to QPI and the Borrower through the Administrative Agent
(accompanied by a photocopy of, or extract from, the relevant change in
Applicable Law or in the interpretation thereof and by an explanation thereof in
reasonable detail), suspend its obligations under this Agreement with respect to
the Borrowings affected by such illegality or prohibition (each an "Affected
Borrowing") for the duration of the period of such illegality or prohibition,
and the Borrower shall forthwith (or at the end of such period as the Affected
Lender in its discretion agrees) prepay the Affected Borrowings or such portion
thereof together with accrued but unpaid interest and fees as may be applicable
to the date of
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prepayment and all other amounts that may be payable under Section 12.2 or the
Borrower may by written notice to the Affected Lender through the Administrative
Agent forthwith, subject to the payment of all other amounts that may be payable
under Section 12.2, convert the Affected Borrowing into another basis of
Borrowing remaining available from the Affected Lender under the relevant Credit
Facility, if any, and thereafter such Affected Lender shall only be obligated to
extend its Lender's Proportion of the Affected Borrowings in such other
available basis of Borrowings, if any. The Affected Lender agrees to use
commercially reasonable efforts to mitigate or avoid the circumstances giving
rise to such illegality or prohibition, (including, upon the request and at the
cost of the Borrower, relocating its Branch of Account to a jurisdiction where
such illegality or prohibition would not apply). Alternatively, the Borrower:
(a) may designate another Lender or a new lender to whom such Affected
Lender's rights, benefits and/or obligations under this Agreement shall
be assigned and such Affected Lender shall effect such transfer to such
designated Lender or new lender in accordance with Section 18.3
provided that (i) no Event of Default or Default has occurred which is
continuing, (ii) the replacement Lender is acceptable to the
Administrative Agent, acting reasonably, (iii) the Borrower has
satisfied all its obligations to such Affected Lender under this
Agreement and (iv) the Borrower has paid the $3,500 processing and
recordation fee required pursuant to Section 18.7 if such replacement
Lender is not an existing Lender, or
(b) may cancel and reduce the whole of the Commitment of such Affected
Lender by giving the notice required under Section 3.9.2 provided that
(i) no Event of Default or Default has occurred which is continuing and
(ii) the Borrower has satisfied all its obligations to such Affected
Lender under this Agreement. The amount by which the Aggregate
Commitment is so reduced and cancelled may not be reinstated hereunder
and any such cancellation and reduction shall be irrevocable and shall
permanently reduce the Aggregate Commitment (without reducing the other
Lenders' own Commitments).
Section 8.8 Timing of Maturities
The Borrower shall time the maturities of the Libor Interest Periods so that
they fall on or before the applicable date on which principal is due to be paid
in respect thereof under this Agreement in an amount at least equal to the
amount of such principal being repaid so as not to exceed any Commitment
following such applicable date. If the Borrower fails to time such maturities in
such way in respect of Libor Loans, the Administrative Agent will make the
necessary arrangements for early termination of such Libor Interest Periods in
an amount sufficient to effect the repayment of principal in accordance with
this Agreement, and the Borrower will pay to the Administrative Agent for the
account of the Lenders an amount equal to any loss or expense incurred by each
Lender as a result of such early termination as contemplated by Section 12.2.
Section 8.9 Evidence of Indebtedness
The Administrative Agent shall open and maintain in its books, accounts and
records evidencing the Borrowings made available by the Lenders through the
Administrative Agent under this Agreement. The Administrative Agent shall record
therein the amount of its portion of each
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Borrowing made available by each Lender through the Administrative Agent by way
of Loans and shall record therein each payment of principal on account thereof
and shall record all other amounts becoming due to each Lender and the
Administrative Agent under this Agreement, including interest, Commitment Fees
and Administrative Agent's fees and all payments on account thereof. The Lenders
may also maintain their own separate accounts and records relating to any of the
foregoing. Such accounts and records maintained by the Administrative Agent or
by a Lender will constitute, in the absence of manifest error, prima facie
evidence of the Indebtedness and other liabilities of the Borrower owing to the
Lenders and the Administrative Agent pursuant to this Agreement, the date of
each Borrowing made available by the Administrative Agent for the account of the
Lenders or by such Lender, as applicable, and the amount thereof and the amounts
which and the dates on which the Borrower has made payments to the
Administrative Agent on behalf of the Lenders, or on which a Lender has made and
received payments hereunder, from time to time on account of the principal
thereof and interest thereon and, to the extent applicable, on account of
Commitment Fees and Administrative Agent's fees.
Notwithstanding the foregoing, the omission of the Administrative Agent or a
Lender to maintain any such accounts or records, or any error therein, shall not
in any manner affect the obligation of the Borrower to repay (with applicable
interest and fees) the Borrowings in accordance with the terms of this
Agreement.
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
PREDISBURSEMENT CONDITIONS
Section 10.1 Predisbursement Conditions
The obligation of the Lenders to make available to the Borrower the initial and
subsequent Borrowings hereunder is subject to and conditional upon each of the
following terms and conditions first having been satisfied:
10.1.1 Conditions Precedent to Initial Borrowing: the agreement of each Lender
to make the initial Borrowing requested to be made by it under this
Agreement to the Borrower is subject to and conditional on the
satisfactory review by the Lenders of the Environmental Quarterly
Reports (December 31, 1998, March 31, 1999 and June 30, 1999) of the
Vice President, Manufacturing, Technology and Environment of QPI and
the delivery to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent and in sufficient numbers for
distribution to each of the Lenders, of:
10.1.1.1 a duly executed copy of this Agreement,
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10.1.1.2 a duly executed copy of the Loan Party Guarantee of QPI with
respect to the obligations of the Borrower hereunder and under
any other Loan Document to which it is a party,
10.1.1.3 [intentionally omitted],
10.1.1.4 a duly executed copy of the Loan Party Guarantee of QPHC with
respect to the obligations of the Borrower hereunder and under
any other Loan Document to which it is a party,
10.1.1.5 a duly certified copy of the constating documents and by-laws
of each of the Loan Parties certified by a Responsible Officer
of the related Loan Party accompanied by good standing or
equivalent certificates issued by the appropriate governmental
body of each Loan Party's jurisdiction of incorporation and of
principal place of business,
10.1.1.6 a duly certified copy of a resolution or resolutions of the
board of directors of each Loan Party relating to the
authority of each Loan Party to execute and deliver and
perform its obligations under the Loan Documents to which it
is a party and all other instruments, agreements, certificates
and papers and other documents provided for or contemplated by
the said Loan Documents and the manner in which and by whom
the foregoing documents are to be executed and delivered,
certified by a Responsible Officer of the relevant Loan Party,
10.1.1.7 a certificate of each Loan Party setting forth specimen
signatures of the individuals authorized to sign on its behalf
the Loan Documents to which it is a party and the instruments,
agreements, certificates, papers and other documents provided
for or contemplated by the said Loan Documents,
10.1.1.8 a certificate of compliance of the Chief Executive Officer,
the Chief Financial Officer or the Treasurer or, in his
absence, another Responsible Officer of QPI in form and
substance substantially as set forth in Schedule 10.1.1.8
confirming the accuracy of the representations and warranties
contained herein, the absence of any Default or Event of
Default or breach of or default under any of the Existing
Indentures and that since the date of the most recent
quarterly Consolidated financial statements of QPI, there has
been no change in QPI's Consolidated financial condition which
could have a Material Adverse Effect and containing a list of
all actions, suits or arbitration proceedings pending or, to
the best of his knowledge, threatened involving QPI, any other
Loan Party or any other Restricted Entity which, separately,
represents an exposure in excess of $6,500,000 as reasonably
determined by such Responsible Officer,
10.1.1.9 certificates of insurance evidencing appropriate insurance
coverage as provided in Section 11.1.6, together with a
certificate from a Responsible
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Officer of QPI confirming that such insurance coverage is in
compliance with the provisions of Section 11.1.6,
10.1.1.10 a certificate from a Responsible Officer of QPI to the effect
that all necessary shareholder, corporate, creditor,
governmental and regulatory approvals have been obtained in
connection with the Loan Documents, the Tender Offer, the
Merger (other than the approval of the Merger by WCP's
stockholders and the declaration of effectiveness of the
registration statement with respect to the Merger on Form F-4
by the Securities and Exchange Commission and except for
obtaining orders and rulings from and making filings with the
relevant securities commissions and regulatory authorities in
the provinces of Canada, where required, so that the QPI
subordinate voting shares to be issued in connection with the
Merger will be exempt from the registration and prospectus
requirements of applicable Canadian securities legislation and
to permit the resale thereof in Canada) and the related Loans
and intercompany loans,
10.1.1.11 the audited Consolidated financial statements of QPI for the
fiscal year ended December 31, 1998,
10.1.1.12 evidence of the payment of all fees and expenses contemplated
herein or in the other Loan Documents, to the extent then
owing,
10.1.1.13 evidence by way of pay out letters and transfer instructions
and a certificate from a Responsible Officer of QPI that,
concurrently with such initial Borrowing, QPI LLC and/or US
Holdings shall have advanced to WCP an amount from a direct or
indirect borrowing under the Existing QPI Facility which,
together with the $100,000,000 loan made by US Holdings to WCP
from proceeds drawn under the US Holdings Revolving Credit
Agreement, shall be used to repay indebtedness of WCP owing
under the WCP Existing Bank Credit Agreement and such
agreement and the credit facilities thereunder shall be
concurrently cancelled,
10.1.1.14 the favorable opinions of Canadian Counsel and US Counsel to
the Loan Parties and Acquisition Sub as to the status and
capacity of the Loan Parties, their authority and legal right
to enter into and perform their obligations under the Loan
Documents, as to the validity, binding effect and
enforceability against them of the Loan Documents, as to the
transactions contemplated hereby (including, without
limitation, compliance with all applicable laws and
regulations, including all applicable requirements and
regulations of the Board of Governors of the Federal Reserve
System (including Regulations T, U and X thereunder), as to no
breach of, or default under, agreements for borrowed money in
a principal amount of $20,000,000 or more, including the
Existing Indentures and as to such other matters as the
Lenders may reasonably require, in form and substance
substantially as set forth respectively in Schedule
10.1.1.14-A, Schedule 10.1.1.14-B and Schedule 10.1.1.14-C,
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10.1.1.15 the favorable opinions of Canadian Counsel and US Counsel to
the Administrative Agent as to the validity, binding effect
and enforceability as against the Loan Parties of the Loan
Documents and as to such other matters as the Lenders may
reasonably require, in form and substance substantially as set
forth respectively in Schedule 10.1.1.15-A and Schedule
10.1.1.15-B,
10.1.1.16 copies, certified by a Responsible Officer of QPI as true,
correct and complete, of the duly executed Merger Documents
(except that the Certificate of Merger may be unsigned) and
fairness opinion dated July 12, 1999 delivered by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated to WCP relating to the Tender Offer
and the Merger, provided that such certification with respect
to such fairness opinion may be made to the best knowledge of
such officer,
10.1.1.17 evidence that Standard & Poor's, through its rating evaluation
service, has issued a definitive rating of BBB-(or higher) for
the senior unsecured long-term indebtedness of QPI after
giving effect to the consummation of the Tender Offer, the
Merger, this Agreement and the US Holdings Revolving Credit
Agreement and the transactions contemplated thereby and
hereby,
10.1.1.18 evidence that either (a) the QPI Amendment has become
effective or (b) the Existing QPI Facility has been terminated
and replaced with a new facility on substantially the same
terms and conditions except for the inclusion of the
amendments contemplated by the QPI Waiver Letter, and
10.1.1.19 such other documentation as may be reasonably required by the
Administrative Agent;
10.1.1A Additional Conditions Precedent to Initial Borrowing: the agreement of
each Lender to make the initial Borrowing requested to be made by it
under this Agreement to the Borrower is subject to the following
additional conditions:
10.1.1.1A following the commencement of the Tender Offer, the terms and
conditions of the Offer to Purchase shall not have been
amended, waived or modified without the approval of the
Arrangers and all Lenders (other than Non-Material Changes);
provided that the Tender Offer may be extended for up to 30
additional business days without the approval of the Arrangers
and the Lenders but in any event not beyond the Tender Offer
Funding Date; the purchase price per Share in the Tender Offer
shall not exceed the Per Share Purchase Price and the
aggregate amount paid for all shares accepted for payment in
the Tender Offer shall not exceed $838,715,000; all conditions
precedent to the consummation of the Tender Offer shall have
been satisfied to the satisfaction of the Arrangers and all
Lenders; and the expiration of the Tender Offer shall occur
prior to the Tender Offer Funding Date,
10.1.1.2A the number of Shares accepted for payment in the Tender Offer
by Acquisition Sub shall be equal to no less than the Minimum
Number of
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Shares, and the Board of Directors of WCP shall have published
its recommendation that the stockholders of WCP tender their
Shares pursuant to the Tender Offer,
10.1.1.3A none of the terms of the Tender, Voting and Option Agreement
shall have been amended, waived or modified without the
approval of the Arrangers and all Lenders (other than
Non-Material Changes), and there shall not have occurred or
exist any material breach or default thereunder,
10.1.1.4A the Merger Agreement shall have been approved by all
necessary corporate action of QPI, Acquisition Sub and WCP,
except approval by WCP's stockholders; none of the terms of
the Merger Agreement shall have been amended, waived or
modified without the approval of the Arrangers and all Lenders
(other than Non-Material Changes), and there shall not have
occurred or exist any material breach or default thereunder;
the representations and warranties contained in the Merger
Agreement shall be true and correct in all material respects
on the Tender Offer Funding Date; and all documentation
relating to the Tender Offer and the Merger shall be in form
and substance satisfactory to the Arrangers and all Lenders,
10.1.1.5A all governmental and third party consents and approvals
necessary in connection with the Tender Offer and the Merger
and the related financings (except the approval of the Merger
by WCP's stockholders and the declaration of effectiveness of
the registration statement with respect to the Merger on Form
F-4 by the Securities and Exchange Commission and except for
obtaining orders and rulings from and making filings with the
relevant securities commissions and regulatory authorities in
the provinces of Canada, where required, so that the QPI
subordinate voting shares to be issued in connection with the
Merger will be exempt from the registration and prospectus
requirements of applicable Canadian securities legislation and
to permit the resale thereof in Canada) shall have been
obtained (without the imposition of any conditions that are
not acceptable to the Arrangers and all Lenders) and shall
remain in effect, and all applicable waiting periods
(including any required for HSR antitrust clearance) shall
have expired or been earlier terminated without, in any such
case, any action having been taken or agreed to by QPI,
Borrower, Acquisition Sub and/or WCP or having been required
by any Canadian, United States or foreign governmental
authority (a) which has resulted in or which could reasonably
be expected to result in a Material Adverse Effect (assuming
for purposes of this clause (a) that WCP is a Restricted
Entity) or (b) that would prevent or materially delay the
consummation of the Merger following the consummation of the
Tender Offer; and no law or regulation shall be applicable in
the judgment of the Arrangers or the Lenders that restrains,
prevents or imposes materially adverse conditions upon the
Tender Offer, the Merger or any related transactions; QPI
shall have received all consents required for entering into
the Merger Agreement and for the consummation of the
transactions contemplated thereby, and Quebecor Inc. and
Caisse de
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depot et placement du Quebec shall have delivered a written
consent to approve the Merger Agreement and the consummation
of the transactions contemplated thereby (including the
issuance of QPI stock pursuant to the Merger); and the Merger
shall not be subject to the restrictions imposed by Section
203 of the DGCL or any other state or foreign takeover
statute,
10.1.1.6A except with respect to Existing Actions, there shall exist no
action, suit, investigation, litigation or proceeding pending
or threatened in any court or before any arbitrator or
governmental instrumentality that (a) has or could reasonably
be expected to have a material adverse effect on business,
condition (financial or other), operations, performance or
properties of (i) QPI and its Subsidiaries taken as a whole
(other than WCP and its Subsidiaries) and (ii) WCP and its
Subsidiaries taken as a whole or (b) enjoins, seeks to enjoin,
delays the consummation of, or imposes material adverse
conditions on, the Tender Offer or the Merger or any
transaction contemplated thereby or (c) could reasonably be
expected to have a Material Adverse Effect or a material
adverse effect on the Tender, Voting and Option Agreement;
there shall have occurred no change or development in the
Existing Actions from that disclosed in the Public Information
or the Merger Disclosure, which change or development, when
aggregated with all such changes or developments, has or could
reasonably be expected to have the consequences referred to in
this Section 10.1.1.6A,
10.1.1.7A all capital stock of Borrower and Acquisition Sub shall be
owned directly or indirectly by QPI free and clear of any
lien, charge or encumbrance, and
10.1.1.8A there shall have occurred no Material Adverse Change with
respect to QPI (excluding WCP and its Subsidiaries) or WCP
since March 31, 1999; and
10.1.2 Conditions Precedent to each Borrowing: the obligation of the Lenders
to make any Borrowing available to the Borrower is subject to the
following conditions:
10.1.2.1 the representations and warranties of the Loan Parties
contained in this Agreement shall be true and correct as at
each Drawdown Date, Conversion Date and date of renewal of a
form of Borrowing hereunder, in each case after giving effect
to the proposed Borrowing, conversion or renewal, as the case
may be, other than the representations and warranties set
forth in Section 2.1.2 (which shall be read as if they
referred to the updated information contained in the most
recent certificate of compliance delivered to the
Administrative Agent pursuant to Section 11.1.7(c)), Section
2.1.9 (which shall be read as if they referred to the most
recent financial statements of the Loan Parties delivered to
the Administrative Agent pursuant to Section 11.1.7) and,
prior to the Merger Date, Section 2.3,
10.1.2.2 the Administrative Agent shall have received the timely notice
of Borrowing required pursuant to Section 3.6, 3.10 or 5.1.2,
as applicable, and
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10.1.2.3 no Default or Event of Default shall have occurred and be
continuing (provided that if such Default or Event of Default
shall have been waived as provided herein, such Default or
Event of Default shall not be deemed to exist or continue in
respect of the particular instance having been waived or
during the waiver period, as applicable).
Section 10.2 Waiver of Conditions Precedent
The terms and conditions of Section 10.1 are inserted for the sole benefit of
the Lenders and may be waived by the Administrative Agent on behalf of the
Lenders, in whole or in part, with or without terms or conditions, in respect of
all or any portion of the Borrowings without prejudicing the rights of each of
the Lenders to assert such terms and conditions in whole or in part in respect
of any other Borrowing.
ARTICLE XI
COVENANTS OF THE LOAN PARTIES
Section 11.1 Affirmative Covenants of the Loan Parties
While any amount remains outstanding under the Loan Documents or any of the
Finance Parties has any obligations under any of the Loan Documents or any
Lender has any Commitment hereunder, each Loan Party (or QPI, in the case of the
covenants contained in Sections 11.1.7(a), (b), (c), (g) and (h), 11.1.15 and
11.1.17 through 11.1.21) covenants and agrees with the Administrative Agent,
each Lender and each other Finance Party that, unless otherwise consented to in
writing by or on behalf of the Lenders:
11.1.1 Payment Covenant: it will, and it will cause each of its Subsidiaries
which is a Loan Party to, duly and punctually pay all sums of money due
and payable by it under the terms of this Agreement and any other Loan
Document at the times and places, in the currencies, and in the manner
specified;
11.1.2 Corporate Existence: it will, and it will cause each of its
Subsidiaries which is a Restricted Entity to, do or cause to be done
all things necessary to preserve and maintain its corporate or other
existence and, if applicable, all of its other franchises, licenses,
rights, privileges, consents and approvals, except as otherwise
permitted hereunder and except to the extent that the failure to comply
with this covenant could not reasonably be expected to have a Material
Adverse Effect;
11.1.3 Conduct of Business: it will, and it will cause each of its
Subsidiaries which is a Restricted Entity to, conduct its business in a
proper and efficient manner in accordance with normal industry
standards, keep proper books or records and accounts, and preserve,
protect and obtain all intellectual property, and preserve and maintain
in good repair, working order and condition all other properties, used
or useful in the conduct of its business, and obtain and maintain all
licenses, permits and regulatory approvals required for the operations
of its business, except to the extent that the failure to comply with
this covenant could not reasonably be expected to have a Material
Adverse Effect;
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11.1.4 Compliance with Laws: it will, and it will cause each of its
Subsidiaries which is a Restricted Entity to, comply with Applicable
Laws, including without limitation, ERISA, the Racketeer Influenced and
Corrupt Organizations Act, enacted as part of the Organized Crime
Control Act of 1970 of the United States of America and all
Environmental Laws and obtain and maintain all necessary Environmental
Permits, except to the extent that the failure to comply with this
covenant could not reasonably be expected to have a Material Adverse
Effect;
11.1.5 Prompt Payment of Taxes and Indebtedness: it will, and it will cause
each of its Subsidiaries which is a Restricted Entity to, promptly pay
and discharge when due all Taxes and all Indebtedness and other
liabilities that might become or result in a Lien on any of its
properties, except to the extent that the failure to comply with this
covenant could not reasonably be expected to have a Material Adverse
Effect;
11.1.6 Insurance: it will, and it will cause each of its Subsidiaries which is
a Restricted Entity to, maintain insurance with such financially sound,
independent and reputable insurance companies, against at least such
risks and in at least such amounts as is customarily maintained by
similar businesses, duly and punctually pay the premiums and other sums
of money payable in connection therewith and promptly deliver to the
Administrative Agent from time to time upon reasonable request evidence
of such insurance coverage;
11.1.7 Financial Statements and Information: it will furnish or cause to be
furnished to the Administrative Agent in such number as the
Administrative Agent may reasonably require for distribution to each of
the Lenders:
(a) Quarterly Financial Statements: as soon as practicable and in
any event within 60 days after the close of each of the first
three quarterly accounting periods in each fiscal year of QPI,
commencing with the quarterly period ending June 30, 1999, the
Consolidated balance sheet of QPI and the related Consolidated
statements of income, retained earnings and cash flows for
such quarterly period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period,
setting forth in each case in comparative form the figures for
the corresponding periods of the previous fiscal year, subject
to normal year-end auditing adjustments,
(b) Year-End Financial Statements; Accountants' Certificate: as
soon as available and in any event within 90 days after the
end of each fiscal year of QPI, commencing with the fiscal
year ending December 31, 1999:
(i) the Consolidated balance sheet of QPI as at the end
of such fiscal year and the related Consolidated
statements of income, retained earnings and cash
flows for such fiscal year, setting forth in
comparative form the figures as at the end of and for
the previous fiscal year, and
(ii) an audit report of KPMG, or any one of the five (5)
largest firms of accountants nationally recognized in
the United States of America or in
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Canada, as the case may be, which report shall
include an opinion of such auditors which opinion
shall not be qualified and shall state that such
financial statements were prepared in accordance with
Canadian GAAP and that the audit by such auditors in
connection with such financial statements has been
made in accordance with generally accepted auditing
standards,
(c) Officer's Certificate as to Financial Statements and Defaults:
at the time that financial statements are furnished pursuant
to paragraph (a) or (b) above of this Section 11.1.7, a
certificate of compliance of the Chief Executive Officer,
Chief Financial Officer or Treasurer of QPI, in form and
substance substantially as set forth in Schedule 11.1.7(c),
with the information specified therein being true and correct
in all material respects as of the date the certificate is
delivered to the Administrative Agent (i) confirming (w) the
accuracy of the financial statements submitted, (x) the
absence of contingent liabilities and anticipated loss having
a Material Adverse Effect, (y) the calculations of the
financial ratios set forth herein and (z) the absence of any
Default or Event of Default and (ii) providing (x) a list of
all Restricted Entities (such list of Restricted Entities to
be provided annually only) and Non-Restricted Entities, (y)
the Investments in the Non-Restricted Entities by QPI and the
Restricted Entities and (z) the Indebtedness of the Operating
Restricted Entities,
(d) Reports and Filings:
(i) promptly upon receipt thereof, copies of all material
special audits, opinions or other material reports,
if any, submitted to any Loan Party by its
independent certified public accountants in their
capacity as auditors of such Loan Party, and
(ii) promptly upon transmission thereof, copies of all
such financial statements and reports as QPI shall
send to its stockholders, copies of all material
information made publicly available by any Loan Party
and copies of all registration statements, annual
information forms, regular or periodic reports,
prospectuses, offering circulars or similar materials
filed by any Loan Party with any securities exchange,
securities commission or similar governmental
authority or commission, other than filings made with
state or provincial regulatory authorities in
connection with shareholdings by employees of QPI or
any Restricted Entities,
(e) Requested Information: from time to time and promptly upon
request of any Lender, such information regarding the Loan
Documents to which a Loan Party is a party, or the loans, the
business, assets, liabilities, financial condition, results of
operations or business prospects of a Loan Party as such
Lender may reasonably request, in each case in form and
substance and certified in a manner satisfactory to the
requesting Lender,
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(f) Notice of Defaults, Material Adverse Changes and Other
Matters: promptly and in any event within (i) one Business Day
after a Loan Party obtains knowledge or should have obtained
knowledge of any event or condition specified in sub-paragraph
(A) or (G) hereof, (ii) three Business Days after the date a
Loan Party obtains knowledge or should have obtained knowledge
of any event or condition specified in sub-paragraph (E)
hereof and (iii) five Business Days after a Loan Party obtains
knowledge or should have obtained knowledge of any event or
condition specified in sub-paragraph (B), (C), (D) or (F)
hereof, notice of:
(A) any Default,
(B) any change in the name of, or, except in connection
with a transaction permitted under Section 11.2.5,
any amendment of the certificate of incorporation or
by-laws of any Loan Party,
(C) the commencement of, or the occurrence or
non-occurrence of any change or event relating to,
any action, suit or proceeding that would cause the
representation and warranty contained herein relating
to the absence of litigation to be incorrect if made
at such time,
(D) the occurrence or non-occurrence of any change or
event that would cause the representation and
warranty contained herein relating to the absence of
any adverse change to be incorrect if made at such
time,
(E) any change in the S&P/▇▇▇▇▇'▇ Credit Rating which
would result in an increase of any of the Applicable
Margins or Commitment Fee hereunder,
(F) any ERISA Event or any other event or condition
relating to ERISA, whether or not such event or
condition shall constitute an Event of Default, and
(G) any Capital Market Transaction, together with the
details thereof,
(g) Environmental Matters: promptly and in any event within five
Business Days after the existence of any of the following
conditions, a certificate of the Chief Executive Officer,
Chief Financial Officer, Treasurer or other Responsible
Officer of QPI specifying in detail the nature of such
condition and QPI's or the relevant Restricted Entity's or, to
the knowledge of each Loan Party, their respective
Environmental Affiliates' proposed response thereto:
(i) the receipt by QPI or any Restricted Entity of any
communication (written or oral), whether from a
governmental authority, citizens group, employee or
otherwise, that alleges that QPI or any Restricted
Entity or any Environmental Affiliate thereof is not
in compliance with applicable Environmental Laws,
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(ii) QPI or any Restricted Entity shall obtain actual
knowledge that there exists any Environmental Claim
pending or threatened against QPI or any Restricted
Entity or, to the knowledge of each Loan Party, any
of their respective Environmental Affiliates, or
(iii) any release, emission, discharge or disposal of any
material of environmental concern that could form the
basis of any Environmental Claim against QPI or any
Restricted Entity or, to the knowledge of each Loan
Party, any of their respective Environmental
Affiliates,
in each case of sub-paragraphs (i), (ii) and (iii) above to the extent
that any such non-compliance, Environmental Claim or release, emission,
discharge or disposal, either singly or in the aggregate, could
reasonably be expected to have a Materially Adverse Effect on QPI and
the Restricted Entities taken as a whole and provided that for the
purposes of the covenant contained in this Section 11.1.7(g)
"knowledge" shall mean the knowledge of the relevant Loan Party, based
on its normal course of conduct with such Environmental Affiliate, and
(h) Budget: no later than on the 60th day following the
commencement of each fiscal year of QPI, commencing with the
2000 fiscal year, a summary Consolidated budget including a
yearly statement of earnings, cash flows and a year-end
consolidated balance sheet;
11.1.8 Consents and Governmental Approvals: it will, and will cause each of
its Subsidiaries which is a Restricted Entity to, take all action and
obtain and maintain all consents and governmental approvals required so
that its obligations under the Loan Documents will at all times be
legal, valid and binding and enforceable in accordance with their
respective terms;
11.1.9 Access: it will, and will cause each of its Subsidiaries which is a
Restricted Entity to, permit the Administrative Agent and any person
designated in writing from time to time by the Administrative Agent
including, without limitation, independent accountants, at the relevant
Loan Party's expense, on reasonable written notice and at such
reasonable time or times as will not interfere with the normal
operations of the Loan Parties and their Subsidiaries (a) to visit and
inspect any of the properties of the Loan Parties and their
Subsidiaries, (b) to discuss the affairs, finances and accounts of the
Loan Parties or their Subsidiaries with their respective officers and
(c) to examine the books of account, records, reports and other
documents of the Loan Parties;
11.1.10 Loan Party Guarantees: it will, and it will cause each of its
Subsidiaries which is a Loan Party to, maintain the Loan Party
Guarantees in full force and effect and not terminate or attempt to
terminate any Loan Party Guarantee until the full, final and
indefeasible payment and termination of the Credit Facilities;
11.1.11 Canadian Benefit and Pension Plans and ERISA: it will, and it will
cause each of its Subsidiaries which is a Restricted Entity to,
perform, in a timely fashion, all obligations to which it may become
subject under all Applicable Laws, including the ITA and
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ERISA, as well as under the regulations or rules issued thereunder, in
respect of its Canadian Pension Plans, Canadian Benefit Plans and
Benefit Plans, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect;
11.1.12 Environmental Matters: it (a) shall be, and it shall cause each of its
Subsidiaries which is a Restricted Entity to be, at all times in
compliance in all material respects with all applicable Environmental
Laws, except where non-compliance could not reasonably be expected to
have a Material Adverse Effect and (b) shall ensure, and it shall cause
each of its Subsidiaries which is a Restricted Entity to ensure, that
the Properties are free from material contamination by a release,
discharge or emission of any Hazardous Material or of any other
substance which poses a threat or nuisance to safety, health or the
environment and that all underground storage tanks, land fills, land
disposals and dumps contained on the Properties are in compliance in
all material respects with all applicable Environmental Laws, except
where the failure to do so could not reasonably be expected to have a
Material Adverse Effect;
11.1.13 Millennium Compliance: it will, and it will cause each of its
Subsidiaries which is a Restricted Entity to, keep under review its
operations with a view to assessing its Computer Systems, and it will,
and it will cause each of its Subsidiaries which is a Restricted Entity
to, take such reasonable measures as may be required to ensure that its
Computer Systems which are critical to its operations will be
Millennium Compliant by November 30, 1999, provided that the
effectiveness of any such measures is contingent on the suppliers,
customers and other third parties dealing with QPI and its related
companies, including its Subsidiaries, being themselves Millennium
Compliant;
11.1.14 Use of Funds: it will use the proceeds of Borrowings hereunder solely
for the purposes set forth in Section 3.5, but subject to the
limitations contained in Section 11.2.7;
11.1.15 Updating of S&P/▇▇▇▇▇'▇ Credit Rating: it shall cause each of Standard
& Poor's and ▇▇▇▇▇'▇ to review, on a continuing basis, the credit
rating given to QPI (with any change in the credit rating given to QPI
by either Standard & Poor's or ▇▇▇▇▇'▇ to be notified by QPI to the
Administrative Agent in accordance with Section 11.1.7(f)(E));
11.1.16 Certain Intercompany Advances: it will, and it will cause each of its
Subsidiaries which is a Restricted Entity to, take all action necessary
to maintain that all (a) intercompany advances made by the Borrower and
QPI LLC to repay WCP's indebtedness owing under the WCP Existing Bank
Credit Agreement shall, after the Merger, rank senior to the
indebtedness evidenced by the Convertible Notes and the Subordinated
Notes and (b) indebtedness evidenced by the Convertible Notes and the
Subordinated Notes shall, after the US Holdings Merger, rank pari passu
or junior to all amounts outstanding under this Agreement, the US
Holdings Revolving Credit Agreement and all obligations under the Loan
Party Guarantees;
11.1.17 Merger Agreement; Securitization Program: after the consummation of the
Tender Offer, it will use its commercially reasonable best efforts to
cause WCP to (a) comply in all material respects with all of its
material obligations under the Merger Agreement and (b) maintain in
full force and effect until the earlier of one year after the date of
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consummation of the Merger and (if the aggregate amount of the
Commitments of the Arrangers (when combined with the aggregate amount
of the Commitments of the Arrangers under (and as defined in) the US
Holdings Revolving Credit Agreement) is then less than $675,000,000)
the occurrence of the US Holdings Merger, WCP's existing accounts
receivable securitization program on substantially the same terms and
conditions and in the same amounts as are in effect as of the date of
execution of the Merger Agreement, provided that, if the aggregate
amount of the Commitments of the Arrangers (when combined with the
aggregate amount of the Commitments of the Arrangers under (and as
defined in) the US Holdings Revolving Credit Agreement) is greater than
$675,000,000, then the amount of the securitization program may not
exceed $400,000,000;
11.1.18 Merger: after consummation of the Tender Offer, it will (i) cause WCP
to continue to be a Restricted Entity at all times prior to the
consummation of the Merger and (ii) cause the consummation of the
Merger in accordance with the Merger Agreement and all Applicable Law
as promptly as practicable;
11.1.19 Delist Shares: after the consummation of the Merger, promptly cause the
deregistration and the delisting of the Shares;
11.1.20 Loans to Acquisition Sub: prior to the consummation of the Merger, it
will cause US Holdings to take such action as necessary to cause the
amount of proceeds of Loans that have been lent to Acquisition Sub to
equal 75% of the maximum amount of the Restricted Payments permitted
under and as defined in Section 4.8 of the 7 3/4% Indenture and the 8
3/8% Indenture and otherwise in compliance with the terms of such
Indentures to the extent such maximum amount is at least $100,000,000;
if such maximum amount is less than $100,000,000, then the amount of
the proceeds of Loans lent to Acquisition Sub may be zero; and
11.1.21 Officer's Certificate, Opinion of Counsel: (a) on a date not less than
three business days prior to the Merger Date and on each date that the
officer's certificate referred to in Section 11.1.7(c) is required to
be delivered, it will deliver or cause US Holdings to deliver to the
Administrative Agent for each Lender an officer's certificate setting
forth in reasonable detail the calculation of the maximum amount of
Restricted Payments permitted under and as defined in Section 4.8 of
the 7 3/4% Indenture and the 8 3/8% Indenture and demonstrating
compliance therewith and, in addition, otherwise confirming compliance
with the other negative covenants of such Indentures and (b) not less
than three business days prior to the Merger Date, deliver or cause US
Holdings to deliver to the Administrative Agent for each Lender an
unqualified opinion of US Counsel to the Loan Parties and Acquisition
Sub that no breach or default has occurred under any of the Existing
Indentures as a result of the loans to be made by US Holdings to
Acquisition Sub described in Section 11.1.20 or the repayment of any
thereof.
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Section 11.2 Negative Covenants of the Loan Parties
While any amount remains outstanding under the Loan Documents or any of the
Finance Parties has any obligations under any of the Loan Documents or any
Lender has any Commitment hereunder, each Loan Party (or QPI, in the case of the
covenants contained in Sections 11.2.10 and 11.2.11) covenants and agrees with
the Administrative Agent, each Lender and each other Finance Party that:
11.2.1 Negative Pledge: it will not, nor will it allow or suffer any of its
Subsidiaries which is a Restricted Entity to, directly or indirectly,
at any time, assume, create, incur or suffer to exist any Lien upon any
of its property, rights, revenues or assets, whether now owned or
hereafter acquired or upon any income or profits therefrom, except that
QPI and the Restricted Entities (other than, prior to the Merger Date,
Acquisition Sub) may create, incur, assume or suffer to exist (i)
Permitted Encumbrances, (ii) Liens securing intercompany loans or
advances amongst the Loan Parties and the Restricted Entities and (iii)
other Liens where the aggregate amount secured thereby does not exceed
10% of QPI's Equity;
11.2.2 Sale of Assets: it will not, nor will it allow or suffer any of its
Subsidiaries which is a Restricted Entity to, directly or indirectly,
except as permitted under Section 11.2.5, convey, sell, alienate,
assign, lease, license, transfer or otherwise dispose of the whole or
any substantial portion of its property or assets or any interest
therein, whether now owned or possessed or hereafter acquired or
possessed, or enter into any sale and leaseback transaction with
respect to such property or assets, in each case if a Material Adverse
Effect could result therefrom or could exist immediately after the
relevant transaction;
11.2.3 No Investments in Other Persons: it will not, nor will it allow or
suffer any of its Subsidiaries which is a Restricted Entity to,
directly or indirectly, make or acquire any loan or Investment in
Non-Restricted Entities or permit any loan or Investment from such Loan
Party or any of its Subsidiaries which is a Restricted Entity to be
outstanding, directly or indirectly, in Non-Restricted Entities in
aggregate amounts exceeding a sum equivalent to 20% of QPI's Equity at
any time, excluding transactions (including accounts receivable) in the
ordinary course of business with a term of less than 90 days;
11.2.4 No Indebtedness: it will not, nor will it allow or suffer any of its
Subsidiaries which is a Restricted Entity to, directly or indirectly,
permit any of the Operating Restricted Entities to incur, assume,
create or become in any way liable for any Indebtedness (except for
intercompany loans raised from a Loan Party or a Restricted Entity) in
an amount exceeding, in the aggregate, prior to the Merger Date, 15%
and thereafter, until the consummation of the US Holdings Merger, 10%
and after the US Holdings Merger, 15% (assuming compliance with Section
11.1.16) of QPI's Equity, excluding the Indebtedness evidenced by the
Subordinated Notes and the Convertible Notes and the existing
Indebtedness, identified in Schedule 11.2.4 to the Existing QPI
Facility, of Imprimeries Didier - Quebecor, S.A. (France) and its
Subsidiaries, except that this restriction shall not apply, following
an acquisition of a newly-acquired Subsidiary of
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QPI which will be an Operating Restricted Entity ("New Operating
Restricted Entity") to the extent that the Indebtedness of such New
Operating Restricted Entity ("Acquired Indebtedness") is repaid or
otherwise extinguished within 180 days of the date such New Operating
Restricted Entity is so acquired and provided further that such
Acquired Indebtedness was not incurred in contemplation of such
acquisition;
11.2.5 No Modification to Corporate Structure: it will not, nor will it allow
or suffer any of its Subsidiaries which is a Restricted Entity to,
directly or indirectly, wind-up, liquidate or dissolve its business,
affairs or assets or enter into any transaction of reorganization,
amalgamation, merger or consolidation, or convey, sell, lease or
otherwise dispose of all or any substantial part of its business,
property or assets (or agree to do any of the foregoing at any future
time) except (i) as permitted under Section 11.2.2, (ii) that any
Restricted Entity, other than a Loan Party, may effect any of the
foregoing transactions if the transaction could not reasonably be
expected to have a Material Adverse Effect and (iii) that any of the
Loan Parties may merge with or into or convey, lease or transfer all or
substantially all of its assets to any Person, provided that,
immediately after giving effect to the transaction, no event or
circumstance shall have occurred and be continuing which constitutes a
Default or Event of Default and that (a) the resulting entity or the
Person which acquires such assets is bound by the provisions of the
Loan Documents to which such Loan Party is a party by operation of law
or pursuant to an agreement in form and substance satisfactory to the
Administrative Agent and (b) the Lenders receive an opinion of counsel
to the Loan Parties acceptable to them confirming that the resulting
entity or the Person which acquires such assets is bound by the
relevant Loan Documents;
11.2.6 No Consensual Restrictions: it will not, nor will it allow or suffer
any of its Subsidiaries which is a Restricted Entity to, directly or
indirectly, permit to exist, at any time, any consensual restriction
limiting the ability (whether by covenant, event of default,
subordination or otherwise) of QPI or any Restricted Entity to (i) pay
or make the maximum Dividends permitted by law to its parent entity,
(ii) pay any obligation owed to QPI or any Restricted Entity, (iii)
make any loans or advances to or Investments in QPI or in any
Restricted Entity, (iv) transfer any of its property or assets to QPI
or any Restricted Entity or (v) create any Lien upon its property or
assets whether now owned or hereafter acquired or upon any income or
profits therefrom, except that the covenant contained in this Section
11.2.6 shall not apply to (a) Imprimeries Didier-Quebecor, S.A. and its
Subsidiaries, (b) any other Restricted Entity (other than a Loan
Party), whose assets, singly or when taken together with the assets of
all Restricted Entities (other than a Loan Party) subject to such
restrictions, do not exceed at any time 10 % of the Consolidated assets
of QPI, as determined in accordance with GAAP, (c) WCP and its
Subsidiaries, from and after the date it becomes a Restricted Entity,
with respect to any restriction contained in Sections 4.7 (Limitations
on Restricted Payments), 4.8 (Dividend and Payment Restrictions), 4.10
(Limitations on Sales of Assets), 4.11 (Transactions with Affiliates),
4.12 (Limitations on Liens), 4.13 (Investments in Unrestricted
Subsidiaries) and 4.15 (Limitation on Other Subordinated Indebtedness)
of the 7 3/4% Indenture and the 8 3/8% Indenture, (d) QPI, with respect
to the restriction on its ability to declare, set aside or pay any
dividends on, or make any other distributions in respect of, any of its
Capital Stock (other than regular
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quarterly cash dividends in accordance with its past dividend policy),
set forth in Section 5.2(i)(A) of the Merger Agreement, and (e) any
restriction contained in Section 1.11 of any Loan Party Guarantee
issued hereunder or under (and as defined in) the Existing QPI
Facility;
11.2.7 Unauthorized Uses of the Credit Facilities: it will not use the Credit
Facilities or any proceeds of Borrowings (i) to make an Acquisition or
an Investment in any newly-acquired Subsidiary unless such transaction
is uncontested and approved by the board of directors of such Person or
(ii) to purchase or carry, reduce, retire or refinance any credit
incurred to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any such Margin Stock
(other than the purchase of the Shares pursuant to the Tender Offer);
11.2.8 No Change in Nature of Business or in Use of Properties: it will not,
nor will it allow or suffer any of its Subsidiaries which is a
Restricted Entity to, directly or indirectly, make any change whereby
the nature of the business carried on by QPI and the Restricted
Entities (taken as a whole) would be materially altered from that
carried on the Formal Date;
11.2.9 No Hedge Agreements: it will not, nor will it allow any of its
Subsidiaries which is a Restricted Entity to, directly or indirectly,
acquire or enter into any Hedge Agreement except, as bona fide ▇▇▇▇▇▇
and not for speculative purposes, other than such speculative hedge
agreements to which WCP is a party as of the Tender Offer Funding Date
which such speculative hedge agreements shall be terminated as soon as
commercially practicable;
11.2.10 Financial Ratios: it shall not at any time allow or suffer:
(a) the ratio of EBITDA to Interest Expense of QPI, on a
Consolidated basis, to be less than 3.50 to 1.00 for any
period of four consecutive fiscal quarters of QPI, commencing
with the period of four fiscal quarters ending on June 30,
1999;
(b) the ratio of QPI's Debt to Capitalization to exceed (i) 70%
from the Tender Offer Funding Date until the Merger Date, (ii)
65% after the Merger Date until December 31, 1999, (iii) 60%
from January 1, 2000 until December 31, 2000 and (iv) 55%
after December 31, 2000, in each case, on the basis of
calculations made at the end of each fiscal quarter, starting
with the quarter ending June 30, 1999; or
(c) the ratio of QPI's Debt to EBITDA, on a Consolidated basis, to
exceed, for any period of four consecutive fiscal quarters of
QPI, starting with the period of four quarters ending on the
last day of the quarter which includes the Tender Offer
Funding Date, (i) 4.00 to 1.00 from the Tender Offer Funding
Date until the Merger Date, (ii) 3.75 to 1.00 after the Merger
Date until December 31, 2000, and (iii) 3.00 to 1.00 after
December 31, 2000; and
11.2.11 Restrictions on Acquisition Sub: notwithstanding anything contained
herein, it will not, prior to the consummation of the Merger, allow
Acquisition Sub to (a) carry on any
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business or activity unrelated to the consummation of the Tender Offer
and Merger or (b) incur, assume, create, suffer to exist or become in
any way liable for any Indebtedness other than intercompany
Indebtedness to US Holdings related to the consummation of the Tender
Offer and the Merger.
ARTICLE XII
REIMBURSEMENT OF EXPENSES AND INDEMNITY
Section 12.1 Reimbursement of Expenses
All statements, reports, certificates, opinions and other documents or
information required to be furnished to the Administrative Agent, any Lender or
any other Finance Party by any Loan Party under this Agreement and the other
Loan Documents shall be supplied without cost to all such parties. Furthermore,
whether or not any of the transactions contemplated herein are consummated, the
Borrower agrees to reimburse promptly to the Administrative Agent for itself and
for the account of the other Finance Parties on demand, all of the reasonable
fees, costs and expenses of the Administrative Agent's Counsel and all of the
Administrative Agent's and the Arrangers' other reasonable fees, costs and other
out-of-pocket expenses (including transportation, computer, duplication,
appraisal, audit, insurance, consultant, notaries and search, and all tax on
goods and services) incurred from time to time in the preparation, negotiation,
execution and registration, if applicable, of the Loan Documents and the related
documents, and the operation of the Credit Facilities, including, without
limitation, in considering and making amendments to, or waivers, releases or
discharges in respect of, the Loan Documents (whether or not such amendments,
waivers, releases or discharges are completed or carried into effect) and, after
discussion with QPI, in respect of any other matter, together with all
reasonable expenses incurred in the due diligence and syndication (including
printing, distribution and bank meetings) in connection with the Credit
Facilities. In addition, the Borrower agrees to pay all of such reasonable legal
fees, costs and expenses (and tax on goods and services in respect thereof) of
the Administrative Agent and each of the Lenders incurred in the enforcement of
the Loan Documents and of any other document to be executed and issued as
provided herein and in the other Loan Documents.
Each Borrower will reimburse the Administrative Agent and the Lenders within 30
days after written request is made, with interest after such 30 day period at a
rate per annum equal to the US Prime Rate plus the Applicable Margin for US
Prime Rate Loans at such time increased by 2 % per annum, for any and all
expenditures which the Administrative Agent or the Lenders may from time to time
make, lay out or expend pursuant to this Section 12.1 and in providing such
protection in respect of insurance, discharge of Liens, Taxes, dues,
assessments, governmental charges, fines and penalties lawfully imposed,
repairs, Counsel's fees and other matters as the Loan Parties are obligated in
the Loan Documents to provide, but fail to provide after written request is
made. Such obligations to reimburse the Administrative Agent and the Lenders
shall be an additional indebtedness due from the Borrower and shall be payable
by the Borrower within 30 days of demand. The Administrative Agent and the
Lenders though privileged so to do shall be under no obligation to the Borrower
to make any such expenditure and the making thereof by the Administrative Agent
or Lender shall not relieve the Borrower of any default in that respect.
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Section 12.2 Indemnity
Whether or not a Default or an Event of Default has occurred, the Borrower
covenants and undertakes to indemnify, defend, protect and hold harmless the
Administrative Agent, each of the Lenders and the other Finance Parties and
their respective directors, controlling persons, officers, employees, Counsels,
attorneys-in-fact, trustees, advisors and agents (collectively, the
"Indemnitees") against and from all losses, damages (including punitive
damages), expenses, liabilities, obligations, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements (including reasonable Counsels'
and consultants' fees and disbursements) (hereinafter, "Losses") which any
Indemnitee may sustain or incur (including, without limitation, any losses and
expenses a Lender may incur (a) by reason of the liquidation, re-employment or
redeployment of deposits or other funds acquired by such Lender to fund or to
maintain the Borrowings of the Borrower or (b) by reason of any interest,
charges or other amounts paid or payable by a Lender to providers of funds
borrowed or acquired in order to make, to fund or to maintain the Borrowings of
the Borrower or any amount unpaid by the Borrower hereunder) as a consequence of
or in connection with (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith):
12.2.1 any use made by the Borrower or proposed to be made by the
Borrower with the proceeds of the Credit Facilities,
12.2.2 any failure of the Borrower to timely provide a conversion or
renewal notice when required in respect of any Borrowing
pursuant to the terms hereof,
12.2.3 any failure of the Borrower to borrow in the amount and on the
date specified therefor in any notice of Borrowing pursuant to
this Agreement,
12.2.4 any failure of the Borrower to make a payment, repayment,
prepayment or conversion specified in a notice of repayment,
prepayment or conversion hereunder, or when otherwise due
hereunder,
12.2.5 the payment by the Borrower of principal amounts in respect of
a Libor Loan on any day other than the last day of the related
Libor Interest Period,
12.2.6 the Loan Documents, the Transaction Documents, the Tender
Offer, the Merger or any transaction contemplated hereby or
thereby, including defending and/or counterclaiming or
claiming over against third parties in respect of any action
or matter relating to any thereof,
12.2.7 the occurrence of a Default or an Event of Default, or
12.2.8 the actual or alleged presence of Hazardous Materials on,
under or in any Properties or the escape, seepage, leakage,
spillage, discharge, emission or release from, any Property or
into or upon any land, the atmosphere, or any watercourse,
body of water or wetland, of any Hazardous Materials or any
Environmental Claim relating to the Borrower or any of its
Subsidiaries or any of the Properties or arising out of the
use of any of the Properties,
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in each case, except to the extent such Losses are found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnitee's gross negligence or wilful misconduct.
In the case of an investigation, litigation or proceeding to which the indemnity
described in this Section 12.2 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its respective shareholders, Affiliates or creditors or an Indemnitee
or an Indemnitee is otherwise a party thereto. The Borrower further agrees that
no Indemnitee shall have any liability (whether direct or indirect, in contract
or tort or otherwise) to the Borrower or any of its Subsidiaries or Affiliates
or their respective security holders or creditors arising out of, related to or
in connection with the Credit Facilities, except for direct, as opposed to
consequential or punitive, damages determined in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnitee's
gross negligence or wilful misconduct.
Section 12.3 Consultation with Borrower
In connection with any claim made by a third party for which an Indemnitee is
entitled to indemnification pursuant to Section 12.2, such Indemnitee agrees,
before settling or compromising any such claim, to consult in good faith with
the Borrower and the Administrative Agent regarding any comments or
considerations that either of them may have, it being understood that (i) such
Indemnitee shall retain the right, at its sole discretion, to settle or
compromise any such claim and (ii) any consultation among such Indemnitee, the
Borrower and the Administrative Agent or any failure to so consult shall in no
way relieve or reduce the Borrower's obligations to indemnify such Indemnitee
pursuant to Section 12.2.
Section 12.4 Survival of Indemnification Obligations
Without prejudice to the survival or termination of any other agreement of the
Borrower under the Loan Documents, the provisions of and undertakings and
indemnification set forth under Sections 12.1 and 12.2 shall survive the payment
of principal and interest on all Borrowings, the termination of the Aggregate
Commitment and the satisfaction of all other liabilities owed to the
Administrative Agent and the Lenders pursuant to the Loan Documents.
ARTICLE XIII
OTHER TAXES
Section 13.1 Other Taxes
The Borrower covenants and agrees that it will pay any documentary, stamp or
other Taxes (including interest and penalties) which may be payable or
determined to be payable by any governmental or taxation authority in respect of
the execution and delivery of the Loan Documents to which it is a party,
including the performance of the terms and provisions of such Loan Documents,
and will save the Administrative Agent and the Lenders harmless against any loss
or liability resulting from non-payment or delay in payment of any such
documentary, stamp or other Taxes.
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Section 13.2 Survival of Obligations
The obligation of the Borrower under Section 13.1 to pay the Taxes referred to
therein shall, if such Taxes have not been paid, survive the payment of
principal and interest on all Borrowings, the termination of the Aggregate
Commitment and the satisfaction of all other liabilities owed to the
Administrative Agent and the Lenders pursuant to the Loan Documents.
ARTICLE XIV
EVENTS OF DEFAULT
Section 14.1 Events of Default
The occurrence of any one or more of the following events or circumstances shall
constitute an Event of Default under this Agreement:
14.1.1 Failure to Pay: any payment of principal or of interest on any of the
Loans or of fees or any other amounts owing under the Loan Documents
shall not be made when and as due (whether at maturity, by reason of
notice of repayment or acceleration or otherwise) and in accordance
with the terms of this Agreement and, except in the case of payments of
principal, such failure shall continue for three Business Days;
14.1.2 Representations and Warranties: any representation or warranty made by
any Loan Party in any of the Loan Documents or any certificate or other
document delivered pursuant thereto shall prove at any time to have
been materially incorrect or misleading in any material respect, as at
the date made or deemed to have been made;
14.1.3 Other Breaches: any Loan Party shall default in the performance or
observance of:
(a) any term, covenant, condition or agreement contained in
Section 11.1.2 (insofar as such paragraph requires the
preservation of the existence of a Loan Party), 11.1.6,
11.1.8, 11.1.14, 11.1.16 through and including 11.1.21 or
11.2.11, and such default, if capable of being remedied, shall
continue unremedied for a period of ten Business Days after
the earlier of the date on which (y) a Loan Party shall have
actual knowledge of such default and (z) notice shall have
been given by the Administrative Agent to the Borrower
requiring that such default be cured; or
(b) any term, covenant, condition or agreement contained in this
Agreement (other than a term, covenant, condition or agreement
a default in the performance or observance of which is
elsewhere in this Section 14.1 specifically dealt with) and
such default, if capable of being remedied, shall continue
unremedied for a period of 30 days after the earlier of the
date on which (y) a Loan Party shall have actual knowledge of
such default and (z) notice shall have been given by the
Administrative Agent to the Borrower requiring that such
default be cured;
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14.1.4 Bankruptcy:
(a) Voluntary: the Borrower, any Guarantor or any Restricted
Entity shall (i) commence any proceedings (including a notice
of intention or a proposal under the Bankruptcy and Insolvency
Act (Canada) and an application for a compromise or
arrangement under the Companies' Creditors Arrangement Act
(Canada) or any successor or equivalent legislations) or a
voluntary case under the U.S. Federal bankruptcy laws (as now
or hereafter in effect), (ii) file a petition seeking to take
advantage of any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, (iii) consent to or fail
to contest in a timely and appropriate manner any petition
filed against it in any proceedings or involuntary case under
such bankruptcy laws or other laws, (iv) apply for, or consent
to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or the like of itself or of a
substantial part of its assets, domestic or foreign, (v) admit
in writing its inability to pay, or generally not be paying,
its debts (other than those that are the subject of bona fide
disputes) as they become due, (vi) make a general assignment
for the benefit of creditors, or (vii) take any corporate or
partnership action for the purpose of effecting any of the
foregoing; or
(b) Involuntary: (i) any proceedings or case shall be commenced
against the Borrower, any Guarantor or any Restricted Entity
or all or a substantial part of the property of the Borrower,
any Guarantor or any Restricted Entity seeking (y) relief
under the laws referred to above in paragraph (a) of this
Section 14.1.4 (as now or hereafter in effect) or under any
other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition or
adjustment of debts, or (z) the appointment of a trustee,
receiver, custodian, liquidator or the like of the Borrower,
any Guarantor or any Restricted Entity, and such proceedings
or case shall continue undismissed and unstayed for a period
of 45 days, or (ii) an order granting the relief requested in
such proceedings or case against the Borrower, any Guarantor
or any Restricted Entity shall be made, granted or entered;
provided, however, in the case of any Restricted Entity other than the Borrower
or any Guarantor, that the foregoing circumstances or events have a Material
Adverse Effect;
14.1.5 ERISA: (a) any Termination Event shall occur with respect to any
Benefit Plan of the Borrower, any Guarantor that is a United States
Person, any of the US Restricted Entities or any ERISA Affiliate of any
of the foregoing, (b) any accumulated funding deficiency (as defined in
Section 302 of ERISA) shall exist at any time with respect to any such
Benefit Plan in an amount in excess of an amount equivalent to 4% of
QPI's Equity at such time, (c) any Person shall engage in any
prohibited transaction involving any such Benefit Plan, (d) the
Borrower, any Guarantor that is United States Person, a US Restricted
Entity or any ERISA Affiliate of any of the foregoing shall be in
"default" (as defined in ERISA Section 4219(c)(5)) with respect to
payments owing to
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any such Benefit Plan that is a multiemployer Benefit Plan as a result
of such Person's complete or partial withdrawal (as described in ERISA
Section 4203 or 4205) therefrom, (e) the Borrower, any Guarantor that
is United States Person, a US Restricted Entity or any ERISA Affiliate
of any of the foregoing shall fail to pay when due an amount that is
payable by it to the PBGC or to any such Benefit Plan under Title IV of
ERISA, or (f) a proceeding shall be instituted by a fiduciary of any
such Benefit Plan against the Borrower, any Guarantor that is a United
States Person, a US Restricted Entity or any ERISA Affiliate of any of
the foregoing to enforce ERISA Section 515 and such proceeding shall
not have been dismissed within 30 days thereafter, except that no event
or condition referred to in paragraphs (a) through (f) shall constitute
an Event of Default if it, together with all other such events or
conditions at the time existing, has not subjected, and in the
reasonable determination of the Majority Lenders will not subject the
Borrower, any Guarantor that is United States Person or a US Restricted
Entity to aggregate liabilities, at any time, that exceed an amount
equivalent to 4 % of QPI's Equity at such time;
14.1.6 Judgment: a final judgment or order shall be entered against the
Borrower, any Guarantor or any Restricted Entity by any court, and (a)
in the case of a judgment or order for the payment of money, (i) such
judgment or order shall be for the payment of money in excess of
$25,000,000 (to the extent not fully covered by valid and collectible
insurance provided by solvent, unaffiliated insurers) and (ii) either
(y) such judgment or order shall continue undischarged and unstayed for
a period of 60 days or (z) enforcement proceedings shall have been
commenced upon such judgment or order, and (b) in the case of any
judgment or order for other than the payment of money, such judgment or
order could, together with all other such judgments or orders, have a
Materially Adverse Effect on QPI and the Restricted Entities taken as a
whole;
14.1.7 Invalidity or Unenforceability: a court of competent jurisdiction shall
render a judgment or order, or any law, ordinance, decree or regulation
shall be enacted, the effect of which is to render any material
provision of the Loan Documents invalid, not binding or unenforceable
or any Loan Document shall cease to be in full force and effect and
valid and enforceable, provided that if such matter is (in the opinion
of the Administrative Agent) capable of being remedied, the Borrower
shall have failed, within 30 days thereafter to furnish or cause to be
furnished to the Lenders replacement documents evidencing and, where
applicable, securing the Indebtedness under the Loan Documents which
are adequate in the opinion of the Administrative Agent, or if any Loan
Party gives notice of termination of, or otherwise attempts to
terminate or deny its liability under a Loan Document;
14.1.8 Cross-Default:
(a) with respect to any Indebtedness of a Loan Party or any other
Restricted Entity (other than under the Credit Facilities, the
US Holdings Revolving Credit Agreement, the Existing QPI
Facility, the Existing Indentures and Non-Recourse
Indebtedness) in the aggregate outstanding principal amount of
$25,000,000:
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(i) failure to pay, in accordance with its terms and when
due and payable (subject to any applicable grace
period), any of the principal or interest of such
Indebtedness, or any such Indebtedness shall, in
whole or in part, have been required to be repaid
prior to the stated maturity thereof, in accordance
with the provision of any agreement evidencing,
providing for the creation of or concerning such
Indebtedness, or
(ii) (y) any event shall have occurred and be continuing
that accelerates such maturity or requires such
repayment or permits (or, with the passage of time or
the giving of notice or both, would permit) any
holder or holders of such Indebtedness, any trustee
or agent acting on behalf of such holder or holders
or any other Person so to accelerate such maturity or
require any such repayment, and said holder or
holders, trustee or agent, acting on behalf of such
holder or holders have accelerated said maturity or
required such repayment and (z) if the agreement
evidencing, providing for the creation of or
concerning such Indebtedness provides for a cure
period for such event, such event shall not be cured
prior to the end of such cure period,
(b) any default by any Loan Party under any Loan Party Guarantee,
or
(c) any Event of Default under (and as defined in) (i) the
Existing QPI Facility, (ii) the US Holdings Revolving Credit
Agreement or (iii) after the Tender Offer Funding Date, any of
the Existing Indentures,
provided further that no Event of Default shall be deemed to have occurred if
the failure to pay or perform under the relevant agreement is waived, rescinded
or annulled in writing by the relevant creditor(s);
14.1.9 Environmental Claims: the Borrower, any Guarantor, any Restricted
Entity or any Environmental Affiliate of any of the foregoing shall
have failed to obtain any Environmental Permit necessary for the
management, use, control, ownership or operation of its business,
property or assets, or any such Environmental Permit shall be revoked,
terminated, or otherwise cease to be in full force and effect, in each
case, if the existence of such condition could reasonably be expected
to have a Materially Adverse Effect on QPI and the Restricted Entities,
taken as a whole; or
14.1.10 Material Adverse Effect: there is or occurs any event or circumstance
which has a Material Adverse Effect.
Section 14.2 Acceleration
Upon the occurrence and during the continuance of any Event of Default, the
Administrative Agent on behalf of the Lenders may, and if so requested by the
Majority Lenders shall, declare the Aggregate Commitment to be terminated and
reduced to zero and thereby terminate the right of the Borrower to apply for
further Borrowings, and in addition the Administrative Agent may, and if so
requested by the Majority Lenders shall, by written notice to the Borrower
declare all Indebtedness and liabilities of the Borrower outstanding to the
Lenders and the Administrative
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Agent hereunder to be immediately due and payable without presentation,
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower, provided that the Aggregate Commitment and the
right of the Borrower to apply for further Borrowings shall automatically be
terminated and all Indebtedness and liabilities of the Borrower to the Lenders
and the Administrative Agent outstanding hereunder shall be immediately due and
payable without any written notice to the Borrower or any other Loan Party as
provided above and without any other presentation, presentment, demand, protest
or other notice of any kind if an Event of Default has occurred in respect of
the Borrower pursuant to Section 14.1.4. In such event, the Borrower shall pay
immediately to the Administrative Agent for the account of the Lenders and the
Borrower hereby acknowledges that it shall be indebted to the Administrative
Agent for the payment of all amounts owing or payable by it under this
Agreement, failing which all rights and remedies of the Administrative Agent and
the Lenders shall thereupon become enforceable and such payment to the
Administrative Agent when made shall be deemed to have been made in discharge of
the Borrower's obligations hereunder, and the Administrative Agent shall
distribute such proceeds among the Lenders as provided herein.
Section 14.3 Notices
Save as otherwise expressly provided for herein, no notice of any kind shall be
required to be given to any Loan Party by the Administrative Agent or the
Lenders for the purpose of putting the Borrower in default, the latter being in
default by the mere lapse of time allowed for the performance of an obligation
or by the mere happening of an event or circumstance constituting an Event of
Default.
ARTICLE XV
REMEDIES
Section 15.1 Remedies Cumulative
Subject to Section 16.1 and for greater certainty, it is expressly understood
and agreed that the rights and remedies of the Lenders and the Administrative
Agent under this Agreement are cumulative and are in addition to and not in
substitution for any rights or remedies provided by law; any single or partial
exercise by the Administrative Agent or any Lender of any right or remedy for a
default or breach of any term, covenant, condition or agreement herein contained
shall not be deemed to be a waiver of or to alter, affect or prejudice any other
right or remedy or other rights or remedies to which the Administrative Agent or
any Lender may be lawfully entitled for the same default or breach, and any
waiver by the Administrative Agent or any Lender of the strict observance,
performance or compliance with any term, covenant, condition or agreement herein
contained, and any indulgence granted by the Administrative Agent or any Lender,
shall be deemed not to be a waiver of that or any subsequent default.
The Administrative Agent on behalf of the Lenders acting on the instructions of
the Majority Lenders, or failing such action by the Administrative Agent, the
Majority Lenders, may, to the extent permitted by Applicable Law, bring suit at
law, in equity or otherwise for any available relief or purpose including but
not limited to (a) the specific performance of any covenant or agreement
contained in this Agreement, or in any other document given pursuant to or
incidental
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to this Agreement, (b) an injunction against a violation of any of the terms
hereof or thereof, (c) the exercise of any power granted hereby or thereby or by
law, or (d) obtaining and enforcing judgment for any and all amounts due in
respect of the Borrowings or amounts otherwise due hereunder or under any
documents given in connection with this Agreement.
ARTICLE XVI
WAIVER OF DEFAULT
Section 16.1 Waiver of Default
(a) If at any time after the occurrence of an Event of Default,
the Borrower offers to cure completely all Events of Default
and to pay all expenses (including Counsels' fees and
disbursements), advances and damages to the Administrative
Agent for the account of the Lenders and itself consequent on
such Event of Default, with interest at the rates then
applicable to the respective outstanding Borrowings, then the
Administrative Agent on behalf of the Lenders may, but shall
not be obligated to, accept such offer and payment, but such
action shall not affect any subsequent Event of Default or
impair any rights consequent thereon;
(b) no waiver by the Administrative Agent on behalf of the Lenders
of any Event of Default shall in any way be, or be construed
to be, a waiver of any future or subsequent Event of Default,
to the extent permitted by Applicable Law; and
(c) no Event of Default may be waived or discharged orally but (in
each case) only by an instrument in writing signed by the
Administrative Agent on behalf of the Lenders, subject however
to the provisions of Section 17.12.1.
ARTICLE XVII
THE ADMINISTRATIVE AGENT AND THE LENDERS
Section 17.1 Authorization of Administrative Agent
Each Lender irrevocably appoints and authorizes the Administrative Agent to take
all action as agent on its behalf and to exercise such powers and perform such
duties under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with all powers
reasonably incidental thereto.
Without restricting the foregoing, the Administrative Agent is specifically
authorized to execute or accept all or any of the Loan Party Guarantees and all
ancillary documents on behalf of the Lenders, if and when deemed appropriate by
the Administrative Agent, and to take all actions as it may deem appropriate to
render the Loan Party Guarantees effective.
The Administrative Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights which may be vested in it
by, and with respect to taking or refraining from taking any action or actions
which it may be able to take under or in respect of,
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the Loan Documents, unless the Administrative Agent shall have been instructed
by the Majority Lenders to exercise such rights or to take or refrain from
taking such action, the whole subject to the provisions of Section 17.15.
Neither the Administrative Agent nor any director, officer, employee, attorney,
trustee, advisor or agent of the Administrative Agent shall incur any liability
under or in respect of the Loan Documents with respect to anything which it may
do or refrain from doing in the reasonable exercise of its judgment or which may
seem to it to be necessary or desirable in the circumstances, except for its
gross negligence or wilful misconduct.
As to matters not expressly provided for by this Agreement, the Administrative
Agent is not required to exercise any discretion or to take any action (and is
fully protected in so acting or refraining from acting upon the instructions of
the Majority Lenders) and such instructions shall be binding upon all Lenders;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes it to personal liability or that is contrary to this
Agreement or Applicable Law.
The Borrower may rely on any action taken or consent given by the Administrative
Agent who purports to be acting in accordance with the terms of this Agreement.
Section 17.2 Notification of Borrowings, Repayments, Etc.
The Administrative Agent shall promptly notify each Facility A Lender or
Facility B Lender, as applicable, in writing upon receipt by the Administrative
Agent of any notice of a Borrowing pursuant to Section 3.6, a repayment, a
prepayment and/or cancellation pursuant to Section 3.9, a conversion pursuant to
Section 3.10 or a renewal or non-renewal pursuant to Section 5.1.
Section 17.3 Details of Borrowings
The Administrative Agent shall promptly advise each Lender upon receipt by it of
a copy of any notice of Borrowing of the details thereof, including (as
applicable) the amount, Drawdown Date, Conversion Date and date of renewal of a
Borrowing and each Lender's participation therein, determined in accordance with
this Agreement which determination shall, except in the case of manifest error,
be binding upon the Lenders.
With respect to Advances, each Lender agrees that by not later than 12:00 noon
on the Drawdown Date, it will make the amount of its participation therein
available at the Administrative Agent's Account for Payments for value on such
Drawdown Date.
The Administrative Agent shall be entitled to act upon the oral instructions of
any person who the Administrative Agent believes is a person the Borrower has
identified in writing from time to time to the Administrative Agent as being a
person authorized by the Borrower to give instructions regarding the drawing of
Borrowings and the Administrative Agent shall not be responsible for any error
or omission in such instructions or in the performance thereof except in the
case of gross negligence or wilful misconduct by the Administrative Agent or its
employees. Any such instructions shall be immediately confirmed in writing by
the Borrower to the Administrative Agent as provided hereunder.
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Section 17.4 Remittance of Amounts Received from the Borrower
Provided acceleration of the Indebtedness or other liabilities of the Borrower
pursuant to the provisions of Section 14.2 has not occurred and subject to
Section 17.5, upon receipt from the Borrower or otherwise of any payments of
principal, interest or other payments made in connection with this Agreement
(other than amounts payable to the Administrative Agent by the Borrower by way
of fees for the sole account of the Administrative Agent or any other Finance
Party), the Administrative Agent shall use its best efforts to pay to each
Lender at its respective Branch of Account, amounts equal to its respective pro
rata portion thereof, determined by the Administrative Agent in accordance with
this Agreement on the same Business Day as such amounts are received by the
Administrative Agent.
Section 17.5 Assumption as to Payments
17.5.1 Assumed Payment from Borrower: without affecting the obligations of the
Lenders or the Borrower contained in this Agreement, unless the
Administrative Agent has been notified in writing by the Borrower not
less than one Business Day prior to the date on which any payment to be
made by the Borrower hereunder is due that the Borrower does not intend
to remit such payment, the Administrative Agent may, at its discretion,
assume that the Borrower has remitted such payment when so due and the
Administrative Agent may, at its discretion and in reliance upon such
assumption, make available to each Lender entitled thereto on such
payment date an amount equal to such Lender's Lender's Proportion of
such assumed payment. If it proves to be the case that the Borrower has
not in fact remitted such payment to the Administrative Agent, each
Lender shall forthwith on demand repay to the Administrative Agent the
amount of such assumed payment made available to such Lender, together
with interest thereon until the date of repayment thereof at a rate
determined by the Administrative Agent (such rate to be conclusive and
binding on such Lender) in accordance with its usual banking practice
for advances in the currency in which such payment is due to banks or
financial institutions of like standing to such Lender; and
17.5.2 Assumed Payment from Lender: without affecting the obligations of the
Lenders or the Borrower contained elsewhere in this Agreement, unless
the Administrative Agent has been notified in writing by a Lender no
less than one Business Day before a Drawdown Date that such Lender does
not intend to make available to the Administrative Agent such Lender's
Lender's Proportion of a Borrowing to be effected on such Drawdown
Date, the Administrative Agent may assume that such Lender will be
making its Lender's Proportion of such Borrowing available to the
Administrative Agent on such Drawdown Date and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower
an amount corresponding to such Lender's Proportion. If such Lender
fails to make its Lender's Proportion of the relevant Borrowing
available to the Administrative Agent on the Drawdown Date and the
Borrower has actually received the proceeds of the relevant Borrowing,
the Administrative Agent shall be entitled to recover on demand the
amount of such Lender's Proportion of the Borrowing from such Lender,
together with interest thereon until the date of recovery at a rate
determined by the Administrative Agent (such rate to be conclusive and
binding on such Lender) in accordance with its usual banking
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practices for advances in the currency in which such payment is due to
banks or financial institutions of like standing to such Lender or, at
the option of the Administrative Agent, it shall be entitled to recover
the said amount from the Borrower on demand. Interest shall accrue on
such amount advanced to the Borrower during the period prior to such
recovery at a rate per annum equal to the rate applicable to the
Borrowing and, notwithstanding Sections 4.1 and 8.4, shall be paid by
the Borrower to the Administrative Agent for its own account. Nothing
herein shall be deemed to relieve any Lender from its obligations to
fulfill its Commitment in accordance with the provisions hereof or to
prejudice any rights which the Borrower might have against any Lender
as a result of any default by such Lender hereunder.
Section 17.6 Change in Circumstances, Illegality, Increased Costs, Etc.
Each Lender wishing to avail itself of the provisions of Section 5.2, 8.5, 8.6
or 8.7 shall so advise the Administrative Agent and shall provide the
Administrative Agent with all appropriate instructions as to any notification to
be given to the Borrower on such Lender's behalf in respect thereof and shall
also provide the Administrative Agent with all appropriate information on the
underlying circumstances, events or changes affecting the London interbank
eurodollar market or a law, regulation, treaty or official directive or notice
or creating, imposing or increasing a Tax, the whole with details and accuracy
sufficient to satisfy the Borrower.
Section 17.7 Notice of Event of Default
In the event that an officer or employee of a Lender familiar with the terms of
this Agreement learns of any Default or receives any material information from
any Loan Party in respect thereof, such information shall be promptly notified
to the Administrative Agent who shall promptly notify the other Lenders thereof.
Section 17.8 Pro Rata Treatment of Advances and Borrowings
17.8.1 Adjustments to Loans and Repayments: to the extent reasonably
practicable, all Borrowings and reborrowings by way of Loans under the
Credit Facilities, and all repayments of the Loans, will be made and
applied in a manner so that the proportion borne by the total amount of
the Loans owing to each Lender under a particular Credit Facility to
the total amount of the Loans owing to all Lenders under that Credit
Facility will at all times be equal to the proportion borne by the
Commitment of that Lender under such Credit Facility to the Facility A
Total Commitment or the Facility B Total Commitment, as the case may
be; and
17.8.2 Borrower's Agreement: the Borrower agrees to be bound by and to do all
things reasonably necessary or appropriate to give effect to any and
all adjustments made by and between the Lenders to give effect to this
Section 17.8.
Section 17.9 Adjustments among Lenders after Acceleration
17.9.1 Adjustments within a Credit Facility: the Lenders agree that after any
acceleration pursuant to Section 14.2 or after the cancellation or
termination of any part of the Aggregate Commitment, they will at any
time and from time to time upon the request
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of any Lender through the Administrative Agent purchase portions of the
Borrowings made available by the other Lenders which remain
outstanding, and make any other adjustments which may be necessary or
appropriate, in order to ensure that the proportion borne by the amount
of the Borrowings made available by each Lender which remain
outstanding under each Credit Facility to the total amount of the
Borrowings made available by all the Lenders which remain outstanding
under such Credit Facility, as adjusted pursuant to this Section 17.9
or Section 17.8, is equal to the proportion borne by the Commitment of
that Lender under such Credit Facility to the Facility A Total
Commitment or the Facility B Total Commitment, as the case may be,
immediately prior to the cancellation or termination thereof;
17.9.2 Adjustments between the Credit Facilities: the Lenders agree that after
any acceleration pursuant to Section 14.2 or after the cancellation or
termination of the Aggregate Commitment, the amount of any repayment
made by the Borrower under this Agreement, and the amount of any
proceeds of the exercise of any rights or remedies of the Lenders under
this Agreement and the other Loan Documents, which is to be applied
against amounts owing hereunder as principal, will be so applied in a
manner such that, after giving effect to such application, the
proportion borne by the total amount of Borrowings which remain
outstanding under a particular Credit Facility to the total amount of
Borrowings outstanding under all the Credit Facilities is equal to the
proportion borne by the total amount of the Borrowings of all Lenders
under that Credit Facility to the total amount of the Borrowings of all
Lenders under all Credit Facilities outstanding on the earlier of (i)
the time when the Administrative Agent gives notice to all Lenders of
the Event of Default giving rise to such acceleration, cancellation or
termination and (ii) the time of such acceleration, cancellation or
termination, the whole subject to adjustment as contemplated by
Sections 17.9.1 and 17.8;
17.9.3 Application of Adjustments: for greater certainty, the Lenders
acknowledge and agree that without limiting the generality of the
provisions of Sections 17.9.1 and 17.9.2, such provisions will have
application if and whenever any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, compensation, or otherwise) on account of any monies owing or
payable by the Borrower to it hereunder in excess of its Lender's
Proportion of payments on account of monies owing by the Borrower to
all the Lenders hereunder (collectively, the "Obligations"), and in
such event, such Lender shall promptly purchase from the other Lenders
participations in the Obligations held by the other Lenders in such
amounts, and make such other adjustments from time to time as shall be
equitable to the end that all the Lenders shall share the benefit of
such payment pro rata in accordance with the unpaid principal of and
interest on the Obligations then due to each of them. To such end, all
of the Lenders shall make appropriate adjustments among themselves (by
the resale of participations sold or otherwise) if all or any portion
of such excess payment is thereafter rescinded or must otherwise be
restored. The Borrower agrees, to the fullest extent it may effectively
do so under applicable law, that any Lender so purchasing a
participation in the Obligations held by the other Lenders may exercise
all rights of set-off, banker's lien, counterclaim, or similar rights
with respect to such participation as fully as if such Lender were a
direct holder of Obligations in the amount of such
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participation. Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness, liability, or obligation of the
Borrower; and
17.9.4 Borrower's Acknowledgement: the Borrower agrees to be bound by and to
do all things reasonably necessary or appropriate to give effect to any
and all purchases and other adjustments made by and between the Lenders
pursuant to this Section 17.9.
Section 17.10 Sharing among the Lenders
The Administrative Agent and the Lenders agree among themselves that subject to
the provisions of Sections 5.2(B), 8.4, 8.6.2(b), 8.7(b), 17.8 and 17.9 all sums
received by the Administrative Agent for the account of the Lenders and by the
Lenders relative to this Agreement (whether received by voluntary payment, by
the exercise of the right of set-off, compensation or by counterclaim,
cross-action or as proceeds of realization of any security) shall be shared by
each Lender in the proportion to which the amount owing to such Lender hereunder
bears to the amount owing to all the Lenders hereunder.
Section 17.11 Cash Collateral Accounts
Upon the occurrence of an Event of Default and notwithstanding the provisions of
Section 8.4 and in addition to any other rights or remedies of the Lenders under
the Loan Documents, the Lenders, as and by way of collateral security, shall be
entitled to deposit and retain in an account to be maintained by the
Administrative Agent on behalf of the Lenders (bearing interest at the rates of
the Administrative Agent as may be applicable in respect of other deposits of
similar amounts for similar terms) amounts which are received by the Lenders
from the Borrower hereunder or as proceeds of realization of any guarantee or
security given by a Loan Party under the Loan Documents to the extent such
amounts may be required to satisfy any contingent or unmatured obligations or
liabilities of a Loan Party to the Lenders or the Administrative Agent under the
Loan Documents.
Section 17.12 Instructions from Lenders
17.12.1 Waivers, Amendments, Etc.:
(a) Consent of Majority Lenders: subject to the provisions of
paragraph (b) below, the provisions of the Loan Documents may
only be amended or waived, on behalf of the Lenders, by an
instrument in writing (and not orally) in each case signed by
or on behalf of the Administrative Agent, and any term,
covenant, agreement or condition contained in the Loan
Documents may be amended with the consent of the Majority
Lenders, and such amendments shall be binding upon all the
parties hereto, or compliance therewith may be waived (either
generally or in a particular instance and either retroactively
or prospectively) by the Majority Lenders, and such waiver
shall be binding upon all the Lenders, and in any such event
the failure to observe, perform or discharge any such
covenant, condition or obligation (whether such amendment is
executed or such
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consent is given before or after such failure) shall not be
construed as a breach of such covenant, condition or
obligation or an Event of Default.
(b) Consent of all Lenders: notwithstanding paragraph (a) above,
where an amendment, consent or waiver relates to:
(i) an extension or reduction of the duration of a Credit
Facility or of the maturity of the Borrowings or of
the time for any payments required of the Borrower
hereunder,
(ii) any change in the Facility A Total Commitment or
Facility B Total Commitment,
(iii) any decrease (other than in accordance with the
provisions of Section 4.4) in the Applicable Margin,
the Commitment Fee or any amount payable by the
Borrower hereunder,
(iv) the types of Borrowings available hereunder,
(v) a change in the financial covenants set forth in
Section 11.2.10 provided that a waiver of compliance
therewith shall only require the consent of the
Majority Lenders,
(vi) subject to Section 11.2.5, a change of the Borrower,
or the assignment or transfer by it of its rights and
obligations under this Agreement,
(vii) subject to Section 11.2.5, a change or release of any
Loan Party Guarantee, or
(viii) a change in this Section 17.12 or a reduction in the
percentage specified in the definition of "Majority
Lenders" hereunder,
then such amendment, consent or waiver shall require the
consent of all the Lenders and shall be made in writing by the
Administrative Agent, whereupon such amendment, consent or
waiver shall be binding upon all the Lenders.
In circumstances other than those contemplated in the foregoing
provisions of paragraph (b) above, an amendment, consent, waiver,
discharge, release or termination approved by the Majority Lenders
shall be binding upon all the Lenders; and
17.12.2 Notices of Defaults: upon the occurrence of any breach or failure
referred to in Section 14.1 of which an officer or employee of the
Administrative Agent familiar with the terms of this Agreement has
acquired actual knowledge, the Administrative Agent will give written
notice to this effect to all of the Lenders and will provide the
Lenders with any material information it may receive from the Borrower
in respect thereof.
Upon the occurrence of an Event of Default, the Administrative Agent
shall give to the Borrower the written notice provided for in Section
14.2 if directed to do so by the
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Majority Lenders, and such action will be binding upon all the Lenders,
provided that the absence of such direction shall not prevent the
Administrative Agent, at all times, from taking or refraining from
taking such actions or asserting such rights as it deems in its
discretion to be advisable for the protection of the Lenders.
Section 17.13 Reliance on Writings and Legal Advice
The Administrative Agent shall not incur any liability under or in respect of
any Loan Document by acting or relying upon any writing, notice, certificate,
telecopier message, telex, cable, statement, order or other document or
telephone conversation believed by the Administrative Agent to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons.
The Administrative Agent may consult with Counsel (including Counsel for any
Loan Party), independent public accountants and other experts selected by it and
shall not be liable for any action reasonably taken or omitted to be taken in
good faith by it in accordance with the advice of such Counsel, accountants or
experts pertaining to the Loan Documents and its duties hereunder. If the
Administrative Agent seeks to verify the signatures or the validity of
instructions, demands, requests or notices and is unable to do so to its
satisfaction, it may delay acting thereon or refuse to act thereon, provided
that nothing herein and no verification as aforesaid at any time by the
Administrative Agent shall obligate the Administrative Agent to make such
verifications in any particular case.
Section 17.14 Costs and Expenses
Each Lender agrees that it will, on demand, reimburse the Administrative Agent
pro rata in accordance with such Lender's respective Commitments for any and all
reasonable costs, expenses and disbursements (excluding normal overhead and
salary expenses of the Administrative Agent's employees incurred in connection
with the normal administration of the Loan Documents) which may be incurred or
made by the Administrative Agent in connection with the performance and
enforcement of this Agreement and the other Loan Documents for which the
Administrative Agent is not promptly reimbursed at any time by or on behalf of
the Borrower, unless such costs or expenses and disbursements arise out of the
Administrative Agent's gross negligence or wilful misconduct. The Administrative
Agent shall not be obliged to expend its own funds or otherwise incur any
financial obligations in connection with the Loan Documents unless the
Administrative Agent is so reimbursed.
Section 17.15 Authority of Administrative Agent to Act
The Administrative Agent shall have the right, subject to the provisions of this
Agreement, to take such actions as it deems fit or refrain from taking any
action, or to give agreements, consents, approvals or instructions to the
Borrower on behalf of the Lenders in respect of all matters referred to in or
contemplated by this Agreement. However, subject to Section 17.12, the
Administrative Agent shall not waive a predisbursement condition or an Event of
Default, or make decisions or give consents which could materially impact the
Lenders' interest without first obtaining the consent of at least the Majority
Lenders in respect thereof. Each Lender agrees that a decision by the Lenders
taken pursuant to this Section 17.15 with respect to any matters specifically
referred to in this Agreement as being governed by a decision of such Lenders
shall be binding on all the Lenders.
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Section 17.16 Disclaimer
None of the Arrangers and the Agents makes any representation or warranty, or
accepts any responsibility, with respect to the due execution, legality,
validity, sufficiency or enforceability of the Loan Documents or any instrument
or document referred to therein or relative thereto. None of the Arrangers and
the Agents assumes any responsibility for the financial condition of the Loan
Parties or for the payment of any of the Borrowings. None of the Arrangers and
the Agents assumes any responsibility with respect to the accuracy,
authenticity, legality, validity, sufficiency or enforceability of any
documents, papers, materials or other information furnished by the Loan Parties
or any other Person to the Agents, the Arrangers or any Lender in connection
with the Loan Documents or any matter referred to therein.
The Administrative Agent shall not be liable to any Lender for any error in
judgment or for any action taken or omitted by the Administrative Agent or with
respect to anything which the Administrative Agent may do or refrain from doing
in the reasonable exercise of its own judgment or which may seem to the
Administrative Agent to be necessary or desirable in the circumstances, except
for gross negligence or wilful misconduct, and the Administrative Agent will
exercise the same care in administering the Loan Documents as the Administrative
Agent exercises with respect to credit facilities which the Administrative Agent
alone makes and the Administrative Agent shall have no further responsibility to
the Lenders. In all cases, the Administrative Agent shall be fully protected in
acting or refraining from acting under the Loan Documents in accordance with the
instructions of the Majority Lenders, save in respect of matters specified in
Section 17.12.1(b).
Section 17.17 Indemnification
Each Lender severally agrees to indemnify the Administrative Agent (to the
extent not promptly reimbursed by the Borrower), ratably in accordance with its
portion of the Borrowings outstanding under this Agreement (or, if no Borrowing
is then outstanding hereunder, ratably in accordance with its Commitments), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, Taxes or disbursements of any kind
and nature whatsoever which may be imposed on, incurred by, or asserted against
the Administrative Agent in its capacity as such in any way relating to or
arising out of the Loan Documents, the Transaction Documents, the Tender Offer,
the Merger or any other documents contemplated by or referred to therein or the
transactions contemplated thereby (including, without limitation, the costs and
expenses which the Borrower is obligated to pay under Section 12.1) or any
action taken or omitted by the Administrative Agent in enforcing any of the
terms thereof or preserving any rights thereunder, provided that no Lender shall
be liable for any of the foregoing to the extent they arise from the
Administrative Agent's gross negligence or wilful misconduct. Without limiting
the generality of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its Lender's Proportion of
out-of-pocket expenses (including the fees and disbursements of Counsel)
incurred by the Administrative Agent with the approval of the Majority Lenders
in connection with the determination or preservation of any rights of the
Administrative Agent or the Lenders under, or the enforcement of, or legal
advice in respect of rights or responsibilities under, the Loan Documents to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower. Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and
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obligations of each Lender contained in this Section 17.17 shall survive the
payment in full of principal, interest and all other amounts payable hereunder
and under the other Loan Documents.
Section 17.18 Acknowledgement of Lenders
Each Lender acknowledges to the Administrative Agent, the other Agents and the
Arrangers that it has been, and will continue to be, solely responsible for
making its own independent appraisal of and investigation into the financial
condition, creditworthiness, affairs, status and nature of the Loan Parties and
accordingly each Lender confirms to the Administrative Agent, the other Agents
and the Arrangers that it has not relied, and will not hereafter rely, on the
Administrative Agent:
(a) to check or inquire on its behalf into the adequacy, accuracy
or completeness of any information provided by any Loan Party
or in connection with the Loan Documents, the Transaction
Documents, the Tender Offer, the Merger or any other documents
contemplated by or referred to therein or the transactions
contemplated thereby (whether or not such information has been
or is hereafter circulated to such Lender by the
Administrative Agent); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, affairs, status or nature of any
of the Loan Parties, Acquisition Sub or WCP.
In addition, each Lender acknowledges that a copy of this Agreement and of the
Schedules hereto and of the other Loan Documents have been made available to it
for its review and that it is satisfied with the form and substance of this
Agreement and the Schedules hereto and of the other Loan Documents.
Section 17.19 Administrative Agent's Duty to Deliver Documents
The Administrative Agent shall promptly deliver to each of the Lenders, at their
respective Branches of Account, such documents, papers, materials and other
information as are furnished by any Loan Party to the Administrative Agent on
behalf of the Lenders pursuant to this Agreement, but shall have no other
obligation to provide any Lender with any credit or other information whatsoever
with respect to the Loan Parties and shall be under no obligation to inquire as
to the performance by any Loan Party of its obligations hereunder.
Section 17.20 Other Transactions
Each Finance Party may, outside the scope of this Agreement, deal with the Loan
Parties in all transactions and may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally do any banking business with the Loan Parties, without having any
liability to account to the other Finance Parties therefor. With respect to
Royal's Commitment and its participation in the Borrowings, Royal shall have the
same rights and powers hereunder and under the other Loan Documents as any other
Lender and may exercise the same as though it were not the Administrative Agent.
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Section 17.21 No Preference
No Lender shall have, previous to this Agreement, entered into or shall,
subsequent to this Agreement, enter into any arrangement with the Borrower or
any other Person, without the prior written consent of the other Lenders, which
would have the effect of giving such Lender preference or priority over any
other Lender in respect of the indebtedness of the Borrower under this
Agreement.
Section 17.22 Submission of Information
In respect of any certificate or statement required to be delivered to the Loan
Parties by the Administrative Agent pursuant to this Agreement, each Lender
shall provide the Administrative Agent with all necessary information required
to complete such certificate or statement.
Section 17.23 Sharing of Information Concerning this Agreement
Each Loan Party authorizes the Arrangers, the Administrative Agent, the other
Agents and the Lenders to share with each other and, subject to the provisions
of Section 18.6, with prospective Assignees of and Participants in the Credit
Facilities, any information possessed by them regarding the Loan Parties or
relating to the liability and indebtedness of the Loan Parties under this
Agreement and to payments received by the Lenders from the Loan Parties.
Section 17.24 No Association among Lenders
Nothing contained in this Agreement and no action taken pursuant to it shall, or
shall be deemed to, constitute the Lenders a partnership, association, joint
venture or other similar entity.
Section 17.25 Successor Administrative Agent
Subject to the appointment and acceptance of a successor agent as provided in
this Section 17.25, the Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, and the Administrative
Agent may be removed at any time by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor agent with the approval of the Borrower if prior to an Event of
Default (such approval not to be unreasonably withheld). If no successor agent
shall have been appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring agent, then the
retiring agent may, on behalf of the Lenders and with the approval of the
Borrower if prior to an Event of Default (such approval not to be unreasonably
withheld), appoint a successor agent. Upon the acceptance of any appointment as
Administrative Agent by a successor agent, such successor agent shall thereupon
succeed to and become vested with all the rights, powers, privileges,
obligations and duties of the retiring agent and shall be deemed for the
purposes of this Agreement to be the Administrative Agent, and the retiring
agent shall be discharged from any duties and obligations as such under the Loan
Documents arising from and after such date. After the retiring agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Agreement shall continue in effect for its benefit and for the benefit of the
Lenders in respect of any actions taken or omitted to be taken by the retiring
agent while it was acting as Administrative Agent.
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Section 17.26 Change of Address
The Administrative Agent shall promptly advise each Lender of any change in the
address of the Administrative Agent's Branch of Account or of the Administrative
Agent's Accounts for Payments; each Lender shall advise the Administrative Agent
of any change in the address of its Branch of Account.
Section 17.27 [Intentionally Omitted]
Section 17.28 Amendment of this Article XVII
Save and except for the provisions of Section 17.12, the provisions of this
Article XVII may be amended or added to, from time to time, by execution by the
Lenders and the Administrative Agent of an instrument in writing and such
instrument in writing shall validly and effectively amend or add to any or all
of the provisions of this Article XVII without requiring the execution of such
instrument in writing by any Loan Party provided such amendment or addition does
not adversely affect the rights or obligations of any Loan Party. The
Administrative Agent shall forward a copy of such written instrument to the
Borrower as soon as practicable following the execution thereof by the Lenders
and the Administrative Agent.
ARTICLE XVIII
SUCCESSORS AND ASSIGNS
Section 18.1 Benefit and Burden of this Agreement
This Agreement shall inure to the benefit of and be binding on the parties
hereto, their respective successors and any permitted assignees or transferees
of some or all of the parties' rights or obligations hereunder.
Section 18.2 The Loan Parties
The Loan Parties shall not assign or transfer all or any part of their rights or
obligations hereunder without the prior written consent of all Lenders.
Section 18.3 Assignment and Participation
(a) Any Lender (herein sometimes called a "Granting Lender") may,
at no cost to the Borrower, grant a participation in the
Credit Facilities to another Person (a "Participant"),
provided in each case that (i) the Granting Lender remains
fully liable for all of its obligations and responsibilities
hereunder to the same extent as if such participation had not
been granted, (ii) the Granting Lender administers the
participation of the Participant, and neither the Participant
nor the Borrower nor the Administrative Agent shall have any
rights against or obligations to one another, nor shall any of
them be required to deal directly with one another in respect
of the participation by such Participant and (iii) the
Participant does not thereby obtain voting rights hereunder,
other than in respect
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of reductions or postponements of amounts payable hereunder or
in respect of the release of all or substantially all the Loan
Party Guarantees.
(b) Any Lender (herein sometimes called an "Assigning Lender")
may, at no cost to the Borrower (save in the circumstances
described in Sections 5.2, 8.6.2 and 8.7), assign all or any
part of its rights to, and may have its obligations in respect
of the Credit Facilities assumed by, any other Lender or any
other Person (the "Assignee"); provided that no such
assignment may be effected to a Person other than a Lender or
an Affiliate of the Assigning Lender without the consents of
the Administrative Agent and QPI (which consents in each case
shall be evidenced by the execution by such Person of the
undertaking in the form of Schedule 18.3 referred to below and
shall not be unreasonably withheld), provided further that, in
the case of partial assignments, no such assignment may be
effected in tranches of less than $10,000,000 in the aggregate
(when combined with any amount assigned under the US Holdings
Revolving Credit Agreement) for the Assigning Lender and its
Affiliate(s), and multiples of US$1,000,000 in excess thereof,
and provided further that following a partial assignment by an
Assigning Lender, such Assigning Lender and its Affiliate(s)
shall retain (when combined with any amount of commitment
retained under the US Holdings Revolving Credit Agreement) a
Commitment of not less than $10,000,000 in the aggregate
hereunder and provided further that (i) notwithstanding the
foregoing, any Lender may, without the consent of the
Administrative Agent or QPI, assign as security, all or part
of its rights under the Loan Documents to any Federal Reserve
Bank of the United States of America and all or part of its
rights or obligations under the Loan Documents to any of its
Affiliates and (ii) if an Event of Default shall have occurred
and be continuing, such consent from QPI shall not be
required. Subject to the foregoing an assignment (other than
an assignment as security to any Federal Reserve Bank of the
United States of America) shall become effective when QPI, the
other Loan Parties and the Administrative Agent have been
notified of it by the Assigning Lender and have received from
the Assignee an undertaking (addressed to the Administrative
Agent, the Lenders and the Loan Parties) to be bound by this
Agreement and to perform the obligations assigned to it, in
form and substance to the effect of Schedule 18.3. Any such
Assignee shall be and be treated as a Lender for all purposes
of this Agreement, shall be entitled to the full benefit
hereof and of all the Loan Documents and shall be subject to
the obligations hereunder to the same extent as if it were an
original party in respect of the rights or obligations
assigned to it, and the Assigning Lender shall be released and
discharged accordingly and to the same extent.
Section 18.4 Limitation
No Lender shall be entitled to grant a participation pursuant to Section 18.3(a)
or an assignment pursuant to Section 18.3(b), as the case may be, if, as a
result, such participation or assignment results in any increased costs
(including, without limitation, any obligation to pay withholding
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tax or further sums pursuant to Section 8.5.1) to the Borrower in effect at the
time of such grant of participation or assignment.
Section 18.5 [Intentionally Omitted]
Section 18.6 Disclosure
Each Lender may disclose to any prospective Assignee or prospective Participant,
on a confidential basis, such information concerning the Loan Parties as it
considers appropriate, provided that such prospective Assignee or prospective
Participant agrees in writing to be bound and abide by the same standards with
respect to confidentiality as the Lenders have heretofore agreed to adhere to in
connection with the transactions contemplated by the Loan Documents with respect
to all such information concerning the Loan Parties which is not public
information.
Section 18.7 Processing and Recordation Fee
Upon the completion of each assignment pursuant to Section 18.3(b) (other than
an assignment by an Assigning Lender to an Affiliate of such Assigning Lender or
a security assignment in favor of a Federal Reserve Bank of the United States of
America), a processing and recordation fee of $3,500 shall be payable to the
Administrative Agent.
ARTICLE XIX
COMPENSATION
Section 19.1 Set-off, Compensation
Each Lender is authorized (but not obligated) at any time or from time to time
after the occurrence and during the continuance of an Event of Default, without
notice to any Loan Party or to any other Person, any such notice being expressly
waived by the Loan Parties, to set off, compensate and apply any and all
deposits (general or special) held for or in the name of a Loan Party and any
Indebtedness or liability at any time owing or payable by such Lender to or for
the credit of or the account of such Loan Party against and on account of the
obligations and liabilities of the said Loan Party owing or payable to such
Lender under this Agreement or the other Loan Documents, irrespective of
currency (which may be converted for this purpose at the "rate of exchange" as
set forth in Section 20.1) and of whether or not such Lender has made any demand
under this Agreement or the other Loan Documents and whether or not these
obligations and liabilities of the said Loan Party, or any of them, have
matured. The provisions of this Section 19.1 shall not restrict such rights as
the Lenders may be entitled to without relying upon the provisions of this
Agreement. For the purposes of the application of this Section 19.1, the Loan
Parties and the Lenders agree that the benefit of any term applicable to any
Lender's deposit, credit, indebtedness, liability or obligation (collectively
referred to in this Section 19.1 as the "Deposit") shall be lost immediately
before the time when such Lender shall exercise its rights under this Section
19.1 in respect of a relevant Deposit of such Lender. For the purposes of the
foregoing, in all operation of account agreements entered into between a Loan
Party and the Administrative Agent at any time and from time to time, as between
such Loan Party and the Administrative Agent (whether or not in its capacity as
Administrative Agent) any reference therein to the Administrative Agent as the
"Bank" shall mean the Administrative Agent as agent
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for the Lenders, subject to the terms of this Agreement, provided (a) that any
charges for the maintenance and operation of such account shall be payable for
the exclusive benefit of the Administrative Agent without any obligation on the
part of the Administrative Agent to share such payments with the Lenders and (b)
that any interest payable to such Loan Party with respect to deposits made in
such account shall be payable exclusively by the Administrative Agent without
any obligation or liability on the part of any Lender for the payment of such
interest.
ARTICLE XX
JUDGMENT CURRENCY
Section 20.1 Judgment Currency
If for the purpose of obtaining judgment in any court in any jurisdiction with
respect to this Agreement, it becomes necessary to convert into the currency of
such jurisdiction (herein called the "Judgment Currency") any amount due
hereunder in any currency other than the Judgment Currency, then conversion
shall be made at the rate of exchange prevailing on the Business Day preceding
(a) the date of actual payment of the amount due, in the case of proceedings in
the courts of any jurisdiction that will give effect to such conversion being
made on such day, or (b) the day on which the judgment is given, in the case of
proceedings in the courts of the Province of Quebec or of any other jurisdiction
(the applicable date as of which such conversion is made pursuant to this
Section being hereinafter called the "Judgment Conversion Date"). For this
purpose, "rate of exchange" means the rate at which the Administrative Agent
would be prepared on the relevant date to sell the currency of the amount due
hereunder in New York, New York against the Judgment Currency. In the event that
there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of payment of the amount due, the Borrower will, on
the date of payment, pay such additional amounts (if any) as may be necessary to
ensure that the amount paid on such date is the amount in the Judgment Currency
which, when converted at the rate of exchange prevailing on the date of payment,
is the amount then due under this Agreement in US Dollars. Any additional amount
due under this Section 20.1 will be due as a separate debt and shall not be
affected by judgment being obtained for any other sums due under or in respect
of this Agreement.
ARTICLE XXI
GOVERNING LAW
Section 21.1 Governing Law
The parties agree that this Agreement is conclusively deemed to be made under,
and for all purposes to be governed by and construed in accordance with, the
laws of the State of New York.
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ARTICLE XXII
NOTICE
Section 22.1 Address for Notice
Unless otherwise provided in this Agreement, any demand, request or notice to be
given under this Agreement shall be given by delivering the same or by mailing,
by registered mail, postage prepaid or by telexing by way of tested telex or by
telecopying the same, addressed (a) in the case of the Loan Parties, as
indicated opposite the names of the Loan Parties on the signature pages of this
Agreement, (b) in the case of the Administrative Agent, as indicated opposite
its name on the signature pages of this Agreement and (c) in the case of the
Lenders, as indicated opposite their names on the signature pages of this
Agreement, or to such other address as may be notified by any party to the
others pursuant to Section 22.2.
Section 22.2 Notice
Any such demand, request or notice sent as aforesaid shall be deemed to have
been received by the party to whom it is addressed (a) upon receipt, if
delivered or sent by registered mail, (b) on the Business Day next following the
date of transmission if telexed and the appropriate answerback is received and
(c) if telecopied before 3:00 p.m. on a Business Day, on that day provided a
clear transmission report is received by the sender and if telecopied after 3:00
p.m. on a Business Day, on the Business Day next following the date of
transmission; provided, however, that in the event normal mail service,
telecopier service or telex service shall be interrupted by strike, force
majeure or other cause, then the party sending the demand, request or notice
shall utilize any other mode of communication which shall ensure prompt receipt
of such demand, request or notice by the other party or parties.
ARTICLE XXIII
MISCELLANEOUS
Section 23.1 Severability
Any provision of this Agreement which is or becomes prohibited or unenforceable
in any jurisdiction does not invalidate, affect or impair the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction does not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 23.2 [Intentionally Omitted]
Section 23.3 Survival of Representations and Undertakings
The representations and warranties made by the Loan Parties in Article II of
this Agreement and the covenants, undertakings and agreements contained in this
Agreement survive the execution and delivery of this Agreement and continue in
full force and effect until the full payment and satisfaction of all liabilities
and obligations of the Loan Parties to the Lenders under this Agreement and the
other Loan Documents.
-94-
Section 23.4 Whole Agreement
This Agreement and the other Loan Documents constitute the whole and entire
agreement between the parties hereto with respect to the subject matter hereof,
and, save as contemplated herein, cancels and supersedes any prior offers,
agreements, undertakings, declarations and representations, written or verbal in
respect thereof.
Section 23.5 Amendments
No amendment, modification or waiver of any provision of this Agreement or
consent to any departure by the Loan Parties from any provision of this
Agreement will in any event be effective unless it is in conformity with
Sections 17.12 and 17.28 and then the amendment, modification, waiver or consent
will be effective only in the specific instance, for the specific purpose and
for the specific length of time for which it is given.
Notwithstanding the foregoing paragraph, the Administrative Agent is hereby
authorized to correct any typographical error or other error of an editorial
nature in this Agreement and to substitute such corrected text in the
counterparts of this Agreement, provided that such corrections do not modify in
any manner the meaning or the interpretation of this Agreement.
Section 23.6 Counterparts
This Agreement may be executed in any number of counterparts, each of which when
executed and delivered is an original but all of which taken together constitute
one and the same instrument; any party may execute this Agreement by signing any
counterpart of it and may communicate such signing by telecopier or otherwise.
Section 23.7 Further Assurances
Each party hereto shall do all such further acts and execute and deliver all
such further documents as shall be reasonably required in order to fully perform
and carry out the terms of this Agreement.
Section 23.8 [Intentionally Omitted]
Section 23.9 Good Faith and Fair Consideration
The Loan Parties acknowledge and declare that they have entered into this
Agreement freely and of their own will. In particular, the Loan Parties
acknowledge that this Agreement was negotiated by them and the Finance Parties
in good faith.
Section 23.10 Term of Agreement
The term of this Agreement is until the later of the termination of the
Aggregate Commitment and payment in full of all the obligations of the Borrower
incurred pursuant to this Agreement.
-95-
Section 23.11 Formal Date
This Agreement shall bear the formal date of August 12, 1999, notwithstanding
the actual date of execution thereof by the parties hereto and may be referred
to as bearing such date.
Section 23.12 One Step Transaction
The parties hereto agree that, if on or prior to September 13, 1999, the
Administrative Agent shall receive from QPI notice of the intent of QPI and WCP
to terminate the Tender Offer and to proceed with the Merger in accordance with
the provisions of the Merger Agreement, then the parties hereto shall diligently
proceed to execute and deliver an amendment and restatement of this Agreement as
is necessary or appropriate to conform this Agreement to the provisions of the
One Step Term Sheet attached to (and as defined in) the Arrangement Letter. The
Administrative Agent shall promptly notify the Lenders of its receipt of such
notice from QPI.
Section 23.13 Submission to Jurisdiction
For the purposes of any action or proceeding involving this Agreement, the other
Loan Documents or any other agreement or document referred to herein or therein,
each Loan Party hereby expressly submits to the jurisdiction of all federal and
state courts sitting in the City and State of New York and consents that any
order, process, notice of motion or other application to or by any of said
courts or a judge thereof may be served within or without such court's
jurisdiction by registered mail or by personal service, provided that a
reasonable time for appearance is allowed. Each Loan Party hereby irrevocably
waives any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement, the
other Loan Documents or any other agreement or document referred to herein or
therein brought in any federal or state court sitting in the City and State of
New York, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 23.14 WAIVER OF TRIAL BY JURY
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE
EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF
ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT REFERRED TO HEREIN OR THEREIN AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the 12th day of August, 1999.
-96-
Address:
Quebecor Printing (USA) Holdings Inc. QUEBECOR PRINTING (USA) HOLDINGS INC.
c/o Imprimeries Quebecor Inc. -
Quebecor Printing Inc.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Montreal, Quebec ----------------------------------
Canada H3C 4M8 Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President,
Finance Administration and
Attention: Vice President and Treasurer Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Imprimeries Quebecor Inc. - Quebecor
Printing Inc.
Route des Arsenaux 15
1700 Fribourg, Suisse
Attention: Vice President and Treasurer
Telephone: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
Telecopier: 011-41-26-347-4778
With a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
Attention: Treasurer
Address: IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attention: Vice President and Treasurer Title: Executive Vice-President,
Telephone: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇ Chief Administrative
Telecopier: 011-41-26-347-4778 Officer and Chief
Financial Officer
With a copy to:
By:__________________________________
Imprimeries Quebecor Inc. - Quebecor Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
Printing Inc. Title: Vice-President and
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Vice President and Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ By:__________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attention: Vice President and Treasurer Title: Executive Vice-President,
Telephone: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇ Chief Administrative
Telecopier: 011-41-26-347-4778 Officer and Chief Financial
Officer
With a copy to:
By:/s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇
Imprimeries Quebecor Inc. - Quebecor ----------------------------------
Printing Inc. Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice-President and
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Vice President and Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: QUEBECOR PRINTING HOLDING COMPANY
Quebecor Printing Holding Company
c/o Imprimeries Quebecor Inc. - Quebecor By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Printing Inc. ----------------------------------
Route des Arsenaux 15 Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
1700 Fribourg, Suisse Title: Senior Vice President,
Finance Administration and
Treasurer
Attention: Vice President and Treasurer
Telephone: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
Telecopier: 011-41-26-347-4778
With a copy to:
Imprimeries Quebecor Inc. - Quebecor
Printing Inc.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Vice President and Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address: ROYAL BANK OF CANADA
(as Administrative Agent and Lead
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager, Agency Services By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: MANAGER, GLOCAL
SYNDICATIONS
Address: ROYAL BANK OF CANADA
(as Lender)
Grand Cayman (North America No. 1) Branch
c/o New York Branch
One ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Manager
Attention: ▇.▇. ▇▇▇▇▇▇
Senior Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ Wing
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Manager - Corporate Banking
- Quebec
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: BANC OF AMERICA SECURITIES LLC
(as Arranger and Co-Syndication Agent)
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Attention: ▇▇▇▇▇ ▇▇▇▇▇ Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Principal
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: BANK OF AMERICA, N.A.
(as Lender)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(514) 938-1600 ext. 5072
(▇▇▇) ▇▇▇-▇▇▇▇
Address: BANK OF MONTREAL
(as Arranger, Co-Syndication Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Lender)
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Managing Director ----------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Director
Address: CANADIAN IMPERIAL BANK OF COMMERCE
(as Arranger and Co-Syndication
62521 - Corporate Banking Agent)
CIBC World Markets
Canadian Credit Capital Market
▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Montreal, Quebec ----------------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
Attention: Executive Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ By:/s/ Lucie Sabaz
----------------------------------
Name: Lucie Sabaz
Title: Director
Address: CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Director ----------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Executive Director
CIBC World markets Corp., AS AGENT
Address: ABN AMRO BANK N.V.
(as Lender)
Loan Administration
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Attention: Credit Administration Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Title: VICE PRESIDENT
(▇▇▇) ▇▇▇-▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
With a copy to: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: BANQUE ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇
▇ George's Dock (as Facility A and Facility B Lender)
IFSC
▇▇▇▇▇▇ ▇ By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ireland ----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President
Telephone: ▇▇▇-▇-▇▇▇-▇▇▇▇ Corporate Banking
Telecopier: 353-1-612-5104
By:/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Corporate Banking
Address: CITIBANK, N.A.
(as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ----------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
Address: NATIONAL BANK OF CANADA,
NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ By:/s/ C. Prire
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: C. Prire
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Manager
Cross Border Financing
Group
Address: TORONTO DOMINION (TEXAS), INC.
(as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Title: VICE PRESIDENT
Address: THE BANK OF NOVA SCOTIA
(as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ Morale ----------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Title: UNIT HEAD
Address: WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
1211 Avenue of the Americas (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address: CREDIT SUISSE FIRST BOSTON
(as Facility A and Facility B Lender)
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By:/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ----------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Title: VICE PRESIDENT
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: ASSISTANT VICE PRESIDENT
Address: LEONIA BANK PLC,
NEW YORK BRANCH
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Manager
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address: BANCA COMMERCIALE ITALIANA, NEW YORK
BRANCH
One ▇▇▇▇▇▇▇ Street (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By:/s/ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: VP
By:/s/ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
Title: VP
Address: THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
1251 Avenue of the Americas, 12th Floor (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-In-Fact
Address: WACHOVIA BANK, N.A.
(as Facility A and Facility B Lender)
U.S. Corporate Finance
Mail Code GA 370
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇. By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: ▇▇▇▇▇▇ BANK PLC,
NEW YORK BRANCH
437 Madison Avenue, 21st Floor (as Facility A and Facility B Lender)
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:/s/ ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ ----------------------------------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: FIRST AMERICAN NATIONAL BANK
(as Facility A and Facility B Lender)
First American Center
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Corporate Bank Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.1.2 to the Term Loan and Non-Revolving Credit Agreement dated as of
the 12th day of August, 1999 among Quebecor Printing (USA) Holdings Inc., as
Borrower, Imprimeries Quebecor Inc. - Quebecor Printing Inc. and Quebecor
Printing Holding Company, as Guarantors, the financial institutions named on the
signature pages thereof, as Lenders, Royal Bank of Canada, as Lead Arranger and
Administrative Agent, and the Arrangers and Co-Syndication Agents named therein
FORM OF LOAN PARTY GUARANTEE
(Section 1.1)