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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 4 /FINAL AMENDMENT
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
AMENDMENT TO
STATEMENT ON
SCHEDULE 13D
UNDER
THE SECURITIES EXCHANGE ACT OF 1934
------------------
WORLD COLOR PRESS, INC.
(Exact Name Of Subject Company)
PRINTING ACQUISITION INC.
An Indirect Wholly Owned Subsidiary of
QUEBECOR PRINTING INC.
(Bidders)
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<S> <C>
COMMON STOCK, $0.01 PAR VALUE 98144310-4
(Title Of Class Of Securities) (CUSIP Number of Class of Securities)
</TABLE>
------------------------
LOUIS SAINT-ARNAUD
VICE PRESIDENT, LEGAL AFFAIRS & SECRETARY
QUEBECOR PRINTING INC.
612 SAINT-JACQUES STREET
MONTREAL, QUEBEC, CANADA
H3C 4M8
(514) 954-0101
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSONS AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF BIDDERS)
WITH A COPY TO:
JOHN A. WILLETT, ESQ.
ARNOLD & PORTER
399 PARK AVENUE
NEW YORK, NEW YORK 10022-4690
(212) 715-1000
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(CONTINUED ON FOLLOWING PAGE(S))
(Page 1 of 7 Pages)
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This Amendment No. 4 amends and supplements the Tender Offer Statement on
Schedule 14D-1 and statement on Schedule 13D (the "Tender Offer Statement")
filed on July 16, 1999 by Quebecor Printing Inc. ("Quebecor Printing"), a
company amalgamated under the laws of Canada, and Printing Acquisition Inc.
("Purchaser"), a Delaware corporation and an indirect wholly owned subsidiary of
Quebecor Printing, relating to the offer by Purchaser to purchase up to
23,500,000 of the issued and outstanding shares of Common Stock, $0.01 par value
(the shares subject to the Offer, as well as all other shares of such Common
Stock hereinafter referred to as the "Shares"), of World Color Press, Inc., a
Delaware corporation (the "Company"), at $35.69 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated July 16, 1999 (the "Offer to Purchase") and in the related Letter
of Transmittal (which together constitute the "Offer"), copies of which were
filed as Exhibits (a)(1) and (a)(2), respectively, to the Tender Offer
Statement.
The Tender Offer Statement is hereby amended and supplemented as follows:
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 4(a)-(b) of the Tender Offer Statement is hereby amended and
supplemented by the following amendments to the Offer to Purchase:
The first sentence of the third paragraph of Section 10 of the Offer to
Purchase ("Source and Amount of Funds") is hereby deleted and replaced with the
following:
"Substantially all of the capital contributions and advances to be made to
Purchaser by QPUSA are expected to be borrowed under the Credit Facilities
referred to below."
The seventh paragraph of Section 10 of the Offer to Purchase ("Source and
Amount of Funds") is hereby deleted and replaced with the following:
"The Credit Facilities contain negative covenants applicable to Quebecor
Printing and its subsidiaries, including, without limitation, restrictions on
liens and indebtedness of subsidiaries and the following financial covenants:
- maximum ratio of consolidated debt to consolidated capitalization of (i)
70% from the Tender Offer Funding Date until the date of the Merger, (ii)
65% after the date of the Merger 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;
- maximum ratio of consolidated debt to consolidated EBITDA for any period
of four consecutive fiscal quarters, starting with the period of four
quarters ending on the last day of the quarter which includes the Tender
Offer Funding Date, of (i) 4.00 to 1.00 from the Tender Offer Funding Date
until the date of the Merger, (ii) 3.75 to 1.00 after the date of the
Merger until December 31, 2000, and (iii) 3.00 to 1.00 after December 31,
2000, until Tranche A and Tranche C have been paid in full and cancelled
and the ratio of consolidated debt to consolidated capitalization is less
than 55% at the end of any fiscal quarter ending after the date of such
repayment and cancellation; and
- minimum ratio of consolidated EBITDA to consolidated Interest Expense of
3.50 to 1.00 for any period of four consecutive fiscal quarters,
commencing with the period of four fiscal quarters ending on June 30,
1999."
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
As provided in the Merger Agreement, following completion of the Offer, five
members of the Company's board of directors resigned and were replaced by the
following four designees of Quebecor Printing: Charles C. Cavell, Pierre Karl
Peladeau, Christian M. Paupe and Francois Roy. Two of the
2
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Company's directors, Robert G. Burton and Marc L. Reisch remained on the Board
of Directors pending completion of the Merger.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
The Offer expired at 12:00 midnight, Eastern Daylight Time, on August 19,
1999. Based on information provided by the Depositary, 19,180,695 Shares (or
approximately 50.4% of the Shares outstanding) were validly tendered and not
withdrawn pursuant to the Offer, including Shares tendered pursuant to notices
of guaranteed delivery. Purchaser has accepted for payment all such Shares at
the purchase price of $35.69 per share, net to the seller in cash. Upon payment,
Purchaser shall have the sole power to vote such Shares. The full text of the
press release issued by Quebecor Printing on August 20, 1999, announcing the
expiration of the Offer attached hereto as Exhibit (a)(11) is incorporated
herein by reference.
ITEM 10. ADDITIONAL INFORMATION
Section 10 of the Offer to Purchase ("Source and Amount of Funds") is
amended as set forth in ITEM 4 above.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
(a)(11) Text of Press Release issued on August 20, 1999.
(b)(2) Revolving Credit Agreement dated as of August 12, 1999 (the
"Revolving Credit Agreement") among Quebecor Printing (USA) Holdings Inc. as
Borrower, Quebecor Printing and Quebecor Printing Holding Company as
Guarantors, a syndicate of Lenders, Royal Bank of Canada as Lead Arranger
and Administrative Agent, and Banc of America Securities LLC, Bank of
Montreal and Canadian Imperial Bank of Commerce as Arrangers and
Co-Syndication Agents.
(b)(3) Term Loan and Non-Revolving Credit Agreement dated as of August 12,
1999 (the "Term Loan") among Quebecor Printing (USA) Holdings Inc. as
Borrower, Quebecor Printing and Quebecor Printing Holding Company as
Guarantors, a syndicate of Lenders, Royal Bank of Canada as Lead Arranger
and Administrative Agent, and Banc of America Securities LLC, Bank of
Montreal and Canadian Imperial Bank of Commerce as Arrangers and
Co-Syndication Agents.
(b)(4) First Amendment to the Revolving Credit Agreement dated as of August
18, 1999.
(b)(5) First Amendment to the Term Loan dated as of August 18, 1999.
3
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
August 20, 1999
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QUEBECOR PRINTING INC.
By: /s/ CHRISTIAN M. PAUPE
-----------------------------------------
Name: Christian M. Paupe
Title: Executive Vice President
PRINTING ACQUISITION INC.
By: /s/ CHRISTIAN M. PAUPE
-----------------------------------------
Name: Christian M. Paupe
Title: Treasurer
</TABLE>
4
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ---------------------------------------------------------------------------------------------- -----
<S> <C> <C>
(a)(1) Offer to Purchase dated July 16, 1999.*.......................................................
(a)(2) Letter of Transmittal.*.......................................................................
(a)(3) Notice of Guaranteed Delivery.*...............................................................
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*............
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*..................................................................................
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.*.......
(a)(7) Summary Advertisement as published in The Wall Street Journal and the New York Times on July
16, 1999.*..................................................................................
(a)(8) Text of Press Release issued by Quebecor Printing and the Company on July 12, 1999.*..........
(a)(9) Text of Press Release issued on July 28, 1999.*...............................................
(a)(10) Text of Press Release issued on August 13, 1999.*.............................................
(a)(11) Text of Press Release issued on August 20, 1999...............................................
(b)(1) Arrangement Letter (including the related term sheets and waiver letters) dated as of July 12,
1999 from Royal Bank of Canada, Bank of America Canada, Bank of Montreal and Canadian
Imperial Bank of Commerce.*.................................................................
(b)(2) Revolving Credit Agreement dated as of August 12, 1999 (the "Revolving Credit Agreement")
among Quebecor Printing (USA) Holdings Inc. as Borrower, Quebecor Printing and Quebecor
Printing Holding Company as Guarantors, a syndicate of Lenders, Royal Bank of Canada as Lead
Arranger and Administrative Agent, and Banc of America Securities LLC, Bank of Montreal and
Canadian Imperial Bank of Commerce as Arrangers and Co-Syndication Agents...................
(b)(3) Term Loan and Non-Revolving Credit Agreement dated as of August 12, 1999 (the "Term Loan")
among Quebecor Printing (USA) Holdings Inc. as Borrower, Quebecor Printing and Quebecor
Printing Holding Company as Guarantors, a syndicate of Lenders, Royal Bank of Canada as Lead
Arranger and Administrative Agent, and Banc of America Securities LLC, Bank of Montreal and
Canadian Imperial Bank of Commerce as Arrangers and Co-Syndication Agents...................
(b)(4) First Amendment to the Revolving Credit Agreement dated as of August 18, 1999.................
(b)(5) First Amendment to the Term Loan dated as of August 18, 1999..................................
(c)(1) Agreement and Plan of Merger dated as of July 12, 1999 among Quebecor Printing, Purchaser and
the Company.*...............................................................................
(c)(2) Tender, Voting and Option Agreement dated as of July 12, 1999 among Quebecor Printing, KKR
Partners II, L.P., APC Associates, L.P., GR Associates L.P., KKR and Robert G. Burton, Marc
L. Reisch, Jennifer L. Adams, Robert B. Lewis and James E. Lillie.*.........................
(c)(3) Confidentiality Agreement dated June 28, 1999 between Quebecor Printing and the Company.*.....
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
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<S> <C> <C>
(c)(4) Stock Option Agreement dated as of July 12, 1999 between Quebecor Printing and the
Company.*...................................................................................
(c)(5) Registration Rights Agreement dated as of July 12, 1999 between Quebecor Printing and KKR
Partners II, L.P., APC Associates, L.P., GR Associates L.P., KKR Associates.*...............
(d) Not applicable................................................................................
(e) Not applicable................................................................................
(f) Not applicable................................................................................
</TABLE>
* Previously filed.
<PAGE>
[LETTERHEAD OF QUEBECOR PRINTING INC.]
AUGUST 20, 1999
FOR IMMEDIATE RELEASE PAGE 1 OF 1
QUEBECOR PRINTING COMPLETES TENDER OFFER
FOR WORLD COLOR SHARES
MONTREAL--Quebecor Printing Inc. announced today the successful completion
of its tender offer to acquire up to 23.5 million shares of common stock of
World Color Press, Inc. at a price of $35.69 per share.
Quebecor Printing's wholly owned subsidiary, Printing Acquisition Inc.,
accepted for payment 19,180,695 outstanding shares of World Color properly
tendered pursuant to the tender offer which expired at 12:00 Midnight, Eastern
Daylight Time, on August 19, 1999. The acceptance of these shares provides
Quebecor Printing with ownership of approximately 50.4 percent of World Color's
common stock. The companies will now proceed with the second step merger.
"I am gratified to see the market's positive reaction to our transaction,"
said Charles Cavell, President and Chief Executive Officer of Quebecor Printing.
"As the new industry leader, we will offer the combined capacity of one of the
most technologically advanced print manufacturing bases, a four-continent wide
service network, and the combined talents of two of the strongest management
teams in printing, all the while maintaining our commitment to proactive
customer service and to exceeding shareholder expectations."
Quebecor Printing Inc. (NYSE:PRW; ME:IQI; TSE:IQI), a diversified global
commercial printing company, is the largest commercial printer in Canada and
Europe and one of the largest in the United States and South America. The
Company is a leader in most of its major product categories which include
magazines, inserts and circulars, books, catalogs, specialty printing and direct
mail, directories, related services and CD-ROM mastering and replicating. The
Company has over 26,000 employees working in more than 115 printing and related
facilities in the United States, Canada, France, the United Kingdom, Spain,
Germany, Sweden, Finland, Chile, Argentina, Peru, Colombia, Mexico and India.
NOTE TO EDITORS: For further detail on the World Color acquisition, please
consult Quebecor Printing News Release issued July 12, 1999.
For further information:
John Paul Macdonald
Director, Corporate Communications
Quebecor Printing Inc.
(514) 877-5317
(800) 567-7070
<PAGE>
Exhibit 99(b)(2)
$450,000,000
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
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................. 2
Section 1.2 Headings and Table of Contents.............................. 23
Section 1.3 References.................................................. 23
Section 1.4 Rules of Interpretation..................................... 24
Section 1.5 Accounting Terms and Computations........................... 24
Section 1.6 Time........................................................ 24
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties as of the Date of this
Agreement................................................... 24
2.1.1 Existence; Power................................... 24
2.1.2 Loan Parties and Subsidiaries...................... 25
2.1.3 Authorization and Enforceability................... 25
2.1.4 Breach............................................. 25
2.1.5 Litigation......................................... 26
2.1.6 Compliance with Applicable Laws.................... 26
2.1.7 Governmental Consents.............................. 28
2.1.8 Taxes.............................................. 28
2.1.9 Financial Statements............................... 28
2.1.10 Future Financial Statements........................ 28
2.1.11 No Event of Default................................ 29
2.1.12 Year 2000 Readiness Disclosure..................... 29
2.1.13 No Required Filing................................. 29
2.1.14 Ownership of Property; Liens....................... 29
2.1.15 Labor Matters...................................... 30
2.1.16 Accuracy of Information............................ 30
2.1.17 Canadian Benefit and Pension Plans................. 30
2.1.18 ERISA.............................................. 30
2.1.19 Solvency........................................... 31
2.1.20 Pari Passu......................................... 31
Section 2.2 Representations and Warranties on and as of the
Tender Offer Funding Date................................... 31
2.2.1 Compliance with Exchange Act....................... 31
2.2.2 Shares............................................. 31
2.2.3 Power, Authority, Approval-Tender Offer and
Merger Documents................................... 31
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2.2.4 Execution and Delivery-Tender Offer and
Merger Documents................................... 32
2.2.5 Representations and Warranties-Merger
Agreement.......................................... 32
2.2.6 Certain Information................................ 32
2.2.7 Margin Stock....................................... 32
2.2.8 No Impairment...................................... 32
2.2.9 Financial Forecasts................................ 32
2.2.10 No Breach.......................................... 33
2.2.11 Stock Options...................................... 33
Section 2.3 Representations and Warranties on and as of the
Merger Date................................................. 33
2.3.1 Adequate Cash...................................... 33
2.3.2 Merger Approval.................................... 33
2.3.3 Merger Documents................................... 34
2.3.4 Certificate of Merger.............................. 34
2.3.5 No Adverse Change.................................. 34
Section 2.4 Materiality and Survival of Warranties...................... 34
ARTICLE III
THE CREDIT FACILITY
Section 3.1 Obligations of the Lenders.................................. 35
Section 3.2 The Credit Facility......................................... 35
Section 3.3 [Intentionally Omitted]..................................... 35
Section 3.4 [Intentionally Omitted]..................................... 35
Section 3.5 Purposes of Advances........................................ 35
Section 3.6 Manner of Borrowing......................................... 35
Section 3.7 Mandatory Repayment of Borrowings........................... 36
Section 3.8 [Intentionally Omitted]..................................... 36
Section 3.9 Optional Repayment or Prepayment and Cancellation of
Credit Facility............................................. 36
3.9.1 Voluntary Payments................................. 36
3.9.2 Cancellation and Reduction of Credit Facility...... 37
3.9.3 Exceptions and Limitations......................... 37
Section 3.10 Conversion Option .......................................... 37
3.10.1 Manner of Conversion............................... 37
3.10.2 Conditions of Conversion........................... 38
3.10.3 Acknowledgements................................... 38
Section 3.11 Deposit of Proceeds of Loans ............................... 38
Section 3.12 [Intentionally Omitted] .................................... 38
Section 3.13 Reliance on Oral Instructions .............................. 38
Section 3.14 Borrowings and Repayments Proportional to Commitments ...... 39
ARTICLE IV
PAYMENT OF INTEREST AND FEES
Section 4.1 Payment of Interest......................................... 39
4.1.1 Interest on US Prime Rate Loans.................... 39
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4.1.2 Interest on Libor Loans............................ 39
Section 4.2 [Intentionally Omitted]..................................... 40
Section 4.3 Commitment Fee.............................................. 40
Section 4.4 Applicable Margin and Fee Rate Matrix....................... 40
Section 4.5 Administrative Agent's Fees and other Fees.................. 42
Section 4.6 Interest on Overdue Amounts................................. 42
4.6.1 Overdue Principal or Interest...................... 42
4.6.2 Other Amounts...................................... 43
4.6.3 Payment............................................ 43
ARTICLE V
CONDITIONS APPLICABLE TO LIBOR LOANS
Section 5.1 Selection of Libor Interest Periods......................... 43
5.1.1 Amount and Availability............................ 43
5.1.2 Selection of Libor Interest Period................. 43
5.1.3 Deemed Conversion.................................. 44
Section 5.2 Alternate Basis of Borrowing................................ 44
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......... 45
Section 8.2 Payment to Administrative Agent is Deemed Payment to
Lenders..................................................... 46
Section 8.3 Account Debit Authorization................................. 46
Section 8.4 Application of Payments..................................... 46
8.4.1 Order of Application............................... 46
8.4.2 Event of Default................................... 47
8.4.3 Sharing............................................ 47
Section 8.5 Manner of Payment and Taxes................................. 47
8.5.1 No set-off; no withholding......................... 47
8.5.2 Increased Rate of Interest......................... 47
8.5.3 Tax Credit......................................... 48
8.5.4 Exemption from U.S. Withholding Taxes.............. 48
8.5.5 Survival of Obligations............................ 49
Section 8.6 Increased Costs and Payment of Portion...................... 49
8.6.1 Increased Costs.................................... 49
8.6.2 Payment of Portion................................. 50
Section 8.7 Illegality.................................................. 51
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Section 8.8 Timing of Maturities........................................ 52
Section 8.9 Evidence of Indebtedness.................................... 52
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
PREDISBURSEMENT CONDITIONS
Section 10.1 Predisbursement Conditions ................................. 53
10.1.1 Conditions Precedent to Initial Borrowing.......... 53
10.1.1A Additional Conditions Precedent to Initial
Borrowing.......................................... 56
10.1.2 Conditions Precedent to each Borrowing............. 58
Section 10.2 Waiver of Conditions Precedent ............................. 58
ARTICLE XI
COVENANTS OF THE LOAN PARTIES
Section 11.1 Affirmative Covenants of the Loan Parties .................. 58
11.1.1 Payment Covenant................................... 59
11.1.2 Corporate Existence................................ 59
11.1.3 Conduct of Business................................ 59
11.1.4 Compliance with Laws............................... 59
11.1.5 Prompt Payment of Taxes and Indebtedness........... 59
11.1.6 Insurance.......................................... 59
11.1.7 Financial Statements and Information............... 60
11.1.8 Consents and Governmental Approvals................ 62
11.1.9 Access............................................. 63
11.1.10 Loan Party Guarantees.............................. 63
11.1.11 Canadian Benefit and Pension Plans and ERISA....... 63
11.1.12 Environmental Matters.............................. 63
11.1.13 Millennium Compliance.............................. 63
11.1.14 Use of Funds....................................... 64
11.1.15 Updating of S&P/Moody's Credit Rating.............. 64
11.1.16 Certain Intercompany Advances...................... 64
11.1.17 Merger Agreement; Securitization Program........... 64
11.1.18 Merger............................................. 64
11.1.19 Delist Shares...................................... 64
11.1.20 Loans to Acquisition Sub........................... 64
11.1.21 Officer's Certificate, Opinion of Counsel.......... 65
Section 11.2 Negative Covenants of the Loan Parties ..................... 65
11.2.1 Negative Pledge.................................... 65
11.2.2 Sale of Assets..................................... 65
11.2.3 No Investments in Other Persons.................... 66
11.2.4 No Indebtedness.................................... 66
11.2.5 No Modification to Corporate Structure............. 66
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11.2.6 No Consensual Restrictions......................... 66
11.2.7 Unauthorized Uses of the Credit Facility........... 67
11.2.8 No Change in Nature of Business or in Use of
Properties......................................... 67
11.2.9 No Hedge Agreements................................ 67
11.2.10 Financial Ratios................................... 67
11.2.11 Restrictions on Acquisition Sub.................... 68
ARTICLE XII
REIMBURSEMENT OF EXPENSES AND INDEMNITY
Section 12.1 Reimbursement of Expenses .................................. 68
Section 12.2 Indemnity .................................................. 69
Section 12.3 Consultation with Borrower ................................. 70
Section 12.4 Survival of Indemnification Obligations .................... 71
ARTICLE XIII
OTHER TAXES
Section 13.1 Other Taxes ................................................ 71
Section 13.2 Survival of Obligations .................................... 71
ARTICLE XIV
EVENTS OF DEFAULT
Section 14.1 Events of Default .......................................... 71
14.1.1 Failure to Pay..................................... 71
14.1.2 Representations and Warranties..................... 72
14.1.3 Other Breaches..................................... 72
14.1.4 Bankruptcy......................................... 72
14.1.5 ERISA.............................................. 73
14.1.6 Judgment........................................... 73
14.1.7 Invalidity or Unenforceability..................... 74
14.1.8 Cross-Default...................................... 74
14.1.9 Environmental Claims............................... 75
14.1.10 Material Adverse Effect............................ 75
Section 14.2 Acceleration ............................................... 75
Section 14.3 Notices .................................................... 75
ARTICLE XV
REMEDIES
Section 15.1 Remedies Cumulative ........................................ 76
ARTICLE XVI
WAIVER OF DEFAULT
Section 16.1 Waiver of Default .......................................... 76
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ARTICLE XVII
THE ADMINISTRATIVE AGENT AND THE LENDERS
Section 17.1 Authorization of Administrative Agent ...................... 77
Section 17.2 Notification of Borrowings, Repayments, Etc. ............... 78
Section 17.3 Details of Borrowings ...................................... 78
Section 17.4 Remittance of Amounts Received from the Borrower ........... 78
Section 17.5 Assumption as to Payments .................................. 78
17.5.1 Assumed Payment from Borrower...................... 78
17.5.2 Assumed Payment from Lender........................ 79
Section 17.6 Change in Circumstances, Illegality, Increased Costs, Etc. . 79
Section 17.7 Notice of Event of Default ................................. 80
Section 17.8 Pro Rata Treatment of Advances and Borrowings .............. 80
17.8.1 Adjustments to Loans and Repayments................ 80
17.8.2 Borrower's Agreement............................... 80
Section 17.9 Adjustments among Lenders after Acceleration ............... 80
17.9.1 Adjustments within Credit Facility................. 80
17.9.2 [Intentionally Omitted]............................ 80
17.9.3 Application of Adjustments......................... 80
17.9.4 Borrower's Acknowledgement......................... 81
Section 17.10 Sharing among the Lenders .................................. 81
Section 17.11 Cash Collateral Accounts ................................... 81
Section 17.12 Instructions from Lenders .................................. 81
17.12.1 Waivers, Amendments, Etc........................... 81
17.12.2 Notices of Defaults................................ 83
Section 17.13 Reliance on Writings and Legal Advice ...................... 83
Section 17.14 Costs and Expenses ......................................... 83
Section 17.15 Authority of Administrative Agent to Act ................... 83
Section 17.16 Disclaimer ................................................. 84
Section 17.17 Indemnification ............................................ 84
Section 17.18 Acknowledgement of Lenders ................................. 85
Section 17.19 Administrative Agent's Duty to Deliver Documents ........... 85
Section 17.20 Other Transactions ......................................... 86
Section 17.21 No Preference .............................................. 86
Section 17.22 Submission of Information .................................. 86
Section 17.23 Sharing of Information Concerning this Agreement ........... 86
Section 17.24 No Association among Lenders ............................... 86
Section 17.25 Successor Administrative Agent ............................. 86
Section 17.26 Change of Address .......................................... 87
Section 17.27 [Intentionally Omitted] .................................... 87
Section 17.28 Amendment of this Article XVII ............................. 87
ARTICLE XVIII
SUCCESSORS AND ASSIGNS
Section 18.1 Benefit and Burden of this Agreement ....................... 87
Section 18.2 The Loan Parties ........................................... 87
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Section 18.3 Assignment and Participation ............................... 88
Section 18.4 Limitation ................................................. 89
Section 18.5 [Intentionally Omitted] .................................... 89
Section 18.6 Disclosure ................................................. 89
Section 18.7 Processing and Recordation Fee ............................. 89
ARTICLE XIX
COMPENSATION
Section 19.1 Set-off, Compensation ...................................... 89
ARTICLE XX
JUDGMENT CURRENCY
Section 20.1 Judgment Currency .......................................... 90
ARTICLE XXI
GOVERNING LAW
Section 21.1 Governing Law .............................................. 91
ARTICLE XXII
NOTICE
Section 22.1 Address for Notice ......................................... 91
Section 22.2 Notice ..................................................... 91
ARTICLE XXIII
MISCELLANEOUS
Section 23.1 Severability ............................................... 91
Section 23.2 [Intentionally Omitted] .................................... 92
Section 23.3 Survival of Representations and Undertakings ............... 92
Section 23.4 Whole Agreement ............................................ 92
Section 23.5 Amendments ................................................. 92
Section 23.6 Counterparts ............................................... 92
Section 23.7 Further Assurances ......................................... 92
Section 23.8 [Intentionally Omitted] .................................... 93
Section 23.9 Good Faith and Fair Consideration .......................... 93
Section 23.10 Term of Agreement .......................................... 93
Section 23.11 Formal Date ................................................ 93
Section 23.12 One Step Transaction ....................................... 93
Section 23.13 Submission to Jurisdiction ................................. 93
Section 23.14 WAIVER OF TRIAL BY JURY .................................... 93
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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 3.9.1 Confirmation of Prepayment
SCHEDULE 3.9.2 Notice of 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
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<PAGE>
THIS 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 Facility
(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 Facility (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 the Credit Facility available to
the Borrower of up to $450,000,000; 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;
<PAGE>
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:
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The Chase Manhattan Bank, New York
ABA #: 021000021
For account: Royal Bank of Canada, New York
Acct #: 920-1-033363
Beneficiary Name: Quebecor Printing Inc.
Acct #: 218-599-2
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 Commitments of all the
Lenders;
"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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<PAGE>
"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 Facility 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
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<PAGE>
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 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 any Lender at any time, the obligation of
such Lender to make available to the Borrower, Borrowings under the Credit
Facility in an aggregate principal amount at any one time outstanding of up to,
but not exceeding, such Lender's Commitment 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;
"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;
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<PAGE>
"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, 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
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<PAGE>
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 Facility" means the revolving credit facility made available to the
Borrower pursuant to Section 3.2;
"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;
"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;
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"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:
(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,
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<PAGE>
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);
"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
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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;
"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;
"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 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;
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"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 Hart-Scott-Rodino Antitrust Improvements Act 1976, 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,
(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
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(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;
"Judgment Currency" means judgment currency as defined in Section 20.1;
"Lenders" means the collective reference to each Lender identified on Schedule
1.1.1 as having a Commitment, and their successors and assigns and "Lender"
means any one of them, the whole provided that each Lender is a United States
Person or complies with the provisions of Section 8.5.4;
"Lender's Proportion" means, at any time as to any Lender, the proportion borne
by the Commitment of such Lender 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:
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"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 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
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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 Maturity Date;
"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, 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 Facility and
"Loan" means any one of them;
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<PAGE>
"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 the Credit Facility 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:
(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;
"Maturity Date" means the date falling on the third anniversary of the Formal
Date;
"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;
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<PAGE>
"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 Moody's Investors Service, Inc.
"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;
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<PAGE>
"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 Facility 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:
(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
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(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);
"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
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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;
"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;
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"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
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);
"Revolving Period" means the period commencing on the Formal Date and ending on
the Maturity Date;
"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;
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"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
McGraw-Hill Companies, Inc.;
"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;
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"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
$35.69 net per Share;
"Tender Offer Documents" means the Offer to Purchase, the related letter of
transmittal, any other tender offer material which is furnished to stockholders
of WCP in connection with the Tender Offer, and the Tender, Voting and Option
Agreement;
"Tender Offer Funding Date" means the Drawdown Date under the Facility A (as
such terms are defined in the US Holdings Term Credit Agreement);
"Tender, Voting and Option Agreement" means the Tender, Voting and Option
Agreement dated as of July 12, 1999, among QPI and KKR Associates, certain
investment partnerships controlled by KKR Associates and certain management
stockholders of WCP owning approximately 24.5% of the Shares in the aggregate;
"Termination Event" means, with respect to any Benefit Plan, (a) any Reportable
Event with respect to such Benefit Plan, (b) the termination of such Benefit
Plan, or the filing of a notice of intent to terminate such Benefit Plan, or the
treatment of any amendment to such Benefit Plan as a termination under ERISA
Section 4041(c), (c) the institution of proceedings to terminate such Benefit
Plan under ERISA Section 4042 or (d) the appointment of a trustee to administer
such Benefit Plan under ERISA Section 4042;
"Transaction Documents" means the Merger Agreement and such other agreements and
other related documentation as required to consummate the Tender Offer and
Merger, including the Tender, Voting and Option Agreement;
"United States Person" means a corporation, partnership or other entity created,
organized or incorporated under the laws of the United States of America or a
State thereof (including the District of Columbia);
"US Dollars", the symbols "$" 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;
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"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 Term Credit Agreement" means the $800,000,000 Term Loan and
Non-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.
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.
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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.
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
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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 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
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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, 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
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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,
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,
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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 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
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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;
(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-mark, service mark, trade name,
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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 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;
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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 Facility ranks 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);
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;
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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 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
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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 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;
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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 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.
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ARTICLE III
THE CREDIT FACILITY
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 Credit Facility
The Lenders hereby establish in favor of the Borrower the Credit Facility which
shall be available as a revolving facility during the Revolving Period. During
such period, the Borrower shall be entitled from time to time to obtain
Advances, repay such Advances and re-obtain Advances under the Credit Facility
in US Dollars by way of US Prime Rate Loans or Libor Loans or any combination
thereof, the whole up to the Aggregate Commitment and subject to the terms and
conditions of this Agreement.
Section 3.3 [Intentionally Omitted]
Section 3.4 [Intentionally Omitted]
Section 3.5 Purposes of Advances
The proceeds of the Credit Facility shall be used by the Borrower 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, to be
loaned by the Borrower to WCP (up to a limit of $100,000,000) to be used by WCP
(together with borrowings from QPI LLC and other borrowings from US Holdings
from proceeds drawn under the Existing QPI Facility) to prepay in full the WCP
Existing Bank Credit Agreement, and to be available for general corporate
purposes, provided that, the maximum aggregate amount available under both this
Credit Facility and the US Holdings Term 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.
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
Revolving Period, request a Borrowing from the Lenders up to the amount of the
Aggregate Commitment, in a minimum amount of
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$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, each Lender shall make its Lender's Proportion
of 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 such Lender's
Commitment is, in each case, then sufficient to allow for the requested
Borrowing.
Section 3.7 Mandatory Repayment of Borrowings
All Borrowings and other amounts outstanding under the Credit Facility shall be
fully and finally paid (together with interest, fees and all other amounts
related thereto) on the Maturity Date, whereupon the Credit Facility shall be
cancelled and each Lender's Commitment in respect of the Credit Facility shall
automatically be reduced to zero and be terminated.
Section 3.8 [Intentionally Omitted]
Section 3.9 Optional Repayment or Prepayment and Cancellation of Credit Facility
3.9.1 Voluntary Payments: the Borrower may, without penalty, repay the
Borrowings outstanding hereunder in full or in part from time to time,
upon giving an irrevocable telephone notice to the Administrative Agent
by 12:00 noon on the Business Day preceding the repayment date, followed
by written confirmation to the Administrative Agent on the same day
substantially in the form set forth in Schedule 3.9.1 (or such other form
as the Administrative Agent may approve), provided that repayments must,
in each instance, be in a minimum amount of $10,000,000 and whole
multiples of $1,000,000 in excess thereof (or the remaining balance of
the Credit Facility). Any amount so repaid may be re-borrowed as provided
herein;
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3.9.2 Cancellation and Reduction of Credit Facility: 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 Aggregate Commitment, in a
minimum amount of $10,000,000 and whole multiples of $1,000,000 in excess
thereof (or the remaining balance of the Aggregate Commitment). Such
notice of cancellation with respect to any drawn portion of the Aggregate
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 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 and each Lender's Commitment in respect
thereof in an amount equal to its Lender's Proportion of the amount of
the Aggregate Commitment so cancelled and reduced; and
3.9.3 Exceptions and Limitations: notwithstanding the terms of Sections 3.9.1
and 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).
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 into
any other basis of Borrowing, 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;
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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 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
(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
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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 the 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, 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:
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.
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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 the Maturity Date (each a "Commitment Fee Payment Date") during the period
commencing on the Formal Date and ending on the Maturity Date, 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 Aggregate Commitment, 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 Aggregate Commitment, 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.
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/Moody's 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.
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---------------------------------------------------------------------
(1) (2) (3) (4) (5)
---------------------------------------------------------------------
Applicable
S&P/Moody's Margin for Applicable
Credit US Prime Margin for Commitment
Tier Rating Rate Loans Libor Loans Fee Rate
---------------------------------------------------------------------
I =>A-/A3 0.0 0.50% 0.125%
---------------------------------------------------------------------
II BBB+/Baa1 0.0 0.65% 0.15%
---------------------------------------------------------------------
III BBB/Baa2 0.0 0.80% 0.175%
---------------------------------------------------------------------
IV BBB-/Baa3 0.0 1.00% 0.20%
---------------------------------------------------------------------
BBB-/Ba1
or
V BB+ /Baa3 0.25% 1.25% 0.25%
---------------------------------------------------------------------
BB+/Ba1
or
VI Lower 0.75% 1.75% 0.375%
---------------------------------------------------------------------
For the purposes hereof, "S&P/Moody's Credit Rating" means the senior unsecured
debt rating obtained by QPI from Standard & Poor's and Moody's 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, 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
Moody's (having taken into account the
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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/Moody's 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 Moody's 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/Moody's 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/Moody's 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/Moody's Credit Rating ceases to be available as a result of either or
both Standard & Poor's and Moody's 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
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
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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 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;
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(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,
(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
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available under the Credit Facility. 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).
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
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(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.
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;
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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 the Credit Facility 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, 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
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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 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
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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:
(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
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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"), 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
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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 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 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
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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 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.
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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,
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
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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 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,
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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 the Borrower to
WCP from proceeds drawn hereunder, 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,
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 Morgan
Stanley & 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 Term 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
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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 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
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(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 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,
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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
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
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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;
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;
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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 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,
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(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,
(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,
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(E) any change in the S&P/Moody's Credit Rating which would
result in an increase of any of the Applicable Margins or
Commitment Fee hereunder, and
(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,
(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,
(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
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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 Facility;
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 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;
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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/Moody's Credit Rating: it shall cause each of Standard
& Poor's and Moody's 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 Moody's 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 Term 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
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 Term 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 Term 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
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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.
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;
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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 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
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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 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 Facility: it will not use the Credit
Facility 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 hedges
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:
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(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, until the Facility A and the Facility B under (and as
defined in) the US Holdings Term Credit Agreement have been paid
in full and cancelled and the ratio of QPI's Debt to QPI's
Capitalization is less than 55% at the end of any fiscal quarter
ending after the date of such repayment and cancellation; 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 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 Facility, including, without
limitation, in considering and making
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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 Facility. 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.
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 Facility,
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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,
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 Facility, 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
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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.
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;
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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;
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
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(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 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
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(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 Facility, the US
Holdings Term Credit Agreement, the Existing QPI Facility, the
Existing Indentures and Non-Recourse Indebtedness) in the
aggregate outstanding principal amount of $25,000,000:
(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
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(c) any Event of Default under (and as defined in) (i) the Existing
QPI Facility, (ii) the US Holdings Term 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 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
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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 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;
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(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, 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.
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Section 17.2 Notification of Borrowings, Repayments, Etc.
The Administrative Agent shall promptly notify each Lender 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.
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
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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 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.
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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 Facility, 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 the Credit Facility to the total
amount of the Loans owing to all Lenders under the Credit Facility will
at all times be equal to the proportion borne by the Commitment of that
Lender under the Credit Facility to the Aggregate Commitment; 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 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 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 the Credit
Facility to the total amount of the Borrowings made available by all
the Lenders which remain outstanding under the 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 the Credit
Facility to the Aggregate Commitment immediately prior to the
cancellation or termination thereof;
17.9.2 [Intentionally Omitted];
17.9.3 Application of Adjustments: for greater certainty, the Lenders
acknowledge and agree that without limiting the generality of the
provisions of Section 17.9.1, such provision 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
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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 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
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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 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 the 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 Aggregate 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
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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 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 Commitment 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,
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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.
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 Commitment), 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
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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 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.
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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.
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
Facility, 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
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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.
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.
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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
Facility 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 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
Facility 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 Term 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 Term 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,
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<PAGE>
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 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
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<PAGE>
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 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.
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<PAGE>
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.
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.
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<PAGE>
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.
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.
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<PAGE>
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.
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
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<PAGE>
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.
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<PAGE>
Address:
Quebecor Printing (USA) Holdings Inc. QUEBECOR PRINTING (USA) HOLDINGS INC.
c/o Imprimeries Quebecor Inc. -
Quebecor Printing Inc.
612 St. Jacques Street By:/s/ William J. Glass
Montreal, Quebec ----------------------------------
Canada H3C 4M8 Name: William J. Glass
Title: Senior Vice President,
Finance Administration and
Attention: Vice President and Treasurer Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
With a copy to:
Imprimeries Quebecor Inc. - Quebecor
Printing Inc.
Route des Arsenaux 15
1700 Fribourg, Suisse
Attention: Vice President and Treasurer
Telephone: 011-41-26-347-4772
Telecopier: 011-41-26-347-4778
With a copy to:
300 Delaware Avenue
Suite 900
Wilmington, Delaware
19801 USA
Attention: Treasurer
<PAGE>
Address: IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
Route des Arsenaux 15
1700 Fribourg
Suisse By:/s/ Christian M. Paupe
----------------------------------
Name: Christian M. Paupe
Attention: Vice President and Treasurer Title: Executive Vice-President,
Telephone: 011-41-26-347-4772 Chief Administrative
Telecopier: 011-41-26-347-4778 Officer and Chief
Financial Officer
With a copy to:
By:__________________________________
Imprimeries Quebecor Inc. - Quebecor Name: Mark A. D'Souza
Printing Inc. Title: Vice-President and
612 St. Jacques Street Treasurer
Montreal, Quebec
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
<PAGE>
Address: IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
Route des Arsenaux 15
1700 Fribourg
Suisse By:__________________________________
Name: Christian M. Paupe
Attention: Vice President and Treasurer Title: Executive Vice-President,
Telephone: 011-41-26-347-4772 Chief Administrative
Telecopier: 011-41-26-347-4778 Officer and Chief Financial
Officer
With a copy to:
By:/s/ Mark A. D'Souza
Imprimeries Quebecor Inc. - Quebecor ----------------------------------
Printing Inc. Name: Mark A. D'Souza
612 St. Jacques Street Title: Vice-President and
Montreal, Quebec Treasurer
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
<PAGE>
Address: QUEBECOR PRINTING HOLDING COMPANY
Quebecor Printing Holding Company
c/o Imprimeries Quebecor Inc. - Quebecor By:/s/ William J. Glass
Printing Inc. ----------------------------------
Route des Arsenaux 15 Name: William J. Glass
1700 Fribourg, Suisse Title: Senior Vice President,
Finance Administration and
Treasurer
Attention: Vice President and Treasurer
Telephone: 011-41-26-347-4772
Telecopier: 011-41-26-347-4778
With a copy to:
Imprimeries Quebecor Inc. - Quebecor
Printing Inc.
612 St. Jacques Street
Montreal, Quebec
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
With a copy to:
300 Delaware Avenue, Suite 900
Wilmington, Delaware 19801
U.S.A.
Attention: Treasurer
Telephone: (302) 421-7361
<PAGE>
Address: ROYAL BANK OF CANADA
(as Administrative Agent and Lead
One Liberty Plaza, 4th Floor Arranger)
New York, New York 10006-1404
Attention: Manager, Agency Services By:/s/ Kristin Condon
Telephone: (212) 428-6308 ----------------------------------
Telecopier: (212) 428-2310 Name: KRISTIN CONDON
Title: MANAGER, GLOCAL
SYNDICATIONS
<PAGE>
Address: ROYAL BANK OF CANADA
(as Lender)
Grand Cayman (North America No. 1) Branch
c/o New York Branch
One Liberty Plaza, 4th Floor By:/s/ Sheryl L. Greenberg
New York, New York 10006-1404 ----------------------------------
Name: Sheryl L. Greenberg
Title: Senior Manager
Attention: N.G. Millar
Senior Manager
Telephone: (212) 428-6363
Telecopier: (212) 428-2319
With a copy to:
1 Place Ville Marie, 8th Floor, West Wing
Montreal, Quebec
Canada H3C 3A9
Attention: Manager - Corporate Banking
- Quebec
Telephone: (514) 874-8637
Telecopier: (514) 874-5315
<PAGE>
Address: BANC OF AMERICA SECURITIES LLC
(as Arranger and Co-Syndication
9 West 57th Street Agent)
43rd Floor
New York, NY 10019 By:/s/ Stephen D. Baker
----------------------------------
Attention: Steve Baker Name:Stephen D. Baker
Telephone: (212) 277-5020 Title: Principal
Telecopier: (212) 848-3911
Attention: Michel Hurtubise
Telephone: (416) 349-5369
Telecopier: (416) 349-4282
<PAGE>
Address: BANK OF AMERICA, N.A.
(as Lender)
1850 Gateway Boulevard
5th Floor
Concord, CA 94520 By:/s/ Denis Caldera
----------------------------------
Attention: Denis Caldera Name: Denis Caldera
Telephone: (925) 675-8065 Title: Vice President
Telecopier: (925) 675-8051
Attention: Charline Didierjean
(514) 938-1600 ext. 5072
(514) 938-1601
<PAGE>
Address: BANK OF MONTREAL
(as Arranger, Co-Syndication Agent
115 South LaSalle Street and Lender)
11th Floor
Chicago, Illinois 60603
By:/s/ Paul Montgomery
Attention: Managing Director ----------------------------------
Telephone: (312) 750-3731 Name: Paul Montgomery
Telecopier: (312) 750-3834 Title: Director
<PAGE>
Address: CANADIAN IMPERIAL BANK OF COMMERCE
(as Arranger and Co-Syndication
62521 - Corporate Banking Agent)
CIBC World Markets
Canadian Credit Capital Market
600 de Maisonneuve Blvd. West, Suite 3210 By:/s/ Michel Tessier
Montreal, Quebec ----------------------------------
Canada H3A 3J2 Name: Tessier Michel
Title: Executive Director
Attention: Executive Director
Telephone: (514) 847-6658
Telecopier: (514) 847-6672 By:/s/ Lucie Sabaz
----------------------------------
Name: Lucie Sabaz
Title: Director
<PAGE>
Address: CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
425 Lexington Avenue, 8th Floor (as Facility A and Facility B Lender)
New York, NY 10017
Attention: H.A. Palmer By:/s/ Howard Palmer
Executive Director ----------------------------------
Telephone: (212) 856-3504 Name: Howard Palmer
Telecopier: (212) 856-3761 Title: Executive Director
CIBC World markets Corp., AS AGENT
<PAGE>
Address: ABN AMRO BANK N.V.
(as Lender)
Loan Administration
208 S. LaSalle Street, Suite 1500
Chicago, IL 60604-1003 By:/s/ David C. Carrington
----------------------------------
Attention: Credit Administration Name: DAVID C. CARRINGTON
(312) 992-5110 Title: VICE PRESIDENT
(312) 992-5111
By:/s/ Thomas Rogers
----------------------------------
With a copy to: Name: THOMAS T. ROGERS
Title: VICE PRESIDENT
500 Park Avenue
New York, NY 10020
Attention: David Carrington
Telephone: (212) 446-4382
Telecopier: (212) 446-4203
<PAGE>
Address: BANQUE NATIONALE DE PARIS, DUBLIN
BRANCH
5 George's Dock (as Facility A and Facility B Lender)
IFSC
Dublin 1 By:/s/ Blaise Cloutier
Ireland ----------------------------------
Name: Blaise CLOUTIER
Attention: Lorna Wilson Title: Vice President
Telephone: 353-1-612-5000 Corporate Banking
Telecopier: 353-1-612-5104
By:/s/ Jean Rolin
----------------------------------
Name: Jean ROLIN
Title: Vice President
Corporate Banking
Dated on this 12th day of
August, 1999
<PAGE>
Address: CITIBANK, N.A.
(as Facility A and Facility B Lender)
399 Park Avenue
New York, NY 10043
By:/s/ Henry J. Matthews
Attention: Marjorie Futornick ----------------------------------
Telephone: (212) 559-1100 Name: HENRY J. MATTHEWS
Telecopier: (212) 559-2395 Title: Vice President
<PAGE>
Address: NATIONAL BANK OF CANADA,
NEW YORK BRANCH
125 West 55th Street (as Facility A and Facility B Lender)
New York, NY 10019-5366
Attention: Corinne Pitre By:/s/ C. Prire
Telephone: (212) 632-8500 ----------------------------------
Telecopier: (212) 632-8616 Name: C. Prire
Title: AVP
By:/s/ Yvon LaPante
----------------------------------
Name: Yvon LaPante
Title: Vice President and Manager
Cross Border Financing
Group
<PAGE>
Address: TORONTO DOMINION (TEXAS), INC.
(as Facility A and Facility B Lender)
909 Fannin Street, 17th Floor
Houston, Texas 77010
By:/s/ Carol Brandt
Attention: Carol Brandt ----------------------------------
Telephone: (713) 653-8204 Name: CAROL BRANDT
Telecopier: (713) 951-9921 Title: VICE PRESIDENT
<PAGE>
Address: THE BANK OF NOVA SCOTIA
(as Facility A and Facility B Lender)
One Liberty Plaza
New York, NY 10006
By:/s/ John W. Campbell
Attention: John Morale ----------------------------------
Telephone: (212) 225-5062 Name: JOHN W. CAMPBELL
Telecopier: (212) 225-5286 Title: UNIT HEAD
<PAGE>
Address: WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
1211 Avenue of the Americas (as Facility A and Facility B Lender)
New York, NY 10036
Attention: Elisabeth R. Wilds By:/s/ Richard J. Pearse
Telephone: (212) 852-6322 ----------------------------------
Telecopier: (212) 852-6148 Name: Richard J. Pearse
Title: Managing Director
By:/s/ Robert D. Wieser
----------------------------------
Name: Robert D. Wieser
Title: Vice President
<PAGE>
Address: CREDIT SUISSE FIRST BOSTON
(as Facility A and Facility B Lender)
Eleven Madison Avenue
New York, NY 10010
By:/s/ Chris T Horgan
Attention: Chris Horgan ----------------------------------
Telephone: (212) 325-9157 Name: CHRIS T HORGAN
Telecopier: (212) 325-8309 Title: VICE PRESIDENT
By:/s/ Kristinn R. Kristinsson
----------------------------------
Name: KRISTINN R. KRISTINSSON
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Address: LEONIA BANK PLC,
NEW YORK BRANCH
60 East 42nd Street, Suite 2544 (as Facility A and Facility B Lender)
New York, NY 10165
Attention: Gary Tanner By:/s/ Matti Vainionpaa
Telephone: (212) 557-6920 ----------------------------------
Telecopier: (212) 949-6791 Name: /s/ Matti Vainionpaa
Title: General Manager
By:/s/ Gary Tanner
----------------------------------
Name: Gary Tanner
Title: Senior Vice President
<PAGE>
Address: BANCA COMMERCIALE ITALIANA, NEW YORK
BRANCH
One William Street (as Facility A and Facility B Lender)
New York, NY 10004
Attention: Jack Dickerhof By:/s/ J. Dickerhof
Telephone: (212) 607-3896 ----------------------------------
Telecopier: (212) 809-2124 Name: J. Dickerhof
Title: VP
By:/s/ A. DiMaggio
----------------------------------
Name: A. DiMaggio
Title: VP
<PAGE>
Address: THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
1251 Avenue of the Americas, 12th Floor (as Facility A and Facility B Lender)
New York, NY 10020-1104
Attention: Catherine Moeser By:/s/ Catherine Moeser
Telephone: (212) 782-4457 ----------------------------------
Telecopier: (212) 782-6440 Name: Catherine Moeser
Title: Attorney-in-Fact
<PAGE>
Address: WACHOVIA BANK, N.A.
(as Facility A and Facility B Lender)
U.S. Corporate Finance
Mail Code GA 370
191 Peachtree Street N.E. By:/s/ Jeffrey Nurkiewicz
Atlanta, Georgia 30303 ----------------------------------
Name: Jeffrey Nurkiewicz
Attention: Jeffrey Nurkiewicz Title: Vice President
Telephone: (404) 332-1288
Telecopier: (404) 332-6898
<PAGE>
Address: MERITA BANK PLC,
NEW YORK BRANCH
437 Madison Avenue, 21st Floor (as Facility A and Facility B Lender)
New York, NY 10022
Attention: Robert A. Louzan By:/s/ Anu Seppala
Telephone: (212) 318-9306 ----------------------------------
Telecopier: (212) 421-4420 Name: ANU SEPPALA
Title: VICE PRESIDENT
By:/s/ JOHN KEHNLE
----------------------------------
Name: JOHN KEHNLE
Title: Vice President
<PAGE>
Address: FIRST AMERICAN NATIONAL BANK
(as Facility A and Facility B Lender)
First American Center
Fourth and Union St.
Nashville, Tennessee 37238-0310 By:/s/ Seth Butler
----------------------------------
Attention: Jerry Watterworth Name: Seth Butler
Telephone: (615) 748-2720 Title: Corporate Bank Officer
Telecopier: (615) 748-2485
<PAGE>
SCHEDULE 1.1.2 to the 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)
LOAN PARTY GUARANTEE AGREEMENT
Dated as of August 10, 1999
In consideration of the Revolving Credit Agreement dated as of the
date hereof among Quebecor Printing (USA) Holdings Inc. ("US Holdings" or the
"Borrower"), Imprimeries Quebecor Inc. - Quebecor Printing Inc. and Quebecor
Printing Holding Company, as Guarantors, the lenders parties thereto (the
"Lenders"), Royal Bank of Canada ("RBC" or the "Administrative Agent"), as Lead
Arranger and Administrative Agent, and Banc of America Securities LLC, Bank of
Montreal, and Canadian Imperial Bank of Commerce, as Arrangers and
Co-Syndication Agents (said Credit Agreement, as it may be amended,
supplemented, restated or otherwise modified from time to time herein referred
to as the "Credit Agreement"), [insert either "IMPRIMERIES QUEBECOR INC. -
QUEBECOR PRINTING INC., a Canadian corporation," or "QUEBECOR PRINTING HOLDING
COMPANY, a Delaware corporation," as applicable] hereby agrees with RBC, as
Administrative Agent, acting both on its own behalf and on behalf of the other
Guaranteed Parties (as hereinafter defined) as follows (with certain terms used
herein being defined in Article 5):
ARTICLE 1
GUARANTY
SECTION 1.01. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor
hereby (a) guarantees to each Guaranteed Party the due and punctual payment,
observance and performance of all of the Guaranteed Obligations in accordance
with their respective terms and when and as due (whether at maturity, by reason
of acceleration or otherwise), or deemed to be due pursuant to Section 1.03, and
(b) agrees so to pay, observe or perform the same when so due, or deemed to be
due, upon demand.
SECTION 1.02. LIMITATION ON GUARANTY. Notwithstanding any provision
to the contrary, the obligations of the Guarantor under this Agreement shall be
in, but
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not in excess of, the maximum amount permitted by Applicable Law. To that end,
but only to the extent such obligations would otherwise be avoidable, the
obligations of the Guarantor under this Agreement shall be limited to the
maximum amount that, after giving effect to the incurrence thereof, would not
render the Guarantor insolvent or unable to pay its Debts as they mature or
leave the Guarantor with an unreasonably small capital. Any such limitation
shall be apportioned amongst the Guaranteed Obligations of the Guaranteed
Parties pro rata in accordance with their respective amounts thereof. For the
purposes of this Section 1.02, "insolvency", "unreasonably small capital" and
"inability to pay Debts as they mature" shall be determined in accordance with
Applicable Law.
SECTION 1.03. CONTINUANCE AND ACCELERATION OF GUARANTEED OBLIGATIONS
UPON CERTAIN EVENTS. If:
(a) any event shall occur under the Credit Agreement or any of the
other Guaranteed Agreements which pursuant to the terms thereof is to
result in the automatic acceleration of any Guaranteed Obligations;
(b) any injunction, stay or the like that enjoins any acceleration,
or demand for the payment, observance or performance, of any Guaranteed
Obligations that would otherwise be required or permitted under any
Guaranteed Agreement shall become effective; or
(c) any Guaranteed Obligations shall be or be determined to be or
become discharged, disallowed, invalid, illegal, void or otherwise
unenforceable (whether by operation of any present or future law or by
order of any court or governmental agency) against US Holdings;
then (i) such Guaranteed Obligations shall, for all purposes of this Agreement,
be deemed (A) in the case of clause (c), to continue to be outstanding and in
full force and effect notwithstanding the unenforceability thereof against US
Holdings and (B) if such is not already the case, to have thereupon become
immediately due and payable and to have commenced bearing interest at the rates
set forth in Sections 4.6.1 and 4.6.2 of the Credit Agreement, as applicable and
(ii) the Guaranteed Parties to which such Guaranteed Obligations are owing may,
with respect to such Guaranteed Obligations, exercise all of the rights and
remedies under this Agreement and the Guaranteed Agreements that would be
available to them during an Event of Default.
SECTION 1.04. RECOVERED PAYMENTS. The Guaranteed Obligations shall be
deemed not to have been paid, observed or performed, and the Guarantor's
obligations under this Agreement in respect thereof shall continue and not be
discharged, to the extent that any payment, observance or performance thereof by
US Holdings or any other guarantor, or any payment out of the proceeds of any
collateral, is recovered from or paid over by or for the account of any
Guaranteed Party for any reason, including as a preference or fraudulent
transfer or by virtue of any subordination (whether present or future or
contractual or otherwise) of the Guaranteed Obligations, whether such recovery
or payment over is effected by any judgment, decree or order of any court or
governmental agency, by any plan of reorganization or by settlement or
compromise by any Guaranteed Party (whether or not consented to by US
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Holdings, the Guarantor or any other guarantor) of any claim for any such
recovery or payment over. To the extent permitted by Applicable Law, the
Guarantor hereby expressly waives the benefit of any applicable statute of
limitations and agrees that it shall be liable under this Agreement with respect
to any Guaranteed Obligation whenever such a recovery or payment over thereof
occurs.
SECTION 1.05. EVIDENCE OF GUARANTEED OBLIGATIONS. The records of the
Administrative Agent and each other Guaranteed Party shall be conclusive
evidence of the Guaranteed Obligations owing to such Guaranteed Party and of all
payments, observances and performances in respect thereof.
SECTION 1.06. BINDING NATURE OF CERTAIN ADJUDICATIONS. The Guarantor
shall be conclusively bound by the adjudication in any action or proceeding,
legal or otherwise, involving any controversy arising under, in connection with,
or in any way related to, any of the Guaranteed Obligations, and by a judgment,
award or decree entered therein, if the Guarantor shall have had the right, or
shall have been given the opportunity, to participate in such action or
proceeding and shall have been given notice of such action or proceeding in time
to exercise such right or avail itself of such opportunity.
SECTION 1.07. NATURE OF GUARANTOR'S OBLIGATIONS. The Guarantor's
obligations under this Agreement (a) are absolute and unconditional, (b) are
unlimited in amount except as provided in Section 1.02, (c) constitute a
guaranty of payment and performance and not a guaranty of collection, (d) are as
primary obligor and not as a surety only, (e) shall be a continuing guaranty of
all present and future Guaranteed Obligations and all promissory notes and other
documentation given in extension or renewal or substitution for or increase of
any of the Guaranteed Obligations and (f) shall be irrevocable.
SECTION 1.08. NO RELEASE OF GUARANTOR. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE OBLIGATIONS OF THE GUARANTOR UNDER THIS AGREEMENT SHALL NOT
BE REDUCED, LIMITED OR TERMINATED, NOR SHALL THE GUARANTOR BE DISCHARGED FROM
ANY THEREOF, FOR ANY REASON WHATSOEVER (other than, subject to Sections 1.04 and
1.13, the payment, observance and performance of the Guaranteed Obligations),
including (and whether or not the same shall have occurred or failed to occur
once or more than once and whether or not the Guarantor shall have received
notice thereof):
(a) Guaranteed Obligations. (i) any change in the principal amount
of, or interest rate applicable to, (ii) any change in the period of
availability of any credit facility covered by, (iii) any change in the time of
payment, observance or performance of, (iv) any other amendment or modification
of any of the other terms and provisions of, (v) any release, composition or
settlement (whether by way of acceptance of a plan of reorganization or
otherwise) of, (vi) any subordination (whether present or future or contractual
or otherwise) of, or (vii) any discharge, disallowance, invalidity, illegality,
voidness or other unenforceability of, the Guaranteed Obligations;
(b) Other Guaranties of Guaranteed Obligations. (i) any failure to
obtain,
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(ii) any release, composition or settlement of, (iii) any amendment or
modification of any of the terms and provisions of, (iv) any subordination of,
or (v) any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability of, any other guaranties of the Guaranteed Obligations;
(c) Collateral Securing Guaranteed Obligations. (i) any failure to
obtain or any release of, (ii) any failure to protect or preserve, (iii) any
release, compromise, settlement or change of the time of payment of any
obligations constituting, (iv) any failure to perfect or maintain the perfection
or priority of any Lien upon, (v) any subordination of any Lien upon, or (vi)
any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability of any Lien or intended Lien upon, any collateral now or
hereafter securing the Guaranteed Obligations or any other guaranties thereof;
(d) Change in Relationships. any termination of or change in any
relationship between the Guarantor and the Borrower, including any such
termination or change resulting from a change in the ownership of the Guarantor,
any other guarantor or the Borrower or from the cessation of any commercial
relationship between the Guarantor and any other guarantor or the Borrower;
(e) Exercise of Rights, Remedies or Powers. any exercise of, or any
election not or failure to exercise, delay in the exercise of, waiver of, or
forbearance or other indulgence with respect to, any right, remedy or power
available to any Guaranteed Party, including (i) any election not or failure to
exercise any right of setoff, recoupment or counterclaim, (ii) any election of
remedies effected by any Guaranteed Party, including (to the extent applicable)
the foreclosure upon any real estate constituting collateral, whether or not
such election affects the right to obtain a deficiency judgment, and (iii) any
election by any Guaranteed Party in any proceeding under the Federal Bankruptcy
Code of the United States of America of the application of Section 1111(b)(2) of
such Code; and
(f) Other Acts, Events or Circumstances. ANY OTHER ACT OR FAILURE TO
ACT OR ANY OTHER EVENT OR CIRCUMSTANCE THAT (i) VARIES THE RISK OF THE GUARANTOR
UNDER THIS AGREEMENT OR (ii) BUT FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER
OF STATUTE OR RULE OF LAW OR EQUITY, OPERATE TO REDUCE, LIMIT OR TERMINATE THE
OBLIGATIONS OF THE GUARANTOR HEREUNDER OR DISCHARGE THE GUARANTOR HEREFROM.
SECTION 1.09. CERTAIN WAIVERS. To the extent permitted by Applicable
Law, the Guarantor waives:
(a) Requirement to Take Action. any requirement, and any right to
require, that any right or power be exercised or any action be taken against US
Holdings, any other guarantor or any collateral for the Guaranteed Obligations;
(b) Defenses and Compensation or Setoffs. all defenses to, and all
setoffs, counterclaims and claims of recoupment against, the Guaranteed
Obligations that may at any time be available to US Holdings or any other
guarantor;
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(c) Notices. (i) notice of acceptance of and intention to rely on
this Agreement, (ii) notice of the making or renewal of any advances or other
extensions of credit under the Credit Agreement and of the incurrence or renewal
of any other Guaranteed Obligations, (iii) notice of any of the matters referred
to in Section 1.08 and (iv) all other notices that may be required by Applicable
Law or otherwise to preserve any rights against the Guarantor under this
Agreement, including any notice of default, demand, dishonor, presentment and
protest;
(d) Diligence. diligence;
(e) Claims. any defense based upon, arising out of or in any way
related to (i) any claim that any sale or other disposition of any collateral
for the Guaranteed Obligations was not conducted in a commercially reasonable
fashion or that a public sale, should the Guaranteed Parties have elected to so
proceed, was, in and of itself, not a commercially reasonable method of sale,
(ii) any claim that any election of remedies by any Guaranteed Party, including
the exercise by any Guaranteed Party of any rights against any collateral,
impaired, reduced, released or otherwise extinguished any right that the
Guarantor might otherwise have had against US Holdings or any other guarantor or
against any collateral, including any right of subrogation, exoneration,
reimbursement or contribution or right to obtain a deficiency judgment, (iii)
any claim based upon, arising out of or in any way related to any of the matters
referred to in Section 1.08 and (iv) any claim that this Agreement should be
strictly construed against the Guaranteed Parties; and
(f) Other Defenses. ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT
WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO THE GUARANTOR AS A DEFENSE
AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
SECTION 1.10. INDEPENDENT CREDIT EVALUATION. The Guarantor has
independently, and without reliance on any information supplied by the
Guaranteed Parties, taken, and will continue to take, whatever steps it deems
necessary to evaluate the financial condition and affairs of US Holdings and any
other guarantors, and the Guaranteed Parties shall have no duty to advise the
Guarantor of information at any time known to them regarding such financial
condition or affairs.
SECTION 1.11. SUBORDINATION OF RIGHTS AGAINST US HOLDINGS.
(a) Subordination. All rights that the Guarantor may at any time
have against US Holdings, any other guarantor or any collateral for the
Guaranteed Obligations (including rights of subrogation, exoneration,
reimbursement and contribution and whether arising under Applicable Law or
otherwise), and all obligations that US Holdings or any other guarantor may at
any time have to the Guarantor, are hereby expressly subordinated to the prior
payment, observance and performance in full of the Guaranteed Obligations,
provided that unless an Event of Default shall have occurred and be continuing,
the Guarantor may retain any amount
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paid to it or recovered by it on account of any right or obligation subordinated
pursuant to this Section 1.11(a) and may enforce any of its rights and attempt
to obtain payment or performance of any of the obligations owed to it which are
subordinated pursuant to this Section 1.11(a).
(b) Events of Default. If an Event of Default shall occur and be
continuing, (i) the Guarantor shall not enforce any of the rights, or attempt to
obtain payment or performance of any of the obligations, subordinated pursuant
to Section 1.11(a) until the Guaranteed Obligations have been paid, observed and
performed in full, except that such prohibition shall not apply to routine acts,
such as the giving of notices and the filing of continuation statements,
necessary to preserve any such rights, and (ii) if any amount shall be paid to
or recovered by the Guarantor (whether directly or by way of setoff, recoupment
or counterclaim and whether in cash, property, securities or otherwise) on
account of any right or obligation subordinated pursuant to Section 1.11(a),
such amount shall be held in trust by the Guarantor for the benefit of the
Guaranteed Parties, not commingled with any of the Guarantor's other funds and
forthwith paid over to the Administrative Agent, in the exact form received,
together with any necessary endorsements, to be applied and credited against, or
held as security for, the Guaranteed Obligations and the obligations of the
Guarantor under this Agreement.
SECTION 1.12. PAYMENTS BY THE GUARANTOR.
(a) Time, Place and Manner. All payments due to the Administrative
Agent under this Agreement shall be made to the Administrative Agent in such
manner as the Administrative Agent may designate by notice to the Guarantor. All
payments due to any Guaranteed Party under this Agreement shall be made to the
Administrative Agent for the account of such Guaranteed Party in such manner as
the Administrative Agent may designate by notice to the Guarantor. A payment
shall not be deemed to have been made on any day unless such payment has been
received by the required Person, at the required place of payment, in US Dollars
in funds immediately available to such Person at such place, no later than 3:00
p.m. (New York time) on such day. Any amounts received by the Administrative
Agent or any other Person from the Guarantor after 3:00 p.m. (New York time), on
any Business Day, shall be applied on the next following Business Day to the
appropriate payment due on such day. Until so applied, interest shall continue
to accrue as provided in this Agreement on the amount of such payment.
(b) No Reductions. All payments due to any Guaranteed Party under
this Agreement, and all of the other terms, conditions, covenants and agreements
to be observed and performed by the Guarantor hereunder, shall be made, observed
or performed by the Guarantor without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether, in any case, in respect of an obligation owed by such Guaranteed Party
to the Guarantor, US Holdings or any other guarantor) or Tax, except for any
withholding or deduction for Taxes required to be withheld or deducted under
Applicable Law.
(c) Taxes. If any Tax is required to be withheld or deducted from,
or is otherwise payable by the Guarantor in connection with, any payment due to
any Guaranteed Party under this Agreement, the Guarantor (i) shall, if required,
withhold or deduct the amount of
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such Tax from such payment and, in any case, pay such Tax to the appropriate
taxing authority in accordance with Applicable Law and (ii) shall pay to such
Guaranteed Party (A) such additional amounts as may be necessary so that the net
amount received by such Guaranteed Party with respect to such payment, after
withholding or deducting all Taxes required to be withheld or deducted, is equal
to the full amount payable under this Agreement and (B) an amount equal to all
Taxes payable by such Guaranteed Party as a result of payments made by the
Guarantor (whether to a taxing authority or to such Guaranteed Party) pursuant
to this Section 1.12(c). If any Tax is withheld or deducted from, or is
otherwise payable by the Guarantor in connection with, any payment due to any
Guaranteed Party under this Agreement, the Guarantor shall, as soon as possible
after the date of such payment, furnish to such Guaranteed Party the original or
a certified copy of a receipt for such Tax from the applicable taxing authority.
If any payment due to any Guaranteed Party under this Agreement is or is
expected to be made without withholding or deducting therefrom, or otherwise
paying in connection therewith, any Tax payable to any taxing authority, the
Guarantor shall, within 30 days after any request from such Guaranteed Party,
furnish to such Guaranteed Party a certificate from such taxing authority, or an
opinion of counsel acceptable to such Guaranteed Party, in either case stating
that no Tax payable to such taxing authority was or is, as the case may be,
required to be withheld or deducted from, or otherwise paid by the Guarantor in
connection with, such payment.
(d) Authorization to Charge Accounts. The Guarantor hereby
authorizes each Guaranteed Party, if and to the extent any amount payable by the
Guarantor under this Agreement (whether payable to such Guaranteed Party or to
any other Guaranteed Party) is not otherwise paid when due, to charge such
amount against any or all of the accounts of the Guarantor with such Guaranteed
Party (whether maintained at a branch or office located within or outside the
United States or Canada), with the Guarantor remaining liable for any
deficiency.
(e) Extension of Payment Dates. Whenever any payment to any
Guaranteed Party under this Agreement would otherwise be due (except by reason
of acceleration) on a day that is not a Business Day, such payment shall instead
be due on the next succeeding Business Day. If the date any payment under this
Agreement is due is extended (whether by operation of this Agreement, Applicable
Law or otherwise), such payment shall bear interest for such extended time at
the rate of interest applicable hereunder.
SECTION 1.13. CONTINUANCE OF GUARANTY. The obligations of the
Guarantor under this Article 1 shall continue in full force and effect until (a)
the termination of the Aggregate Commitment and (b) the payment, observance and
performance in full of the Guaranteed Obligations.
ARTICLE 2
CERTAIN REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants as follows:
SECTION 2.01. REPRESENTATIONS AND WARRANTIES. The
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Guarantor is duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization, has the necessary corporate power
and authority to carry on its businesses and is duly qualified and in good
standing as a foreign corporation, and is authorized to do business, in all
jurisdictions in which the failure to be in good standing or authorized to do
business would have a Materially Adverse Effect.
SECTION 2.02. AUTHORIZATION; ENFORCEABILITY; REQUIRED CONSENTS;
ABSENCE OF CONFLICTS.
(a) Authorization. The Guarantor has the corporate power, and has
taken all necessary action (including, any necessary stockholder action) to
authorize it to execute, deliver and perform in accordance with its terms this
Agreement.
(b) Enforceability. This Agreement has been duly executed and
delivered by the Guarantor and is a legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
except to the extent such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, receivership, fraudulent conveyance or
similar laws affecting or relating to the enforcement of creditors' rights
generally, and by equitable principles (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(c) Required Consents; Absence of Conflicts. The execution, delivery
and performance in accordance with its terms of this Agreement by the Guarantor
do not (y) require any governmental approval or any other consent or approval,
which has not been obtained, including any consent or approval of US Holdings or
any consent or approval of the stockholders of the Guarantor or US Holdings or
(z) violate, conflict with, result in a breach of, constitute a default under,
or result in or require the creation of any Lien upon any assets of the
Guarantor or US Holdings under, (i) any material loan agreement, loan or trust
indenture, trust deed or any similar agreement or instrument to which the
Guarantor or US Holdings is a party or by which the Guarantor, US Holdings or
any of their respective properties may be bound or (ii) any Applicable Law,
except in each case to the extent such violation, conflict, breach, default or
Lien has not had and would not have a Material Adverse Effect.
SECTION 2.03. NO REQUIRED FILING. It is not necessary under the laws
applicable to the Guarantor in order to ensure the legality, validity, binding
effect or enforceability of this Agreement to file, register or record this
Agreement in any public office or obtain any order, consent, approval, license,
authorization or exemption from any governmental or public body or authority or
any subdivision thereof.
[SECTION 2.04. SHAREHOLDERS. The Guarantor is the sole registered
holder of 100% of the issued and outstanding shares of the Capital Stock of US
Holdings, free and clear of any Lien except for Permitted Encumbrances.] [This
Section is to be used only in the Agreement signed by QPHC.]
[SECTION 2.04. SHAREHOLDERS. The Guarantor owns or controls 100% of
the issued and outstanding shares of the Capital Stock of QPHC, and QPHC is the
sole
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registered holder of 100% of the issued and outstanding shares of the Capital
Stock of US Holdings, in each of the foregoing cases, free and clear of any Lien
except for Permitted Encumbrances.] [This Section is to be used only in the
Agreement signed by QPI.]
SECTION 2.05. SOLVENCY. As of the date hereof and at all times
thereafter and after giving effect to the transactions contemplated by the Loan
Documents, the Guarantor, on a consolidated basis, is and will be Solvent.
ARTICLE 3
CERTAIN COVENANTS
From the date hereof and until payment, observance and performance
in full of the Guaranteed Obligations, the Guarantor shall:
SECTION 3.01. COMPLIANCE WITH CREDIT AGREEMENT. Comply with all
provisions of the Credit Agreement that are applicable to it, including, without
limitation, Article XI thereof.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. NOTICES AND DELIVERIES.
(a) Manner of Delivery. All notices, communications and materials
(including all Information) to be given or delivered pursuant to this Agreement
shall, except in those cases where giving notice by telephone is expressly
permitted, be given or delivered in writing (which shall include telex and
telecopy transmissions). Demands under Section 1.01(b) may be by telephone. In
the event of a discrepancy between any telephonic notice and any written
confirmation thereof, such written confirmation shall be deemed the effective
notice except to the extent that the Administrative Agent has acted in reliance
on such telephonic notice.
(b) Addresses. All notices, communications and materials to be given
or delivered pursuant to this Agreement shall be given or delivered to the
intended party at the address or telex, telecopier or telephone number and to
the attention of the individual or department, set forth opposite such intended
party's name on the signature pages to the Credit Agreement or, in the case of a
Person that becomes a Guaranteed Party pursuant to an assignment, set forth in
the transfer undertaking executed in connection with such assignment, or at such
other address or telex, telecopier or telephone number or to the attention of
such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (A) if the party to which such
information pertains is the Guarantor, the Administrative Agent and each other
Guaranteed Party, (B) if the party to which such information pertains is the
Administrative Agent, the Guarantor and each Guaranteed Party, and (C) if the
party to which such information
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pertains is another Guaranteed Party, the Guarantor and the Administrative
Agent.
(c) Effectiveness. Each notice and communication and any material to
be given or delivered pursuant to this Agreement shall be deemed so given or
delivered (A) if sent by registered or certified mail, postage prepaid, return
receipt requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a post office and a
receipt therefor is issued thereby, (B) if sent by any other means of physical
delivery, when such notice, communication or material is delivered to the
appropriate address as above provided, (C) if sent by telex, when such notice,
communication or material is transmitted to the appropriate number determined as
above provided in this Section 4.01 and the appropriate answer-back is received,
(D) if sent by telecopier before 3:00 p.m. on a Business Day, on that day and if
sent by telecopier after 3:00 p.m. on a Business Day, on the Business Day next
following the date of sending, provided in each case that such notice,
communication or material is transmitted to the appropriate telecopier number as
above provided and is received at such number and (E) if given by telephone,
when communicated to the individual or any member of the department specified as
the individual or department to whose attention notices, communications and
materials are to be given or delivered, except that (x) notices of a change of
address, telex, telecopier or telephone number or individual or department to
whose attention notices, communications and materials are to be given or
delivered shall not be deemed given until received and (y) notices,
communications and materials to be given or delivered to the Administrative
Agent or any other Guaranteed Party pursuant to this Agreement shall not be
deemed given or delivered until received by the officer of the Administrative
Agent or such other Guaranteed Party responsible, at the time, for the
administration of the relevant Guaranteed Agreements.
(d) Reasonable Notice. Any requirement under Applicable Law of
reasonable notice by any Guaranteed Party to the Guarantor of any event in
connection with, or in any way related to, any Guaranteed Agreements or the
exercise by any Guaranteed Party of any of its rights thereunder or hereunder
shall be met if notice of such event is given to the Guarantor in the manner
prescribed above at least 10 days before (A) the date of such event or (B) the
date after which such event will occur.
SECTION 4.02. EXPENSES; INDEMNIFICATION. Whether or not any advances
are made or obligations are incurred under any Guaranteed Agreements, the
Guarantor shall:
(a) pay or reimburse each Guaranteed Party for all transfer,
documentary, stamp and similar taxes, and all recording and filing fees and
taxes, payable in connection with, arising out of, or in any way related to, the
execution, delivery and performance of this Agreement;
(b) pay or reimburse the Administrative Agent for all reasonable
costs and expenses (including reasonable fees and disbursements of legal counsel
(limited to one US legal counsel, one Canadian legal counsel and one local
counsel in all other relevant jurisdictions selected by the Administrative
Agent), appraisers, accountants and other experts employed or retained by the
Administrative Agent) incurred by the Administrative Agent in connection with,
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arising out of, or in any way related to (i) the negotiation, preparation,
execution and delivery of (A) this Agreement and (B) whether or not executed,
any waiver, amendment or consent hereunder or hereto, (ii) the administration of
and any operations under this Agreement, (iii) consulting with respect to any
matter in any way arising out of, related to, or connected with, this Agreement,
including the protection, preservation, exercise or enforcement of any of the
rights of the Guaranteed Parties in, under or related to the Guaranteed
Agreements, or (iv) protecting, preserving, exercising or enforcing any of the
rights of the Guaranteed Parties in, under or related to this Agreement;
(c) pay or reimburse each Guaranteed Party for all reasonable costs
and expenses (including reasonable fees and disbursements of legal counsel and
other experts employed or retained by such Guaranteed Party) incurred by such
Guaranteed Party in connection with, arising out of, or in any way related to
protecting, preserving, exercising or enforcing during an Event of Default any
of its rights in, under or related to this Agreement; and
(d) indemnify and hold each Guaranteed Party harmless from and
against all losses (including judgments, penalties and fines) suffered, and pay
or reimburse each Guaranteed Party for all reasonable costs and expenses
(including reasonable fees and disbursements of legal counsel and other experts
employed or retained by such Guaranteed Party) incurred, by such Guaranteed
Party in connection with, arising out of, or in any way related to (i) any
Guarantee Related Claim (whether asserted by such Guaranteed Party or the
Guarantor or any other Person), including the prosecution or defense thereof and
any litigation or proceeding with respect thereto (whether or not, in the case
of any such litigation or proceeding, such Guaranteed Party is a party thereto),
or (ii) any investigation, governmental or otherwise, arising out of, related
to, or in any way connected with, this Agreement or the relationships
established hereunder, except that the foregoing indemnity shall not be
applicable to any loss suffered by any Guaranteed Party to the extent such loss
is determined by a judgment of a court that is binding on the Guarantor and such
Guaranteed Party, final and not subject to review on appeal, to be the result of
acts or omissions on the part of such Guaranteed Party constituting (w) gross
negligence, (x) willful misconduct, (y) knowing violations of law or (z) in the
case of claims by the Guarantor against such Guaranteed Party, such Guaranteed
Party's failure to observe any other standard applicable to it under any of the
other provisions of this Agreement or, but only to the extent not waivable
hereunder, Applicable Law.
SECTION 4.03. AMOUNTS PAYABLE DUE UPON REQUEST FOR PAYMENT. All
amounts payable by the Guarantor under Section 4.02 shall, except as otherwise
expressly provided, be immediately due upon request for the payment thereof.
SECTION 4.04. INTEREST. All amounts not paid when due and payable
under this Agreement shall, to the maximum extent permitted by Applicable Law,
bear interest at a rate per annum equal to the US Prime Rate as in effect from
time to time plus 2%. Notwithstanding the foregoing, nothing contained in this
Agreement shall require the Guarantor at any time to pay interest at a rate
exceeding the Maximum Permissible Rate. If interest payable by the Guarantor on
any date would exceed the maximum amount permitted by the Maximum Permissible
Rate, such interest payment shall automatically be reduced to such maximum
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 11
<PAGE>
permitted amount, and interest for any subsequent period, to the extent less
than the maximum amount permitted for such period by the Maximum Permissible
Rate, shall be increased by the unpaid amount of such reduction. Interest shall
be computed on the basis of a year of 365 days or 366 days, as the case may be,
and paid for the actual number of days elapsed. Interest for any period shall be
calculated from and including the first day thereof to but excluding the last
day thereof. The yearly rate of interest to which each rate determined in
accordance with the foregoing provisions hereof is equivalent is the rate so
determined multiplied by the actual number of days in the year and divided by
365.
SECTION 4.05. REMEDIES OF THE ESSENCE. The various rights and
remedies of the Guaranteed Parties under this Agreement are of the essence of
this Agreement, and the Guaranteed Parties shall be entitled to obtain a decree
or order requiring specific performance of each such right and remedy.
SECTION 4.06. RIGHTS CUMULATIVE. Each of the rights and remedies of
the Guaranteed Parties under this Agreement shall be in addition to all of their
other rights and remedies under the Guaranteed Agreements and Applicable Law,
and nothing in this Agreement shall be construed as limiting any such rights or
remedies.
SECTION 4.07. DISCLOSURES; CONFIDENTIALITY. All information
delivered by or on behalf of the Guarantor to any Guaranteed Party not otherwise
available to the public shall be held confidential by such Guaranteed Party in
accordance with customary banking practices or similar practices with respect to
confidential information in such Guaranteed Party's industry. Notwithstanding
the foregoing, any Guaranteed Party may disclose to, and exchange and discuss
with, any other Person (the Guaranteed Party and each such other Person being
hereby authorized to do so) any information concerning this Agreement or any
Guaranteed Agreement or the Guarantor (whether received by such Guaranteed Party
in connection with or pursuant to this Agreement or any Guaranteed Agreement or
otherwise) for the purpose of (a) complying with Applicable Law, (b) complying
with any request or directive from any governmental agency, regulatory body or
representatives of any thereof, (c) protecting, preserving, exercising or
enforcing any of their rights in, under or related to this Agreement or any
Guaranteed Agreement, (d) administering the transactions contemplated by and
performing any of their obligations under or related to this Agreement or any
Guaranteed Agreement or (e) consulting with respect to any of the foregoing
matters.
SECTION 4.08. AMENDMENTS; WAIVERS. Any term, covenant, agreement or
condition of this Agreement may be amended, and any right under this Agreement
may be waived, if, but only if, such amendment or waiver is in writing and is
signed by the Administrative Agent (at the direction of each Lender) and, in the
case of an amendment, by the Guarantor. Unless otherwise specified in such
waiver, a waiver of any right under this Agreement shall be effective only in
the specific instance and for the specific purpose for which given. No election
not to exercise, failure to exercise or delay in exercising any right, nor any
course of dealing or performance, shall operate as a waiver of any right of the
Guaranteed Parties under this Agreement or Applicable Law, nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right of the
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 12
<PAGE>
Guaranteed Parties under this Agreement or Applicable Law.
SECTION 4.09. SET-OFF; SUSPENSION OF PAYMENT AND PERFORMANCE. Each
Guaranteed Party is hereby authorized by the Guarantor, at any time and from
time to time, without notice, (a) during any Event of Default, to set off
against, and to appropriate and apply to the payment of, the Indebtedness and
liabilities of the Guarantor under this Agreement (whether owing to such
Guaranteed Party or to any other Guaranteed Party and whether matured or
unmatured, fixed or contingent or liquidated or unliquidated) any and all
Indebtedness and liabilities owing by such Guaranteed Party or any of its
Affiliates to the Guarantor (whether payable in US Dollars or any other
currency, whether matured or unmatured and, in the case of Indebtedness or
liabilities that are deposits, whether general or special, time or demand and
however evidenced and whether maintained at a branch or office located within or
outside the United States or Canada) and (b) during an Event of Default to
suspend the payment and performance of such Indebtedness or liabilities owing by
such Guaranteed Party and, in the case of Indebtedness or liabilities that are
deposits, to return as unpaid for insufficient funds any and all checks and
other items drawn against such deposits.
SECTION 4.10. ASSIGNMENTS AND PARTICIPATIONS.
(a) Assignments.
(i) The Guarantor may not assign any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent (at the direction of each Lender) and no assignment of any
such obligation shall release the Guarantor therefrom unless the Administrative
Agent shall have consented to such release in a writing specifically referring
to the obligation from which the Guarantor is to be released.
(ii) Each Guaranteed Party may, in connection with any
assignment to any Person of any or all of the Guaranteed Obligations owing to it
or its commitment to make advances or the extension of credit under a Guaranteed
Agreement, assign to such Person any or all of its rights and obligations under
this Agreement without the consent of the Guarantor or any other Guaranteed
Party. Any such assignment of any such obligation shall release such Guaranteed
Party therefrom.
(b) Participations. Each Guaranteed Party may, in connection with
any grant to any Person of a participation in any or all of the Guaranteed
Obligations owing to it or its commitment to make advances or the extension of
credit under a Guaranteed Agreement, grant to such Person a participation in any
or all of its rights under this Agreement without the consent of the Guarantor
or any other Guaranteed Party.
(c) Rights of Assignees and Participants. Each assignee of, and each
holder of a participation in, the rights of any Guaranteed Party under this
Agreement, if and to the extent the applicable assignment or participation
agreement so provides, (i) shall, with respect to its assignment or
participation, be entitled to all of the rights of a Guaranteed Party (as fully,
in the case of a holder of a participation, as though it were a Guaranteed
Party), subject to any conditions imposed on a Guaranteed Party hereunder with
respect thereto and (ii) may exercise
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 13
<PAGE>
any and all rights of set-off or banker's lien with respect thereto (as fully,
in the case of a holder of a participation, as though the Guarantor were
directly indebted to such holder for amounts payable under this Agreement to
which such holder is entitled under the applicable participation agreement);
provided, however, that no assignee or holder of a participation shall be
entitled to any amounts that would otherwise be payable to it with respect to
its assignment or participation under Section 1.12(b) or (c) unless (x) such
amounts are payable as a result of the introduction of any Applicable Law or any
change or introduction of a change in any Applicable Law enacted, adopted or
issued after the date the applicable assignment or participation agreement was
executed or (y) such amounts would have been payable to the Guaranteed Party
that made such assignment or granted such participation if such assignment had
not been made or such participation granted.
SECTION 4.11. SUCCESSOR ADMINISTRATIVE AGENT. Upon the acceptance by
any Person of its appointment as a successor Administrative Agent, such Person
shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the Administrative Agent under this
Agreement and the retiring Administrative Agent shall be discharged from its
duties and obligations as Administrative Agent hereunder.
SECTION 4.12. GOVERNING LAW. This Agreement (including matters
relating to the Maximum Permissible Rate) shall be construed in accordance with
and governed by the law of the State of New York.
SECTION 4.13. JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any
judicial proceeding brought against the Guarantor with respect to any Guarantee
Related Claim may be brought in any court of competent jurisdiction in the City
of New York, and, by execution and delivery of this Agreement, the Guarantor, to
the extent permitted by Applicable Law, (a) accepts, generally and
unconditionally, the nonexclusive jurisdiction of such courts and any related
appellate court and irrevocably agrees to be bound by any judgment rendered
thereby in connection with any Guarantee Related Claim and (b) irrevocably
waives any objection it may now or hereafter have as to the venue of any such
proceeding brought in such a court or that such a court is an inconvenient
forum. The Guarantor hereby waives personal service of process and consents that
service of process upon it may be made by certified or registered mail, return
receipt requested, at its address specified or determined in accordance with the
provisions of Section 4.01(b), and service so made shall be deemed completed on
the third Business Day after such service is deposited in the mail. Nothing
herein shall affect the right of any Guaranteed Party to serve process in any
other manner permitted by law or shall limit the right of any Guaranteed Party
to bring proceedings against the Guarantor in the courts of any other
jurisdiction. Any judicial proceeding by the Guarantor against the
Administrative Agent or any other Guaranteed Party involving any Guarantee
Related Claim shall be brought only in a court located in, in the case of the
Administrative Agent, the City of New York, the City of Toronto, Province of
Ontario or the City of Montreal, Province of Quebec, and in the case of any
other Guaranteed Party, the jurisdiction in which such Guaranteed Party's
principal office is located. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH OTHER GUARANTEED PARTY HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 14
<PAGE>
INVOLVING ANY GUARANTEE RELATED CLAIM.
SECTION 4.14. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NO GUARANTEED PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO,
AND THE GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, (a) ANY
LOSS OR DAMAGE SUSTAINED BY THE GUARANTOR THAT MAY OCCUR AS A RESULT OF, IN
CONNECTION WITH, OR THAT IS IN ANY WAY RELATED TO, ANY ACT OR FAILURE TO ACT
REFERRED TO IN SECTION 1.08 OR (b) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES SUFFERED BY THE GUARANTOR IN CONNECTION WITH ANY GUARANTEE RELATED
CLAIM.
SECTION 4.15. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Guarantor hereby
waives any provision of Applicable Law that renders any provision of this
Agreement prohibited or unenforceable in any respect.
SECTION 4.16. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto were upon the same instrument.
SECTION 4.17. SURVIVAL OF OBLIGATIONS. Except as otherwise expressly
provided herein, the rights and obligations of the Guarantor and the Guaranteed
Parties under this Agreement shall survive the satisfaction of all liabilities
owed to the Finance Parties pursuant to the Loan Documents and any other date on
which any of the Guaranteed Obligations become due.
SECTION 4.18. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement among the Guarantor, the Administrative Agent and the other Guaranteed
Parties relating to the subject matter hereof and supersedes all prior
agreements, representations and understandings, if any, relating to the subject
matter hereof.
SECTION 4.19. SUCCESSORS AND ASSIGNS. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the Guarantor and
the Guaranteed Parties and their respective successors and assigns.
ARTICLE 5
INTERPRETATION
SECTION 5.01. DEFINITIONAL PROVISIONS.
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 15
<PAGE>
(a) Certain Terms Defined by Reference. Except as otherwise
specified herein, all terms defined in the Credit Agreement are used herein with
the meanings therein ascribed to them.
(b) Other Defined Terms. For purposes of this Agreement:
"Agreement" means this Loan Party Guarantee Agreement, including all
schedules, annexes and exhibits hereto, as it may from time to time be amended,
supplemented, restated or otherwise modified.
"Debt" means any liability that constitutes "debt" or "Debt" under
Section 101 (12) of the Federal Bankruptcy Code of the United States of America
or under the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any analogous Applicable Law.
"Guarantee Related Claim" means any claim (whether civil, criminal
or administrative and whether sounding in tort, contract or otherwise) in any
way arising out of, related to, or connected with, this Agreement or the
relationships established hereunder, including without limitation any and all
expenses (including counsel fees and expenses) incurred by any Guaranteed Party
in enforcing any rights under this Agreement.
"Guaranteed Agreements" includes the Credit Agreement and each other
instrument, document or agreement evidencing any Guaranteed Obligation.
"Guaranteed Obligations" means all Indebtedness and other
liabilities of the Borrower (including in its capacity as a "debtor in
possession" under the Federal Bankruptcy Code of the United States of America or
under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts) owing to, or
in favor or for the benefit of, or purporting to be owing to, or in favor or for
the benefit of, the Guaranteed Parties under (i) the Loan Documents and (ii) any
other document or instrument constituting or evidencing any such Indebtedness
and liabilities under the Loan Documents, in each case (x) WHETHER NOW EXISTING
OR HEREAFTER ARISING OR ACQUIRED, (y) whether owing to, or in favor or for the
benefit of, or purporting to be owing to or in favor or for the benefit of,
Persons that are Guaranteed Parties as of the date of the execution of the
Credit Agreement or that become Guaranteed Parties at any time thereafter and
(z) WHETHER OR NOT AN ALLOWABLE CLAIM AGAINST THE BORROWER UNDER THE FEDERAL
BANKRUPTCY CODE OF THE UNITED STATES OF AMERICA OR UNDER ANY LAWS, DOMESTIC OR
FOREIGN, RELATING TO BANKRUPTCY, INSOLVENCY, REORGANIZATION, WINDING UP OR
COMPOSITION OR ADJUSTMENT OF DEBTS, OR OTHERWISE ENFORCEABLE AGAINST THE
BORROWER, AND INCLUDING, IN ANY EVENT, INTEREST AND OTHER LIABILITIES ACCRUING
OR ARISING AFTER THE FILING BY OR AGAINST THE BORROWER OF A PETITION UNDER THE
FEDERAL BANKRUPTCY CODE OF THE UNITED STATES OF AMERICA OR UNDER ANY LAWS,
DOMESTIC OR FOREIGN, RELATING TO BANKRUPTCY, INSOLVENCY, REORGANIZATION, WINDING
UP OR COMPOSITION
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 16
<PAGE>
OR ADJUSTMENT OF DEBTS, OR THAT WOULD HAVE SO ACCRUED OR ARISEN BUT FOR THE
FILING OF SUCH A PETITION.
"Guaranteed Parties" means all Persons that at any time are the
Administrative Agent, an Arranger, a Co-Syndication Agent, or a Lender, in each
case as well as their respective successors and permitted assigns.
"Guarantor" means [insert "Imprimeries Quebecor Inc. - Quebecor
Printing Inc., a Canadian corporation," or "Quebecor Printing Holding Company, a
Delaware corporation", as applicable].
"Maximum Permissible Rate" means with respect to interest payable on
any amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee being unable to enforce payment of (or, if collected, to
retain) all or any part of such amount or the interest payable thereon.
"Representation and Warranty" means each representation or warranty
made pursuant to or under (i) any provision of this Agreement or (ii) any
amendment to, or waiver of rights under, this Agreement, WHETHER OR NOT, IN THE
CASE OF ANY REPRESENTATION OR WARRANTY REFERRED TO IN CLAUSE (i) OR (ii) OF THIS
DEFINITION (EXCEPT, IN EACH CASE, TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED),
THE INFORMATION THAT IS THE SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF
THE GUARANTOR.
(c) Other Definitional Provisions. (i) Except as otherwise specified
herein, all references herein (A) to any Person shall be deemed to include such
Person's successors and assigns, (B) to any Applicable Law defined or referred
to herein shall be deemed references to such Applicable Law or any successor
Applicable Law as the same may have been or may be amended or supplemented from
time to time and (C) to any contract or agreement defined or referred to herein
shall be deemed references to such contract or agreement (and, in the case of
any instrument, any other instrument issued in substitution therefor) as the
terms thereof may have been or may be amended, supplemented, waived or otherwise
modified from time to time.
(ii) When used in this Agreement, the words "herein", "hereof"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article",
"Section", "Annex", "Schedule" and "Exhibit" shall refer to articles and
sections of, and annexes, schedules and exhibits to, this Agreement unless
otherwise specified.
(iii) Whenever the context so requires, the neuter gender
includes the masculine or feminine, the masculine gender includes the feminine,
and the singular numbers includes the plural, and vice versa.
(iv) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 17
<PAGE>
other items are in the category in which such item or items are "included", such
item or items are in such category, and shall not be construed as indicating
that the items in the category in which such item or items are "included" are
limited to such items or to items similar to such items.
(v) Each authorization in favor of the Guaranteed Parties or
any other Person granted by or pursuant to this Agreement shall be deemed to be
irrevocable and coupled with an interest.
(vi) Except as otherwise indicated, any reference herein to
the "Guaranteed Obligations", the "Guaranteed Agreements", the "Guaranteed
Parties" or any other collective or plural term shall be deemed a reference to
each and every item included within the category described by such collective or
plural term, so that a reference to the "Guaranteed Obligations", the
"Guaranteed Agreements" or the "Guaranteed Parties" shall be deemed a reference
to any or all of the Guaranteed Obligations, the Guaranteed Agreements or the
Guaranteed Parties, as the case may be.
(vii) Except as otherwise specified herein, all references
herein to any Guaranteed Party shall be deemed to refer to such Person however
designated in the Guaranteed Agreements, so that a reference to costs incurred
by a Guaranteed Party in connection with this Agreement shall be deemed to
include costs incurred by such Person as a principal.
(viii) Except as otherwise specified therein, all terms
defined in this Agreement shall have the meanings herein ascribed to them when
used in any certificate, opinion or other document delivered pursuant hereto.
SECTION 5.02. REPRESENTATIONS AND WARRANTIES. All Representations
and Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of such time, (b) in the case of any Representation and
Warranty contained in this Agreement or any other document at the time any
advance is made or obligation is incurred under any Guaranteed Agreement, at and
as of such time and (c) in the case of any particular Representation and
Warranty, wherever contained, at such other time or times as such Representation
and Warranty is made or deemed made in accordance with the provisions of this
Agreement or the document pursuant to, under or in connection with which such
Representation and Warranty is made or deemed made.
SECTION 5.03. CAPTIONS. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or in any way affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of August 12, 1999.
[NAME OF APPLICABLE GUARANTOR], as
Guarantor
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 18
<PAGE>
By:
Name:
Title:
By:
Name:
Title:
ROYAL BANK OF CANADA, as
Administrative Agent, acting both on its
own behalf and on behalf of each of the
Guaranteed Parties (as hereinabove
defined)
By:
Name:
Title:
REVOLVING CREDIT SCHEDULES Schedule 1.1.2 - Page 19
<PAGE>
SCHEDULE 1.1.3 to the 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
PERMITTED ENCUMBRANCES
(Sections 2.1.14 and 11.2.1)
"Permitted Encumbrances" means:
(a) any Lien for taxes, rates, assessments or governmental charges or levies
(i) not at the time due and delinquent, or (ii) which are due and
delinquent but the validity of which is being contested in good faith at
the time and in respect of which QPI or the relevant Restricted Entity
shall have set aside on its books reserves deemed to be adequate therefor
and not resulting in a qualification by the auditors of QPI;
(b) any Lien securing the claim of a materialman, mechanic, carrier,
warehouseman or landlord for labor, materials, supplies or rentals
incurred in the ordinary course of business, but only if payment thereof
shall not at the time be required to be made in accordance with Section
11.1.5 of the Agreement and foreclosure, distraint, sale or other similar
proceedings shall not have been commenced;
(c) any Lien consisting of a deposit or pledge made in the ordinary course of
business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) any Lien existing on (i) any property or asset of any Person at the time
such Person becomes a Restricted Entity or (ii) any property or asset at
the time such property or asset is acquired by QPI or a Restricted Entity,
but only, in the case of either (i) or (ii), if and so long as (A) such
Lien is and will remain confined to the property or asset subject to it at
the time such Person becomes a Restricted Entity or such property or asset
is acquired and to fixed improvements thereafter erected on such property
or asset, (B) such Lien secures only the obligation secured thereby at the
time such Person becomes a Restricted Entity or such property or asset is
acquired and (C) the obligation secured by such Lien is not in default and
provided that such Lien is discharged by QPI or the applicable Restricted
Entity, as the case may be, within 180 days after such Person becomes a
Restricted Entity or such property or asset is acquired, as the case may
be;
(e) easements, rights-of-way, zoning restrictions and other similar
encumbrances incurred in the ordinary course of business which are not
material in amount, and which, in the aggregate, do not materially detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the business of QPI or any of the Restricted Entities;
REVOLVING CREDIT SCHEDULES Schedule 1.1.3 - Page 20
<PAGE>
(f) Liens on equipment acquired by QPI or any Restricted Entity in the
ordinary course of business, provided that (i) such Lien secures only the
purchase price of such equipment, (ii) such Lien is confined to such
equipment so acquired and (iii) such Lien is discharged by QPI or the
Restricted Entity, as the case may be, or is otherwise terminated within
180 days after the installation of such acquired equipment;
(g) cautionary Liens on short-term assets transferred in securitization or
factoring transactions;
(h) any Lien on the assets of a specific Project securing Non-Recourse
Indebtedness incurred for purposes of financing such Project and any Lien
on the assets of, or the shares or other form of participating interest
held in, any wholly-owned Non-Recourse Subsidiary to secure Non-Recourse
Indebtedness incurred by such wholly-owned Non-Recourse Subsidiary to
finance the Project being carried out by such Non-Recourse Subsidiary or
by the Project Vehicle formed to carry out the Project which such
Non-Recourse Indebtedness is financing;
(i) Liens securing Indebtedness of Imprimeries Didier - Quebecor S.A. (France)
and its Subsidiaries, provided such Liens are restricted to the assets of
the debtor of such Indebtedness; and
(j) Liens securing obligations under off-balance sheet operating leases which
are not Capitalized Leases, provided such Liens are restricted to the
relevant lease or sub-lease and the assets covered thereby.
REVOLVING CREDIT SCHEDULES Schedule 1.1.3 - Page 21
<PAGE>
SCHEDULE 2.1.2 to the 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
LIST OF SUBSIDIARIES
(Section 2.1.2)
SEE IMMEDIATELY FOLLOWING PAGES
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 22
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
====================================================================================================================================
CANADA
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Graphicor Transport Canadian Federal -unlimited number -100 common No par value -100% to Quebecor
Inc. Corporation of common shares Printing Inc.
Province of shares
Ontario, Canada
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Merrill Canadian Federal -unlimited number -100 common No par value -51% to Quebecor
Canada Inc. Corporation of common shares Printing Inc.
Province of shares -49% to Merrill
Quebec, Canada Corporation, Canada
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Province of -unlimited number -12,000,000 No par value -95% to Quebecor
MIL Inc. Ontario, Canada of common common shares Printing Inc.
shares -5% to David Lake
-unlimited number
of preference
shares
- ------------------------------------------------------------------------------------------------------------------------------------
3034143 Canada Inc.(1) Canadian Federal -unlimited number -200 class A No par value -100% to Quebecor
Corporation of: Printing Inc.
Province of . class A
Quebec, Canada . class B
. class C
. class D
. class E
. class F
. class G
- ------------------------------------------------------------------------------------------------------------------------------------
3109640 Canada Inc.(1) Canadian Federal -unlimited number -61,646 class A No par value -100% to Quebecor
Corporation of: Printing Inc.
Province of . class A
Quebec, Canada . class B
. class C
. class D
. class E
. class F
. class G
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1. Dissolved and liquidated into Quebecor Printing Inc.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 23
<PAGE>
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Quebecor Printing Canadian Federal -unlimited number -100 common No par value -100% to Quebecor
Graphica Inc. Corporation of common shares shares Printing Inc.
Province of
Quebec, Canada
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 24
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
CANADA
- ------------------------------------------------------------------------------------------------------------------------------------
Les Specialistes du Province of Quebec, -unlimited number of -360 Class A No par value -75% to Quebecor Printing
Document Inc. Canada Class A Inc.
-25% to 9052-2418 Quebec
Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Joncas Postexperts Inc. Province of Quebec, --unlimited number -10,000 Class A No par value -50,01% to Quebecor
Canada of: Printing Inc.
. class A -39,98% to 9029-9355 Quebec
. class B Inc.
. class C -10,01% to 9030-1276 Quebec
. class D Inc.
. class E
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Nova Province of Nova -2,000,000,000 -100 common shares No par value -100% to Quebecor Printing
Scotia ULC Scotia common shares Capital GP
- ------------------------------------------------------------------------------------------------------------------------------------
Web Press Graphics Ltd. Province of British -56,992 common shares -56,992 common No par value -50% to Quebecor Printing
Colombia shares Inc.
-50% to G.S.P. Enterprises
Ltd.
====================================================================================================================================
EUROPE
====================================================================================================================================
Holding Imprimeries Meaux, France -227,500 common -227,500 common FF 100 par -122,494 to 3034143 Canada
Quebecor-Fecomme S.A. shares shares value Inc.
-105,001 to Imprimeries
Quebecor Europe, S.A.
-1 to Jean Neveu
-1 to Charles G.Cavell
-1 to Yvan Lesniak
-1 to Michel P. Salbaing
-1 to Gaetan Lussier
- ------------------------------------------------------------------------------------------------------------------------------------
SCI Des Trois Tilleuls Meaux, France -100 shares -100 shares FF 100 par -99% to Imprimeries
(Partnership France) value Fecomme-Quebecor S.A.
-1% to Holding Imprimeries
Quebecor-Fecomme S.A.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 25
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimeries Meaux, France -332,400 common -332,400 common FF 125 par -332,395 to Holding
Fecomme-Quebecor S.A. shares shares value Imprimeries
Quebecor-Fecomme S.A.
-1 to Jean-Philippe Berh
-1 to Yvan Lesniak
-1 to Jean Neveu
-1 to Charles G. Cavell
-1 to Pierre Karl Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Printor Direct S.A. Orleans, France -270,000 common -270,000 common FF 100 par -215,995 to Imprimeries
shares shares value Fecomme-Quebecor, S.A.
-36,000 to Thierry Fecomme
-18,000 to Jacques Garnier
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Pierre Karl Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimeries Quebecor Nanterre, France -2,510,250 common -2,510,250 common FF 100 par -2,510,244 to 3109640
Europe, S.A. shares shares value Canada Inc.
-1 to Jean-Pierre Anselmini
-1 to Marcel Bigogne
-1 to Charles G. Cavell
-1 to Jean Neveu
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
SCI Saint-Jacques Nanterre, France -391,000 common -391,000 common FF 10 par -390,960 to Imprimeries
shares shares value Quebecor Europe, S.A.
-40 to Imprimeries Quebecor
Paris S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 26
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Inter Brochage S.A. Meaux, France -146,000 common -146,000 common FF 100 par -145,994 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Gerard Pouzoulet
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Interval S.A. Bobigny, France -261,112 common -261,112 common FF 100 par -149,996 to Imprimeries
shares shares value Quebecor Europe, S.A.
-50,001 to SA Produits
Alibel
-49,999 to Francois
Philipon
-5,557 to Gerard Pouzoulet
-5,556 to Marie Noelle
Pouzoulet
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Pierre Karl Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Inter Routage S.A. Bobigny, France -21,000 common shares -21,000 common FF 100 par -20,993 to Interval S.A.
shares value -1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Pierre Karl Peladeau
-1 to Francois Philipon
-1 to Gerard Pouzoulet
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 27
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Francor S.A. Nanterre, France -1,600,000 common -1,600,000 common FF 100 par -1,599,994 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Imprimeries
Didier-Quebecor S.A.
-1 to Jean Neveu
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Torcy Quebecor S.A. Meaux, France -702,500 common -702,500 common FF 100 par -702,494 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Pierre Karl Peladeau
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
- ------------------------------------------------------------------------------------------------------------------------------------
La Loupe Quebecor S.A. Paris, France -152,500 common -152,500 common FF 100 par -152,494 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Pierre Karl Peladeau
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 28
<PAGE>
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Brochage Routage Meaux, France -152,500 common -152,500 common FF 100 par -152,494 to Imprimeries
Quebecor S.A. shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
-1 to Pierre Karl Peladeau
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 29
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Blois Blois, France -202,500 common -202,500 common FF 100 par -202,494 to Imprimeries
Quebecor, S.A. shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Numeric S.A. Nanterre, France -10,000 common shares -10,000 common FF 100 par -9,994 to Imprimeries
shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Jean-Philippe Behr
-1 to Yvan Lesniak
-1 to Pierre Karl Peladeau
-1 to Laszlo Ross
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimeries Meaux, France -571,250 common -571,250 common FF 100 par -571,244 to Imprimeries
Didier-Quebecor S.A. shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Jean Neveu
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 30
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Heliogravure Lille, France -10,000 common shares -10,000 common FF 100 par -9,994 to Imprimeries
Didier-Quebecor S.A. shares value Didier-Quebecor S.A.
-1 to Jean-Pierre Anselmini
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Michel C. Salbaing
-1 to Pierre Karl Peladeau
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 31
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Alsacienne Strasbourg, France -385,000 common -385,000 common FF 100 par -384,994 to Imprimeries
Didier-Quebecor S.A. shares shares value Didier-Quebecor S.A.
-1 to Jean-Pierre Anselmini
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Michel C. Salbaing
-1 to Pierre Karl Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Quebecor Nanterre, France -2,500 common shares -2,500 common FF 100 par -2,494 to Imprimeries
Paris S.A. shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Charles G. Cavell
-1 to Gilbert Martinet
-1 to Jean Neveu
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Quebecor Meaux, France -Brochage Routage Quebecor
Services, G.I.E. S.A.
-Heliogravure Didier
Quebecor S.A.
-Imprimerie
Fecomme-Quebecor S.A.
-Imprimerie Alsacienne
Didier-Quebecor S.A.
-Imprimerie Blois Quebecor
S.A.
-Imprimeries
Didier-Quebecor S.A.
-La Loupe Quebecor S.A.
-Torcy Quebecor S.A.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 32
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Luxembourg
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing S.A. Luxembourg -2,200,000 common -1,500 common $100 par -1,499 to QPI Financial
shares shares value Services
-1 to Graphicor Transport
Inc.
====================================================================================================================================
GERMAN
- ------------------------------------------------------------------------------------------------------------------------------------
PMD Computertechnik GmbH Dormund 300,000 DM 300,000 DM -100% to Quebecor Printing
Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Druck - Ludwigsburg 50,000 DM 50,000 DM -100% to Francor S.A.
Services GmbH
====================================================================================================================================
SPAIN
- ------------------------------------------------------------------------------------------------------------------------------------
Iberiacor, S.A. Spain -699,939,000 Pesetas -100% to Francor S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Industria Grafica Altair Spain -823,092,650 Pesetas -100% to Iberiacor S.A.
- - Quebecor S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Spain -100% to Francor S.A.
Catalunya S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Cayfo S.A. Spain -100% to Quebecor Printing
Catalunya S.A.
- ------------------------------------------------------------------------------------------------------------------------------------
Rotocayfo S.A. Spain -100% to Cayfo S.A.
====================================================================================================================================
INDIA
- ------------------------------------------------------------------------------------------------------------------------------------
TEJ Quebecor Printing New Delhi -30,00,000 Rupees -30,00,000 Rupees 10 Rupees -40% to Quebecor Printing
Limited Inc. (40%)
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 33
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
IRELAND
- ------------------------------------------------------------------------------------------------------------------------------------
QPI Financial Services Republic of Ireland -200,000 common -200,000 common US $1,000 par -199,999 to Quebecor
shares shares value Printing Inc.
-1 to Graphicor Transport
Inc.
-70,000 common shares -70,000 common FF 5,000 par -70,000 to Quebecor
shares value Printing Inc.
====================================================================================================================================
UNITED KINGDOM
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing (UK) United Kingdom -50,000,000 ordinary -11,625,245 ordinary , 1 par value -11,625,244 to Quebecor
Holdings Plc shares shares Printing Inc.
-1 to Michael Young
-50,000,000 -7,000,000 , 1 par value -7,000,000 to Quebecor
Participating Participating Printing Inc.
Preferred Shares Preferred Shares
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing (UK) United Kingdom -333,333,000 -58,012,170 ordinary 15p -58,012,169 to Quebecor
Plc ordinary shares shares Printing (UK) Holdings
Limited
- 1 to Michael Young
-5,201,000 -4,999,721 , 1 par value -361,990 to Baltic
Convertible Convertible Securities Ltd
Preference shares Preference shares -1,404,789 to Summit
Leasing Ltd.
-3,232,942 Quebecor
Printing (UK) Holdings
Plc
-4,479,905,000 -1,350,000,000 1p
Participating Participating -100% to Quebecor Printing
Preferred shares Preferred shares (UK) Holdings Plc
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 34
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED KINGDOM
- ------------------------------------------------------------------------------------------------------------------------------------
HunterPrint Group Plc United Kingdom -3,750,000 ordinary -2,500,000 ordinary 20p par value -2,499,999 to Quebecor
shares shares Printing (UK) Plc
-1 to Michael Young
- ------------------------------------------------------------------------------------------------------------------------------------
Micro Developments Ltd. United Kingdom -1,000 ordinary -100 ordinary shares , 1 par value -99 to HunterPrint Group
shares Plc
-1 to Michael Young
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Binding Limited United Kingdom -1,000 ordinary -2 ordinary shares , 1 par value -100% to Quebecor Printing
shares (UK) Plc
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor News Binding United Kingdom -1,000 ordinary -2 ordinary shares , 1 par value -100% to Quebecor Printing
Limited shares (UK) Plc
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor News Printing United Kingdom -1,000 ordinary -2 ordinary shares , 1 par value -100% to Quebecor Printing
Limited shares (UK) Plc
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Pre-Press United Kingdom -1,000 ordinary -2 ordinary shares , 1 par value -100% to Quebecor Printing
Limited shares (UK) Plc
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Limited United Kingdom -1,000 ordinary -2 ordinary shares , 1 par value -100% to Quebecor Printing
shares (UK) Plc
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Specialty United Kingdom -1,000 ordinary -2 ordinary shares , 1 par value -100% to Quebecor Printing
Limited shares (UK) Plc
====================================================================================================================================
MEXICO
====================================================================================================================================
Graficas Monte Alban, Mexico -26,303,395 common -26,303,395 common $1.00 pesos -26,302,895 to Quebecor
S.A. de C.V. shares shares Mex. par value Printing Holding
Company
-500 to Erik Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printpak de Mexico -50,000 common shares -50,000 common shares $1.00 pesos -49,999 to Quebecor
Mexico S.A. de C.V. mex. par value Printing Inc.
-1 to Quebecor Printing
(USA) Corp.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 35
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
SOUTH AMERICA
====================================================================================================================================
QP Investments Ltd British Virgin -50,000 common shares -1,000 common shares No par value - 100% to Quebecor Printing
Islands Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing (BVI) British Virgin -50,000 common shares -1,000 common shares No par value -100% to QP Investments
Holding Ltd. Islands Ltd.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Chile Chile -12,000,000 -12,000,000 No par value -99.99% to Quebecor
Holding Limitada Printing (BVI) Holding
Ltd
-0.01% Guy Trahan
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Argentina S.A. Argentina -12,450,000 common -12,450 common 1,000 -70% to QP Investments Ltd.
shares shares Argentina -30% to Inversiones Escocia
Pesos Ltda
- ------------------------------------------------------------------------------------------------------------------------------------
Antartica Quebecor S.A. Chile -79,355,000 common -39,677,500 No par value -50% to Quebecor Printing
shares Chile Holding Limitada
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Antartica Argentina -6,550,000 common -9,597,000 common No par value -70% to QP Investments Ltd.
Buenos Aires S.A.C.I.F.E. shares shares
- ------------------------------------------------------------------------------------------------------------------------------------
QP (BVI) Ltd. British Virgin -50,000 common shares -1,000 common shares No par value -87.5% to QP Investments
Islands Ltd.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Impreandes Colombia -13,021,512 common -13,021,512 common Col. Pesos -68.395% to QP (BVI) Ltd.
Colombia S.A. shares shares $1,000
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Peru S.A. Peru -500 common shares -500 common shares $1.00 par -50% to QP Investments Ltd.
value
====================================================================================================================================
SWEDEN/FINLAND
====================================================================================================================================
Quebecor Printing Stockholm -50,100,000 SEK -5,010,00 shares 10 SEK - 100% to Quebecor Printing
Scandinavia AB Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Norden Stockholm -104,152,960 SEK -10,415,296 shares 10 SEK -99.99% to Quebecor
Aktiebolag Printing Scandinavia AB
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 36
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
SWEDEN/FINLAND
- ------------------------------------------------------------------------------------------------------------------------------------
Tryckinvest i Norden Stockholm -43,811,000 SEK -4,381,100 shares 10 SEK -100% to Quebecor Printing
Forvaltning AB Norden Aktiebolag
- ------------------------------------------------------------------------------------------------------------------------------------
Printor Consult Gruppen Stockholm -500,000 SEK -5,000 shares 100 SEK -100% to Tryckinvest i
AB Norden Forvaltning AB
- ------------------------------------------------------------------------------------------------------------------------------------
Printor Consult Gruppen Stockholm -100,000 SEK -1,000 shares 100 SEK -100% to Tryckinvest i
Invest AB Norden Forvaltning AB
- ------------------------------------------------------------------------------------------------------------------------------------
Sormlands Grafiska Stockholm -103,000,000 SEK -1,030,000 shares 100 SEK -100% to Tryckinvest i
Quebecor AB Norden Forvaltning AB
- ------------------------------------------------------------------------------------------------------------------------------------
Interprint Quebecor AB Stockholm -10,000,000 SEK -100,000 shares 100 SEK -100% to Sormlands Grafiska
Quebecor AB
- ------------------------------------------------------------------------------------------------------------------------------------
TIBA Tryck AB Stockholm -100,000 SEK -1,000 shares 100 SEK -100% to Sormlands Grafiska
Quebecor AB
- ------------------------------------------------------------------------------------------------------------------------------------
Tryckeri Aktiebolaget Stockholm -20,000,000 SEK -200,000 shares 100 SEK -100% to Sormlands Grafiska
Smaland Quebecor Quebecor AB
- ------------------------------------------------------------------------------------------------------------------------------------
Tryckinvest i Norden Stockholm 100,000 SEK -10,000 shares 10 SEK -100% to Tryckinvest i
Itressenter II AB Norden Forvaltning AB
- ------------------------------------------------------------------------------------------------------------------------------------
Tryckerier i Norden AB Helsinki, Finland -25,000,000 FIM -25,000 shares 1,000 FIM -100% to Tryckinvest i
Norden Forvaltning AB
====================================================================================================================================
AUSTRIA
- ------------------------------------------------------------------------------------------------------------------------------------
Wolf Theiss & Partner Vienna, Austria (not available at (not available at (not available
Omega Beteiligungen GmbH time of signing) time of signing) at time of
signing
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 37
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
====================================================================================================================================
Printing Acquisition Inc. Delaware, USA -3,000 common shares -10 common shares $1,00 par -100% to Quebecor Printing
value (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Arcata Corporation Delaware, USA -10,000 Class A -1,286.8687 Class A $0,10 par -100% to Quebecor Printing
common shares common shares value (USA) Holdings Inc.
-800 Class B common -491.8260 Class B $0,10 par
shares common shares value
-8,500 Class C - None $0,10 par
common shares value
-8,500 Class D - None $0,10 par
common shares value
-1,000 Convertible -917.2684 $1,000 par
Preferred shares Convertible value
Preferred shares
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Atglen Delaware, USA -100 common shares -10 common shares $1 par value -100% to Quebecor Printing
Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -10 common shares $1 par value -100% to Quebecor Printing
Atlanta Inc. (USA) Holdings
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1 common share $1 par value -100% to Quebecor Printing
Aviation Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Direct Connecticut, USA -500 common shares -100 common shares $100 par -100% to Quebecor Printing
Brookfield Inc. value (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing New York, USA -1,200,000 common -1,111,600 common $2.50 par -100% to Quebecor Printing
Buffalo Inc. shares shares value (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% Quebecor Printing
Capital Corporation (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor Printing
Capital GP Partnership (L.P.) Inc.
-1% General -1% to Graphicor Transport
Partnership (G.P.) Inc.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 38
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor Printing
Dallas, L.P. (Limited Partnership) Partnership (L.P.) Nevada Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Dallas II Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Dallas Delaware, USA -3,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
II Inc. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA - 50% to Quebecor Printing
Delaware LLC Nova Scotia ULC
- 50% to Quebecor Capital
GP
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Tennessee, USA -2,000 common shares -1,000 common No par value -100% to Quebecor Printing
Dickson Inc.(2) shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited $1 par value -99% to Quebecor Printing
Dickson, L.P.(2) (Limited Partnership) Partnership (L.P.) Dickson II Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
Dickson II Inc. shares Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
Directory Sales Corp. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
Dubuque Inc. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Eagle Missouri, USA -100,000 common -95,000 common $1 par value -100% to Quebecor Printing
Inc. shares shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(2) To be amalgamated as Quebecor Printing Dickson Inc.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 39
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Quebecor Printing Eusey Massachusetts, USA -250 Series A common -235 Series A No par value -100% to Quebecor Printing
Press Inc. shares common shares (USA) Holdings Inc.
-250 Series B common -239 Series B No par value -100% to Quebecor Printing
shares common shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common shares -1,000 common $1 par value -100% to Arcata Corporation
Fairfield Inc. shares
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 40
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Rhode Island, USA -unlimited common -209 common shares $0.01 par -100% to Quebecor Printing
Federated Inc. shares value (USA) Holdings Inc.
Quebecor Printing California, USA -25,000 common shares -1,000 common shares $1 par value -100% to Arcata Corporation
Halliday Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -2,000 common shares -l0 common shares $1 par value -100% to Quebecor Printing
Holding Company -1,000 Preferred Inc.
Stock No par value
- ------------------------------------------------------------------------------------------------------------------------------------
Holyoke Lithograph Co., Massachusetts, USA -15,000 common shares -510 common shares No par value -100% to Quebecor Printing
Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Pennsylvania, USA -100,000 common -1,100 common shares $1 par value -100% to Quebecor Printing
Hazleton Inc. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Karl M. Harrop Company Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Inc.(3) Kingsport Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Karl M. Harrop Company Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Karl M. Harrop
II Inc. Company Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing California, USA -25,000 common shares -1,000 common shares $1 par value -100% to Arcata Corporation
Kingsport Inc.(3),(4)
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor List Services Delaware, USA -3,000 common shares -100 common shares No par value -100% to Quebecor Printing
Chicago Inc. (USA) Holdings Inc.
====================================================================================================================================
</TABLE>
- ----------
(3) To be amalgamated as Quebecor Printing Kingsport Inc.
(4) To be amalgamated as Quebecor Printing Kingsport Inc.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 41
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Karl M. Harrop
Kingsport, L.P. (Limited Partnership) Partnership (L.P.) Company Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Kingsport Inc.-
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -10 common shares $1 par value -100% to Quebecor Printing
Lincoln Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -3,000 common shares $1 par value -100% to Quebecor Printing
Loveland Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common shares -1,000 common shares $0.01 par -100% to Quebecor Printing
Memphis Inc. value (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Memphis II Inc. Memphis Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor Printing
Memphis, L.P.(5) (Limited Partnership) Partnership (L.P.) Memphis Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
QP Memphis Corp.(5) Delaware, USA -3,000 common Stock -1,000 common Stock $1 par value -99% to Quebecor Printing
Memphis Inc.
-1% to Quebecor Printing
Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Mt. Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Morris II Inc. Memphis Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
National Magazine Illinois, USA -200 common shares -1 common share $5 par value -100% to Quebecor Printing
Mailers, Inc. Mt.Morris II Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Nova Marketing Services, Missouri, USA -30,000 common shares -1 common share $1 par value -100% to Quebecor Printing
Inc. Sayers Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(5) To be amalgamated as QP Memphis Corp.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 42
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Quebecor Printing Nevada Nevada, USA -5,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Q.P. New York Corp. Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Buffalo Inc.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 43
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Olive Delaware, USA -3,000 common shares -10 common shares $1 par value -100% to Quebecor Printing
Branch Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Michigan, USA -5,000 common shares -2,540 common shares $10 par value -100% to Quebecor Printing
Pendell Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Print Northwest Company Delaware, USA -N/A -99% Limited N/A -98% to Quebecor Printing
L.P. (Limited Partnership) Partnership (L.P.) Seattle Inc. (L.P.)
-1% to Quebecor Printing
(USA) Corp. (L.P.)
-1% General -1% Quebecor Printing
Partnership (G.P.) Seattle Inc. (G.P.)
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Rhode Island, USA -50,000 common shares -30,000 common $10 par -100% to Quebecor Printing
Providence Inc. shares value (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Petty Printing Illinois, USA -200,000 common -114,460 common No par value -100% to Quebecor Printing
Inc. shares shares Mt.Morris II Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing St. Minnesota, USA -1,000,000 common -8,060 common shares No par value -100% to The Webb Company
Cloud Inc. shares
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing St. Minnesota, USA -1,000,000 common -1,800 common shares No par value -100% to The Webb Company
Paul Inc. shares
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing San California, USA -1,000 common shares -5 common shares $1 par value -100% to Quebecor Printing
Jose Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Sayers Missouri, USA -50,000 Class A -148.15 Class A $1 par value -86.93% to Quebecor
Inc. common shares common shares Printing (USA) Holdings
-50,000 Class B -500 Class B common Inc.
common shares shares -11.27% to Herbert M Sayers
-1.8% to Herbert M. Sayers,
Jr.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -2,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Seattle Inc. (USA) Holdings Inc.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 44
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Massachusetts, USA -60,000 Class A -4,500 Class A $10 par value -100% to Quebecor Printing
Semline Inc. common shares common shares (USA) Holdings Inc.
-60,000 Class B -4,050 Class B $10 par value
common shares common shares
-5,000 preferred -0 preferred shares $100 par value
shares
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing (USA) Delaware, USA -3,000 common shares -100 common shares No par value -100% to Quebecor Printing
Corp. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing (USA) Delaware, USA -3,000 common shares -1,261 common shares $1 par value -100% to Quebecor Printing
Holdings Inc. Holding Company.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000,000 common -916,032.0935 common $1 par value -100% to Quebecor Printing
Vermont Inc. shares shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing New York, USA -1,000 common shares -100 common shares No par value -100% to Quebecor Printing
Warehousing Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
The Webb Company Delaware, USA -1,000 common shares -100 common shares $1 par value -100% to Quebecor Printing
(USA) Holdings Inc.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 45
<PAGE>
SCHEDULE 3.6 to the 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
CONFIRMATION OF BORROWING
(ADVANCE, CONVERSION OR RENEWAL)
(Section 3.6, 3.10, or 5.1.2)
Date: _______________________
ROYAL BANK OF CANADA (as Administrative Agent)
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Manager, Agency Services
Fax: (212) 428-2310
Dear Sirs:
QUEBECOR PRINTING (USA) HOLDINGS INC.
CONFIRMATION OF BORROWING
We refer to the 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 (as in effect
on the date hereof, the "Credit Agreement"). The words and expressions defined
in the Credit Agreement have the same respective meanings when used herein.
We hereby irrevocably confirm our telephone notice, in accordance
with Section [3.6/3.10/5.1.2] of the Credit Agreement, of the following
Borrowing:
1. The maturing Borrowing (if applicable):
Form: _______________________________________________________
(US Prime Rate Loan or Libor Loan)
Amount: ______________________________
Libor Interest Period:(6)
__________________________________________________________________
REVOLVING CREDIT SCHEDULES Schedule 3.6 - Page 46
<PAGE>
2. The Business Day of the proposed Borrowing is: ___/_____/____
Day/Month/Year
3. Proposed Borrowing(s):
Advance Conversion Renewal
|_| |_| |_|
Form: _______________________________________________________
(US Prime Rate Loan or Libor Loan)1
Amount: _____________________________
Libor Interest Period:(7)
__________________________________________________________________
4. Remit funds to (if applicable):
We hereby confirm that: (a) the Borrowing requested hereby complies
with the requirements of Section 3.6, 3.10, or 5.1.2 of the Credit Agreement, as
the case may be, (b) no Default or Event of Default has occurred and is
continuing under the Credit Agreement or would result from the making of the
Borrowing contemplated hereby and (c) all representations and warranties made by
us in Sections 2.1, 2.2 and (if the Drawdown Date for the Borrowing requested
hereby is on or after the Merger Date) 2.3 of the Credit Agreement are true and
correct in all respects (with the representations and warranties contained in
Section 2.1.2 to 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 those contained in
- ----------
6. In the case of conversion or continuation of Libor Loans, include the
duration of and last day of the applicable Libor Interest Period to be
converted or continued.
7. In the case of Libor Loans, include the duration of and last day of the
applicable Libor Interest Period.
REVOLVING CREDIT SCHEDULES Schedule 3.6 - Page 47
<PAGE>
Section 2.1.9 to be read as if they referred to the most recent
financial statements delivered to the Administrative Agent pursuant to Section
11.1.7).
QUEBECOR PRINTING (USA) HOLDINGS INC.
By:
Name:
Title:
By:
Name:
Title:
REVOLVING CREDIT SCHEDULES Schedule 3.6 - Page 48
<PAGE>
SCHEDULE 3.9.1 to the 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
CONFIRMATION OF PREPAYMENT
(Section 3.9.1)
Date: ________________________
ROYAL BANK OF CANADA (as Administrative Agent)
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Manager, Agency Services
Fax: (212) 428-2310
Dear Sirs:
QUEBECOR PRINTING (USA) HOLDINGS INC.
CONFIRMATION OF PREPAYMENT
We refer to the 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 (as in effect
on the date hereof, the "Credit Agreement"). The words and expressions defined
in the Credit Agreement have the same respective meanings when used herein.
We hereby confirm our irrevocable telephone notice that, in
accordance with Section 3.9.1 of the Credit Agreement, we shall repay certain
Borrowings as follows:
1. Date of Repayment: ___/_____/____
Day/Month/Year
(date must coincide with maturity of Libor Loans, to the
extent applicable)
2. Amount of Repayment:
(a) In respect of US Prime Rate Loans: $_____________
REVOLVING CREDIT SCHEDULES Schedule 3.9.1 - Page 49
<PAGE>
(b) In respect of Libor Loans: $_____________
3. Last Day of Libor Interest Period: (in the case of repayment of
Libor Loans): ____/____/____,
Day/Month/Year
We hereby represent and warrant that the repayment made hereunder
complies with the requirements of Section 3.9 of the Credit Agreement.
QUEBECOR PRINTING (USA) HOLDINGS INC.
By:
Name:
Title:
By:
Name:
Title:
REVOLVING CREDIT SCHEDULES Schedule 3.9.1 - Page 50
<PAGE>
SCHEDULE 3.9.2 to the 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
NOTICE OF CANCELLATION
(Section 3.9.2)
Date: ________________________
ROYAL BANK OF CANADA (as Administrative Agent)
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Manager, Agency Services
Fax: (212) 428-2310
Dear Sirs:
QUEBECOR PRINTING (USA) HOLDINGS INC.
NOTICE OF CANCELLATION
We refer to the 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 (as in effect
on the date hereof, the "Credit Agreement"). The words and expressions defined
in the Credit Agreement have the same respective meanings when used herein.
We hereby irrevocably notify you, in accordance with Section 3.9.2
of the Credit Agreement, that we shall make certain cancellations and to the
extent applicable prepay certain Borrowings as follows:
1. Date of Cancellation: ___/_____/____
Day/Month/Year
(to the extent applicable, date must coincide with maturity of Libor
Loans)
2. Amount of Cancellation: $_____________
REVOLVING CREDIT SCHEDULES Schedule 3.9.2 - Page 51
<PAGE>
3. Amount of prepayment, if applicable:
(a) In respect of US Prime Rate Loans: $_____________
(b) In respect of Libor Loans: $_____________
4. Last Day of Libor Interest Period: (to the extent applicable, in the
case of prepayment of Libor Loans): ____/____/____,
Day/Month/Year
We hereby represent and warrant that the cancellation requested
hereby complies with the requirements of Section 3.9 of the Credit Agreement.
QUEBECOR PRINTING
(USA) HOLDINGS INC.
By:
Name:
Title:
By:
Name:
Title:
REVOLVING CREDIT SCHEDULES Schedule 3.9.2 - Page 52
<PAGE>
SCHEDULE 10.1.1.8 to the 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
CLOSING CERTIFICATE OF COMPLIANCE
(Section 10.1.1.8)
Date: ________________________
ROYAL BANK OF CANADA (as Administrative Agent)
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Manager, Agency Services
Fax: (212) 428-2310
Dear Sirs:
CERTIFICATE OF COMPLIANCE
I, _____________________________________________________, [Chief
Executive Officer, Chief Financial Officer or Treasurer] of Quebecor Printing
Inc., ("QPI"), hereby certify, pursuant to Section 10.1.1.8 of the Revolving
Credit Agreement dated as of the 10th 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 (as in effect on the date hereof, the
"Credit Agreement"; terms defined therein that are not otherwise defined herein
are used herein with the meanings therein ascribed to them), that:
1. I am familiar with and have examined the provisions of the Credit
Agreement, the Existing Indentures and the Transaction Documents and I have made
all appropriate investigations of the records of QPI, WCP, the Borrower and the
other Restricted Entities and I have asked all questions to the other executives
and officers of each such party as I have deemed necessary or useful to allow me
to give this certificate knowledgeably.
2. The accompanying unaudited Consolidated financial statements of
QPI and its Subsidiaries as at __________ and for the quarterly accounting
period ended __________, ____,(8)
- ----------
8. Depending on the timing of the execution of the Credit Agreement, this
certificate will refer to the
REVOLVING CREDIT SCHEDULES Schedule 10.1.1.8 - Page 53
<PAGE>
are complete and correct and present fairly, in accordance with Canadian GAAP,
the Consolidated financial position of QPI and its Subsidiaries and the
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, in each case on the basis presented and
subject only to normal year-end auditing adjustments. Since such date, there has
been no change in QPI's Consolidated financial condition which could have a
Material Adverse Effect.
3. QPI, the other Loan Parties and each other Restricted Entity
maintain insurance in compliance with Section 11.1.6 of the Credit Agreement.
4. Based on an examination sufficient to enable me to make an
informed statement, the representations and warranties contained in the Credit
Agreement are true and correct, no Default or Event of Default exists and no
breach or default exists under any of the Existing Indentures.
5. Except for the Existing Actions, there are no actions, suits or
arbitration proceedings pending or, to the best of my 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 the undersigned.
6. 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 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 and all conditions precedent set forth in Section 10.1 of the Credit
Agreement have been satisfied.
7. QPI LLC and/or U.S. Holdings have advanced to WCP an amount from
direct or indirect borrowings under the Existing QPI Facility which, together
with the $100,000,000 loan made by US Holdings to WCP from proceeds drawn under
the Credit Agreement, is sufficient to repay in full the indebtedness under the
WCP Existing Bank Credit Agreement and such agreement and the credit facilities
thereunder have, concurrently therewith and herewith, been cancelled.
[Chief Executive Officer, Chief Financial
or Treasurer]
- ----------
quarterly statements for the first fiscal quarter or the second fiscal
quarter (if then available).
REVOLVING CREDIT SCHEDULES Schedule 10.1.1.8 - Page 54
<PAGE>
SCHEDULE 10.1.1.14-A to the 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
OPINION OF CANADIAN COUNSEL TO THE LOAN PARTIES
(LOAN DOCUMENTS)
(Section 10.1.1.14 )
[UNDER LETTERHEAD OF MARTINEAU WALKER]
August __, 1999
ROYAL BANK OF CANADA, as Lead Arranger,
Administrative Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
BANC OF AMERICA SECURITIES LLC, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
BANK OF MONTREAL, as Arranger,
Co-Syndication Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
CANADIAN IMPERIAL BANK OF COMMERCE, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
Each other Lender identified in Schedule
I hereto under the Revolving Credit
Agreement referred to below
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 55
<PAGE>
- - and -
OGILVY RENAULT, as counsel to the
Administrative Agent under the Revolving
Credit Agreement referred to below
- - and -
HUGHES HUBBARD & REED LLP, as counsel to
the Administrative Agent under the
Revolving Credit Agreement referred to
below\
Re: Imprimeries Quebecor Inc.-Quebecor Printing Inc.
Ladies and Gentlemen:
We have acted as counsel to Imprimeries Quebecor Inc.-Quebecor Printing
Inc. ("QPI") in connection with a Revolving Credit Agreement dated as of the
12th day of August, 1999 among Quebecor Printing (USA) Holdings Inc., as
borrower, QPI, as guarantor, Quebecor Printing Holding Company, as guarantor,
the lenders listed on the signature pages thereof, Royal Bank of Canada, as Lead
Arranger and Administrative Agent, and Banc of America Securities LLC, Bank of
Montreal and Canadian Imperial Bank of Commerce, as Arrangers and Co-Syndication
Agents (the "Revolving Credit Agreement").
The capitalized terms used in this opinion which are defined in the
Revolving Credit Agreement have herein the respective meanings therein specified
unless the context of this opinion otherwise requires or unless such terms are
otherwise defined in this opinion.
In this connection, we have examined original executed copies or copies
certified to our satisfaction of the following documents:
(a) the Revolving Credit Agreement;
(b) a Loan Party Guarantee Agreement dated as of August 12, 1999
executed by QPI in favour of the Administrative Agent (the
"Guarantee");
(c) the certificate and articles of amalgamation of QPI and all
amendments thereto and the by-laws of QPI;
(d) a certificate of compliance issued by Industry Canada dated August
4, 1999 and a certificate of attestation and of regularite issued by
the Inspecteur general des institutions financieres du Quebec, each
dated August 4, 1999, the whole in respect of QPI;
(e) certified extract of resolutions of the board of directors of QPI
authorizing the
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 56
<PAGE>
execution by QPI of the Revolving Credit Agreement and the Guarantee
(sometimes collectively herein referred to as the "Loan Documents");
(f) a certificate of incumbency in respect of QPI dated August 13, 1999;
(g) certificate of officer of QPI as to general factual matters dated
August 13, 1999;
(h) a certificate of officers of QPI relating to the opinion set forth
in paragraph 3 (iii) below (a copy of which being attached hereto)
and the agreements referred to therein as being governed by the
Quebec laws (the "Officers' Certificate");
(i) letters by Quebecor Inc. and Caisse de depot et placement du Quebec,
as shareholders of QPI, dated respectively July 2 and July 8, 1999,
authorizing QPI's execution, delivery and performance of the Loan
Documents; and
(j) the corporate records and other records mentioned hereinafter and
all other corporate records and other records and documents as we
have considered necessary or desirable in order that we may give
this opinion.
We have also reviewed the minute books and corporate records of QPI as of
and from January 1, 1990, the date upon which QPI resulted from the amalgamation
(the "Amalgamation") of 166599 Canada Inc., Quebecor Printing Inc., Quebecor
Printing (Canada) Inc., Quebecor Printing Group Inc., Ronalds Printing Atlantic
Limited and 148461 Canada Inc. (the "Amalgamating Corporations").
We have assumed for the purposes hereof that each of the Loan Documents is
enforceable in accordance with its governing laws, namely the laws of the State
of New York. We express herein no opinion on the Loan Documents which are
governed by the laws of the State of New York, and in this respect as well as
with respect to all matters which are governed by the laws of the State of New
York and the federal laws of the United States of America applicable therein, we
refer you to the opinions (and the assumptions and the qualifications therein
set forth) of Messrs. Arnold & Porter, counsel to Printing Acquisition Inc.,
QPI, US Holdings and QPHC, and of Messrs. Hughes Hubbard & Reed LLP, New York
counsel to the Administrative Agent, each such opinion dated today and addressed
and delivered to you and, in the case of the opinion of Messrs. Arnold & Porter,
to Messrs. Martineau Walker, Messrs. Hughes Hubbard & Reed LLP and to us
concurrently herewith.
For the purposes hereof, we have assumed that each of the parties to the
Loan Documents (i) is a validly constituted and organized and validly subsisting
corporation, under its governing laws, (ii) has full capacity, power and
authority to enter into the Loan Documents and to perform the obligations on its
part set out therein and (iii) has duly authorized, executed and delivered the
Loan Documents.
With respect to the status of Printing Acquisition Inc. and each of US
Holdings, QPI and QPHC and their respective capacity and authority to enter into
the Loan Documents and as to their due execution and delivery thereof, we refer
you to the opinions (and the assumptions and qualifications therein set forth)
of (i) Messrs. Martineau Walker, dated today and addressed and
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 57
<PAGE>
delivered to you and to us concurrently herewith, and (ii) Messrs. Arnold &
Porter referred to above. With your permission, we have relied without
independent verification on all matters set forth in the foregoing opinions in
preparing this opinion and express herein no opinion on these matters.
Based on the foregoing, but subject to the qualifications hereinafter set
forth, we are of the opinion that:
1. No authorization of, or giving of notice to, or registration with any
governmental body or authority of Canada or the Province of Quebec is
required in connection with the execution, delivery and enforceability of
the Revolving Credit Agreement or any of the other Loan Documents or in
connection with the effecting of Borrowings under the Revolving Credit
Agreement.
2. A Quebec Court will recognise and declare enforceable any judgment
rendered by a competent court outside the Province of Quebec with respect
to the obligations of a Loan Party under the Loan Documents. In any motion
made before a Quebec Court to enforce such judgment, a Quebec Court will
confine itself to verifying whether the judgment in respect of which
recognition or enforcement is sought meets the requirements mentioned in
paragraph (a) of the qualifications below, without entering into any
examination of the merits of the judgment.
3. In an action against a Loan Party commenced in a court of competent
jurisdiction in the Province of Quebec, the Quebec Court would recognise
the choice of the New York law under a Loan Document as a valid choice of
law to govern such Loan Document and would apply New York law, save for
its rules of conflicts, to all issues that a Quebec Court characterises as
substantive under the conflict rules of the Province of Quebec, assuming
that:
(a) such choice of law is legal under New York law;
(b) such choice was made bona fide in that it was not made to avoid
mandatory provisions of the law of the jurisdiction that the Quebec
Court would, in the absence of such choice, have applied; we are not
aware that such choice was not made bona fide;
(c) New York law was specifically pleaded and proved as a question of
fact by a duly qualified expert before the Quebec Court;
and subject to the following, which shall prevail:
(d) the provisions of New York law shall yield to rules of law in force
in Quebec which are applicable by reason of their particular object;
(e) the provisions of New York law shall not apply if their application
would be manifestly inconsistent with public order as understood in
international relations;
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 55
<PAGE>
(f) in cases of emergency or serious inconvenience, the law of the
Quebec Court seized of the matter may be applied provisionally to
ensure the protection of a person or of his property;
(g) if New York law invalidates the juridical act (i.e. the relevant
Loan Documents), the Quebec Court may apply the law of the
jurisdiction with which the act is more closely connected, in view
of the nature and the attendant circumstances;
(h) the application of the rules of the Civil Code of Quebec is
imperative in matters of civil liability for damage suffered in or
outside Quebec as a result of exposure to or the use of raw
materials, whether processed or not, originating in Quebec;
(i) procedure will be governed by the law of the Quebec Court seized of
the matter; and
(j) prescription will be governed by the law applicable to the merits of
the dispute.
4. The submission by QPI to the non-exclusive jurisdiction of the courts
stated in the Loan Documents to which it is a party is valid and binding
and not subject to unilateral revocation.
The opinions expressed herein are subject to the assumptions hereinabove
set forth and to the following qualifications:
(a) Under the provisions of the Civil Code of Quebec, a Quebec Court may
refuse to recognize a judgment of a foreign court in the following
cases:
(i) the court rendering such judgment had no jurisdiction over the
matter or the persons being the subject thereof, as determined
under the relevant provisions of the Civil Code of Quebec,
(ii) such judgment is subject to ordinary remedy or is not final or
enforceable at the place where it was rendered (the purpose of
this exception being essentially, according to the comments of
the Minister of Justice of Quebec on the relevant article of
the Civil Code of Quebec, to avoid a Quebec Court declaring
enforceable in the Province of Quebec a decision rendered in a
foreign jurisdiction that is still subject to a right of
appeal or similar recourse or which is not final and
enforceable in said jurisdiction),
(iii) such judgment was rendered in contravention of the fundamental
principles of procedure,
(iv) a dispute between the same parties, based on the same facts
and having the same object has given rise to a decision
rendered in Quebec, whether it has acquired the authority of a
final judgment (res judicata) or not, or is pending before a
Quebec authority, in first instance, or has been decided in
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 59
<PAGE>
a third country and the decision meets the necessary
conditions for recognition in Quebec,
(v) the outcome of such judgment is manifestly inconsistent with
public order as understood in international relations,
(vi) the motion to enforce such judgment is not made in the
Province of Quebec within ten years after the date of such
judgment (please note, however, that there is a controversy
under Quebec law as to the limitation period applicable to a
foreign judgment and that some authorities are of the view
that the motion to enforce the foreign judgment must be made
in the Province of Quebec within three years after the date of
the said judgment), or
(vii) such judgment was obtained contrary to an order made by the
Attorney General of Canada under the Foreign Extraterritorial
Measures Act (Canada); the only such order which was found by
us in the Canada Gazette where such orders are usually
published and which remains in effect (although we have no
assurance that no other order is outstanding under the said
Act) is the Foreign Extraterritorial Measures (United States)
Order, 1992, dated October 9, 1992, as amended on January 12,
1996 and dealing with trade and commerce between Canada and
Cuba; and we believe that such order does not affect the Loan
Documents or the rights of the Finance Parties.
Further, if the judgment was rendered by default, the plaintiff must prove
that the act of procedure initiating the proceedings was duly served on
the defendant in accordance with the law of the place where the judgment
was rendered, and the Quebec Court may refuse recognition or enforcement
of the judgment if the defendant proves that, due to the circumstances,
the defendant was unable to learn of the act of procedure initiating the
proceedings or it was not given sufficient time to offer its defence.
We believe that there are no reasons under the Civil Code of Quebec for
avoiding recognition of enforcement of a judgment of a New York State
court or a federal court of the United States under the Loan Documents
based on "public order" as understood in international relations.
(b) In the event that an action is taken or a judgment is rendered in
respect of the Loan Documents outside of the Province of Quebec, a
Loan Party may be subject to Section 2 of the Business Concerns
Records Act (Quebec) which provides that "..., no person shall,
pursuant to or under any requirement issued by any legislative,
judicial or administrative authority outside Quebec, remove or cause
to be removed, or send or cause to be sent, from any place in Quebec
to a place outside Quebec, any document or resume or digest of any
document relating to any concern"; for the purposes of the Business
Concerns Records Act (Quebec), "document" means any account, balance
sheet, statement of receipts and
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 60
<PAGE>
expenditure, profit and loss statement, statement of assets and
liabilities, inventory, report and any other writing or material
forming part of the records or archives of a business concern.
(c) The Currency Act (Canada) precludes a Canadian court from rendering
a judgment for an amount expressed in a currency other than Canadian
currency.
This opinion may only be relied upon by the persons to which it is
addressed and for the purposes of the transactions contemplated in the Loan
Documents.
Yours truly,
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 61
<PAGE>
SCHEDULE I
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-A - Page 62
<PAGE>
QUEBECOR PRINTING INC.
OFFICERS' CERTIFICATE
We, Christian M. Paupe, Executive Vice President, Chief Administrative
Officer and Chief Financial Officer of Quebecor Printing Inc. and Jeremy P.
Roberts, Assistant Treasurer of Quebecor Printing Inc., hereby certify, in
connection with the Term Loan and Non-Revolving Credit Agreement and the
Revolving Credit Agreement both dated as of August 12, 1999, among Quebecor
Printing (USA) Holdings Inc. ("US Holdings"), as Borrower, Quebecor Printing
Inc. ("QPI") and Quebecor Printing Holding Company ("QPHC"), as Guarantors, the
lenders listed on the signature pages thereof, Royal Bank of Canada as Lead
Arranger and Administrative Agent, and Banc of America Securities LLC, Bank of
Montreal and Canadian Imperial Bank of Commerce, as Arrangers (collectively, the
"Credit Agreements") as follows:
1. Attached hereto as Appendix A is a list of each agreement for borrowed
money (other than the Credit Agreements) in a principal amount of US$20,000,000
or more by which QPI, US Holdings or QPHC or any of their respective properties
are bound (the "Existing Agreements").
2. I, Christian M. Paupe, am familiar with and have examined the
provisions of the Credit Agreements, the Tender Offer and the Merger Agreement
and I have made all appropriate investigations as I have deemed necessary or
useful to allow me to give this certificate knowledgeably. To the best of my
knowledge, neither the making or performance of the Tender Offer by QPI and
Acquisition Sub, the execution, delivery and performance by each of QPI and
Acquisition Sub of the Merger Agreement, nor consummation of the transactions
contemplated thereby or the compliance by QPI and Acquisition Sub with the terms
and conditions thereof will conflict with, violate or result in a breach of any
of the Existing Agreements or the Existing Indentures.
3. I, Jeremy P. Roberts, am familiar with and have examined the provisions
of the Credit Agreements, the Loan Party Guarantees, the Existing Agreements and
the Existing Indentures (which are the Convertible Indenture, the 7 3/4%
Indenture and the 8 3/8% Indenture) and I have made all appropriate
investigations as I have deemed necessary or useful to allow me to give this
certificate knowledgeably:
3.1 to the best of my knowledge, neither the execution, delivery and
performance by each of QPI, US Holdings and QPHC of the Credit Agreements
and the Loan Party Guarantees to which they are party, nor consummation of
the transactions contemplated thereby or the compliance by QPI, US
Holdings or QPHC with the terms and conditions thereof will conflict with,
violate or result in a breach of any of the Existing Agreements or the
Existing Indentures:
3.2 more particularly and with respect to the Existing QPI Facility:
o it will not breach the representations and warranties
(Article II) of the
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<PAGE>
Existing QPI Facility;
o it will not breach any of the following covenants
(Article XI) of the Existing QPI Facility:
(a) any Indebtedness prohibitions or restrictions
provided in Section 11.2.4 of the Existing QPI
Facility;
(b) any prohibitions or restrictions concerning loans,
advances or Investments in Non-Restricted Entities
provided in Section 11.2.3 of the Existing QPI
Facility;
(c) any prohibitions or restrictions concerning sales
or transfers of assets, amalgamations, mergers or
reorganizations having a Material Adverse Effect
or otherwise constituting a Default or Event of
Default under Section 11.2.5 of the Existing QPI
Facility;
(d) any prohibitions or restrictions provided in
Section 11.2.6 of the Existing QPI Facility with
respect to Consensual Restrictions;
(e) any prohibitions or restrictions provided in
Section 11.2.8 of the Existing QPI Facility with
respect to Change in Nature of Business;
(f) any financial ratios set forth in Section 11.2.10
of the Existing QPI Facility; and
o it will not have a Material Adverse Effect, as defined
in the Existing QPI Facility without reference to
paragraph (b) (iii) of the definition.
Terms defined in the Credit Agreements that are not otherwise defined
herein are used herein with the meanings ascribed to them in the Credit
Agreements.
Montreal, August 13, 1999
Christian M. Paupe, Executive Vice Jeremy P. Roberts, Assistant Treasurer
President, Chief Administrative Officer
and Chief Financial Officer
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<PAGE>
APPENDIX A
TO OFFICERS' CERTIFICATE
CANADIAN LAW
1. Credit Agreement (US$1 Billion) dated as of April 28, 1999, as amended,
among Quebecor Printing Inc., Quebecor Printing (USA) Holdings Inc.,
Quebecor Printing Capital GP as Borrowers, the financial institutions
named on the signature pages thereto as Lenders with Royal Bank of Canada
as Administrative Agent and ABN-AMRO, Bank of America and CIBC Wood Gundy
as Joint Syndication Agents. (Quebec Law)
2. Short Term Promissory Notes Program, dated March 25, 1999 of QPI (CDN$250
Million). (Canadian Law)
US LAW
3. Guaranty Agreement dated as of January 15, 1999 made by Quebecor Printing
Inc. in favor of First Security Bank, National Association as Agent and
the persons identified therein as Lessors. (US$22 Million) (New York Law)
4. Indenture dated January 22, 1997 between Quebecor Printing Capital
Corporation, as Issuer, Quebecor Printing Inc. as Guarantor and The Chase
Manhattan Bank, as Trustee. (US$300 Million) (New York Law)
FOREIGN LAW
5. Guarantee in favour of Raiffeisen Zentralbank Osterreich
Aktiengesellschaft ("RZOA") by Quebecor Printing Inc. for the issuance by
RZOA of a letter of guarantee (approximately US$35 Million) dated August
4, 1999. (Foreign Law)
REVOLVING CREDIT SCHEDULES - MW Schedule 10.1.1.14-B - Page 65
<PAGE>
SCHEDULE 10.1.1.14-B to the 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
OPINION OF US COUNSEL TO THE LOAN PARTIES
(Section 10.1.1.14)
[UNDER LETTERHEAD OF ARNOLD & PORTER]
August __, 1999
ROYAL BANK OF CANADA, as Lead Arranger,
Administrative Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
BANC OF AMERICA SECURITIES LLC, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
BANK OF MONTREAL, as Arranger,
Co-Syndication Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
CANADIAN IMPERIAL BANK OF COMMERCE, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
Each other Lender identified in Schedule
I hereto under the Revolving Credit
Agreement referred to below
REVOLVING CREDIT SCHEDULES Schedule 10.1.1.14-B - Page 66
<PAGE>
- - and -
OGILVY RENAULT, as counsel to the
Administrative Agent under the Revolving
Credit Agreement referred to below
- - and -
HUGHES HUBBARD & REED LLP, as counsel to
the Administrative Agent under the
Revolving Credit Agreement referred to
below
Re: Printing Acquisition Inc., Quebecor Printing Inc., Quebecor
Printing (USA) Holdings Inc. and Quebecor Printing Holding
Company
Ladies and Gentlemen:
We have acted as counsel Quebecor Printing Inc., a corporation amalgamated
under the law of Canada ("QPI"), Printing Acquisition Inc., a Delaware
corporation ("Acquisition Sub"), Quebecor Printing (USA) Holdings Inc., a
Delaware corporation ("US Holdings") and Quebecor Printing Holding Company, a
Delaware corporation ("QPHC"), in connection with (i) the Merger Agreement (as
defined in the Revolving Credit Agreement referred to below); (ii) a revolving
credit agreement (the "Revolving Credit Agreement") dated as of the 12th day of
August, 1999 among US Holdings, as borrower, QPI and QPHC, as guarantors, the
lenders listed on the signature pages thereof, Royal Bank of Canada, as Lead
Arranger and Administrative Agent (the "Administrative Agent"), and Banc of
America Securities LLC, Bank of Montreal, and Canadian Imperial Bank of
Commerce, as Arrangers and Co-Syndication Agents; (iii) a loan party guarantee
agreement dated as of August 12, 1999 by QPI in favor of the Administrative
Agent; and (iv) a loan party guarantee agreement dated as of August 12, 1999 by
QPHC in favor of the Administrative Agent (all such loan party guarantees
collectively the "Guarantee Agreements").
This opinion is delivered to you pursuant to Section 10.1.1.14 of the
Revolving Credit Agreement. The capitalized terms used in this opinion which are
defined in the Revolving Credit Agreement have herein the respective meanings
therein specified unless the context of this opinion otherwise requires or
unless such terms are otherwise defined in this opinion.
In rendering the opinions set forth below, we have examined and relied
upon originals or copies certified or otherwise identified to our satisfaction
of the following documents:
(a) the Merger Agreement;
(b) the Tender Offer Documents;
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 67
<PAGE>
(c) the Revolving Credit Agreement;
(d) certificates of good standing issued by the appropriate state
authorities in respect of each of US Holdings and QPHC
(collectively, the "US Loan Parties") and Acquisition Sub;
(e) resolutions of the board of directors of each of US Holdings and
QPHC authorizing the execution by the US Loan Parties of the
Transaction Documents (as hereinafter defined) to which it is a
party and the performance of the obligations on their respective
parts set forth therein;
(f) resolutions of the board of directors of Acquisition Sub authorizing
the execution by Acquisition Sub of the Merger Agreement and the
performance of its obligations set forth therein;
(g) the certificate of incorporation and by-laws of each of the US Loan
Parties and Acquisition Sub;
(h) certificates of incumbency for each of the US Loan Parties and
Acquisition Sub;
(i) the Guarantee Agreements;
(j) the opinion of Morris, Nichols, Grant & Tunnell, a copy of which is
attached hereto (the "Delaware Counsel's Opinion");
(k) a certificate of an officer of QPI relating to the opinion set forth
in paragraph 6(iii) below, a copy of which is attached hereto (the
"Officer's Certificate"), and the agreements referred to therein;
and
(l) all such corporate records and other records and documents as we
have considered necessary or desirable for purposes of this opinion.
In this opinion, the Merger Agreement, the Revolving Credit Agreement and
the Guarantee Agreements are collectively hereinafter referred to as the
"Transaction Documents".
For purposes of this opinion, we have assumed the genuineness of all
signatures (other than those on behalf of QPI, US Holdings, QPHC and Acquisition
Sub on the Transaction Documents), the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as copies, the legal capacity of all individuals.
In rendering the opinions hereinafter set forth in paragraph 6(iii), we
have relied, without any independent verification, on paragraph 1 of the
Officer's Certificate with respect to factual matters set forth therein. In
rendering the opinions hereinafter set forth in paragraphs 6(ii), 8 and 9 below,
we have relied, without any independent survey or verification, on the Delaware
Counsel's Opinion as to matters of the laws of the State of Delaware, and our
opinions on such
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 68
<PAGE>
matters are subject to the qualifications and exceptions set forth in the
Delaware Counsel's Opinion.
In addition we have assumed that each party to the Transaction Documents,
other than the US Loan Parties and Acquisition Sub, (i) is a validly constituted
and organized and validly existing corporation under its governing laws, (ii)
has full capacity, power and authority to enter into the Transaction Documents
to which it is a party, and to perform the obligations on its part set out
therein and (iii) has duly authorized, executed and delivered the Transaction
Documents to which it is a party.
Based on the foregoing and subject to the qualifications set forth herein,
we are of the opinion that:
1. Each of US Holdings, QPHC and Acquisition Sub is duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware.
2. Each of the US Loan Parties has the corporate power and capacity to carry
on business as now being conducted, to own its properties and assets and
to enter into and to perform its obligations under the Transaction
Documents to which it is a party.
3. Acquisition Sub has the corporate power and capacity to carry on business
as now being conducted and to perform its obligations pursuant to the
Tender Offer and the Merger Agreement.
4. The execution and delivery by each of the US Loan Parties of the
Transaction Documents to which each is respectively a party and the
performance by each of the US Loan Parties of its obligations under each
of the Transaction Documents to which it is respectively a party have been
duly authorized by all necessary corporate action (including any necessary
shareholder action) by each of the US Loan Parties.
5. The execution, delivery and performance by Acquisition Sub of its
obligations under the Tender Offer and the Merger Agreement have been duly
authorized by all necessary corporate action on the part of Acquisition
Sub.
6. Neither the making or performance of the Tender Offer by QPI and
Acquisition Sub, the execution, delivery and performance by each of QPI,
Acquisition Sub and the US Loan Parties of the Transaction Documents to
which it is a party, nor the consummation of the transactions contemplated
by the Transaction Documents do or compliance by each of QPI, Acquisition
Sub and the US Loan Parties with the terms and conditions thereof will:
(i) constitute a violation of the certificate of incorporation or
by-laws of each of the US Loan Parties, or
(ii) constitute a violation of the laws or regulations of the State of
New York, the State of Delaware (with respect to the Merger
Agreement) or the federal law of the United States of America
applicable to it, including without limitation Regulations T, U and
X of the Board of Governors of the Federal Reserve System,
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 69
<PAGE>
or
(iii) conflict with, violate or result in a breach of any agreement for
borrowed money in a principal amount of $20,000,000 or more to which
QPI, US Holdings or QPHC is a party or by which any of their
respective properties are bound or the Existing Indentures and which
are governed by the laws of the State of New York provided that no
opinion is expressed herein with respect to compliance with the
financial tests set forth in such agreements.
7. Each of Acquisition Sub and the US Loan Parties has duly executed and
delivered each of the Transaction Documents to which it is a party.
8. Each of the Transaction Documents to which it is a party constitutes the
legal, valid and binding obligation of QPI, Acquisition Sub and each of
the US Loan Parties, enforceable against QPI, Acquisition Sub and each of
the US Loan Parties in accordance with its terms, except to the extent
that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership, fraudulent conveyance or similar
laws affecting or relating to the enforcement of creditors' rights
generally, and by equitable principles (regardless of whether enforcement
is sought in a proceeding in equity or at law).
9. The execution, delivery and performance by QPI, Acquisition Sub and each
of the US Loan Parties of the Loan Documents to which it is a party, and
the consummation by it of the transactions contemplated therein, do not
require any authorization of, or giving of notice to, or registration with
any governmental body or authority of the State of New York or Delaware
(with respect to the Merger Agreement) or of the United States of America
except for filings pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and federal and state securities
laws and regulations (all of which filings required to be made as of the
date hereof having been made) and the filing of a merger certificate or
certificate of ownership and merger in the State of Delaware (as
contemplated by the Merger Agreement).
10. Prior to and after giving effect to the consummation of the transactions
contemplated by the Transaction Documents, none of QPI, US Holdings, QPHC
or Acquisition Sub is (i) an "investment company" or a Person "controlled"
by an "investment company", within the meaning of the Investment Company
Act of 1940, as amended, or (ii) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding
company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
We express this opinion as members of the Bar of the State of New York and
we do not express any opinion as to matters governed by any laws other than the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the federal law of the United States of America (except to the
extent that we have relied on the Delaware Counsel's Opinion
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 70
<PAGE>
with respect to matters of the laws of the State of Delaware in connection with
our opinions set forth in 6(ii), 8 and 9 above). This opinion may only be relied
upon by the persons to whom it is addressed and for the purposes of the
transactions contemplated in the Transaction Documents.
Yours truly,
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 71
<PAGE>
SCHEDULE I
REVOLVING CREDIT SCHEDULES Schedule 10.1.1.14-B - Page 72
<PAGE>
[LETTERHEAD OF MORRIS, NICHOLS, ARSHT & TUNNELL]
August _____, 1999
Each of the Entities listed on
Schedule 1 attached hereto
Re: Printing Acquisition Inc., Quebecor Printing, Inc.
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters of
Delaware law involving the Agreement and Plan of Merger dated as of July 12,
1999 (the "Agreement") among Quebecor Printing, Inc., a Canadian corporation
("QPI"), Printing Acquisition, Inc., a Delaware corporation ("Acquisition Sub"),
and World Color Press, Inc., a Delaware corporation ("Company"). In connection
with your request for our opinion, Arnold and Porter, counsel to QPI, has
supplied to us and we have reviewed an executed copy of the Agreement. We have
not reviewed any other documents in connection with your request, and we have
assumed that nothing in any such document that we have not reviewed is contrary
to or inconsistent with the opinions expressed herein. We have also assumed (1)
that each of the parties to the Agreement was duly organized under the laws of
the jurisdiction of its organization and is validly existing and in good
standing under such laws, with full corporate power to execute, deliver and
perform the Agreement, and that such execution, delivery and performance was
duly authorized by all necessary corporate action on the part of each such
party, (2) that the Agreement was duly executed and delivered by all parties
thereto, (3) that the Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. We have also assumed that the Acquisition Sub is a wholly-owned
subsidiary of QPI. Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreement. To the extent our opinions in paragraphs 1
and 2, below, relate to the requirement for any authorization of, notice to, or
registration with any governmental body or authority of the State of Delaware or
to the absence of any violation of the laws or regulations of the State of
Delaware, our opinions relate only to laws and regulations that are of general
application and that, in our experience, are likely to have application to
transactions of the nature herein referenced (and not to laws and regulations
and requirements of law that might be implicated by reason of the specific
business activities of any of the above-referenced entities). No opinion is
expressed herein with respect to the Delaware Securities Act, 6 Del.C. ss. 7301
et seq.
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 73
<PAGE>
Based upon and subject to the foregoing, and limited in all respects
to matters of Delaware law, it is our opinion that:
1. Neither the execution, delivery and performance by QPI or
Acquisition Sub of the Agreement, nor the compliance by QPI or Acquisition Sub
with the terms and conditions thereof, will constitute a violation of the laws
or regulations of the State of Delaware.
2. The execution, delivery and performance by QPI and Acquisition
Sub of the Merger Agreement and the consummation of the transactions
contemplated therein do not require any authorization of, giving notice to, or
registration with any governmental body or authority of the State of Delaware,
other than the filing of a certificate of merger or certificate of ownership and
merger with the Secretary of State of Delaware.
3. The Agreement constitutes the legal, valid and binding obligation
of QPI and Acquisition Sub, enforceable against each such party in accordance
with its terms, except that such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, fraudulent conveyance,
moratorium or other laws of general application relating to or affecting the
enforcement of creditors' rights and remedies; (ii) the application of equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) or (iii) standards of good faith, fair dealing,
materiality and reasonableness that may be applied by a court to the exercise of
certain rights and remedies.
The foregoing opinion is subject to the following limitations and
exceptions:
(a) We express no opinion with respect to Section 8.02 of the
Agreement to the extent that such provision purports to render ineffective any
amendment not in writing;
(b) We express no opinion with respect to Section 2.5(b) of the
Agreement, to the extent it provides for the rounding of Merger Consideration,
or Section 2.5(b) of the Agreement, regarding certain affiliates of the Company,
to the extent that either such provision results in the unequal treatment of
Company stockholders in the Merger;
(c) We express no opinion with respect to Section 1.3(b), regarding
action by the Board of Directors of the Company in connection with the
Agreement;
(d) Provisions for indemnification or contribution with respect to
any person or entity may be unenforceable to the extent that such person has
engaged in conduct that is grossly negligent, reckless, willful or unlawful;
(e) We express no opinion with respect to Section 9.7 of the
Agreement to the extent that it purports to choose Delaware law to govern the
Agreement if the application of such law would be contrary to a fundamental
policy of a jurisdiction with a materially greater interest in the determination
of a particular issue, the law of which jurisdiction would be applicable in the
absence of an effective choice of law;
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 74
<PAGE>
(f) We express no view as to any purported waiver or consent by any
party contained in the Agreement, except to the extent such party may so waive
or consent and has effectively so waived or consented in accordance with
applicable law.
This opinion letter is addressed to you and is for your sole benefit
in connection with the transactions contemplated hereby and may not be delivered
to or relied upon by anyone else without our express written consent.
Very truly yours,
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 75
<PAGE>
SCHEDULE I
ROYAL BANK OF CANADA, as Lead Arranger,
Administrative Agent and Lender under a
certain Term Loan Credit Agreement of
even date herewith (the "Credit
Agreement")
BANC OF AMERICA SECURITIES LLC, as
Arranger and Co-Syndication Agent under
the Credit Agreement
BANK OF MONTREAL, as Arranger, Co-
Syndication Agent and Lender under the
Credit Agreement
CANADIAN IMPERIAL BANK OF COMMERCE, as
Arranger, and Co-Syndication Agent under
the Credit Agreement
[LENDERS]
OGILVY RENAULT, as counsel to the
Administrative Agent under the Credit
Agreement
HUGHES HUBBARD & REED LLP, as counsel to
the Administrative Agent under the
Credit Agreement
ARNOLD & PORTER
399 Park Avenue
New York, NY 10022-4690
REVOLVING CREDIT SCHEDULES - AP Schedule 10.1.1.14-B - Page 76
<PAGE>
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 1 W6-NY992050.082 V6
SCHEDULE 10.1.1.14-C to the 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
OPINION OF CANADIAN COUNSEL TO THE LOAN PARTIES
(TRANSACTION DOCUMENTS)
(Section 10.1.1.14 )
[UNDER LETTERHEAD OF OGILVY RENAULT]
August __, 1999
ROYAL BANK OF CANADA, as Lead Arranger,
Administrative Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
BANC OF AMERICA SECURITIES LLC, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
BANK OF MONTREAL, as Arranger,
Co-Syndication Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
CANADIAN IMPERIAL BANK OF COMMERCE, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
Each other Lender identified in Schedule
I hereto under the Revolving Credit
Agreement referred to below
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 77
<PAGE>
- - and -
HUGHES HUBBARD & REED LLP, as counsel to
the Administrative Agent under the
Revolving Credit Agreement referred to
below
Re: Imprimeries Quebecor Inc.-Quebecor Printing Inc.
Ladies and Gentlemen:
We have acted as counsel to Imprimeries Quebecor Inc.-Quebecor Printing
Inc. ("QPI") in connection with the entering into by QPI of that certain
Agreement and Plan of Merger dated as of July 12, 1999 between QPI, Printing
Acquisition Inc. and World Color Press, Inc. (the "Merger Agreement").
The capitalized terms used in this opinion which are defined in the
Revolving Credit Agreement dated as of the 12th day of August, 1999 among, inter
alia, QPI and the lenders named therein, have herein the respective meanings
therein specified unless the context of this opinion otherwise requires or
unless such terms are otherwise defined in this opinion.
In this connection, we have examined original executed copies or copies
certified to our satisfaction of the following documents:
(a) the Merger Agreement;
(b) the Tender Offer Documents;
(c) the certificate and articles of amalgamation of QPI and all
amendments thereto and the by-laws of QPI;
(d) a certificate of compliance issued by Industry Canada dated August
4, 1999 and a certificate of attestation and of regularite issued by
the Inspecteur general des institutions financieres du Quebec, each
dated August 4, 1999, the whole in respect of QPI;
(e) certified extract of resolutions of the board of directors of QPI
authorizing the execution by QPI of the Merger Agreement;
(f) a certificate of incumbency in respect of QPI dated August 13, 1999;
(g) letters by Quebecor Inc. and Caisse de depot et placement du Quebec,
as shareholders of QPI, dated July 2, 1999 and July 8, 1999,
respectively, authorizing QPI's execution, delivery and performance
of the transactions contemplated under the Merger Agreement; and
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 78
<PAGE>
(h) the corporate records and other records mentioned hereinafter and
all other corporate records and other records and documents as we
have considered necessary or desirable in order that we may give
this opinion.
We have assumed that the amalgamation of 166599 Canada Inc., Quebecor
Printing Inc., Quebecor Printing (Canada) Inc., Quebecor Printing Group Inc.,
Ronalds Printing Atlantic Limited and 148461 Canada Inc. (the "Amalgamating
Corporations") was duly and validly authorized by all necessary corporate action
on the part of each of the Amalgamating Corporations and that all previous
amalgamations relating to any one of the Amalgamating Corporations or any of its
predecessors were duly and validly authorized by all necessary corporate action
on the part of each of the corporations party to such amalgamations.
We did not review any minute books or corporate records of QPI or its
predecessors other than as mentioned above.
As the basis for rendering our opinions we have assumed that:
(i) all signatures on documents submitted to us (other than those on
behalf of QPI on the Merger Agreement) are genuine, all documents
submitted to us as originals are authentic and complete, and all
documents submitted to us as copies conform to authentic and
complete original documents;
(ii) all facts set forth in official public records and certificates and
other documents supplied by public officials or otherwise conveyed
to us by public officials are complete, true and accurate;
(iii) all statements as to matters of facts made in certificates supplied
by officers of QPI are complete, true and accurate as of the date of
this opinion letter;
(iv) all relevant individuals had full legal capacity at all relevant
times;
(v) none of the documents, originals or copies of which we have examined
has been amended; and
(vi) each party to the Merger Agreement other than QPI (i) is a validly
constituted and organized and validly subsisting corporation under
its governing laws, (ii) has full capacity, power and authority to
enter into the Merger Agreement, and to perform the obligations on
its part set out therein, (iii) has duly authorized, executed and
delivered the Merger Agreement and (iv) has met the requirements of
Applicable Laws in the United States of America for the entering
into of the Merger Agreement and for the performance of its
obligations thereunder.
In addition, we have assumed that the Merger Agreement is enforceable against
QPI in accordance with its terms under the internal laws of the State of
Delaware ("Delaware law").
Based on the foregoing, but subject to the qualifications hereinafter set
forth, we are of
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 79
<PAGE>
the opinion that:
1. QPI is a corporation amalgamated and validly existing under the Canada
Business Corporations Act and in good standing under the said Act and the
Act Respecting the Legal Publicity of Sole Proprietorships, Partnerships
and Legal Persons and it has the corporate power and capacity to carry on
business, to enter into and to perform its obligations, under the Merger
Agreement;
2. The execution and delivery of the Merger Agreement by QPI, and the
performance by QPI of its obligations under the Merger Agreement have been
duly authorized by all necessary corporate action on the part of QPI and,
to the extent required by QPI's articles and by-laws, the shareholders of
QPI have authorized the entering into the Merger Agreement by QPI and for
the performance of its obligations thereunder;
3. Neither the making or the performance of the Tender Offer by QPI, the
execution and delivery of the Merger Agreement by QPI, nor the
consummation of the transactions contemplated by the Merger Agreement or
compliance by QPI with the terms and provisions thereof will:
(i) conflict with, violate, result in a breach of, or constitute a
default under any provision of the articles or by-laws of QPI,
(ii) conflict with, violate or result in a breach of the laws or
regulations in force in the Province of Quebec (including the laws
of Canada applicable therein) applicable to QPI; or
(iii) conflict with, violate or result in a breach of (x) the credit
agreement dated as of April 28, 1999 among QPI, Quebecor Printing
(USA) Holdings Inc. and Quebecor Printing Capital GP, as borrowers,
and the lenders named therein, as amended as of August 12, 1999; and
(y) the Short Term Promissory Notes Program (as identified in the
Officer's Certificate attached as Schedule II hereto); in rendering
the opinions set forth in this subparagraph (iii), we have relied,
without any independent survey, investigation or verification on
paragraph 1 of the Officer's Certificate with respect to factual
matters set forth therein;
4. The Merger Agreement has been duly executed and delivered by QPI;
5. No authorization of, or giving of notice to, or registration with any
governmental body or authority of Canada or the Province of Quebec is
required for the execution, delivery and enforceability of the Merger
Agreement, including the making and performance of the Tender Offer;
6. A Quebec Court will recognise and declare enforceable any judgment
rendered by a competent court outside the Province of Quebec with respect
to the obligations of QPI under the Merger Agreement, including the making
and the performance of the Tender Offer. In any motion made before a
Quebec Court to enforce such judgment, a Quebec
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 80
<PAGE>
Court will confine itself to verifying whether the judgment in respect of
which recognition or enforcement is sought meets the requirements
mentioned in paragraph (a) of the qualifications below, without entering
into any examination of the merits of the judgment.
7. In an action against QPI commenced in a court of competent jurisdiction in
the Province of Quebec, the Quebec Court would recognise the choice of the
Delaware law under the Merger Agreement as a valid choice of law to govern
the Merger Agreement and would apply Delaware law, save for its rules of
conflicts, to all issues that a Quebec Court characterised as substantive
under the conflict rules of the Province of Quebec, assuming that:
(a) such choice of law is legal under Delaware law;
(b) such choice was made bona fide in that it was not made to avoid
mandatory provisions of the law of the jurisdiction that the Quebec
Court would, in the absence of such choice, have applied; we are not
aware that such choice was not made bona fide;
(c) Delaware law was specifically pleaded and proved as a question of
fact by a duly qualified expert before the Quebec Court;
and subject to the following, which shall prevail:
(d) the provisions of Delaware law shall yield to rules of law in force
in Quebec which are applicable by reason of their particular object;
(e) the provisions of Delaware law shall not apply if their application
would be manifestly inconsistent with public order as understood in
international relations;
(f) in cases of emergency or serious inconvenience, the law of the
Quebec Court seized of the matter may be applied provisionally to
ensure the protection of a person or of his property;
(g) if Delaware law invalidates the juridical act (i.e. the Merger
Agreement), the Quebec Court may apply the law of the jurisdiction
with which the act is more closely connected, in view of the nature
and the attendant circumstances;
(h) the application of the rules of the Civil Code of Quebec is
imperative in matters of civil liability for damage suffered in or
outside Quebec as a result of exposure to or the use of raw
materials, whether processed or not, originating in Quebec;
(i) procedure will be governed by the law of the Quebec Court seized of
the matter; and
(j) prescription will be governed by the law applicable to the merits of
the dispute.
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 81
<PAGE>
8. The submission by QPI to the jurisdiction of the courts of the State of
Delaware as stated in the Merger Agreement is valid and binding and not
subject to unilateral revocation.
The opinions expressed herein are subject to the assumptions hereinabove
set forth and to the following qualifications:
(a) Under the provisions of the Civil Code of Quebec, a Quebec Court may
refuse to recognize a judgment of a foreign court in the following
cases:
(i) the court rendering such judgment had no jurisdiction over the
matter or the persons being the subject thereof, as determined
under the relevant provisions of the Civil Code of Quebec,
(ii) such judgment is subject to ordinary or remedy or is not final
or enforceable at the place where it was rendered (the purpose
of this exception being essentially, according to the comments
of the Minister of Justice of Quebec on the relevant article
of the Civil Code of Quebec, to avoid a Quebec Court declaring
enforceable in the Province of Quebec a decision rendered in a
foreign jurisdiction that is still subject to a right of
appeal or similar recourse or which is not final and
enforceable in said jurisdiction),
(iii) such judgment was rendered in contravention of the fundamental
principles of procedure,
(iv) a dispute between the same parties, based on the same facts
and having the same object has given rise to a decision
rendered in Quebec, whether it has acquired the authority of a
final judgment (res judicata) or not, or is pending before a
Quebec authority, in first instance, or has been decided in a
third country and the decision meets the necessary conditions
for recognition in Quebec,
(v) the outcome of such judgment is manifestly inconsistent with
public order as understood in international relations,
(vi) the motion to enforce such judgment is not made in the
Province of Quebec within ten years after the date of such
judgment (please note, however, that there is a controversy
under Quebec law as to the limitation period applicable to a
foreign judgment and that some authorities are of the view
that the motion to enforce the foreign judgment must be made
in the Province of Quebec within three years after the date of
the said judgment); or
(vii) such judgment was obtained contrary to an order made by the
Attorney General of Canada under the Foreign Extraterritorial
Measures Act
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 82
<PAGE>
(Canada); the only such order which was found by us in the
Canada Gazette where such orders are usually published and
which remains in effect (although we have no assurance that no
other order is outstanding under the said Act) is the Foreign
Extraterritorial Measures (United States) Order, 1992, dated
October 9, 1992, as amended on January 12, 1996 and dealing
with trade and commerce between Canada and Cuba; and we
believe that such order does not affect the Merger Agreement
or the performance of the Tender Offer.
Further, if the judgment was rendered by default, the plaintiff must prove
that the act of procedure initiating the proceedings was duly served on
the defendant in accordance with the law of the place where the judgment
was rendered, and the Quebec Court may refuse recognition or enforcement
of the judgment if the defendant proves that, due to the circumstances,
the defendant was unable to learn of the act of procedure initiating the
proceedings or it was not given sufficient time to offer its defence.
We believe that there are no reasons under the Civil Code of Quebec for
avoiding recognition of enforcement of a judgment of a Delaware state
court or a federal court of the United States under the Merger Agreement
based on "public order" as understood in international relations.
(b) In the event that an action is taken or a judgment is rendered in
respect of the Merger Agreement outside of the Province of Quebec,
QPI may be subject to Section 2 of the Business Concerns Records Act
(Quebec) which provides that "..., no person shall, pursuant to or
under any requirement issued by any legislative, judicial or
administrative authority outside Quebec, remove or cause to be
removed, or send or cause to be sent, from any place in Quebec to a
place outside Quebec, any document or resume or digest of any
document relating to any concern"; for the purposes of the Business
Concerns Records Act (Quebec), "document" means any account, balance
sheet, statement of receipts and expenditure, profit and loss
statement, statement of assets and liabilities, inventory, report
and any other writing or material forming part of the records or
archives of a business concern;
(c) The Currency Act (Canada) precludes a Canadian court from rendering
a judgment for an amount expressed in a currency other than Canadian
currency.
(d) The opinions set forth in paragraphs 3(ii) and 5 hereinabove
(insofar as they relate solely to the consummation of the Merger,
but not to the consummation of the Tender Offer) are subject to the
filing and obtaining by QPI, prior to the consummation of the
Merger, of orders and rulings from 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
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 83
<PAGE>
Canada.
(e) With respect to the opinions set forth in paragraph 3(iii)
hereinabove, we express no opinion as to compliance with the
financial ratios set forth in section 11.2.10 of the credit
agreement referenced in that paragraph.
This opinion is limited to the laws in force in the Province of Quebec,
including the laws of Canada applicable therein, and may only be relied upon by
the persons to which it is addressed and for the purposes of the transactions
contemplated in the Merger Agreement. This opinion may not be quoted from or
referred to in any other document without our prior written consent.
Yours truly,
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 84
<PAGE>
SCHEDULE I
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 85
<PAGE>
SCHEDULE II
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.14-C - Page 86
<PAGE>
SCHEDULE 10.1.1.15-A to the 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
OPINION OF CANADIAN COUNSEL TO THE LENDERS
(Section 10.1.1.15)
[UNDER THE LETTERHEAD OF OGILVY RENAULT]
August __, 1999
ROYAL BANK OF CANADA, as Lead Arranger,
Administrative Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
BANC OF AMERICA SECURITIES LLC, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
BANK OF MONTREAL, as Arranger,
Co-Syndication Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
CANADIAN IMPERIAL BANK OF COMMERCE, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
Each other Lender identified in Schedule
I hereto under the Revolving Credit
Agreement referred to below
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 87
<PAGE>
- - and -
HUGHES HUBBARD & REED LLP, as counsel to
the Administrative Agent under the
Revolving Credit Agreement referred to
below
Re: Quebecor Printing Inc., Quebecor Printing (USA) Holdings Inc.
and Quebecor Printing Holding Company
Ladies and Gentlemen:
We have acted as counsel to the Administrative Agent in connection with a
Revolving Credit Agreement dated as of the 12th day of August, 1999, among
Quebecor Printing (USA) Holdings Inc. ("US Holdings"), as borrower, Imprimeries
Quebecor Inc.-Quebecor Printing Inc. ("QPI"), as guarantor, Quebecor Printing
Holding Company ("QPHC"), as guarantor, the lenders listed on the signature
pages thereof, Royal Bank of Canada, as Lead Arranger and Administrative Agent,
and Banc of America Securities LLC, Bank of Montreal and Canadian Imperial Bank
of Commerce, as Arrangers and Co-Syndication Agents (the "Revolving Credit
Agreement").
The capitalized terms used in this opinion which are defined in the
Revolving Credit Agreement have herein the respective meanings therein specified
unless the context of this opinion otherwise requires or unless such terms are
otherwise defined in this opinion.
In this connection, we have examined original executed copies or copies
certified to our satisfaction of the following documents:
(a) the Revolving Credit Agreement;
(b) a Loan Party Guarantee Agreement dated as of August 12, 1999
executed by QPI in favour of the Administrative Agent;
(c) a Loan Party Guarantee Agreement dated as of August 12, 1999
executed by QPHC in favour of the Administrative Agent; and
(d) all such records and documents as we have considered necessary or
desirable in order that we may give this opinion.
In this opinion, items (a), (b) and (c) described above are collectively
sometimes herein after referred to as the "Loan Documents".
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or facsimile
copies and the legal capacity of all individuals.
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 88
<PAGE>
Our opinion given below is limited to the laws currently in effect in the
Province of Quebec, including the laws of Canada applicable therein.
We have assumed for the purposes hereof that each of the Loan Documents is
enforceable in accordance with its governing laws, namely the laws of the State
of New York. We express herein no opinion on the Loan Documents which are
governed by the laws of the State of New York, and in this respect as well as
with respect to all matters which are governed by the laws of the State of New
York and the federal laws of the United States of America applicable therein, we
refer you to the opinions (and the assumptions and the qualifications therein
set forth) of Messrs. Arnold & Porter, counsel to Printing Acquisition Inc.,
QPI, US Holdings and QPHC, and of Messrs. Hughes Hubbard & Reed LLP, New York
counsel to the Administrative Agent, each such opinion dated today and addressed
and delivered to you and, in the case of the opinion of Messrs. Arnold & Porter,
to Messrs. Martineau Walker, Messrs. Hughes Hubbard & Reed LLP and to us
concurrently herewith.
For the purposes hereof, we have assumed that each of the parties to the
Loan Documents (i) is a validly constituted and organized and validly subsisting
corporation, under its governing laws, (ii) has full capacity, power and
authority to enter into the Loan Documents and to perform the obligations on its
part set out therein and (iii) has duly authorized, executed and delivered the
Loan Documents.
With respect to the status of Printing Acquisition Inc. and each of US
Holdings, QPI and QPHC and their respective capacity and authority to enter into
the Loan Documents and as to their due execution and delivery thereof, we refer
you to the opinions (and the assumptions and qualifications therein set forth)
of (i) Messrs. Martineau Walker, dated today and addressed and delivered to you
and to us concurrently herewith, and (ii) Messrs. Arnold & Porter referred to
above. With your permission, we have relied without independent verification on
all matters set forth in the foregoing opinions in preparing this opinion and
express herein no opinion on these matters.
Based on the foregoing, but subject to the qualifications hereinafter set
forth, we are of the opinion that:
1. No authorization of, or giving of notice to, or registration with any
governmental body or authority of Canada or the Province of Quebec is
required in connection with the execution, delivery and enforceability of
the Revolving Credit Agreement or any of the other Loan Documents or in
connection with the effecting of Borrowings under the Revolving Credit
Agreement.
2. A Quebec Court will recognise and declare enforceable any judgment
rendered by a competent court outside the Province of Quebec with respect
to the obligations of a Loan Party under the Loan Documents. In any motion
made before a Quebec Court to enforce such judgment, a Quebec Court will
confine itself to verifying whether the judgment in respect of which
recognition or enforcement is sought meets the requirements mentioned in
paragraph (a) of the qualifications below, without entering into any
examination of the
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 89
<PAGE>
merits of the judgment.
3. In an action against a Loan Party commenced in a court of competent
jurisdiction in the Province of Quebec, the Quebec Court would recognise
the choice of the New York law under a Loan Document as a valid choice of
law to govern such Loan Document and would apply New York law, save for
its rules of conflicts, to all issues that a Quebec Court characterises as
substantive under the conflict rules of the Province of Quebec, assuming
that:
(a) such choice of law is legal under New York law;
(b) such choice was made bona fide in that it was not made to avoid
mandatory provisions of the law of the jurisdiction that the Quebec
Court would, in the absence of such choice, have applied; we are not
aware that such choice was not made bona fide;
(c) New York law was specifically pleaded and proved as a question of
fact by a duly qualified expert before the Quebec Court;
and subject to the following, which shall prevail:
(d) the provisions of New York law shall yield to rules of law in force
in Quebec which are applicable by reason of their particular object;
(e) the provisions of New York law shall not apply if their application
would be manifestly inconsistent with public order as understood in
international relations;
(f) in cases of emergency or serious inconvenience, the law of the
Quebec Court seized of the matter may be applied provisionally to
ensure the protection of a person or of his property;
(g) if New York law invalidates the juridical act (i.e. the relevant
Loan Documents), the Quebec Court may apply the law of the
jurisdiction with which the act is more closely connected, in view
of the nature and the attendant circumstances;
(h) the application of the rules of the Civil Code of Quebec is
imperative in matters of civil liability for damage suffered in or
outside Quebec as a result of exposure to or the use of raw
materials, whether processed or not, originating in Quebec;
(i) procedure will be governed by the law of the Quebec Court seized of
the matter; and
(j) prescription will be governed by the law applicable to the merits of
the dispute.
4. The submission by QPI to the non-exclusive jurisdiction of the courts
stated in the Loan Documents to which it is a party is valid and binding
and not subject to unilateral revocation.
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 90
<PAGE>
The opinions expressed herein are subject to the assumptions hereinabove
set forth and to the following qualifications:
(a) Under the provisions of the Civil Code of Quebec, a Quebec Court may
refuse to recognize a judgment of a foreign court in the following
cases:
(i) the court rendering such judgment had no jurisdiction over the
matter or the persons being the subject thereof, as determined
under the relevant provisions of the Civil Code of Quebec,
(ii) such judgment is subject to ordinary remedy or is not final or
enforceable at the place where it was rendered (the purpose of
this exception being essentially, according to the comments of
the Minister of Justice of Quebec on the relevant article of
the Civil Code of Quebec, to avoid a Quebec Court declaring
enforceable in the Province of Quebec a decision rendered in a
foreign jurisdiction that is still subject to a right of
appeal or similar recourse or which is not final and
enforceable in said jurisdiction),
(iii) such judgment was rendered in contravention of the fundamental
principles of procedure,
(iv) a dispute between the same parties, based on the same facts
and having the same object has given rise to a decision
rendered in Quebec, whether it has acquired the authority of a
final judgment (res judicata) or not, or is pending before a
Quebec authority, in first instance, or has been decided in a
third country and the decision meets the necessary conditions
for recognition in Quebec,
(v) the outcome of such judgment is manifestly inconsistent with
public order as understood in international relations,
(vi) the motion to enforce such judgment is not made in the
Province of Quebec within ten years after the date of such
judgment (please note, however, that there is a controversy
under Quebec law as to the limitation period applicable to a
foreign judgment and that some authorities are of the view
that the motion to enforce the foreign judgment must be made
in the Province of Quebec within three years after the date of
the said judgment), or
(vii) such judgment was obtained contrary to an order made by the
Attorney General of Canada under the Foreign Extraterritorial
Measures Act (Canada); the only such order which was found by
us in the Canada Gazette where such orders are usually
published and which remains in effect (although we have no
assurance that no other order is outstanding under the said
Act) is the Foreign Extraterritorial Measures (United
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 91
<PAGE>
States) Order, 1992, dated October 9, 1992, as amended on
January 12, 1996 and dealing with trade and commerce between
Canada and Cuba; and we believe that such order does not
affect the Loan Documents or the rights of the Finance
Parties.
***Further, if the judgment was rendered by default, the plaintiff must
prove that the act of procedure initiating the proceedings was duly served
on the defendant in accordance with the law of the place where the
judgment was rendered, and the Quebec Court may refuse recognition or
enforcement of the judgment if the defendant proves that, due to the
circumstances, the defendant was unable to learn of the act of procedure
initiating the proceedings or it was not given sufficient time to offer
its defence.
We believe that there are no reasons under the Civil Code of Quebec for
avoiding recognition of enforcement of a judgment of a New York State
court or a federal court of the United States under the Loan Documents
based on "public order" as understood in international relations.
(b) In the event that an action is taken or a judgment is rendered in
respect of the Loan Documents outside of the Province of Quebec, a
Loan Party may be subject to Section 2 of the Business Concerns
Records Act (Quebec) which provides that "..., no person shall,
pursuant to or under any requirement issued by any legislative,
judicial or administrative authority outside Quebec, remove or cause
to be removed, or send or cause to be sent, from any place in Quebec
to a place outside Quebec, any document or resume or digest of any
document relating to any concern"; for the purposes of the Business
Concerns Records Act (Quebec), "document" means any account, balance
sheet, statement of receipts and expenditure, profit and loss
statement, statement of assets and liabilities, inventory, report
and any other writing or material forming part of the records or
archives of a business concern.
(c) The Currency Act (Canada) precludes a Canadian court from rendering
a judgment for an amount expressed in a currency other than Canadian
currency.
This opinion may only be relied upon by the persons to which it is
addressed and for the purposes of the transactions contemplated in the Loan
Documents.
Yours truly,
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 92
<PAGE>
SCHEDULE I
REVOLVING CREDIT SCHEDULES - OR Schedule 10.1.1.15-A - Page 93
<PAGE>
SCHEDULE 10.1.1.15-B to the 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
OPINION OF US COUNSEL TO THE LENDERS
(Section 10.1.1.15)
[UNDER THE LETTERHEAD OF HUGHES HUBBARD & REED LLP]
August __, 1999
ROYAL BANK OF CANADA, as Lead Arranger,
Administrative Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
BANC OF AMERICA SECURITIES LLC, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
BANK OF MONTREAL, as Arranger,
Co-Syndication Agent and Lender under
the Revolving Credit Agreement referred
to below
- - and -
CANADIAN IMPERIAL BANK OF COMMERCE, as
Arranger and Co-Syndication Agent under
the Revolving Credit Agreement referred
to below
- - and -
Each other Lender identified in Schedule
I hereto under the Revolving Credit
Agreement referred to below
REVOLVING CREDIT SCHEDULES - HHR Schedule 10.1.1.15-B - Page 94
<PAGE>
Re: Quebecor Printing Inc., Quebecor Printing
(USA) Holdings Inc. and Quebecor
Printing Holding Company
Ladies and Gentlemen:
We have acted as New York counsel to the Administrative Agent in
connection with a Revolving Credit Agreement (the "Revolving Credit Agreement")
dated as of the 12th day of August, 1999 among Quebecor Printing (USA) Holdings
Inc. ("US Holdings"), as borrower, Imprimeries Quebecor Inc.-Quebecor Printing
Inc. ("QPI"), as guarantor, Quebecor Printing Holding Company ("QPHC"), as
guarantor, the lenders listed on the signature pages thereof, Royal Bank of
Canada, as Lead Arranger and Administrative Agent, and Banc of America
Securities LLC, Bank of Montreal, Canadian Imperial Bank of Commerce, as
Arrangers and Co-Syndication Agents.
This opinion is delivered to you pursuant to Section 10.1.1.15 of the
Revolving Credit Agreement. The capitalized terms used in this opinion which are
defined in the Revolving Credit Agreement have herein the respective meanings
therein specified unless the context of this opinion otherwise requires or
unless such terms are otherwise defined in this opinion.
In rendering the opinions set forth below, we have examined original
executed copies or copies certified or otherwise identified to our satisfaction
of the following documents:
(a) the Revolving Credit Agreement;
(b) a Loan Party Guarantee Agreement dated as of August 12, 1999
executed by QPI in favor of the Administrative Agent;
(c) a Loan Party Guarantee Agreement dated as of August 12, 1999
executed by QPHC in favor of the Administrative Agent; and
(d) all such records and documents as we have considered necessary or
desirable in order that we may give this opinion.
In this opinion, items (a) to (c) inclusively described above are
sometimes hereinafter referred to collectively as the "Loan Documents," and
individually as a "Loan Document."
For purposes of this opinion, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to authentic originals of all documents submitted to us as copies and
the legal capacity of all individuals.
In addition, we have assumed that each party to the Loan Documents (i) is
a corporation duly incorporated, validly organized and validly existing in good
standing under its governing laws and the laws of all applicable jurisdictions,
(ii) has full capacity, power and authority to enter into each of the Loan
Documents to which it is a party and to perform each of the obligations on its
part set out therein and (iii) has duly authorized, executed and delivered each
REVOLVING CREDIT SCHEDULES - HHR Schedule 10.1.1.15-B - Page 95
<PAGE>
Loan Document to which it is a party. Furthermore, we have assumed that the
execution and delivery of, and the performance of each such party's obligations
under, each of the Loan Documents do not and will not violate or conflict with,
result in a breach of or constitute a default under (i) the respective
certificate of incorporation, by-laws or other charter or constituent documents
of such party, (ii) any other agreement or instrument to which such party is a
party or by which any of their respective properties may be bound, (iii) any
governmental approval or governmental registration that may be applicable to
such party or any of their respective properties, (iv) any order, decision,
judgment or decree that may be applicable to such party or their Subsidiaries or
any of their respective properties or (v) any Applicable Law other than the law
of the State of New York or the federal law of the United States of America
applicable therein.
Our opinions given below are limited to the law of the State of New York
and the Federal law of the United States of America applicable therein. With
respect to matters governed by the laws of the Province of Quebec and the laws
of Canada, we refer you to the opinions (and the assumptions and the
qualifications therein set forth) of Martineau Walker, counsel to QPI, and
Ogilvy Renault, counsel to the Administrative Agent, each such opinion dated
today and addressed and delivered to you. Further, we refer you to the opinion
(and the assumptions and the qualifications therein set forth) of Arnold &
Porter, counsel to Printing Acquisition Inc., QPI, US Holdings and QPHC, dated
today and addressed and delivered to you with respect to the matters set forth
therein. Except to the extent of the opinions specifically set forth below, in
preparing this opinion we have relied with your permission and without
independent verification on (and we express no opinion with respect to) the
matters set forth in the foregoing opinions.
Based on and subject to the foregoing and the other limitations,
qualifications and exceptions set forth herein, we are of the opinion that:
1. Each of the Loan Documents to which it is party constitutes the legal,
valid and binding obligation of US Holdings, QPI and QPHC, enforceable
against US Holdings, QPI and QPHC in accordance with its terms except to
the extent that such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium, receivership, fraudulent
conveyance or similar laws affecting or relating to the enforcement of
creditors' rights generally, (b) equitable principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (c)
concepts of materiality, reasonableness, good faith and fair dealing.
2. No authorization of, or giving of notice to, or registration with any
governmental body or authority of the State of New York or the United
States of America is required in connection with the execution, delivery
and enforceability of the Loan Documents or in connection with the
effecting of Borrowings under the Revolving Credit Agreement.
The opinions expressed herein are subject to the following limitations,
qualifications and exceptions:
(i) We express no opinion herein as to (A) the impact of any laws
regulating the type of investments that can be made by, or the legal lending
limits of, any of the Lenders or
REVOLVING CREDIT SCHEDULES - HHR Schedule 10.1.1.15-B - Page 96
<PAGE>
(B) the effect (if any) of the laws of any jurisdiction (other than the State of
New York) in which any of the Lenders is located that limit the interest, fees
or other charges such Lender may impose or collect.
(ii) A court may modify or limit contractual awards of attorneys'
fees.
(iii) We express no opinion herein as to any provision of any Loan
Document insofar as such provision (A) relates to waiver of form non conveniens,
venue or the subject matter jurisdiction of the federal courts of the United
States of America or (B) requires a party thereto to bring a suit in a
jurisdiction other than in the State of New York.
(iv) The provisions of any Loan Party Guarantee which in effect
provide that the liability of the guarantor thereunder shall not be affected by
any modification to any of the Loan Documents or other transaction documents,
might be enforceable only to the extent such modifications were not so material
as to constitute a new agreement among the parties.
(v) The enforceability of provisions of the Loan Documents to the
effect that terms may not be waived or modified except in writing may be limited
under certain circumstances.
(vi) We express no opinion as to (A) Section 17.9.3 of the Revolving
Credit Agreement, (B) the second and third sentences of Section 4.04 of each
Loan Party Guarantee or (C) any provision of the Loan Documents insofar as it
relates to rights of set-off.
(vii) We wish to point out that any provision of any Loan Document
that permits any Person to benefit from indemnities, waivers, exculpatory
provisions or similar provisions may be subject to limitations imposed by law or
public policy.
This opinion letter may only be relied upon by the Persons to which it is
addressed, and may be relied upon by such Persons solely in connection with the
transactions contemplated by the Loan Documents. This opinion may not be
furnished, circulated or quoted to, or used or referred to by, any other Person
without our prior written consent in each instance. This opinion is rendered as
of the date hereof, and we undertake no obligation to advise you of any changes
of law or fact or any new developments that might affect any matters or opinions
set forth herein.
Yours truly,
REVOLVING CREDIT SCHEDULES - HHR Schedule 10.1.1.15-B - Page 97
<PAGE>
SCHEDULE I
REVOLVING CREDIT SCHEDULES Schedule 10.1.1.15-B - Page 98
<PAGE>
SCHEDULE 11.1.7(c) to the 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
CERTIFICATE OF COMPLIANCE
(Section 11.1.7(c))
Date:_______________
ROYAL BANK OF CANADA (as Administrative Agent)
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Manager, Agency Services
Fax: (212) 428-2310
Dear Sirs:
CERTIFICATE OF COMPLIANCE
I, _____________________________________________________, [Chief
Executive Officer, Chief Financial Officer or Treasurer] of Quebecor Printing
Inc., ("QPI"), hereby certify, pursuant to Section 11.1.7(c) of the 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 (as in effect on the date hereof, the
"Credit Agreement"; terms defined therein that are not otherwise defined herein
are used herein with the meanings therein ascribed to them), that:
1. I am familiar with and have examined the provisions of the Credit
Agreement, the 7 3/4% Indenture and the 8 3/8% Indenture and I have made all
appropriate investigations of the records of QPI, WCP, the Borrower and the
other Restricted Entities and I have asked all questions to the other executives
and officers of each such party as I have deemed necessary or useful to allow me
to give this certificate knowledgeably.
2. [(a)] The accompanying [unaudited](1) Consolidated financial
statements of QPI and its Subsidiaries and QPI as at __________ and for the
[fiscal year][quarterly accounting period](1) ended __________, ____, are
complete and correct and present fairly, in accordance
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 99
<PAGE>
with Canadian GAAP [(except for changes therein or departures therefrom
described below that have been approved in writing by Messrs. __________, QPI's
current independent certified public accountants)], the Consolidated financial
position of QPI and its Subsidiaries and the Consolidated statements of income,
retained earnings and cash flows for such [fiscal year] [quarterly period, and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period](9), in each case on the basis presented [and subject only to
normal year-end auditing adjustments].
[(b) Except as disclosed or reflected in such financial statements,
as at __________, neither QPI nor any of its Subsidiaries had any liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, has had or could reasonably be expected to have a Materially
Adverse Effect.]
[3. The changes in and departures from Canadian GAAP, as the case
may be, are as follows:
All such changes have been approved in writing by Messrs. __________.]
4. Attached hereto as Appendix A are the calculations required to
establish whether or not QPI was in compliance with Section 11.2.10 of the
Credit Agreement as at _______________.
5. Based on an examination sufficient to enable me to make an
informed statement, there exists no Default or Event of Default, except the
following:
[If none exist, insert "None"; if any do exist, specify the
same by Section, give the date the same occurred, whether it is
continuing, and the steps being taken by QPI, the other Loan Parties
or other Restricted Entities, as applicable, with respect thereto.]
6. Attached hereto as Appendix B is a list setting forth (a) [the
Persons which are Restricted Entities as of the end of the last annual period,
(b)](10) the Persons which are Non-Restricted Entities as at the end of the last
quarterly period together with the amount of the Investments therein by QPI and
the Restricted Entities at such time and (c) the amount(s) of the Indebtedness
incurred by QPI and the Operating Restricted Entities as at the end of the last
quarterly period.
7. Attached hereto as Appendix C are the details of the calculation
of the maximum amount of Restricted Payments permitted under (and as defined in)
Section 4.8 of the 73/4% Indenture and the 83/8% Indenture as of the last day of
the fiscal period to which this certificate relates and the calculations
required to establish compliance therewith, and furthermore, based on an
examination sufficient to enable me to make an informed statement,
- ----------
9. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
10. Include only in the case of a certificate to be delivered with respect to
the annual financial statements.
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 100
<PAGE>
there exists no default with respect to any of the other negative covenants
contained in such Indentures as of such date.
[Chief Executive Officer, Chief Financial
or Treasurer]
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 101
<PAGE>
APPENDIX A
TO CERTIFICATE OF COMPLIANCE
The period to which the following calculations relate commenced on
___________________________ and ended on ___________________________
(a) Ratio of EBITDA to Interest Expense of QPI: (Requirement of Section
11.2.10(a) of the Credit Agreement: at all times no less than 3.50 to 1.00
calculated on the basis of the last four consecutive fiscal quarters):
The ratio of EBITDA to Interest Expense of QPI, on a Consolidated basis,
for the period of four fiscal quarters ended ____________________________
is ____________ to 1.00 based on the following sums:
(i) EBITDA (QPI to provide details of calculation thereof):
(ii) Interest Expense:
Ratio EBITDA to Interest Expense = line (i) / (ii): :1.00
(b) Ratio of QPI's Debt to Capitalization: (Requirement of Section 11.2.10(b)
of the Credit Agreement: not to exceed (A) 70% from the Tender Offer
Funding Date until the Merger Date, (B) 65% after the Merger Date until
December 31, 1999, (C) 60% from January 1, 2000 until December 31, 2000
and (D) 55% after December 31, 2000, in each case, on the basis of
calculations made at the end of each fiscal quarter):
The ratio of QPI's Debt to Capitalization as at the fiscal quarter of QPI
ended _____________ is ______________, based on the following:
(i) QPI's Debt(1):
(ii) Shareholder's equity of QPI(1):
(iii) non-controlling interests of QPI(11):
(iv) Capitalization = line (ii) + line (iii):
- ----------
11. Determined on a Consolidated basis.
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 102
<PAGE>
(v) Ratio of QPI's Debt to Capitalization %
(line (i) / line (iv) x 100):
(c) Ratio of QPI's Debt to EBITDA: (Requirement of Section 11.2.10(c) of the
Credit Agreement: not to exceed for any period of four consecutive fiscal
quarters (A) 4.00 to 1.00 from the Tender Offer Funding Date until the
Merger Date, (B) 3.75 to 1.00 after the Merger Date until December 31,
2000, and (C) 3.00 to 1.00 after December 31, 2000, until the Facility A
and the Facility B under (and as defined in) the US Holdings Term Credit
Agreement have been paid in full and cancelled and the ratio of QPI's Debt
to QPI's Capitalization is less than 55% at the end of any fiscal quarter
ending after the date of such repayment and cancellation):
The ratio of Debt to EBITDA of QPI, on a consolidated basis, for the
period of four fiscal quarters ended __________ is _________ to 1.00 based
on the following sums:
(i) QPI's Debt(11): _____________
(ii) EBITDA (QPI to provide details of
calculation thereof): _____________
Ratio of Debt to EBITDA = line (i) / (ii): _____________ :1.00
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 103
<PAGE>
APPENDIX B
TO CERTIFICATE OF COMPLIANCE
[List of Restricted Entities (annual basis)]
[List of Non-Restricted Entities and Investments therein by QPI (quarterly
basis)]
[Indebtedness incurred by QPI and Operating Restricted Entities (quarterly
basis)]
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 104
<PAGE>
APPENDIX C
TO CERTIFICATE OF COMPLIANCE
[Detailed calculations of maximum amount of Restricted Payments under 7 3/4% and
8 3/8% Indentures and compliance therewith (quarterly basis)]
REVOLVING CREDIT SCHEDULES Schedule 11.1.7(c) - Page 105
<PAGE>
SCHEDULE 18.3 to the 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
TRANSFER UNDERTAKING
(Section 18.3)
To: ROYAL BANK OF CANADA
(the " Administrative Agent")
BANC OF AMERICA SECURITIES LLC
BANK OF MONTREAL
CANADIAN IMPERIAL BANK OF COMMERCE
[LENDER]
[LENDER]
[LENDER]
(the "Lenders")
- and -
QUEBECOR PRINTING (USA) HOLDINGS INC.
(the "Borrower")
- and -
IMPRIMERIES QUEBECOR INC. - QUEBECOR PRINTING INC.
QUEBECOR PRINTING HOLDING COMPANY
(the "Guarantors")
WHEREAS pursuant to a 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
(as in effect on the date hereof, the "Credit Agreement"), the Lenders,
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 106
<PAGE>
subject to the terms and conditions of the Credit Agreement, have agreed to make
certain credit facilities available to the Borrower for an aggregate amount of
up to $450,000,000;
WHEREAS pursuant to and in accordance with Section 18.3 of the
Credit Agreement, a Lender may assign or transfer all or any of its rights,
benefits and obligations under the Credit Agreement by notifying the
Administrative Agent, the Borrower and the other Loan Parties and by causing the
assignee or transferee to complete, execute and deliver this Transfer
Undertaking;
WHEREAS, ______________________________________ (the "Transferor")
wishes to assign and transfer to ___________________________________ (the
"Purchaser") the rights, benefits and obligations of the Transferor under the
Credit Agreement specified herein;
WHEREAS the Transferor has notified the Administrative Agent, the
Borrower and the other Loan Parties of the assignment and transfer contemplated
herein and have obtained the consent of QPI where applicable in accordance with
Section 18.3 of the Credit Agreement;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the signatories hereto agree as follows:
1. In this Transfer Undertaking, and the introductory paragraphs, words and
expressions defined in the Credit Agreement have the same respective
meanings when used herein.
2. The Transferor assigns and transfers (the "Transfer") to the Purchaser,
and the Purchaser irrevocably purchases, takes and assumes from the
Transferor, and without recourse to the Transferor, effective on
_______________ (the "Transfer Effective Date") [the entire/a portion of
the] Commitment of the Transferor in respect of the Credit Agreement such
transferred amount being $____________, including, without limitation, all
of the related rights, benefits and obligations under the Credit Agreement
and all instruments, documents and collateral security, if any, pertaining
thereto (the "Transferred Rights", the "Transferred Benefits", the
"Transferred Obligations", as applicable, and collectively, the
"Transferred Rights, Benefits and Obligations").
3. The Purchaser and the Transferor acknowledge that arrangements have been
made between them as to the portion, if any, of fees received or to be
received by the Transferor pursuant to the Credit Agreement and to be paid
by the Transferor to the Purchaser.
4. The Purchaser accepts the Transfer, assumes the Transferred Obligations
(the "Assumption") and agrees that it will be bound by the Credit
Agreement with respect to the Transferred Rights, Benefits and Obligations
as fully as if it had been an original signatory to the Credit Agreement
with respect thereto, to the extent that such Transferred Rights, Benefits
and Obligations arise or accrue on or after the Transfer Effective Date.
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 107
<PAGE>
NOTE: Section 5 to be used only if any Libor Loans of the Transferor
are to remain outstanding, subject to appropriate adjustments
if needed to reflect the actual agreement between Transferor
and Purchaser
[5. (a) Included in the Transferred Rights, Benefits and Obligations is the
Purchaser's assumed portion of certain Libor Loans previously made by the
Transferor and which have not been fully repaid as at the Transfer
Effective Date. The Purchaser's assumed portion of such outstanding Libor
Loans is identified on Annex A hereto and is referred to herein as the
"Purchased Borrowings". The Purchaser hereby requests that the Transferor
maintain, with respect to each such Libor Loan, until the last day of the
Libor Interest Period or maturity date applicable thereto, as the case may
be, and the Transferor hereby agrees to maintain, its existing funding or
other arrangements in respect of each such Purchased Borrowing on behalf
of, and for the account of, the Purchaser.
(b) In consideration for the Transferor's agreement to maintain its existing
funding or other arrangements in respect of the Purchased Borrowings on
behalf of the Purchaser, the Purchaser hereby agrees to pay to the
Transferor the principal amount of, and interest on (including, without
limitation, the Applicable Margin and any default interest which may be
payable thereon pursuant to Section 4.6 of the Credit Agreement) each
Purchased Borrowing on the last day of the Libor Interest Period or
maturity date, as the case may be, applicable thereto or at any earlier
date when such amounts become due and payable (as the result of scheduled
payment, voluntary or mandatory prepayment, acceleration or otherwise)
from the Borrower under the terms of the Credit Agreement (each such
payment of principal and interest on the Purchased Borrowings being
referred to herein as a "Purchased Payment").
(c) The Purchaser hereby directs the Borrower to make each Purchased Payment
otherwise due to the Purchaser to the Administrative Agent for the account
of the Transferor at the time, in the manner and at the Transferor's
Branch of Account provided in the Credit Agreement. Notwithstanding
anything contained herein to the contrary, neither the failure of the
Borrower to make any principal, interest or Acceptance Fee payment
required under the Credit Agreement nor the failure of the Borrower to
forward any Purchased Payment to the Transferor shall affect the
obligation of the Purchaser to pay the amount of each Purchased Payment to
the Administrative Agent for the account of the Transferor as and when
due, which obligation shall be and remain absolute and unconditional.
(d) The Borrower hereby agrees to indemnify the Transferor for any and all
amounts to which the Transferor would be entitled under the Credit
Agreement with respect to the Purchased Borrowings as if the Purchased
Borrowings remained Libor Loans of the Transferor thereunder until the
respective Purchased Payments are made therefor (including, without
limitation, amounts payable by the Borrower under Articles VIII, XII and
XIII of the Credit Agreement). Nothing contained herein shall limit or
modify all obligations of the Borrower to the Administrative Agent, the
Purchaser and to all other Lenders in accordance with the terms of the
Credit Agreement including, without limitation, all obligations of the
Borrower under Articles VIII,
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 108
<PAGE>
XII and XIII of the Credit Agreement for the benefit of the Purchaser.
Nothing herein contained shall be construed or interpreted as requiring
the Borrower, once it has paid (i) to the Administrative Agent for the
account of the Transferor any amount referred to above to pay the same
amount to the Purchaser and/or (ii) either to the Administrative Agent
for the account of the Transferor or the Purchaser the face amount of
any Purchased Borrowings, to pay the same amount to the other.
(e) Notwithstanding anything contained herein to the contrary, on the last
day of the Libor Interest Period or maturity date, as the case may be,
applicable to the Libor Loans relating to the Purchased Borrowings
(whether at their stated maturity or otherwise), the Transferor shall
have no obligation to the Borrower or to the Purchaser to accept, make,
fund or maintain any Libor Loans with respect to the Transferred
Obligations. In the event that the Borrower fails to indemnify the
Transferor pursuant to subparagraph 5(d) above, the Purchaser agrees to
pay to the Transferor, in immediately available funds, an amount equal
to the amount the Borrower is so obligated to pay. No such payment of
any such amounts by the Purchaser shall relieve the Borrower from its
obligations hereunder and under the Credit Agreement with respect to
such Purchased Borrowings.]
[5/6]. The Transfer and the Assumption are governed by and subject to Section
18.3 of the Credit Agreement and are made without novation.
[6/7]. The Purchaser acknowledges and confirms that it is satisfied with the
form and substance of the Credit Agreement and that it has not relied
upon and that the Transferor and the Administrative Agent have not made
any representation or warranty whatsoever as to the due execution,
legality, effectiveness, validity or enforceability of the Credit
Agreement or any other documentation or information delivered by the
Transferor or the Administrative Agent to the Purchaser in connection
therewith or for the performance thereof by any party thereto or for
the financial condition of the Borrower or any other Loan Party. All
representations, warranties and conditions expressed or implied by law
or otherwise (except in Section [8/9]) are hereby excluded.
[7/8]. The Purchaser [represents and warrants that it is a United States
Person/confirms that it will comply with Section 8.5.4 of the Credit
Agreement] and represents and covenants that it has itself 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 Borrower and the
other Loan Parties and has not relied and will not hereafter rely on
the Transferor or the Administrative Agent to appraise or keep under
review on its behalf the financial condition, creditworthiness,
affairs, status or nature of the Borrower and the other Loan Parties.
[8/9]. Each of the Transferor and the Purchaser represents and warrants to the
other, and to the Administrative Agent, the Lenders and the Borrower,
that it has the capacity and power
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 109
<PAGE>
to enter into the Transfer and the Assumption in accordance with the
terms hereof and to perform its obligations arising therefrom, and all
action required to authorize the execution and delivery hereof and the
performance of such obligations has been duly taken.
[9/10]. As a condition precedent to the effectiveness of the Transfer and
Assumption contemplated hereby, a processing and recordation fee in the
amount of $3,500 shall be paid by the [Transferor/Purchaser] to the
Administrative Agent.
[10/11]. This Transfer Undertaking may be executed in two or more counterparts,
each of which may be communicated by telecopier or otherwise and shall
be considered an original and all of which together shall constitute
one and the same instrument.
[11/12]. This Transfer Undertaking shall be governed by and construed in
accordance with the laws of the State of New York.
DATED as of the ______ day of __________________________.
[ TRANSFEROR ]
By:
Name:
Title:
[ PURCHASING INSTITUTION ]
By:
Name:
Title:
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 110
<PAGE>
[SIGNATURE OF QPI IS ONLY NEEDED PRIOR TO AN EVENT OF DEFAULT]
CONSENTED TO AND
ACKNOWLEDGED:
IMPRIMERIES QUEBECOR INC. -
QUEBECOR PRINTING INC.
By:
Name:
Title:
ROYAL BANK OF CANADA, as
Administrative Agent
By:
Name:
Title:
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 111
<PAGE>
ANNEX A
TO TRANSFER UNDERTAKING
Purchased Libor Loans
Facility Principal Amount Libor Rate Expiry of Libor
-------- ---------------- (including Interest Period
Applicable Margin) ---------------
------------------
REVOLVING CREDIT SCHEDULES Schedule 18.3 - Page 112
<PAGE>
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
<PAGE>
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
<PAGE>
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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<PAGE>
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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<PAGE>
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/Moody's 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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<PAGE>
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
- v -
<PAGE>
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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<PAGE>
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
- vii -
<PAGE>
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
- viii -
<PAGE>
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
<PAGE>
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;
<PAGE>
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:
-2-
<PAGE>
The Chase Manhattan Bank, New York
ABA #: 021000021
For account: Royal Bank of Canada, New York
Acct #: 920-1-033363
Beneficiary Name: Quebecor Printing Inc.
Acct #: 218-599-2
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;
-3-
<PAGE>
"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
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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;
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"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,
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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;
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"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:
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(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);
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"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;
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"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
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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 Hart-Scott-Rodino Antitrust Improvements Act 1976, 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,
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(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
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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,
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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:
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(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 Moody's 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
McGraw-Hill 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-mark, service mark, 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/Moody's 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.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
(1) (2) (3) (4) (5)
- -----------------------------------------------------------------------------------------
Commitment Fee
Applicable Applicable Rate in respect
S&P/Moody's Margin for US Margin for Libor of Facility A
Tier Credit Rating Prime Rate Loans Loans and Facility B
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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%
- -----------------------------------------------------------------------------------------
</TABLE>
For the purposes hereof, "S&P/Moody's Credit Rating" means the senior unsecured
debt rating obtained by QPI from Standard & Poor's and Moody's 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 Moody's (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/Moody's 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 Moody's 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/Moody's 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/Moody's 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/Moody's Credit Rating ceases to be available as a result of either
or both Standard & Poor's and Moody's 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 Morgan
Stanley & 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/Moody's 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/Moody's Credit Rating: it shall cause each of Standard
& Poor's and Moody's 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 Moody's 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 hedges
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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<PAGE>
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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<PAGE>
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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<PAGE>
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.
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<PAGE>
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-
<PAGE>
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.
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<PAGE>
Address:
Quebecor Printing (USA) Holdings Inc. QUEBECOR PRINTING (USA) HOLDINGS INC.
c/o Imprimeries Quebecor Inc. -
Quebecor Printing Inc.
612 St. Jacques Street By:/s/ William J. Glass
Montreal, Quebec ----------------------------------
Canada H3C 4M8 Name: William J. Glass
Title: Senior Vice President,
Finance Administration and
Attention: Vice President and Treasurer Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
With a copy to:
Imprimeries Quebecor Inc. - Quebecor
Printing Inc.
Route des Arsenaux 15
1700 Fribourg, Suisse
Attention: Vice President and Treasurer
Telephone: 011-41-26-347-4772
Telecopier: 011-41-26-347-4778
With a copy to:
300 Delaware Avenue
Suite 900
Wilmington, Delaware
19801 USA
Attention: Treasurer
<PAGE>
Address: IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
Route des Arsenaux 15
1700 Fribourg
Suisse By:/s/ Christian M. Paupe
----------------------------------
Name: Christian M. Paupe
Attention: Vice President and Treasurer Title: Executive Vice-President,
Telephone: 011-41-26-347-4772 Chief Administrative
Telecopier: 011-41-26-347-4778 Officer and Chief
Financial Officer
With a copy to:
By:__________________________________
Imprimeries Quebecor Inc. - Quebecor Name: Mark A. D'Souza
Printing Inc. Title: Vice-President and
612 St. Jacques Street Treasurer
Montreal, Quebec
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
<PAGE>
Address: IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
Route des Arsenaux 15
1700 Fribourg
Suisse By:__________________________________
Name: Christian M. Paupe
Attention: Vice President and Treasurer Title: Executive Vice-President,
Telephone: 011-41-26-347-4772 Chief Administrative
Telecopier: 011-41-26-347-4778 Officer and Chief Financial
Officer
With a copy to:
By:/s/ Mark A. D'Souza
Imprimeries Quebecor Inc. - Quebecor ----------------------------------
Printing Inc. Name: Mark A. D'Souza
612 St. Jacques Street Title: Vice-President and
Montreal, Quebec Treasurer
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
<PAGE>
Address: QUEBECOR PRINTING HOLDING COMPANY
Quebecor Printing Holding Company
c/o Imprimeries Quebecor Inc. - Quebecor By:/s/ William J. Glass
Printing Inc. ----------------------------------
Route des Arsenaux 15 Name: William J. Glass
1700 Fribourg, Suisse Title: Senior Vice President,
Finance Administration and
Treasurer
Attention: Vice President and Treasurer
Telephone: 011-41-26-347-4772
Telecopier: 011-41-26-347-4778
With a copy to:
Imprimeries Quebecor Inc. - Quebecor
Printing Inc.
612 St. Jacques Street
Montreal, Quebec
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
With a copy to:
300 Delaware Avenue, Suite 900
Wilmington, Delaware 19801
U.S.A.
Attention: Treasurer
Telephone: (302) 421-7361
<PAGE>
Address: ROYAL BANK OF CANADA
(as Administrative Agent and Lead
One Liberty Plaza, 4th Floor Arranger)
New York, New York 10006-1404
Attention: Manager, Agency Services By:/s/ Kristin Condon
Telephone: (212) 428-6308 ----------------------------------
Telecopier: (212) 428-2310 Name: KRISTIN CONDON
Title: MANAGER, GLOCAL
SYNDICATIONS
<PAGE>
Address: ROYAL BANK OF CANADA
(as Lender)
Grand Cayman (North America No. 1) Branch
c/o New York Branch
One Liberty Plaza, 4th Floor By:/s/ Sheryl L. Greenberg
New York, New York 10006-1404 ----------------------------------
Name: Sheryl L. Greenberg
Title: Senior Manager
Attention: N.G. Millar
Senior Manager
Telephone: (212) 428-6363
Telecopier: (212) 428-2319
With a copy to:
1 Place Ville Marie, 8th Floor, West Wing
Montreal, Quebec
Canada H3C 3A9
Attention: Manager - Corporate Banking
- Quebec
Telephone: (514) 874-8637
Telecopier: (514) 874-5315
<PAGE>
Address: BANC OF AMERICA SECURITIES LLC
(as Arranger and Co-Syndication Agent)
9 West 57th Street
43rd Floor
New York, NY 10019 By:/s/ Stephen D. Baker
----------------------------------
Attention: Steve Baker Name:Stephen D. Baker
Telephone: (212) 277-5020 Title: Principal
Telecopier: (212) 848-3911
Attention: Michel Hurtubise
Telephone: (416) 349-5369
Telecopier: (416) 349-4282
<PAGE>
Address: BANK OF AMERICA, N.A.
(as Lender)
1850 Gateway Boulevard
5th Floor
Concord, CA 94520 By:/s/ Denis Caldera
----------------------------------
Attention: Denis Caldera Name: Denis Caldera
Telephone: (925) 675-8065 Title: Vice President
Telecopier: (925) 675-8051
Attention: Charline Didierjean
(514) 938-1600 ext. 5072
(514) 938-1601
<PAGE>
Address: BANK OF MONTREAL
(as Arranger, Co-Syndication Agent
115 South LaSalle Street and Lender)
11th Floor
Chicago, Illinois 60603
By:/s/ Paul Montgomery
Attention: Managing Director ----------------------------------
Telephone: (312) 750-3731 Name: Paul Montgomery
Telecopier: (312) 750-3834 Title: Director
<PAGE>
Address: CANADIAN IMPERIAL BANK OF COMMERCE
(as Arranger and Co-Syndication
62521 - Corporate Banking Agent)
CIBC World Markets
Canadian Credit Capital Market
600 de Maisonneuve Blvd. West, Suite 3210 By:/s/ Michel Tessier
Montreal, Quebec ----------------------------------
Canada H3A 3J2 Name: Tessier Michel
Title: Executive Director
Attention: Executive Director
Telephone: (514) 847-6658
Telecopier: (514) 847-6672 By:/s/ Lucie Sabaz
----------------------------------
Name: Lucie Sabaz
Title: Director
<PAGE>
Address: CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
425 Lexington Avenue, 8th Floor (as Facility A and Facility B Lender)
New York, NY 10017
Attention: H.A. Palmer By:/s/ Howard Palmer
Executive Director ----------------------------------
Telephone: (212) 856-3504 Name: Howard Palmer
Telecopier: (212) 856-3761 Title: Executive Director
CIBC World markets Corp., AS AGENT
<PAGE>
Address: ABN AMRO BANK N.V.
(as Lender)
Loan Administration
208 S. LaSalle Street, Suite 1500
Chicago, IL 60604-1003 By:/s/ David C. Carrington
----------------------------------
Attention: Credit Administration Name: DAVID C. CARRINGTON
(312) 992-5110 Title: VICE PRESIDENT
(312) 992-5111
By:/s/ Thomas Rogers
----------------------------------
With a copy to: Name: THOMAS T. ROGERS
Title: VICE PRESIDENT
500 Park Avenue
New York, NY 10020
Attention: David Carrington
Telephone: (212) 446-4382
Telecopier: (212) 446-4203
<PAGE>
Address: BANQUE NATIONALE DE PARIS, DUBLIN
BRANCH
5 George's Dock (as Facility A and Facility B Lender)
IFSC
Dublin 1 By:/s/ Blaise Cloutier
Ireland ----------------------------------
Name: Blaise CLOUTIER
Attention: Lorna Wilson Title: Vice President
Telephone: 353-1-612-5000 Corporate Banking
Telecopier: 353-1-612-5104
By:/s/ Jean Rolin
----------------------------------
Name: Jean ROLIN
Title: Vice President
Corporate Banking
<PAGE>
Address: CITIBANK, N.A.
(as Facility A and Facility B Lender)
399 Park Avenue
New York, NY 10043
By:/s/ Henry J. Matthews
Attention: Marjorie Futornick ----------------------------------
Telephone: (212) 559-1100 Name: HENRY J. MATTHEWS
Telecopier: (212) 559-2395 Title: Vice President
<PAGE>
Address: NATIONAL BANK OF CANADA,
NEW YORK BRANCH
125 West 55th Street (as Facility A and Facility B Lender)
New York, NY 10019-5366
Attention: Corinne Pitre By:/s/ C. Prire
Telephone: (212) 632-8500 ----------------------------------
Telecopier: (212) 632-8616 Name: C. Prire
By:/s/ Yvon LaPante
Name: Yvon LaPante
Title: Vice President and Manager
Cross Border Financing
Group
<PAGE>
Address: TORONTO DOMINION (TEXAS), INC.
(as Facility A and Facility B Lender)
909 Fannin Street, 17th Floor
Houston, Texas 77010
By:/s/ Carol Brandt
Attention: Carol Brandt ----------------------------------
Telephone: (713) 653-8204 Name: CAROL BRANDT
Telecopier: (713) 951-9921 Title: VICE PRESIDENT
<PAGE>
Address: THE BANK OF NOVA SCOTIA
(as Facility A and Facility B Lender)
One Liberty Plaza
New York, NY 10006
By:/s/ John W. Campbell
Attention: John Morale ----------------------------------
Telephone: (212) 225-5062 Name: JOHN W. CAMPBELL
Telecopier: (212) 225-5286 Title: UNIT HEAD
<PAGE>
Address: WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
1211 Avenue of the Americas (as Facility A and Facility B Lender)
New York, NY 10036
Attention: Elisabeth R. Wilds By:/s/ Richard J. Pearse
Telephone: (212) 852-6322 ----------------------------------
Telecopier: (212) 852-6148 Name: Richard J. Pearse
Title: Managing Director
By:/s/ Robert D. Wieser
Name: Robert D. Wieser
Title: Vice President
<PAGE>
Address: CREDIT SUISSE FIRST BOSTON
(as Facility A and Facility B Lender)
Eleven Madison Avenue
New York, NY 10010
By:/s/ Chris T Horgan
Attention: Chris Horgan ----------------------------------
Telephone: (212) 325-9157 Name: CHRIS T HORGAN
Telecopier: (212) 325-8309 Title: VICE PRESIDENT
By:/s/ Kristinn R. Kristinsson
----------------------------------
Name: KRISTINN R. KRISTINSSON
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Address: LEONIA BANK PLC,
NEW YORK BRANCH
60 East 42nd Street, Suite 2544 (as Facility A and Facility B Lender)
New York, NY 10165
Attention: Gary Tanner By:/s/ Matti Vainionpaa
Telephone: (212) 557-6920 ----------------------------------
Telecopier: (212) 949-6791 Name: /s/ Matti Vainionpaa
Title: General Manager
By:/s/ Gary Tanner
Name: Gary Tanner
Title: Senior Vice President
<PAGE>
Address: BANCA COMMERCIALE ITALIANA, NEW YORK
BRANCH
One William Street (as Facility A and Facility B Lender)
New York, NY 10004
Attention: Jack Dickerhof By:/s/ J. Dickerhof
Telephone: (212) 607-3896 ----------------------------------
Telecopier: (212) 809-2124 Name: J. Dickerhof
Title: VP
By:/s/ A. DiMaggio
----------------------------------
Name: A. DiMaggio
Title: VP
<PAGE>
Address: THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
1251 Avenue of the Americas, 12th Floor (as Facility A and Facility B Lender)
New York, NY 10020-1104
Attention: Catherine Moeser By:/s/ Friedrich N. Wilms
Telephone: (212) 782-4457 ----------------------------------
Telecopier: (212) 782-6440 Name: Friedrich N. Wilms
Title: Attorney-In-Fact
<PAGE>
Address: WACHOVIA BANK, N.A.
(as Facility A and Facility B Lender)
U.S. Corporate Finance
Mail Code GA 370
191 Peachtree Street N.E. By:/s/ Jeffrey Nurkiewicz
Atlanta, Georgia 30303 ----------------------------------
Name: Jeffrey Nurkiewicz
Attention: Jeffrey Nurkiewicz Title: Vice President
Telephone: (404) 332-1288
Telecopier: (404) 332-6898
<PAGE>
Address: MERITA BANK PLC,
NEW YORK BRANCH
437 Madison Avenue, 21st Floor (as Facility A and Facility B Lender)
New York, NY 10022
Attention: Robert A. Louzan By:/s/ Anu Seppala
Telephone: (212) 318-9306 ----------------------------------
Telecopier: (212) 421-4420 Name: ANU SEPPALA
Title: VICE PRESIDENT
By:/s/ JOHN KEHNLE
----------------------------------
Name: JOHN KEHNLE
Title: Vice President
<PAGE>
Address: FIRST AMERICAN NATIONAL BANK
(as Facility A and Facility B Lender)
First American Center
Fourth and Union St.
Nashville, Tennessee 37238-0310 By:/s/ Seth Butler
----------------------------------
Attention: Jerry Watterworth Name: Seth Butler
Telephone: (615) 748-2720 Title: Corporate Bank Officer
Telecopier: (615) 748-2485
<PAGE>
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)
<PAGE>
Exhibit 99(b)(4)
FIRST AMENDMENT
Dated as of August 18, 1999 to the
$450,000,000
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 IN 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
<PAGE>
THIS FIRST AMENDMENT TO THE REVOLVING CREDIT AGREEMENT is made as of August 18,
1999
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 the Borrower, the Guarantors, the Lenders and the Agents have entered
into a Revolving Credit Agreement dated as of the 12th day of August, 1999,
pursuant to which certain credit facilities of up to a maximum aggregate amount
of $450,000,000 are to be made available to the Borrower (such Credit Agreement
being hereinafter called the "Existing Agreement");
REVOLVING FIRST AMENDMENT
2
<PAGE>
and
WHEREAS the Borrower has requested the Administrative Agent and the Lenders to
consent to certain amendments to the Existing Agreement as herein set forth;
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
HEADINGS AND INTERPRETATION
Section 1.1 Headings
The headings of the Articles, Sections, Subsections or paragraphs herein are
inserted for convenience of reference only and shall not affect the construction
or interpretation of this Amendment.
Section 1.2 Interpretation
In this Amendment and in the recitals hereto, except as otherwise expressly
provided herein, words and expressions which are defined in the Existing
Agreement shall have the meanings when used herein and in the recitals hereto as
are ascribed to them in the Existing Agreement, as amended hereby, and the words
"this Amendment", shall refer to this First Amendment to the Existing Agreement.
ARTICLE II
AMENDMENTS
Section 2.1 Definitions
(a) The definition of "Minimum Number of Shares" in Section 1.1 of the Existing
Agreement is deleted and replaced by the following:
""Minimum Number of Shares" means the sum of (i) 19,018,152 Shares plus
(ii) 50% of the number of Shares (if any) issued on or after August 13,
1999 upon the exercise of any employee or directors stock options to
purchase Shares or related stock appreciation rights granted under any
stock option or stock purchase plan, program or arrangement of WCP or
otherwise;"
(b) The definition of "QPI Amendment" in Section 1.1 of the Existing Agreement
is amended by inserting the following at the end thereof in replacement of the
semi-colon: ", together with the Second Amending Agreement dated as of August
18, 1999, to the Existing QPI Facility;"
REVOLVING FIRST AMENDMENT
3
<PAGE>
(c) The definition of "Restricted Entity" in Section 1.1 of the Existing
Agreement is amended by inserting the following at the end thereof in
replacement of the semi-colon:
"provided that on and after the Tender Offer Funding Date and prior to the
consummation of the Merger, WCP shall be deemed to be a Restricted Entity
and a Subsidiary of QPI for all purposes under this Agreement so long as
QPI directly or indirectly owns at least 50% plus one of the outstanding
Shares (and for purposes of this proviso, any conversion of the
Convertible Notes into Shares after the Expiration Date (as defined in the
Offer to Purchase) shall be disregarded);"
(d) The definition of "Tender Offer Funding Date" in Section 1.1 of the Existing
Agreement is amended by inserting the following at the end thereof in
replacement of the semi-colon:
"provided that, for purposes of Sections 2.2, 4.4, 10.1.1.1A, 10.1.1.4A,
11.2.9 and 14.1.8(c), "Tender Offer Funding Date" means the Drawdown Date
of the initial Borrowing;"
Section 2.2 Representations and Warranties
(a) The last sentence of Section 2.1.2 of the Existing Agreement is deleted and
replaced by the following:
"No Restricted Entity has outstanding any securities convertible in
Capital Stock (except, after the consummation of the Tender Offer and
prior to the consummation of the Merger, with respect to WCP, the
Convertible Notes) 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;"
(b) Section 2.1.19 of the Existing Agreement is amended by deleting the word
"and" at the end thereof.
(c) Section 2.1.20 of the Existing Agreement is amended by deleting the period
at the end thereof and inserting "; and" in replacement thereof.
(d) New Section 2.1.21 is added to the Existing Agreement as follows:
"2.1.21 Outstanding Shares: as of 12:00 Midnight, New York City time,
on August 12, 1999, there were 38,036,302 Shares outstanding."
(e) Section 2.2.10 of the Existing Agreement is amended by deleting the word
"and" at the end thereof.
(f) Section 2.2.11 of the Existing Agreement is amended by (i) deleting the date
"July 12, 1999" therefrom and inserting the phrase "the consummation of the
Tender Offer" in
REVOLVING FIRST AMENDMENT
4
<PAGE>
replacement thereof, (ii) deleting the section reference "Section 2.5 of the
Merger Agreement" therefrom and inserting "Section 2.6 of the Merger Agreement"
in replace thereof and (iii) deleting the period at the end thereof and
inserting "; and" in replacement thereof.
(g) New Section 2.2.12 is added to the Existing Agreement as follows:
"2.2.12 Control: on the Expiration Date (as defined in the Offer to
Purchase) and at all times thereafter until the consummation
of the Merger, QPI will own directly or indirectly, or
Acquisition Sub will have accepted for payment and agreed to
purchase pursuant to the Offer to Purchase, at least 50% plus
one of the Shares then outstanding provided that for purposes
of this Section 2.2.12, any conversion of the Convertible
Notes into Shares after such Expiration Date shall be
disregarded."
(h) Section 2.3.2 of the Existing Agreement is deleted and replaced by the
following:
"2.3.2 Merger Approval: the Merger Agreement has been approved by the
minimum number of Shares 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, at a meeting of WCP's stockholders duly called
and held prior to the Merger Date;"
Section 2.3 Affirmative Covenants
Section 11.1.18 of the Existing Agreement is deleted and replaced by the
following:
"11.1.18 Merger: on and after the Tender Offer Funding Date, it will
(i) cause WCP to continue to be a Restricted Entity at all
times prior to the consummation of the Merger and (ii) subject
to Section 14.1.11, cause the consummation of the Merger in
accordance with the Merger Agreement and all Applicable Law as
promptly as practicable;"
Section 2.4 Events of Default
(a) Section 14.1.9 of the Existing Agreement is amended by deleting the word
"or" at the end thereof.
(b) Section 14.1.10 of the Existing Agreement is amended by deleting the period
at the end thereof and inserting "; or" in replacement thereof.
(c) New Section 14.1.11 is added to the Existing Agreement as follows:
"14.1.11 Merger: the Merger Date shall not occur on or before the date
that is 120 days after the Tender Offer Funding Date, but such
event shall constitute an
REVOLVING FIRST AMENDMENT
5
<PAGE>
Event of Default only if, at any time during the period from
the Expiration Date (as defined in the Offer to Purchase)
until the consummation of the Merger, QPI shall not directly
or indirectly own at least 50% plus one of the outstanding
Shares."
Section 2.5 Schedules
(a) Schedule 2.1.2 to the Existing Agreement is amended by replacing those
certain pages therein in their entirety with the pages for such Schedule
attached hereto.
(b) All references to the Existing Agreement in Schedules 10.1.1.14-A,
10.1.1.14-B, 10.1.1.14-C, 10.1.1.15-A and 10.1.1.15-B shall be amended to be
references to the Existing Agreement, as amended by this Amendment.
ARTICLE III
EXTENT OF AMENDMENTS
The amendments set forth herein are limited precisely as written and shall not
be deemed to (i) be a consent to any amendment or modification of any of the
other terms or conditions of the Existing Agreement or (ii) prejudice any other
rights that the Administrative Agent or the Lenders may now have or may have in
the future under or in connection with the Existing Agreement.
ARTICLE IV
DECLARATORY AND INTERPRETATIVE PROVISIONS
All notices, requests, certificates and other instruments executed and delivered
after the Effective Date (as defined below) of this Amendment may refer to the
Existing Agreement without making specific references to this Amendment, but
nevertheless all such references shall include this Amendment unless the context
requires otherwise.
This Amendment shall be construed in connection with and as part of the Existing
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Existing Agreement, except as herein modified, are
hereby ratified and confirmed and shall remain in full force and effect.
ARTICLE V
CERTIFICATIONS
Each Loan Party certifies to the Administrative Agent, the other Agents and each
Lender that on and as of the date hereof and immediately after giving effect to
this Amendment:
(a) each of the representations and warranties heretofore made by such
Loan Party
REVOLVING FIRST AMENDMENT
6
<PAGE>
in any Loan Document are true, correct and complete in all material
respects as if made on and as of such date; and
(b) no Default or Event of Default has occurred and is continuing.
ARTICLE VI
EFFECTIVE DATE
This Amendment will become effective on the day (the "Effective Date") that the
Administrative Agent shall have received this Amendment executed by all of the
parties hereto.
ARTICLE VII
COUNTERPARTS
This Amendment 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 Amendment by signing any
counterpart of it and may communicate such signing by telecopier or otherwise.
ARTICLE VIII
CONTINUANCE OF EXISTING GUARANTEES
Each Guarantor acknowledges having taken cognizance of the foregoing and
recognizes and confirms that (a) its Loan Party Guarantee continues in full
force and effect notwithstanding the amendments made to the Existing Agreement
contained herein and (b) the indebtedness, liabilities and obligations of the
Borrower under the Existing Agreement, as amended by this Amendment, constitute
indebtedness, liabilities and obligations guaranteed under such Loan Party
Guarantee.
ARTICLE IX
GOVERNING LAW
The parties agree that this Amendment 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.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly
executed as of the 18th day of August, 1999.
REVOLVING FIRST AMENDMENT
7
<PAGE>
QUEBECOR PRINTING (USA) HOLDINGS INC.
By: /s/ William J. Glass
-----------------------------------
Name: William J. Glass
Title: Senior Vice President,
Finance Administration and
Treasurer
TERM LOAN AMENDMENT
<PAGE>
IMPRIMERIES QUEBECOR INC. -
QUEBECOR PRINTING INC.
By: /s/ Christian M. Paupe
-----------------------------------
Name: Christian M. Paupe
Title: Executive Vice-President,
Chief Administrative Officer
and Chief Financial Officer
By: /s/ Mark A. D'Souza
-----------------------------------
Name: Mark A. D'Souza
Title: Vice-President and Treasurer
TERM LOAN AMENDMENT
<PAGE>
QUEBECOR PRINTING HOLDING COMPANY
By: /s/ William J. Glass
-----------------------------------
Name: William J. Glass
Title: Senior Vice President,
Finance Administration and
Treasurer
TERM LOAN AMENDMENT
<PAGE>
ROYAL BANK OF CANADA
(as Administrative Agent and Lead
Arranger)
By: /s/ Kristin Condon
-----------------------------------
Name: Kristin Condon
Title: Manager, Global Syndications
TERM LOAN AMENDMENT
<PAGE>
ROYAL BANK OF CANADA
(as Lender)
By: /s/ Sheryl L. Greenberg
-----------------------------------
Name: Sheryl L. Greenberg
Title: Senior Manager
TERM LOAN AMENDMENT
<PAGE>
BANC OF AMERICA SECURITIES LLC
(as Arranger and Co-Syndication Agent)
By: /s/ John A. Finan
-----------------------------------
Name: John A. Finan
Title: Managing Director
TERM LOAN AMENDMENT
<PAGE>
BANK OF AMERICA, N.A.
(as Lender)
By: /s/ Jacqueline W. Ho
-----------------------------------
Name: Jacqueline W. Ho
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
BANK OF MONTREAL
(as Arranger, Co-Syndication Agent and
Lender)
By: /s/ Mark Spencer
-----------------------------------
Name: Mark Spencer
Title: Managing Director
TERM LOAN AMENDMENT
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
(as Arranger and Co-Syndication Agent)
By: /s/ Michael Tessier
-----------------------------------
Name: Michael Tessier
Title: Executive Director
By: /s/ Lucie Sabaz
-----------------------------------
Name: Lucie Sabaz
Title: Director
TERM LOAN AMENDMENT
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
(as Lender)
By: /s/ Howard Palmer
-----------------------------------
Name: Howard Palmer
Title: Executive Director
CIBC World Markets Corp., AS AGENT
TERM LOAN AMENDMENT
<PAGE>
ABN AMRO BANK N.V.
(as Lender)
By: /s/ David C. Carrington
-----------------------------------
Name: David C. Carrington
Title: Vice President
By: /s/ Ravneet Mumick
-----------------------------------
Name: Ravneet Mumick
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
BANQUE NATIONALE DE PARIS,
DUBLIN BRANCH
(as Lender)
By: /s/ Frank L. Shaw
-----------------------------------
Name: Frank L. Shaw
Title: Vice President & Deputy
Manager Corporate Banking
By: /s/ Blaise Cloutier
-----------------------------------
Name: Blaise Cloutier
Title: Vice President
Corporate Banking
Dated this 19th of August, 1999
TERM LOAN AMENDMENT
<PAGE>
CITIBANK, N.A.
(as Lender)
By: /s/ Marjorie Futornick
-----------------------------------
Name: Marjorie Futornick
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
NATIONAL BANK OF CANADA,
NEW YORK BRANCH
(as Lender)
By: /s/ Corrine Pitre
-----------------------------------
Name: Corrine Pitre
Title: Assistant Vice President
By: /s/ Yvon LaPlante
-----------------------------------
Name: Yvon LaPlante
Title: Vice President and Manager
Cross Border Financing Group
TERM LOAN AMENDMENT
<PAGE>
TORONTO DOMINION (TEXAS), INC.
(as Lender)
By: /s/ Carol Brandt
-----------------------------------
Name: Carol Brandt
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
THE BANK OF NOVA SCOTIA
(as Lender)
By: /s/ John W. Campbell
-----------------------------------
Name: John W. Campbell
Title: Unit Head
TERM LOAN AMENDMENT
<PAGE>
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
(as Lender)
By: /s/ Richard J. Pearse
-----------------------------------
Name: Richard J. Pearse
Title: Managing Director
By: /s/ Elisabeth R. Wilds
-----------------------------------
Name: Elisabeth R. Wilds
Title: Associate
TERM LOAN AMENDMENT
<PAGE>
CREDIT SUISSE FIRST BOSTON
(as Lender)
By: /s/ Chris Horgan
-----------------------------------
Name: Chris Horgan
Title: Vice President
By: /s/ Kristinn R. Kristinsson
-----------------------------------
Name: Kristinn R. Kristinsson
Title: Assistant Vice President
TERM LOAN AMENDMENT
<PAGE>
LEONIA BANK PLC,
NEW YORK BRANCH
(as Lender)
By: /s/ Matti Vainionpaa
-----------------------------------
Name: Matti Vainionpaa
Title: General Manager
By: /s/ Ari Kaarakainen
-----------------------------------
Name: Ari Kaarakainen
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
(as Lender)
By: /s/ J. Dickerhof
-----------------------------------
Name: J. Dickerhof, VP
Title:
By: /s/ E. Bermant
-----------------------------------
Name: E. Bermant
Title: FVP/Deputy Manager
TERM LOAN AMENDMENT
<PAGE>
THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH
(as Lender)
By: /s/ Catherine Moeser
-----------------------------------
Name: Catherine Moeser
Title: Attorney-in-Fact
TERM LOAN AMENDMENT
<PAGE>
WACHOVIA BANK, N.A.
(as Lender)
By: /s/ Jeffrey S. Nurkiewicz
-----------------------------------
Name: Jeffrey S. Nurkiewicz
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
MERITA BANK PLC,
NEW YORK BRANCH
(as Lender)
By: /s/ Anu Seppala
-----------------------------------
Name: Anu Seppala
Title: Vice President
By: /s/ William Keller
-----------------------------------
Name: William Keller
Title: Vice President
TERM LOAN AMENDMENT
<PAGE>
FIRST AMERICAN NATIONAL BANK
(as Lender)
By: /s/ Seth Butler
-----------------------------------
Name: Seth Butler
Title: Corporate Bank Officer
TERM LOAN AMENDMENT
<PAGE>
AMENDED PAGES TO SCHEDULE 2.1.2
LIST OF SUBSIDIARIES
TO EXISTING AGREEMENT
TERM LOAN AMENDMENT
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
CANADA
====================================================================================================================================
Graphicor Transport Inc. Canadian Federal -unlimited number of -100 common shares No par value -100% to Quebecor Printing
Corporation common shares Inc.
Province of Ontario,
Canada
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Merrill Canada Canadian Federal -unlimited number of -100 common shares No par value -51% to Quebecor Printing
Inc. Corporation common shares Inc.
Province of Quebec, -49% to Merrill
Canada Corporation, Canada
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing MIL Province of Ontario, -unlimited number of -12,000,000 common No par value -95% to Quebecor Printing
Inc. Canada common shares shares Inc.
-unlimited number of -5% to David Lake
preference shares
- ------------------------------------------------------------------------------------------------------------------------------------
3034143 Canada Inc.(1) Canadian Federal -unlimited number -200 class A No par value -100% to Quebecor Printing
Corporation of: Inc.
Province of Quebec, . class A
Canada . class B
. class C
. class D
. class E
. class F
. class G
- ------------------------------------------------------------------------------------------------------------------------------------
3109640 Canada Inc.(1) Canadian Federal -unlimited number -61,646 class A No par value -100% to Quebecor Printing
Corporation of: Inc.
Province of Quebec, . class A
Canada . class B
. class C
. class D
. class E
. class F
. class G
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Canadian Federal -unlimited number of -100 common shares No par value -100% to Quebecor Printing
Graphica Inc. Corporation common shares Inc.
Province of Quebec,
Canada
====================================================================================================================================
</TABLE>
- ----------
(1) Dissolved and liquidated into Quebecor Printing Inc.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 2
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Inter Brochage S.A. Meaux, France -146,000 common -146,000 common FF 100 par -145,994 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Gerard Pouzoulet
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Interval S.A. Bobigny, France -261,112 common -261,112 common FF 100 par -149,996 to Imprimeries
shares shares value Quebecor Europe, S.A.
-50,001 to SA Produits
Alibel
-49,999 to Francois
Philipon
-5,557 to Gerard Pouzoulet
-5,556 to Marie Noelle
Pouzoulet
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Pierre Karl Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Inter Routage S.A. Bobigny, France -21,000 common shares -21,000 common FF 100 par -20,993 to Interval S.A.
shares value -1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Pierre Karl Peladeau
-1 to Francois Philipon
-1 to Gerard Pouzoulet
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 34
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Francor S.A. Nanterre, France -1,600,000 common -1,600,000 common FF 100 par -1,599,994 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Imprimeries
Didier-Quebecor S.A.
-1 to Jean Neveu
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Torcy Quebecor S.A. Meaux, France -702,500 common -702,500 common FF 100 par -702,494 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Pierre Karl Peladeau
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
- ------------------------------------------------------------------------------------------------------------------------------------
La Loupe Quebecor S.A. Paris, France -152,500 common -152,500 common FF 100 par -152,494 to Imprimeries
shares shares value Quebecor Europe, S.A.
-1 to Pierre Karl Peladeau
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
- ------------------------------------------------------------------------------------------------------------------------------------
Brochage Routage Meaux, France -152,500 common -152,500 common FF 100 par -152,494 to Imprimeries
Quebecor S.A. shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
-1 to Pierre Karl Peladeau
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 35
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Blois Blois, France -202,500 common -202,500 common FF 100 par -202,494 to Imprimeries
Quebecor, S.A. shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Numeric S.A. Nanterre, France -10,000 common shares -10,000 common FF 100 par -9,994 to Imprimeries
shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Jean-Philippe Behr
-1 to Yvan Lesniak
-1 to Pierre Karl Peladeau
-1 to Laszlo Ross
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimeries Meaux, France -571,250 common -571,250 common FF 100 par -571,244 to Imprimeries
Didier-Quebecor S.A. shares shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Jean Neveu
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Heliogravure Lille, France -10,000 common shares -10,000 common FF 100 par -9,994 to Imprimeries
Didier-Quebecor S.A. shares value Didier-Quebecor S.A.
-1 to Jean-Pierre Anselmini
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Michel C. Salbaing
-1 to Pierre Karl Peladeau
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 36
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
EUROPE
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Alsacienne Strasbourg, France -385,000 common -385,000 common FF 100 par -384,994 to Imprimeries
Didier-Quebecor S.A. shares shares value Didier-Quebecor S.A.
-1 to Jean-Pierre Anselmini
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Imprimeries Quebecor
Europe, S.A.
-1 to Michel C. Salbaing
-1 to Pierre Karl Peladeau
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Quebecor Nanterre, France -2,500 common shares -2,500 common FF 100 par -2,494 to Imprimeries
Paris S.A. shares value Quebecor Europe, S.A.
-1 to Jean-Pierre Anselmini
-1 to Charles G. Cavell
-1 to Gilbert Martinet
-1 to Jean Neveu
-1 to Pierre Karl Peladeau
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------------------------
Imprimerie Quebecor Meaux, France -Brochage Routage Quebecor
Services, G.I.E. S.A.
-Heliogravure Didier
Quebecor S.A.
-Imprimerie
Fecomme-Quebecor S.A.
-Imprimerie Alsacienne
Didier-Quebecor S.A.
-Imprimerie Blois Quebecor
S.A.
-Imprimeries
Didier-Quebecor S.A.
-La Loupe Quebecor S.A.
-Torcy Quebecor S.A.
====================================================================================================================================
</TABLE>
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 37
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor Printing
Dallas, L.P. (Limited Partnership) Partnership (L.P.) Nevada Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Dallas II Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Dallas Delaware, USA -3,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
II Inc. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA - 50% to Quebecor Printing
Delaware LLC Nova Scotia ULC
- 50% to Quebecor Capital
GP
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Tennessee, USA -2,000 common shares -1,000 common No par value -100% to Quebecor Printing
Dickson Inc.(2) shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited $1 par value -99% to Quebecor Printing
Dickson, L.P.(2) (Limited Partnership) Partnership (L.P.) Dickson II Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
Dickson II Inc. shares Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
Directory Sales Corp. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common $1 par value -100% to Quebecor Printing
Dubuque Inc. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Eagle Missouri, USA -100,000 common -95,000 common $1 par value -100% to Quebecor Printing
Inc. shares shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Eusey Massachusetts, USA -250 Series A common -235 Series A No par value -100% to Quebecor Printing
Press Inc. shares common shares (USA) Holdings Inc.
-250 Series B common -239 Series B No par value -100% to Quebecor Printing
shares common shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common shares -1,000 common $1 par value -100% to Arcata Corporation
Fairfield Inc. shares
====================================================================================================================================
</TABLE>
- ----------
(2) To be amalgamated as Quebecor Printing Dickson Inc.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 38
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Rhode Island, USA -unlimited common -209 common shares $0.01 par -100% to Quebecor Printing
Federated Inc. shares value (USA) Holdings Inc.
Quebecor Printing California, USA -25,000 common shares -1,000 common shares $1 par value -100% to Arcata Corporation
Halliday Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -2,000 common shares -l0 common shares $1 par value -100% to Quebecor Printing
Holding Company -1,000 Preferred Inc.
Stock No par value
- ------------------------------------------------------------------------------------------------------------------------------------
Holyoke Lithograph Co., Massachusetts, USA -15,000 common shares -510 common shares No par value -100% to Quebecor Printing
Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Pennsylvania, USA -100,000 common -1,100 common shares $1 par value -100% to Quebecor Printing
Hazleton Inc. shares (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Karl M. Harrop Company Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Inc.(3) Kingsport Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Karl M. Harrop Company Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Karl M. Harrop
II Inc. Company Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing California, USA -25,000 common shares -1,000 common shares $1 par value -100% to Arcata Corporation
Kingsport Inc.(3),(4)
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor List Services Delaware, USA -3,000 common shares -100 common shares No par value -100% to Quebecor Printing
Chicago Inc. (USA) Holdings Inc.
====================================================================================================================================
</TABLE>
- ----------
(3) To be amalgamated as Quebecor Printing Kingsport Inc.
(4) To be amalgamated as Quebecor Printing Kingsport Inc.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 39
<PAGE>
<TABLE>
<CAPTION>
====================================================================================================================================
NAME JURISDICTION OF NUMBER OF AUTHORIZED NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION CAPITAL STOCK CAPITAL STOCK STATED VALUE CAPITAL STOCK
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Karl M. Harrop
Kingsport, L.P.(4) (Limited Partnership) Partnership (L.P.) Company Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Kingsport Inc.-
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -10 common shares $1 par value -100% to Quebecor Printing
Lincoln Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -3,000 common shares $1 par value -100% to Quebecor Printing
Loveland Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common shares -1,000 common shares $0.01 par -100% to Quebecor Printing
Memphis Inc. value (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Memphis II Inc. Memphis Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor Printing
Memphis, L.P.(5) (Limited Partnership) Partnership (L.P.) Memphis Inc.
-1% General -1% to Quebecor Printing
Partnership (G.P.) Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
QP Memphis Corp.(5) Delaware, USA -3,000 common Stock -1,000 common Stock $1 par value -99% to Quebecor Printing
Memphis Inc.
-1% to Quebecor Printing
Dickson Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Mt. Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Morris II Inc. Memphis Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
National Magazine Illinois, USA -200 common shares -1 common share $5 par value -100% to Quebecor Printing
Mailers, Inc. Mt.Morris II Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Nova Marketing Services, Missouri, USA -30,000 common shares -1 common share $1 par value -100% to Quebecor Printing
Inc. Sayers Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Quebecor Printing Nevada Nevada, USA -5,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Inc. (USA) Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Q.P. New York Corp. Delaware, USA -3,000 common shares -1,000 common shares $1 par value -100% to Quebecor Printing
Buffalo Inc.
====================================================================================================================================
</TABLE>
- ----------
(5) To be amalgamated as QP Memphis Corp.
REVOLVING CREDIT SCHEDULES Schedule 2.1.2 - Page 40
<PAGE>
Exhibit 99(b)(5)
FIRST AMENDMENT
Dated as of August 18, 1999 to the
$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 IN THE SIGNATURE PAGES HERETO,
as Lenders,
ROYAL BANK OF CANADA,
as Lead Arranger and as Administrative Agent
and
BANC OF AMERICA SECURITIES BANK OF MONTREAL, CANADIAN IMPERIAL BANK OF
LLC, and COMMERCE,
as Arrangers and as Co-Syndication Agents
<PAGE>
THIS FIRST AMENDMENT TO THE TERM LOAN AND NON-REVOLVING CREDIT AGREEMENT is made
as of August 18, 1999
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 the Borrower, the Guarantors, the Lenders and the Agents have entered
into a Term Loan and Non-Revolving Credit Agreement dated as of the 12th day of
August, 1999, pursuant to which certain credit facilities of up to a maximum
aggregate amount of $800,000,000 are to be made available to the Borrower (such
Credit Agreement being hereinafter called the "Existing
<PAGE>
Agreement"); and
WHEREAS the Borrower has requested the Administrative Agent and the Lenders to
consent to certain amendments to the Existing Agreement as herein set forth;
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
HEADINGS AND INTERPRETATION
Section 1.1 Headings
The headings of the Articles, Sections, Subsections or paragraphs herein are
inserted for convenience of reference only and shall not affect the construction
or interpretation of this Amendment.
Section 1.2 Interpretation
In this Amendment and in the recitals hereto, except as otherwise expressly
provided herein, words and expressions which are defined in the Existing
Agreement shall have the meanings when used herein and in the recitals hereto as
are ascribed to them in the Existing Agreement, as amended hereby, and the words
"this Amendment", shall refer to this First Amendment to the Existing Agreement.
ARTICLE II
AMENDMENTS
Section 2.1 Definitions
(a) The definition of "Minimum Number of Shares" in Section 1.1 of the Existing
Agreement is deleted and replaced by the following:
""Minimum Number of Shares" means the sum of (i) 19,018,152 Shares plus
(ii) 50% of the number of Shares (if any) issued on or after August 13,
1999 upon the exercise of any employee or directors stock options to
purchase Shares or related stock appreciation rights granted under any
stock option or stock purchase plan, program or arrangement of WCP or
otherwise;"
(b) The definition of "QPI Amendment" in Section 1.1 of the Existing Agreement
is amended by inserting the following at the end thereof in replacement of the
semi-colon: ", together with the Second Amending Agreement dated as of August
18, 1999, to the Existing QPI Facility;"
3
<PAGE>
(c) The definition of "Restricted Entity" in Section 1.1 of the Existing
Agreement is amended by inserting the following at the end thereof in
replacement of the semi-colon:
"provided that on and after the Tender Offer Funding Date and prior to the
consummation of the Merger, WCP shall be deemed to be a Restricted Entity
and a Subsidiary of QPI for all purposes under this Agreement so long as
QPI directly or indirectly owns at least 50% plus one of the outstanding
Shares (and for purposes of this proviso, any conversion of the
Convertible Notes into Shares after the Expiration Date (as defined in the
Offer to Purchase) shall be disregarded);"
Section 2.2 Representations and Warranties
(a) The last sentence of Section 2.1.2 of the Existing Agreement is deleted and
replaced by the following:
"No Restricted Entity has outstanding any securities convertible in
Capital Stock (except, after the consummation of the Tender Offer and
prior to the consummation of the Merger, with respect to WCP, the
Convertible Notes) 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;"
(b) Section 2.1.19 of the Existing Agreement is amended by deleting the word
"and" at the end thereof.
(c) Section 2.1.20 of the Existing Agreement is amended by deleting the period
at the end thereof and inserting "; and" in replacement thereof.
(d) New Section 2.1.21 is added to the Existing Agreement as follows:
"2.1.21 Outstanding Shares: as of 12:00 Midnight, New York City time, on
August 12, 1999, there were 38,036,302 Shares outstanding."
(e) Section 2.2.10 of the Existing Agreement is amended by deleting the word
"and" at the end thereof.
(f) Section 2.2.11 of the Existing Agreement is amended by (i) deleting the date
"July 12, 1999" therefrom and inserting the phrase "the consummation of the
Tender Offer" in replacement thereof, (ii) deleting the section reference
"Section 2.5 of the Merger Agreement" therefrom and inserting "Section 2.6 of
the Merger Agreement" in replace thereof and (iii) deleting the period at the
end thereof and inserting "; and" in replacement thereof.
(g) New Section 2.2.12 is added to the Existing Agreement as follows:
"2.2.12 Control: on the Expiration Date (as defined in the Offer to
Purchase) and at
4
<PAGE>
all times thereafter until the consummation of the Merger, QPI
will own directly or indirectly, or Acquisition Sub will have
accepted for payment and agreed to purchase pursuant to the
Offer to Purchase, at least 50% plus one of the Shares then
outstanding provided that for purposes of this Section 2.2.12,
any conversion of the Convertible Notes into Shares after such
Expiration Date shall be disregarded."
(h) Section 2.3.2 of the Existing Agreement is deleted and replaced by the
following:
"2.3.2 Merger Approval: the Merger Agreement has been approved by the
minimum number of Shares 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, at a
meeting of WCP's stockholders duly called and held prior to the
Merger Date;"
Section 2.3 Affirmative Covenants
Section 11.1.18 of the Existing Agreement is deleted and replaced by the
following:
"11.1.18 Merger : on and after the Tender Offer Funding Date, it will (i)
cause WCP to continue to be a Restricted Entity at all times
prior to the consummation of the Merger and (ii) subject to
Section 14.1.11, cause the consummation of the Merger in
accordance with the Merger Agreement and all Applicable Law as
promptly as practicable;"
Section 2.4 Events of Default
(a) Section 14.1.9 of the Existing Agreement is amended by deleting the word
"or" at the end thereof.
(b) Section 14.1.10 of the Existing Agreement is amended by deleting the period
at the end thereof and inserting "; or" in replacement thereof.
(c) New Section 14.1.11 is added to the Existing Agreement as follows:
"14.1.11 Merger : the Merger Date shall not occur on or before the date
that is 120 days after the Tender Offer Funding Date, but such
event shall constitute an Event of Default only if, at any time
during the period from the Expiration Date (as defined in the
Offer to Purchase) until the consummation of the Merger, QPI
shall not directly or indirectly own at least 50% plus one of the
outstanding Shares."
Section 2.5 Schedules
5
<PAGE>
(a) Schedule 2.1.2 to the Existing Agreement is amended by replacing those
certain pages therein in their entirety with the pages for such Schedule
attached hereto.
(b) All references to the Existing Agreement in Schedules 10.1.1.14-A,
10.1.1.14-B, 10.1.1.14-C, 10.1.1.15-A and 10.1.1.15-B shall be amended to be
references to the Existing Agreement, as amended by this Amendment.
ARTICLE III
EXTENT OF AMENDMENTS
The amendments set forth herein are limited precisely as written and shall not
be deemed to (i) be a consent to any amendment or modification of any of the
other terms or conditions of the Existing Agreement or (ii) prejudice any other
rights that the Administrative Agent or the Lenders may now have or may have in
the future under or in connection with the Existing Agreement.
ARTICLE IV
DECLARATORY AND INTERPRETATIVE PROVISIONS
All notices, requests, certificates and other instruments executed and delivered
after the Effective Date (as defined below) of this Amendment may refer to the
Existing Agreement without making specific references to this Amendment, but
nevertheless all such references shall include this Amendment unless the context
requires otherwise.
This Amendment shall be construed in connection with and as part of the Existing
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Existing Agreement, except as herein modified, are
hereby ratified and confirmed and shall remain in full force and effect.
ARTICLE V
CERTIFICATIONS
Each Loan Party certifies to the Administrative Agent, the other Agents and each
Lender that on and as of the date hereof and immediately after giving effect to
this Amendment:
(a) each of the representations and warranties heretofore made by such
Loan Party in any Loan Document are true, correct and complete in
all material respects as if made on and as of such date; and
(b) no Default or Event of Default has occurred and is continuing.
ARTICLE VI
6
<PAGE>
EFFECTIVE DATE
This Amendment will become effective on the day (the "Effective Date") that the
Administrative Agent shall have received this Amendment executed by all of the
parties hereto.
ARTICLE VII
COUNTERPARTS
This Amendment 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 Amendment by signing any
counterpart of it and may communicate such signing by telecopier or otherwise.
ARTICLE VIII
CONTINUANCE OF EXISTING GUARANTEES
Each Guarantor acknowledges having taken cognizance of the foregoing and
recognizes and confirms that (a) its Loan Party Guarantee continues in full
force and effect notwithstanding the amendments made to the Existing Agreement
contained herein and (b) the indebtedness, liabilities and obligations of the
Borrower under the Existing Agreement, as amended by this Amendment, constitute
indebtedness, liabilities and obligations guaranteed under such Loan Party
Guarantee.
ARTICLE IX
GOVERNING LAW
The parties agree that this Amendment 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.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly
executed as of the 18th day of August, 1999.
7
<PAGE>
QUEBECOR PRINTING (USA) HOLDINGS INC.
By: /s/ William J. Glass
Name: William J. Glass
Title: Senior Vice President,
Finance Administration and
Treasurer
<PAGE>
IMPRIMERIES QUEBECOR INC. - QUEBECOR
PRINTING INC.
By: /s/ Christian M. Paupe
Name: Christian M. Paupe
Title: Executive Vice-President,
Chief Administrative Officer
and Chief Financial Officer
By: /s/ Mark A. D'Souza
Name: Mark A. D'Souza
Title: Vice-President and Treasurer
<PAGE>
QUEBECOR PRINTING HOLDING COMPANY
By: /s/ William J. Glass
Name: William J. Glass
Title: Senior Vice President,
Finance Administration and
Treasurer
<PAGE>
ROYAL BANK OF CANADA
(as Administrative Agent and Lead
Arranger)
By: /s/ Kristin Condon
Name: Kristin Condon
Title: Manager, Global Syndications
<PAGE>
ROYAL BANK OF CANADA
(as Facility A and Facility B Lender)
By: /s/ Sheryl L. Greenberg
Name: Sheryl L. Greenberg
Title: Senior Manager
<PAGE>
BANC OF AMERICA SECURITIES LLC
(as Arranger and Co-Syndication Agent)
By: /s/ John A. Finan
Name: John A. Finan
Title: Managing Director
<PAGE>
BANK OF AMERICA, N.A.
(as Facility A and Facility B Lender)
By: /s/ Jacqueline W. Ho
Name: Jacqueline W. Ho
Title: Vice President
<PAGE>
BANK OF MONTREAL
(as Arranger, Co-Syndication Agent and
Facility A and Facility B Lender)
By: /s/ Mark Spencer
Name: Mark Spencer
Title: Managing Director
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
(as Arranger and Co-Syndication Agent)
By: /s/ Michael Tessier
Name: Michael Tessier
Title: Executive Director
By: /s/ Lucie Sabaz
Name: Lucie Sabaz
Title: Director
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE, NEW
YORK AGENCY
(as Facility A and Facility B Lender)
By: /s/ Howard Palmer
Name: Howard Palmer
Title: Executive Director
CIBC World Markets Corp.,
AS AGENT
<PAGE>
ABN AMRO BANK N.V.
(as Facility A and Facility B Lender)
By: /s/ David C. Carrington
Name: David C. Carrington
Title: Vice President
By: /s/ Ravneet Mumick
Name: Ravneet Mumick
Title: Vice President
<PAGE>
BANQUE NATIONALE DE PARIS, DUBLIN BRANCH
(as Facility A and Facility B Lender)
By: /s/ Frank L. Shaw
Name: Frank L. Shaw
Title: Vice President and Deputy
Manager
Corporate Banking
By: /s/ Blaise Cloutier
Name: Blaise Cloutier
Title: Vice President
Corporate Banking
<PAGE>
CITIBANK, N.A.
(as Facility A and Facility B Lender)
By: /s/ Marjorie Futornick
Name: Marjorie Futornick
Title: Vice President
<PAGE>
NATIONAL BANK OF CANADA,
NEW YORK BRANCH
(as Facility A and Facility B Lender)
By: /s/ Corrine Pitre
Name: Corrine Pitre
Title: Assistant, Vice President
By: /s/ Yvon La Plante
Name: Yvon La Plante
Title: Vice President and Manager
Cross Border Financing Group
<PAGE>
TORONTO DOMINION (TEXAS), INC.
(as Facility A and Facility B Lender)
By: /s/ Carol Brandt
Name: Carol Brandt
Title: Vice President
<PAGE>
THE BANK OF NOVA SCOTIA
(as Facility A and Facility B Lender)
By: /s/ John W. Campbell
Name: John W. Campbell
Title: Unit Head
<PAGE>
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
(as Facility A and Facility B Lender)
By: /s/ Richard J. Pearse
Name: Richard J. Pearse
Title: Managing Director
By: /s/ Elisabeth R. Wilds
Name: Elisabeth R. Wilds
Title: Associate
<PAGE>
CREDIT SUISSE FIRST BOSTON
(as Facility A and Facility B Lender)
By: /s/ Chris Horgan
Name: Chris Horgan
Title: Vice President
By: /s/ Kristin R. Kristinsson
Name: Kristin R. Kristinsson
Title: Assistant Vice President
<PAGE>
LEONIA BANK PLC,
NEW YORK BRANCH
(as Facility A and Facility B Lender)
By: /s/ Matti Vainionpaa
Name: Matti Vainionpaa
Title: General Manager
By: /s/ Ari Kaarakainen
Name: Ari Kaarakainen
Title: Vice President
<PAGE>
BANCA COMMERCIALE ITALIANA, NEW YORK
BRANCH
(as Facility A and Facility B Lender)
By: /s/ J. Dickerhof
Name: J. Dickerhof
Title: Vice President
By: /s/ E. Bermant
Name: E. Bermant
Title: FVP/Deputy Manager
<PAGE>
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH
(as Facility A and Facility B Lender)
By: /s/ Catherine Moeser
Name: Catherine Moeser
Title: Attorney-in fact
<PAGE>
WACHOVIA BANK, N.A.
(as Facility A and Facility B Lender)
By: /s/ Jeffrey S. Nurkiewicz
Name: Jeffrey S. Nurkiewicz
Title: Vice President
<PAGE>
MERITA BANK PLC,
NEW YORK BRANCH
(as Facility A and Facility B Lender)
By: /s/ Anu Seppala
Name: Anu Seppala
Title: Vice President
By: /s/ William Keller
Name: William Keller
Title: Vice President
<PAGE>
FIRST AMERICAN NATIONAL BANK
(as Facility A and Facility B Lender)
By: /s/ Seth Butler
Name: Seth Butler
Title: Corporate Bank Officer
<PAGE>
AMENDED PAGES TO SCHEDULE 2.1.2
LIST OF SUBSIDIARIES
TO EXISTING AGREEMENT
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
CANADA
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Graphicor Transport Canadian Federal -unlimited number -100 common No par value -100% to Quebecor
Inc. Corporation of common shares Printing Inc.
Province of shares
Ontario, Canada
- ------------------------------------------------------------------------------------------------------------------
Quebecor Merrill Canadian Federal -unlimited number -100 common No par value -51% to Quebecor
Canada Inc. Corporation of common shares Printing Inc.
Province of shares -49% to Merrill
Quebec, Canada Corporation, Canada
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Province of -unlimited number -12,000,000 No par value -95% to Quebecor
MIL Inc. Ontario, Canada of common common shares Printing Inc.
shares -5% to David Lake
-unlimited number
of preference
shares
- ------------------------------------------------------------------------------------------------------------------
3034143 Canada Canadian Federal -unlimited number -200 class A No par value -100% to Quebecor
Inc.(1) Corporation of: Printing Inc.
Province of . class A
Quebec, Canada . class B
. class C
. class D
. class E
. class F
. class G
- ------------------------------------------------------------------------------------------------------------------
3109640 Canada Canadian Federal -unlimited number -61,646 class A No par value -100% to Quebecor
Inc.(1) Corporation of: Printing Inc.
Province of . class A
Quebec, Canada . class B
. class C
. class D
. class E
. class F
. class G
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Canadian Federal -unlimited number -100 common No par value -100% to Quebecor
Graphica Inc. Corporation of common shares shares Printing Inc.
Province of
Quebec, Canada
==================================================================================================================
</TABLE>
- ----------
(1) Dissolved and liquidated into Quebecor Printing Inc.
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 2
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
EUROPE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Inter Brochage S.A. Meaux, France -146,000 common -146,000 common FF 100 par -145,994 to
shares shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe Behr
-1 to Laslo Ross
-1 to Gerard Pouzoulet
-1 to Michel P. Salbaing
- ------------------------------------------------------------------------------------------------------------------
Interval S.A. Bobigny, France -261,112 common -261,112 common FF 100 par -149,996 to
shares shares value Imprimeries
Quebecor Europe,
S.A.
-50,001 to SA Produits
Alibel
-49,999 to Francois
Philipon
-5,557 to Gerard
Pouzoulet
-5,556 to Marie Noelle
Pouzoulet
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Pierre Karl
Peladeau
- ------------------------------------------------------------------------------------------------------------------
Inter Routage S.A. Bobigny, France -21,000 common -21,000 common FF 100 par -20,993 to Interval
shares shares value S.A.
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe
Behr
-1 to Imprimeries
Quebecor Europe,
S.A.
-1 to Pierre Karl
Peladeau
-1 to Francois Philipon
-1 to Gerard Pouzoulet
==================================================================================================================
</TABLE>
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
EUROPE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Francor S.A. Nanterre, France -1,600,000 common -1,600,000 FF 100 par -1,599,994 to
shares common shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Marc Beaulieu
-1 to Jean-Philippe
Behr
-1 to Imprimeries
Didier-Quebecor S.A.
-1 to Jean Neveu
-1 to Pierre Karl
Peladeau
-1 to Michel P.
Salbaing
- ------------------------------------------------------------------------------------------------------------------
Torcy Quebecor S.A. Meaux, France -702,500 common -702,500 common FF 100 par -702,494 to
shares shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Pierre Karl
Peladeau
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe
Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
- ------------------------------------------------------------------------------------------------------------------
La Loupe Quebecor Paris, France -152,500 common -152,500 common FF 100 par -152,494 to
S.A. shares shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Pierre Karl
Peladeau
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe
Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
- ------------------------------------------------------------------------------------------------------------------
Brochage Routage Meaux, France -152,500 common -152,500 common FF 100 par -152,494 to
Quebecor S.A. shares shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe
Behr
-1 to Laslo Ross
-1 to Yvan Lesniak
-1 to Pierre Karl
Peladeau
==================================================================================================================
</TABLE>
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
EUROPE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Imprimerie Blois Blois, France -202,500 common -202,500 common FF 100 par -202,494 to
Quebecor, S.A. shares shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Jean-Pierre
Anselmini
-1 to Marc Beaulieu
-1 to Jean-Philippe
Behr
-1 to Laslo Ross
-1 to Pierre Karl
Peladeau
-1 to Michel P.
Salbaing
- ------------------------------------------------------------------------------------------------------------------
Quebecor Numeric S.A. Nanterre, France -10,000 common -10,000 common FF 100 par -9,994 to Imprimeries
shares shares value Quebecor Europe,
S.A.
-1 to Jean-Pierre
Anselmini
-1 to Jean-Philippe
Behr
-1 to Yvan Lesniak
-1 to Pierre Karl
Peladeau
-1 to Laszlo Ross
-1 to Michel P.
Salbaing
- ------------------------------------------------------------------------------------------------------------------
Imprimeries Meaux, France -571,250 common -571,250 common FF 100 par -571,244 to
Didier-Quebecor S.A. shares shares value Imprimeries
Quebecor Europe,
S.A.
-1 to Jean-Pierre
Anselmini
-1 to Jean-Philippe
Behr
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Jean Neveu
-1 to Michel P.
Salbaing
- ------------------------------------------------------------------------------------------------------------------
Heliogravure Lille, France -10,000 common -10,000 common FF 100 par -9,994 to Imprimeries
Didier-Quebecor S.A. shares shares value Didier-Quebecor S.A.
-1 to Jean-Pierre
Anselmini
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Imprimeries
Quebecor Europe,
S.A.
-1 to Michel C.
Salbaing
-1 to Pierre Karl
Peladeau
==================================================================================================================
</TABLE>
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
EUROPE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Imprimerie Strasbourg, -385,000 common -385,000 common FF 100 par -384,994 to
Alsacienne France shares shares value Imprimeries
Didier-Quebecor S.A. Didier-Quebecor S.A.
-1 to Jean-Pierre
Anselmini
-1 to Laslo Ross
-1 to Charles G. Cavell
-1 to Imprimeries
Quebecor Europe,
S.A.
-1 to Michel C.
Salbaing
-1 to Pierre Karl
Peladeau
- ------------------------------------------------------------------------------------------------------------------
Imprimerie Quebecor Nanterre, France -2,500 common -2,500 common FF 100 par -2,494 to Imprimeries
Paris S.A. shares shares value Quebecor Europe,
S.A.
-1 to Jean-Pierre
Anselmini
-1 to Charles G. Cavell
-1 to Gilbert Martinet
-1 to Jean Neveu
-1 to Pierre Karl
Peladeau
-1 to Michel P.
Salbaing
- ------------------------------------------------------------------------------------------------------------------
Imprimerie Quebecor Meaux, France -Brochage Routage
Services, G.I.E. Quebecor S.A.
-Heliogravure Didier
Quebecor S.A.
-Imprimerie
Fecomme-Quebecor
S.A.
-Imprimerie Alsacienne
Didier-Quebecor
S.A.
-Imprimerie Blois
Quebecor S.A.
-Imprimeries
Didier-Quebecor
S.A.
-La Loupe Quebecor S.A.
-Torcy Quebecor S.A.
==================================================================================================================
</TABLE>
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor
Dallas, L.P. (Limited Partnership Printing Nevada Inc.
Partnership) (L.P.) -1% to Quebecor
-1% General Printing Dallas II
Partnership Inc.
(G.P.)
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
Dallas II Inc. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA - 50% to Quebecor
Delaware LLC Printing Nova Scotia
ULC
- 50% to Quebecor
Capital GP
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Tennessee, USA -2,000 common -1,000 common No par value -100% to Quebecor
Dickson Inc.(2) shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited $1 par value -99% to Quebecor
Dickson, L.P.(2) (Limited Partnership Printing Dickson II
Partnership) (L.P.) Inc.
-1% General -1% to Quebecor
Partnership Printing Dickson
(G.P.) Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
Dickson II Inc. shares shares Printing Dickson
Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common -1,000 common $1 par value -100% to Quebecor
Directory Sales Corp. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
Dubuque Inc. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Missouri, USA -100,000 common -95,000 common $1 par value -100% to Quebecor
Eagle Inc. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Massachusetts, -250 Series A -235 Series A No par value -100% to Quebecor
Eusey Press Inc. USA common shares common shares Printing (USA)
Holdings Inc.
-250 Series B -239 Series B No par value
common shares common shares -100% to Quebecor
Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common -1,000 common $1 par value -100% to Arcata
Fairfield Inc. shares shares Corporation
==================================================================================================================
</TABLE>
- ----------
2. To be amalgamated as Quebecor Printing Dickson Inc.
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Quebecor Printing Rhode Island, USA -unlimited common -209 common $0.01 par -100% to Quebecor
Federated Inc. shares shares value Printing (USA)
Holdings Inc.
Quebecor Printing California, USA -25,000 common -1,000 common $1 par value -100% to Arcata
Halliday Inc. shares shares Corporation
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -2,000 common -l0 common shares $1 par value -100% to Quebecor
Holding Company shares Printing Inc.
-1,000 Preferred No par value
Stock
- ------------------------------------------------------------------------------------------------------------------
Holyoke Lithograph Massachusetts, -15,000 common -510 common No par value -100% to Quebecor
Co., Inc. USA shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Pennsylvania, USA -100,000 common -1,100 common $1 par value -100% to Quebecor
Hazleton Inc. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Karl M. Harrop Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
Company Inc.(3) shares shares Printing Kingsport
Inc.
- ------------------------------------------------------------------------------------------------------------------
Karl M. Harrop Delaware, USA -3,000 common -1,000 common $1 par value -100% to Karl M.
Company II Inc. shares shares Harrop Company Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing California, USA -25,000 common -1,000 common $1 par value -100% to Arcata
Kingsport Inc.(3),(4) shares shares Corporation
- ------------------------------------------------------------------------------------------------------------------
Quebecor List Delaware, USA -3,000 common -100 common No par value -100% to Quebecor
Services Chicago Inc. shares shares Printing (USA)
Holdings Inc.
==================================================================================================================
</TABLE>
- ----------
3. To be amalgamated as Quebecor Printing Kingsport Inc.
4. To be amalgamated as Quebecor Printing Kingsport Inc.
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
<PAGE>
<TABLE>
<CAPTION>
==================================================================================================================
NAME JURISDICTION OF NUMBER OF NUMBER OF ISSUED PAR OR REGISTERED OWNER(S) OF
INCORPORATION AUTHORIZED CAPITAL STOCK STATED VALUE CAPITAL STOCK
CAPITAL STOCK
==================================================================================================================
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Quebecor Printing Delaware, USA -99% Limited -99% to Karl M. Harrop
Kingsport, L.P.(4) (Limited Partnership Company Inc.
Partnership) (L.P.) -1% to Quebecor
-1% General Printing Kingsport
Partnership Inc.-
(G.P.)
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -10 common shares $1 par value -100% to Quebecor
Lincoln Inc. shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -3,000 common $1 par value -100% to Quebecor
Loveland Inc. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -1,000 common -1,000 common $0.01 par -100% to Quebecor
Memphis Inc. shares shares value Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
Memphis II Inc. shares shares Printing Memphis
Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -99% Limited -99% to Quebecor
Memphis, L.P.(5) (Limited Partnership Printing Memphis
Partnership) (L.P.) Inc.
-1% General -1% to Quebecor
Partnership Printing Dickson
(G.P.) Inc.
- ------------------------------------------------------------------------------------------------------------------
QP Memphis Corp.(5) Delaware, USA -3,000 common -1,000 common $1 par value -99% to Quebecor
Stock Stock Printing Memphis
Inc.
-1% to Quebecor
Printing Dickson
Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
Mt. Morris II Inc. shares shares Printing Memphis
Inc.
- ------------------------------------------------------------------------------------------------------------------
National Magazine Illinois, USA -200 common shares -1 common share $5 par value -100% to Quebecor
Mailers, Inc. Printing Mt.Morris
II Inc.
- ------------------------------------------------------------------------------------------------------------------
Nova Marketing Missouri, USA -30,000 common -1 common share $1 par value -100% to Quebecor
Services, Inc. shares Printing Sayers Inc.
- ------------------------------------------------------------------------------------------------------------------
Quebecor Printing Nevada, USA -5,000 common -1,000 common $1 par value -100% to Quebecor
Nevada Inc. shares shares Printing (USA)
Holdings Inc.
- ------------------------------------------------------------------------------------------------------------------
Q.P. New York Corp. Delaware, USA -3,000 common -1,000 common $1 par value -100% to Quebecor
shares shares Printing Buffalo
Inc.
==================================================================================================================
</TABLE>
- ----------
5. To be amalgamated as QP Memphis Corp.
TERM LOAN SCHEDULES Schedule 2.1.2 - Page 21
