SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 6-K
REPORT OF FOREIGN ISSUER PURSUANT TO RULE 13A-16 OR 15D-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
For the month of March 2006
Commission File Number : 1-14118
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EXHIBIT: AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF DECEMBER 15, 2005
AMONG QUEBECOR WORLD INC. AND QUEBECOR WORLD (USA) INC., AS BORROWERS, AND
A SYNDICATE OF FINANCIAL INSTITUTIONS, AS LENDERS, WITH ROYAL BANK OF CANADA
ACTING AS ADMINISTRATIVE AGENT AND RBC CAPITAL MARKETS ACTING AS ARRANGER
QUEBECOR WORLD INC.
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(Translation of Registrant's Name into English)
612 Saint-Jacques Street, Montreal, Quebec H3C 4M8
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(Address of Principal Executive Office)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F
Form 20-F [ ] Form 40-F [X]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101 (b)(1): _____
NOTE: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a
Form 6-K if submitted solely to provide an attached annual report to security
holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101 (b) (7): _____
NOTE: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a
Form 6-K if submitted to furnish a report or other document that the registrant
foreign private issuer must furnish and make public under the laws of the
jurisdiction in which the registrant is incorporated, domiciled or legally
organized (the registrant's "home country"), or under the rules of the home
country exchange on which the registrant's securities are traded, as long as the
report or other document is not a press release, is not required to be and has
not been distributed to the registrant's security holders, and, if discussing a
material event, has already been the subject of a Form 6-K submission or other
filing on EDGAR.
Indicate by check mark whether the registrant by furnishing the information
contained in this form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes [ ] No [X]
If "Yes" is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): 82-___________________.
EXECUTION COPY
US$1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 15, 2005
among
QUEBECOR WORLD INC.
- and -
QUEBECOR WORLD (USA) INC.
as Borrowers
- and -
THE FINANCIAL INSTITUTIONS NAMED
ON THE SIGNATURE PAGES HERETO
as Lenders
with
ROYAL BANK OF CANADA
as Administrative Agent
and
RBC CAPITAL MARKETS
as Arranger
EXECUTION COPY
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 3
1.1 Definitions........................................................ 3
1.2 Headings and Table of Contents..................................... 39
1.3 References......................................................... 39
1.4 Rules of Interpretation............................................ 39
1.5 Accounting Terms and Computations.................................. 39
1.6 Time............................................................... 40
1.7 Restated Agreement................................................. 40
1.8 References to this Agreement....................................... 40
ARTICLE II REPRESENTATIONS AND WARRANTIES................................ 40
2.1 Representations and Warranties of the Borrowers.................... 40
2.2 Materiality and Survival of Warranties............................. 47
ARTICLE III THE CREDIT FACILITIES........................................ 48
3.1 Obligations of the Lenders......................................... 48
3.2 The Facility A..................................................... 48
3.3 The Facility B..................................................... 49
3.4 The Facility C..................................................... 49
3.5 Swingline Subfacilities............................................ 50
3.6 Purposes of Advances............................................... 55
3.7 Manner of Borrowing................................................ 55
3.8 Mandatory Repayment of Borrowings under the Credit Facilities...... 58
3.9 Lending Office of Lenders.......................................... 58
3.10 Extension of the Revolving Period in respect of each of the
Credit Facilities.................................................. 60
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3.11 Optional Repayment or Prepayment and Cancellation of Credit
Facilities......................................................... 63
3.12 Conversion Option.................................................. 65
3.13 Deposit of Proceeds of Loans and Discounted Proceeds............... 66
3.14 Currency and Other Adjustments..................................... 67
3.15 Reliance on Oral Instructions...................................... 68
3.16 Borrowings and Repayments Proportional to Commitments.............. 68
3.17 Increase of the Relevant Credit Facility........................... 69
ARTICLE IV PAYMENT OF INTEREST AND FEES.................................. 70
4.1 Payment of Interest................................................ 70
4.2 Acceptance Fee and Adjustments in the Acceptance Fee and in the
Issuance Fee Arising from Changes in QWI's Debt to EBITDA Ratio.... 72
4.3 Commitment Fee..................................................... 74
4.4 Applicable Margin and Fee Rate Matrix.............................. 75
4.5 Administrative Agent's Fees and other Fees......................... 75
4.6 Interest on Overdue Amounts........................................ 75
4.7 Computation of Interest for Interest Act (Canada) Purposes......... 76
ARTICLE V CONDITIONS APPLICABLE TO LIBOR LOANS........................... 77
5.1 Selection of Libor Interest Periods................................ 77
5.2 Alternate Basis of Borrowing....................................... 78
ARTICLE VI CONDITIONS APPLICABLE TO EURO LOANS........................... 79
6.1 Selection of Euro Interest Periods................................. 79
6.2 Alternate Basis of Borrowing....................................... 80
6.3 Election of Euribor as basis for the calculation of interest
applicable to Euro Loans........................................... 81
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ARTICLE VII CONDITIONS APPLICABLE TO BANKERS' ACCEPTANCES................ 82
7.1 Bankers' Acceptances............................................... 82
7.2 Conditions Applicable to Bankers' Acceptances...................... 82
7.3 BA Equivalent Loans by Non-BA Lenders.............................. 87
7.4 Special Conditions Applicable to Non-BA Lenders.................... 87
ARTICLE VIII CONDITIONS APPLICABLE TO LETTERS OF CREDIT.................. 88
8.1 Letters of Credit Commitment....................................... 88
8.2 Fronted Letters of Credit.......................................... 89
8.3 POA Letters of Credit.............................................. 89
8.4 Notice of Issuance................................................. 92
8.5 Form of Letter of Credit........................................... 92
8.6 Procedure for Issuance of Letters of Credit........................ 93
8.7 Payment of Amounts Drawn Under Letters of Credit................... 93
8.8 Fees............................................................... 94
8.9 Obligations Absolute............................................... 95
8.10 Indemnification; Nature of Lenders' Duties......................... 96
8.11 Default, Maturity, etc............................................. 97
8.12 Fronted Letter of Credit Payments.................................. 98
ARTICLE IX PAYMENT, TAXES, INCREASED COSTS, EVIDENCE OF INDEBTEDNESS
AND TIMING OF MATURITIES................................................. 100
9.1 Place of Payment of Principal, Interest and Charges................ 100
9.2 Payment to Administrative Agent is Deemed Payment to Lenders....... 100
9.3 Account Debit Authorization........................................ 100
9.4 Application of Payments............................................ 101
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9.5 Manner of Payment and Taxes........................................ 102
9.6 Increased Costs and Payment of Portion............................. 104
9.7 Illegality......................................................... 106
9.8 Timing of Maturities............................................... 107
9.9 Evidence of Indebtedness........................................... 108
9.10 Accounts by Swingline Lender....................................... 109
ARTICLE X GUARANTEE OF QWI............................................... 110
10.1 Guarantee of QWI................................................... 110
10.2 Loan Party Guarantees.............................................. 111
ARTICLE XI CONDITIONS PRECEDENT.......................................... 112
11.1 Predisbursement Conditions......................................... 112
11.2 Waiver of Conditions Precedent..................................... 114
11.3 Conditions Precedent to the Coming into Force of the 2003 Amended
and Restated Agreement............................................. 115
11.4 Conditions Precedent to the Coming into Force of this Amended and
Restated Credit Agreement.......................................... 116
ARTICLE XII COVENANTS OF THE BORROWERS................................... 117
12.1 Affirmative Covenants of the Borrowers............................. 117
12.2 Negative Covenants of the Borrowers................................ 122
ARTICLE XIII REIMBURSEMENT OF EXPENSES AND INDEMNITY..................... 125
13.1 Reimbursement of Expenses.......................................... 125
13.2 Indemnity.......................................................... 126
13.3 Consultation with Borrowers........................................ 128
13.4 Survival of Indemnification Obligations............................ 128
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ARTICLE XIV OTHER TAXES.................................................. 128
14.1 Other Taxes........................................................ 128
14.2 Survival of Obligations............................................ 129
ARTICLE XV EVENTS OF DEFAULT............................................. 129
15.1 Events of Default.................................................. 129
15.2 Acceleration....................................................... 132
15.3 Notices............................................................ 133
ARTICLE XVI REMEDIES..................................................... 133
16.1 Remedies Cumulative................................................ 133
ARTICLE XVII WAIVER OF DEFAULT........................................... 134
17.1 Waiver of Default.................................................. 134
ARTICLE XVIII THE ADMINISTRATIVE AGENT AND THE LENDERS................... 134
18.1 Authorization of Administrative Agent.............................. 134
18.2 Notification of Borrowings, Repayments, Etc........................ 135
18.3 Details of Borrowings.............................................. 135
18.4 Remittance of Amounts Received from the Borrowers.................. 136
18.5 Assumption as to Payments.......................................... 136
18.6 Change in Circumstances, Illegality, Increased Costs, Etc.......... 137
18.7 Notice of Event of Default......................................... 138
18.8 Pro Rata Treatment of Advances and Borrowings...................... 138
18.9 Adjustments among Lenders after Acceleration....................... 138
18.10 Sharing among the Lenders.......................................... 139
18.11 Cash Collateral Accounts........................................... 140
18.12 Instructions from Lenders.......................................... 140
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18.13 Reliance on Writings and Legal Advice.............................. 142
18.14 Costs and Expenses................................................. 142
18.15 Authority of Administrative Agent to Act........................... 142
18.16 Disclaimer......................................................... 143
18.17 Indemnification.................................................... 143
18.18 Acknowledgement of Lenders......................................... 144
18.19 Administrative Agent's Duty to Deliver Documents................... 144
18.20 Other Transactions................................................. 144
18.21 No Preference...................................................... 145
18.22 Submission of Information.......................................... 145
18.23 Sharing of Information Concerning this Agreement................... 145
18.24 No Association among Lenders....................................... 145
18.25 Successor Administrative Agent..................................... 145
18.26 Change of Address.................................................. 146
18.27 Replacement of Schedule II and Schedule III Reference Banks........ 146
18.28 Amendment of this Article XVIII.................................... 146
ARTICLE XIX SUCCESSORS AND ASSIGNS....................................... 147
19.1 Benefit and Burden of this Agreement............................... 147
19.2 The Borrowers...................................................... 147
19.3 Assignment and Participation....................................... 147
19.4 Limitation......................................................... 148
19.5 Acceptance of Bankers' Acceptances by Participants................. 148
19.6 Disclosure......................................................... 148
19.7 Processing and Recordation Fee..................................... 149
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ARTICLE XX COMPENSATION.................................................. 149
20.1 Set-off, Compensation.............................................. 149
ARTICLE XXI JUDGMENT CURRENCY............................................ 150
21.1 Judgment Currency.................................................. 150
ARTICLE XXII GOVERNING LAW............................................... 150
22.1 Governing Law...................................................... 150
ARTICLE XXIII NOTICE..................................................... 151
23.1 Address for Notice................................................. 151
23.2 Notice............................................................. 151
ARTICLE XXIV CONTINUANCE AND AMENDMENT OF EXISTING GUARANTEES............ 151
24.1 Continuance and Amendment of Existing Guarantees................... 151
ARTICLE XXV MISCELLANEOUS................................................ 152
25.1 Severability....................................................... 152
25.2 Interest Limitation................................................ 152
25.3 Survival of Representations and Undertakings....................... 152
25.4 Whole Agreement.................................................... 152
25.5 Amendments......................................................... 153
25.6 Counterparts....................................................... 153
25.7 Further Assurances................................................. 153
25.8 Risks of Superior Force............................................ 153
25.9 Good Faith and Fair Consideration.................................. 153
25.10 Term of Agreement.................................................. 154
25.11 Language........................................................... 154
-viii-
SCHEDULES
Schedule 1.1.1 Commitments of Lenders
Schedule 1.1.2 Form of Discount Note
Schedule 1.1.3 Permitted Encumbrances
Schedule 2.1.2 List of Subsidiaries
Schedule 3.5.2 Swingline Repayment Notice
Schedule 3.7 Confirmation of Borrowing (Advance, Conversion or Renewal)
Schedule 3.7.2 Swingline Loan Notice of Borrowing
Schedule 3.10 Form of Extension Request in Respect of Revolving Period
Schedule 3.11.1 Confirmation of Repayment
Schedule 3.11.2 Notice of Cancellation
Schedule 8 POA Letter of Credit
Schedule 8.4 (1) Notice of Issuance of a Letter of Credit
Schedule 11.4 (g)-A Opinion of Canadian Counsel to the Loan Parties
Schedule 11.4 (g)-B Opinion of US Counsel to the Loan Parties
Schedule 11.4 (h) Opinion of Canadian Counsel to the Lenders
Schedule 12.1.7 (c) Certificate of Compliance
Schedule 12.2.2 Contemplated Sales of Assets
Schedule 12.2.4 List of Existing Indebtedness of Imprimeries Didier-
Quebecor S.A. and its Subsidiaries
Schedule 19.3 Transfer Undertaking
EXECUTION COPY
THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of the 15th day of December
2005 is made
AMONG: QUEBECOR WORLD INC., a corporation amalgamated under the laws of Canada
and having its registered office in Montreal, Province of Quebec,
Canada ("QWI" or, sometimes, a "BORROWER")
AND: QUEBECOR WORLD (USA) INC., a corporation incorporated under the laws of
the State of Delaware, U.S.A. and having its registered office of its
state of incorporation in Wilmington, State of Delaware, U.S.A.
("QWUSA" or, sometimes, a "BORROWER" or a "RESTRICTED ENTITY")
AND: EACH OF THE FINANCIAL INSTITUTIONS NAMED on the signature pages hereto
AND: ROYAL BANK OF CANADA, a Canadian chartered bank having its head office
in Montreal, Province of Quebec, Canada in its capacity as
administrative agent for the Lenders (in such capacity, or any
successor in such capacity, the "ADMINISTRATIVE AGENT")
AND: RBC CAPITAL MARKETS, as arranger of the Credit Facilities (in such
capacity, or any successor in such capacity, the "ARRANGER")
WHEREAS QWI (then known as Imprimeries Quebecor Inc. - Quebecor Printing
Inc.), QWUSA (then known as Quebecor Printing (USA) Holdings Inc.) and USGP
(then known as Quebecor Printing Capital GP), as borrowers, the financial
institutions named on the signature pages thereto, as lenders, Royal Bank of
Canada, as administrative agent, Royal Bank of Canada, ABN AMRO Bank Canada,
Bank of America Canada and Canadian Imperial Bank of Commerce, as co-arrangers,
and ABN AMRO Bank Canada, Bank of America Canada and Canadian Imperial Bank of
Commerce, as joint syndication agents, have entered into a credit agreement
dated as of April 28, 1999 (the "ORIGINAL CREDIT AGREEMENT") under the terms of
which credit facilities aggregating US$1,000,000,000 were made available to QWI,
QWUSA and USGP;
WHEREAS QWI, QWUSA and USGP and the Administrative Agent have entered into
a First Amending Agreement to Credit Agreement dated as of August 12, 1999 to
which
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intervened QPHC (the "FIRST AMENDING AGREEMENT") in respect of the Original
Credit Agreement;
WHEREAS QWI, QWUSA and USGP, the financial institutions named on the
signature pages thereto, as lenders, the Administrative Agent, the arrangers and
the joint syndication agents named therein have entered into a Second Amending
Agreement to Credit Agreement dated as of August 18, 1999 to which intervened
QPHC (the "SECOND AMENDING AGREEMENT") in respect of the Original Credit
Agreement as amended by the First Amending Agreement;
WHEREAS QWI, QWUSA and USGP and the Administrative Agent have entered into
a Third Amending Agreement to Credit Agreement dated as of April 26, 2000 to
which intervened QPHC (the "THIRD AMENDING AGREEMENT") in respect of the
Original Credit Agreement as amended by the First Amending Agreement and the
Second Amending Agreement;
WHEREAS QWI, QWUSA and USGP, the financial institutions named on the
signature pages thereto, as lenders, the Administrative Agent and the joint
syndication agents named therein have entered into an Amended and Restated
Credit Agreement dated as of April 24, 2002 to which intervened QPHC (the "2002
AMENDED AND RESTATED AGREEMENT") amending and restating the Original Credit
Agreement as amended by the First Amending Agreement, the Second Amending
Agreement and the Third Amending Agreement;
(the Original Credit Agreement as amended by the First Amending Agreement,
the Second Amending Agreement and the Third Amending Agreement and as amended
and restated by the 2002 Amended and Restated Agreement is hereinafter called
the "PRINCIPAL CREDIT AGREEMENT");
WHEREAS QWI, QWUSA, the financial institutions named on the signature pages
thereto, as lenders, and the Administrative Agent have entered into an Amended
and Restated Credit Agreement dated as of November 7, 2003, to which intervened
QPHC (the "2003 AMENDED AND RESTATED AGREEMENT"), amending and restating the
Principal Credit Agreement and pursuant to which certain credit facilities of up
to a maximum aggregate amount of US$1,000,000,000 or, up to certain limits set
forth therein, the Equivalent Amount thereof in Canadian Dollars and Euros, or
any combination thereof, continued to be made available to the Borrowers;
WHEREAS QWI and QWUSA, the financial institutions named on the signature
pages thereto, as lenders, the Administrative Agent and RBC Capital Markets, as
arranger, have entered into as of November 5, 2004 a First Amending Agreement to
the Amended and Restated Credit Agreement dated as of November 7, 2003 to which
intervened QPHC (the "2004 FIRST AMENDING AGREEMENT") in respect of the 2003
Amended and Restated Agreement;
(the Principal Credit Agreement as amended and restated by the 2003 Amended
and Restated Agreement and as amended by the 2004 First Amending Agreement is
hereinafter called the "EXISTING CREDIT AGREEMENT");
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WHEREAS since the date of execution of the Original Credit Agreement (i)
QWI has changed its name from Quebecor Printing Inc. to Quebecor World Inc.,
(ii) Quebecor Printing (USA) Holdings Inc. acquired WCP through Printing
Acquisition Inc. ("PAI"), WCP then merged with PAI, with WCP being the surviving
corporation which changed its name to QWUSA and later merged with Quebecor
Printing (USA) Holdings Inc., with QWUSA being the surviving corporation and
(iii) USGP ceased to be a borrower and a guarantor in connection with the Credit
Facilities;
WHEREAS the Borrowers have requested the Administrative Agent and the
Lenders to consent to further amendments to the Existing Credit Agreement,
without novation, including without limitation to allow the Borrowers to borrow
by way of Swingline Loans and of Letters of Credit;
WHEREAS the Borrowers, the Administrative Agent and the Lenders desire to
further amend and restate the provisions of the Existing Credit Agreement;
WHEREAS in conformity with the provisions of Section 17.12.1 of the
Existing Credit Agreement, the Lenders have provided the Administrative Agent
with their consent to the foregoing requests upon the terms and conditions
herein set forth;
AND WHEREAS immediately prior to the execution of this Agreement, the
respective Commitments of the Lenders have been modified (and with respect to
one (1) lender under the Existing Credit Agreement terminated), so that the
Commitments of the Lenders are now as set forth in Schedule 1.1.1;
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
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:
"ACCEPTANCE FEE" means the fee payable in accordance with the provisions of
Sections 4.2 and 7.2.6 at the time of the acceptance of Bankers' Acceptances
(including the issue to a Non-BA Lender of a Discount Note) established by
multiplying the face amount of such Bankers' Acceptances by the applicable
Acceptance Rate (expressed as a decimal) and by multiplying the product so
obtained by a fraction having a numerator equal to the number of days in the
term of such Bankers' Acceptances and a denominator of 365;
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"ACCEPTANCE FEE REFUND" has the meaning ascribed to such expression in Section
4.2.2;
"ACCEPTANCE RATE" means, for the purpose of calculating the Acceptance Fee, the
percentage rate per annum determined in accordance with the provisions of
Section 4.4 and by reference to the appropriate tier applicable to column (4) on
the matrix set forth in Section 4.4;
"ACQUIRED INDEBTEDNESS" has the meaning ascribed to such expression in Section
12.2.4;
"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 QWI as a result of which (a) such Person would become a
Subsidiary of QWI, or (b) subject to restrictions applicable to such a
transaction contained in this Agreement, such Person would be merged or
amalgamated with QWI or any of its Subsidiaries;
"ADDITIONAL ACCEPTANCE FEE PAYMENT" has the meaning ascribed to such expression
in Section 4.2.3;
"ADDITIONAL COMPENSATION" has the meaning set forth in Section 9.6.1;
"ADDITIONAL ISSUANCE FEE PAYMENT" has the meaning ascribed thereto in Section
4.2.5;
"ADJUSTED EURO LIBOR" means, for any Euro Interest Period, a rate of interest
per annum equal to:
(a) with respect to a Euro 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 Euro Loan: Euro Libor for such Euro
Interest Period, and
(b) with respect to a Euro 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 Euro Loan: the rate of interest obtained
by dividing (i) Euro Libor for such Euro Loan during the relevant Euro
Interest Period by (ii) a percentage equal to 100% minus the Euro Rate
Reserve Percentage in effect from time to time during such Euro Interest
Period;
"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
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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 18.25;
"ADMINISTRATIVE AGENT'S ACCOUNT FOR PAYMENTS" means:
(a) for all payments in US Dollars from a Facility A Lender, a Facility B
Lender or a Facility C Lender for Advances to QWUSA or from QWUSA pursuant
to the Facility A, the Facility B or the Facility C, the following account
maintained by the Administrative Agent, to which payments and transfers are
to be effected as follows:
J.P. Morgan Chase Bank, New York, USA
ABA 021-000021
For account Royal Bank of Canada, New York
A/C #920-1033363
For further credit to 2937464 Transit 1269, RBC Loan Syndications
Ref.: Quebecor World Inc.
and
(b) for all payments in US Dollars from a Facility A Lender or a Facility B
Lender for Advances to QWI or from QWI pursuant to the Facility A or the
Facility B or for the payment of the Commitment Fee, the Issuance Fee (if
payable in US$) and the Fronting Fee (if payable in US$), the following
account maintained by the Administrative Agent, to which payments and
transfers are to be effected as follows:
J.P. Morgan Chase Bank, New York, USA
Swift Code: CHASSUS33
Swift Address: ROYCCAT2
Favour: /00002-408-919-9
RBC Loan Syndications
Toronto, Ontario
Ref.: Quebecor World Inc.
and
(c) for all payments in Canadian Dollars, the following account maintained by
the Administrative Agent, to which payments and transfers are to be
effected as follows:
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Royal Bank of Canada, Toronto
Swift Address: ROYCCAT2
Favour: /00002-266-760-8
RBC Loan Syndications
Toronto, Ontario
Ref.: Quebecor World Inc.
and
(d) for all payments in Euros, as shall be advised by the Administrative Agent
to each party to this Agreement subsequent to the execution of this
Agreement;
or such other place(s) or account(s) as may be agreed upon by the Administrative
Agent and the Borrowers 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 in Canada, as may be agreed upon by the Administrative
Agent and the Borrowers from time to time and notified to the other Lenders;
"ADVANCE" means a disbursement of funds to a Borrower pursuant to Section 3.7;
"AFFECTED BORROWING" has the meaning set forth in Section 9.7;
"AFFECTED LENDER" has the meanings set forth in Sections 5.2, 6.2, 7.2.7 and
9.7;
"AFFECTED LOAN" has the meanings set forth in Sections 5.2, 6.2 and 9.6.2;
"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;
"AGGREGATE AMOUNT OF THE SWINGLINE LOANS" means the sum, expressed in US$, of
the principal amount of all applicable Swingline Loans outstanding in US$ and of
the Equivalent Amount in US$ of the principal amount of all applicable Swingline
Loans outstanding in Cdn.$;
"AGGREGATE COMMITMENT" means the aggregate of the Facility A Total Commitment,
the Facility B Total Commitment and the Facility C Total Commitment;
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"AGGREGATE EXPOSURE" means the sum of the Exposures of all Lenders under all
Credit Facilities;
"AGGREGATE FACE AMOUNT" means the sum, expressed in US$ and without duplication,
of (i) the Face Amount of all applicable Letters of Credit issued in US$, (ii)
the Equivalent Amount in US$ of the Face Amount of all applicable Letters of
Credit issued in any other currency, (iii) the amounts drawn under all Letters
of Credit issued in US$ that have not been reimbursed under Section 8.7 and (iv)
the Equivalent Amount in US$ of all amounts drawn under all Letters of Credit
issued in a currency other than US$ that have not been reimbursed under Section
8.7;
"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;
"APPLICABLE LENDERS" means, with respect to the Swingline Subfacility A, the
Swingline Subfacility B or a Letter of Credit issued for the account of QWI, a
Lender which is a Cdn Qualified Lender and, with respect to the Swingline
Subfacility C or a Letter of Credit issued for the account of QWUSA, a Lender
which is a US Qualified lender; and "APPLICABLE LENDER" means any one of them;
"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;
"ARRANGER" 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 19.3(b);
"ASSIGNING LENDER" has the meaning set forth in Section 19.3(b);
"BA EQUIVALENT LOAN" means a Loan or Advance to QWI made by a Non-BA Lender and
evidenced by a Discount Note;
"BA TERM" has the meaning ascribed to such expression in Section 4.2.2;
"BANKERS' ACCEPTANCE" means a non-interest bearing bill of exchange on a
Lender's usual form or a depository bill within the meaning of the Depository
Bills and Notes Act (Canada), denominated in Canadian Dollars, drawn by or on
behalf of QWI and accepted by such Lender pursuant to this Agreement, provided
that with respect to a Non-BA Lender, it shall mean a Discount Note issued to
its order;
-8-
"BENEFIT PLAN" of any Person, means, at any time, any employee benefit plan as
defined in Section 3 (3) of ERISA (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'S ACCOUNT" means an account or accounts of a Borrower maintained with
the Administrative Agent at the Administrative Agent's Branch of Account;
"BORROWERS" means QWI and QWUSA and includes their respective successors and
permitted assigns and "BORROWER" means any one of them;
"BORROWING" means a utilization, and "BORROWINGS" means the aggregate of the
utilizations, at the relevant time by the Borrowers of the Credit Facilities by
way of Loans, Bankers' Acceptances or Letters of Credit; the "total amount of
"BORROWINGS" outstanding" at any time, expressed in US$, is (i) the aggregate
amount of all Loans outstanding at that time in US$ plus the Equivalent Amount
in US Dollars of the aggregate amount of all Loans outstanding in any other
currency at that time, plus (ii) the Equivalent Amount in US$ of the aggregate
face amount of all Bankers' Acceptances outstanding hereunder at that time plus
(iii) the Aggregate Face Amount of all Letters of Credit outstanding hereunder
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:
(i) with respect to Cdn. Prime Rate Loans (including Swingline Loans),
Bankers' Acceptance and Letters of Credit in Cdn.$ made available to
QWI under Facility A or Facility B and all matters related thereto,
any day other than Saturday, Sunday and any other day which, in
Montreal, Province of Quebec, or in Toronto, Province of Ontario, is a
legal holiday or a day on which commercial banks in Montreal, Province
of Quebec, or in Toronto, Province of Ontario, as the case may be, are
required or authorized by law or by local proclamation to close;
(ii) with respect to US Base Rate Loans (including Swingline Loans) or
Letters of Credit in US$ or in any other currency made available to
QWI under Facility A or Facility B and all matters related thereto,
any day other than Saturday, Sunday and any other day which, in
Montreal, Province of Quebec, in Toronto, Province of Ontario, or in
New York, N.Y., USA, is a legal holiday or a day on which commercial
banks in Montreal, Province of Quebec, in Toronto, Province of
Ontario, or in New York, N.Y., USA, as the case may be, are required
or authorized by law or by local proclamation to close;
-9-
(iii) with respect to Libor Loans made available to QWI under Facility A or
Facility B and all matters related thereto, any day on which dealings
in US Dollar deposits may be carried on by and between banks in the
London interbank Eurodollar market other than Saturday, Sunday and any
other day which, in Montreal, Province of Quebec, in Toronto, Province
of Ontario, in New York, N.Y., USA, or in London, United Kingdom, is a
legal holiday or a day on which commercial banks in Montreal, Province
of Quebec, in Toronto, Province of Ontario, in New York, N.Y., USA, or
in London, United Kingdom, as the case may be, are required or
authorized by law or local proclamation to close;
(iv) with respect to Euro Loans made available to QWI and QWUSA under
Facility A, Facility B or Facility C, as applicable, and all matters
related thereto, any day on which dealings in Euro deposits may be
carried on by and between banks in the interbank Euro Market and which
is also a TARGET Business Day other than Sunday, Saturday and any
other day which, in Montreal, Province of Quebec, in Toronto, Province
of Ontario, or New York, N.Y., USA, is a legal holiday or a day on
which commercial banks in Montreal, Province of Quebec, in Toronto,
Province of Ontario, or in New York, N.Y., USA, as the case may be,
are required or authorized by law or by local proclamation to close;
(v) with respect to US Prime Rate Loans (including Swingline Loans) or
Letters of Credit made available to QWUSA under Facility A, Facility B
or Facility C and all matters related thereto, any day other than
Saturday, Sunday and any other day which, in New York, N.Y., USA, is a
legal holiday or a day on which commercial banks in New York, N.Y.,
USA, are required or authorized by law or local proclamation to close;
(vi) with respect to Libor Loans made to QWUSA under Facility A, Facility B
or Facility C and all matters related thereto, any day on which
dealings in US Dollar deposits may be carried on by and between banks
in the London interbank Eurodollar market other than Saturday, Sunday
and any other day which, in New York, N.Y., USA, or in London, United
Kingdom, is a legal holiday or a day on which commercial banks in New
York, N.Y., USA or in London, United Kingdom, are required or
authorized by law or local proclamation to close; and
(vii) for all other purposes, 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., U.S.A., 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., U.S.A., as the case may be,
are required or authorized by law or by local proclamation to close;
"CANADIAN BENEFIT PLAN" means any employee benefit plan maintained or
contributed to by QWI 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
-10-
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 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 QWI or any Restricted Entity employed in Canada participate
or are eligible to participate, but excluding all stock option or stock purchase
plans;
"CANADIAN DOLLAR", "CANADIAN DOLLARS" and the symbol "CDN.$" each means lawful
currency of Canada;
"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) QWI or any Restricted Entity, in
respect of any person's employment in Canada or a province or territory thereof
with QWI 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 QWI's Debt and QWI'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;
"CASH COLLATERALIZE" means to deposit cash with a Person in order to secure the
payment in full or on a dollar for dollar basis and performance of certain
liabilities and obligations and "CASH COLLATERALIZED" is to be interpreted
accordingly;
"CDN DOLLAR SWINGLINE ACCOUNT" means the Canadian Dollar operating bank account
maintained by QWI with the applicable Swingline Lender for purposes of the
Swingline Loans;
-11-
"CDN. PRIME RATE" in effect on any day means (i) with respect to Cdn. Prime Rate
Loans which are not Swingline Loans, the rate of interest per annum that is the
greater of (a) the rate of interest publicly announced by Royal from time to
time as its "prime rate", being its reference rate then in effect for
determining interest rates on commercial loans made in Canadian Dollars in
Canada by Royal (the "ROYAL PRIME RATE"), and (b) the annual rate of interest
equal to the sum of the CDOR Rate for bankers' acceptances having a term of one
month plus 1/2 of 1% (the "BACDOR RATE"), and (ii) with respect to Cdn. Prime
Rate Loans which are Swingline Loans, the rate of interest per annum that is the
greater of (a) the rate of interest publicly announced by the applicable
Swingline Lender from time to time as its "prime rate" being its reference rate
then in effect for determining interest rates on commercial loans made in
Canadian Dollars in Canada by such Swingline Lender, or if such rate is not
available, the Royal Prime Rate and (b) the BACDOR Rate, in each case, as
adjusted from time to time without notice to the Borrowers;
"CDN. PRIME RATE LOAN" or "CDN. PRIME RATE LOANS" means at any given time, any
Loan or Loans or any portion thereof, which QWI has elected, pursuant to Section
3.7 or 3.12, to denominate in Canadian Dollars, or any other amount which,
pursuant to the terms of this Agreement, has been deemed to be converted to a
Loan denominated in Canadian Dollars and on which QWI must pay interest on the
basis of the Cdn. Prime Rate in accordance with Section 4.1.1;
"CDN QUALIFIED LENDER" means with respect to a Borrowing by QWI, a Lender which
(i) is not a non-resident person of Canada for purposes of the ITA, or (ii) is
an "authorized foreign bank" within the meaning of the ITA, but only in respect
of an amount payable with respect to any Borrowing or portion thereof that is
paid or credited in respect of its "Canadian banking business" within the
meaning of the ITA;
"CDOR RATE" means, on any day, the rate per annum which is the rate determined
by the Administrative Agent as being the arithmetic average (rounded to the
nearest one-thousandth of 1%, with five ten-thousandths of 1% being rounded
upwards) of the rates applicable to Canadian Dollar bankers' acceptances for the
appropriate term displayed and identified on the "Reuters Screen CDOR Page" (as
defined in the International Swaps and Derivatives Association, Inc.
definitions, as modified and amended from time to time) at approximately 10:00
a.m. on such day, or if such day is not a Business Day then on the immediately
preceding Business Day (as adjusted by the Administrative Agent after 10:00 a.m.
to reflect any error in a posted rate of interest or in the posted average
annual rate of interest); provided, however, if such rates do not appear on the
Reuters Screen CDOR Page as contemplated, then the CDOR Rate on any day shall be
the discount rate applicable to Canadian Dollar bankers' acceptances for the
appropriate term of the Administrative Agent (in its capacity as Lender) at
approximately 10:00 a.m. on such day, or if such day is not a Business Day, then
on the immediately preceding Business Day;
"CDS" has the meaning ascribed to such expression in Section 7.1;
"CIBC" means Canadian Imperial Bank of Commerce and its successors and assigns;
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"CIBC'S SWINGLINE A COMMITMENT" means US$10,000,000 or its Equivalent Amount in
Canadian Dollars;
"CIBC'S SWINGLINE B COMMITMENT" means US$10,000,000 or its Equivalent Amount in
Canadian Dollars;
"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,
Facility B Commitment and Facility C 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;
"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 applicable to column 5 on
the matrix set forth in Section 4.4;
"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 a Borrower to the
Administrative Agent pursuant to Section 3.12 as being a date on which such
Borrower has elected to convert a Borrowing already outstanding hereunder into
another basis of Borrowing; or if a Borrower is deemed to have converted a
Borrowing into another basis of Borrowing hereunder pursuant to any of Sections
5.1.3, 5.2, 6.1.3, 6.2, 7.2.5, 7.2.7 or 9.7, 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;
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"COUNSEL" means, with regard to the Administrative Agent or a Lender, a
barrister or solicitor or firm of barristers or solicitors retained or employed
by the Administrative Agent or such Lender, as the case may be, and with regard
to a Loan Party, a barrister or solicitor or firm of barristers or solicitors
retained or employed by such Loan Party and acceptable to the Administrative
Agent;
"CREDIT FACILITIES" means, collectively, the Facility A, the Facility B and the
Facility C and includes, without limitation, the Swingline Subfacilities, 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 20.1;
"DISCOUNT" with respect to any issue of Bankers' Acceptances with the same
maturity date, means the amount determined by the Administrative Agent by which
the face value of such Bankers' Acceptances exceeds the Discounted Proceeds of
such Bankers' Acceptances;
"DISCOUNT NOTE" means a non-interest bearing promissory note of QWI denominated
in Canadian Dollars, issued by QWI to a Non-BA Lender, substantially in the form
of Schedule 1.1.2;
"DISCOUNT RATE" means, with respect to an issue of Bankers' Acceptances with the
same maturity date:
(a) in the case of a Lender which is a Schedule I Bank, the CDOR Rate on the
date of issue and acceptance of such Bankers' Acceptances, and
(b) in the case of a Lender which is a Schedule II Bank, a Schedule III Bank or
a Non-BA Lender, the rate determined by the Administrative Agent as being
the arithmetic average (rounded to the nearest one-thousandth of 1%, with
five ten-thousandths of 1% being rounded upwards) of the actual discount
rates, calculated on the basis of a year of 365 days, of the Schedule II
and Schedule III Reference Banks established in accordance with their
normal practices at or about 10:00 a.m. on the date of issue and acceptance
of such Bankers' Acceptances, for bankers' acceptances (having a comparable
face value and an identical maturity date to the face value and maturity
date of the Bankers' Acceptances forming part of such issue) to be
respectively accepted by each Schedule II and Schedule III Reference Bank
provided that such rate shall not exceed the actual discount rate
applicable to the Bankers' Acceptances forming part of such issue accepted
by the Administrative Agent (in its capacity as Lender) plus 1/10 of 1% per
annum;
"DISCOUNTED PROCEEDS" means, in respect of any Bankers' Acceptance to be
accepted by a Lender on any day (including Discount Notes issued to a Non-BA
Lender in lieu thereof pursuant to this Agreement), an amount (rounded to the
nearest whole cent, and with one-half
-14-
of one cent being rounded up) calculated by the Administrative Agent on such day
by multiplying:
(a) the face amount of such Bankers' Acceptance, by
(b) the price, where the price is determined by dividing one by the sum of one
plus the product of:
(i) the Discount Rate (expressed as a decimal), and
(ii) a fraction, the numerator of which is the number of days in the term
of such Bankers' Acceptance and the denominator of which is 365,
with the price as so determined being rounded up or down to the fifth
decimal place and .000005 being rounded up;
"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;
"DRAWDOWN DATE" means a Business Day notified by a Borrower to the
Administrative Agent pursuant to Section 3.7 as being a date on which such
Borrower has requested a Borrowing to be made available to such Borrower and
includes, without limitation, an Issue Date, as applicable or, with respect to
Swingline Loans made under the Swingline Subfacility A or the Swingline
Subfacility B, a date on which a Borrower makes a Borrowing without such notice
by drawing against the applicable Swingline Account;
"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;
"EFFECTIVE DATE" means December 15, 2005 being the date upon which all
conditions precedent set forth in Section 11.4 are met to the complete
satisfaction of the Administrative Agent and the Lenders, acting reasonably;
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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 QWI 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;
"EQUIVALENT AMOUNT" means on any given day, as applicable, the amount of a
currency (the "FIRST CURRENCY", being US Dollars, Canadian Dollars, Euros, or
another currency as applicable) into which another currency (the "OTHER
CURRENCY", being US Dollars, Canadian Dollars, Euros, or another currency as
applicable) may be converted using for the purposes of such conversion the rate
at which such Other Currency may be converted into the First Currency, at the
Bank of Canada's noon spot rate, or, if such rate is not available, the rate
determined by the Administrative Agent, in accordance with its standard
practices as being the rate at which the Administrative Agent, at the relevant
time, considers that it may sell the Other Currency to obtain the First
Currency;
"ERISA" means the Employee Retirement Income Security Act of 1974 of the United
States of America, as amended from time to time, and the regulations promulgated
and rulings issued thereunder;
-16-
"ERISA AFFILIATE" means any Person that, for purposes of Title IV of ERISA, is a
member of (a) a controlled group of corporations, group of trades or businesses
under common control, or an affiliated service group, within the meaning of
Section 414(b), (c) or (m) of the Internal Revenue Code, of which QWI or any
Restricted Entity is a member, or (b) any group treated as a single employer
under Section 414(o) of the Internal Revenue Code of which QWI or any Restricted
Entity is a member;
"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 Plan of a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, 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 is
submitted under Section 303 of ERISA or Section 412 of the Internal Revenue
Code,
(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 QWI or any Restricted Entity
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA,
(e) the withdrawal by QWI 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;
-17-
"EURIBOR" means with respect to a Euro Loan during the relevant Euro 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 248 (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.
(Brussels, Belgium time) on the Interest Determination Date for Euro
deposits for a period comparable to such Euro Interest Period, and if
different rates are quoted for Euro 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 Euro Loan, or
(b) if for any reason the Telerate rates are not available in respect of the
relevant Euro Interest Period, "EURIBOR" for such Euro Loan during the
relevant Euro 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
interbank Euro market for delivery on the first day of the relative Euro
Interest Period for a period equal to such Euro Interest Period based on
the number of days comprised therein, deposits in Euros of amounts
comparable to its (in its capacity as Lender) Lender's Proportion of such
Euro Loan (and of any other Euro Loan of the Administrative Agent in its
said capacity having a Euro Interest Period of the same duration and
commencing on the same date) to be outstanding under this Agreement during
such Euro Interest Period, at or about 11:00 a.m. (Brussels, Belgium time)
on the applicable Interest Determination Date;
"EURO" or "EUROS" or "E" means the single currency of the member states of the
European Union that have adopted or will adopt the Euro as its currency in
accordance with legislation of the European Union relating to European Economic
and Monetary Union;
"EURO INTEREST DATE" means the last day of each Euro Interest Period or, if a
Borrower selects a Euro Interest Period longer than three months, it shall mean
the date falling every three months after the beginning of such Euro Interest
Period and the last day of the Euro Interest Period so selected;
"EURO INTEREST PERIOD" means, with respect to a Euro Loan, the initial period of
approximately one month, two months, three months, six months or up to one year
(as selected by a Borrower and notified to the Administrative Agent pursuant to
Section 3.7 or 3.12, 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 Euro 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
such Borrower for such Euro Loan and notified to the Administrative Agent
pursuant to Section 6.1), but in all cases expiring no later than the Facility A
Maturity Date in the case of a Euro Loan drawn under the Facility A, the
-18-
Facility B Maturity Date in the case of a Euro Loan drawn under the Facility B
and the Facility C Maturity Date in the case of a Euro Loan drawn under the
Facility C;
"EURO LIBOR" means with respect to a Euro Loan during the relevant Euro 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 Euro deposits
for a period comparable to such Euro Interest Period, and if different
rates are quoted for Euro 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 Euro Loan, or
(b) if for any reason the Telerate rates are unavailable to determine the rate
applicable to a Euro Loan, "EURO LIBOR" for such Euro Loan during the
relevant Euro 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 in Euros with leading banks in
the London interbank Euro market for a period comparable to such Euro
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 Euro Loan, or
(c) if for any reason neither the Telerate rates nor the Reuters Monitor Screen
rates are available in respect of the relevant Euro Interest Period, "EURO
LIBOR" for such Euro Loan during the relevant Euro 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 Euro market for delivery on the first day of
the relative Euro Interest Period for a period equal to such Euro Interest
Period based on the number of days comprised therein, deposits in Euros of
amounts comparable to its (in its capacity as Lender) Lender's Proportion
of such Euro Loan (and of any other Euro Loan of the Administrative Agent
in its said capacity having a Euro Interest Period of the same duration and
commencing on the same date) to be outstanding under this Agreement during
such Euro Interest Period, at or about 11:00 a.m. (London, England time) on
the applicable Interest Determination Date, or
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(d) if Euribor has been elected by QWI as the basis of calculation of the rate
of interest to be applicable to Euro Loans in accordance with the
provisions of Section 6.3, then "EURO LIBOR" shall mean Euribor as and from
the applicable dates set forth in such Section 6.3;
"EURO LOAN" or "EURO LOANS" means, at any given time, any Loan or Loans or any
portion thereof which a Borrower has elected pursuant to Section 3.7, 3.12 or
6.1 to denominate in Euros and on which the Borrower must pay interest on a Euro
Libor basis in accordance with Section 4.1.5;
"EURO RATE RESERVE PERCENTAGE" for any Euro Interest Period for all Euro Loans
comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Euro 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 Euro Loans is determined) having a term equal to such Euro
Interest Period;
"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
15.1;
"EXCLUDED TAXES" means any tax on the overall net income of any Lender
(including any branch profits tax or any similar tax on net income from carrying
on business in a particular jurisdiction) and any capital or franchise tax
payable by such Lender;
"EXISTING ACTIONS" means any actions, suits, investigations, litigation or
proceedings with respect to QWI and its Subsidiaries disclosed in the Public
Information;
"EXPOSURE" means, with respect to any Lender, at any time, without duplication,
the sum in US$ of (a) the aggregate principal amount of Loans (in US$ or the
Equivalent Amount in US$ if such Loans are outstanding in any other currency) of
such Lender under a particular Credit Facility including without limitation,
such Lender's Lender's Proportion of the Aggregate Amount of the Swingline Loans
then outstanding under a particular Credit Facility, (b) such Lender's Lender's
Proportion of the Aggregate Face Amount of all Letters of Credit outstanding
under a particular Credit Facility and (c) the Equivalent Amount in US$ of the
aggregate face amount of all Bankers' Acceptances issued by such Lender under a
particular Credit Facility;
"FACE AMOUNT" of any Letter of Credit means the maximum amount from time to time
available to be drawn thereunder by the beneficiary thereof, determined without
regard to whether any conditions to drawing could then be met;
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"FACILITY A" means the extendible revolving credit facility made available to
QWI and QWUSA pursuant to Section 3.2 during the Facility A Revolving Period and
includes the Swingline Subfacility A;
"FACILITY A COMMITMENT" means, with respect to each Facility A Lender, the
obligation of such Lender to make available to QWI and QWUSA, Borrowings under
the Facility A in an aggregate principal or face amount at any one time
outstanding of up to, but not exceeding, its Lender's Proportion of the Facility
A Total Commitment;
"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;
"FACILITY A MATURITY DATE" means the date falling on the last day of the
Facility A Revolving Period;
"FACILITY A REVOLVING PERIOD" means the period commencing on the Effective Date
and ending on January 30, 2009 unless such period is extended in accordance with
Section 3.10.1, in which case such period shall include any additional one-year
extension(s) consented to and computed in accordance with such Section;
"FACILITY A TOTAL COMMITMENT" means US$250,000,000 or the Equivalent Amount in
Canadian Dollars, or, up to US$75,000,000, in Euros, or any combination thereof,
and includes the Swingline A Commitment and the LC A Commitment, to the extent
not cancelled, reduced or otherwise terminated as herein provided;
"FACILITY B" means the extendible revolving credit facility made available to
QWI and QWUSA pursuant to Section 3.3 during the Facility B Revolving Period and
includes the Swingline Subfacility B;
"FACILITY B COMMITMENT" means, with respect to each Facility B Lender, the
obligation of such Lender to make available to QWI and QWUSA, Borrowings under
the Facility B in an aggregate principal or face amount at any one time
outstanding of up to, but not exceeding, its Lender's Proportion of the Facility
B Total Commitment;
"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;
"FACILITY B MATURITY DATE" means the date falling on the last day of the
Facility B Revolving Period;
"FACILITY B REVOLVING PERIOD" means the period commencing on the Effective Date
and ending on January 30, 2009 unless such period is extended in accordance with
Section 3.10.2, in which case such period shall include any additional one-year
extension(s) consented to and computed in accordance with such Section;
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"FACILITY B TOTAL COMMITMENT" means US$500,000,000 or the Equivalent Amount in
Canadian Dollars, or, up to US$200,000,000, the Equivalent Amount in Euros, or
any combination thereof and includes the Swingline B Commitment, the whole to
the extent not otherwise cancelled, reduced or terminated as herein provided;
"FACILITY C" means the extendible revolving credit facility made available to
QWUSA pursuant to Section 3.4 during the Facility C Revolving Period and
includes the Swingline Subfacility C;
"FACILITY C COMMITMENT" means with respect to each Facility C Lender, the
obligation of such Lender to make available to QWUSA, Borrowings under the
Facility C in an aggregate principal or face amount at one time outstanding of
up to, but not exceeding, its Lender's Proportion of the Facility C Total
Commitment;
"FACILITY C LENDERS" means the collective reference to each Lender identified on
Schedule 1.1.1 as having a Facility C Commitment, and "FACILITY C LENDER" means
any such Lender;
"FACILITY C MATURITY DATE" means the date falling on the last day of the
Facility C Revolving Period;
"FACILITY C REVOLVING PERIOD" means the period commencing on the Effective Date
and ending on January 30, 2009 unless such period is extended in accordance with
Section 3.10.3, in which case such period shall include any additional one-year
extension(s) consented to and computed in accordance with such Section;
"FACILITY C TOTAL COMMITMENT" means US$250,000,000 or, up to US$75,000,000, the
Equivalent Amount in Euros, or any combination thereof, includes the Swingline C
Commitment and the LC C Commitment, the whole 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;
"FFE RATE" has the meaning ascribed thereto in the definition of US Base Rate;
"FINAL MATURITY DATE" means the latest to occur of the Facility A Maturity Date,
the Facility B Maturity Date and the Facility C Maturity Date;
"FINANCE PARTIES" means collectively each of the Lenders, the Arranger and the
Administrative Agent and "FINANCE PARTY" means any one of them;
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"FINANCIAL COMPANY RESTRICTED ENTITY" means any Restricted Entity which is a
special purpose finance Subsidiary wholly-owned directly or indirectly by QWI
whose activity is limited to raising private and/or public Indebtedness,
provided that the net proceeds from such private or public Indebtedness are
remitted to QWI or QWUSA and provided further that if less than all the net
proceeds of all such Indebtedness are remitted to QWI or QWUSA, then that
portion of such Indebtedness which is not so remitted shall be deemed to
constitute Indebtedness of an Operating Restricted Entity for the purposes of
Section 12.2.4;
"FRONTED LETTER OF CREDIT" has the meaning set forth in Section 8.1;
"FRONTING FEE" means the fee referred to in Section 8.8 (2);
"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;
"GOVERNMENTAL AUTHORITY" means any government or any agency, bureau, board,
commission, court, department, official, tribunal or other instrumentality of
any government, whether federal, state, provincial, territorial or local,
domestic or foreign, that has, in each case, jurisdiction over the matter in
question;
"GRANTING LENDER" has the meaning set forth in Section 19.3(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;
"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,
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(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;
"INCREASED ACCEPTANCE FEE" has the meaning ascribed to such expression in
Section 4.2.3;
"INCREASED ISSUANCE FEE" has the meaning ascribed thereto in Section 4.2.5;
"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 (other than amounts
drawn or drawable under letters of credit to the extent that such amounts
have been Cash Collateralized by such Person or for its benefit by any
other Person) 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;
-24-
"INDEMNITEES" has the meaning set forth in Section 13.2;
"INTEREST DATE" means the first day of each month;
"INTEREST DETERMINATION DATE" means with respect to (i) 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 and (ii) a Euro Loan, the date which is two TARGET
Business Days prior to the first day of the Euro Interest Period applicable to
such Euro Loan or in each case such other day on which it is market practice in
the relevant interbank market for leading banks to give quotations for deposits
in the relevant currency for delivery on the first day of the Libor Interest
Period or Euro Interest Period, as the case may be, 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, but excluding (other than for the purposes of the
definition of EBITDA) any expense or charge related to the issuance of debt
described in paragraph 11.3(i);
"INTEREST PAYMENT DATE" means with respect to a Cdn. Prime Rate Loan, a US Base
Rate Loan and 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;
"ISP98" means the International Standard Practices ISP98, as published by the
International Chamber of Commerce and in effect from time to time;
"ISSUANCE FEE" means the fee referred to in Section 8.8 (1);
"ISSUANCE FEE REFUND" has the meaning ascribed thereto in Section 4.2.4;
"ISSUE DATE" means the date of issuance of a Letter of Credit, which date must
be a Business Day;
"ISSUING BANK" means the issuer of Fronted Letters of Credit on the basis that
it is "fronting" for other Lenders under the applicable Credit Facility and not
on the basis that it is the attorney of the other Lenders to sign Letters of
Credit on their behalf, and for this purpose means (i) for Fronted Letters of
Credit issued at the request of QWI, any Cdn Qualified Lender or an Affiliate
thereof designated by QWI that accepts to be an Issuing Bank hereunder and so
notifies the
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Administrative Agent and (ii) for Fronted Letters of Credit issued at the
request of QWUSA, any US Qualified Lender or an Affiliate thereof designated by
QWUSA that accepts to be an Issuing Bank hereunder and so notifies the
Administrative Agent. The Issuing Bank may, upon obtaining the consent of the
proposed beneficiary of a Letter of Credit, arrange for such Letter of Credit to
be issued by Affiliates of the Issuing Bank provided that such arrangements
shall not increase the costs related to such issuance (including any obligation
to pay withholding tax) and shall not have any adverse financial effect on the
relevant Borrower, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to such Letter of Credit issued by such Affiliate;
"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 21.1;
"JUDGMENT CURRENCY" means judgment currency as defined in Section 21.1;
"LC A COMMITMENT" means US$80,000,000 or the Equivalent Amount in any other
currency acceptable to the Applicable Lenders;
"LC AGGREGATE COMMITMENT" means US$100,000,000 or the Equivalent Amount in any
other currency acceptable to the Applicable Lenders;
"LC C COMMITMENT" means US$20,000,000 or the Equivalent Amount in any other
currency acceptable to the Applicable Lenders;
"LC COMMITMENT" means any of the LC A Commitment or LC C Commitment;
"LC ISSUER" has the meaning set forth in Section 8.1 and "LC ISSUERS" is the
collective reference to all LC Issuers;
"LC TERM" has the meaning ascribed thereto in Section 4.2.4;
"LENDERS" means all of the Facility A Lenders, the Facility B Lenders and the
Facility C Lenders, and includes the Swingline Lenders and the LC Issuers in
such capacity, and, in each case, includes their respective successors and
assigns and "LENDER" means any one of them;
"LENDER'S PROPORTION" means, at any time:
(a) in respect of any Credit Facility, as to any Lender, the proportion borne
by the Commitment of such Lender under such Credit Facility to the Facility
A Total Commitment, the Facility B Total Commitment or the Facility C Total
Commitment, as the case may be, as it may be adjusted from time to time as
a result of prepayments or cancellations, or further to an assignment
pursuant to Section 19.3, and
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(b) in respect of the Aggregate Commitment, as to any Lender, the proportion
borne by the Commitments of such Lender in respect of all Credit Facilities
to the Aggregate Commitment, as it may be adjusted from time to time as a
result of prepayments or cancellations, or further to any assignment
pursuant to Section 19.3;
"LETTERS OF CREDIT" is the collective reference to any outstanding letter of
guarantee or any documentary, stand-by or other letter of credit, and all
renewals and substitutions therefor, denominated in Cdn$, US$ or any other
currency acceptable to the Applicable Lenders, issued from time to time pursuant
to the provisions hereof, for the account of a Borrower under a Credit Facility
and includes the Fronted Letters of Credit issued by the applicable Issuing Bank
on behalf of the Applicable Lenders and the POA Letters of Credit issued by the
Applicable Lenders under the applicable Credit Facility on a several basis and
"LETTER OF CREDIT" means any Letter of Credit;
"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),
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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 a
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 or of approximately 10 to 180 days (in each case as selected by a Borrower
and notified to the Administrative Agent pursuant to Section 3.7 or 3.12, 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 or of approximately 10 to 180 days (in each case as
selected by such 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 in the case of a Libor Loan drawn under the Facility A,
the Facility B Maturity Date in the case of a Libor Loan drawn under the
Facility B and the Facility C Maturity Date in the case of a Libor Loan drawn
under the Facility C;
"LIBOR LOAN" or "LIBOR LOANS" means, at any given time, any Loan or Loans or any
portion thereof which a Borrower has elected pursuant to Section 3.7, 3.12 or
5.1 to denominate in US Dollars and on which such Borrower must pay interest on
a Libor basis in accordance with Section 4.1.4;
"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;
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"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 9.9;
"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 (including without limitation any Letter of Credit and document entered
into in connection with the Letters of Credit), as amended, restated,
supplemented or otherwise modified from time to time and "LOAN DOCUMENT" means
any of the foregoing individually;
"LOAN PARTIES" means, collectively, the Borrowers and QPHC and "LOAN PARTY"
means any one of them;
"LOAN PARTY GUARANTEE" means a guarantee executed and delivered by each of QWUSA
and QPHC, as required under this Agreement, substantially in the form or to the
effect of Schedule 1.1.4 of the Original Credit Agreement, 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, a Borrower under the Credit Facilities and
includes, without limitation, the Swingline Loans made by the Swingline Lenders;
and "LOAN" means any one of them;
"LOSSES" shall have the meaning set forth in Section 13.2;
"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(LY) ADVERSE EFFECT" means:
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(a) any material adverse change in the assets, properties, operations,
financial, condition or business prospects of QWI and the Restricted
Entities, taken as a whole, or
(b) any material impairment:
(i) in the ability of any Borrower to timely pay any amounts due under the
Loan Documents;
(ii) in the ability of any Borrower to fulfill 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;
"MOODY'S" means Moody's Investors Services, Inc.;
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which QWI or any Restricted Entity or any ERISA
Affiliate is obligated to make, or is accruing an obligation to make,
contributions at the time in question, 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) at the time in question is maintained for employees of QWI or any
Restricted Entity or any ERISA Affiliate and at least one Person other than
QWI or any such Restricted Entity or ERISA Affiliates or
(b) was so maintained and in respect of which QWI 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 12.2.4;
"NON-BA LENDER" means a Lender which is a "foreign bank", other than an
"authorized foreign bank", as such terms are defined in the Bank Act (Canada),
as it may be amended, or which cannot or does not as a matter of policy accept
bankers' acceptances;
"NON-BANK LENDER" 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;
"NON-CONSENTING BANK" has the meaning ascribed to such expression in Sections
3.10.1, 3.10.2 and 3.10.3;
"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
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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 QWI 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 QWI or any of its Restricted Entities or against any third
party having recourse against QWI or any of its Restricted Entities in respect
of such debt or liability or, (ii) a creditor to whom is owed by QWI or any of
its Restricted Entities, Indebtedness for borrowed money to finance the Start-up
Costs of a Project carried out by QWI 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 QWI, any of its Restricted Entities
or by a Non-Recourse Subsidiary or a Project Vehicle and (ii) due or otherwise
owing by QWI or such Restricted Entity or Non-Recourse Subsidiary or Project
Vehicle to a creditor being a Non-Recourse Creditor by reason of QWI 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 QWI 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
(iv) neither QWI 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 QWI or any of its Restricted
Entities in the Project
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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 QWI, directly or indirectly, through a
Restricted Entity, and (b) each Subsidiary of a Non-Restricted Entity;
"NOTICE OF BORROWING" means a notice requesting a Borrowing hereunder issued
pursuant to, inter alia, Section 3.7, Section 8.4 or Section 8.7;
"OPERATING RESTRICTED ENTITY" means any Restricted Entity other than QWUSA, QPHC
and a Financial Company Restricted Entity;
"OUTSTANDING SWINGLINE AMOUNT" has the meaning set forth in Section 3.5.2;
"PARTICIPANT" shall have the meaning set forth in Section 19.3(a);
"PBGC" means the Pension Benefit Guaranty Corporation of the United States (or
any successor thereto);
"PERMITTED ENCUMBRANCES" means the encumbrances on assets of the Borrowers 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;
"POA LETTER OF CREDIT" has the meaning set forth in Section 8.1;
"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 QWI or any of its Restricted
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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 QWI 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 QWI or
any Restricted Entity;
"PUBLIC INFORMATION" means the most recent Form 40-F issued by QWI and
information filed by QWI under Form 6-K in each case prior to the date of
execution of this Amended and Restated Credit Agreement;
"QPHC" means Quebecor Printing Holding Company, a wholly-owned Subsidiary of QWI
and the sole shareholder of all the issued and outstanding Capital Stock of
QWUSA other than Redeemable Preferred Shares, if any;
"QWI'S CONSOLIDATED NET TANGIBLE ASSETS" means on a Consolidated basis, at any
time, the book value of all assets of QWI and its Subsidiaries less (i) current
liabilities and (ii) goodwill and all other intangible assets, in each case, as
appearing on QWI's consolidated financial statements and determined in
accordance with GAAP;
"QWI'S DEBT" means, without duplication, the aggregate of all Indebtedness of
QWI and its Subsidiaries, determined on a Consolidated basis, in accordance with
Canadian GAAP;
"QWI'S DEBT TO EBITDA RATIO" means at any time, the ratio, determined on a
Consolidated basis, and calculated as at the end of each fiscal quarter of QWI,
of (y) QWI's Debt to (z) the EBITDA of QWI and its Subsidiaries during such
fiscal quarter and the three fiscal quarters immediately preceding such fiscal
quarter;
"QWI'S EQUITY" means, without duplication, the sum of shareholders' equity of
QWI and non-controlling interests of QWI, 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
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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, 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;
"REDUCED ACCEPTANCE FEE" has the meaning ascribed to such expression in Section
4.2.2;
"REDUCED ISSUANCE FEE" has the meaning ascribed thereto in Section 4.2.4;
"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 PBGC
is waived under applicable regulations), 4068(e) 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 QWI (including QWUSA, QPHC, any
Operating Restricted Entity and any Financial Company Restricted Entity);
"ROYAL" means Royal Bank of Canada and its successors and permitted assigns;
"ROYAL'S SWINGLINE A COMMITMENT" means US$20,000,000 or its Equivalent Amount in
Canadian Dollars;
"ROYAL'S SWINGLINE B COMMITMENT" means US$20,000,000 or its Equivalent Amount in
Canadian Dollars;
"SCHEDULE I BANK" means any bank named on Schedule I to the Bank Act (Canada);
"SCHEDULE II BANK" means any bank named on Schedule II to the Bank Act (Canada);
"SCHEDULE III BANK" means any bank named on Schedule III to the Bank Act
(Canada);
"SCHEDULE II AND SCHEDULE III REFERENCE BANKS" means ABN AMRO Bank N.V., Canada
Branch and BNP Paribas (Canada) and, as the case may be, any other Lender which
is a
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Schedule II Bank or a Schedule III Bank, as the case may be, appointed as such
in replacement of one of the said Lenders pursuant to Section 18.27;
"SCHEDULES" means the schedules to this Agreement as the same may be amended,
modified, supplemented or restated from time to time;
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in Section 4001
(a) (15) of ERISA, that
(a) at the time in question is maintained for employees of QWI or any
Restricted Entity or ERISA Affiliate and no Person other than QWI or any
Restricted Entity and its ERISA Affiliates, or
(b) was so maintained and in respect of which QWI 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;
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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;
"SWINGLINE ACCOUNT" means either a Canadian Dollar Swingline Account or a US
Dollar Swingline Account maintained by QWI or QWUSA, as applicable, with the
applicable Swingline Lender at the applicable Swingline Branch of Account
pursuant to Section 9.10 and "SWINGLINE ACCOUNTS" is the collective reference to
all such accounts;
"SWINGLINE A COMMITMENT" means collectively CIBC's Swingline A Commitment and
Royal's Swingline A Commitment;
"SWINGLINE A LENDER" means for Swingline Loans made to QWI, any of CIBC and
Royal, and includes their respective successors and assigns, and "SWINGLINE A
LENDERS" is the collective reference to all Swingline A Lenders;
"SWINGLINE BRANCH OF ACCOUNT" means the branch of the applicable Swingline
Lender located at the address specified by the applicable Swingline Lender to
the applicable Borrower and the Administrative Agent from time to time;
"SWINGLINE B COMMITMENT" means collectively CIBC's Swingline B Commitment and
Royal's Swingline B Commitment;
"SWINGLINE B LENDER" means for Swingline Loans made to QWI, any of CIBC and
Royal, and includes their respective successors and assigns, and "SWINGLINE B
LENDERS" is the collective reference to all Swingline B Lenders;
"SWINGLINE C COMMITMENT" has the meaning set forth in Section 3.4;
"SWINGLINE C LENDER" means Bank of America, N.A., and includes its successors
and assigns;
"SWINGLINE COMMITMENT" means US$75,000,000 or the Equivalent Amount in Canadian
Dollars;
"SWINGLINE LENDER COMMITMENT" means, as applicable, Royal's Swingline A
Commitment, Royal's Swingline B Commitment, CIBC's Swingline A Commitment,
CIBC's Swingline B Commitment or the Swingline C Commitment;
"SWINGLINE LENDERS" means collectively the Swingline A Lenders, the Swingline B
Lenders and the Swingline C LENDER and "SWINGLINE LENDER" means any one of the
Swingline Lenders;
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"SWINGLINE LOAN" means, as at any time, any Loan advanced to a Borrower by a
Swingline Lender pursuant to the terms hereof applicable to the Swingline
Subfacilities and "SWINGLINE LOANS" is the collective reference to all such
Loans;
"SWINGLINE REPAYMENT EVENT" means, in respect of a Swingline Loan made by a
particular Swingline Lender, any one of the following events:
(a) the occurrence and continuance of a Default or of an Event of Default;
(b) the Aggregate Amount of the Swingline Loans exceeds the Swingline
Commitment; or
(c) the Aggregate Amount of the Swingline Loans made by such Swingline Lender
outstanding under a Swingline Subfacility exceeds such Lender's Swingline
Lender Commitment under such Swingline Subfacility; or
(d) if the Aggregate Amount of the Swingline Loans made by such Swingline
Lender outstanding under Swingline Subfacility A at the end of each
calendar week exceeds US$7,500,000, each following Monday, or if a
particular Monday is not a Business Day, the next following Business Day;
or
(e) if the Aggregate Amount of the Swingline Loans made by such Swingline
Lender outstanding under Swingline Subfacility B at the end of each
calendar week exceeds US$7,500,000, each following Monday, or if a
particular Monday is not a Business Day, the next following Business Day;
or
(f) if the Aggregate Amount of the Swingline Loans made by such Swingline
Lender outstanding under Swingline Subfacility C at the end of each
calendar week exceeds US$5,000,000, each following Monday, or if a
particular Monday is not a Business Day, the next following Business Day;
or
(g) if the Aggregate Amount of the Swingline Loans made by the Swingline
Lenders outstanding under the Swingline Subfacilities exceeds at the end of
each calendar week US$35,000,000, each following Monday, or if a particular
Monday is not a Business Day, the next following Business Day; or
(h) if the Commitments of the Lenders under a Credit Facility are terminated;
or
(i) five Business Days prior to the Facility A Maturity Date, the Facility B
Maturity Date or the Facility C Maturity Date, as applicable;
"SWINGLINE SUBFACILITIES" is the collective reference to Swingline Subfacility
A, Swingline Subfacility B and Swingline Subfacility C and "SWINGLINE
SUBFACILITY" means anyone of them;
"SWINGLINE SUBFACILITY A" means that portion of Facility A referred to in
Section 3.2;
"SWINGLINE SUBFACILITY B" means that portion of Facility B referred to in
Section 3.3;
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"SWINGLINE SUBFACILITY C" means that portion of Facility C referred to in
Section 3.4;
"TARGET BUSINESS DAY" means any day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is open;
"TAX" includes any and "TAXES" 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;
"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;
"UNIFORM CUSTOMS" means the Uniform Customs and Practices for Documentary
Credits, as published by the International Chamber of Commerce and its effect
from time to time;
"UNITED STATES PERSON" means a corporation, partnership, limited liability
company 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);
"USA PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act)
Act of 2001, as the same may be amended from time to time;
"US BASE RATE" in effect on any one day, means (i) with respect to US Base Rate
Loans which are not Swingline Loans, the rate of interest per annum that is the
greater of (a) the rate of interest publicly announced by Royal from time to
time as its "US BASE RATE", being its reference rate then in effect for
determining interest rates on commercial loans in US Dollars made in Canada by
Royal (the "ROYAL BASE RATE"), 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
(the "FFE Rate") and (ii) with respect to US Base Rate Loans which are Swingline
Loans, the rate of interest per annum that is the greater of (a) the rate of
interest publicly announced by the applicable Swingline Lender from time to time
as its "US Base Rate", being its reference rate then in effect for determining
interest rates on commercial loans in US Dollars made in Canada by such
Swingline Lender or, if such rate is not available, the Royal Base Rate and (b)
the FFE Rate, in each case as adjusted from time to time without notice to the
Borrowers;
"US BASE RATE LOAN" or "US BASE RATE LOANS" means at any given time, any Loan or
Loans, or any portion thereof, which QWI has elected, pursuant to Section 3.7 or
3.12, to denominate in US Dollars, or any other amount which, pursuant to the
terms of this Agreement, has been
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deemed to be converted to a Loan denominated in US Dollars, and on which QWI
must pay interest on the basis of the US Base Rate in accordance with Section
4.1.2;
"US DOLLAR SWINGLINE ACCOUNT" means a US Dollar operating bank account
maintained by a Borrower with the applicable Swingline Lender for purposes of
the Swingline Loans and "US DOLLAR SWINGLINE ACCOUNTS" refers collectively to
all such accounts;
"US DOLLARS", the symbol "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 World Capital GP and its permitted successors and assigns;
"USGP LOAN PARTY GUARANTEE" means the Loan Party Guarantee Agreement executed by
USGP (then known as Quebecor Printing Capital GP) in favor of the Administrative
Agent and dated as of April 28, 1999;
"US PRIME RATE" in effect on any day means (i) with respect to US Prime Rate
Loans which are not Swingline Loans, 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 (the "ROYAL US PRIME RATE"), and (b) the FFE Rate and (ii)
with respect to US Prime Rate Loans which are Swingline Loans, the rate of
interest per annum that is the greater of (a) the rate of interest determined by
the applicable Swingline Lender in its sole discretion as its US prime
commercial lending rate for such day for US Dollar loans made in the United
States, or if such rate is not available, the Royal US Prime Rate and (b) the
FFE Rate, in each case as adjusted from time to time without notice to the
Borrowers;
"US PRIME RATE LOAN" or "US PRIME RATE LOANS" means at any given time, any Loan
or Loans, or any portion thereof, which QWUSA has elected, pursuant to Section
3.7 or 3.12, to denominate in US Dollars, or any other amount which, pursuant to
the terms of this Agreement, has been deemed to be converted to a Loan
denominated in US Dollars, and on which QWUSA must pay interest on the basis of
the US Prime Rate in accordance with Section 4.1.3;
"US QUALIFIED LENDER" means, with respect to a Borrowing by QWUSA, a Lender
which (i) is a United States Person or (ii) is not a United States Person and
which is lending through a lending office in the United States or (iii) is a
"qualified resident" under an income tax convention between the United States
and the country of residence of such Lender that provides for a zero rate of
withholding on the payment of interest paid to such Lender and, with respect to
(ii) and (iii), which has properly completed and timely filed all such
documentation required under the Internal Revenue Code with QWUSA in order to
entitle such Lender to a complete exemption from withholdings of any and all
United States federal income taxes on all amounts of interest paid to such
Lender in connection with such Borrowing;
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"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 prior to its merger
with PAI, with it being the survivor corporation and its name change to QWUSA on
October 8, 1999 and its subsequent merger with Quebecor Printing (USA) Holdings
Inc., with it being the survivor corporation on August 3, 2001;
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.
1.3 REFERENCES
Unless the context otherwise requires or unless otherwise provided, all
references to Sections, subsections, Articles and Schedules are to Sections,
subsections, Articles of and Schedules to, this Agreement.
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.
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.
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1.6 TIME
Except where otherwise indicated in this Agreement, any reference to a time
shall mean local time in the City of Montreal, Province of Quebec.
1.7 RESTATED AGREEMENT
This Agreement amends and restates, as of the Effective Date, the Existing
Credit Agreement and all other verbal or oral agreements, understandings and
undertakings between the Lenders or any one thereof, the Administrative Agent,
the other Finance Parties, and the Borrowers or any one thereof relating to the
Credit Facilities and does not in any way effect novation of the Credit
Facilities or of any other obligation of the Borrowers under the Existing Credit
Agreement (except as amended herein).
1.8 REFERENCES TO THIS AGREEMENT
The expressions "hereto" or "hereunder" or "hereof" or "herein" or "this
Agreement" refer to the Existing Credit Agreement, including the Schedules
thereto, as amended and restated by this Amended and Restated Credit Agreement,
including the Schedules hereto, together with any further amendment, updating or
restatement made from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
Each Borrower represents and warrants (provided that each representation
and warranty contained hereinbelow when made by QWUSA shall apply only to QWUSA
and its Subsidiaries which are Restricted Entities) to each of the Finance
Parties that:
2.1.1 EXISTENCE; POWER: each of QWI and the Restricted Entities is a corporation
(or a partnership, as the case may be), which is duly incorporated (or
constituted, as applicable) and has the necessary corporate or partnership
power and authority to carry on its business 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 QWI, showing as of December 31, 2004
(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 QWI 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 QWI
or any Restricted Entity to (a) pay or make the maximum Dividends permitted
by law to its
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parent entity, (b) pay any obligation owed to QWI or any Restricted Entity,
(c) make any loans or advances to or Investments in QWI or any Restricted
Entity or (d) transfer any of its property or assets to QWI or any
Restricted Entity, 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 QWI, as determined in accordance with GAAP,
and (iii) any Loan Party, with respect to any restriction contained in
Section 1.11 of any Loan Party Guarantee issued hereunder. No Restricted
Entity has outstanding any securities convertible in Capital Stock (other
than 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;
2.1.3 AUTHORIZATION AND ENFORCEABILITY: each of this Agreement and the other
Loan Documents has been duly authorized by all necessary corporate or
partnership 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 X of
the Bank 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, or
(c) result in the creation of a Lien upon any of the properties, assets or
revenues of QWI 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 QWI or any Restricted Entity which
could, if determined
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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: QWI 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 QWI 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 acceptance of
any Bankers' Acceptance, nor the issuance of any Letter of Credit, nor
the application of the proceeds or repayment thereof by any Borrower,
nor the consummation of the other transactions contemplated 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, QWI and each Restricted Entity is in
compliance with all competition and anti-trust legislation, and no
Borrower 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 QWI, the Restricted Entities and their Environmental
Affiliates is in compliance with all applicable Environmental
Laws, (B) each of QWI, 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 QWI, 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 QWI, such Restricted Entity or such
Environmental Affiliate is out of compliance with any
Environmental Law and (D) to the best knowledge of QWI 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 QWI, 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
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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 QWI, 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
QWI, 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 QWI 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 such 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 QWI, shall be made to the knowledge of the
relevant Borrower, based on normal course of conduct with each such
Environmental Affiliate;
2.1.7 GOVERNMENTAL CONSENTS: QWI 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: QWI 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 QWI 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 QWI 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
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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 QWI for
the fiscal year ended December 31, 2004 which have been provided to the
Administrative Agent and the Lenders prior to the date of execution of this
Amended and Restated Credit Agreement are complete and correct and present
fairly, in accordance with Canadian GAAP, the Consolidated financial
position of QWI and its Subsidiaries at their respective dates and the
Consolidated results of operations, retained earnings and, as applicable,
changes in financial position or cash flows of QWI, for the respective
periods to which such statements relate; (b) except as disclosed or
reflected in such financial statements, as at December 31, 2004, neither
QWI 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 QWI and
the Restricted Entities taken as a whole; and (c) since December 31, 2004,
there has been no change in the Consolidated financial condition of QWI
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
12.1.7 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 QWI's then current independent certified public
accountants), the Consolidated financial position of QWI as at their
respective dates and the Consolidated results of operations, retained
earnings and cash flows of QWI, 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 QWI 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 QWI 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 QWI 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 Intentionally omitted
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, including, without limitation,
the Bankers'
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Acceptances and the Letters of Credit and any undertakings in respect of
the Bankers' Acceptances and the Letters of Credit;
2.1.14 OWNERSHIP OF PROPERTY; LIENS:
(a) QWI 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 Permitted Encumbrances and except
for other Liens permitted under Section 12.2.1 hereof;
(b) all material permits required to have been issued or appropriate to
enable the real and immovable property owned or leased by QWI or 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) QWI 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
Borrowers after due inquiry, no material product, process, method,
substance, part or other material currently sold by or employed by QWI
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
Borrowers after due inquiry, threatened any claim or litigation
against or affecting QWI 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 LABOUR MATTERS: there are no strikes or other labour disputes against QWI
or any Restricted Entity and pending or, to the best knowledge and belief
of each of the Borrowers after due inquiry, anticipated which could
reasonably be expected to have a Materially Adverse Effect and there are no
complaints or charges against QWI or any Restricted Entity pending or, to
the best of each Borrower'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
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employment or termination of employment by QWI 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
Borrowers to the Lenders or the Administrative Agent in respect of the
Borrowers 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 Borrowers 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 QWI and each Restricted Entity (including fiduciary and
funding obligations) required to be performed in connection with the
Canadian Pension Plans and the Canadian Benefit 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: QWI 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 of execution of the Original Credit Agreement
and as of the date of execution of this Amended and Restated Credit
Agreement and at all times in between and 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;
2.1.21 OFAC: Neither of the Borrowers, nor any Affiliates of the Borrowers (i)
is a Person whose property or interest in property is blocked or subject to
blocking pursuant to section 1 of Executive Order no. 13224 (September 23,
2001), (ii) engages in any dealings
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or transactions prohibited by section 2 of such Executive Order, or is
otherwise associated with any such Person in any manner violative of
section 2 of such Executive Order, or (iii) is a Person named on the list
of Specially Designated Nationals and Blocked Persons maintained by the
Office of Foreign Assets Control ("OFAC") or any other similar lists
maintained by OFAC pursuant to any authorizing statute, Executive Order or
regulation;
2.1.22 USA PATRIOT ACT: Each Borrower is in compliance, in all material
respects, with (i) the Trading with the Enemy Act, as amended, and each of
the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V as amended) and any other
enabling legislation or executive order relating thereto, and (ii) the USA
Patriot Act. No part of the proceeds of any Borrowing will be used,
directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or any one else acting in an official capacity, in order
to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as
amended; and
2.1.23 FEDERAL REGULATIONS: No part of the proceeds of any Borrowing hereunder
will be used directly or indirectly for any purpose which violates, or
which would be inconsistent with, the provisions of Regulation T, U, or X
of the Board of Governors of the Federal Reserve System as now and from
time to time hereafter in effect. The Borrowers and their Subsidiaries,
taken as a group, do not own Margin Stock constituting more than 25% of the
value of the consolidated assets of the Borrowers and their Subsidiaries,
taken as a group.
2.2 MATERIALITY AND SURVIVAL OF WARRANTIES
All representations and warranties of the Borrowers 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 execution of this Amended and Restated Credit Agreement 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 12.1.7(c)) and Section 2.1.9 (which shall be read as if they
referred to the most recent financial statements delivered by the Borrowers to
the Administrative Agent pursuant to Section 12.1.7) on each Drawdown Date, on
each Conversion Date, and on each date of renewal of a Bankers' Acceptance,
Libor Loan, Euro Loan or Letter of Credit hereunder, with the same effect,
subject to and to the extent consistent with the transactions contemplated
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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
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 Borrowers.
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 or purchase or fund a risk
participation in accordance with its obligations under this Agreement shall not
release any other Lender or the Borrowers from their obligations hereunder.
3.2 THE FACILITY A
The Facility A Lenders hereby establish in favor of QWI and QWUSA the
Facility A which shall be available as a revolving facility during the Facility
A Revolving Period. During such period, QWI shall be entitled from time to time
to obtain Advances, repay such Advances and re-obtain Advances under the
Facility A in Canadian Dollars by way of Cdn. Prime Rate Loans or Bankers'
Acceptances and QWI and QWUSA shall be entitled from time to time to obtain
Advances, repay such Advances and re-obtain Advances under the Facility A in US
Dollars by way of US Base Rate Loans (for Borrowings by QWI) or US Prime Rate
Loans (for Borrowings by QWUSA) or Libor Loans or, up to US$75,000,000, the
Equivalent Amount thereof in Euros by way of Euro Loans, or any combination
thereof, the whole up to the Facility A Total Commitment and subject to the
terms and conditions of this Agreement.
Subject to the terms and conditions of this Agreement, during the Facility
A Revolving Period, QWI and QWUSA shall be entitled to obtain from time to time
Borrowings by way of Letters of Credit, in Canadian Dollars, in US Dollars or in
any other currency acceptable to the Facility A Lenders. The Aggregate Face
Amount of such Letters of Credit outstanding under Facility A shall at no time
exceed the LC A Commitment.
Subject to the terms and conditions of this Agreement, each Swingline A
Lender, in its individual capacity, and in reliance upon the agreements of the
other Applicable Lenders under Facility A, agrees to make available to QWI, as
part of the Facility A, a swingline subfacility (the "SWINGLINE SUBFACILITY A")
for a maximum amount equal to (i) with respect to Swingline Loans made by CIBC
under the Swingline Subfacility A, CIBC's Swingline A Commitment and (ii)
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with respect to Swingline Loans made by Royal under the Swingline Subfacility A,
Royal's Swingline A Commitment.
3.3 THE FACILITY B
The Facility B Lenders hereby establish in favor of QWI and QWUSA the
Facility B which shall be available as a revolving facility during the Facility
B Revolving Period. During such period, QWI shall be entitled from time to time
to obtain Advances, repay such Advances and re-obtain Advances under the
Facility B in Canadian Dollars by way of Cdn. Prime Rate Loans or Bankers'
Acceptances and QWI and QWUSA shall be entitled from time to time to obtain
Advances, repay such Advances and re-obtain Advances under the Facility B in US
Dollars by way of US Base Rate Loans (for Borrowings by QWI) or US Prime Rate
Loans (for Borrowings by QWUSA) or Libor Loans or, up to US$200,000,000, the
Equivalent Amount thereof in Euros by way of Euro Loans, or any combination
thereof, the whole up to the Facility B Total Commitment and subject to the
terms and conditions of this Agreement.
Subject to the terms and conditions of this Agreement, each Swingline B
Lender, in its individual capacity and in reliance upon the agreements of the
other Applicable Lenders under Facility B, agrees to make available to QWI, as
part of the Facility B, a swingline subfacility (the "SWINGLINE SUBFACILITY B")
for a maximum amount equal to (i) with respect to Swingline Loans made by CIBC
under the Swingline Subfacility B, CIBC's Swingline B Commitment and (ii) with
respect to Swingline Loans made by Royal under the Swingline Subfacility B,
Royal's Swingline B Commitment.
3.4 THE FACILITY C
The Facility C Lenders hereby establish in favor of QWUSA the Facility C
which shall be available as a revolving facility during the Facility C Revolving
Period. During such period, QWUSA shall be entitled from time to time to obtain
Advances, repay such Advances and re-obtain Advances under the Facility C in US
Dollars by way of US Prime Rate Loans or Libor Loans or, up to US$75,000,000,
the Equivalent Amount thereof in Euros by way of Euro Loans, or any combination
thereof, the whole up to the Facility C Total Commitment and subject to the
terms and conditions of this Agreement.
Subject to the terms and conditions of this Agreement, during the Facility
C Revolving Period, QWUSA shall be entitled to obtain from time to time
Borrowings by way of Letters of Credit in US Dollars or in any other currency
acceptable to the Facility C Lenders. The Aggregate Face Amount of such Letters
of Credit outstanding under Facility C shall at no time exceed the LC C
Commitment.
Subject to the terms and conditions of this Agreement, the Swingline C
Lender, in its individual capacity, in reliance upon the agreements of the other
Facility C Lenders hereunder, agrees to make available to QWUSA, as part of the
Facility C, a swingline subfacility (the "SWINGLINE SUBFACILITY C") for a
maximum amount of US$15,000,000 (the "SWINGLINE C COMMITMENT").
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3.5 SWINGLINE SUBFACILITIES
3.5.1 CONDITIONS: Subject to the terms and conditions hereof, during the period
from the Effective Date up to the date which is five (5) Business Days
prior to the Facility A Maturity Date, the Facility B Maturity Date or the
Facility C Maturity Date, as applicable, QWI and QWUSA may obtain, on any
Business Day, Swingline Loans.
The Swingline Loans shall be Cdn. Prime Rate Loans if made in Canadian
Dollars to QWI, US Base Rate Loans if made in US Dollars to QWI and US
Prime Rate Loans if made in US Dollars to QWUSA.
Unless otherwise notified in writing by QWI to the applicable Swingline
Lender, all Swingline Loans made by CIBC to QWI shall be deemed made first
under the Swingline Subfacility A up to CIBC's Swingline A Commitment and
any Swingline Loans made by CIBC in excess thereof shall be deemed made
under the Swingline Subfacility B. Unless otherwise notified in writing by
QWI to the applicable Swingline Lender, all Swingline Loans made by Royal
to QWI shall be deemed made first under the Swingline Subfacility A up to
Royal's Swingline A Commitment and any Swingline Loans made by Royal in
excess thereof shall be deemed made under the Swingline Subfacility B.
The Aggregate Amount of the Swingline Loans made by CIBC under the
Swingline Subfacility A shall not exceed CIBC's Swingline A Commitment at
any time. The Aggregate Amount of the Swingline Loans made by Royal under
the Swingline Subfacility A shall not exceed Royal's Swingline A Commitment
at any time. The Aggregate Amount of the Swingline Loans made under the
Swingline Subfacility A shall not at any time exceed the Swingline A
Commitment. The Aggregate Amount of the Swingline Loans made by CIBC under
the Swingline Subfacility B shall not exceed CIBC's Swingline B Commitment
at any time. The Aggregate Amount of the Swingline Loans made by Royal
under the Swingline Subfacility B shall not exceed Royal's Swingline B
Commitment at any time. The Aggregate Amount of the Swingline Loans made
under the Swingline Subfacility B shall not at any time exceed the
Swingline B Commitment. The Aggregate Amount of the Swingline Loans made
under the Swingline Subfacility C shall not at any time exceed the
Swingline C Commitment.
The Aggregate Amount of the Swingline Loans made under the Swingline
Subfacilities shall not at any time exceed the Swingline Commitment. The
Aggregate Amount of the Swingline Loans made by a Swingline Lender under a
particular Credit Facility shall not, after giving effect thereto, result
in the applicable Swingline Lender's Exposure at any time exceeding the
applicable Swingline Lender's Commitment under the relevant Credit
Facility. The Aggregate Amount of the Swingline Loans made by all Swingline
Lenders hereunder shall not, after giving effect thereto, at any time,
result in the Aggregate Exposure exceeding the Aggregate Commitment.
The Swingline Loans may be repaid and reborrowed in accordance with the
provisions hereof.
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No Swingline Loan shall be made if the Credit Facility under which such
Swingline Loan is to be made has been terminated or cancelled.
No Swingline Lender shall make any Swingline Loan after receiving a written
notice from the relevant Borrower, the Administrative Agent or any Lender
stating that a Default or Event of Default exists and is continuing until
such time as such Swingline Lender shall have received written notice (i)
that such Default or Event of Default has been cured or (ii) of the waiver
of such Default or Event of Default in accordance with the provisions of
Section 17.1 hereof.
Immediately upon the making of a Swingline Loan, each Applicable Lender
under the applicable Credit Facility shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase, subject to the terms
hereof, from the applicable Swingline Lender a risk participation in such
Swingline Loan in an amount equal to the product of the Lender's Proportion
of such Lender multiplied by the amount of the Swingline Loan.
3.5.2 REPAYMENT: In the event that the Swingline Loans made by a particular
Swingline Lender are not repaid in full on the occurrence of a Swingline
Repayment Event or at the request of the applicable Swingline Lender, in
its sole and absolute discretion, the applicable Swingline Lender shall
promptly notify the Administrative Agent of such non-payment or exercise of
its discretion and of the outstanding principal amount of the Swingline
Loans made by such Swingline Lender and the amount of accrued and unpaid
interest thereon (the aggregate of such amounts of principal and interest
being the "OUTSTANDING SWINGLINE AMOUNT") and such Swingline Lender shall
request, on behalf of the applicable Borrower (each Borrower hereby
irrevocably directs and authorizes the Swingline Lender to act on its
behalf) a Cdn. Prime Rate Loan, a US Base Rate Loan or a US Prime Rate
Loan, as applicable, under the relevant Credit Facility (in respect of
which interest thereon is to be calculated on a Cdn. Prime Rate basis, US
Base Rate basis or US Prime Rate basis, as the case may be), in an amount
sufficient to cover the Outstanding Swingline Amount. Such request shall be
made by delivery to the Administrative Agent (and the applicable Borrower)
of a notice substantially in the form set out in Schedule 3.5.2 and such
notice shall be deemed to constitute a Notice of Borrowing hereunder.
The Administrative Agent shall then promptly notify each Applicable Lender
under the applicable Credit Facility of the Outstanding Swingline Amount
and the amount of such Lender's Loan (being the Lender's Proportion of such
Lender of the Outstanding Swingline Amount) in respect thereof, and each
Applicable Lender under the applicable Credit Facility shall be irrevocably
obligated to make Cdn. Prime Loans, US Base Rate Loans or US Prime Rate
Loans, as applicable, to the relevant Borrower in the amount of such
Lender's Loan by 12:00 noon (Toronto time) on the Business Day of such
notice from the Administrative Agent (if given prior to 10:30 a.m. (Toronto
time) on such Business Day; otherwise, by 12:00 noon (Toronto time) on the
Business Day next following the Business Day of such notice) by making the
amount of such Loan available
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to the Administrative Agent at the Administrative Agent's Account for
Payments. Such Loans shall be made without regard to the minimum borrowing
amounts set forth hereunder but shall be subject to the unadvanced and
uncancelled amount of the Facility A Total Commitment, the Facility B Total
Commitment or the Facility C Total Commitment, as applicable. The
Administrative Agent shall use the proceeds of such Loans solely for the
purpose of reimbursing the applicable Swingline Lender for the Outstanding
Swingline Amount and such reimbursement shall be made on the day the funds
are received by the Administrative Agent by transfering funds to the
account of the applicable Swingline Lender identified in writing to the
Administrative Agent. Each Lender's obligation to make the Loans referred
to in this clause and to purchase the risk participation referred to in
Section 3.5.4 shall be absolute, irrevocable and unconditional and shall
not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the applicable Swingline Lender, any Loan Party or any Person for
any reason whatsoever; (ii) the occurrence or continuance of any Default or
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of any Loan Party; (iv) the acceleration or maturity of any
Loans or the termination of any Commitment after the making of any
Swingline Loan; (v) any breach of any Loan Document by any Person; or (vi)
any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
Each Applicable Lender under the applicable Credit Facility agrees to
indemnify the applicable Swingline Lender (to the extent not reimbursed by
the Borrowers), rateably according to its Lender's Proportion from and
against any and all losses and claims of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the applicable
Swingline Lender in any way relating to or arising out of any Swingline
Loans, provided that no Lender shall be liable for any portion of such
losses or claims resulting from the applicable Swingline Lender's gross or
intentional fault.
3.5.3 RESIGNATION OR REMOVAL OF SWINGLINE LENDER: Any Swingline Lender may
resign as a Swingline Lender and the Borrowers may remove any Swingline
Lender upon 60 days' prior written notice to the Administrative Agent, the
Lenders and the Borrowers (or the Swingline Lenders, as applicable).
Subject to Section 3.9, if a Swingline Lender shall resign or be removed as
a Swingline Lender under this Agreement, then the Borrowers shall appoint
from among the Applicable Lenders with Commitments under the applicable
Credit Facility, a successor Swingline Lender, whereupon such successor, if
it accepts (in its sole discretion) this appointment, shall succeed to the
rights, powers and duties of the resigning or removed Swingline Lender, and
the terms "Swingline Lender", "Swingline A Lender", "Swingline B Lender",
"Swingline C Lender", "CIBC" and "Royal", as applicable and only in
connection with the Swingline Loans, shall mean such successor effective
upon such appointment. The acceptance of any appointment as a Swingline
Lender hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to the Borrowers and
the Administrative Agent and, from and after the effective date of such
agreement, such successor Lender shall have all the rights and obligations
of the previous Swingline
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Lender under this Agreement and the other Loan Documents. After the
resignation or removal of a Swingline Lender hereunder, the resigning or
removed Swingline Lender shall remain a party hereto and shall continue to
have all the rights and obligations of such Swingline Lender under this
Agreement and the other Loan Documents with respect to Swingline Loans made
by it prior to such resignation or removal, but shall not be required to
make additional Swingline Loans. After any retiring Swingline Lender's
resignation or removal as Swingline Lender, the provisions of this
Agreement relating to Swingline Lenders shall inure to its benefit as to
any actions taken or omitted to be taken by it (a) while it was a Swingline
Lender under this Agreement or (b) at any time with respect to Swingline
Loans made by it. If at any time there is no Swingline Lender under a
particular Credit Facility, then the Swingline A Commitment, the Swingline
B Commitment or the Swingline C Commitment, as the case may be, shall be
deemed not in effect until a Lender accepts to be a successor Swingline
Lender in accordance herewith.
3.5.4 PURCHASE OF UNREFUNDED SWINGLINE LOAN: If, for any reason, Loans under the
applicable Credit Facility may not be (as determined by the Administrative
Agent in its sole discretion), or are not made pursuant to Section 3.5.2 to
repay the Outstanding Swingline Amount as required by Section 3.5.2, then,
effective on the date such Loan under the applicable Credit Facility would
otherwise have been made, each Applicable Lender under the applicable
Credit Facility, individually and not jointly and severally or solidarily,
unconditionally and irrevocably agrees that it shall be deemed to have
purchased an undivided risk participation in the Swingline Loans
outstanding at such time ("UNREFUNDED SWINGLINE ADVANCES") to the extent of
such Lender's Lender's Proportion thereof.
Each Applicable Lender under the applicable Credit Facility shall fund such
purchase no later than the close of business on the date such funding
requirement is given by the Administrative Agent (with a copy to the
applicable Borrower) if such notice was given prior to 12:00 noon, Toronto
time, on any Business Day, or if made at any other time, on the next
Business Day following the date of such notice.
All such amounts payable by any Lender under Section 3.5.2 or this Section
3.5.4 shall include interest thereon from the date on which such payment is
payable by such Lender to, but not including, the date such amount is paid
by such Lender to the applicable Swingline Lender (or the Administrative
Agent if such payment is made pursuant to Section 3.5.2) at a fluctuating
rate per annum equal to the higher of the interbank rate for overnight
funds or the rate charged to the applicable Swingline Lender (or the
Administrative Agent, as applicable) by its correspondent, plus 0.25%. A
certificate of the applicable Swingline Lender submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this paragraph shall be conclusive absent manifest error.
If such Lender does not promptly pay such amount upon the Administrative
Agent's demand therefor, and until such time as such Lender makes the
required payment, the
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applicable Swingline Lender shall be deemed to continue to have outstanding
such unpaid amount as part of its Swingline Loan.
Each payment by the applicable Borrower of all or any part of any Swingline
Loan shall be paid to the applicable Swingline Lender for the benefit of
the applicable Swingline Lender and those Lenders under the applicable
Credit Facility who hold funded participation in such Unrefunded Swingline
Advances under this Section 3.5.4.
The Administrative Agent, upon consultation with the Applicable Lenders
shall have the power to settle any documentation required to evidence any
such purchase and, if deemed advisable by the Administrative Agent, to
execute any document as attorney for any Lender in order to complete any
such purchase. Each Borrower acknowledges that the foregoing arrangements
are to be settled by the Lenders among themselves, and each Borrower
expressly consents to the foregoing arrangements among the Lenders.
No such purchase of risk participation shall relieve or impair the
obligation of the applicable Borrower to repay Swingline Loans, together
with interest as provided herein.
3.5.5 REPAYMENTS OF PARTICIPATIONS: At any time after any Applicable Lender has
purchased and funded a risk participation in a Swingline Loan, if the
applicable Swingline Lender receives any payment on account of such
Swingline Loan, the Swingline Lender will distribute to such Lender its
Lender's Proportion of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
risk participation was funded) in the same funds as those received by the
Swingline Lender.
If any payment received by the applicable Swingline Lender in respect of
principal or interest on any Swingline Loan is required to be returned by
the Swingline Lender under any circumstance (including pursuant to any
settlement entered into by the Swingline Lender in its discretion), each
Applicable Lender shall pay to such Swingline Lender its Lender's
Proportion thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned,
at a rate per annum equal to rate referred to in the third paragraph of
Section 3.5.4. The Administrative Agent will make such demand upon the
request of the applicable Swingline Lender. The obligations of the Lenders
under this clause shall survive the payment in full of the Indebtedness and
other liabilities hereunder and the termination of this Agreement.
3.5.6 INTEREST: The applicable Swingline Lender shall be responsible for
invoicing the applicable Borrower for interest on the Swingline Loans.
Until each relevant Lender under the applicable Credit Facility funds its
Loans or purchases a participation pursuant to Section 3.5.2 or 3.5.4,
respectively, to refinance such Lender's Lender's Proportion of the
Outstanding Swingline Amount, interest in respect of the Lender's
Proportion of such Lender shall be solely for the account of the Swingline
Lender.
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3.5.7 AUTHORITY TO DEBIT: Subject to the provisions of this Agreement, each
Borrower hereby expressly and irrevocably authorizes the applicable
Swingline Lenders to effect all the necessary debits, deposits and credits
in the Canadian Dollar Swingline Account and US Dollar Swingline Accounts,
as the case may be, in order to accommodate the making of advances and in
order to accommodate the Borrowers in making payments to each Swingline
Lender, the whole under and subject to the terms of this Agreement.
3.5.8 NOTIFICATION: If at any time, there shall be more than two (2) Swingline
Lenders under Swingline Subfacility A or Swingline Subfacility B or more
than one (1) Swingline Lender under Subfacility C, then all Swingline
Lenders shall, at the end of each calendar week notify the other Swingline
Lenders of the amount of their respective Swingline Loans outstanding.
3.6 PURPOSES OF ADVANCES
The Credit Facilities shall be used by the Borrowers for general corporate
purposes, including, without limitation, ongoing working capital and operations
requirements, commercial paper back-up and, subject to the terms and conditions
hereof, to provide funding for Acquisitions, Investments and capital
expenditures. No Swingline Loan shall be used to refinance any outstanding
Swingline Loan.
3.7 MANNER OF BORROWING
3.7.1 BORROWING (OTHER THAN SWINGLINE LOANS AND LETTERS OF CREDIT): Subject to
the provisions of this Agreement (and in particular Article XI) and
provided no Default or Event of Default has occurred and is continuing
(without having been cured or waived as provided herein), a Borrower may
from time to time request Borrowings (other than Swingline Loans, Loans to
repay Swingline Loans and Letters of Credit) from the Facility A Lenders,
the Facility B Lenders or the Facility C Lenders, as applicable, up to the
amount of the Facility A Total Commitment, Facility B Total Commitment or
Facility C Total Commitment, as the case may be, in a minimum amount (i)
under each of the Facility A and the Facility B, of US$10,000,000,
Cdn.$10,000,000 or E10,000,000, as the case may be, and (ii) under the
Facility C, of US$10,000,000 or E10,000,000, as the case may be, and in
each case of (i) and (ii) in whole multipleS of US$1,000,000,
Cdn.$1,000,000 or E1,000,000, as the case may be, in excess thereof (or the
remaiNing balance available thereunder),
(a) if by way of a Cdn. Prime Rate Loan, US Base Rate Loan or US Prime Rate
Loan (other than Swingline Loans) or if by way of a Borrowing by way of
Bankers' Acceptances, 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 3.7
(or such other form as the Administrative Agent may approve);
(b) if by way of a Libor Loan or a Euro Loan, upon giving irrevocable telephone
notice to the Administrative Agent at least by 12:00 noon on the Business
Day immediately
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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 3.7 (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, the Facility B Total Commitment and/or the Facility C Total
Commitment is, in each case, then sufficient to allow for the requested
Borrowing. With respect to Facility A, Facility B and Facility C, in order to
determine the unadvanced and uncancelled amount available to be drawn under the
applicable Credit Facility for Borrowings other than by way of Swingline Loans,
the Swingline A Commitment then in effect, the Swingline B Commitment then in
effect and the Swingline C Commitment then in effect shall be deemed fully drawn
at all times and shall accordingly reduce the availability under the applicable
Credit Facility for Borrowings other than by way of Swingline Loans (the
"NON-SWINGLINE AVAILABILITY"). Notwithstanding the immediately preceding
sentence, if at any time a Borrower requests a Borrowing (other than by way of a
Swingline Loan) under a Credit Facility and, after giving effect thereto, the
total amount of Borrowings outstanding (other than by way of Swingline Loans)
under such Credit Facility would exceed the Non-Swingline Availability, the
Administrative Agent shall obtain from the Swingline Lenders the amount of the
actual Swingline Loans outstanding under such Credit Facility (the "ACTUAL
SWINGLINE OUTSTANDING") and the requested Borrowing (the "ADDITIONAL BORROWING")
shall be permitted if all other terms and conditions of this Agreement are
respected up to an amount equal to the Swingline A Commitment, the Swingline B
Commitment or the Swingline C Commitment, as applicable, less the Actual
Swingline Oustanding under such Swingline Subfacility. Until such Additional
Borrowing is fully repaid, the amount of the Swingline A Commitment, the
Swingline B Commitment or the Swingline C Commitment, as applicable, shall be
reduced by an amount equal to the amount of such Additional Borrowing (or its
Equivalent Amount in US$ if it is outstanding in another currency).
3.7.2 SWINGLINE LOANS: Subject to the provisions of this Agreement (and in
particular Article XI) and provided no Default or Event of Default has
occurred and is continuing (without having been cured or waived as provided
herein), QWI may from time to time request Swingline Loans from the
Swingline A Lender or Swingline B Lender, up to the Swingline A Commitment
or the Swingline B Commitment, as applicable, by drawing by cheque or
otherwise against the relevant Swingline Accounts of the Borrower
maintained with any of the Swingline A Lenders or the Swingline B Lenders
and accepted by the latter for the purposes hereof, it being understood
that any overdraft in any such Swingline Accounts shall constitute a
Swingline Loan made by a Swingline Lender as of the date of any such
overdraft. Such drawings shall not be subject to the minimum amounts and
the minimum notice periods set forth in Section 3.7.1 and shall not require
the delivery of any Notice of Borrowing or other notice contemplated
hereunder.
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Subject to the provisions of this Agreement (and in particular Article XI)
and provided no Default or Event of Default has occurred and is continuing
(without having been cured or waived as provided herein), QWUSA may from
time to time request Swingline Loans from the Swingline C Lender up to the
Swingline C Commitment in a minimum amount of US$100,000 (or the remaining
balance available thereunder).
Each Swingline Loan made under Swingline Subfacility C shall be made upon
QWUSA's irrevocable notice to the applicable Swingline C Lender, which may
be given by telephone. Each such notice must be received by the applicable
Swingline C Lender not later than 12:00 noon on the requested borrowing
date and shall specify (i) the amount to be borrowed and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the applicable Swingline C Lender
of a written Notice of Borrowing, appropriately completed and signed by a
Responsible Officer of the Borrower, substantially in the form of Schedule
3.7.2. Unless the applicable Swingline C Lender has received notice (by
telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 2:00 p.m. on the date of the proposed
Swingline Loan (A) directing the applicable Swingline C Lender not to make
such Swingline Loan as a result of the limitations set forth in Section
3.5.1 or (B) that one or more of the applicable conditions specified in
Article XI is not then satisfied, then, subject to the terms and conditions
hereof, the applicable Swingline C Lender will, not later than 3:00 p.m. on
the borrowing date specified in such Swingline Loan notice, make the amount
of its Swingline Loan available to QWUSA at its office by crediting the
applicable Swingline Account of such Borrower on the books of the
applicable Swingline C Lender in immediately available funds.
Subject to the terms hereof, such Advances shall be made 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 the Swingline A Commitment, the Facility B Total Commitment
and the Swingline B Commitment or the Facility C Total Commitment and the
Swingline C Commitment, as the case may be, is then sufficient to allow for
the requested Borrowing.
Loans to repay the Outstanding Swingline Amount shall be made upon the
notice and under the terms and conditions specified in Section 3.5.2.
Notwithstanding the foregoing, the applicable Borrower shall use
commercially reasonable efforts to notify the applicable Swingline Lender,
if not already notified, of any draw under the Swingline Subfacilities that
will result in the Aggregate Amount of the Swingline Loans of such
Swingline Lender to exceed under all Swingline Subfacilities US$20,000,000
at any time. Such notice may be given by telephone prior to noon on the
relevant Business Day and followed by written confirmation on the same day.
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3.7.3 LETTERS OF CREDIT: Subject to the provisions of this Agreement (and in
particular Article XI) and provided no Default or Event of Default has
occurred and is continuing (without having been cured or waived as provided
herein), a Borrower may from time to time request Letters of Credit in
accordance with the provisions of Article VIII up to the LC A Commitment or
the LC C Commitment, as applicable. Subject to the terms hereof, such
Advances shall be made available to the extent that on the relevant Issue
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 the LC A Commitment
or the Facility C Total Commitment and the LC C Commitment, as the case may
be, is then sufficient to allow for the requested Borrowing.
3.8 MANDATORY REPAYMENT OF BORROWINGS UNDER THE CREDIT FACILITIES
All Borrowings and other amounts outstanding under each of the Credit
Facilities shall be fully and finally paid (together with interest and fees
related thereto) on the Facility A Maturity Date, the Facility B Maturity Date
or the Facility C Maturity Date, as the case may be, whereupon the relevant
Credit Facility shall be cancelled and each Lender's Commitment in respect of
such Credit Facility shall automatically be reduced to zero and be terminated.
Notwithstanding the foregoing: (i) all Swingline Loans and other amounts
outstanding under the Swingline Subfacility A shall be fully and finally paid
(together with interest and fees related thereto) on the date which is five (5)
Business Days prior to the Facility A Maturity Date, (ii) all Swingline Loans
and other amounts outstanding under the Swingline Subfacility B shall be fully
and finally paid (together with interest and fees related thereto) on the date
which is five (5) Business Days prior to the Facility B Maturity Date and (iii)
all Swingline Loans and other amounts outstanding under the Swingline
Subfacility C shall be fully and finally paid (together with interest and fees
related thereto) on the date which is five (5) Business Days prior to the
Facility C Maturity Date. Upon such payments, the relevant Swingline Subfacility
shall be cancelled and each Swingline Lender's commitment in respect of such
Swingline Subfacility shall automatically be reduced to zero and be terminated.
3.9 LENDING OFFICE OF LENDERS
3.9.1 Borrowings by QWI shall be made available to it only by Cdn Qualified
Lenders from lending offices located in Canada. For any period with respect
to which a Lender that has made Borrowings available to QWI fails or ceases
to meet the requirements for being a Cdn Qualified Lender, (other than if
it is due to a change in law (in which case QWI shall have the rights and
options described in Section 9.6.2) or to a participation or assignment
made at the request or with the consent of QWI or following the occurrence
of and during the continuance of an Event of Default) such Lender shall
send a written notice to QWI to that effect (failing which such Lender
shall duly indemnify QWI) and shall not be entitled to indemnification
under Section 9.5 with respect to Taxes imposed by Canada and, for greater
certainty, QWI shall not be required to comply with Section 9.5.1(c). As of
the date of execution of this Amended and Restated Credit
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Agreement, each of the Lenders under Facility A and Facility B hereby
confirms that it meets the requirements for being a Cdn Qualified Lender in
respect of any Borrowings to be made by QWI;
3.9.2 Borrowings by QWUSA shall be made available to it only by US Qualified
Lenders. For any period with respect to which a Lender that has made
Borrowings available to QWUSA fails or ceases to meet the requirements for
being a US Qualified Lender (other than if it is due to a change in law (in
which case QWUSA shall have the rights and options described in Section
9.6.2) or to a participation or assignment made at the request or with the
consent of QWUSA or following the occurrence of and during the continuance
of an Event of Default), such Lender shall send a written notice to QWI to
that effect (failing which such Lender shall duly indemnify QWUSA) and
shall not be entitled to indemnification under Section 9.5 with respect to
Taxes imposed by the United States and, for greater certainty, QWUSA shall
not be required to comply with Section 9.5.1(c). As of the date of
execution of this Amended and Restated Credit Agreement, each of the
Lenders under Facility A, Facility B and Facility C hereby confirms that it
meets the requirements for being a US Qualified Lender in respect of any
Borrowings to be made by QWUSA;
3.9.3 If a Cdn Qualified Lender with a lending office in Canada does not have
any lending office in the United States or otherwise cannot be considered a
US Qualified Lender (or, as the case may be, if a US Qualified Lender with
a lending office in the United States does not have any lending office in
Canada or otherwise cannot be considered a Cdn Qualified Lender), such
Lender may designate an Affiliate, which Affiliate shall be a US Qualified
Lender (or, as the case may be, a Cdn Qualified Lender), for the purposes
of making available its Commitment or any portion thereof to QWUSA (or, as
the case may be, to QWI);
3.9.4 Any such designation shall be deemed to be an assignment by the
designating Lender to the designated Affiliate of the rights and
obligations of the designating Lender in respect of the Commitment or the
portion thereof being the subject of the designation and the designated
Affiliate shall have a corresponding Commitment. Any termination of any
such designation shall be deemed to be a reassignment by the designated
Affiliate to the designating Lender of such designated Affiliate's
Commitment. No such designation or termination thereof may result in
increased costs or obligations for the Borrowers;
3.9.5 Any such designation or termination of a designation shall be effective
upon receipt by the Administrative Agent and QWI of a notice signed by the
designating Lender and the designated Affiliate confirming the designation
or, as the case may be, the termination. Any notice of designation shall
also include a confirmation that the designated Affiliate (i) meets the
requirements for being a US Qualified Lender (or, as the case may be, a Cdn
Qualified Lender) and (ii) agrees to become a Lender and to be bound by the
provisions of the Loan Documents and shall be accompanied by the payment by
the relevant Borrower to the Administrative Agent of a processing and
recordation fee of US$3,500.
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3.10 EXTENSION OF THE REVOLVING PERIOD IN RESPECT OF EACH OF THE CREDIT
FACILITIES
3.10.1 EXTENSION OF THE FACILITY A REVOLVING PERIOD: QWI and QWUSA jointly may
annually request an extension of the Facility A Revolving Period for an
additional one year period, by giving notice substantially in the form set
forth in Schedule 3.10 to the Administrative Agent for delivery to each
Facility A Lender not more than 90 and not less than 60 days prior to each
anniversary date of January 30, 2006. No earlier than 30 days and no later
than 25 days prior to the relevant anniversary date of January 30, 2006,
each Facility A Lender shall notify QWI and QWUSA and the Administrative
Agent of its election to extend or not to extend the then current Facility
A Revolving Period as requested in such extension request, provided that if
any Facility A Lender shall fail to so notify QWI and QWUSA and the
Administrative Agent, such Facility A Lender shall be deemed to have given
notice of its determination not to extend. Upon receipt of such notice from
each Facility A Lender, the Administrative Agent shall notify each other
Facility A Lender of the contents thereof. Subject to the consent of the
Facility A Lenders holding more than 66 2/3% of the Facility A Total
Commitment, the then current Facility A Revolving Period shall be extended
for an additional one year computed from the expiry of the then current
Facility A Revolving Period, such extension applying only to those Facility
A Lenders which provided their consent to the extension.
At the option and expense of QWI and QWUSA, any Facility A Lender not
consenting to an extension (a "NON-CONSENTING BANK"):
(i) may be replaced as a Facility A Lender by one or more Lenders or by a
new lender or lenders satisfactory to QWI, QWUSA, the Administrative
Agent and the Swingline A Lenders, acting reasonably, to whom such
Non-Consenting Bank will transfer its Facility A Commitment, in whole
or in part, and which Lender(s) or new lender(s) will agree to assume
the obligations of such Non-Consenting Bank hereunder, in whole or in
part, and agree to be bound by the terms hereof, the whole in
accordance with Section 19.3(b); or
(ii) may have any amount not assumed by a Lender (existing or new) under
(i) prepaid by QWI or QWUSA with a corresponding permanent reduction
in the Facility A Total Commitment.
If and to the extent that the full amount of the Facility A Commitment(s)
of the Non-Consenting Bank(s) is not assumed or prepaid, the remaining
Facility A Commitment of each Non-Consenting Bank not assumed or prepaid
shall be reduced to zero and be terminated on the date falling on the
expiry of the Facility A Revolving Period not extended as aforesaid at
which time all Borrowings and other amounts outstanding under or in respect
of the Facility A to such Non-Consenting Bank(s) shall be fully and finally
paid (together with interest and fees related thereto) by QWI or QWUSA to
such Non-Consenting Bank(s). If the Facility A Total Commitment is so
reduced by an amount equal to more than 25% of the Facility A Total
Commitment prior
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to such reduction, the Swingline A Commitment shall be reduced
proportionally to such reduction.
3.10.2 EXTENSION OF THE FACILITY B REVOLVING PERIOD: the Borrowers jointly may
annually request an extension of the Facility B Revolving Period for an
additional one year period, by giving notice substantially in the form set
forth in Schedule 3.10 to the Administrative Agent for delivery to each
Facility B Lender not more than 90 and not less than 60 days prior to each
anniversary date of January 30, 2006. No earlier than 30 days and no later
than 25 days prior to the relevant anniversary date of January 30, 2006,
each Facility B Lender shall notify the Borrowers and the Administrative
Agent of its election to extend or not to extend the then current Facility
B Revolving Period as requested in such extension request, provided that if
any Facility B Lender shall fail to so notify the Borrowers and the
Administrative Agent, such Facility B Lender shall be deemed to have given
notice of its determination not to extend. Upon receipt of such notice from
each Facility B Lender, the Administrative Agent shall notify each other
Facility B Lender of the contents thereof. Subject to the consent of the
Facility B Lenders holding more than 66 2/3% of the Facility B Total
Commitment, the then current Facility B Revolving Period shall be extended
for an additional one year computed from the expiry of the then current
Facility B Revolving Period, such extension applying only to those Facility
B Lenders which provided their consent to the extension.
At the option and expense of the Borrowers, any Facility B Lender not
consenting to an extension (a "NON-CONSENTING BANK"):
(i) may be replaced as a Facility B Lender by one or more Lenders or by a
new lender or lenders satisfactory to the Borrowers, the
Administrative Agent and the Swingline B Lenders, acting reasonably,
to whom such Non-Consenting Bank will transfer its Facility B
Commitment, in whole or in part, and which Lender(s) or new lender(s)
will agree to assume the obligations of such Non-Consenting Bank
hereunder, in whole or in part, and agree to be bound by the terms
hereof, the whole in accordance with Section 19.3(b); or
(ii) may have any amount not assumed by a Lender (existing or new) under
(i) prepaid by the Borrowers with a corresponding permanent reduction
in the Facility B Total Commitment.
If and to the extent that the full amount of the Facility B Commitment(s)
of the Non-Consenting Bank(s) is not assumed or prepaid, the remaining
Facility B Commitment of each Non-Consenting Bank not assumed or prepaid
shall be reduced to zero and be terminated on the day falling on the expiry
of the Facility B Revolving Period not extended as aforesaid at which time
all Borrowings and other amounts outstanding under or in respect of the
Facility B to such Non-Consenting Bank(s) shall be fully and finally paid
(together with interest and fees related thereto) by the Borrowers to such
Non-Consenting Bank(s). If the Facility B Total Commitment is so reduced by
an amount equal to more than 25% of the Facility B Total Commitment prior
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to such reduction, the Swingline B Commitment shall be reduced
proportionally to such reduction; and
3.10.3 EXTENSION OF THE FACILITY C REVOLVING PERIOD: QWUSA may annually request
an extension of the Facility C Revolving Period for an additional one year
period, by giving notice substantially in the form set forth in Schedule
3.10 to the Administrative Agent for delivery to each Facility C Lender not
more than 90 and not less than 60 days prior to each anniversary date of
January 30, 2006. No earlier than 30 days and no later than 25 days prior
to the relevant anniversary date of January 30, 2006, each Facility C
Lender shall notify QWUSA and the Administrative Agent of its election to
extend or not to extend the then current Facility C Revolving Period as
requested in such extension request, provided that if any Facility C Lender
shall fail to so notify QWUSA and the Administrative Agent, such Facility C
Lender shall be deemed to have given notice of its determination not to
extend. Upon receipt of such notice from each Facility C Lender, the
Administrative Agent shall notify each other Facility C Lender of the
contents thereof. Subject to the consent of the Facility C Lenders holding
more than 66 2/3% of the Facility C Total Commitment, the then current
Facility C Revolving Period shall be extended for an additional one year
computed from the expiry of the then current Facility C Revolving Period,
such extension applying only to those Facility C Lenders which provided
their consent to the extension.
At the option and expense of QWUSA, any Facility C Lender not consenting to
an extension (a "NON-CONSENTING BANK"):
(i) may be replaced as a Facility C Lender by one or more Lenders or by a
new lender or lenders satisfactory to QWUSA, the Administrative Agent
and the Swingline C Lender, acting reasonably, to whom such
Non-Consenting Bank will transfer its Facility C Commitment, in whole
or in part, and which Lender(s) or new lender(s) will agree to assume
the obligations of such Non-Consenting Bank hereunder, in whole or in
part, and agree to be bound by the terms hereof, the whole in
accordance with Section 19.3(b); or
(ii) may have any amount not assumed by a Lender (existing or new) under
(i) prepaid by QWUSA with a corresponding permanent reduction in the
Facility C Total Commitment.
If and to the extent that the full amount of the Facility C Commitment(s)
of the Non-Consenting Bank(s) is not assumed or prepaid, the remaining
Facility C Commitment of each Non-Consenting Bank not assumed or prepaid
shall be reduced to zero and be terminated on the day falling on the expiry
of the Facility C Revolving Period not extended as aforesaid at which time
all Borrowings and other amounts outstanding under or in respect of the
Facility C to such Non-Consenting Bank(s) shall be fully and finally paid
(together with interest and fees related thereto) by QWUSA to such
Non-Consenting Bank(s). If the Facility C Total Commitment is so reduced by
an amount equal to more than 25% of the Facility C Total Commitment prior
to such
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reduction, the Swingline C Commitment shall be reduced proportionately to
such reduction.
3.11 OPTIONAL REPAYMENT OR PREPAYMENT AND CANCELLATION OF CREDIT FACILITIES
3.11.1 VOLUNTARY PAYMENTS: Any Borrower may, without penalty, repay or otherwise
retire the Borrowings outstanding hereunder in full or in part from time to
time, (i) without prior notice in respect of the Swingline Subfacility A
and the Swingline Subfacility B, and (ii) in respect of each other Credit
Facility or type of Borrowing 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
3.11.1 (or such other form as the Administrative Agent may approve),
provided that repayments must be (i) in a minimum amount of US$10,000,000,
Cdn.$10,000,000 or E10,000,000, as the case may be, and whole multiples of
US$1,000,000, Cdn.$1,000,000 or E1,000,000 in excess thereof (or the
remaining balance of the releVant Credit Facility) for repayments made
under the Credit Facilities other than the Swingline Subfacility A and the
Swingline Subfacility B and (ii) without any minimum requirement for
repayment under the Swingline Subfacility A or the Swingline Subfacility B.
Any amount so repaid may be re-borrowed as provided herein. Notwithstanding
the foregoing, each Borrower hereby undertakes to use commercially
reasonable efforts to send to the applicable Swingline Lender a prior
notice with respect to any prepayment under Swingline Subfacility A or
Swingline Subfacility B which is in excess of US$20,000,000.
3.11.2 CANCELLATION AND REDUCTION OF FACILITY A, FACILITY B OR FACILITY C: the
Borrowers may, at any time, upon QWI 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 3.11.2, cancel
and reduce without penalty the whole or any portion of the Facility A Total
Commitment, Facility B Total Commitment or Facility C Total Commitment, in
an aggregate minimum amount of US$10,000,000 and whole multiples of
US$1,000,000 in excess thereof (or the remaining balance of the Facility A
Total Commitment, Facility B Total Commitment or Facility C Total
Commitment). Such notice of cancellation with respect to any drawn portion
of the Facility A Total Commitment, Facility B Total Commitment or Facility
C 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 (including, without limitation, by way of Swingline
Loans) shall have been repaid or otherwise retired 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,
Facility B Total Commitment or Facility C 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
and/or Facility C Total Commitment so cancelled and reduced. Any
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reduction of the Facility A Total Commitment, the Facility B Total
Commitment or of the Facility C Total Commitment by more than 25% of the
amount of the Facility A Total Commitment, the Facility B Total Commitment
or of the Facility C Total Commitment, as applicable, prior to such
reduction shall proportionally reduce the Swingline A Commitment, the
Swingline B Commitment or the Swingline C Commitment, as applicable. Any
permanent cancellation of the Facility A Total Commitment, of the Facility
B Total Commitment or of the Facility C Total Commitment shall
automatically and concurrently terminate the Swingline Subfacility A, the
Swingline Subfacility B or the Swingline Subfacility C, as applicable.
3.11.3 EXCEPTIONS AND LIMITATIONS: notwithstanding the terms of Sections 3.11.1
and 3.11.2, a Borrowing outstanding:
(a) by way of Bankers' Acceptances may not be so prepaid, save for a
repayment on the maturity date of the relevant Bankers' Acceptances,
except as provided in Sections 3.14 and 9.8;
(b) by way of Libor Loan or Euro Loan may not be so prepaid, unless such
prepayment occurs on the last day of the applicable Libor Interest
Period or Euro Interest Period, as the case may be, or, if prepayment
occurs (for whatever reason) on a day other than the last day of the
applicable Libor Interest Period or Euro Interest Period, as the case
may be, 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 13.2.5 in
connection with the amount being prepaid to the extent such indemnity
has then been determined and notified to the relevant 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);
(c) by way of Swingline Loans under Swingline Subfacility A or Swingline
Subfacility B, may be prepaid without having to comply with the notice
and minimum amount requirements set forth in Sections 3.11.1 and
3.11.2;
(d) by way of Letters of Credit, may be prepaid only if such repayment is
made by the payment to the Administrative Agent for the account of the
Applicable Lenders or the applicable LC Issuer, as the case may be, of
an amount (in US Dollars if the Letter of Credit is outstanding in US
Dollars, in Cdn. Dollars if the Letter of Credit is outstanding in
Cdn. Dollars or in US Dollars equal to the Equivalent Amount in US
Dollars of such amount outstanding in another currency if the Letter
of Credit is outstanding in such other currency) equal to the Face
Amount of the relevant Letter of Credit. Upon such payment, the
relevant Borrower shall be released from its liability in respect of
such Letter of Credit to the extent of the amount so paid and if such
Letter of Credit is terminated, expires or is cancelled without having
been drawn by the beneficiary thereof, the
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Administrative Agent shall return, as soon as possible, to the
applicable Borrower the amount received under this Section 3.11.3 (d)
in connection with the applicable Letter of Credit, provided that no
Default or Event of Default has occurred and is continuing, in which
case the Administrative Agent may retain such amount as and by way of
collateral security in accordance with Section 18.11.
3.12 CONVERSION OPTION
3.12.1 MANNER OF CONVERSION: subject to the provisions of this Agreement, a
Borrower may, during the term of this Agreement, effective on any Business
Day, convert, in whole or in part, an outstanding Borrowing (other than a
Swingline Loan and a Letter of Credit) under a Credit Facility into any
other available basis of Borrowing under that Credit Facility, and in
minimum amounts identical to the minimum amounts required for Borrowings
under Section 3.7, 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 Cdn. Prime Rate Loan, a US Base Rate Loan, a US Prime
Rate Loan or a Borrowing by way of Bankers' Acceptances, 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 or a Euro 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 3.7 (or
such other form as the Administrative Agent may approve), provided that if,
pursuant to the foregoing provisions of this Section 3.12.1, a Borrowing
denominated in one currency available under any Credit Facility is to be
converted into a Borrowing denominated in another currency available under
such Credit Facility, the calculation of the converted amount shall be made
by using the Equivalent Amount of the amount to be converted as determined
by the Administrative Agent, and such Borrowing shall thereupon be repaid
in the original outstanding currency and re-advanced without novation in
the other currency selected by the Borrower, be equal to such Equivalent
Amount and be repayable in such other currency with interest accruing
thereon on the basis of the Borrowing selected by the Borrower;
3.12.2 CONDITIONS OF CONVERSION: a conversion under Section 3.12.1 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
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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 Euro Loan may be converted, in whole or in part, only on the last
day of the relevant Euro Interest Period, and provided that if less
than all such Euro Loan is converted, then after such conversion not
less than E10,000,000 (and multiples of E1,000,000 in excess thereof)
shall remain as a Euro Loan;
(d) a Borrowing by way of Bankers' Acceptances may be converted, in whole
or in part, only on the relevant maturity date of such Bankers'
Acceptances and provided that if less than all Borrowings by way of
Bankers' Acceptances are converted, then after such conversion not
less than Cdn.$10,000,000 (and multiples of Cdn.$1,000,000 in excess
thereof) shall remain as Borrowings by way of Bankers' Acceptances;
(e) a conversion into a Borrowing by way of Libor Loan or Euro Loan shall
only be made to the extent that the conditions outlined in Section
5.2, 6.2 or 9.7 shall not exist in respect thereof on the relevant
Conversion Date;
(f) a conversion into a Borrowing by way of Bankers' Acceptances shall
only be made to the extent that the conditions outlined in Section
7.2.7 or 9.7 shall not exist in respect thereof on the relevant
Conversion Date; and
(g) on the Conversion Date, the total amount of Borrowings outstanding
(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.
3.12.3 ACKNOWLEDGEMENTS:
(a) the conversion of any Borrowing as provided in this Section 3.12 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 3.12, the determination by the Administrative Agent shall
be final and conclusive, save in the case of manifest error.
3.13 DEPOSIT OF PROCEEDS OF LOANS AND DISCOUNTED PROCEEDS
Until such time as the Administrative Agent is otherwise directed by a
Borrower in writing, the Administrative Agent shall deposit to the relevant
Borrower's Account on the applicable Drawdown Date the proceeds of each
Borrowing (other than Swingline Loans) by way of Loans made by such Borrower on
such Drawdown Date and the Discounted Proceeds, less the Acceptance Fee, in
respect of each Bankers' Acceptance of QWI accepted and purchased
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by a Lender (or in respect of each Discount Note of QWI issued to a Lender) on
such Drawdown Date.
With respect to Swingline Loans, the provisions of Section 3.7.2 shall
apply.
3.14 CURRENCY AND OTHER ADJUSTMENTS
If, on the first Business Day of any month during the term of this
Agreement, the Administrative Agent determines that, as a result of a change in
the exchange rate of the US Dollar against the Canadian Dollar, the Euro or any
other currency in which a Letter of Credit has been issued or for any other
reason, the Equivalent Amount in US Dollars of (i) the total of the Borrowings
outstanding in Canadian Dollars, Euros and any other currency in which a Letter
of Credit has been issued under the Facility A, when added to the Borrowings
outstanding in US Dollars under the Facility A, or (ii) the total of the
Borrowings outstanding in Canadian Dollars and Euros under the Facility B, when
added to the total of the Borrowings outstanding in US Dollars under the
Facility B, or (iii) the total of the Borrowings outstanding in Euros and any
other currency in which a Letter of Credit has been issued under the Facility C,
when added to the total of the Borrowings outstanding in US Dollars under the
Facility C, would exceed, as the case may be, the Facility A Total Commitment,
the Facility B Total Commitment or the Facility C Total Commitment by more than
5%, in each case, expressed in US Dollars and as determined on such day, then
the Borrowers shall, within five Business Days following demand by the
Administrative Agent, repay and retire the relevant Borrowings to the extent of
the amount of any such excess or provide full cash collateral (in such manner
and in such form as shall be acceptable to the Administrative Agent and its
Counsel) in the amount of any such excess (in each case, subject to the
provisions of Section 13.2). In the case of a Borrowing outstanding by way of
Bankers' Acceptances, such repayment shall be made by the payment to the
Administrative Agent for the account of the relevant Facility A Lenders or
Facility B Lenders of an amount in Canadian Dollars equal to the face value of
the relevant unmatured Bankers' Acceptances, or such lesser amount as will cover
the excess, and, upon such payment, QWI shall be released from its liability to
the Lenders in respect of such unmatured Bankers' Acceptances to the extent of
the amount so paid. In the case of Borrowings outstanding by way of Letters of
Credit, such repayment shall be made by the payment to the Administrative Agent
for the account of the Applicable Lenders or the applicable LC Issuer, as the
case may be, of an amount (in US Dollars if the Letter of Credit is outstanding
in US Dollars, in Cdn. Dollars if the Letter of Credit is outstanding in Cdn.
Dollars or in US Dollars equal to the Equivalent Amount in US Dollars (the
"OTHER AMOUNT") of such amount outstanding in another currency if the Letter of
Credit is outstanding in another currency) equal to the Face Amount of the
relevant Letter of Credit or such lesser amount as will cover the excess. Upon
such payment, the relevant Borrower shall be released from its liability in
respect of such Letter of Credit to the extent of the amount so paid and if such
Letter of Credit is terminated, expires or is cancelled without having been
drawn by the beneficiary thereof, the Administrative Agent shall return, as soon
as possible, to the applicable Borrower the amount received under this Section
3.14 in connection with such particular Letter of Credit, provided that no
Default or Event of Default has occurred and is continuing, in which case the
Administrative Agent may retain such amount as and by way of collateral security
in accordance with Section 18.11. If at
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the time of drawing by the beneficiary of the applicable Letter of Credit, the
Other Amount so deposited with the Administrative Agent is insufficient, because
of exchange rate fluctuations, to cover the amount of the drawing (the "DRAWING
AMOUNT"), then the applicable Borrower shall pay to the Administrative Agent the
difference between the Other Amount and the Drawing Amount. If, on the other
hand, the Other Amount, at such time, exceeds the Drawing Amount, the
Administrative Agent shall return, as soon as possible, to the applicable
Borrower an amount equal to the excess of the Other Amount over the Drawing
Amount, provided that no Default or Event of Default has occurred and is
continuing, in which case the Administrative Agent may retain such amount as and
by way of collateral security in accordance with Section 18.11.
3.15 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 a Borrower has identified in writing from time to time to
the Administrative Agent or such Lender as being a Person authorized by such
Borrower to give instructions regarding the completion and issuance of Bankers'
Acceptances and Letters of Credit and the drawdown or conversion of other
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 or intentional fault 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 relevant Borrower to the Administrative Agent or the applicable Lender. A
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.
3.16 BORROWINGS AND REPAYMENTS PROPORTIONAL TO COMMITMENTS
Any Borrowing (other than by way of Swingline Loans) and any repayment
under or in respect of any Credit Facility (other than the Swingline
Subfacilities) shall be made through the Administrative Agent (or the applicable
LC Issuer, as the case may be) 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, including the adjustments permitted by Section
7.2.2(b) in respect of Borrowings by way of Bankers' Acceptances.
The applicable Borrower shall make all payments of principal and interest
in respect of the Swingline Loans directly to the applicable Swingline Lender.
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3.17 INCREASE OF THE RELEVANT CREDIT FACILITY
(a) At any time after the execution of this Agreement but no later than
the 90th day preceding the Facility A Maturity Date, the Facility B
Maturity Date or the Facility C Maturity Date, as applicable, and
provided that the aggregate amount of the applicable Credit Facility
has not then been reduced, QWI may, by notice to the Administrative
Agent, request an increase of up to US$200,000,000 in the aggregate to
be allocated among the Credit Facilities as agreed between the
Borrowers and the Administrative Agent, acting reasonably, (an
"INCREASE"). The notice must specify:
(i) the amount of the proposed Increase, which must be a multiple of
US$5,000,000, provided that the aggregate amount of all Increases
made pursuant to this Section may not exceed US$200,000,000; and
(ii) the names of the Persons who have accepted to participate in the
Increase and the amount of their participation, provided that if
any such Person is not already a Lender, said Person would
qualify as a permitted assignee under Sections 19.3 and 19.4 and
its participation would meet the requirements of such Sections as
if the participation were an assignment made hereunder.
(b) Promptly after the giving of such notice, the Administrative Agent,
the Borrowers, the Lenders and the Persons who have accepted to
participate in the Increase will execute an amendment to this
Agreement providing that:
(i) the applicable Credit Facilities will be increased by the amount
of the Increase;
(ii) each Person who has accepted to participate in the Increase will
have a Commitment under the applicable Credit Facility(ies) equal
to the amount of its participation in the Increase (or an
additional Commitment equal to such amount in the case of a
Person who is already a Lender); and
(iii) the new and existing Lenders will make among themselves such
assignments of Borrowings or adjustments as are necessary to
ensure that all outstanding Borrowings under any Credit Facility
are owed to the Lenders under such Credit Facility in the
proportion of their respective Commitments.
and containing such other provisions as may be reasonably necessary to
give effect to the Increase, including conditions precedent to the
effectiveness of the Increase such as the absence of a Default which
is continuing and the delivery of legal opinions.
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(c) For greater certainty, (i) nothing in this Section is intended to
commit any Lender to participate in or the Administrative Agent to
arrange for a participation in an Increase, and (ii) the aggregate
amount of all Increases made pursuant to this Section may not exceed
US$200,000,000.
ARTICLE IV
PAYMENT OF INTEREST AND FEES
4.1 PAYMENT OF INTEREST
Each 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 relevant 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 CDN. PRIME RATE LOANS: QWI shall pay to the Administrative
Agent for the account of the Lenders on each outstanding Cdn. Prime Rate
Loan (other than a Swingline Loan) obtained by it, as evidenced by the Loan
Account, interest in Canadian Dollars for value on each Interest Payment
Date at a rate per annum equal to the Cdn. Prime Rate plus the Applicable
Margin. Each change in the fluctuating interest rate for such Cdn. Prime
Rate Loan will take place concurrently with the corresponding change in the
Cdn. 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 Cdn. Prime Rate Loan
for the actual number of days elapsed during the relevant calendar month
(i.e. during the period from the first to the last day of such calendar
month, inclusively) on the basis of a year of 365 or 366 days, as the case
may be;
QWI shall pay to the applicable Swingline Lender on each outstanding
Swingline Loan which is a Cdn. Prime Rate Loan obtained by it, as evidenced
by the accounts referred to in Section 9.10, interest in Canadian Dollars
for value on each Interest Payment Date at a rate per annum equal to the
Cdn. Prime Rate plus the Applicable Margin. Each change in the fluctuating
interest rate for such Cdn. Prime Rate Loan will take place concurrently
with the corresponding change in the Cdn. 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 Cdn. Prime Rate Loan for the actual number of days elapsed
during the relevant calendar month (i.e. during the period from the first
day to the last day of such calendar month, inclusively) on the basis of a
year of 365 or 366 days, as the case may be;
4.1.2 INTEREST ON US BASE RATE LOANS: QWI shall pay to the Administrative Agent
for the account of the Lenders on each outstanding US Base Rate Loan (other
than a Swingline
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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 Base Rate plus the Applicable Margin. Each change in the
fluctuating interest rate for such US Base Rate Loan will take place
concurrently with the corresponding change in the US Base 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 Base Rate Loan for the actual number of days
elapsed during the relevant calendar month (i.e. during the period from the
first to the last day of such calendar month, inclusively) on the basis of
a year of 365 or 366 days, as the case may be;
QWI shall pay to the applicable Swingline Lender on each outstanding
Swingline Loan which is a US Base Rate Loan obtained by it, as evidenced by
the accounts referred to in Section 9.10, interest in US Dollars for value
on each Interest Payment Date at a rate per annum equal to the US Base Rate
plus the Applicable Margin. Each change in the fluctuating interest rate
for such US Base Rate Loan will take place concurrently with the
corresponding change in the US Base 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
Base Rate Loan for the actual number of days elapsed during the relevant
calendar month (i.e. during the period from the first day to the last day
of such calendar month, inclusively) on the basis of a year of 365 or 366
days, as the case may be;
4.1.3 INTEREST ON US PRIME RATE LOANS: QWUSA shall pay to the Administrative
Agent for the account of the Lenders on each outstanding US Prime Rate Loan
(other than a Swingline 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 rate of interest 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 for the actual number
of days elapsed during the relevant calendar month (i.e. during the period
from the first to the last day of such calendar month, inclusively) on the
basis of a year of 365 or 366 days, as the case may be;
QWUSA shall pay to the applicable Swingline Lender on each outstanding
Swingline Loan which is a US Prime Rate Loan obtained by it, as evidenced
by the accounts referred to in Section 9.10, 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 for the actual number of days elapsed during the
relevant calendar month (i.e. during the period from the first day to the
last day of such calendar month, inclusively) on the basis of a year of 365
or 366 days, as the case may be;
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4.1.4 INTEREST ON LIBOR LOANS: each 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 for the actual number of days elapsed during the period from and
including the Drawdown Date or Conversion Date, as the case may be,
applicable to such Libor Loan, or from the last Libor Interest Date
applicable to such Libor Loan, as the case may be, to, but not including,
the next Libor Interest Date on the basis of a year of 360 days; and
4.1.5 INTEREST ON EURO LOANS: each Borrower shall pay to the Administrative
Agent for the account of the Lenders, on each outstanding Euro Loan, as
evidenced by the Loan Account, interest in Euros for value on each Euro
Interest Date applicable to such Euro Loan, at a rate per annum equal to
the Adjusted Euro Libor plus the Applicable Margin. Such interest shall
accrue from day to day, shall be payable in arrears on each Euro Interest
Date and shall be calculated on the daily outstanding balance of such Euro
Loan for the actual number of days elapsed during the period from and
including the Drawdown Date or Conversion Date, as the case may be,
applicable to such Euro Loan, or from the last Euro Interest Date
applicable to such Euro Loan, as the case may be, to but not including, the
next Euro Interest Date on the basis of a year of 360 days.
Each determination by the Administrative Agent (or by the applicable
Swingline Lender, as applicable) 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 Borrowers. Upon determination of
the rate of interest applicable to a Libor Loan or a Euro Loan, the
Administrative Agent shall notify the relevant Borrower and each relevant Lender
of such rate.
4.2 ACCEPTANCE FEE AND ADJUSTMENTS IN THE ACCEPTANCE FEE AND IN THE ISSUANCE
FEE ARISING FROM CHANGES IN QWI'S DEBT TO EBITDA RATIO
4.2.1 PAYMENT OF ACCEPTANCE FEE: upon acceptance of a Bankers' Acceptance by a
Lender (or the issuance to a Lender of a Discount Note in lieu thereof),
QWI shall pay to the Administrative Agent for the account of such Lender,
the Acceptance Fee set forth in Section 7.2.6 calculated using the
applicable Acceptance Rate;
4.2.2 CHANGE IN QWI'S DEBT TO EBITDA RATIO RESULTING IN A LOWER ACCEPTANCE RATE:
if, during the period from and including the date of acceptance of any
outstanding Bankers' Acceptances issued hereunder up to but excluding the
maturity date thereof (the "BA TERM") there shall occur a change in QWI's
Debt to EBITDA Ratio resulting in a lower Acceptance Rate then being
effective, then the Acceptance Fee in respect of any such Bankers'
Acceptances will be adjusted by the Administrative Agent accordingly on the
maturity date of any such Bankers' Acceptances for the period during the BA
Term starting as of the date at which the lower Acceptance Rate became
effective in
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accordance with Section 4.4 (the "REDUCED ACCEPTANCE FEE"). The Lender(s)
which accepted any such Bankers' Acceptances, upon notification from the
Administrative Agent of any such adjustment on such maturity date, will
credit QWI for the amount (the "ACCEPTANCE FEE REFUND") equal to the
difference between (i) the amount of the Acceptance Fee collected by such
Lender(s) on the acceptance date in respect of any such Bankers'
Acceptances and (ii) the amount of the Reduced Acceptance Fee. Such
Lender(s) shall on such maturity date either (I) pay to the Administrative
Agent for QWI's account the Acceptance Fee Refund, or (II) if such day is
an acceptance date on which one of more Bankers' Acceptances are to be
accepted by such Lender(s) hereunder (as a result of a drawdown, renewal or
conversion), apply the Acceptance Fee Refund to QWI's credit against the
Acceptance Fees otherwise payable to such Lender(s) on such day, and the
balance (if any) of the Acceptance Fee Refund remaining unpaid shall be
paid by such Lender(s) as set out in (I) above;
4.2.3 CHANGE IN QWI'S DEBT TO EBITDA RATIO RESULTING IN A HIGHER ACCEPTANCE
RATE: if, during the BA Term of any outstanding Bankers' Acceptances issued
hereunder, there shall occur a change in QWI's Debt to EBITDA Ratio
resulting in a higher Acceptance Rate then being effective, then the
Acceptance Fee in respect of any such Bankers' Acceptances will be adjusted
by the Administrative Agent accordingly on the maturity date of such
Bankers' Acceptances for the period of the BA Term starting as of the date
at which the higher Acceptance Rate became effective in accordance with
Section 4.4 (the "INCREASED ACCEPTANCE FEE") and the Administrative Agent
shall notify QWI and the Lender(s) which accepted the relevant Bankers'
Acceptances of the amount (the "ADDITIONAL ACCEPTANCE FEE PAYMENT") equal
to the difference between (i) the amount of the Acceptance Fee collected by
such Lender(s) on the acceptance date in respect of any such Bankers'
Acceptances and (ii) the amount of the Increased Acceptance Fee payable to
such Lender(s). QWI shall on such maturity date either (I) pay to the
Administrative Agent for such Lender's account the Additional Acceptance
Fee Payment, or (II) if such day is an acceptance date on which one or more
Bankers' Acceptances are to be accepted by such Lender(s) hereunder (as a
result of a drawdown, renewal or conversion) such Lender(s) shall add the
Additional Acceptance Fee Payment to the Acceptance Fees otherwise payable
to such Lender(s) in respect of the Bankers' Acceptances to be accepted by
it(them) hereunder on such day and such Lender(s) shall collect such
Additional Acceptance Fee Payment out of the Discounted Proceeds of such
Bankers' Acceptances as though the Additional Acceptance Fee Payment formed
part of the Acceptance Fees otherwise payable on such day and the balance,
if any, of the Additional Acceptance Fee Payment remaining unpaid shall be
paid by QWI as set out in (I) above;
4.2.4 CHANGE IN QWI'S DEBT TO EBITDA RATIO RESULTING IN A LOWER ISSUANCE FEE:
if, during the period from and including the Issue Date of any outstanding
Letter of Credit up to but excluding the maturity date thereof (the "LC
TERM") there shall occur a change in QWI's Debt to EBITDA Ratio resulting
in a lower Issuance Fee then being effective, then the Issuance Fee in
respect of any such Letters of Credit will be adjusted by the
Administrative Agent accordingly on the earlier of (i) the maturity date of
any such
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Letters of Credit or (ii) each of the dates of payment of such Issuance Fee
in accordance with Section 8.8 for the period during the LC Term starting
as of the date at which the lower Issuance Fee became effective in
accordance with Section 4.4 (the "REDUCED ISSUANCE FEE"). The Applicable
Lenders, upon notification from the Administrative Agent of any such
adjustment on such maturity date or fee payment dates, will credit QWI for
the amount (the "ISSUANCE FEE REFUND") equal to the difference between (i)
the amount of the Issuance Fee collected by such Lender(s) in respect of
any such Letters of Credit and (ii) the amount of the Reduced Issuance Fee.
Such Lender(s) shall on such maturity date or fee payment dates pay to the
Administrative Agent for QWI's account the Issuance Fee Refund; and
4.2.5 CHANGE IN QWI'S DEBT TO EBITDA RATIO RESULTING IN A HIGHER ISSUANCE FEE:
if, during the LC Term of any outstanding Letters of Credit, there shall
occur a change in QWI's Debt to EBITDA Ratio resulting in a higher Issuance
Fee then being effective, then the Issuance Fee in respect of any such
Letters of Credit will be adjusted by the Administrative Agent accordingly
on the earlier of (i) the maturity date of such Letters of Credit or (ii)
each of the dates of payment of such Issuance Fee in accordance with
Section 8.8 for the period of the LC Term starting as of the date at which
the higher Issuance Fee became effective in accordance with Section 4.4
(the "INCREASED ISSUANCE FEE") and the Administrative Agent shall notify
QWI and the Applicable Lender(s) of the amount (the "ADDITIONAL ISSUANCE
FEE PAYMENT") equal to the difference between (i) the amount of the
Issuance Fee collected by such Lender(s) in respect of any such Letters of
Credit and (ii) the amount of the Increased Issuance Fee payable to such
Lender(s). QWI shall on such maturity date or fee payment dates pay to the
Administrative Agent for such Lender's account the Additional Issuance Fee
Payment.
4.3 COMMITMENT FEE
On the third Business Day of July, October, January and April of each year
and on (i) the Facility A Maturity Date in respect of the Facility A, (ii) the
Facility B Maturity Date in respect of the Facility B and (iii) the Facility C
Maturity Date in respect of the Facility C (each a "COMMITMENT FEE PAYMENT
DATE") during the period commencing on the Formal Date (as defined in the
Original Credit Agreement) and ending on in respect of (x) the Facility A, the
Facility A Maturity Date, (y) the Facility B, the Facility B Maturity Date and
(z) the Facility C, the Facility C Maturity Date, the Borrowers 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 Total Commitment, the Facility B Total Commitment
or the Facility C Total 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 Total Commitment, the Facility B Total Commitment, and the
Facility C Total Commitment, as applicable, for the actual number of days
elapsed during the relevant calendar quarter (i.e. during the period from the
first to the last day of such calendar quarter, inclusively) on the basis of a
year of 365 days or 366 days, as the case may be. Such undrawn portion shall be
calculated
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by deducting from the Facility A Total Commitment, the Facility B Total
Commitment and the Facility C Total Commitment, as applicable, (i) the daily
outstanding amount of all Borrowings under the applicable Credit Facility other
than Swingline Loans and (ii) the average daily outstanding amount of Swingline
Loans under the applicable Credit Facility. For purposes of this calculation,
each Swingline Lender shall deliver to the Administrative Agent on the first
Business Day of each calendar month the average daily outstanding amounts of the
Swingline Loans made by such Swingline Lender for the calendar month just ended.
The Commitment Fee is payable in US Dollars. In connection with the Facility A
and Facility B, each Lender shall advise, from time to time, the Administrative
Agent and the Borrowers of the allocation of the Commitment Fee payable to it
among its branches, offices and/or affiliates designated to act, on its behalf,
as Cdn Qualified Lender and US Qualified Lender (the "COMMITMENT FEE
ALLOCATION") and each of the parties hereto recognizes that notwithstanding any
payment instructions given by the Lenders to the Administrative Agent from time
to time, any and all such Commitment Fee payable to a Cdn Qualified Lender
pursuant to the Commitment Fee Allocation shall be paid by or on behalf of QWI
and any and all such Commitment Fee payable to a US Qualified Lender pursuant to
the Commitment Fee Allocation shall be paid by or on behalf of QWUSA. In
connection with the Commitment Fee payable in respect of the Facility C, QWUSA
shall pay such Commitment Fee for the benefit of the Facility C Lenders.
4.4 APPLICABLE MARGIN AND FEE RATE MATRIX
In determining the interest rates and fees payable under Sections 4.1 to
4.3 inclusive and under Section 8.8 (1), reference shall be made to QWI's Debt
to EBITDA Ratio applicable as indicated on the following matrix. The Applicable
Margin, Acceptance Rate, Commitment Fee Rate and Issuance Fee, as the case may
be, shall be determined by reference to the appropriate tier of pricing
appearing on the said matrix (the Applicable Margin, Acceptance Rate, Commitment
Fee Rate and Issuance Fee set forth in the following matrix being each effective
as of the Effective Date and for greater certainty not retroactively).
[INTENTIONALLY DELETED FOR FILING PURPOSES.]
4.5 ADMINISTRATIVE AGENT'S FEES AND OTHER FEES
QWI covenants and agrees to pay the Administrative Agent for its own
account all such fees as may be set forth in a letter agreement made on November
15, 2005 between QWI and the Administrative Agent. Such fees shall be payable in
the amounts, currencies and at the times provided therein.
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 defaulting 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,
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the defaulting 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 having failed to make the
payment 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 (a) if the overdue amount is denominated in US
Dollars and is owed by QWI, the sum of the US Base Rate in effect from time
to time plus the Applicable Margin for a US Base Rate Loan at such time
plus 2% per annum, (b) if the overdue amount is denominated in US Dollars
and is owed by QWUSA, 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, (c) if the overdue amount is denominated in Canadian Dollars,
the sum of the Cdn. Prime Rate in effect from time to time plus the
Applicable Margin for Cdn. Prime Rate Loans at such time plus 2% per annum
and (d) if the overdue amount is denominated in Euros, the sum of the
Adjusted Euro Libor as would be applicable to a Euro Loan hereunder with a
Euro Interest Period of one month and in an amount equal to the overdue
amount plus the Applicable Margin for a Euro 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 and Euro Loans.
All interest provided for in this Agreement shall be payable both before
and after maturity, default and judgment.
4.7 COMPUTATION OF INTEREST FOR INTEREST ACT (CANADA) PURPOSES
4.7.1 NOMINAL RATE OF INTEREST: unless otherwise stated, wherever in this
Agreement reference is made to a rate of interest "per annum" or a similar
expression is used, such interest shall be calculated on the basis of a
calendar year of 365 or 366 days, as the case may be, and using the nominal
rate method of calculation and shall not be calculated using the effective
rate method of calculation or any other basis that gives effect to the
principle of deemed reinvestment of interest; and
4.7.2 INTEREST ACT (CANADA) DISCLOSURE: for the purpose of the Interest Act
(Canada) and disclosure thereunder, whenever interest to be paid hereunder
is to be calculated on the basis of a year of 360 days or any other period
of time that is less than a calendar year, the yearly rate of interest to
which the rate determined pursuant to such calculation is equivalent is the
rate so determined multiplied by the actual number of days in the calendar
year in which the same is to be ascertained and divided by either 360 or
such other period of time, as the case may be.
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ARTICLE V
CONDITIONS APPLICABLE TO LIBOR LOANS
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 3.7 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 a Borrower has requested a
Borrowing by way of Libor Loan pursuant to Section 3.7 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 3.12, such
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 3.7 stating the selected duration (being a duration
of approximately one month, two months, three months, six months or up to
one year or, subject to availability to each Lender, a duration of
approximately 10 to 180 days) of the next applicable Libor Interest Period
for such Borrowing or setting forth the intention of the said 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, a Borrower fails to give notice as provided in Section 5.1.2,
the said Borrower shall be
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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 Base Rate Loan or a US Prime Rate Loan, as applicable.
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 Borrowers) and
notifies the Administrative Agent in accordance with Section 18.6 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 Borrowers 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 Borrowers 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 such other form of Borrowings then available under the
relevant Credit Facility as the relevant Borrower may request by notice to the
Administrative Agent or failing such notice by the said Borrower, into a US Base
Rate Loan or a US Prime Rate Loan, as applicable, 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 such other forms of Borrowings or in US Base Rate Loans or US
Prime Rate Loans, as the case may be. Alternatively, the Borrowers:
(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 19.3 provided that (i) no
Event of Default or Default has occurred which is
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continuing, (ii) the replacement Lender is acceptable to the Administrative
Agent, acting reasonably, (iii) the Borrowers have satisfied all their
obligations to such Affected Lender under this Agreement and (iv) the
Borrowers have paid the US$3,500 processing and recordation fee required
pursuant to Section 19.7 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 3.11.2 provided that (i) no
Event of Default or Default has occurred which is continuing and (ii) the
Borrowers have satisfied all their 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 except as otherwise provided hereunder).
ARTICLE VI
CONDITIONS APPLICABLE TO EURO LOANS
6.1 SELECTION OF EURO INTEREST PERIODS
6.1.1 AMOUNT AND AVAILABILITY: all Euro Loans shall be drawn down in Euros in
the minimum amounts set forth in Section 3.7 and shall be for a Euro
Interest Period as selected pursuant to Section 6.1.2, subject to
availability to each Lender, respectively;
6.1.2 SELECTION OF EURO INTEREST PERIOD: if a Borrower has requested a Borrowing
by way of Euro Loan pursuant to Section 3.7 or wishes to choose a new Euro
Interest Period for an outstanding Euro Loan (and thus renew such
outstanding Euro Loan without novation) or has chosen to convert an
existing Borrowing into a Euro Loan pursuant to Section 3.12, such Borrower
shall, prior to the relevant Drawdown Date or the expiry of the relevant
Euro 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 3.7 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 Euro Interest Period for such Borrowing or
setting forth the intention of the said Borrower to repay or convert such
Euro Loan at the end of the current Euro Interest Period, it being
understood that:
(a) in the case of a Borrowing by way of Euro Loan which is already
outstanding, the Euro Interest Period shall commence on and include
the last day of the then current Euro Interest Period for such
Borrowing;
(b) the Euro Interest Period is subject to availability to each relevant
Lender;
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(c) whenever the last day of any Euro Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Euro
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 Euro Interest Period to occur in the next
following calendar month, the last day of such Euro Interest Period
shall occur on the immediately preceding Business Day; and
(d) whenever the first day of any Euro 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 Euro Interest Period, such Euro Interest Period shall end on
the last Business Day of such succeeding calendar month; and
6.1.3 DEEMED CONVERSION: if, in respect of a Euro Loan which is already
outstanding, a Borrower fails to give notice as provided in Section 6.1.2,
the said Borrower shall be deemed to have notified the Administrative Agent
on behalf of the relevant Lenders of its intention to convert, without
novation, the Equivalent Amount in US Dollars of the relevant Euro Loan
into a US Base Rate Loan or a US Prime Rate Loan, as applicable, (the
calculation of such conversion to be made in accordance with Section 3.12).
6.2 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 Borrowers) and
notifies the Administrative Agent in accordance with Section 18.6 that:
(a) adequate and fair means do not exist for ascertaining the rate of interest
with respect to a Euro Loan,
(b) the cost to such Lender of making, funding or maintaining its Lender's
Proportion of a Euro Loan does not accurately reflect its effective cost in
respect thereof,
(c) the making or continuing of Euro Loans by such Lender has been made
impracticable by the occurrence of any event which materially and adversely
affects the interbank Euro market, or
(d) deposits in Euros are not available to such Lender in the interbank Euro
market in sufficient amounts in the ordinary course of business for the
applicable Euro Interest Period to make, fund or maintain a Euro Loan
during such Euro Interest Period,
then, the Administrative Agent shall, on behalf of the Lender affected by such
event or circumstance (the "AFFECTED LENDER"), notify the Borrowers 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
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until notice to the contrary is given to the Borrowers 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 Euro Interest Period, automatically
be converted (with the calculation of the Equivalent Amount of the currency into
which the Affected Loan is to be converted into to be made in accordance with
Section 3.12) without novation into such other form of Borrowings then available
under the relevant Credit Facility as the relevant Borrower may request by
notice to the Administrative Agent or failing such notice by the said Borrower,
into a US Base Rate Loan or a US Prime Rate Loan, as applicable, 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 such other forms of Borrowings or in US
Base Rate Loans or US Prime Rate Loans, as the case may be. Alternatively, the
Borrowers:
(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 19.3 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 Borrowers have satisfied all their obligations to
such Affected Lender under this Agreement and (iv) the Borrowers have paid
the US$3,500 processing and recordation fee required pursuant to Section
19.7 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 3.11.2 provided that (i) no
Event of Default or Default has occurred which is continuing and (ii) the
Borrowers have satisfied all their 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 except as otherwise provided hereunder).
6.3 ELECTION OF EURIBOR AS BASIS FOR THE CALCULATION OF INTEREST APPLICABLE TO
EURO LOANS
QWI, at any time during the term of this Agreement, may by way of a 30-day
written notice to the Administrative Agent (who shall transmit same to the
Lenders) request that the rate of interest on Euro Loans be established on the
basis of Euribor, in which case, upon the expiry of the 30-day period (or at
such later day as may be specified by QWI in its said notice or as may be agreed
to between the Administrative Agent and QWI), all Euro Loans shall as and from
the said date bear interest on the basis of Euribor except for each Euro Loan
then outstanding which shall continue to bear interest at the rate of interest
then applicable to such Euro Loan until the expiry of the Euro Interest Period
then applicable thereto.
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ARTICLE VII
CONDITIONS APPLICABLE TO BANKERS' ACCEPTANCES
7.1 BANKERS' ACCEPTANCES
QWI may effect Borrowings under the Facility A or the Facility B by way of
Bankers' Acceptances denominated in Canadian Dollars in accordance with the
provisions of Section 3.7 and this Article VII. Any reference in this Article
VII to a "Lender" or "Lenders" should be read as applying only to the Facility A
Lenders or the Facility B Lenders, as the case may be.
At the discretion of a Lender, Bankers' Acceptances to be accepted by such
Lender may be issued in the form of "depository bills" within the meaning of the
Depository Bills and Notes Act (Canada) and deposited with the Canadian
Depository for Securities Limited ("CDS") and may be made payable to "CDS & Co."
or in such other name as may be acceptable to CDS and thereafter dealt with in
accordance with the rules and procedures of CDS, consistent with the terms of
this Agreement.
For the purposes of this Agreement, the full face value of Bankers'
Acceptances, without Discount, shall be used when calculations are made to
determine the amount of Borrowings.
Each determination by the Administrative Agent of the Acceptance Fee, the
Discount Rate, the Discounted Proceeds and the Discount shall, in the absence of
manifest error be final, conclusive and binding on the Borrowers and the
Lenders.
7.2 CONDITIONS APPLICABLE TO BANKERS' ACCEPTANCES
7.2.1 NOTICE BY BORROWER: QWI shall request that Advances be made by way of
Bankers' Acceptances, that outstanding Borrowings be converted into
Bankers' Acceptances or that Borrowings outstanding by way of Bankers'
Acceptances be renewed in the same form of Borrowing, by giving on a timely
basis the notice required under Section 3.7, 3.12 or 7.2.5, as applicable;
7.2.2 PROCEDURES FOR THE ISSUE OF BANKERS' ACCEPTANCES:
(a) Bankers' Acceptances issued pursuant to this Agreement:
(i) shall be denominated in Canadian Dollars, in amounts of
Cdn.$100,000 or multiples thereof,
(ii) shall be issued, in respect of all Lenders, in a minimum
aggregate amount of Cdn.$10,000,000 and whole multiples of
Cdn.$1,000,000 in excess of such minimum aggregate amount,
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(iii) shall have a term of one month, two months, three months or six
months, or of approximately 10 to 180 days in each case excluding
days of grace and subject to availability to each Lender,
respectively,
(iv) shall mature on a Business Day on or before the Facility A
Maturity Date or the Facility B Maturity Date, as applicable, and
(v) will be purchased by each Lender for its own account, each Lender
(other than a Non-B-A Lender) reserving the right to sell or
trade them in the money market either directly or through stock
brokers or dealers;
(b) the aggregate face amount of the Bankers' Acceptances to be accepted by a
Lender shall be determined by the Administrative Agent by reference to its
Lender's Proportion, except that, if the face amount of a Bankers'
Acceptance which would otherwise be accepted by a Lender would not be
Cdn.$100,000 or a whole multiple thereof, such face amount shall be
increased or reduced by the Administrative Agent in its sole discretion to
Cdn.$100,000 or the nearest whole multiple of that amount, as appropriate,
provided however that Borrowings from any Lender may not, as a result of
the foregoing, exceed the relevant Commitment of such Lender; and
(c) Upon each issue of Bankers' Acceptances:
(i) which are purchased by the Lenders for their own account, QWI shall be
entitled to be credited by the Administrative Agent on behalf of the
said Lenders with the Discounted Proceeds thereof, less the Acceptance
Fee,
(ii) as a result of the conversion of outstanding Borrowings into Bankers'
Acceptances or as a result of the renewal of outstanding Bankers'
Acceptances, QWI shall, concurrently with the conversion or renewal,
pay in advance to the Administrative Agent on behalf of the accepting
Lenders an amount equal to the Discount applicable to such issue, to
be applied against the principal amount of the Borrowing being so
converted or renewed, plus the applicable Acceptance Fee;
7.2.3 DELIVERY BY BORROWER OF BANKERS' ACCEPTANCES AND POWER OF ATTORNEY FOR
THEIR EXECUTION: as a condition precedent to the obligation of a Lender to
accept Bankers' Acceptances hereunder, QWI shall have delivered to such
Lender sufficient bankers' acceptances signed and endorsed in blank in
sufficient time to enable such Lender to hold and complete same in
accordance with a request from QWI through the Administrative Agent.
Alternatively, to facilitate availment of the Borrowings by way of Bankers'
Acceptances, QWI hereby appoints each Lender as its agent to sign and
endorse on its behalf, in handwriting or by facsimile or mechanical
signature as and when deemed necessary by such Lender, blank forms of
Bankers' Acceptances in order to allow each Lender to complete and accept
from time to time such instruments in the aggregate and face amounts and
for the maturities chosen by QWI (subject to the provisions of Sections 7.3
and 7.4). In this respect, each Lender will maintain an
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adequate supply of blank forms of Bankers' Acceptances so pre-signed and
pre-endorsed for acceptance hereunder. QWI recognizes and agrees that all
Bankers' Acceptances signed and/or endorsed on its behalf by a Lender shall
bind QWI as fully and effectually as if signed in the handwriting of and
duly issued by the proper signing officers of QWI. In this connection, the
parties also agree as follows:
(a) no Lender shall be liable for any damage, loss or other claim arising
by reason of any loss or improper use of any bankers' acceptance
signed and endorsed in blank as aforesaid except any loss arising by
reason of the gross or intentional fault of such Lender or its
officers, employees, agents or representatives failing to use the same
standards of care in the custody of such bankers' acceptances as such
Lender uses in the custody of its own property of a similar nature;
(b) in accordance with the instructions given from time to time by QWI,
each relevant Lender is hereby authorized to complete the
aforementioned Bankers' Acceptance forms, to provide its acceptance
thereon, to provide (when applicable) the Discounted Proceeds thereof
to the Administrative Agent for the account of QWI and, at each such
Lender's option, to put them into circulation, the whole as provided
in and subject to this Agreement; and
(c) on request by or on behalf of QWI, a Lender shall cancel all forms of
Bankers' Acceptance which have been pre-signed or pre-endorsed by or
on behalf of QWI and which are held by the said Lender and have not
yet been issued in accordance herewith;
7.2.4 EXECUTION OF BANKERS' ACCEPTANCES: drafts of QWI to be accepted as
Bankers' Acceptances hereunder shall be signed as set forth in Section
7.2.3. Notwithstanding that any person whose signature appears on any
Bankers' Acceptance may no longer be an authorized signatory for QWI at the
date of issuance of a Bankers' Acceptance, such signature shall
nevertheless be valid and sufficient for all purposes as if such authority
had remained in force at the time of such issuance and any such Bankers'
Acceptance so signed shall be binding on QWI;
7.2.5 PROCEDURES RELATING TO THE MATURITY AND FACE AMOUNT OF ALL BANKERS'
ACCEPTANCES:
(a) Notification to Administrative Agent: if Bankers' Acceptances are
outstanding hereunder, QWI shall, prior to the date of maturity of the
then current Bankers' Acceptances issued by it, irrevocably notify the
Administrative Agent of its intention to repay, renew or convert such
Borrowing at the maturity of the related Bankers' Acceptances, such
notice to be given by telephone within notice periods similar to those
provided in Section 3.7, followed by written confirmation on the same
day substantially in the form attached as Schedule 3.7 or such other
form as may be acceptable to the Administrative Agent;
(b) Renewal Term: if QWI shall choose to renew a Borrowing outstanding by
way of Bankers' Acceptances in the same form of Borrowing, QWI shall
cause the term
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of the new Bankers' Acceptances to commence on and include the date of
maturity of the relative Bankers' Acceptances being renewed;
(c) Failure to Notify: if QWI fails to notify the Administrative Agent as
provided in Section 7.2.5(a), QWI shall be deemed to have notified the
Administrative Agent on behalf of the Lenders of its intention to
convert the relevant Borrowing by way of Bankers' Acceptances into a
Cdn. Prime Rate Loan;
(d) Payment on Maturity: QWI shall, by no later than 12:00 noon on the
maturity date of each Bankers' Acceptance, pay to each relevant Lender
an amount equal to the face amount of all Bankers' Acceptances
accepted by such Lender and maturing on that day (i) by effecting such
payment out of its own funds to the Administrative Agent for the
benefit of the relevant Lender, or (ii) by converting such Borrowing
by way of Bankers' Acceptances into another form of Borrowing then
available hereunder or (iii) by renewing such Bankers' Acceptances
hereunder, subject to the payment of the Discount as provided in
Section 7.2.2(c)(ii) and in each case of renewal, the payment of the
Discounted Proceeds together with the Discount paid to such Lender in
respect thereof as provided in Section 7.2.2(c)(ii) shall be applied
by the said Lender to the reduction of the Borrowing being renewed;
and
(e) Failure to Pay: in the event that QWI fails to provide payment of the
face amount of a Bankers' Acceptance on its maturity date as required
pursuant to Section 7.2.5(d), then the Canadian Dollar amount of such
failed payment shall be deemed for all purposes of this Agreement to
be and shall be treated in all respects as a Borrowing by way of a
Cdn. Prime Rate Loan as and from such maturity date;
7.2.6 ACCEPTANCE FEE: QWI shall pay to the Administrative Agent for the account
of each of the relevant Lenders the Acceptance Fee in Canadian Dollars
forthwith upon the acceptance by a Lender of a Bankers' Acceptance issued
by QWI. QWI authorizes and directs the Administrative Agent and the Lenders
to deduct from the Discounted Proceeds of Bankers' Acceptances purchased by
the Lenders for their own account, the amount of each such Acceptance Fee
upon the issue of each Bankers' Acceptance;
7.2.7 ALTERNATE BASIS OF BORROWING: if at any time during the term of this
Agreement, a Lender or, as the case may be, the Administrative Agent
determines in good faith (which determination shall be final, conclusive
and binding upon QWI) that by reason of circumstances or changes affecting
the market for Bankers' Acceptances:
(a) it is no longer possible for that Lender to establish the Discount
Rate in respect of Bankers' Acceptances accepted by it, or
(b) the market for Bankers' Acceptances no longer exists, is too weak for
its normal use by the Lenders or is not capable in the normal course
of business to absorb Bankers' Acceptances accepted by the Lenders,
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then, the Administrative Agent shall immediately (or in the case of (a)
above upon receipt of notice from the relevant Lender) notify QWI of its
determination in writing. For so long as the circumstances referred to in
paragraphs (a) or (b) of this subsection shall continue, the affected
Lender (the "AFFECTED LENDER") shall not be obliged to make any further
Borrowings available by way of Bankers' Acceptances and thereafter, until
notice to the contrary is given to QWI by the Administrative Agent, the
Affected Lender shall only be obligated to make other forms of Borrowings
available to QWI hereunder, and the principal amount of all Borrowings
outstanding by way of Bankers' Acceptances owed to such Lender shall, at
the expiry of the related Bankers' Acceptances, be converted without
novation into such other form of Borrowing as QWI may request by notice to
the Administrative Agent or failing such notice, into Cdn. Prime Rate
Loans. Alternatively, QWI:
(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
19.3 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) QWI has satisfied all
its obligations to such Affected Lender under this Agreement and (iv)
QWI has paid the US$3,500 processing and recordation fee required
pursuant to Section 19.7 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 3.11.2 provided
that (i) no Event of Default or Default has occurred which is
continuing and (ii) QWI 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 except as otherwise
provided hereunder);
7.2.8 WAIVER OF CLAIM: QWI shall have no right to set up as against any of the
Lenders or the Administrative Agent any defense or right of action, of
indemnification or of set-off or compensation or any similar claim of any
nature whatsoever which QWI may have had at any time or may have in the
future with respect to any holder of one or more Banker's Acceptance(s)
issued hereunder;
7.2.9 ADMINISTRATIVE AGENT TO FURNISH DETAILS OF BORROWINGS TO LENDERS: with
respect to each Borrowing by way of Bankers' Acceptances, after QWI has
given notice to the Administrative Agent as stipulated in Section 3.7, 3.12
or 7.2.5, the Administrative Agent shall on the Business Day prior to the
relevant Drawdown Date, Conversion Date or renewal date, advise each
relevant Lender of:
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(a) the amount, date and term of the Bankers' Acceptances; and
(b) each Lender's participation in such issue of Bankers' Acceptances;
and on the relevant Drawdown Date, Conversion Date or renewal date, the
Administrative Agent shall advise each relevant Lender of the Discount
Rate, the Discounted Proceeds, the Discount and the Acceptance Fee
applicable thereto. To enable the Administrative Agent so to advise each
relevant Lender, those Lenders, if any, whose discount rates are to be used
in the calculation of Discount Rates applicable to Bankers' Acceptances
agree to advise the Administrative Agent of their respective discount rates
at or about 10:00 a.m. on the date of issuance of any such Bankers'
Acceptances;
7.2.10 ADVANCE TO BE MADE THROUGH ADMINISTRATIVE AGENT: on the Drawdown Date of
each Advance by way of Bankers' Acceptances, each relevant Lender agrees to
provide the Discounted Proceeds of the Bankers' Acceptances accepted by it
(or the Discount Notes issued to it), less the Acceptance Fee, to the
Administrative Agent at the Administrative Agent's Account for Payments for
value on such Drawdown Date; and
7.2.11 PAYMENT BY LENDER ON MATURITY: on the maturity date of each Bankers'
Acceptance issued hereunder, each relevant Lender, at such Lender's
Montreal or Toronto main branch or office, will pay to the redeeming
holder, if any, of each Bankers' Acceptance, at the time of presentment
thereof, the face amount of such Bankers' Acceptance.
7.3 BA EQUIVALENT LOANS BY NON-BA LENDERS
Whenever QWI makes a Borrowing under this Agreement by way of Bankers'
Acceptances, each Non-BA Lender shall, in lieu of accepting a Bankers'
Acceptance, make a BA Equivalent Loan.
7.4 SPECIAL CONDITIONS APPLICABLE TO NON-BA LENDERS
The provisions of this Article VII dealing with Bankers' Acceptances apply
to the Non-BA Lenders, provided that each of the Non-BA Lenders shall execute
its obligations pursuant to this Article VII by effecting (in the case of an
Advance) or maintaining (in the case of a conversion or renewal of a Borrowing)
direct advances to QWI through the Administrative Agent, equal to its Lender's
Proportion of each Borrowing to be outstanding by way of Bankers' Acceptances,
and not by accepting Bankers' Acceptance instruments as provided herein. In
order to allow the Non-BA Lenders to derive benefits comparable to those enjoyed
by the other Lenders under this Article VII in respect of each Borrowing by way
of Bankers' Acceptances, each of the Non-BA Lenders may deduct for its own
account, from each Borrowing which would otherwise be granted by way of the
issue and acceptance of Bankers' Acceptances, an amount equivalent to the total
of the Discount and the Acceptance Fee applicable to such Borrowing by way of
Bankers' Acceptances. QWI shall deliver to each of the Non-BA Lenders
non-interest bearing Discount Notes substantially in the form of Schedule 1.1.2
in lieu of the forms of Bankers' Acceptances used by the other Lenders; provided
that the Borrowings from
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the Non-BA Lenders to be evidenced by such Discount Notes shall in no
circumstance be deemed to constitute the novation of a previous Borrowing being
converted or renewed hereunder, such Discount Notes being intended to serve
merely as the confirmation of the current method of computing the cost of such
converted or renewed Borrowing. At the time of each Borrowing by way of Bankers'
Acceptances, such form of Discount Notes shall be completed as follows: they
shall be payable to the order of the Non-BA Lender, shall be in principal
amounts equal to its Lender's Proportion of the related Borrowings to be
outstanding by way of Bankers' Acceptances and shall have the same maturities as
are applicable to such Borrowings.
The provisions of this Agreement dealing with Bankers' Acceptances
(including the provisions of Section 7.2.3 relating to their execution by the
Lenders under power of attorney) shall apply mutatis mutandis to Discount Notes
to be issued to Non-BA Lenders, with all adjustment to the language of such
provisions which may be desirable to give full effect to the spirit and intent
of this Section (except that no Discount Note may be sold, traded, negotiated,
rediscounted or otherwise disposed of by Non-BA Lenders, except as contemplated
by Article XIX hereof).
ARTICLE VIII
CONDITIONS APPLICABLE TO LETTERS OF CREDIT
8.1 LETTERS OF CREDIT COMMITMENT
Each Lender, under the relevant Credit Facility, agrees (on a several basis
with the other Lenders up to the amount of such Lender's Commitment), subject to
the terms and conditions herein set forth, from time to time on any Business
Day, to (a) issue POA Letters of Credit under the applicable Credit Facility,
for the account of the relevant Borrower prior to the cancellation or
termination thereof and (b) to participate in Fronted Letters of Credit;
provided that at no time shall:
(i) the Aggregate Face Amount of all outstanding Letters of Credit exceed
the LC Aggregate Commitment,
(ii) the Aggregate Face Amount of all outstanding Letters of Credit issued
under Facility A exceed the LC A Commitment; and
(iii) the Aggregate Face Amount of all outstanding Letters of Credit issued
under Facility C exceed the LC C Commitment.
Letters of Credit shall be issued by way of, as selected by the relevant
Borrower, either:
(a) a Letter of Credit (a "FRONTED LETTER OF CREDIT") issued by the
applicable Issuing Bank on behalf of the Applicable Lenders under the
applicable Credit Facility on a "fronting" basis as contemplated by
Section 8.2; or
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(b) a Letter of Credit (a "POA LETTER OF CREDIT") issued by the
Administrative Agent as attorney of the Applicable Lenders under the
applicable Credit Facility in accordance with Section 8.3.
As used in this Agreement, the term "LC ISSUER" means, as the context
requires, either the applicable Issuing Bank that accepts to act as issuer of a
Fronted Letter of Credit or the Administrative Agent as the issuer of a POA
Letter of Credit as attorney for the Applicable Lenders.
8.2 FRONTED LETTERS OF CREDIT
In the event that a Fronted Letter of Credit shall be issued on behalf of
the Applicable Lenders by an Issuing Bank:
(a) the Face Amount in respect of such Letter of Credit shall be
considered to be allocated among the Applicable Lenders under the
applicable Credit Facility on the basis of their respective Lender's
Proportion, and on the basis that each such Lender is liable to, and
by entering into this Agreement agrees to, indemnify and hold harmless
the applicable Issuing Bank in relation to such Issuing Bank's
liability as issuer of such Letter of Credit to the extent of the
amount of such Lender's Proportion of such liability;
(b) for greater certainty and without limiting the generality of Section
8.12, the Face Amount in respect of such Letter of Credit among the
Applicable Lenders shall be adjusted in the circumstances and in the
manner contemplated by Section 8.12 in order to reflect the issuance
of Fronted Letters of Credit by the applicable Issuing Bank on behalf
of such Lenders.
8.3 POA LETTERS OF CREDIT
The provisions of this Section 8.3 shall apply to POA Letters of Credit.
(1) Issuance on behalf of Applicable Lenders. Each POA Letter of Credit
shall be issued by the Administrative Agent on behalf of all
Applicable Lenders under the applicable Credit Facility as a single
multi-Lender Letter of Credit, but the obligation of each such Lender
thereunder shall be several, and not joint or solidary, based upon its
share (on the basis of its Lender's Proportion) in effect on the date
of issuance of such POA Letter of Credit, subject to any changes
resulting from a change in such Lender's Proportion after the date of
issuance of the POA Letter of Credit that are effected in accordance
with the terms of the POA Letter of Credit. Each POA Letter of Credit
shall include the provisions contained in, and shall be substantially
in the form of Schedule 8, and shall otherwise be in a form
satisfactory to the Administrative Agent. Without the unanimous
consent of the Lenders under a Credit Facility, no POA Letter of
Credit shall be issued under such Credit Facility which varies the
several and not joint (or solidary) nature of the liability of each
Lender thereunder.
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(2) Administrative Agent as Agent and Attorney. Each POA Letter of Credit
shall be executed and delivered by the Administrative Agent in the
name and on behalf of, and as attorney-in-fact for, each Applicable
Lender party to such Letter of Credit. The Administrative Agent shall
act under each POA Letter of Credit as the agent of each Applicable
Lender under the applicable Credit Facility to:
(a) receive documents presented by the beneficiary under such POA
Letter of Credit;
(b) determine whether such documents are in compliance with the terms
and conditions of such POA Letter of Credit; and
(c) notify such Lender and the relevant Borrower that a valid drawing
has been made and the date that the related payment under such
POA Letter of Credit is to be made; provided that the
Administrative Agent (in such capacity) shall have no obligation
or liability for any payment to be made under any POA Letter of
Credit and each POA Letter of Credit shall expressly so provide.
(3) Power of Attorney. Each Applicable Lender under the applicable Credit
Facility hereby irrevocably appoints and designates the Administrative
Agent as its attorney-in-fact, acting through any duly authorized
officer of the Administrative Agent, to execute and deliver each POA
Letter of Credit to be issued by such Lender hereunder in the name and
on behalf of such Lender. In addition, promptly upon the request of
the Administrative Agent, each Applicable Lender will furnish to the
Administrative Agent such powers of attorney or other evidence as any
beneficiary of any POA Letter of Credit may reasonably request in
order to demonstrate that the Administrative Agent has the power to
act as attorney-in-fact for such Lender to execute and deliver such
POA Letter of Credit. The Borrowers and the Lenders agree that each
POA Letter of Credit shall provide that all documents presented
thereunder shall be delivered to the Administrative Agent and that all
payments thereunder shall be made by the Lenders obligated thereon
through the Administrative Agent. Each Applicable Lender under the
applicable Credit Facility shall be severally liable under each POA
Letter of Credit in proportion to its Lender's Proportion on the date
of issuance of such POA Letter of Credit and each POA Letter of Credit
shall specify each such Lender's Proportion of the amount payable
thereunder.
(4) Documents and Payment Demands. The Borrowers and each Lender hereby
authorize the Administrative Agent to review on behalf of each
relevant Lender each document presented under each POA Letter of
Credit. The determination of the Administrative Agent as to the
conformity of any documents presented under a POA Letter of Credit to
the requirements of such POA Letter of Credit shall be conclusive and
binding on the relevant Borrower and each Lender; provided that the
Administrative Agent acts in accordance with the standards of
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reasonable care specified in the Uniform Customs. The Administrative
Agent shall, within a reasonable time following its receipt thereof,
examine all documents purporting to represent a demand for payment
under any POA Letter of Credit. The Administrative Agent shall
promptly after such examination:
(a) notify each of the Lenders obligated under such POA Letter of
Credit and the relevant Borrower by telephone (confirmed in
writing) of such demand for payment and of each Lender's Lender's
Proportion of such payment;
(b) deliver to each Applicable Lender under the applicable Credit
Facility and the relevant Borrower a copy of each document
purporting to represent a demand for payment under such POA
Letter of Credit; and
(c) notify each Applicable Lender under the applicable Credit
Facility and the relevant Borrower whether the demand for payment
was properly made under such POA Letter of Credit.
(5) Drawings. With respect to any drawing determined by the Administrative
Agent to have been properly made under a POA Letter of Credit, each
Applicable Lender under the applicable Credit Facility will make a
payment under the POA Letter of Credit in accordance with its
liability under the POA Letter of Credit and this Agreement. The
payment shall be made to the Administrative Agent's Account for
Payments or such other account as the Administrative Agent designates
by notice to the Lenders. Such payment shall be made in US Dollars or
in Canadian Dollars if the relevant POA Letter of Credit is in US
Dollars or in Canadian Dollars or shall be made in US Dollars (in an
amount equal to the applicable Equivalent Amount) for Letters of
Credit issued in a currency other than Canadian Dollars or US Dollars.
The Administrative Agent will promptly make any such payment available
to the beneficiary of such POA Letter of Credit. Promptly following
any payment by any Lender in respect of any POA Letter of Credit, the
Administrative Agent will notify the relevant Borrower of such
payment, but any failure to give or delay in giving such notice shall
not relieve such Borrower of its obligation to reimburse the Lenders
with respect to any such payment. The responsibility of the
Administrative Agent and the Lenders in connection with any document
presented for payment under any POA Letter of Credit shall, in
addition to any payment obligation expressly provided in such POA
Letter of Credit, be limited to determining that the documents
delivered under such Letter of Credit in connection with such
presentment are in conformity with such POA Letter of Credit. The
Administrative Agent shall not be required to make any payment under a
POA Letter of Credit in excess of the amount received by it from the
Applicable Lenders under the applicable Credit Facility for such
payment.
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(6) Reimbursement by Borrower. Section 8.7 shall apply in respect of all
amounts paid to a beneficiary upon a drawing under a POA Letter of
Credit.
(7) Notice regarding Potential Automatic Renewal. Without limiting the
other provisions of this Agreement, if a Default or an Event of
Default has then occurred and is continuing, the Administrative Agent
shall notify the Lenders under the applicable Credit Facility 30 days
before any applicable deadline for notifying the beneficiary of a POA
Letter of Credit that it will not be renewed, in order to avoid
automatic renewal in accordance with the terms of the POA Letter of
Credit.
(8) Restrictions. No POA Letter of Credit shall be issued hereunder if any
Lender under the applicable Credit Facility is not in a position to
issue such Letter of Credit because of statutory, regulatory or
internal policy restrictions applicable to such Lender and has
notified the Administrative Agent of such fact on the Business Day
immediately following the day on which such Lender receives the notice
mentioned in Section 8.4(1).
8.4 NOTICE OF ISSUANCE
(1) Notice. Each Letter of Credit shall be requested by the relevant
Borrower giving to the Administrative Agent a notice in the form of
Schedule 8.4(1) not later than 12:00 noon (Toronto time) three (3)
Business Days before the Issue Date in the case of Letters of Credit
in Canadian Dollars or US Dollars or four (4) Business Days before the
Issue Date in the case of Letters of Credit in any other currency. The
Administrative Agent shall give prompt notice to the Applicable
Lenders of their Lender's Proportion of such request.
(2) Other Documents. In addition, the relevant Borrower shall execute and
deliver the LC Issuer's customary form of letter of credit indemnity
agreement; provided that, if there is any inconsistency between the
terms of this Agreement and the terms of such customary form of
indemnity agreement, the terms of this Agreement shall prevail.
8.5 FORM OF LETTER OF CREDIT
Each Letter of Credit to be issued hereunder shall:
(a) be dated the Issue Date;
(b) have an expiration date on a Business Day which occurs no more than
365 days after the Issue Date (provided that Letters of Credit may
have a term in excess of 365 Days if the Applicable Lenders shall
agree) and no later than the Facility A Maturity Date or Facility C
Maturity Date, as applicable; and
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(c) comply with the definition of Letter of Credit and shall otherwise be
satisfactory in form and substance to the applicable LC Issuer.
Except to the extent otherwise expressly provided herein or in another Loan
Document, the Uniform Customs or, as the case may be, ISP98 shall apply to and
govern each Letter of Credit.
8.6 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT
(1) Issue. On the Issue Date, the applicable LC Issuer will complete and
issue one or more Letters of Credit in favour of the beneficiary as
specified by the relevant Borrower in its request.
(2) Time for Honour. No Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day upon
which such draft is presented, if such presentation is made after
11:00 a.m. (local time at the address of the applicable LC Issuer) on
such Business Day.
(3) Text. Prior to the Issue Date, the relevant Borrower shall specify a
precise description of the documents and the verbatim text of any
certificate to be presented by the beneficiary prior to payment under
the Letter of Credit. The applicable LC Issuer may require changes in
any such documents or certificate, acting reasonably.
(4) Conformity. In determining whether to pay under a Letter of Credit,
the applicable LC Issuer shall be responsible only to determine that
the documents and certificates required to be delivered under such
Letter of Credit have been delivered and that they comply on their
face with the requirements of such Letter of Credit.
8.7 PAYMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT
In the event of any request for a drawing under any Letter of Credit, the
applicable LC Issuer shall notify the relevant Borrower (with a copy of the
notice to the Administrative Agent) on or before the date on which it intends to
honour such drawing. Such Borrower (whether or not such notice is given) shall
reimburse the applicable LC Issuer on demand by such LC Issuer, in US$ or in
Cdn.$, an amount, in same day funds, equal to the amount of such drawing
(determined as of the date of such drawing) if such drawing is in US$ or in
Cdn.$ or the Equivalent Amount in US$ of such drawing if such drawing is in
another currency (which reimbursement, in the case of a POA Letter of Credit,
shall be for the account of the Applicable Lenders under the applicable Credit
Facility in their respective Lender's Proportions).
Upon receipt of such notice, the relevant Borrower shall notify the
applicable LC Issuer and the Administrative Agent, prior to 11:00 a.m. (Toronto
time) on the second Business Day following receipt by such Borrower of the
notice from the applicable LC Issuer referred to in the preceding paragraph,
that such Borrower intends to reimburse such LC Issuer for the amount of
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such drawing with funds other than the proceeds of Borrowings or, alternatively,
that it intends to reimburse the amount of such drawing with the proceeds of
Borrowings. In such latter case:
(a) such Borrower shall send concurrently with such notice a Notice of
Borrowing to the Administrative Agent requesting the relevant Lenders
to make a Cdn. Prime Rate Loan (in the case of a Letter of Credit in
Canadian Dollars), a US Base Rate Loan (in the case of a Letter of
Credit in US Dollars or another currency issued at the request of
QWI), or a US Prime Rate Loan (in the case of a Letter of Credit in US
Dollars or another currency issued at the request of QWUSA) on the
Business Day following the date on which such notice is provided by
the Borrower in an amount equal to the amount of such drawing if such
drawing is in US$ or in Cdn.$ or to the Equivalent Amount in US$ of
such drawing if such drawing is in another currency; and
(b) subject to the terms and conditions of this Agreement (including those
set forth in Article XI), the relevant Lenders under the applicable
Credit Facility shall, on the next Business Day following the date of
such drawing, make such Loan in accordance with Article III and the
Administrative Agent shall apply the proceeds thereof to the
reimbursement of the applicable LC Issuer for the amount of such
drawing.
8.8 FEES
(1) Issuance Fee. The relevant Borrower shall pay to the Administrative
Agent for the account of the Applicable Lenders under the applicable
Credit Facility a fee in respect of each Letter of Credit equal to (i)
with respect to Cash Collateralized Fronted Letters of Credit, the fee
agreed to between the applicable LC Issuer and the applicable Borrower
and notified to the Administrative Agent in writing by the applicable
LC Issuer or (ii) with respect to all other Letters of Credit, the fee
specified under the heading "Issuance fee" in the matrix of Section
4.4 as such fee described in (ii) may vary from time to time in
accordance with variations in QWI's Debt to EBITDA Ratio, multiplied
by an amount equal to the undrawn portion of the Face Amount of such
Letter of Credit if such Letter of Credit is issued in US$ or in Cdn.$
or equal to the Equivalent Amount in US$ of the undrawn portion of the
Face Amount of such Letter of Credit if such Letter of Credit is
issued in a currency other than US$ or Cdn.$. Such fee shall be
payable quarterly in US$ or in Cdn.$, as applicable, in arrears, as
follows:
(a) the first payment shall be made on the last day of the financial
quarter of QWI in which the Issue Date occurs and shall be
determined for a period equal to the number of days from the
Issue Date until such last day; and
(b) each payment in respect of each following financial quarter shall
be made on the date that is the earlier to occur of:
(i) the last day of such financial quarter; and
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(ii) the termination of such Letter of Credit;
and shall be determined for a period equal to the number of days
from the first day of such financial quarter until such earlier
date.
(2) Fronting Fee. In addition, the relevant Borrower shall pay to the
Administrative Agent for the account of the applicable Issuing Bank a
fronting fee in respect of each non-Cash Collateralized Fronted Letter
of Credit issued by such Issuing Bank equal to 15 basis points per
annum multiplied by an amount equal to the undrawn portion of the Face
Amount of such non-Cash Collateralized Fronted Letter of Credit if
such Letter of Credit is issued in US$ or in Cdn.$ or equal to the
Equivalent Amount in US$ of the undrawn portion of the Face Amount of
such Letter of Credit if such Letter of Credit is issued in a currency
other than US$ or Cdn.$. Such fee shall be payable quarterly in US$ or
in Cdn.$, as applicable, in arrears, as follows:
(a) the first payment shall be made on the last day of the financial
quarter in which the Issue Date occurs and shall be determined
for a period equal to the number of days from the Issue Date
until such last day; and
(b) each payment in respect of each following financial quarter shall
be made on the date that is the earlier to occur of:
(i) the last day of such financial quarter; and
(ii) the termination of such non-Cash Collateralized Fronted
Letter of Credit.
(3) Administrative Fee. The relevant Borrower shall pay to the applicable
LC Issuer, upon the issuance, amendment or transfer of each Letter of
Credit, such LC Issuer's standard documentary and administrative
charges for issuing, amending or transferring standby or commercial
letters of credit or letters of guarantee of a similar amount, term
and risk.
8.9 OBLIGATIONS ABSOLUTE
The obligation of the relevant Borrower to reimburse the applicable LC
Issuer for drawings made under any Letter of Credit shall be unconditional and
irrevocable and shall be fulfilled strictly in accordance with the terms of this
Agreement under all circumstances, including:
(a) any lack of validity or enforceability of any Letter of Credit;
(b) the existence of any claim, set-off, defence or other right which such
Borrower may have at any time against a beneficiary or any transferee
of any Letter of Credit (or any Persons for whom any such transferee
may be acting), any LC
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Issuer, any Lender or any other Person, whether in connection with
this Agreement, the Loan Documents, the transactions contemplated
herein and therein or any unrelated transaction (including any
underlying transaction between such Borrower or an Affiliate and the
beneficiary of such Letter of Credit);
(c) any draft, demand, certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect;
(d) payment by the applicable LC Issuer under any Letter of Credit against
presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit (provided that
such payment does not breach the standards of reasonable care
specified in the Uniform Customs or disentitle the applicable LC
Issuer to reimbursement under ISP98, in each case as stated on its
face to be applicable to the respective Letter of Credit); or
(e) the fact that a Default or an Event of Default shall have occurred and
be continuing.
8.10 INDEMNIFICATION; NATURE OF LENDERS' DUTIES
(1) Indemnity. In addition to amounts payable as elsewhere provided in
this Article VIII, the relevant Borrower hereby agrees, except in the
case of the gross or intentional fault of the following indemnitees,
to protect, indemnify, pay and save each Lender and their respective
directors, officers, employees, agents and representatives harmless
from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including legal fees and
expenses) which the indemnitee may incur or be subject to as a
consequence, direct or indirect, of:
(a) the issuance of any Letter of Credit, other than as a result of
the breach of the standards of reasonable care specified in the
Uniform Customs or where the applicable LC Issuer would not be
entitled to the foregoing indemnification under ISP98, in each
case as stated on its face to be applicable to such Letter of
Credit; or
(b) the failure of the indemnitee to honour a drawing under any
Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de
facto Governmental Authority (all such acts or omissions called
in this Section 8.10, "GOVERNMENT ACTS").
(2) Risk. As between the relevant Borrower, on the one hand, and the
Lenders, on the other hand, such Borrower assumes all risks of the
acts and omissions of, or misuse of the Letters of Credit issued
hereunder by, the respective beneficiaries of such Letters of Credit
and, without limitation of the foregoing, except in the
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case of their gross or intentional fault, neither any LC Issuer nor
any Lender shall be responsible for:
(a) the form, validity, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even if
it should in fact prove to be in any or all respects invalid,
inaccurate, fraudulent or forged;
(b) the invalidity or insufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective
for any reason;
(c) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by fax, electronic transmission, mail,
cable, telegraph, telex or otherwise, whether or not they are in
cipher;
(d) errors in interpretation of technical terms;
(e) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof;
(f) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of
Credit; and
(g) any consequences arising from causes beyond the control of any
Lender, including any Government Acts.
None of the above shall affect, impair or prevent the vesting of any
of the Lenders' rights or powers hereunder. No action taken or omitted
by any Lender under or in connection with any Letter of Credit issued
by it or the related certificates (including without limitation
actions taken or omitted by any Lender in connection with the matters
enumerated in Sections 8.10 (2) (a) to (e), inclusive), if taken or
omitted in good faith, shall put any Lender under any resulting
liability to the relevant Borrower (provided that the applicable LC
Issuer acts in accordance with the standards of reasonable care
specified in the Uniform Customs and otherwise as may be required
under ISP98, in each case as stated on its face to be applicable to
the respective Letter of Credit) and except in the case of the gross
or intentional fault of such Lender.
8.11 DEFAULT, MATURITY, ETC.
Upon the earlier of the Facility A Maturity Date or Facility C Maturity
Date, as applicable, and the Administrative Agent declaring the Indebtedness and
liabilities hereunder to be due and payable pursuant to Section 15.2, and
notwithstanding the expiration date of any
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outstanding Letters of Credit, an amount equal to the Face Amount of all
outstanding Letters of Credit, and all accrued and unpaid fees owing by the
relevant Borrower in respect of such Letters of Credit pursuant to Section 8.8,
if any, shall thereupon forthwith become due and payable by such Borrower to the
Administrative Agent and, except for any amount payable in respect of unpaid
fees as aforesaid, such amount shall be deposited as cash collateral with the
Administrative Agent to be held in a trust account by the Administrative Agent
and invested at its reasonable discretion and applied against amounts payable
under such Letters of Credit in respect of any drawing thereunder. Such amount
shall be paid in US$ or in Cdn.$ if the relevant Letter of Credit is issued in
US$ or in Cdn.$ or shall be paid in US$ (in an amount equal to the Equivalent
Amount in US$ of such amount due) if the relevant Letter of Credit is issued in
any other currency.
The relevant Borrower shall pay to the Administrative Agent the aforesaid
amount in respect of both any Letter of Credit outstanding hereunder and any
Letter of Credit which is the subject matter of any order, judgment, injunction
or other such determination restricting payment by the applicable LC Issuer
under and in accordance with such Letter of Credit or extending the applicable
LC Issuer's liability under such Letter of Credit beyond the expiration date
stated therein.
Subject to any right of compensation or set off provided for by law or
hereunder, the Administrative Agent shall with respect to each such Letter of
Credit pay to the relevant Borrower an amount equal to the difference between
the amount paid to the Administrative Agent by such Borrower pursuant to this
Section 8.11 and the aggregate amount paid by the applicable LC Issuer under
such Letter of Credit, upon the earlier of:
(a) the date on which any final and non-appealable order, judgment or
other such determination has been rendered or issued either confirming
that the applicable LC Issuer is prohibited permanently from making
any payment under the relevant Letter of Credit or terminating
permanently the Letter of Credit;
(b) the date on which either the original counterpart of the Letter of
Credit is delivered to the Administrative Agent for cancellation or
the applicable LC Issuer is released by the beneficiary from any
further obligations in respect thereof; or
(c) the expiry (to the extent permitted by any Applicable Law) of such
Letter of Credit.
8.12 FRONTED LETTER OF CREDIT PAYMENTS
Unless the applicable Issuing Bank and the Majority Lenders reasonably
agree otherwise, if an Event of Default occurs and any Fronted Letter of Credit
is thereafter drawn upon which results in a payment by the Issuing Bank
thereunder (in this Section 8.12, an "LC PAYMENT"), and to the extent that the
applicable Issuing Bank has not been reimbursed by the relevant Borrower for
such LC Payment and interest as set forth below, adjustments shall be
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made among the relevant Lenders under the applicable Credit Facility as set
forth in this Section 8.12.
(a) Each Lender under the applicable Credit Facility shall promptly upon
receipt of notification of such fact from the Administrative Agent
purchase from the applicable Issuing Bank (for cash at face value) a
participation in the unreimbursed LC Payment (including interest then
accrued thereon and unpaid by the relevant Borrower) as shall be
necessary to cause such purchasing Lender to be owed its Lender's
Proportion of such unreimbursed LC Payment and interest, and shall
promptly deliver to the Administrative Agent for the account of the
applicable Issuing Bank in immediately available funds the purchase
price for such participation.
(b) The obligations of each Lender under Section 8.12 (a) are
unconditional, shall not be subject to any qualification or exception
whatsoever and shall be performed in accordance with the terms and
conditions of this Agreement under all circumstances including:
(i) any lack of validity or enforceability of any Borrower's
obligations;
(ii) the occurrence of any Default or Event of Default or the exercise
of any rights by Administrative Agent under Section 15.2; and
(iii) the absence of any demand for payment being made, any proof of
claim being filed, any proceeding being commenced or any judgment
being obtained by the applicable Issuing Bank against any
Borrower.
(c) If a Lender (a "DEFAULTING LENDER") fails to make payment on the due
date therefor of any amount due from it for the account of the
applicable Issuing Bank pursuant to Section 8.12 (a) (the balance
thereof for the time being unpaid being referred to in this Section
8.12 (c) as an "OVERDUE AMOUNT") then, until the applicable Issuing
Bank has received payment of that amount (plus interest as provided
below) in full (and without in any way limiting the rights of the
applicable Issuing Bank in respect of such failure):
(i) the applicable Issuing Bank shall be entitled to receive any
payment which the Defaulting Lender would otherwise have been
entitled to receive in respect of the applicable Credit Facility
or otherwise in respect of any Loan Document; and
(ii) the overdue amount shall bear interest payable by the Defaulting
Lender to the Issuing Bank at the rate payable by the relevant
Borrower in respect of the obligations which gave rise to such
overdue amount.
(d) The applicable Issuing Bank shall, forthwith upon its receipt of any
reimbursement (in whole or in part) by the relevant Borrower for any
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unreimbursed LC Payments or interest thereon in relation to which
other Lenders have purchased a participation pursuant to Section 8.12
(a), or of any other amount from such Borrower or any other person in
respect of such payment, transfer to such other Lender such other
Lender's Lender's Proportion of such reimbursement or other amount. In
the event that any receipt by the applicable Issuing Bank of any
reimbursement or other amount is found to have been a transfer in
fraud of creditors or a preferential payment under any applicable
insolvency legislation or is otherwise required to be returned, such
Lender shall promptly return to the applicable Issuing Bank any
portion thereof previously transferred to it by the applicable Issuing
Bank, without interest to the extent that interest is not payable by
the applicable Issuing Bank in connection therewith.
ARTICLE IX
PAYMENT, TAXES, INCREASED COSTS, EVIDENCE OF INDEBTEDNESS AND TIMING OF
MATURITIES
9.1 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 Borrowers to the Administrative Agent for the account of the Lenders or to
any Swingline Lender or LC Issuer 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 Sections 5.1.2(c) and 6.1.2(c)
hereof), by payment or transfer of moneys to the appropriate Administrative
Agent's Account for Payments, the appropriate Swingline Account, or the account
designated by the applicable LC Issuer, as applicable. Any amounts received by
the Administrative Agent, any Swingline Lender or any LC Issuer from a 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.
9.2 PAYMENT TO ADMINISTRATIVE AGENT IS DEEMED PAYMENT TO LENDERS
Receipt by the Administrative Agent (for the account of the Lenders) from a
Borrower of funds pursuant to this Agreement, as principal, interest or
otherwise, shall be deemed to be receipt of such funds by the Lenders.
9.3 ACCOUNT DEBIT AUTHORIZATION
Each 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 such
Borrower maintained with the Administrative Agent, for all amounts payable by
such Borrower under this Agreement and the other Loan
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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.
9.4 APPLICATION OF PAYMENTS
9.4.1 ORDER OF APPLICATION: all payments made by or on behalf of a 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 9.4.3 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 13.1, as and by way of expenses,
(d) to amounts due pursuant to Section 13.2, 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, 4.2, 7.2.2(c) (ii), 7.2.6 and
8.8, as and by way of interest, Acceptance Fee (and any adjustment due
to be made thereto on the day of application), Discount, Issuance Fee
and Fronting Fee,
(g) to amounts due pursuant to Sections 3.8, 3.11, 7.2.5(d), 8.7 and 8.11
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;
9.4.2 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 18.9, and any such appropriation and application shall override any
appropriations or applications made by any Borrower;
9.4.3 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 9.4.1 shall be, subject to the provisions hereof,
shared by each Lender in the proportion borne by the
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amounts owing to such Lender under such subparagraph to the amounts owing
to all Lenders under such subparagraph.
9.5 MANNER OF PAYMENT AND TAXES
9.5.1 NO SET-OFF; NO WITHHOLDING: each 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 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, or if any Lender is subject to Taxes under Part XIII of the
ITA (or any successor part) in respect of any such payment but such Taxes
are not levied by way of deduction or withholding ("PART XIII TAX
PAYABLE"), the said Borrower shall:
(a) pay or cause to be paid to the appropriate authority (A) the amount of
the withholding or deduction (including the full amount of Taxes
required to be deducted or withheld from any additional sums paid by
the Borrower to such Lender under this Section 9.5.1), or, as the case
may be, (B) the full amount of any Part XIII Tax Payable in respect of
such payment (including the full amount of Part XIII Tax Payable on
any additional sums paid by the Borrower to such Lender under this
Section 9.5.1). The Borrower shall pay such amounts (whether such
amount is governed by (A) or (B)) to such appropriate authority within
the time period required by applicable law for Taxes referred to in
(A) that are required to be deducted or withheld,
(b) produce to the Administrative Agent not later than 30 days after that
payment the original receipt of payment thereof or a certified copy of
such receipt or other evidence of such payment reasonably satisfactory
to the Administrative Agent, and
(c) pay such additional sums to the Administrative Agent, for the account
of the Lenders or itself, as the case may be, or to the applicable
Swingline Lender in the case of Swingline Loans only, or to the
applicable LC Issuer in the case of Letters of Credit only, as may be
necessary so that the net amount received by each Lender and the
Administrative Agent, after all required deductions or withholdings or
Part XIII Tax Payable or Taxes on any additional 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 or Part XIII Tax Payable or Taxes been applicable,
provided that no sum shall be paid by the Borrowers under this
paragraph (c) to the extent that the applicable Lender would not have
been subject to such withholding or deduction had such Lender made a
declaration of eligibility for treaty benefit or other similar claim
for exemption to the relevant tax authority or had such Lender taken
any action in order to satisfy any other statutory requirement which
would have entitled the applicable Lender to treaty benefit or other
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similar claim for exemption but failed to do so prior to the relevant
payment date;
9.5.2 INCREASED RATE OF INTEREST: if a 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 9.5.1, 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;
9.5.3 TAX CREDIT: if, as a result of any deduction or withholding or Part XIII
Tax Payable a Borrower makes any payment of any additional amounts to the
Lenders and the Administrative Agent under Sections 9.5.1 and 9.5.2 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,
Part XIII Tax Payable 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 said
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 Part XIII Tax Payable 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 said Borrower had not
been required to make such deduction or withholding or if there had been no
Part XIII Tax Payable 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;
9.5.4 EXEMPTION FROM U.S. WITHHOLDING TAXES: each Lender that has made
Borrowings available to QWUSA which is not a United States Person shall
submit to QWUSA 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 original Internal Revenue
Service Forms W-8BEN or W-8ECI (or applicable 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-Bank Lender, (x) a duly completed Internal Revenue Service Form
W-8BEN (or applicable successor form)
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and (y) a certification in a form acceptable to the Administrative Agent
that such Lender is a Non-Bank Lender 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 original 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 QWUSA
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. If a Lender gives such notice with respect to any Loan,
QWUSA shall have the rights or options provided in Section 9.6.2 mutatis
mutandis; and
9.5.5 SURVIVAL OF OBLIGATIONS: the obligations of the Borrowers under this
Section 9.5 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, the termination of all Letters of Credit
and the satisfaction of all other liabilities owed to the Administrative
Agent and the Lenders pursuant to the Loan Documents.
9.6 INCREASED COSTS AND PAYMENT OF PORTION
9.6.1 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 Borrowers 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 or with respect to Bankers'
Acceptances accepted or Letters of Credit issued by such Lender,
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(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, Letters of Credit or
Bankers' Acceptances 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 9.6 such Lender shall promptly so notify QWI, the relevant
Borrower (if other than QWI) and the Administrative Agent. Such Lender
shall provide to QWI, the relevant Borrower (if other than QWI) 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 relevant 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 9.6 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 relevant Borrower by appealing any assessment at the expense
of the relevant Borrower upon the relevant Borrower's request, provided
such Lender, in its sole determination, suffers no appreciable economic,
legal or regulatory disadvantage.
The obligation of the Borrowers under this Section 9.6.1 shall survive the
repayment of the principal amount of the Borrowings (and interest thereon)
and the payment of all other amounts due hereunder and under the other Loan
Documents; and
9.6.2 PAYMENT OF PORTION: Notwithstanding the other provisions hereof, if a
Lender gives the notice provided for in Section 9.6.1 with respect to any
Loan or other Borrowing (an "AFFECTED LOAN"), the relevant 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
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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 13.2 or
for any other reason whatsoever resulting from the repayment of such
Affected Loan or any part thereof on a day other than the last day of the
applicable interest period or the maturity date thereof, 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 Borrowers:
(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 19.3 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 Borrowers have satisfied all their
obligations to such Affected Lender under this Agreement and (iv) the
Borrowers have paid the US$3,500 processing and recordation fee
required pursuant to Section 19.7 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 3.11.2 provided that (i) no
Event of Default or Default has occurred which is continuing and (ii)
the Borrowers have satisfied all their 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 except as otherwise provided hereunder).
9.7 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 QWI and the relevant Borrower (if other than QWI)
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 relevant Borrower or Borrowers shall
forthwith (or at the end of such period as the Affected Lender in its
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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 13.2
or the relevant Borrower or Borrowers 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 13.2, convert (with, to the
extent applicable, the calculation of the Equivalent Amount of any currency into
which the Affected Loan is to be converted into to be made in accordance with
Section 3.12) 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 relevant
Borrower or Borrowers, relocating its Branch of Account to a jurisdiction where
such illegality or prohibition would not apply). Alternatively, the Borrowers:
(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 19.3 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 Borrowers have satisfied all their obligations to
such Affected Lender under this Agreement and (iv) the Borrowers have paid
the US$3,500 processing and recordation fee required pursuant to Section
19.7 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 3.11.2 provided that (i) no
Event of Default or Default has occurred which is continuing and (ii) the
Borrowers have satisfied all their 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 except as otherwise provided hereunder).
9.8 TIMING OF MATURITIES
The Borrowers shall time the maturities of the Libor Interest Periods, Euro
Interest Periods, the Bankers' Acceptances and Letters of Credit 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 a Borrower fails to time such maturities in such way in
respect of Libor Loans or Euro Loans, the Administrative Agent will make the
necessary arrangements for early termination of such Libor Interest Periods or
Euro Interest Periods, as the case may be, in an amount sufficient to effect the
repayment of principal in accordance with
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this Agreement, and the said 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
13.2. If QWI fails to time the maturities of Bankers' Acceptances as set forth
above, QWI will, on demand by the Administrative Agent, pay to the
Administrative Agent for the account of the Facility A Lenders or the Facility B
Lenders, as the case may be, an amount in Canadian Dollars equal to the face
value of the relevant unmatured Bankers' Acceptances or such lesser amount as
will cover the deficiency, and, upon such payment, QWI shall be released of its
liability to the Lenders in respect of such unmatured Bankers' Acceptances, to
the extent of the amount so paid.
If the applicable Borrower fails to time the maturities of the Letters of
Credit as set forth above, such Borrower will, on demand by the Administrative
Agent, pay to the Administrative Agent for the account of the Applicable Lenders
or the applicable LC Issuer, as the case may be, an amount, in Cdn.$ or in US$,
equal to the Face Amount of the relevant Letters of Credit issued in Cdn.$ or in
US$,or an amount in US$ equal to the Equivalent Amount in US$ of the Face Amount
of the relevant Letters of Credit issued in any other currency less, in each
case, all amounts delivered to the Administrative Agent as cash collateral under
Section 8.11 or Section 18.11. Upon such payment, the relevant Borrower shall be
released from its liability in respect of such Letters of Credit to the extent
of the amount so paid and if such Letters of Credit are terminated, expire or
are cancelled without having been drawn by the beneficiary thereof, the
Administrative Agent shall, as soon as possible, return to the applicable
Borrower the amount received under this Section 9.8 in connection with such
particular Letters of Credit, provided that no Default or Event of Default has
occurred and is continuing, in which case the Administrative Agent may retain
such amount as and by way of collateral security in accordance with Section
18.11.
9.9 EVIDENCE OF INDEBTEDNESS
The Administrative Agent shall open and maintain in its books, accounts and
records evidencing the Borrowings (other than the Swingline Loans) 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,
shall record the Bankers' Acceptances accepted, paid and cancelled by each
Lender, shall record the Letters of Credit issued, drawn and terminated, and
shall record all other amounts becoming due to each Lender and the
Administrative Agent under this Agreement, including interest, Commitment Fees,
Issuance Fees, Fronting Fees, Administrative Agent's fees and Acceptance 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 Borrowers 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 a Borrower has made payments to the Administrative
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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,
Administrative Agent's fees, Issuance Fees, Fronting Fees, Acceptance Fees,
Bankers' Acceptances accepted, paid and cancelled and Letters of Credit issued,
drawn and terminated.
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 Borrowers to repay (with
applicable interest and fees) the Borrowings in accordance with the terms of
this Agreement.
9.10 ACCOUNTS BY SWINGLINE LENDER
Each Swingline Lender will open and maintain in its books, for the purposes
of the Swingline Loans, operating bank accounts for deposits in Canadian Dollars
and for deposits in US Dollars. In all operation of account agreements entered
into at any time and from time to time between a Swingline Lender and a Borrower
with respect to the bank accounts mentioned above, any reference therein to the
Swingline Lender as the "Bank" shall mean such Swingline Lender as a Swingline
Lender under a Swingline Subfacility. Notwithstanding any contrary provisions
set forth herein: (i) any charges for the maintenance and operation of such
account or accounts shall be payable by the applicable Borrower only and shall
be for the exclusive benefit of the applicable Swingline Lender without any
obligation on the part of such Swingline Lender to share such payments with the
other Lenders; and (ii) any interest that may at any time be payable to the
applicable Borrower with respect to the deposits made in such accounts, shall be
payable exclusively by such Swingline Lender without any obligation or liability
on the part of any of the other Lenders for the payment of such interest.
Each Swingline Lender shall also open and maintain in its books, accounts
and records evidencing the Swingline Loans made by such Swingline Lender. Each
Swingline Lender shall record therein the amount of each Swingline Loan and
shall record therein each payment of principal or interest on account thereof
and each amount becoming due in connection therewith. Such accounts and records
will constitute, in the absence of manifest error, prima facie evidence of the
Indebtedness and other liabilities of the Borrowers owing to such Swingline
Lender pursuant to this Agreement, the date of each Swingline Loan made
available by such Swingline Lender and the amount thereof and the amounts which
and the dates on which a Borrower has made payments in connection therewith.
Notwithstanding the foregoing, the omission of any Swingline Lender to maintain
such accounts or records, or any error therein, shall not in any manner affect
the obligation of the Borrowers to repay (with applicable interest and fees) the
Swingline Loans in accordance with the terms of this Agreement.
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ARTICLE X
GUARANTEE OF QWI
10.1 GUARANTEE OF QWI
QWI shall at all times be solidarily liable to the Lenders, the
Administrative Agent and the other Finance Parties for all obligations of QWUSA
set forth in this Agreement. Without limiting the generality of the foregoing,
QWI hereby unconditionally guarantees the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all Indebtedness and other
liabilities of every nature, whether for principal, interest, fees, expenses or
otherwise, of QWUSA under or in respect of this Agreement, QWI hereby binding
itself with QWUSA as solidary co-debtor, renouncing the benefits of discussion
and division. QWI recognizes that it shall be liable hereunder in respect of all
such obligations of QWUSA without any requirement that it be notified or
informed of the time or manner of Borrowings and repayments by QWUSA hereunder,
QWI hereby renouncing any right to receive any such notice.
The liability of QWI, as solidary guarantor of, and co-debtor with, QWUSA
in accordance with the foregoing shall be absolute and unconditional and shall
be continuing and remain in full force and effect until indefeasible payment in
full of all obligations under this Agreement and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation:
(a) any increase or decrease in the Commitments, any change in the time, place
or manner of payment of, or in any other term of, all or any of the terms
of this Agreement, any waiver, indulgence, renewal, extension, amendment or
modification of or addition, consent or supplement to or deletion from or
any other action or inaction under or in respect of this Agreement or any
other instrument, agreement or document referred to therein, or any
assignment or transfer of any thereof;
(b) any lack of validity or enforceability of this Agreement or any document,
instrument, agreement or Loan Party Guarantee referred to herein or any
assignment or transfer of any thereof;
(c) the lack of capacity or authority of any of the Loan Parties or any of the
directors, officers, agents or persons acting or purporting to act on
behalf of a Borrower hereunder, or the fact that any such director,
officer, agent or person may have exceeded his authority, may have
exercised such authority in an irregular or defective manner or may have
ceased to hold such authority;
(d) any furnishing of any Guarantee or security to any of the Lenders or their
assignees or any acceptance thereof or any release of any Loan Party
Guarantee or security by the Administrative Agent or any of the Lenders, or
their assignees;
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(e) any limitation on any party's liability or obligations under any such
document, instrument, agreement or Loan Party Guarantee or any term thereof
or any invalidity or unenforceability, in whole or in part, of this
Agreement or any such document, instrument, agreement or Loan Party
Guarantee or any term thereof;
(f) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any of the
Loan Parties, or any action taken with respect to this Agreement or the
other Loan Documents by any receiver, agent or trustee or by any court in
any such proceeding, whether or not a Borrower shall have notice or
knowledge of any of the foregoing;
(g) any exchange, release or non-protection of any Loan Party Guarantee or
collateral, or any release or amendment or waiver of or consent to
departure from any of the terms hereof or any Loan Party Guarantee or other
collateral;
(h) any amalgamation, merger, continuation or other reorganization,
restructuring or action involving any of the Loan Parties; and
(i) any other circumstance which might otherwise constitute a defense available
to, or a discharge of the Loan Parties, or any of them, as borrower or as
guarantor hereunder.
In the event that QWI makes a payment of its obligations hereunder as a
guarantor and co-debtor of QWUSA, it shall not be entitled to make a claim by
subrogation against QWUSA for the amount in question until such time as the
Lenders and the Administrative Agent shall have received full and indefeasible
payment of all monies owed to them under this Agreement and the other Loan
Documents.
10.2 LOAN PARTY GUARANTEES
QWI shall deliver or cause to be delivered to the Administrative Agent on
behalf of the Lenders, to the extent not already delivered to the Administrative
Agent, as a condition precedent to Borrowings hereunder a Loan Party Guarantee
of each other Loan Party to serve as a continuing Guarantee for the payment and
performance of the Indebtedness and obligations (whether as Borrower or
guarantor) of each Borrower to the Lenders, the Administrative Agent and the
other Finance Parties, both present and future, in respect of the Credit
Facilities, the whole to the greatest extent permitted by Applicable Law. The
Lenders and the other Finance Parties hereby confirm that USGP has been released
and discharged from its obligations, liabilities and debts as borrower under the
Existing Credit Agreement and as guarantor under the USGP Loan Party Guarantee.
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ARTICLE XI
CONDITIONS PRECEDENT
11.1 PREDISBURSEMENT CONDITIONS
The obligation of the Lenders to make available to the Borrowers the
initial and subsequent Borrowings hereunder is subject to and conditional upon
each of the following terms and conditions first having been satisfied:
11.1.1 CONDITIONS PRECEDENT TO INITIAL BORROWING: the agreement of each Lender
to make the initial Borrowing requested to be made by it under the Original
Credit Agreement to the Borrowers was subject to and conditional on the
satisfactory review by the Lenders of the Environmental Quarterly Reports
(December 31, 1998, March 31, 1999) of the Vice President, Manufacturing,
Technology and Environment of QWI 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:
(a) a duly executed copy of the Original Credit Agreement,
(b) a duly executed copy of the Loan Party Guarantee of QWUSA with respect
to the obligations of QWI and USGP hereunder,
(c) a duly executed copy of the Loan Party Guarantee of USGP with respect
to the obligations of QWI hereunder,
(d) a duly executed copy of the Loan Party Guarantee of QPHC with respect
to the obligations of each of the Borrowers and USGP hereunder,
(e) a duly certified copy of the constating documents and by-laws of each
of the Loan Parties and of each partner of USGP certified by a
Responsible Officer of the related Loan Party (or, as the case may be,
partner of USGP) accompanied by good standing or equivalent
certificates issued by the appropriate governmental body of each Loan
Party's and of each of USGP's partner's jurisdiction of incorporation
and of principal place of business,
(f) a duly certified copy of a resolution or resolutions of the board of
directors of each Loan Party or, in the case of USGP, the board of
directors of each of its partners, 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,
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(g) 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,
(h) a certificate of compliance of the Chief Executive Officer, the Chief
Financial Officer or the Treasurer or, in his absence, another
Responsible Officer of QWI in form and substance substantially as set
forth in Schedule 10.1.1.8 of the Original Credit Agreement confirming
the accuracy of the representations and warranties contained therein,
the absence of any Default or Event of Default and that since the date
of then most recent quarterly Consolidated financial statements of
QWI, there had been no change in QWI's Consolidated financial
condition which could have had 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 QWI or
any Restricted Entity which, separately, represented an exposure in
excess of Cdn.$10,000,000 as reasonably determined by such Responsible
Officer,
(i) certificates of insurance evidencing appropriate insurance coverage as
provided in Section 12.1.6 of the Original Credit Agreement, together
with a certificate from a Responsible Officer of QWI confirming that
such insurance coverage was in compliance with the provisions of
Section 12.1.6 of the Original Credit Agreement,
(j) a certificate from a Responsible Officer of QWI to the effect that all
necessary shareholder, corporate, creditor, governmental and
regulatory approvals had been obtained,
(k) the audited Consolidated financial statements of QWI for the fiscal
year ended December 31, 1998,
(l) evidence of the payment of all fees and expenses contemplated under
the Original Credit Agreement, to the extent then owing,
(m) evidence by way of pay out letters and transfer instructions and a
certificate from a Responsible Officer of QWI that, concurrently with
the execution of the Original Credit Agreement, QWI had repaid or made
arrangement to repay and cancel the Existing Facilities (as defined
under the Original Credit Agreement),
(n) the favorable opinions of Canadian Counsel and US Counsel to the Loan
Parties 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 and as to such other
matters as the Lenders then reasonably required, in form and substance
substantially as set forth respectively in Schedule 10.1.1.14-A and
Schedule 10.1.1.14-B to the Original Credit Agreement,
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(o) 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 then reasonably required, in
form and substance substantially as set forth respectively in Schedule
10.1.1.15-A and Schedule 10.1.1.15-B to the Original Credit Agreement,
and
(p) such other documentation as was reasonably required by the
Administrative Agent;
All the above stated conditions were met or waived prior to the initial
Borrowings under the Original Credit Agreement.
11.1.2 CONDITIONS PRECEDENT TO EACH BORROWING: the obligation of the Lenders to
make any Borrowing available to any Borrower is subject to the following
conditions:
(a) 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,
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 12.1.7(c))
and 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 12.1.7),
(b) the Administrative Agent (or the applicable Swingline Lender, as
applicable) shall have received the timely Notice of Borrowing
required (excluding for greater certainty but subject to Section 3.7.2
for Borrowings by way of Swingline Loans made under Swingline
Subfacility A or Swingline Subfacility B) pursuant to Section 3.7,
3.12, 5.1.2, 6.1.2, 7.2.5, 8.4 or 8.7 , as applicable, and
(c) 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).
11.2 WAIVER OF CONDITIONS PRECEDENT
The terms and conditions of Sections 11.1, 11.3 and 11.4 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.
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11.3 CONDITIONS PRECEDENT TO THE COMING INTO FORCE OF THE 2003 AMENDED AND
RESTATED AGREEMENT
The coming into force of the 2003 Amended and Restated Agreement was
subject to and conditional upon 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:
(a) a duly executed copy of the 2003 Amended and Restated Agreement,
(b) a bring-down certificate in respect of each of the Loan Parties delivered
by a Responsible Officer of the related Loan Party with respect to (i) the
constating documents and by-laws of such Loan Party and (ii) the
certificates of incumbency previously delivered by each of the Loan
Parties, 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,
(c) 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 this Amended and
Restated Credit Agreement and all other instruments, agreements,
certificates and papers and other documents provided for or contemplated by
the said Amended and Restated Credit Agreement 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,
(d) a certificate of the Chief Executive Officer, the Chief Financial Officer
or the Treasurer or, in his absence, another Responsible Officer of QWI
confirming the absence of any Default or Event of Default,
(e) a certificate from a Responsible Officer of QWI to the effect that all
necessary shareholder, corporate, creditor, governmental and regulatory
approvals have been obtained,
(f) evidence of the payment of all fees and expenses contemplated herein, to
the extent then owing,
(g) the favorable opinions of Canadian Counsel and US Counsel to the Loan
Parties as to the status and capacity of the Loan Parties, their authority
and legal right to enter into and perform their obligations under the 2003
Amended and Restated Agreement, as to the validity, binding effect and
enforceability against them of the 2003 Amended and Restated Agreement and
as to such other matters as the Lenders may reasonably require, in form and
substance substantially as set forth respectively in Schedule 10.3(g)-A and
Schedule 10.3(g)-B of the 2003 Amended and Restated Agreement,
(h) the favorable opinions of Canadian Counsel to the Administrative Agent as
to the validity, binding effect and enforceability as against the Loan
Parties of the 2003
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Amended and Restated Agreement and as to such other matters as the Lenders
may reasonably require, in form and substance substantially as set forth
respectively in Schedule 10.3(h) of the 2003 Amended and Restated
Agreement,
(i) satisfactory evidence of the completion by QWI or one of its wholly-owned
Subsidiaries of an offering of senior debt aggregating approximately
US$600,000,000 with a maturity of no less than three (3) years, and
(j) such other documentation as was reasonably required by the Administrative
Agent.
11.4 CONDITIONS PRECEDENT TO THE COMING INTO FORCE OF THIS AMENDED AND RESTATED
CREDIT AGREEMENT
The coming into force of this Amended and Restated Credit Agreement is
subject to and conditional upon 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:
(a) a duly executed copy of this Amended and Restated Credit Agreement,
(b) a bring-down certificate in respect of each of the Loan Parties delivered
by a Responsible Officer of the related Loan Party with respect to (i) the
constating documents and by-laws of such Loan Party and (ii) the
certificates of incumbency previously delivered by each of the Loan
Parties, 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,
(c) 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 this Amended and
Restated Credit Agreement and all other instruments, agreements,
certificates and papers and other documents provided for or contemplated by
the said Amended and Restated Credit Agreement 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,
(d) a certificate of the Chief Executive Officer, the Chief Financial Officer
or the Treasurer or, in his absence, another Responsible Officer of QWI
confirming the absence of any Default or Event of Default,
(e) a certificate from a Responsible Officer of QWI to the effect that all
necessary shareholder, corporate, creditor, governmental and regulatory
approvals have been obtained,
(f) evidence of the payment of all fees and expenses contemplated herein, to
the extent then owing,
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(g) the favorable opinions of Canadian Counsel and US Counsel to the Loan
Parties as to the status and capacity of the Loan Parties, their authority
and legal right to enter into and perform their obligations under this
Amended and Restated Credit Agreement, as to the validity, binding effect
and enforceability against them of this Amended and Restated Credit
Agreement and as to such other matters as the Lenders may reasonably
require, in form and substance substantially as set forth respectively in
Schedule 11.4 (g)-A and Schedule 11.4 (g)-B,
(h) the favorable opinions of Canadian Counsel to the Administrative Agent as
to the validity, binding effect and enforceability as against the Loan
Parties of this Amended and Restated Credit Agreement and as to such other
matters as the Lenders may reasonably require, in form and substance
substantially as set forth in Schedule 11.4 (h), and
(i) such other documentation as may be reasonably required by the
Administrative Agent.
ARTICLE XII
COVENANTS OF THE BORROWERS
12.1 AFFIRMATIVE COVENANTS OF THE BORROWERS
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 Borrower (or QWI, in the case of the
covenants contained in Sections 12.1.7(a), (b), (c), (g) and (h) and 12.1.15)
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:
12.1.1 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;
12.1.2 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;
12.1.3 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
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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;
12.1.4 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;
12.1.5 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;
12.1.6 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;
12.1.7 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 QWI, commencing
with the quarterly period ending September 30, 2005, the Consolidated
balance sheet of QWI 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 QWI, commencing with the fiscal year ending December 31, 2005:
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(i) the Consolidated balance sheet of QWI 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 12.1.7, a certificate of compliance of
the Chief Executive Officer, Chief Financial Officer or Treasurer of
QWI, in form and substance substantially as set forth in Schedule
12.1.7 (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 QWI 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 Borrower by its independent certified public accountants in
their capacity as auditors of such Borrower; and
(ii) promptly upon transmission thereof, copies of all such financial
statements and reports as QWI shall send to its stockholders,
copies of all material information made publicly available by any
Borrower and copies of all registration statements, annual
information forms, regular or periodic reports, prospectuses,
offering circulars or similar materials filed by any Borrower
with the United States of America Securities and Exchange
Commission, other than any such filings made in connection with
shareholdings by employees of QWI or any Restricted Entities,
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(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 Borrower
obtains knowledge or should have obtained knowledge of any event or
condition specified in sub-paragraph (A) hereof, and (ii) five
Business Days after a Borrower obtains knowledge or should have
obtained knowledge of any event or condition specified in
sub-paragraph (B), (C), (D) or (E) hereof, notice of:
(A) any Default,
(B) any change in the name of, or, except in connection with a
transaction permitted under Section 12.2.5, any amendment of the
certificate of incorporation or by-laws of QWI, QWUSA or QPHC,
(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 ERISA Event, 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 QWI specifying in detail the
nature of such condition and QWI's or the relevant Restricted Entity's
or, to the knowledge of each Borrower, their respective Environmental
Affiliates' proposed response thereto:
(i) the receipt by QWI or any Restricted Entity of any communication
(written or oral), whether from a governmental authority,
citizens group, employee or otherwise, that alleges that QWI or
any Restricted Entity or any Environmental Affiliate thereof is
not in compliance with applicable Environmental Laws,
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(ii) QWI or any Restricted Entity shall obtain actual knowledge that
there exists any Environmental Claim pending or threatened
against QWI or any Restricted Entity or, to the knowledge of each
Borrower, 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 QWI or any Restricted Entity or, to
the knowledge of each Borrower, 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
QWI and the Restricted Entities taken as a whole and provided that for
the purposes of the covenant contained in this Section 12.1.7(g)
"KNOWLEDGE" shall mean the knowledge of the relevant Borrower, based
on its normal course of conduct with such Environmental Affiliate,
(h) Budget: no later than on the 60th day following the commencement of
each fiscal year of QWI, commencing with the 2005 fiscal year, a
summary Consolidated budget including a yearly statement of earnings
and cash flows, and
(i) Money Laundering: any information that the Lenders may reasonably
request from time to time to ensure compliance with all applicable
laws concerning money laundering and similar activities;
12.1.8 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;
12.1.9 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
Borrower's expense, on reasonable written notice and at such reasonable
time or times as will not interfere with the normal operations of the
Borrowers and their Subsidiaries (a) to visit and inspect any of the
properties of the Borrowers and their Subsidiaries, (b) to discuss the
affairs, finances and accounts of the Borrowers or their Subsidiaries with
their respective officers and (c) to examine the books of account, records,
reports and other documents of the Borrowers;
12.1.10 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
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or attempt to terminate any Loan Party Guarantee until the full, final and
indefeasible payment and termination of the Credit Facilities;
12.1.11 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;
12.1.12 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;
12.1.13 Intentionally omitted.
12.1.14 USE OF FUNDS: it will use the proceeds of Borrowings hereunder solely
for the purposes set forth in Section 3.6, but subject to the limitations
contained in Section 12.2.7; and
12.1.15 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 QWI (with any change in the credit rating given to QWI by either
Standard & Poor's or Moody's to be notified by QWI to the Administrative
Agent within three (3) Business Days after a Borrower obtains knowledge or
should have obtained knowledge of such change).
12.2 NEGATIVE COVENANTS OF THE BORROWERS
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 Borrower (or QWI, in the case of the
covenant contained in Section 12.2.10) covenants and agrees with the
Administrative Agent, each Lender and each other Finance Party that:
12.2.1 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 QWI and the
Restricted Entities may create, incur, assume or suffer to exist (i)
Permitted
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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 QWI's Equity;
12.2.2 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 12.2.5, convey, sell, alienate, assign,
lease, license, transfer or otherwise dispose of any 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, with the exception of (i) sales of
assets pursuant to QWI's existing securitization programs, as such programs
may be amended, restated, modified or replaced from time to time, provided
that at no time shall the amount of such programs be increased from the
maximum amount of such programs as in effect on the Effective Date, (ii)
sales of assets with respect to discontinued operations and assets
contemplated for sale on or before December 31, 2005 and listed in Schedule
12.2.2, (iii) the sale of QWI's interest in Quebecor Merrill Canada Inc.,
(iv) dispositions and sales of assets made in the ordinary course of
business, including, without limitation, dispositions and sales of
machinery, equipment, spare parts, materials and vehicles that have become
obsolete, worn out, damaged or unusable, (v) dispositions and sales of
assets, the net proceeds of which are used to repay and permanently reduce
the Credit Facilities, (vi) exchanges of assets between any of the Loan
Parties, between any of the Loan Parties and their Subsidiaries and between
any such Subsidiaries where the asset(s) received in such exchange is(are)
at least equal in value to the asset(s) exchanged, (vii) other dispositions
of assets in amounts not to exceed US$5,000,000 per disposition provided
that the aggregate amount of all such dispositions does not exceed
US$25,000,000 in any calendar year; and (viii) any other sales or other
dispositions of property or assets that are not covered by clauses (i) to
(vii) above in an amount not to exceed, in the aggregate for any
consecutive three-year period during the duration of the Credit Facilities,
15% of QWI's Consolidated Net Tangible Assets, as determined on the basis
of the most recent financial statements of QWI delivered to the
Administrative Agent in accordance with Section 12.1.7;
12.2.3 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 Borrower 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 QWI's Equity at any time, excluding transactions
(including accounts receivable) in the ordinary course of business with a
term of less than 90 days;
12.2.4 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, 15% of QWI's Equity, excluding the existing
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Indebtedness, identified in Schedule 12.2.4, 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 QWI 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;
12.2.5 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
12.2.2, (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 (i) 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 (ii) the Lenders receive an opinion of counsel to the Borrowers
acceptable to them confirming that the resulting entity or the Person which
acquires such assets is bound by the relevant Loan Documents;
12.2.6 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 QWI 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 QWI or any Restricted Entity, (iii) make any loans or
advances to or Investments in QWI or in any Restricted Entity or (iv)
transfer any of its property or assets to QWI or any Restricted Entity,
except that the covenant contained in this Section 12.2.6 shall not apply
to (a) Imprimeries Didier-Quebecor, S.A. and its Subsidiaries and (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 QWI, as determined in accordance with GAAP,
and, (c) any Loan Party, with respect to any restriction contained in
Section 1.11 of any Loan Party Guarantee issued hereunder;
12.2.7 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-
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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;
12.2.8 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 QWI and the Restricted Entities (taken as a
whole) would be materially altered from that carried on on the Effective
Date;
12.2.9 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;
12.2.10 FINANCIAL RATIOS: it shall not at any time allow or suffer:
(a) the ratio of EBITDA to Interest Expense of QWI, on a Consolidated
basis, to be less than 3.50:1.00 for any period of four consecutive
fiscal quarters of QWI, commencing with the period of four fiscal
quarters ending on December 31, 2005; or
(b) the ratio of QWI's Debt to Capitalization to exceed 60% on the basis
of calculations made at the end of each fiscal quarter, starting with
the quarter ending December 31, 2005; or
(c) QWI's Debt to EBITDA Ratio, to exceed, for any period of four
consecutive fiscal quarters of QWI, 4.00:1.00 from the fiscal quarter
ending on December 31, 2005 up to and including the fiscal quarter
ending on December 31, 2007 and 3.75:1.00 from the fiscal quarter
ending on March 31, 2008 and each fiscal quarter thereafter.
ARTICLE XIII
REIMBURSEMENT OF EXPENSES AND INDEMNITY
13.1 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, each
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
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Agent's, Swingline Lenders' and the Arranger's 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 QWI, 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, each 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. Without limiting the
generality of the foregoing, all reasonable fees, costs and other out-of-pocket
expenses, incurred by a LC Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder shall be reimbursed by the Borrowers.
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 Cdn. Prime Rate plus the Applicable
Margin for Cdn. Prime Rate Loans at such time increased by 2% per annum in the
case of monies owing in Canadian Dollars and at a rate per annum equal to the US
Base Rate plus the Applicable Margin for US Base Rate Loans at such time
increased by 2% per annum in the case of monies owing in US Dollars, 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 13.1 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 each Borrower and shall be payable
by such Borrower within 30 days of demand. The Administrative Agent and the
Lenders though privileged so to do shall be under no obligation to any Borrower
to make any such expenditure and the making thereof by the Administrative Agent
or Lender shall not relieve any Borrower of any default in that respect.
13.2 INDEMNITY
Whether or not a Default or an Event of Default has occurred, each 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, 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)
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(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 such 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 such Borrower or any amount unpaid by such
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):
13.2.1 any use made by such Borrower or proposed to be made by such Borrower
with the proceeds of the Credit Facilities,
13.2.2 any failure of such Borrower to timely provide a conversion or renewal
notice when required in respect of any Borrowing pursuant to the terms
hereof,
13.2.3 any failure of such Borrower to borrow in the amount and on the date
specified therefor in any notice of Borrowing pursuant to this Agreement,
13.2.4 any failure of such Borrower to make a payment, repayment, prepayment or
conversion specified in a notice of repayment, prepayment or conversion
hereunder, or when otherwise due hereunder,
13.2.5 the payment by such Borrower of principal amounts in respect of a Libor
Loan, Euro Loan, a Bankers' Acceptance or Letter of Credit on any day other
than the last day of the related Libor Interest Period or Euro Interest
Period or other than the date of maturity of such Bankers' Acceptance or
Letter of Credit, as the case may be,
13.2.6 any misrepresentation by such Borrower contained in or delivered in
writing in connection with the Loan Documents,
13.2.7 the occurrence of a Default or an Event of Default,
13.2.8 defending and/or counterclaiming or claiming over against third parties
in respect of any action or matter in connection with or relating to the
Loan Documents,
13.2.9 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, or
13.2.10 any refusal by the applicable LC Issuer to honour a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit,
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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 or intentional fault.
In the case of an investigation, litigation or proceeding to which the
indemnity described in this Section 13.2 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any of the Borrowers, their respective shareholders, Affiliates or creditors
or an Indemnitee or an Indemnitee is otherwise a party thereto. Each Borrower
further agrees that no Indemnitee shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to a 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 or intentional fault.
13.3 CONSULTATION WITH BORROWERS
In connection with any claim made by a third party for which an Indemnitee
is entitled to indemnification pursuant to Section 13.2, such Indemnitee agrees,
before settling or compromising any such claim, to consult in good faith with
the Borrowers 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
Borrowers and the Administrative Agent or any failure to so consult shall in no
way relieve or reduce the Borrowers' obligations to indemnify such Indemnitee
pursuant to Section 13.2.
13.4 SURVIVAL OF INDEMNIFICATION OBLIGATIONS
Without prejudice to the survival or termination of any other agreement of
the Borrowers under the Loan Documents, the provisions of and undertakings and
indemnification set forth under Sections 13.1 and 13.2 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 XIV
OTHER TAXES
14.1 OTHER TAXES
Each 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 Bankers' Acceptances and acceptances thereunder and the Letters of
Credit, or the performance of the terms and provisions of such
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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.
14.2 SURVIVAL OF OBLIGATIONS
The obligation of the Borrowers under Section 14.1 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 XV
EVENTS OF DEFAULT
15.1 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:
15.1.1 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 or of the
Face Amount of Letters of Credit, such failure shall continue for three
Business Days;
15.1.2 REPRESENTATIONS AND WARRANTIES: any representation or warranty made by
any Loan Party in any of the Loan Documents 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;
15.1.3 OTHER BREACHES: a Borrower shall default in the performance or observance
of:
(a) any term, covenant, condition or agreement contained in Section 12.1.2
(insofar as such paragraph requires the preservation of the existence
of a Borrower), 12.1.6, 12.1.8 or 12.1.14, 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
Borrower shall have actual knowledge of such default and (z) notice
shall have been given by the Administrative Agent to a Borrower
requiring that such default be cured; or
(b) any term, covenant, condition or agreement contained in any Loan
Document (other than a term, covenant, condition or agreement a
default in the performance or observance of which is elsewhere in this
Section 15.1 specifically
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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 Borrower shall have actual knowledge of such
default and (z) notice shall have been given by the Administrative
Agent to a Borrower requiring that such default be cured;
15.1.4 BANKRUPTCY:
(a) Voluntary: a Borrower 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 a
Borrower or any Restricted Entity seeking (y) relief under the laws
referred to above in paragraph (a) of this Section 15.1.4 (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 a Borrower 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 a
Borrower or any Restricted Entity shall be made, granted or entered;
provided, however, in the case of any Restricted Entity other than a
Borrower, that the foregoing circumstances or events have a Material
Adverse Effect;
15.1.5 ERISA: (a) any Termination Event shall occur with respect to any Benefit
Plan of the US Restricted Entities or any of their respective ERISA
Affiliates, (b) any accumulated funding deficiency (as defined in Section
302 of ERISA) shall exist at any time with respect to any such Benefit Plan
(other than a Multiemployer Plan) in an amount in
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excess of an amount equivalent to 4% of QWI's Equity at such time, (c) any
US Restricted Entity or any of its ERISA Affiliates shall engage in any
prohibited transaction involving any such Benefit Plan, (d) a US Restricted
Entity or any of its ERISA Affiliates 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 Plan as a result of such Person's
complete or partial withdrawal (as described in ERISA Section 4203 or 4205)
therefrom, (e) a US Restricted Entity or any of its ERISA Affiliates 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 a US Restricted
Entity or any of its ERISA Affiliates 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, a US
Restricted Entity to aggregate liabilities, at any time, that exceed an
amount equivalent to 4% of QWI's Equity at such time;
15.1.6 JUDGMENT: a final judgment or order shall be entered against a Borrower
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 US$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 QWI and the
Restricted Entities taken as a whole;
15.1.7 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 Borrowers 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 a Guarantor gives notice of
termination of, or otherwise attempts to terminate or deny its liability
under a Loan Party Guarantee (or, in the case of QWI, its liability under
the Guarantee contained in Article X);
15.1.8 CROSS-DEFAULT: with respect to any Indebtedness of a Loan Party or any
other Restricted Entity (other than under the Credit Facilities and
Non-Recourse Indebtedness) in the aggregate outstanding principal amount of
US$25,000,000:
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(a) 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
(b) (i) 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 (ii) 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,
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);
15.1.9 ENVIRONMENTAL CLAIMS: a Borrower, any Restricted Entity or any
Environmental Affiliate thereof 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 QWI and the
Restricted Entities, taken as a whole; or
15.1.10 MATERIAL ADVERSE EFFECT: there is or occurs any event or circumstance
which has a Material Adverse Effect.
15.2 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 Borrowers 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 Borrowers
declare all Indebtedness and liabilities of the Borrowers 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 Borrowers, provided that the Aggregate
Commitment and the right of any Borrower to apply for further Borrowings shall
automatically be terminated and all
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Indebtedness and liabilities of the Borrowers to the Lenders and the
Administrative Agent outstanding hereunder shall be immediately due and payable
without any written notice to the Borrowers 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 any Borrower pursuant to Section
15.1.4. In such event, each Borrower shall pay immediately to the Administrative
Agent for the account of the Lenders and such 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 together with the face amount of all
Bankers' Acceptances accepted by the Lenders for its account and outstanding and
all acceptances thereunder and the Face Amount of all Letters of Credit issued
and outstanding, 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 Borrowers' obligations hereunder, and the Administrative Agent shall
distribute such proceeds among the Lenders as provided herein. No Borrower shall
have the right to set up as against any of the Lenders or the Administrative
Agent any defense or right of action, of indemnification or of set-off or
compensation or any similar claim of any nature whatsoever which any Borrower
may have had at any time or may have in the future with respect to any Loan, any
holder of one or more Banker's Acceptance(s) or Discount Note(s) issued
hereunder, any Letter of Credit or any Swingline Loan.
15.3 NOTICES
Save as otherwise expressly provided for herein, no notice or mise en
demeure of any kind shall be required to be given to any Borrower by the
Administrative Agent or the Lenders for the purpose of putting the Borrowers 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 XVI
REMEDIES
16.1 REMEDIES CUMULATIVE
Subject to Section 17.1 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
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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 XVII
WAIVER OF DEFAULT
17.1 WAIVER OF DEFAULT
(a) If at any time after the occurrence of an Event of Default, the Borrowers
offer to cure completely all Events of Default and to pay all expenses,
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
18.12.1.
ARTICLE XVIII
THE ADMINISTRATIVE AGENT AND THE LENDERS
18.1 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
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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 18.15.
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 or intentional fault.
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 Borrowers 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.
18.2 NOTIFICATION OF BORROWINGS, REPAYMENTS, ETC.
The Administrative Agent shall promptly notify each Facility A Lender,
Facility B Lender or Facility C Lender, as applicable, in writing upon receipt
by the Administrative Agent of any Notice of a Borrowing, a repayment, a
prepayment and/or cancellation pursuant to Section 3.11, a conversion pursuant
to Section 3.12 or a renewal or non-renewal pursuant to Section 5.1, 6.1 or
7.2.5, any request for an extension of the Facility A Revolving Period, the
Facility B Revolving Period or the Facility C Revolving Period pursuant to
Section 3.10, a notice for purchase of participations in Swingline Loans
pursuant to Section 3.5.2 or a notice of payments under Letters of Credit
pursuant to Section 8.7.
18.3 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,
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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, subject to the provisions of
this Agreement, 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 a
Borrower has identified in writing from time to time to the Administrative Agent
as being a person authorized by a Borrower to give instructions regarding the
completion and issuance of Bankers' Acceptances, the issuance of Letters of
Credit and the drawing of other 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 or intentional fault by the
Administrative Agent or its employees. Any such instructions shall be
immediately confirmed in writing by the relevant Borrower to the Administrative
Agent as provided hereunder.
18.4 REMITTANCE OF AMOUNTS RECEIVED FROM THE BORROWERS
Provided acceleration of the Indebtedness or other liabilities of the
Borrowers pursuant to the provisions of Section 15.2 has not occurred and
subject to Section 18.5 and any contrary provisions hereof relating to Swingline
Loans and Letters of Credit, upon receipt from any 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 a 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.
18.5 ASSUMPTION AS TO PAYMENTS
18.5.1 ASSUMED PAYMENT FROM BORROWERS: without affecting the obligations of the
Lenders or Borrowers contained in this Agreement, unless the Administrative
Agent has been notified in writing by a Borrower not less than one Business
Day prior to the date on which any payment to be made by such Borrower
hereunder is due that the said Borrower does not intend to remit such
payment, the Administrative Agent may, at its discretion, assume that the
said 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
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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
18.5.2 ASSUMED PAYMENT FROM LENDER: without affecting the obligations of the
Lenders or the Borrowers 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 relevant 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 said 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 said Borrower on
demand. Interest shall accrue on such amount advanced to the said 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 9.4,
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 Borrowers might have against
any Lender as a result of any default by such Lender hereunder.
18.6 CHANGE IN CIRCUMSTANCES, ILLEGALITY, INCREASED COSTS, ETC.
Each Lender wishing to avail itself of the provisions of Sections 5.2, 6.2,
7.2.7, 7.4, 9.5, 9.6 or 9.7 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 Borrowers 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, the interbank Euro 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
Borrowers.
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18.7 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 Borrower in respect thereof, such information shall be
promptly notified to the Administrative Agent who shall promptly notify the
other Lenders thereof.
18.8 PRO RATA TREATMENT OF ADVANCES AND BORROWINGS
18.8.1 ADJUSTMENTS TO LOANS AND REPAYMENTS: Except as specifically provided
hereunder, 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, the Facility B Total
Commitment, or the Facility C Total Commitment, as the case may be;
18.8.2 ADJUSTMENTS TO BANKERS' ACCEPTANCES: Bankers' Acceptances will be drawn
on the Facility A Lenders or the Facility B Lenders, as applicable, in
amounts and in a manner so that the proportion borne by the average daily
amount of Bankers' Acceptances accepted by each Lender under the Facility A
or the Facility B, as applicable, and outstanding over any given period of
time to the average daily amount of Bankers' Acceptances accepted by all
Lenders under the Facility A or the Facility B, as applicable, is, to the
extent reasonably practicable, equal to the proportion borne by such
Lender's Facility A Commitment to the Facility A Total Commitment or, as
applicable, to the proportion borne by such Lender's Facility B Commitment
to the Facility B Total Commitment; and
18.8.3 BORROWERS' AGREEMENT: each 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
18.8.
18.9 ADJUSTMENTS AMONG LENDERS AFTER ACCELERATION
18.9.1 ADJUSTMENTS WITHIN A CREDIT FACILITY: the Lenders agree that after any
acceleration pursuant to Section 15.2 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 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 18.9 or 18.8, is equal to the
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proportion borne by the Commitment of that Lender under such Credit
Facility to the Facility A Total Commitment, the Facility B Total
Commitment or the Facility C Total Commitment, as the case may be,
immediately prior to the cancellation or termination thereof;
18.9.2 ADJUSTMENTS BETWEEN THE CREDIT FACILITIES: the Lenders agree that after
any acceleration pursuant to Section 15.2 or after the cancellation or
termination of the Aggregate Commitment, the amount of any repayment made
by the Borrowers 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 18.9.1 and 18.8;
18.9.3 APPLICATION OF ADJUSTMENTS: for greater certainty, the Lenders
acknowledge and agree that without limiting the generality of the
provisions of Sections 18.9.1 and 18.9.2, 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 Borrowers to it hereunder in excess of its Lender's Proportion of
payments on account of monies owing by the Borrowers to all the Lenders
hereunder; and
18.9.4 BORROWERS' ACKNOWLEDGEMENT: the Borrowers agree 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 18.9.
18.10 SHARING AMONG THE LENDERS
The Administrative Agent and the Lenders agree among themselves that
subject to the provisions of Sections 3.5, 5.2 (B), 6.2 (B), 7.2.7 (B), 9.4,
9.6.2(b), 9.7(b), 18.8 and 18.9 and of Article VIII, 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 relevant Lender in the
proportion to which the amount owing to any such Lender hereunder bears to the
amount owing to all the Lenders hereunder.
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18.11 CASH COLLATERAL ACCOUNTS
Upon the occurrence of an Event of Default and notwithstanding the
provisions of Section 9.4 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 relevant 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 Borrowers 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.
18.12 INSTRUCTIONS FROM LENDERS
18.12.1 WAIVERS, AMENDMENTS, ETC. :
(a) Consent of Majority Lenders: subject to the provisions of paragraphs
(b), (c) and (d) 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 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 any Borrower hereunder,
(ii) any change in the Facility A Total Commitment, Facility B Total
Commitment or Facility C Total Commitment,
(iii) any decrease (other than in accordance with the provisions of
Section 4.4) in the Acceptance Fee, the Applicable Margin, the
Commitment Fee, the Issuance Fee or any amount payable by the
Borrowers hereunder,
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(iv) the types of Borrowings available hereunder,
(v) any waiver of or change to the conditions precedent set forth
under Section 11.4,
(vi) a change in the financial covenants set forth in Section 12.2.10
provided that a waiver of compliance therewith shall only require
the consent of the Majority Lenders,
(vii) subject to Section 12.2.5, a change of QWI or QWUSA as
Borrowers, or the assignment or transfer by any of them of their
rights and obligations under this Agreement,
(viii) subject to Section 12.2.5, a change or release of the Guarantee
contained in Article X or any Loan Party Guarantee, or
(ix) a change in this Section 18.12 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.
(c) Consent of the Swingline Lenders: notwithstanding paragraph (a) above
and subject to paragraph (b) above, where an amendment, consent or
waiver relates to the Swingline Loans, such amendment, consent or
waiver shall require the specific consent of the applicable Swingline
Lenders and shall be made in writing by the Administrative Agent,
whereupon such amendment, consent or waiver shall be binding upon such
Swingline Lenders.
(d) Consent of the LC Issuer: notwithstanding paragraph (a) above and
subject to paragraph (b) above, where an amendment, consent or waiver
relates to the Letters of Credit, such amendment, consent or waiver
shall require the specifc consent of the applicable LC Issuers and
shall be made in writing by the Administrative Agent, whereupon such
amendment, consent or waiver shall be binding upon such LC Issuers.
In circumstances other than those contemplated in the foregoing provisions
of paragraph (b), (c) and (d) above, an amendment, consent, waiver, discharge,
release or termination approved by the Majority Lenders shall be binding upon
all the Lenders; and
18.12.2 NOTICES OF DEFAULTS: upon the occurrence of any breach or failure
referred to in Section 15.1 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 Borrowers in respect thereof.
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Upon the occurrence of an Event of Default, the Administrative Agent shall
give to the Borrowers the written notice provided for in Section 15.2 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.
18.13 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.
18.14 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 a
Borrower, unless such costs or expenses and disbursements arise out of the
Administrative Agent's gross or intentional fault. 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.
18.15 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
Borrowers on behalf of the Lenders in respect of all matters referred to in or
contemplated by this Agreement. However, subject to Section 18.12, 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
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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 18.15 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.
18.16 DISCLAIMER
None of the Arranger and the Administrative Agent 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
Arranger and the Administrative Agent assumes any responsibility for the
financial condition of the Loan Parties or for the payment of any of the
Borrowings. None of the Arranger and the Administrative Agent 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 Borrowers or any other Person to the Administrative
Agent, the Arranger 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 or intentional fault, 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 18.12.
18.17 INDEMNIFICATION
Each Lender severally agrees to indemnify the Administrative Agent (to the
extent not promptly reimbursed by a 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 or any other documents contemplated by or
referred to therein or the transactions contemplated thereby (including, without
limitation, the costs and expenses which the Borrowers are obligated to pay
under Section 13.1) 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 or intentional fault. Without
limiting the generality of the
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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 Borrowers. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 18.17 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
18.18 ACKNOWLEDGEMENT OF LENDERS
Each Lender acknowledges to the Administrative Agent and the Arranger 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 and the Arranger that it has
not relied, and will not hereafter rely, on the Administrative Agent:
(a) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any Loan Party or in connection
with the Loan Documents (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 the Loan Parties.
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.
18.19 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 Borrower 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 Borrower of its obligations hereunder.
18.20 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
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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.
18.21 NO PREFERENCE
No Lender shall have, previous to this Agreement, entered into or shall,
subsequent to this Agreement, enter into any arrangement with the Borrowers 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 Borrowers under this
Agreement.
18.22 SUBMISSION OF INFORMATION
In respect of any certificate or statement required to be delivered to the
Borrowers 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.
18.23 SHARING OF INFORMATION CONCERNING THIS AGREEMENT
Each Borrower authorizes the Arranger, the Administrative Agent and the
Lenders to share with each other and, subject to the provisions of Section 19.6,
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 Borrowers under this Agreement and to payments
received by the Lenders from the Borrowers.
18.24 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.
18.25 SUCCESSOR ADMINISTRATIVE AGENT
Subject to the appointment and acceptance of a successor agent as provided
in this Section 18.25, the Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers, 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 Borrowers 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
Borrowers if prior to an Event of Default (such approval not to be unreasonably
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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.
18.26 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.
18.27 REPLACEMENT OF SCHEDULE II AND SCHEDULE III REFERENCE BANKS
If a Schedule II and Schedule III Reference Bank assigns, subject to the
provisions of Section 19.3, all its rights hereunder or otherwise ceases to be a
Lender, or if a Schedule II and Schedule III Reference Bank gives notice of its
intention to cease being a Schedule II and Schedule III Reference Bank, or if in
the opinion of the Administrative Agent, a Schedule II and Schedule III
Reference Bank is no longer capable of exercising its functions as a Schedule II
and Schedule III Reference Bank, the Administrative Agent shall with the prior
written consent of the Borrowers if prior to an Event of Default (such consent
not to be unreasonably withheld) appoint another Lender (with the latter's
consent) to act as a Schedule II and Schedule III Reference Bank in replacement
thereof.
18.28 AMENDMENT OF THIS ARTICLE XVIII
Save and except for the provisions of Section 18.12, the provisions of this
Article XVIII 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 XVIII without requiring the execution of such
instrument in writing by the Borrowers provided such amendment or addition does
not adversely affect the rights or obligations of the Borrowers. The
Administrative Agent shall forward a copy of such written instrument to the
Borrowers as soon as practicable following the execution thereof by the Lenders
and the Administrative Agent.
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ARTICLE XIX
SUCCESSORS AND ASSIGNS
19.1 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.
19.2 THE BORROWERS
The Borrowers shall not assign or transfer all or any part of their rights
or obligations hereunder without the prior written consent of all Lenders.
19.3 ASSIGNMENT AND PARTICIPATION
(a) Any Lender (herein sometimes called a "GRANTING LENDER") may, at no cost to
the Borrowers, 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 Borrowers 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 Borrowers (save in the circumstances described in Sections 3.10,
5.2, 6.2, 7.2.7, 9.6.2 and 9.7), 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 written consents of the
Administrative Agent, the Borrowers, the Swingline Lenders under the Credit
Facility under which such assignment is contemplated and the LC Issuers
under the Credit Facility under which such assignment is contemplated
(which consents in each case shall not be unreasonably withheld) and, in
the case of partial assignments, no such assignment may be effected in
tranches of less than US$5,000,000 in the aggregate for the Assigning
Lender and its Affiliate(s), and multiples of US$1,000,000 in excess
thereof, and provided that following a partial assignment by an Assigning
Lender, such Assigning Lender and its Affiliate(s) shall retain a
Commitment of not less than US$20,000,000 in the aggregate hereunder and
provided further (i) that, notwithstanding the foregoing, any Lender may,
without the consent of the Administrative Agent or the Borrowers, assign as
security, all or part
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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) that if an Event
of Default shall have occurred and be continuing, such consents from the
Borrowers shall not be required and the LC Issuers under the Credit
Facility under which such assignment is contemplated and Swingline Lenders
under the Credit Facility under which such assignment is contemplated shall
not unreasonably withhold their consent thereto. 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 the
Borrowers, 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 19.3. 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.
19.4 LIMITATION
No Lender shall be entitled to grant a participation pursuant to Section
19.3(a) or an assignment pursuant to Section 19.3(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 9.5.1) to the Borrowers in effect at the time of such
grant of participation or assignment, unless such participation or assignment,
as the case may be, was made at the request or with the consent of the Borrowers
or following the occurrence of and during the continuance of an Event of
Default.
19.5 ACCEPTANCE OF BANKERS' ACCEPTANCES BY PARTICIPANTS
If a Lender sub-participates a portion of its rights under this Agreement
to a Participant, then in respect of any Borrowing by way of Bankers'
Acceptances a portion thereof may, at the option of such Lender, be by way of
Bankers' Acceptance accepted by such Participant. In such event, the Borrower
shall upon request of the Administrative Agent or the Granting Lender execute
and deliver a form of Bankers' Acceptance undertaking in favor of such
Participant for delivery to such Participant, such undertaking to be in form and
substance reasonably satisfactory to the Participant.
19.6 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
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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.
19.7 PROCESSING AND RECORDATION FEE
Upon the completion of each assignment pursuant to Section 19.3(b) (other
than an assignment by an Assigning Lender to an Affiliate of such Assigning
Lender (except pursuant to subsections 3.9.3, 3.9.4 and 3.9.5)or a security
assignment in favor of a Federal Reserve Bank of the United States of America),
a processing and recordation fee of US$3,500 shall be payable to the
Administrative Agent.
ARTICLE XX
COMPENSATION
20.1 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 21.1) 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 20.1 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 20.1, the
Borrowers 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 20.1 as the "DEPOSIT") shall be lost immediately
before the time when such Lender shall exercise its rights under this Section
20.1 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
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Administrative Agent without any obligation or liability on the part of any
Lender for the payment of such interest.
ARTICLE XXI
JUDGMENT CURRENCY
21.1 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 Montreal or Toronto, Canada 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
Borrowers 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, Canadian Dollars, Euros or any other currency in which a Letter of
Credit has been issued, as the case may be. Any additional amount due under this
Section 21.1 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 XXII
GOVERNING LAW
22.1 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 Province of Quebec and federal laws of Canada applicable
therein.
-151-
ARTICLE XXIII
NOTICE
23.1 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 Borrowers, as
indicated opposite the names of the Borrowers 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 23.2.
23.2 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 XXIV
CONTINUANCE AND AMENDMENT OF EXISTING GUARANTEES
24.1 CONTINUANCE AND AMENDMENT OF EXISTING GUARANTEES
Each of QWI, QWUSA and QPHC (by its intervention to this agreement)
acknowledges having taken cognizance of this Agreement and recognizes and
confirms that (x) its Guarantee, as set forth in Section 9.1 of the Existing
Credit Agreement, in the case of QWI, and as set forth in its separate Guarantee
entitled "LOAN PARTY GUARANTEE AGREEMENT", dated as of April 28, 1999, in the
case of each of QWUSA and QPHC, continues in full force and effect
notwithstanding the amendments made to (i) the Existing Credit Agreement and
(ii) such Loan Party Guarantee Agreement contained in this Amended and Restated
Credit Agreement and (y) the indebtedness, liabilities and obligations of the
Borrowers under this Agreement constitute indebtedness, liabilities and
obligations guaranteed under its said Guarantee.
-152-
Each of the Loan Party Guarantee Agreements of QWUSA and QPHC referred to
above has been amended by the provisions of the 2003 Amended and Restated
Agreement to remove from such Loan Party Guarantee Agreements all references to
USGP therein contained and to reflect the necessary language adjustments
pursuant to such removal. In addition, the definition of "Guarantor" in such
Loan Party Guarantee Agreement granted by QWUSA has been modified by the
provisions of the 2003 Amended and Restated Agreement to read "means Quebecor
Printing (USA) Holdings Inc., a Delaware corporation, now known as Quebecor
World (USA) Inc." Furthermore, the reference to "Article XI" in Section 3.01 of
each Loan Party Guarantee Agreement is replaced by a reference to "Article XII.
All of the other provisions, terms and conditions of such Loan Party Guarantee
Agreements shall remain unchanged and in full force and effect.
ARTICLE XXV
MISCELLANEOUS
25.1 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.
25.2 INTEREST LIMITATION
The parties agree that no provision of this Agreement shall have the effect
of imposing on the Borrowers any obligation to pay interest (as such term is
defined in Section 347 of the Criminal Code of Canada) at a rate per annum in
excess of the criminal rate (as such term is defined in Section 347 of the
Criminal Code of Canada), taking into account all other amounts which must be
taken into account for the purpose thereof; and, to such extent, the Borrowers'
obligation to pay interest hereunder is so limited.
25.3 SURVIVAL OF REPRESENTATIONS AND UNDERTAKINGS
The representations and warranties made by the Borrowers 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 Borrowers to the Lenders under this Agreement.
25.4 WHOLE AGREEMENT
This Agreement constitutes the whole and entire agreement between the
parties hereto with respect to the subject matter hereof, and, save as
contemplated herein, cancels and
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supersedes any prior offers, agreements, undertakings, declarations and
representations, written or verbal in respect thereof.
25.5 AMENDMENTS
No amendment, modification or waiver of any provision of this Agreement or
consent to any departure by the Borrowers from any provision of this Agreement
will in any event be effective unless it is in conformity with Sections 18.12
and 18.28 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.
25.6 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.
25.7 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.
25.8 RISKS OF SUPERIOR FORCE
The Borrowers expressly assume all risks of superior force, such that they
shall be bound to timely execute each and every of their obligations under this
Agreement notwithstanding the existence or occurrence of any event or
circumstance constituting a superior force within the meaning of Article 1693 of
the Civil Code of Quebec.
25.9 GOOD FAITH AND FAIR CONSIDERATION
The Borrowers acknowledge and declare that they have entered into this
Agreement freely and of their own will. In particular, the Borrowers acknowledge
that this Agreement was negotiated by them and the Finance Parties in good
faith.
-154-
25.10 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 Borrowers
incurred pursuant to this Agreement.
25.11 LANGUAGE
The Borrowers, the Administrative Agent, the Lenders and the other Finance
Parties confirm that they have requested that this Agreement and all documents
and notices contemplated thereby be drawn up in the English language. Les
Emprunteurs, l'Agent Administratif, les Preteurs et les autres Parties de
financement confirment avoir requis que cette convention et tous les documents
et avis qui y sont envisages soient rediges en langue anglaise.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the 15th day of December 2005.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
[SIGNATURE PAGES FOLLOW]
Address: QUEBECOR WORLD INC.
Quebecor World Inc.
612 St. Jacques Street
Montreal, Quebec
Canada H3C 4M8
Attention: Vice President and By: (signed)
Treasurer ------------------------------------
Name: Jeremy Roberts
Telephone: (514) 954-0101 Title: Vice President Corporate
Telecopier: (514) 954-0205 Finance and Treasurer
By: (signed)
------------------------------------
Name: Roland Ribotti
Title: Assistant Treasurer
Address: QUEBECOR WORLD (USA) INC.
340, Pemberwick Road
Greenwich, CT
U.S.A. 06831
Attention: Vice President and By: (signed)
Treasurer ------------------------------------
Name: Jacques Mallette
With a copy to: Title: Executive Vice President
Quebecor World Inc.
612 St. Jacques Street
Montreal, Quebec
Canada H3C 4M8
Attention: Vice President and Treasurer
Telephone: (514) 954-0101
Telecopier: (514) 954-0205
Address: ROYAL BANK OF CANADA
(AS ADMINISTRATIVE AGENT)
200 Bay Street
South Tower, Royal Bank Plaza
12th Floor
Toronto, Ontario
Canada M5J 2W7
Attention: Manager By: (signed)
Agency Services Group ------------------------------------
Name: David Wheatley
Telephone: (416) 842-3901 Title: Manager, Agency
Telecopier: (416) 842-4023
Address: RBC CAPITAL MARKETS
(AS ARRANGER)
1 Place Ville Marie
Suite 300
Montreal, Quebec
Canada H3B 4R8
Attention: Director, Corporate By: (signed)
Banking ------------------------------------
Name: Rod Smith
Telephone: (514) 878-2815 Title: Director
Telecopier: (514) 874-1349
Address: ROYAL BANK OF CANADA
(AS LENDER)
1 Place Ville Marie
Suite 300
Montreal, Quebec
Canada H3B 4R8
Attention: Director, Corporate By: (signed)
Banking -----------------------------------
Name: Rod Smith
Telephone: (514) 878-2815 Title: Authorized Signatory
Telecopier: (514) 874-1349
Address: ROYAL BANK OF CANADA
(AS LENDER)
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
U.S.A.
Attention: Nigel Delph By: (signed)
------------------------------------
Telephone: (212) 428-6249 Name: Dustin Craven
Telecopier: (212) 428-2319 Title: Attorney-In-Fact
With a copy to:
Address:
1 Place Ville Marie
Suite 300
Montreal, Quebec
Canada H3B 4R8
Attention : Director, Corporate Banking
Telephone: (514) 878-2815
Telecopier: (514) 874-1349
Address: ABN AMRO BANK N.V.
(AS CDN QUALIFIED LENDER)
79 Wellington Street West
TD Waterhouse Tower, 15th Floor
Toronto, Ontario
Canada M5K 1G8
Attention: Credit Administration By: (signed)
------------------------------------
Telephone: Name: F. Bienvenue
------------------------- Title: Vice President
Telecopier: (416) 367-7939
By: (signed)
------------------------------------
Name: SVP
Title:
---------------------------------
With a copy to:
600 de Maisonneuve West
Suite 1500
Montreal, Quebec
Canada H3A 3J2
Attention: Francois Bienvenue
Vice President
Telephone: (514) 284-1211, ext. 117
Telecopier: (514) 284-2357
Address: ABN AMRO BANK N.V.
(AS US QUALIFIED LENDER)
540 West Madison St.
Suite 2621
Chicago, IL 60661
U.S.A.
Attention: Credit Administration By: (signed)
------------------------------------
Telephone: Name: Terrence J. Ward
-------------------------- Title: Managing Director
Telecopier: (312) 992-5111
By: (signed)
------------------------------------
Name: Pradeep K. Bhatia
Title: Vice President
With a copy to:
600 de Maisonneuve Blvd. West
Suite 1500
Montreal, Quebec
Canada H3A 3J2
Attention: Francois Bienvenue
Vice President
Telephone: (514) 284-1211, ext. 117
Telecopier: (514) 284-2357
Address: BANK OF AMERICA, N.A. CANADA BRANCH
(AS LENDER)
200 Front Street West, 27th Floor
Toronto, Ontario
Canada M5V 3L2
Attention: Vice President By: (signed)
------------------------------------
Telephone: (416) 349-5352 Name: Nelson Lam
Telecopier: (416) 349-4282 Title: Vice President
Address: BANK OF AMERICA, N.A.
(AS LENDER)
1850 Gateway Blvd., 5th Floor
Concord, California 94520-3282
CA4-706-05-13
U.S.A.
Attention: Vice President By: (signed)
------------------------------------
Telephone: (925) 675-8029 Name: Jeffrey Armitage
Telecopier: (925) 675-8051 Title: Senior Vice President
Address: BNP BARIBAS (CANADA)
(AS A CDN QUALIFIED LENDER)
1981 McGill College Avenue
BNP Tower, 4th Floor
Montreal, Quebec
Canada H3A 2W8
Attention: Mr. Frank Shaw By: (signed)
Managing Director ------------------------------------
Large Corporate Group Name: Mr. Frank Shaw
Title: Managing Director
Telephone: (514) 285-6122 By: (signed)
Telecopier: (514) 285-2906 ------------------------------------
Name: Mrs. Chantal Debailleul
Title: Vice-President
Address: BNP BARIBAS, DUBLIN BRANCH
(AS A US QUALIFIED LENDER)
5 George Dock
IFSC
Dublin 1
Ireland
Attention: Deirdre Geoghegan By: (signed)
------------------------------------
Name: Francois Van Den Bosch
Title: Head of Territory
Telephone: 353-1-612-5053 By: (signed)
Telecopier: 353-1-612-5104 ------------------------------------
Name: Deirdre Geoghegan
Title: Head of Offshore Group
Address: CITIBANK, N.A. CANADIAN BRANCH
(AS LENDER)
Citibank, N.A. Canadian Branch
123 Front St. West
Suite 1000
Toronto, Ontario
M5J 2M3
Attention: Daljeet Lamba By: (signed)
------------------------------------
Telephone: (416) 947-2937 Name:
Telecopier: (416) 915-6292 ----------------------------------
Title:
---------------------------------
Address: CITIBANK, N.A.
(AS LENDER)
38 Greenwich, 21st Floor
New York, NY
U.S.A. 10013
Attention: John Judge By: (signed)
------------------------------------
Telephone: (212) 816-1886 Name: John Judge
Telecopier: (212) 816-8084 Title: Vice President
With a copy to:
Citibank, N.A. Canadian Branch
123 Front St. West
Suite 1000
Toronto, Ontario
M5J 2M3
Attention: Daljeet Lamba
Telephone: (416) 947-2937
Telecopier: (416) 915-6292
Address: THE BANK OF NOVA SCOTIA
(AS LENDER)
40 King Street West
Scotia Plaza, 62nd Floor
Toronto, Ontario
M5W 2X6
Attention: Director, Corporate By: (signed)
Banking ------------------------------------
Name: Rob King
Telephone: (416) 933-1873 Title: Director
Telecopier: (416) 866-2010
By: (signed)
------------------------------------
Name: Bradley Walker
Title: Associate Director
Address: THE BANK OF NOVA SCOTIA
(AS LENDER)
New York Agency
One Liberty Plaza, 26th Floor
New York, NY 10006
U.S.A.
Attention: Director Corporate Banking By: (signed)
------------------------------------
Telephone: (212) 225-5013 Name: Authorized Signatory
Telecopier: (212) 225-5355 Title: Jose B. Carlos
Address: THE TORONTO-DOMINION BANK
(AS LENDER)
1 Place Ville Marie
Suite 2315
Montreal, Quebec
Canada H3B 3M5
Attention: Vice President By: (signed)
------------------------------------
Telephone: (514) 289-0102 Name: J-F Godin
Telecopier: (5140 289-0788 Title: Vice-President
By: (signed)
------------------------------------
Name: Yves Bergeron
Title: Managing Director
Address: TORONTO-DOMINION (TEXAS) LLC
(AS LENDER)
31 West 52nd Street, 22nd Floor
New York, New York
10019
U.S.A.
Notices to be sent to: By: (signed)
------------------------------------
Attention: Hughroy Enris Name: Jackie Barrett
Toronto Dominion (Texas) Title: Authorized Signatory
LLC
c/o T.D. Securities Inc.
Global Finance
77 King Street West, RTT18
Toronto, Ontario
M5K 1A2
Telephone: (416) 307-0497
Telecopier: (416) 983-1708
With a copy to:
The Toronto-Dominion Bank
1 Place Ville Marie
Suite 2315
Montreal, Quebec
Canada H3B 3M5
Attention: Jean-Francois Godin
Vide President
Telephone: (514) 289-0102
Telecopier: (514) 289-0788
Address: BANK OF MONTREAL
(AS LENDER)
1501 McGill College Avenue
Suite 3200
Montreal, Quebec
Canada H3A 3M8
Attention: Director By: (signed)
------------------------------------
Telephone: (514) 282-5931 Name: Bruno Jarry
Telecopier: (514) 282-5920 Title: Director
Address: BANK OF MONTREAL
(AS LENDER)
115 South LaSalle Street
12th Floor
Chicago, Illinois 60603
U.S.A.
Attention: Director By: (signed)
------------------------------------
Telephone: (312) 750-6958 Name: Bruce A. Pietka
Telecopier: (312) 750-6057 Title: Vice President
Address: CONGRESS FINANCIAL CORPORATION (CANADA)
(AS LENDER)
141 Adelaide St. West
Suite 1500
Toronto, Ontario
M5H 3L9
Attention: Enza Agosta By: (signed)
------------------------------------
Telephone: (416) 364-6401 Name: Enza Agosta
Telecopier: (416) 364-8165 Title: Vice President
Congress Financial Corporation
(Canada)
Address: WACHOVIA BANK, NATIONAL ASSOCIATION
(AS LENDER)
360 Interstate North Parkway,
SE; GA4606
Suite 450
Atlanta, Georgia 30339
U.S.A.
Attention: Karin E. Samuel By: (signed)
Vice President ------------------------------------
Name: Karin E. Samuel
Telephone: (770) 644-6828 Title: Vice President
Telecopier: (770) 644-6877
Address: CANADIAN IMPERIAL BANK OF COMMERCE
(AS LENDER)
Canadian Credit Capital Market
BCE Place, 8th Floor
161 Bay St.
Toronto, Ontario
M5J 2S8
Attention: Alex Tessier By: (signed)
------------------------------------
Telephone: (416) 956-3832 Name: Alex Tessier
Telecopier: (416) 956-3816 Title: Director
By: (signed)
------------------------------------
Name: Steve Nishimura
Title: Managing Director
Address: CIBC INC.
(AS LENDER)
300 Madison Avenue
New York, NY 10017
U.S.A.
Attention: Dominic J. Sorresso By: (signed)
------------------------------------
Telephone: (212) 856-4133 Name: Dominic J. Sorresso
Telecopier: (212) 856-3761 Title: Executive Director
CIBC World Markets Corp.
Authorized Signatory
Address: NATIONAL BANK OF CANADA
(AS LENDER)
1155 Metcalfe Street, 5th Floor
Montreal, Quebec
Canada H3B 4S9
Attention: Mr. Stephen Redding By: (signed)
------------------------------------
Telephone: (514) 390-7508 Name: Stephen Redding
Telecopier: (514) 390-7860
Address: NATIONAL BANK OF CANADA
(AS LENDER)
New York Branch
The Park Avenue Tower
65 East, 55th Street
31st Floor
New York, NY 10022
Attention: Mr. Vincent Lima By: (signed)
Vice President ------------------------------------
Name: Vincent Lima
Telephone: (212) 632-8690 Title: Vice President
Telecopier: (212) 632-8509
By: (signed)
------------------------------------
Name: Jeff Forgach
Title: Assistant Vice President
Address: NORDEA BANK FINLAND PLC, NEW
YORK BRANCH
437 Madison Avenue, Floor 21 (AS LENDER)
New York, NY 10022
U.S.A.
Attention: Mr. Henrik Steffensen By: (signed)
------------------------------------
Telephone: (212) 318-9303 Name: Henrik M. Steffensen
Telecopier: (212) 318-9318 Title: First Vice President
By: (signed)
------------------------------------
Name: Gerald E. Chelius, Jr.
Title: SVP Credit
Address: BANK OF TOKYO-MITSUBISHI (CANADA)
(AS LENDER)
600 de la Gauchetiere Street West
Suite 2780
Montreal, Quebec
Canada H3B 4L8
Attention: Mr. Amos W. Simpson By: (signed)
Senior Vice President & ------------------------------------
General Manager Name: Amos W. Simpson
Title: Senior Vice President
Telephone: (514) 875-9261 and General Manager
Telecopier: (514) 875-9392
Address: THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
New York Branch (AS LENDER)
c/o Bank of Tokyo-Mitsubishi
Trust Company
U.S. Corporate Banking Division
1251 Avenue of the Americas
12th Floor
New York, NY 10020-1104
U.S.A.
Attention: Spencer Hughes By: (signed)
Vice President and Manager ------------------------------------
Name: Spencer Hughes
Telephone: (212) 782-4226 Title: Authorized Signatory
Telecopier: (212) 782-6440
Address: SAMPO BANK PLC
(AS LENDER)
Unioninkatu 22
FIN-00075 SAMPO
Helsinki, Finland By: (signed)
------------------------------------
Attention: Mr. Henrik Lagerstedt, Name: Henrik Lagerstedt
Senior Vice President Title: V.P.
Telephone: 358-10-513-6103 By: (signed)
Telecopier: 358-10-513-6107 ------------------------------------
Name: Nina Harkonen
Title: Legal Counsel
Address: JPMORGAN CHASE BANK, N.A.
TORONTO BRANCH
Royal Bank Plaza, South Tower (AS LENDER)
200 Bay Street, Suite 1800
Toronto, Ontario
M5J 2J2 By: (signed)
------------------------------------
Attention: Jeffrey S. Coleman Name: Jeffrey Coleman
Vice President and Senior Title: Vice President
Underwriter, Corporate
Credit
Telephone: (416) 365-8278
Telecopier: (416) 363-7574
Address: JPMORGAN CHASE BANK, N.A.
(AS LENDER)
10 South Dearborn Avenue
19th Floor
Chicago, IL 60603-2003 By: (signed)
U.S.A. ------------------------------------
Name: Jeffrey Coleman
Attention: Manager, Loans Operations Title: Vice President
Telephone: (312) 385-7055
Telecopier: (312) 385-7096
With a copy to:
JPMorgan Chase Bank, N.A.,
Toronto Branch
Royal Bank Plaza, South Tower
200 Bay Street, Suite 1800
Toronto, Ontario
M5J 2J2
Attention: Jeffrey S. Coleman
Vice President and Senior
Underwriter, Corporate Credit
Telephone: (416) 365-8278
Telecopier: (416) 363-7574
Address: SOCIETE GENERALE (CANADA)
(AS LENDER)
100 Yonge Street, Suite 1002
Toronto, Ontario
M5C 2W1 By: (signed)
------------------------------------
Name: Michel Hurtubise
Title: Director
Attention: Michel Hurtubise By: (signed)
Simona Lungu ------------------------------------
Telephone: 416-682-0075 Name: Simona Lungu
(M. Hurtubise) Title: Vice-President
416-682-0076 (S. Lungu)
Telecopier: 416-364-1879
Address : SOCIETE GENERALE
(AS LENDER)
1221 Avenue of the Americas
New York, New York 10020
Attention: Mark Vigil By: (signed)
Telephone: (212) 278-7350 ------------------------------------
Telecopier: (212) 278-6146 Name: Mark Vigil
Title: Managing Director
INTERVENANT
QUEBECOR PRINTING HOLDING COMPANY
By: (signed)
------------------------------------
Name: Jacques Mallette
Title: Executive Vice President
SCHEDULE 1.1.1
COMMITMENTS OF LENDERS
[INTENTIONALLY DELETED FOR FILING PURPOSES.]
SCHEDULE 1.1.2
FORM OF DISCOUNT NOTE
(Section 1.1)
Issue Date: __________________________
Maturity Date: __________________________
QUEBECOR WORLD INC. for value received, hereby promises to pay to or to the
order of _______________________________________________________________________
(name of Lender)
on the above-mentioned Maturity Date, without grace, the sum of
________________________________________________________________________________
($_____________________________) in lawful money of Canada at
________________________________________________________________________________
(name and address of Lender where payment is to be made)
QUEBECOR WORLD INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 1.1.3
PERMITTED ENCUMBRANCES
(Sections 2.1.14 and 12.2.1)
"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 QWI 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 QWI;
(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 12.1.5 of
this Amended and Restated Credit 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 QWI 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 QWI 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 QWI or any of the Restricted Entities;
(f) Liens on equipment acquired by QWI 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 QWI 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.
SCHEDULE 2.1.2
LIST OF SUBSIDIARIES
(Section 2.1.2)
[INTENTIONALLY DELETED FOR FILING PURPOSES.]
SCHEDULE 3.5.2
SWINGLINE REPAYMENT NOTICE
(Section 3.5.2)
Date: ___________________________
ROYAL BANK OF CANADA [QUEBECOR WORLD INC.
(as Administrative Agent) 612 ST-JACQUES ST.
200 Bay Street, South Tower MONTREAL, QUEBEC
Royal Bank Plaza H3C 4M8
12th Floor ATTENTION: VICE PRESIDENT AND TREASURER
Toronto, Ontario FAX: (514) 954-0205
M5J 2W7
OR
Attention: Manager, Agency Services
Group
Fax: (416) 842-4023 QUEBECOR WORLD (USA) INC.
340 PERMBERWICK ROAD
GREENWICH, CT
USA 06831
ATTENTION: VICE PRESIDENT AND TREASURER
WITH A COPY TO:
QUEBECOR WORLD INC.
612 ST-JACQUES ST.
MONTREAL, QUEBEC
H3C 4M8
ATTENTION: VICE PRESIDENT AND TREASURER
FAX: (514) 954-0205]
Dear Sirs:
QUEBECOR WORLD INC.
CONFIRMATION OF BORROWING
We refer to the Amended and Restated Credit Agreement dated as of December
15, 2005, among Quebecor World Inc. and Quebecor World (USA) Inc., as Borrowers,
the financial institutions named on the signature pages thereof, as Lenders,
Royal Bank of Canada, as Administrative Agent and RBC Capital Markets, as
Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the
Amended and Restated Credit Agreement have the same respective meanings when
used herein.
We hereby notify you that the following Swingline Loans have not been
repaid in full as provided for in Section 3.5.2 of the Amended and Restated
Credit Agreement:
SWINGLINE DATE OF SWINGLINE CURRENCY OF INTEREST ACCRUED
SUBFACILITY LOAN NAME OF BORROWER SWINGLINE LOAN PRINCIPAL AMOUNT AND UNPAID
- ----------- ----------------- ---------------- -------------- ---------------- ----------------
_____ _____ _____ _____ _____ _____
_____ _____ _____ _____ _____ _____
_____ _____ _____ _____ _____ _____
Therefore, we hereby request on behalf of [QWI]/[QWUSA] that the following
Loans be made:
1) Borrower: ___________________________
Form: _______________________________ (Cdn. Prime Rate Loan, US Base
Rate Loan or US Prime Rate Loan)
Currency/Amount: ___________________
Facility A / Facility B / Facility C: _____________________
2) Borrower: ___________________________
Form: _______________________________ (Cdn. Prime Rate Loan, US Base
Rate Loan or US Prime Rate Loan)
Currency/Amount: ___________________
Facility A / Facility B / Facility C: _____________________
[NAME OF SWINGLINE LENDER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 3.7
CONFIRMATION OF BORROWING
(ADVANCE, CONVERSION OR RENEWAL)
(Section 3.7, 3.12, 5.1.2, 6.1.2 or 7.2.5)
Date: ___________________________
ROYAL BANK OF CANADA (as Administrative Agent)
200 Bay Street, South Tower
Royal Bank Plaza
12th Floor
Toronto, Ontario
M5J 2W7
Attention; Manager, Agency Services Group
Fax: (416) 842-4023
Dear Sirs:
QUEBECOR WORLD INC.
CONFIRMATION OF BORROWING
We refer to the Amended and Restated Credit Agreement dated as of
December 15, 2005, among Quebecor World Inc. and Quebecor World (USA) Inc., as
Borrowers, the financial institutions named on the signature pages thereof, as
Lenders, Royal Bank of Canada, as Administrative Agent, and RBC Capital Markets,
as Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the Amended and Restated
Credit Agreement have the same respective meanings when used herein.
We hereby irrevocably confirm our telephone notice, in accordance with
SECTION [3.7/3.12/5.1.2/6.1.2/7.2.5] of the Amended and Restated Credit
Agreement, of the following Borrowing:
1. THE MATURING BORROWING (IF APPLICABLE):
1. Form: _______________________________________________________
(Cdn. Prime Rate Loan, US Base Rate Loan, US Prime Rate Loan,
Libor Loan, Euro Loan, Borrowing by way of Bankers' Acceptances)(1)
- ----------
(1) Cdn. Prime Rate Loans are only available to QWI under Facility A and
Facility B. Similarly, Bankers' Acceptances may only be issued (or
continued or converted) by QWI under Facility A and Facility B. US Base
Rate Loans are only available to QWI under Facility A or Facility B. US
Prime Rate Loans are only available to QWUSA under Facility A, Facility B
or Facility C.
Currency/Amount: ______________________________
Facility A /Facility B /Facility C: _______________________________________
Libor Interest Period/Euro Interest Period/Term of Bankers' Acceptances:(2)
___________________________________________________________________________
2. THE BUSINESS DAY OF THE PROPOSED BORROWING IS: ____/_____/____
Day/Month/Year
3. PROPOSED BORROWING(S):
Advance Conversion Renewal
[ ] [ ] [ ]
Form: _____________________________________________________________________
(Cdn. Prime Rate Loan, US Base Rate Loan, US Prime Rate Loan, Libor
Loan, Euro Loan, Borrowing by way of Bankers' Acceptances)(1)
Currency/Amount: _____________________________
Facility A/Facility B/Facility C: _________________________________________
Libor Interest Period/Euro Interest Period/Term of Bankers' Acceptances:(3)
___________________________________________________________________________
4. REMIT FUNDS TO (IF APPLICABLE): ___________________________________________
___________________________________________________________________________
We hereby confirm that: (a) the Borrowing requested hereby complies with the
requirements of Section 3.7, 3.12, 5.1.2, 6.1.2 or 7.2.5 of the Amended and
Restated Credit Agreement, as the case may be, (b) no Default or Event of
Default has occurred and is continuing under the Amended and Restated Credit
Agreement or would result from the making of the Borrowing contemplated hereby
and (c) all representations and warranties made by us in Section 2.1 of the
Amended and Restated 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
- ----------
(2) In the case of conversion or continuation of Libor Loans, Euro Loans or
Borrowings by way of Bankers' Acceptances, include the duration of and last
day of the applicable Libor Interest Period, Euro Interest Period or term
of such Bankers' Acceptances to be converted or continued.
(3) In the case of Libor Loans, Euro Interest Period or Borrowings by way of
Bankers' Acceptances, include the duration of and last day of the
applicable Libor Interest Period, Euro Interest Period or term of such
Bankers' Acceptances.
Administrative Agent pursuant to Section 12.1.7(c) and those contained in
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 12.1.7).
[NAME OF BORROWER](4)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
- ----------
(4) QWI may borrow under Facility A and Facility B; QWUSA may borrow under
Facility A, Facility B and Facility C.
SCHEDULE 3.7.2
SWINGLINE LOAN NOTICE OF BORROWING
(Section 3.7.2)
Date: ___________________________
[SWINGLINE C LENDER]
[ADDRESS]
Attention: _____________
Fax: _____________
QUEBECOR WORLD INC.
SWINGLINE LOAN NOTICE OF BORROWING
We refer to the Amended and Restated Credit Agreement dated as of December
15, 2005, among Quebecor World Inc. and Quebecor World (USA) Inc., as Borrowers,
the financial institutions named on the signature pages thereof, as Lenders,
Royal Bank of Canada, as Administrative Agent, and RBC Capital Markets, as
Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the Amended and Restated
Credit Agreement have the same respective meanings when used herein.
We irrevocably confirm our telephone notice, in accordance with Section
3.7.2 of the Amended and Restated Credit Agreement, of the following Borrowing
under Facility C:
Amount: US$________________________________________
Date of Swingline Loan: ____________________________
We hereby confirm that: (a) the Borrowing requested hereby complies with
the requirements of Sections 3.5 and 3.7 of the Amended and Restated Credit
Agreement, as the case may be, (b) no Default or Event of Default has occurred
and is continuing under the Amended and Restated Credit Agreement or would
result from the making of the Borrowing contemplated hereby and (c) all
representations and warranties made by us in Section 2.1 of the Amended and
Restated 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 12.1.7(c)
and those contained in 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 12.1.7).
QUEBECOR WORLD (USA) INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 3.10
FORM OF EXTENSION REQUEST IN RESPECT OF REVOLVING PERIOD
(Sections 3.10.1, 3.10.2 and 3.10.3)
Date: ___________________________
ROYAL BANK OF CANADA (as Administrative Agent)
200 Bay Street, South Tower
Royal Bank Plaza
12th Floor
Toronto, Ontario
M5J 2W7
Attention: Manager, Agency Services Group
Fax: (416) 842-4023
Dear Sirs:
QUEBECOR WORLD INC.
EXTENSION REQUEST
We refer to the Amended and Restated Credit Agreement dated as of
December 15, 2005, among Quebecor World Inc. and Quebecor World (USA) Inc., as
Borrowers, the financial institutions named on the signature pages thereof, as
Lenders, Royal Bank of Canada, as Administrative Agent, and RBC Capital Markets,
as Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the Amended and Restated
Credit Agreement shall have the same meanings when used herein as that assigned
thereto in the Amended and Restated Credit Agreement.
Pursuant to Section 3.10 of the Amended and Restated Credit Agreement,
[NAME OF RELEVANT BORROWER(S)](1) hereby request(s) that each of the Facility
[A/B/C] Lenders extend the current Facility [A/B/C] Revolving Period for an
additional period of one year commencing on the expiry of the now current
Facility [A/B/C] Revolving Period, namely, ___________________________.
[NAME OF RELEVANT BORROWERS]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
- ----------
1. QWI and QWUSA jointly in the case of a request for the extension of the
Facility A Revolving Period, QWI and QWUSA jointly in the case of a request
for the extension of the Facility B Revolving Period and QWUSA in the case
of a request for the extension of the Facility C Revolving Period.
SCHEDULE 3.11.1
CONFIRMATION OF REPAYMENT
(Section 3.11.1)
Date: __________________
ROYAL BANK OF CANADA (as Administrative Agent)
200 Bay Street, South Tower
Royal Bank Plaza
12th Floor
Toronto, Ontario
M5J 2W7
Attention: Manager, Agency Services Group
Fax: (416) 842-4023
Dear Sirs:
QUEBECOR WORLD INC.
CONFIRMATION OF REPAYMENT
We refer to the Amended and Restated Credit Agreement dated as of
December 15, 2005, among Quebecor World Inc. and Quebecor World (USA) Inc., as
Borrowers, the financial institutions named on the signature pages thereof, as
Lenders, Royal Bank of Canada, as Administrative Agent, and RBC Capital Markets,
as Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the Amended and Restated
Credit Agreement have the same respective meanings when used herein.
We hereby irrevocably confirm our telephone notice that, in accordance
with Section 3.11.1 of the Amended and Restated Credit Agreement, we shall repay
certain Borrowings as follows:
1. DATE OF REPAYMENT: ____/______/____
Day/ Month/ Year
(date must coincide with maturity of Libor Loans, Euro Loans or
Borrowings by way of Bankers' Acceptances or Letters of Credit, to the
extent applicable)
2. REPAYMENT UNDER FACILITY A/FACILITY B/FACILITY C:
______________________________________________________________________
3. AMOUNT OF REPAYMENT:
(a) In respect of Cdn. Prime Rate Loans: CDN$____________
(b) In respect of US Base Rate Loans: US$____________
(c) In respect of US Prime Rate Loans: US$____________
(d) In respect of Libor Loans: US$____________
(e) In respect of Euro Loans: E____________
(f) In respect of Borrowings by way of Bankers' Acceptances: CDN$____________
(g) In respect of Borrowings by way of Letters of Credit: CDN$/US$____________
4. LAST DAY OF LIBOR INTEREST PERIOD, EURO INTEREST PERIOD OR TERM OF
BANKERS' ACCEPTANCES OR MATURITY DATE OF LETTERS OF CREDIT: (in the
case of repayment of Libor Loans, Euro Loans and Borrowings by way of
Bankers' Acceptances or by way of Letters of Credit):
____/______/____,
Day/ Month/ Year
We hereby represent and warrant that the repayment made hereunder
hereby complies with the requirements of Section 3.11 of the Amended and
Restated Credit Agreement.
[NAME OF RELEVANT BORROWER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 3.11.2
NOTICE OF CANCELLATION
(Section 3.11.2)
Date: __________________
ROYAL BANK OF CANADA (as Administrative Agent)
200 Bay Street, South Tower
Royal Bank Plaza
12th Floor
Toronto, Ontario
M5J 2W7
Attention: Manager, Agency Services Group
Fax: (416) 842-4023
Dear Sirs:
QUEBECOR WORLD INC.
NOTICE OF CANCELLATION
We refer to the Amended and Restated Credit Agreement dated as of
December 15, 2005, among Quebecor World Inc. and Quebecor World (USA) Inc., as
Borrowers, the financial institutions named on the signature pages thereof, as
Lenders, Royal Bank of Canada, as Administrative Agent, and RBC Capital Markets,
as Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the Amended and Restated
Credit Agreement have the same respective meanings when used herein.
We hereby irrevocably notify you, in accordance with Section 3.11.2 of
the Amended and Restated 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, Euro Loans or Borrowings by way of Bankers' Acceptances or
Letters of Credit)
2. AMOUNT OF CANCELLATION UNDER FACILITY A/FACILITY B/FACILITY C:
_____________________________________________________________________
3. AMOUNT OF PREPAYMENT, IF APPLICABLE:
(a) In respect of Cdn. Prime Rate Loans: CDN$____________
(b) In respect of US Base Rate Loans: US$____________
(c) In respect of US Prime Rate Loans: US$____________
(d) In respect of Libor Loans: US$____________
(e) In respect of Euro Loans: E____________
(f) In respect of Borrowings by way of Bankers' Acceptances: CDN$____________
(g) In respect of Letters of Credit: CDN$/US$____________
4. LAST DAY OF LIBOR INTEREST PERIOD, EURO INTEREST PERIOD OR TERM OF
BANKERS' ACCEPTANCES OR MATURITY DATE OF LETTERS OF CREDIT: (to the
extent applicable, in the case of prepayment of Libor Loans, Euro
Loans and Borrowings by way of Bankers' Acceptances or Letters of
Credit): ____/______/____,
Day/Month/Year
We hereby represent and warrant that the repayment made hereunder
hereby complies with the requirements of Section 3.11 of the Amended and
Restated Credit Agreement.
QUEBECOR WORLD INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 8
FORM OF POA LETTER OF CREDIT
(Article VIII)
[Letterhead of Administrative Agent]
Irrevocable Letter of Credit No.: ____________
Date of Issue: ___________
Expiry Date: ___________
Place of Expiry: _________
Amount: _________
Beneficiary: Applicant:
Name: Name:
------------------------------- ----------------------------------
Address: Address:
---------------------------- -------------------------------
Attn: Attn:
------------------------------- ----------------------------------
Fax No.:
----------------------------
The banks and other financial institutions named under the heading "ISSUING
LENDERS" on the signature pages (collectively, the "ISSUING LENDERS" and,
individually, an "ISSUING LENDER") hereby establish this irrevocable Letter of
Credit in your favour as beneficiary for drawings up to [Canadian Dollars or US
Dollars or any other currency acceptable to the Issuing Lenders]
___________________ in aggregate amount. This Letter of Credit is issued,
presentable and payable at our office at [address], or other address of which
notice is given as described below, and expires at our close of business 5:00 PM
(local time) on _____________(the "EXPIRY DATE"). The aggregate amount available
under this Letter of Credit shall be reduced immediately following the honouring
of any draft drawn hereunder in an amount equal to the amount of such draft.
This Letter of Credit cannot be modified or revoked without your consent.
__________, in addition to acting in its individual capacity as an Issuing
Lender hereunder, is acting as an agent for the other Issuing Lenders hereunder
(in such capacity, together with its successors in such capacity, the "AGENT").
Funds shall be available under this Letter of Credit upon presentation to the
Agent of [A DRAFT SUBSTANTIALLY IN THE FORM OF EXHIBIT A ATTACHED HERETO] [NTD:
INSERT ONLY IF APPLICABLE], the original of this Letter of Credit and the
following: [describe any other requirements for a drawing].
Each Issuing Lender hereby undertakes, severally (and not solidarily) according
to the percentage set forth next to its signature below (such Issuing Lender's
"LENDER'S PROPORTION") and not jointly or jointly and severally with any other
Issuing Lender, that drafts drawn under and in strict compliance with the terms
of this Letter of Credit will be duly honoured by paying to the Agent such
Issuing Lender's share (according to its Lender's Proportion) of the amount of
such draft. The Agent hereby undertakes that any amount so received by it will
be made
available to you promptly by remitting the payment so received, in like funds,
in accordance with your instructions.
The obligation of each Issuing Lender under this Letter of Credit is several (
and not solidary) and not joint or joint and several and shall at all times be
an amount equal to such Issuing Lender's Lender's Proportion of the aggregate
undrawn amount of this Letter of Credit (and of each drawing under this Letter
of Credit).
This Letter of Credit has been executed and delivered by the Agent in the name
and on behalf of, and as attorney-in-fact for, each Issuing Lender. The Agent is
authorized to act under this Letter of Credit as the agent of each Issuing
Lender in order to:
(a) receive drafts, other demands for payment and other documents
presented by you under this Letter of Credit;
(b) determine whether such drafts, demands and documents are in compliance
with the terms and conditions of this Letter of Credit;
(c) notify such Issuing Lender and the applicant that a valid drawing has
been made and the date that the related disbursement is to be made;
(d) notify you that this Letter of Credit will not be renewed. [Note:
insert this clause only if the Letter of Credit provides that it will
be renewed automatically unless notice to the contrary is given]
The Agent undertakes that it will promptly notify each Issuing Lender and the
applicant of any valid drawing under this Letter of Credit.
By your acceptance hereof, you agree that the Agent shall have no obligation or
liability to honour any drawing under this Letter of Credit (subject to the
liability of _____ in its capacity as an Issuing Lender and the obligation of
the Agent to remit funds paid to the Agent from an Issuing Lender, as set forth
above) and that neither any Issuing Lender nor the Agent shall be responsible
for the failure of any other Issuing Lender to make a payment to be made by such
other Issuing Lender hereunder.
This Letter of Credit sets forth in full the terms of our and each Issuing
Lender's undertaking, and such undertaking is not subject to any agreement,
requirement or qualification and shall not in any way be amended, modified,
amplified or limited by reference to any document, instrument or agreement
referred to herein or in which this Letter of Credit is referred to or to which
this Letter of Credit relates (other than the annexes attached hereto, if any),
and any such reference shall not be deemed to incorporate herein by reference
any document, instrument or agreement. The obligation of each Issuing Lender
under this Letter of Credit is the individual obligation of such Issuing Lender
and is in no way contingent upon reimbursement of any drawing hereunder or upon
any Issuing Lender's ability to perfect a lien or security interest.
This Letter of Credit shall be governed by and construed in accordance with the
law of the Province of Quebec and the laws of Canada applicable therein (without
reference to choice of law doctrine) and is subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (the "UNIFORM
CUSTOMS"). In the event of any conflict between the law of the Province of
Quebec and the Uniform Customs, the Uniform Customs shall control.
Notwithstanding Article 17 of the Uniform Customs, if this Letter of Credit
expires during an interruption of business as described in said Article 17, each
Issuing Lender agrees to effect payment if this Letter of Credit is drawn
against within 30 days after the resumption of business by the Agent. [insert
the immediately preceding sentence, if and as applicable] [as appropriate,
reference may be made to ISP98]
This Letter of Credit [may not be assigned or transferred, except that it]
[insert the immediately preceding clause, if and as applicable] shall inure to
the benefit of any successor by operation of law of the named beneficiary
hereof, including, without limitation, any liquidator, receiver or trustee for
such named beneficiary.
All communications regarding this Letter of Credit should be addressed to
___________________________________________________________________, [address],
Attention: ______________________________, referencing Irrevocable Letter of
Credit No. ___________. Upon or in anticipation of closure of the place where
this Letter of Credit is presentable and payable, the Agent may give notice to
the beneficiary, not less than 30 days before the Expiry Date, of another
reasonable place where this Letter of Credit shall be presentable and payable,
and if the Agent does so then this Letter of Credit shall be presentable and
payable at that place and not any previously designated place.
An Issuing Lender may, subject to (i) the provisions of the Amended and Restated
Credit Agreement dated as of December 15, 2005 among, inter alia, Quebecor World
Inc. and Quebecor World (USA) Inc., as borrowers, the lenders named on the
signature pages thereto, as lenders, and Royal Bank of Canada, as administrative
agent, as amended or restated from time to time and (ii) the replacement thereof
with a new Lender having the minimum credit rating set forth below or with your
consent (as applicable), cease to be a party to, and a new Lender may become a
party to, this Letter of Credit, and the Lender's Proportion of an Issuing
Lender may change, but no such event will reduce the then available amount under
this Letter of Credit. Upon the occurrence of any such event, the Agent will
provide prompt notice to you of such event, including any change in the
identities of the Issuing Lenders severally (and not solidarily) but not jointly
or jointly and severally liable in respect of the aggregate undrawn amount of
this Letter of Credit (based upon their respective Lender's Proportions thereof)
and any change in such Lender's Proportions. If a new Lender becomes a party to
this Letter of Credit and the credit rating of such new Lender (or its parent)
is lower than A3 as rated by Moody's Investors Service, Inc. or the equivalent
by any other nationally recognized rating agency, the consent of the beneficiary
to such change shall be required. A change in Lender's Proportions or Issuing
Lenders shall be documented by an amendment of this Letter of Credit.
Very truly yours,
---------------------------------------,
as Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Lender's Proportion: ISSUING LENDERS:
% [NAME OF LENDER]
- --------- by ________________, as Attorney-in-Fact
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
% [NAME OF LENDER]
- --------- by ________________, as Attorney-in-Fact
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
% [NAME OF LENDER]
- --------- by ________________, as Attorney-in-Fact
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE 8.4(1)
NOTICE OF ISSUANCE OF A LETTER OF CREDIT
(Section 8.4(1))
ROYAL BANK OF CANADA (AS ADMINISTRATIVE AGENT)
200 Bay Street, South Tower
Royal Bank Plaza
12th Floor
Toronto, ON M5J 2W7
Attention: Manager, Agency Services Group
Fax: (416) 842-4023
Dear Sirs:
QUEBECOR WORLD INC.
NOTICE OF ISSUANCE OF A LETTER OF CREDIT
We refer to the Amended and Restated Credit Agreement dated as of December
15, 2005 among Quebecor World Inc. and Quebecor World (USA) Inc., as Borrower,
the financial institutions named on the signature pages thereof, as Lenders,
Royal Bank of Canada, as Administrative Agent, and RBC Capital Markets, as
Arranger (as in effect on the date hereof, the "AMENDED AND RESTATED CREDIT
AGREEMENT"). The words and expressions defined in the Amended and Restated
Credit Agreement have the same respective meanings when used herein.
In accordance with the provisions of Section 8.4 (1) of the Amended and
Restated Credit Agreement, the undersigned Borrower hereby requests the
following Letter of Credit:
Facility under which the Letter of Credit
is to be issued (Facility A or Facility C): _____________________________
Type of Letter of Credit (Fronted or POA): _____________________________
Amount of Letter of Credit: _____________________________
Currency of Letter of Credit: _____________________________
Beneficiary of Letter of Credit: _____________________________
(name and address) _____________________________
_____________________________
_____________________________
____________________________
Issue Date of Letter of Credit: ____________________________
Maturing Date of Letter of Credit: ____________________________
We hereby confirm that: (a) the Borrowing requested hereby complies with
the requirements of Article VIII of the Amended and Restated Credit Agreement,
(b) no Default or Event of Default has occurred and is continuing under the
Amended and Restated Credit Agreement or would result from the making of the
Borrowing contemplated hereby and (c) all representations and warranties made by
us in Section 2.1 of the Amended and Restated Credit Agreement are true an
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 12.1.7 (c) and those contained in
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 12.1.7).
[NAME OF BORROWER](1)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
- ----------
(1) QWI and QWUSA may borrow under Facility A. QWUSA may borrow under Facility
C.
SCHEDULE 11.4(G)-A
OPINION OF CANADIAN COUNSEL TO THE LOAN PARTIES
(Section 11.4(g))
[UNDER LETTERHEAD OF OGILVY RENAULT]
Direct Dial: (514) 847-4983
gmaughan@ogilvyrenault.com
Montreal, December 15, 2005
ROYAL BANK OF CANADA, as Administrative Agent and Lender under the Credit
Agreement referred to below
- - and -
RBC CAPITAL MARKETS, as Arranger under the Credit Agreement referred to below
- - and -
EACH OTHER LENDER IDENTIFIED IN SCHEDULE I HERETO UNDER THE CREDIT AGREEMENT
REFERRED TO BELOW
- - and -
STIKEMAN ELLIOTT LLP
Dear Sirs:
RE: QUEBECOR WORLD INC. AND QUEBECOR WORLD (USA) INC.
We have acted as counsel to Quebecor World Inc. ("QWI") and as Canadian counsel
to Quebecor World (USA) Inc. ("WORLD USA") and Quebecor Printing Holding Company
("QPHC") in connection with an amended and restated credit agreement dated as of
December 15, 2005 among QWI, as borrower and guarantor, World USA, as borrower
(QWI and World USA being collectively referred to herein as the "BORROWERS"),
the Lenders listed on the signature pages thereof, Royal Bank of Canada, as
Administrative Agent, and RBC Capital
Page 4
Markets, as Arranger, with, as intervenant, QPHC (the "AMENDED AND RESTATED
CREDIT AGREEMENT").
The capitalized terms used in this opinion which are defined in the Credit
Agreement (as such expression is defined below) 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) a credit agreement dated as of April 28, 1999 among the Borrowers (then
known as Imprimeries Quebecor Inc. - Quebecor Printing Inc. and Quebecor
Printing (USA) Holdings Inc.), Quebecor World Capital GP ("USGP") (then
known as Quebecor Printing Capital GP), also as borrower at such time, the
lenders listed on the signature pages thereof, Royal Bank of Canada, as
arranger and Administrative Agent, and ABN AMRO Bank Canada, Bank of
America Canada and Canadian Imperial Bank of Commerce, as arrangers and
joint syndication agents (the "ORIGINAL CREDIT AGREEMENT");
(b) the first amending agreement to credit agreement dated as of August 12,
1999 among the Borrowers (then known as Imprimeries Quebecor Inc. -
Quebecor Printing Inc. and Quebecor Printing (USA) Holdings Inc.), USGP
(then known as Quebecor Printing Capital GP), also as borrower at such
time, and the Administrative Agent with, as intervenant, QPHC (the "FIRST
AMENDING AGREEMENT");
(c) the second amending agreement to credit agreement dated as of August 18,
1999 among the Borrowers (then known as Imprimeries Quebecor Inc. -
Quebecor Printing Inc. and Quebecor Printing (USA) Holdings Inc.), USGP
(then known as Quebecor Printing Capital GP), also as borrower at such
time, the lenders listed on the signature pages thereof, Royal Bank of
Canada, as arranger and Administrative Agent, ABN AMRO Bank Canada, Bank of
America Canada and Canadian Imperial Bank of Commerce, as arrangers and
joint syndication agents with, as intervenant, QPHC (the "SECOND AMENDING
AGREEMENT");
(d) the third amending agreement to credit agreement dated as of April 26, 2000
among QWI, World USA (then known as Quebecor Printing (USA) Holdings Inc.),
USGP (then known as Quebecor Printing Capital GP) and the Administrative
Agent with, as intervenant, QPHC (the "THIRD AMENDING AGREEMENT");
(e) the amended and restated credit agreement dated as of April 24, 2002 among
QWI, World USA and USGP, as borrowers, the lenders listed on the signature
pages thereof, Royal Bank of Canada, as Administrative Agent, RBC Dominion
Securities Inc., as
Page 5
arranger, and ABN AMRO Bank N.V., Canada Branch, Bank of America, N.A. and
Canadian Imperial Bank of Commerce, as arrangers and joint syndication
agents, with, as intervenant, QPHC (the "2002 AMENDED AND RESTATED CREDIT
AGREEMENT");
(f) the amended and restated credit agreement dated as of November 7, 2003
among QWI and World USA, as borrowers, the lenders listed on the signature
pages thereof and Royal Bank of Canada, as Administrative Agent, with, as
intervenant, QPHC (the "2003 AMENDED AND RESTATED CREDIT AGREEMENT");
(g) the first amending agreement to the amended and restated credit agreement
dated as of November 7, 2003 entered into as of November 5, 2004 among QWI
and World USA, as borrowers, the lenders listed on the signature pages
thereof and Royal Bank of Canada, as Administrative Agent, with, as
intervenant, QPHC (the "2004 FIRST AMENDING AGREEMENT");
(h) the Amended and Restated Credit Agreement;
(the Original Credit Agreement, as amended by the First Amending Agreement, the
Second Amending Agreement and the Third Amending Agreement, as further amended
and restated by the 2002 Amended and Restated Credit Agreement and the 2003
Amended and Restated Credit Agreement, as further amended by the 2004 First
Amending Agreement and as further amended and restated by the Amended and
Restated Credit Agreement, is herein called the "CREDIT AGREEMENT");
(i) the certificate and articles of amalgamation of QWI and all amendments
thereto and the by-laws of QWI;
(j) a certificate of compliance issued by Industry Canada dated December 9,
2005 and a certificate of attestation dated December 9, 2005 and a
certificate of regularite dated December 9, 2005, each issued by the
Registraire des entreprises, the whole in respect of QWI;
(k) a certified resolution of the board of directors of QWI authorizing the
execution and delivery of the Amended and Restated Credit Agreement and the
performance of its obligations thereunder; and
(l) a certificate of incumbency in respect of QWI dated December 15, 2005.
We have examined such statutes, public and corporate records, resolutions,
certificates (including officers' certificates) and other documents and have
considered such questions of law and made such searches as we have deemed
necessary for the purposes of the opinions hereinafter expressed. We have
relied, without independent verification or investigation, on all statements as
to matters of fact contained in such documents.
Page 6
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
QWI on the 2002 Amended and Restated Credit Agreement, the 2003 Amended and
Restated Credit Agreement and the Amended and Restated Credit 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; and
(iii) all relevant individuals had full legal capacity at all relevant times.
We have also assumed that at the time of execution of the Original Credit
Agreement, the First Amending Agreement, the Second Amending Agreement, the
Third Amending Agreement and the 2004 First Amending Agreement, each party
thereto (i) was a validly constituted and organized and validly subsisting
corporation or partnership under its governing laws, (ii) had full capacity,
power and authority to enter into each such agreement, and to perform the
obligations on its part set out therein, (iii) had duly authorized, executed and
delivered each such agreement and (iv) had met the requirements of Applicable
Laws in the United States of America for the entering into of each such
agreement and for the performance of its obligations thereunder. Insofar as the
aforesaid matters relate to QWI and the Original Credit Agreement, the First
Amending Agreement and the Second Amending Agreement, we refer you to the
opinions addressed and delivered to you of Messrs. Fasken Martineau DuMoulin LLP
(then known as Martineau Walker) dated April 28, 1999, August 12, 1999 and
August 20, 1999 respectively and insofar as they relate to QWI and the Third
Amending Agreement, we refer you to the opinion addressed and delivered to you
of Mr. Raynald Lecavalier, Director, Legal Affairs and Assistant Secretary of
QWI, dated May 23, 2000 and, in the case of each such opinion, to the
assumptions and qualifications therein set forth. Insofar as the aforesaid
matters relate to World USA, USGP and QPHC and the Original Credit Agreement,
the First Amending Agreement, the Second Amending Agreement, the Third Amending
Agreement, the 2002 Amended and Restated Credit Agreement and the 2003 Amended
and Restated Credit Agreement, we refer you to the opinions (and to the
assumptions and qualifications therein set forth) of Messrs. Arnold & Porter
addressed and delivered to you, dated April 28, 1999, August 12, 1999, August
20, 1999, May 23, 2000, April 24, 2002 and November 7, 2003, respectively.
We have further assumed that each party to the Amended and Restated Credit
Agreement, other than QWI, (i) is a validly constituted and organized and
validly subsisting corporation or partnership under its governing laws, (ii) has
full capacity, power and authority to enter into the Amended and Restated Credit
Agreement, and to perform the obligations on its part set out therein, (iii) has
duly authorized, executed and delivered the Amended and Restated Credit
Page 7
Agreement and (iv) has met the requirements of Applicable Laws in the United
States of America for the entering into of the Amended and Restated Credit
Agreement and for the performance of its obligations thereunder. Insofar as the
aforesaid matters relate to World USA and QPHC, we refer you to the opinion of
Messrs. Arnold & Porter, dated the date hereof and addressed and delivered to
you concurrently herewith and to the qualifications and assumptions therein set
forth.
We have finally assumed that the Credit Agreement constitutes legal, valid,
binding and enforceable obligations of each party thereto, other than the
Borrowers and QPHC.
Based on the foregoing, but subject to the qualifications hereinafter set forth,
we are of the opinion that:
1. QWI is a corporation amalgamated and validly existing under the Canada
Business Corporations Act (Canada) and in good standing under the said Act
and the Act Respecting the Legal Publicity of Sole Proprietorships,
Partnerships and Legal Persons (Quebec) and it has the corporate power and
capacity to carry on business, to enter into and to perform its
obligations, as Borrower and as guarantor, under the Amended and Restated
Credit Agreement;
2. the execution and delivery of the Amended and Restated Credit Agreement by
QWI, as Borrower or as guarantor, as the case may be, and the performance
by QWI of its obligations, as the case may be, as Borrower or as guarantor,
under the Amended and Restated Credit Agreement have been duly authorized
by all necessary corporate action on the part of QWI and, to the extent
required by QWI's articles and by-laws, the shareholders of QWI have
authorized the entering into of the Amended and Restated Credit Agreement;
3. neither the execution and delivery of the Amended and Restated Credit
Agreement by QWI, as Borrower or as guarantor, as the case may be, nor
compliance by QWI, as Borrower or as guarantor, as the case may be, 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 QWI, or
(ii) conflict with, violate or result in a breach of the laws or
regulations in force in the Province of Quebec applicable to QWI;
4. the Amended and Restated Credit Agreement has been duly executed and
delivered by QWI, as Borrower and as guarantor;
5. the Credit Agreement constitutes legal, valid and binding obligations of
each of the Borrowers (in the case of QWI, as Borrower and as guarantor)
and, as intervenant,
Page 8
QPHC enforceable against each of the Borrowers and QPHC in accordance with
its terms;
6. 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 and delivery by, and the enforceability against,
the Borrowers (in the case of QWI, as Borrower and as guarantor) and, as
intervenant, QPHC of the Credit Agreement or for the effecting of
Borrowings under the Credit Agreement.
The opinions expressed herein are subject to the assumptions hereinabove set
forth and to the following qualifications:
A. the enforcement of the Credit Agreement or any judgment arising out of or
in connection therewith may be limited by any applicable bankruptcy,
winding up, insolvency, moratorium, reorganization, prescription or other
similar laws affecting creditors' rights generally;
B. because, under Quebec law, a security interest may only be granted by way
of a hypothec (which must be granted for a sum certain) or by way of
pledge, no opinion is expressed herein with respect to the effectiveness of
the provisions of Sections 3.11.3(d), 3.14, 8.11, 9.8 and 18.11 of the
Credit Agreement providing for cash to be held in the circumstances stated
therein as collateral security;
C. no opinion is expressed herein with respect to the effectiveness of the
obligation to pay interest at the rates of interest provided for in
Sections 18.5.1, 18.5.2 and 18.11 of the Credit Agreement as such rates are
not fixed by the provisions of such Sections;
D. we express no opinion with respect to any provision of the Credit Agreement
which purports to waive the rights of any party under any legislation which
precludes or restricts such waiver;
E. we express no opinion as to the effectiveness of any provision of the
Credit Agreement which purports to allow for the compensation or set-off of
unmatured or unliquidated claims;
F. Article 2345 of the Civil Code of Quebec (the "CIVIL CODE") obliges the
creditor under a guarantee to provide, upon request from the guarantor, any
useful information respecting the content and the terms and conditions of
the principal obligation and the progress made in its performance;
G. the provisions of Article 2355 of the Civil Code render null any waiver of
the benefit of subrogation by a guarantor; consequently, it could be argued
that, if as a result of the acts of the Administrative Agent or the
Lenders, QWI, as guarantor under the guarantee
Page 9
created pursuant to Article X of the Credit Agreement (the "QWI GUARANTEE")
could no longer be usefully subrogated to the rights of the Administrative
Agent or the Lenders, or if QWI were to be deprived of a security or a
right which it could have set up by subrogation, QWI would be discharged to
the extent of the prejudice that QWI has suffered, notwithstanding any
provisions of the QWI Guarantee to the opposite effect;
H. under Article 2363 of the Civil Code, a guarantee attached to the
performance of special duties is terminated upon cessation of such duties.
While the courts have not been called upon to construe the nature and
extent of "special duties" within the meaning of said Article 2363, we are
of the view that this provision would not apply to a shareholder who is not
also a director, officer or employee of a corporation;
I. as the QWI Guarantee may be construed to cover future or undetermined
debts, QWI may, as permitted by Article 2362 of the Civil Code, terminate
its obligations as guarantor under the QWI Guarantee after three years (so
long as the guaranteed indebtedness has not become due) by giving prior and
sufficient notice to the other Borrower, QPHC and any other guarantor of
such indebtedness and the Administrative Agent; notwithstanding such
termination of the QWI Guarantee, QWI would remain liable for guaranteed
debts existing at the time of such termination;
J. any provision of the QWI Guarantee purporting to allow World USA or any of
the Finance Parties to increase the obligations guaranteed by the QWI
Guarantee or otherwise amend such obligations without the consent of QWI (a
"waiver clause") might not be enforced by a court of the Province of Quebec
and accordingly, we express no opinion on the validity or enforceability of
the QWI Guarantee to the extent that such obligations are modified or
amended without the consent of QWI;
K. Article 2340 of the Civil Code provides that a guarantee "may be contracted
only for a valid obligation" and Article 2341 of the Civil Code provides
that a guarantee may not be contracted under conditions more onerous than
those applicable to the guaranteed obligations. We express no opinion as to
the enforceability of any particular provisions of the QWI Guarantee which
may contravene the provisions of said articles;
L. the question of whether or not any of the provisions of the Credit
Agreement which may be rendered invalid on account of illegality may be
severed from the other provisions thereof in order to save those other
provisions would be determined by a Quebec court in its discretion;
M. in the event that litigation should ensue outside Quebec, the Borrowers may
be subject to Section 2 of the Business Concerns Records Act (Quebec) which
provides that "Subject to section 3, 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
Page 10
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;
N. the obligations of the parties under the Credit Agreement and the
enforceability thereof are subject to all qualifications which, by equity,
usage or law, are incidental thereto by their nature, including without
limitation:
(i) in accordance with Articles 6 and 1375 of the Civil Code, good faith
which the parties must have exercised and must continue to exercise in
the negotiation, implementation and enforcement of the Credit
Agreement;
(ii) equitable remedies such as specific performance and injunctive relief
which may be ordered by a court in its discretion and accordingly may
not be available as a remedy in an action brought to enforce the
Credit Agreement;
(iii) the powers of the courts to stay proceedings before them and to stay
the execution of judgments;
(iv) the Currency Act (Canada) pursuant to which a court in Canada will
render judgment only in lawful currency of Canada;
(v) the discretion that a court may reserve to itself to decline to hear
an action if it is contrary to public policy for it to do so or if it
is not the proper forum to hear such action;
(vi) limitations which may be imposed by law on the effectiveness of terms
exculpating a party from a liability resulting from gross or
intentional fault;
(vii) reasonable time which must be given to the Borrowers to make payment
of any amount demanded in respect of any obligation payable on demand
or without notice, and the restrictions on the Lenders' rights to
enforce the Credit Agreement during such period of time;
(viii) limitations upon the right of a party to the Credit Agreement to
enforce such document on the basis of a default of minor importance or
of a purely technical default, such as a failure to timely produce a
document;
(ix) the discretion that a court may reserve to itself to decline to be
bound by the provisions of the Credit Agreement to the effect that
certain calculations, certificates or determinations of fact will be
conclusive and binding; and
Page 11
(x) in accordance with Article 2332 of the Civil Code, the possibility of
cancellation or reduction by a court of the obligations arising from
the Credit Agreement or the revision by a court of the terms and
conditions of the performance of these obligations to the extent that
if it finds that, having regard to the risk and to all the surrounding
circumstances, one of the parties has suffered lesion, Article 1406 of
the Civil Code providing that "lesion results from the exploitation of
one of the parties by the other, which creates a serious disproportion
between the prestations of the parties; the fact that there is a
serious disproportion creates a presumption of exploitation".
O. we express no opinion as to the validity or enforceability of any provision
of the Credit Agreement providing for the creation of an irrevocable
mandate;
P. taking into consideration Section 347 of the Criminal Code (Canada) and the
definition given to "interest payments" therein, any interest payment in
virtue of the Amended and Restated Credit Agreement exceeding 60% per annum
would result in a criminal infraction rendering the recipient of the
payments subject to the penalties provided for in said Section 347;
Q. we express no opinion as to the enforceability of any provision of the
Credit Agreement to the effect that monies or assets received shall be
received or held "in trust" or as "trustee";
R. we express no opinion on any provision of the Credit Agreement which
purports to enable the Administrative Agent or the Lenders to recover any
cost of enforcement or fees in excess of the legal tariff; and
S. we express no opinion on any provision of the Credit Agreement which
suggests or provides that modifications, amendments or waivers thereto that
are not in writing will not be effective.
This opinion is limited to the laws in force in the Province of Quebec and may
only be relied upon by the persons to which it is addressed and their permitted
successors and assigns and for the purposes of the transactions contemplated in
the Credit Agreement. This opinion may not be quoted from or referred to in any
other document without our prior written consent.
Yours truly,
SCHEDULE I
OTHER LENDERS
ROYAL BANK OF CANADA
ABN AMRO BANK N.V.
BANK OF AMERICA, N.A., CANADA BRANCH
BANK OF AMERICA, N.A.
BNP PARIBAS (CANADA)
BNP PARIBAS, DUBLIN BRANCH
CITIBANK, N.A. CANADIAN BRANCH
CITIBANK, N.A.
THE BANK OF NOVA SCOTIA
THE TORONTO-DOMINION BANK
TORONTO-DOMINION (TEXAS) LLC
BANK OF MONTREAL
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH
JPMORGAN CHASE BANK, N.A.
SOCIETE GENERALE (CANADA)
SOCIETE GENERALE
CANADIAN IMPERIAL BANK OF COMMERCE
CIBC INC.
NATIONAL BANK OF CANADA
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
CONGRESS FINANCIAL CORPORATION (CANADA)
WACHOVIA BANK, NATIONAL ASSOCIATION
BANK OF TOKYO-MITSUBISHI (CANADA)
THE BANK OF TOKYO-MITSUBISHI, LTD. NEW YORK BRANCH
SAMPO BANK PLC
SCHEDULE 11.4(G)-B
OPINION OF US COUNSEL TO THE LOAN PARTIES
(Section 11.4(g))
[UNDER LETTERHEAD OF ARNOLD & PORTER LLP]
December 15, 2005
ROYAL BANK OF CANADA, as
Administrative Agent and Lender
under the Credit Agreement
referred to below
- - and -
RBC CAPITAL MARKETS, as
Arranger under the Credit
Agreement referred to below
- - and -
EACH OTHER LENDER
IDENTIFIED IN SCHEDULE I
HERETO UNDER THE CREDIT
AGREEMENT REFERRED TO
BELOW
- - and -
STIKEMAN ELLIOTT LLP
Re: Quebecor World Inc. and Quebecor World (USA) Inc.-- Credit Agreement
Ladies and Gentlemen:
We have acted as counsel to Quebecor World (USA) Inc., a Delaware
corporation ("QWUSA"), and Quebecor Printing Holding Company, a Delaware
corporation ("QPHC"), in connection with an amended and restated credit
agreement dated as of December 15, 2005 among Quebecor World Inc. and QWUSA, as
borrowers (collectively,
the "Borrowers"), the lenders listed on the signature pages thereof, Royal Bank
of Canada, as Administrative Agent, and RBC Capital Markets, as Arranger, with
QPHC, as intervenant (the "Amended and Restated Credit Agreement"), which amends
and restates the amended and restated credit agreement dated as of November 7,
2003 among Quebecor World Inc. and QWUSA, as borrowers, the lenders listed on
the signature pages thereof, Royal Bank of Canada, as Administrative Agent, and
RBC Capital Markets, as Arranger, with QPHC, as intervenant, as amended by a
first amending agreement dated as of November 5, 2004 among Quebecor World Inc.,
QWUSA, the lenders listed on the signature pages thereof, Royal Bank of Canada,
as administrative agent, and RBC Capital Markets, as arranger (as so amended,
the "2003 Amended and Restated Credit Agreement"), which amended and restated
the amended and restated credit agreement dated as of April 24, 2002 (the "2002
Amended and Restated Credit Agreement") among Quebecor World Inc., QWUSA and
Quebecor World Capital GP, a Delaware general partnership ("USGP"), as
borrowers, the lenders listed on the signature pages thereof, Royal Bank of
Canada, as Administrative Agent, RBC Dominion Securities Inc., as arranger, and
ABN AMRO Bank, N.V., Canada Branch, Bank of America, N.A. and Canadian Imperial
Bank of Commerce, as arrangers and joint syndication agents, with QPHC, as
intervenant, which amended and restated the credit agreement dated as of April
28, 1999 (the "Original Credit Agreement") among the Borrowers, USGP, the
lenders listed on the signature pages thereof, Royal Bank of Canada, as arranger
and Administrative Agent, and ABN AMRO Bank Canada, Bank of America Canada and
Canadian Imperial Bank of Commerce, as arrangers and joint syndication agents,
as amended by (i) the first amending agreement dated as of August 12, 1999 (the
"First Amending Agreement") among the Borrowers, USGP, and Royal Bank of Canada,
as Administrative Agent, with QPHC, as intervenant, (ii) the second amending
agreement dated as of August 18, 1999 (the "Second Amending Agreement") among
the Borrowers, USGP, the lenders listed on the signature pages thereof, Royal
Bank of Canada, as arranger and Administrative Agent, and ABN AMRO Bank Canada,
Bank of America Canada and Canadian Imperial Bank of Commerce, as arrangers and
joint syndication agents, with QPHC, as intervenant, and (iii) the third
amending agreement dated as of April 26, 2000 (the "Third Amending Agreement")
among the Borrowers, USGP and Royal Bank of Canada, as Administrative Agent,
with QPHC, as intervenant. The Original Credit Agreement, as amended by the
First Amending Agreement, the Second Amending Agreement and the Third Amending
Agreement, as amended and restated by the 2002 Amended and Restated Credit
Agreement and the 2003 Amended and Restated Credit Agreement, and as further
amended and restated by the Amended and Restated Credit Agreement, is herein
called the "Credit Agreement".
This opinion is delivered to you pursuant to Section 11.4(g) of the Amended
and Restated Credit Agreement. The capitalized terms used in this opinion have
herein the respective meanings specified in the Credit Agreement unless the
context of this opinion otherwise requires or unless such terms are otherwise
defined in this opinion.
In rendering the opinion 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 Credit Agreement;
(b) certificates of good standing issued by the appropriate state
authorities in respect of each of QWUSA and QPHC (together, the "US Loan
Parties");
(c) resolutions of the board of directors of each of QWUSA and QPHC
authorizing the execution by QWUSA and QPHC, respectively, of the Amended and
Restated Credit Agreement to which each is respectively a party or intervenant
and the performance of the obligations on their respective parts set forth
therein;
(d) the certificate of incorporation and by-laws of each of the US Loan
Parties;
(e) certificates of incumbency for each of the US Loan Parties;
(f) a loan party guarantee agreement dated as of April 28, 1999 by QWUSA in
favor of the Administrative Agent and a loan party guarantee agreement dated as
of April 28, 1999 by QPHC in favor of the Administrative Agent (all such loan
party guarantee agreements collectively, the "Guarantee Agreements"); and
(g) all such corporate records and other records and documents as we have
considered necessary or desirable for purposes of this opinion.
For purposes of this opinion, we have assumed the genuineness of all
signatures (other than those on behalf of QWUSA and QPHC on the Credit Agreement
and the Guarantee Agreements), the authenticity of all documents submitted to us
as originals, the conformity to original documents 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 Credit Agreement and the
Guarantee Agreements, other than the US Loan Parties, (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 Credit
Agreement and the Guarantee Agreements, as the case may be, and to perform the
obligations on its part set out therein and (iii) has duly authorized, executed
and delivered the Credit Agreement and the Guarantee Agreements, as the case may
be. Finally, we have assumed that the Credit Agreement is enforceable in
accordance with its governing laws, namely the laws of the Province of Quebec,
Canada and the federal laws of Canada applicable therein.
Based on the foregoing and subject to the qualifications set forth herein,
we are of the opinion that:
1. Each of QWUSA and QPHC 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, as party or as intervenant, and to perform its obligations under
the Amended and Restated Credit Agreement.
3. The execution and delivery by each of the US Loan Parties of the Amended
and Restated Credit Agreement and the performance by each of the US Loan Parties
of its obligations under the Amended and Restated Credit Agreement have been
duly authorized by all necessary corporate action (including any necessary
shareholder action) by each of the US Loan Parties.
4. The execution, delivery and performance by each of the US Loan Parties,
as party or as intervenant, of the Amended and Restated Credit Agreement and the
consummation of the transactions contemplated therein do not:
(i) constitute a violation of the certificate of incorporation or by-laws
of such US Loan Party, or
(ii) constitute a violation of the laws or regulations of the State of New
York, the General Corporation Law of the State of Delaware or the federal law of
the United States of America applicable to it.
5. Each of the US Loan Parties has duly executed and delivered, as party or
as intervenant, the Amended and Restated Credit Agreement.
6. The execution, delivery and performance by each of the US Loan Parties
of the Credit Agreement, 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 of the United States of America.
7. Notwithstanding the amendments contained in the Credit Agreement, each
of the Guarantee Agreements continues to constitute a legal, valid and binding
obligation of the US Loan Party thereto, enforceable against the US Loan Party
thereto 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).
8. Any judgment against any of the US Loan Parties given by a court in the
Province of Quebec for a definite sum of money, which is final, conclusive and
enforceable where rendered, relating to any suit against any of the US Loan
Parties for the enforcement of any of the Credit Agreement and the Guarantee
Agreements, is recognizable and enforceable against such US Loan Party by the
Supreme Court of the State of New York, New York County, without re-examination
or re-trial of the matters adjudicated upon, unless, consistent with Section
5304 of the New York Civil Practice Law and Rules (i) the judgment was rendered
under a system which does not provide impartial tribunals or procedures
compatible with the requirements of due process of law; (ii) the court did not
have personal jurisdiction over the defendant; (iii) the court did not have
jurisdiction over the subject matter; (iv) the defendant in the proceedings in
the court did not receive notice of the proceedings in sufficient time to enable
it to defend; (v) the judgment was obtained by fraud; (vi) the cause of action
on which the judgment is based is repugnant to the public policy of the State of
New York; (vii) the judgment conflicts with another final and conclusive
judgment; (viii) the proceeding in the court was contrary to an agreement (other
than any of the Credit Agreement and the Guarantee Agreements) between the
parties under which the dispute in question was to be settled otherwise than by
proceedings in that court; or (ix) in the case of jurisdiction based only on
personal service, the court was a seriously inconvenient forum for the trial of
the action.
9. The choice of the laws of the Province of Quebec and federal laws of
Canada applicable therein to govern the Credit Agreement should be upheld as a
valid choice of law in any action against QWUSA to enforce the Credit Agreement
in the courts of the State of New York; provided that the application of such
law does not violate the public policies or purposes of any law of the State of
New York.
10. None of the US Loan Parties 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. This opinion
speaks only as of its date. In the absence of a specific request, we assume no
obligation to supplement or update this opinion as of any date occurring
hereafter. 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 Credit Agreement.
Very truly yours,
SCHEDULE I
OTHER LENDERS
ABN AMRO BANK N.V.
BANK OF AMERICA, N.A., CANADA BRANCH
BANK OF AMERICA, N.A.
BNP PARIBAS (CANADA)
BNP PARIBAS, DUBLIN BRANCH
CITIBANK, N.A. CANADIAN BRANCH
CITIBANK, N.A.
THE BANK OF NOVA SCOTIA
THE TORONTO-DOMINION BANK
TORONTO DOMINION (TEXAS), INC.
BANK OF MONTREAL
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH
JPMORGAN CHASE BANK, N.A.
SOCIETE GENERALE (CANADA)
SOCIETE GENERALE
CANADIAN IMPERIAL BANK OF COMMERCE
CIBC INC.
NATIONAL BANK OF CANADA
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
CONGRESS FINANCIAL CORPORATION (CANADA)
WACHOVIA BANK, NATIONAL ASSOCIATION
BANK OF TOKYO-MITSUBISHI (CANADA)
THE BANK OF TOKYO-MITSUBISHI, LTD. NEW YORK BRANCH
SAMPO BANK PLC
SCHEDULE 11.4 (H)
OPINION OF CANADIAN COUNSEL TO THE LENDERS
(Section 11.4(h))
[UNDER LETTERHEAD OF STIKEMAN ELLIOTT LLP]
December 15, 2005
ROYAL BANK OF CANADA, RBC CAPITAL MARKETS, as Arranger
as Administrative Agent and Lender under under the Credit Agreement referred
the Credit Agreement referred to below to below
EACH OTHER LENDER IDENTIFIED IN
SCHEDULE I HERETO UNDER THE
CREDIT AGREEMENT REFERRED TO
BELOW
Dear Sirs:
RE: QUEBECOR WORLD INC. AND QUEBECOR WORLD (USA) INC.
We have acted as counsel to the Administrative Agent in connection with an
amended and restated credit agreement dated as of December 15, 2005 among
Quebecor World Inc. ("QWI"), as borrower and guarantor, and Quebecor World (USA)
Inc. ("QWUSA"), as borrower (QWI and QWUSA being collectively referred to herein
as the "BORROWERS"), the lenders listed on the signature pages thereof, Royal
Bank of Canada, as Administrative Agent, RBC Capital Markets, as Arranger, with,
as intervenant, Quebecor Printing Holding Company ("QPHC") (the "AMENDED AND
RESTATED CREDIT AGREEMENT").
The capitalized terms used in this opinion which are defined in the Credit
Agreement (defined below) 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.
1. EXAMINATIONS
In this connection, we have examined original executed copies or copies
certified to our satisfaction of the following documents:
(a) the credit agreement dated as of April 28, 1999 among QWI (then known as
Imprimeries Quebecor Inc. - Quebecor Printing Inc.), QWUSA (then known as
Quebecor Printing (USA) Holdings Inc.) and Quebecor World Capital GP (then
known as Quebecor Printing Capital GP) ("USGP"), as borrowers, the lenders
listed on the signature pages
thereof, Royal Bank of Canada, as arranger and Administrative Agent, and
ABN AMRO Bank Canada, Bank of America Canada and Canadian Imperial Bank of
Commerce, as arrangers and joint syndication agents (the "ORIGINAL CREDIT
AGREEMENT");
(b) the first amending agreement to credit agreement dated as of August 12,
1999 among QWI (then known as Imprimeries Quebecor Inc. - Quebecor Printing
Inc.), QWUSA (then known as Quebecor Printing (USA) Holdings Inc.) and USGP
(then known as Quebecor Printing Capital GP) and the Administrative Agent
with, as intervenant, QPHC (the "FIRST AMENDING AGREEMENT");
(c) the second amending agreement to credit agreement dated as of August 18,
1999 among QWI (then known as Imprimeries Quebecor Inc. - Quebecor Printing
Inc.), QWUSA (then known as Quebecor Printing (USA) Holdings Inc.) and USGP
(then known as Quebecor Printing Capital GP), the lenders listed on the
signature pages thereof, Royal Bank of Canada, as Administrative Agent and
arranger, ABN AMRO Bank Canada, Bank of America Canada and Canadian
Imperial Bank of Commerce, as arrangers and joint syndication agents with,
as intervenant, QPHC (the "SECOND AMENDING AGREEMENT");
(d) the third amending agreement to credit agreement dated as of April 26, 2000
among QWI, QWUSA (then known as Quebecor Printing (USA) Holdings Inc.) and
USGP (then known as Quebecor Printing Capital GP) and the Administrative
Agent with, as intervenant, QPHC (the "THIRD AMENDING AGREEMENT");
(e) the amended and restated credit agreement dated as of April 24, 2002 among
QWI, QWUSA and USGP, as borrowers, the lenders listed on the signature
pages thereof, Royal Bank of Canada, as Administrative Agent, RBC Dominion
Securities Inc., as arranger, and ABN AMRO Bank N.V., Canada Branch, Bank
of America N.A. and Canadian Imperial Bank of Commerce, as arrangers and
joint syndication agents, with, as intervenant, QPHC (the "2002 AMENDED AND
RESTATED CREDIT AGREEMENT"); and
(f) the amended and restated credit agreement dated as of November 7, 2003
among QWI and QWUSA, as borrowers, the lenders listed on the signature
pages thereof, Royal Bank of Canada, as Administrative Agent, RBC Capital
Markets, as arranger, with, as intervenant, QPMC (the "2003 AMENDED AND
RESTATED CREDIT AGREEMENT);
(g) the first amending agreement to the amended and restated credit agreement
dated as of November 7, 2003 made as of November 5, 2004 among QWI and
QWUSA, as borrowers, the lenders listed on the signature pages thereof,
Royal Bank of Canada, as Administrative Agent, RBC Capital Markets, as
arranger, with, as intervenant, QPHC (the "2004 AMENDMENT");
(the Original Credit Agreement, as amended by the First Amending Agreement,
the Second Amending Agreement and the Third Amending Agreement, as further
amended and restated by the 2002 Amended and Restated Credit Agreement, as
further amended and restated by the 2003 Amended and Restated Credit
Agreement as amended by the 2004 Amendment and as further amended and
restated by the Amended and Restated Credit Agreement is herein called the
"CREDIT AGREEMENT");
(h) all such records and documents as we have considered necessary or desirable
in order that we may give this opinion.
2. ASSUMPTIONS AND RELIANCE
In our examination of the Credit Agreement as well as of the other
documents and certificates above-mentioned, we have assumed:
2.1 the legal capacity of all individuals, the genuineness of all signatures
on, and the authenticity and completeness of, all documents submitted to us
as original documents, and the conformity to authentic original documents
of all documents submitted to us as notarial, certified, photostat or
similarly reproduced copies of such original documents;
2.2 the currency, completeness, truth and accuracy of all facts set forth in
the official public records, certificates and documents supplied by public
officials or otherwise conveyed to us by public officials;
2.3 that each of the parties to the Credit Agreement is, and was at all
relevant times, a validly incorporated and organized and validly subsisting
corporation or, in the case of USGP, partnership, under its governing laws,
has, and had at all relevant times, the corporate capacity to execute,
deliver and perform its obligations under the Credit Agreement and has
taken, and had taken at all relevant times, all necessary actions to
authorize the execution, delivery and performance by it of such Credit
Agreement and that neither the execution, delivery and performance of the
Credit Agreement, nor the consummation of the transactions contemplated
thereby, conflict with, or conflicted with at all relevant times, or result
in, or resulted in at all relevant times, a breach of their respective
constating documents and by-laws;
2.4 that each of the parties to the Credit Agreement has duly executed and
delivered the Credit Agreement;
2.5 that the Credit Agreement constitutes, and constituted at all relevant
times, a legal, valid, binding and enforceable obligation of each of the
parties thereto other than the Borrowers and, as intervenant, QPHC;
2.6 that each party to the Credit Agreement has met the requirements of
Applicable Laws in the United States of America for the entering into of
the Credit Agreement and for the performance of its obligations thereunder.
With respect to certain matters described in paragraphs 2.3 and 2.4
hereinabove, we refer you to the legal opinions (and the assumptions and
qualifications therein set forth) of Ogilvy Renault dated December 15, 2005 and
of Arnold & Porter also dated December 15, 2005, as to which opinions we assume
no responsibility.
3. LAW
Our opinions set out below are limited to the laws of the Province of
Quebec and the federal laws of Canada applicable therein, as of the date of this
opinion letter.
4. OPINIONS
Based upon and relying on the foregoing and subject to the assumptions,
qualifications and limitations set forth in this opinion letter, we are of the
opinion that:
4.1 the Credit Agreement constitutes legal, valid and binding obligations of
each of the Borrowers (in the case of QWI, as Borrower and as guarantor)
and, as intervenant, QPHC enforceable against each of them in accordance
with its terms;
4.2 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 and delivery by, and the enforceability against,
the Borrowers (in the case of QWI as Borrower and as guarantor) and, as
intervenant, QPHC of the Credit Agreement or for the effecting of
Borrowings under the Credit Agreement.
5. QUALIFICATIONS
The foregoing opinions are subject to the following qualifications and
limitations:
5.1 The enforceability of the provisions of the Credit Agreement is subject to
applicable laws relating to bankruptcy, insolvency, reorganization and
other similar laws affecting creditors' rights generally and to the fact
that specific performance and other equitable remedies are subject to the
discretion of a court of competent jurisdiction before which such equitable
remedies are sought and to the power of a court to stay proceedings before
it, to stay the execution of judgments and to grant relief against
forfeiture.
5.2 The obligations of the parties under the Credit Agreement and the
enforceability thereof is subject to all qualifications which, by equity,
usage or law, are incidental thereto by their nature and to principles of
good faith, reasonableness and public order as such principles are
construed and applied by the courts of the Province of Quebec. These
qualifications and principles include, without limitation:
5.2.1 in accordance with Articles 6 and 1375 of the Civil Code of Quebec
(the "CIVIL CODE"), good faith which the parties must have exercised
and must continue to exercise in the negotiation, implementation and
enforcement of the Credit Agreement;
5.2.2 limitations upon the rights of the Lenders and the Administrative
Agent to receive immediate payment of amounts stated to be payable on
demand;
5.2.3 limitations upon the rights of the party to any document to enforce
the same on the basis of a purely technical or immaterial default;
5.2.4 limitations on provisions expressly or by implication waiving rights
or defences under any legislation;
5.2.5 the discretion that a court may reserve to itself to decline to hear
an action if it is contrary to public order for it to do so or to
decline to order any Borrower or QPHC to perform covenants;
5.2.6 limitations which may be imposed by law on the effectiveness of the
terms exculpating a party from a liability or indemnifying a party in
respect of their breach of duty otherwise owed by it to another as
well as on the effectiveness of rights of indemnity or of
contribution;
5.2.7 judicial inquiry into the merits of any claim by an aggrieved party
in spite of any provision of any document to the effect that certain
calculations, determinations or certificates will be conclusive and
binding and, in addition, the ineffectiveness of such provisions if
such calculations, determinations or certificates are fraudulent or
erroneous on their face;
5.2.8 general principles whereby a party may not be bound to fulfill
obligations which are indeterminate or indeterminable;
5.2.9 rights of indemnity and contribution may be limited by applicable
law; and
5.2.10 in accordance with article 2332 of the Civil Code, the possibility
of cancellation or reduction by a court of the obligations arising
from the Credit Agreement, or the revision by a court of the terms and
conditions of the performance of the obligations comprised therein to
the extent that it finds that, having regard to the risk and to all
the circumstances, one of the parties has suffered lesion.
5.3 We express no opinion with respect to:
5.3.1 the legality, validity, binding nature or enforceability of the
clauses of the Credit Agreement which purport to enable the
Administrative Agent or the Lenders to recover any cost of enforcement
or fees in excess of the legal tariff;
5.3.2 the legality, validity, binding nature or enforceability of the
provisions of the Credit Agreement purporting to waive the application
of provisions which are of public order in applicable laws;
5.3.3 the legality, validity, binding nature or enforceability of any
provision of the Credit Agreement which suggests or provides that
modifications, amendments or waivers thereto that are not in writing
will not be effective;
5.3.4 the provisions of Section 347 of the Criminal Code (Canada);
5.3.5 any provision of the Credit Agreement which purports to allow for the
compensation or set-off of unmatured or unliquidated claims;
5.3.6 the effectiveness of any obligation to pay interest at the rate of
interest established on the basis of a Person's deposit rate, cost of
funds, or other
undetermined basis, such as in Sections 18.5.1, 18.5.2 and 18.11 of
the Credit Agreement, as such rates are not fixed by the provisions
thereof;
5.3.7 the provisions of Sections 3.11.3 (d), 3.14, 8.11, 9.8 and 18.11 of
the Credit Agreement providing for cash to be held as collateral
security for the obligations of the Borrowers under the Credit
Agreement pursuant to the terms and conditions of said Sections;
5.3.8 any provision of the Credit Agreement which purports to oblige the
Borrowers to be liable with respect to any obligation which shall, in
any manner, be extinguished or otherwise held void or unenforceable;
5.3.9 the validity under the laws of the Province of Quebec of any trusts
purported to be created under the Credit Agreement;
5.3.10 the enforceability of any provision contained in the Credit
Agreement which purports to incorporate by reference the provisions of
any other agreement which might not be enforceable under the laws of
the Province of Quebec and the federal laws of Canada applicable
therein;
5.3.11 the irrevocable nature of any power of attorney provided for in the
Credit Agreement.
5.4 If any provision of the Credit Agreement is held to be null, without effect
or deemed unwritten, such nullity, ineffectiveness or presumption would not
render such document invalid in other respects unless it is apparent that
such Credit Agreement may be considered only as an indivisible whole.
5.5 The Currency Act (Canada) precludes a court in Canada from giving judgment
in any currency other than lawful money of Canada and the rate of exchange
used by a court in converting amounts for purposes of any judgment, and the
date on which such conversion is made, may be different than as provided
for in the Credit Agreement.
5.6 In the event that litigation should ensue outside Quebec, the Borrowers may
be subject to Section 2 of the Business Concerns Records Act (Quebec) which
provides that "Subject to Section 3, 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 or 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.
5.7 The suretyship (the "GUARANTEE") contained in Section 10.1 of the Credit
Agreement may not be (i) extended beyond the limits for which it was
contracted, and (ii) contracted for an amount in excess of that owed by
QWUSA or under more onerous conditions, and in such latter case,
obligations under the Credit Agreement are reducible
to the measure of the obligations of the Borrowers to the Lenders, the
Administrative Agent and the other Finance Parties under the Credit
Agreement.
5.8 Pursuant to Article 2362 of the Civil Code, QWI may terminate the Guarantee
three (3) years after the execution thereof, so long as the debts
thereunder have not become exigible, by giving prior and sufficient notice
to QWUSA, QPHC, the Lenders, the Administrative Agent and the other
sureties in respect of the Credit Agreement. However, upon termination of
the Guarantee, QWI will remain liable for debts existing at that time, even
if those debts are subject to a condition or a term.
5.9 QWI may not, under the Credit Agreement, renounce in advance to the benefit
of subrogation or to the right to information.
6. LIMITATION
This opinion letter is limited to the matters stated herein and is
addressed to you solely for the purposes of the transactions contemplated by the
Documents and solely for your own use and benefit in respect of such
transactions and may not be disclosed to or relied upon by any other person or
for any other purpose without our prior written consent. Furthermore, the
respective successors and permitted assigns of the Lenders or the Administrative
Agent, as the case may be, may rely on this opinion letter, which may be
disclosed thereto and used by them, without any further consent of the
undersigned, but only as of the date hereof.
Yours very truly,
SCHEDULE I
OTHER LENDERS
ABN AMRO BANK N.V.
BANK OF AMERICA, N.A., CANADA BRANCH
BANK OF AMERICA, N.A.
BNP PARIBAS (CANADA)
BNP PARIBAS, DUBLIN BRANCH
CITIBANK, N.A. CANADIAN BRANCH
CITIBANK, N.A.
THE BANK OF NOVA SCOTIA
THE TORONTO-DOMINION BANK
TORONTO DOMINION (TEXAS) LLC
BANK OF MONTREAL
WACHOVIA BANK, NATIONAL ASSOCIATION
CONGRESS FINANCIAL CORPORATION (CANADA)
CANADIAN IMPERIAL BANK OF COMMERCE
CIBC INC.
NATIONAL BANK OF CANADA
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
BANK OF TOKYO-MITSUBISHI (CANADA)
THE BANK OF TOKYO-MITSUBISHI, LTD. NEW YORK BRANCH
SAMPO BANK PLC
SOCIETE GENERALE (CANADA)
SOCIETE GENERALE
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH
JPMORGAN CHASE BANK, N.A.
SCHEDULE 12.1.7(C)
CERTIFICATE OF COMPLIANCE
(Section 12.1.7(c))
Date: _____________________
ROYAL BANK OF CANADA (as Administrative Agent)
200 Bay Street, South Tower
Royal Bank Plaza
12th Floor
Toronto, Ontario
M5J 2W7
Attention: Manager, Agency Services Group
Fax: (416) 842-4023
Dear Sirs:
CERTIFICATE OF COMPLIANCE
I, _____________________________________________________, [CHIEF
EXECUTIVE OFFICER, CHIEF FINANCIAL OFFICER OR TREASURER] of Quebecor World Inc.,
("QWI"), hereby certify, pursuant to Section 12.1.7 (c) of the Amended and
Restated Credit Agreement dated as of December 15, 2005 among Quebecor World
Inc. and Quebecor World (USA) Inc., as Borrowers, the financial institutions
named on the signature pages thereof, as Lenders, Royal Bank of Canada, as
Administrative Agent, and RBC Capital Markets, as Arranger (as in effect on the
date hereof, the "AMENDED AND RESTATED 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 Amended
and Restated Credit Agreement and I have made all appropriate investigations of
the records of QWI, the other 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 QWI and its Subsidiaries and QWI as at __________ and for the
[FISCAL YEAR] [QUARTERLY ACCOUNTING PERIOD](1) ended __________, ____, are
complete and correct and present fairly, in accordance with Canadian GAAP
[(EXCEPT FOR CHANGES THEREIN OR DEPARTURES THEREFROM DESCRIBED BELOW THAT HAVE
BEEN APPROVED IN WRITING BY MESSRS. __________, QWI'S CURRENT INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS)], the Consolidated financial position of QWI 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](1), 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 QWI 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 QWI was in compliance with Section 12.2.10 of the
Amended and Restated 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 QWI, 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)](2) 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 QWI and
the Restricted Entities at such time and (c) the amount(s) of the Indebtedness
incurred by QWI and the Operating Restricted Entities as at the end of the last
quarterly period.
----------------------------------------
[CHIEF EXECUTIVE OFFICER,
CHIEF FINANCIAL OR TREASURER]
- ----------
1. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2. Include only in the case of a certificate to be delivered with respect to
the annual financial statements.
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 QWI: (Requirement of Section
12.2.10(a) of the Amended and Restated 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 QWI, on a Consolidated basis,
for the period of four fiscal quarters ended ____________________________
is ____________ to 1:00 based on the following sums:
(i) EBITDA (QWI to provide details of
calculation thereof): __________________
(ii) Interest Expense: __________________
Ratio of EBITDA to Interest Expense = line (i) / (ii): ______________: 1.00
(b) Ratio of QWI's Debt to Capitalization: (Requirement of Section 12.2.10 (b)
of the Amended and Restated Credit Agreement: not to exceed at any time 60
% on the basis of calculations made at the end of each fiscal quarter):
The ratio of QWI's Debt to Capitalization as at the fiscal quarter of QWI
ended _____________ is ______________, based on the following:
(i) QWI's Debt(1): ____________________________
(ii) Shareholder's equity of QWI(1): ____________________________
(iii) non-controlling interests of QWI(1): ____________________________
(iv) Capitalization = line (ii) + line (iii): ____________________________
(v) Ratio of QWI's Debt to Capitalization
(line (i) / line (iv) x 100): ____________________________%
(c) QWI's Debt to EBITDA Ratio: (Requirement of Section 12.2.10 (c) of the
Amended and Restated Credit Agreement: not to exceed, for any period of
four consecutive fiscal quarters, 4.00:1.00 up to and including the fiscal
quarter ending on December 31, 2007 and 3.75:1.00 from the fiscal quarter
ending on March 31, 2008 and each fiscal quarter thereafter:
QWI's Debt to EBITDA Ratio, on a Consolidated basis, for the period of four
quarters ended ________________ is _______________: 1.00 based on the
following sums:
(i) QWI's Debt (determined on a Consolidated basis):
__________________________
(ii) EBITDA of QWI and its Subsidiaries (determined on a Consolidated
basis) (QWI to provide details of calculating thereof):
______________________
QWI's Debt to EBITDA Ratio: line (i) / line (ii) ____________________ :1:00
- ----------
1. determined on a Consolidated basis.
SCHEDULE 12.2.2
CONTEMPLATED SALES OF ASSETS
(Section 12.2.2)
NONE
SCHEDULE 12.2.4
LIST OF EXISTING INDEBTEDNESS OF IMPRIMERIES DIDIER-QUEBECOR S.A.
AND ITS SUBSIDIARIES
(Section 12.2.4)
PLEASE SEE PAGE IMMEDIATELY FOLLOWING
QUEBECOR WORLD INC. - INDEBTEDNESS OF IMPRIMERIES DIDIER - QUEBECOR, S.A.
AS AT SEPTEMBER 30, 2005
SEPT. 30, 2005 SEPT. 30, 2005
BORROWER TYPE OF BORROWING DESCRIPTION OF BORROWING EURO'000 US$'000
- -------- ----------------- ------------------------ -------------- --------------
Imprimeries Didier-Quebecor, S.A. Capital Lease Giprint Immobilier 3,383 4,080
Imprimeries Alsacienne Didier-
Quebecor, S.A. Debenture Agence Rhin-Meuse 152 183
----- -----
TOTAL 3,535 4,263
===== =====
SCHEDULE 19.3
TRANSFER UNDERTAKING
(Section 19.3)
To: ROYAL BANK OF CANADA
(the "ADMINISTRATIVE AGENT")
[LENDER]
[LENDER]
[LENDER]
(the "LENDERS")
- and -
QUEBECOR WORLD INC.
QUEBECOR WORLD (USA) INC.
(the "BORROWERS")
- and -
QUEBECOR PRINTING HOLDING COMPANY
WHEREAS pursuant to a credit agreement dated as of April 28, 1999, as
amended and restated, and as further amended and restated by an Amended and
Restated Credit Agreement dated as of December 15, 2005, among Quebecor World
Inc. and Quebecor World (USA) Inc., as Borrowers, the financial institutions
named on the signature pages thereof, as Lenders, Royal Bank of Canada, as
Administrative Agent, and RBC Capital Markets as the Arranger (as in effect on
the date hereof, the "AMENDED AND RESTATED CREDIT AGREEMENT"), the Lenders,
subject to the terms and conditions of the Amended and Restated Credit
Agreement, have agreed to make certain credit facilities available to the
Borrowers for an aggregate amount of up to US$1,000,000,000;
WHEREAS pursuant to and in accordance with Section 19.3 of the Amended
and Restated Credit Agreement, a Lender may assign or transfer all or any of its
rights, benefits and obligations under the Amended and Restated Credit Agreement
by notifying the Administrative Agent, the Borrowers and the other Loan Parties
and by causing the assignee or transferee to complete, execute and deliver this
Transfer Undertaking;
WHEREAS, ________________________________________ (the "TRANSFEROR")
wishes to assign and transfer to ___________________________________ (the
"PURCHASER") the
rights, benefits and obligations of the Transferor under the Amended and
Restated Credit Agreement specified herein;
WHEREAS the Transferor has notified the Administrative Agent, the
Borrowers and the other Loan Parties of the assignment and transfer contemplated
herein and have obtained the consent of the Borrowers, the applicable Swingline
Lenders, the applicable LC Issuers and the Administrative Agent, where
applicable in accordance with Section 19.3 of the Amended and Restated Credit
Agreement;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the signatories hereto agree as follows:
1. In this Transfer Undertaking, and the introductory paragraphs, words and
expressions defined in the Amended and Restated Credit Agreement have the same
respective meanings when used herein.
2. The Transferor assigns and transfers (the "TRANSFER") to the Purchaser, and
the Purchaser irrevocably purchases, takes and assumes from the Transferor, and
without recourse to the Transferor, effective on _______________ (the "TRANSFER
EFFECTIVE DATE") [THE ENTIRE/A PORTION OF THE] Commitment of the Transferor in
respect of the Amended and Restated Credit Agreement consisting of [A FACILITY A
COMMITMENT OF US$____________/ A FACILITY B COMMITMENT OF US$____________/ A
FACILITY C COMMITMENT OF US$____________], including, without limitation, all of
the related rights, benefits and obligations under the Amended and Restated
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 Amended and Restated 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 Amended and Restated
Credit Agreement with respect to the Transferred Rights, Benefits and
Obligations as fully as if it had been an original signatory to the Amended and
Restated 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.
NOTE: Section 5 to be used only if any Libor Loans or Euro Loans or
any Bankers' Acceptances or Letters of Credit 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 AND EURO LOANS
PREVIOUSLY MADE BY THE TRANSFEROR AND WHICH HAVE NOT BEEN FULLY REPAID
AS AT THE TRANSFER EFFECTIVE DATE [AND BANKERS' ACCEPTANCES PREVIOUSLY
ACCEPTED BY THE TRANSFEROR WHICH MATURE AFTER THE TRANSFER EFFECTIVE
DATE] [AND LETTERS OF CREDIT WHICH MATURE AFTER THE TRANSFER EFFECTIVE
DATE]. THE PURCHASER'S ASSUMED PORTION OF SUCH OUTSTANDING LIBOR LOANS
AND EURO LOANS [AND BANKERS' ACCEPTANCES] [AND LETTERS OF CREDIT] 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, EURO LOAN
[AND BANKERS' ACCEPTANCE], [AND LETTERS OF CREDIT] UNTIL THE LAST DAY
OF THE LIBOR INTEREST PERIOD, EURO 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
AMENDED AND RESTATED CREDIT AGREEMENT) EACH PURCHASED BORROWING ON THE
LAST DAY OF THE LIBOR INTEREST PERIOD, EURO 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 BORROWERS UNDER THE TERMS OF THE AMENDED AND
RESTATED 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 BORROWERS 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 AMENDED AND RESTATED
CREDIT AGREEMENT. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, NEITHER THE FAILURE OF A BORROWER TO MAKE ANY PRINCIPAL,
INTEREST, ACCEPTANCE FEE, ISSUANCE FEE OR FRONTING FEE PAYMENT
REQUIRED UNDER THE AMENDED AND RESTATED CREDIT AGREEMENT NOR THE
FAILURE OF A 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) EACH BORROWER HEREBY AGREES TO INDEMNIFY THE TRANSFEROR FOR ANY AND
ALL AMOUNTS TO WHICH THE TRANSFEROR WOULD BE ENTITLED UNDER THE
AMENDED AND RESTATED CREDIT AGREEMENT WITH RESPECT TO THE PURCHASED
BORROWINGS AS IF THE PURCHASED BORROWINGS REMAINED LIBOR LOANS, EURO
LOANS AND, IF APPLICABLE, BANKERS' ACCEPTANCES OR LETTERS OF CREDIT OF
THE TRANSFEROR THEREUNDER UNTIL THE RESPECTIVE PURCHASED PAYMENTS ARE
MADE THEREFOR (INCLUDING, WITHOUT LIMITATION, AMOUNTS PAYABLE BY THE
BORROWER UNDER ARTICLES IX, XIII AND XIV OF THE AMENDED AND RESTATED
CREDIT AGREEMENT). NOTHING CONTAINED HEREIN SHALL LIMIT OR MODIFY ALL
OBLIGATIONS OF THE BORROWERS TO THE ADMINISTRATIVE AGENT, THE
PURCHASER AND TO ALL OTHER LENDERS IN ACCORDANCE WITH THE TERMS OF THE
AMENDED AND RESTATED CREDIT AGREEMENT INCLUDING, WITHOUT LIMITATION,
ALL OBLIGATIONS OF THE BORROWERS UNDER ARTICLES IX, XIII AND XIV OF
THE AMENDED AND RESTATED CREDIT AGREEMENT FOR THE BENEFIT OF THE
PURCHASER. NOTHING HEREIN CONTAINED SHALL BE CONSTRUED OR INTERPRETED
AS REQUIRING A 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, EURO INTEREST PERIOD OR MATURITY
DATE, AS THE CASE MAY BE, APPLICABLE TO THE LIBOR LOANS [AND/,] EURO
LOANS [AND BANKERS' ACCEPTANCES] [AND LETTERS OF CREDIT] 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 OR
EURO LOANS [OR BANKERS' ACCEPTANCES] [AND LETTERS OF CREDIT] WITH
RESPECT TO THE TRANSFERRED OBLIGATIONS. IN THE EVENT THAT A 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 SAID BORROWER IS SO
OBLIGATED TO PAY. NO SUCH PAYMENT OF ANY SUCH AMOUNTS BY THE PURCHASER
SHALL RELIEVE A BORROWER FROM ITS OBLIGATIONS HEREUNDER AND UNDER THE
AMENDED AND RESTATED CREDIT AGREEMENT WITH RESPECT TO SUCH PURCHASED
BORROWINGS.]
[5/6]. The Transfer and the Assumption are governed by and subject to Section
19.3 of the Amended and Restated 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 Amended and Restated 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 Amended and Restated
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
any Borrower or 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 [CONFIRMS THAT IT MEETS THE REQUIREMENTS FOR BEING A CDN
QUALIFIED LENDER IN RESPECT OF ANY BORROWINGS TO BE MADE TO QWI/ CONFIRMS THAT
IT MEETS THE REQUIREMENTS FOR BEING A US QUALIFIED LENDER IN RESPECT OF ANY
BORROWINGS TO BE MADE TO QWUSA] 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 Borrowers 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 Borrowers 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 Borrowers, that it
has the capacity and power 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 US$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 Province of Quebec, Canada.
The parties confirm having requested that this Transfer Undertaking
and all related documents be drawn up in the English language./Les parties
confirment avoir requis que cet engagement de transfert et tous les documents
s'y rapportant soient rediges en langue anglaise.
DATED as of the ____________________ day of ____________________.
[TRANSFEROR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[PURCHASING INSTITUTION]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SIGNATURES OF BORROWERS AND THE GUARANTOR ARE ONLY NEEDED PRIOR TO AN EVENT OF
DEFAULT]
CONSENTED TO AND ACKNOWLEDGED:
QUEBECOR WORLD INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
QUEBECOR WORLD (USA) INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
QUEBECOR PRINTING HOLDING COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SIGNATURES OF LC ISSUERS ARE ONLY NEEDED FOR TRANSFERS UNDER FACILITY A AND/OR
FACILITY C]
CONSENTED TO AND ACKNOWLEDGED
[LC ISSUER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SIGNATURES OF APPLICABLE SWINGLINE LENDERS ARE ONLY NEEDED FOR TRANSFERS UNDER
THE APPLICABLE CREDIT FACILITY]
CONSENTED TO AND ACKNOWLEDGED
[SWINGLINE LENDER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX A
TO TRANSFER UNDERTAKING
PURCHASED LIBOR LOANS
Libor Rate
(including Applicable Expiry of Libor
Facility Principal Amount Margin) Interest Period
- -------- ---------------- --------------------- ---------------
PURCHASED EURO LOANS
Expiry of Euro
Facility Principal Amount Euro Rate Interest Period
- -------- ---------------- --------- ---------------
PURCHASED BANKERS' ACCEPTANCES
Acceptance Fee (including
Principal Amount Margin Term of Bankers' Acceptances
- ---------------- ------------------------- ----------------------------
PURCHASED LETTERS OF CREDIT
ISSUANCE FEE
TYPE OF LETTER OF (OR FRONTING FEE AS
CREDIT FACE AMOUNT APPLICABLE) MATURITY DATE
- ----------------- ----------- ------------------- -------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
QUEBECOR WORLD INC.
By: /s/ MARIE-E. CHLUMECKY
Name: Marie-E. Chlumecky
Title: Assistant Secretary
Dated: March 13, 2006