Note
Purchase Agreement Dated as of October 1, 2002
and
Note Purchase Agreement
Dated as of January 31, 2005
and
Credit Agreement dated as of
January 31, 2005
and
Credit Agreement dated as of
May 2, 2006
and
Waiver and Omnibus Amendment
Agreement dated as of May 2, 2006
Dated as of October 20,
2006
ProQuest
Company
777 Eisenhower Parkway
Ann Arbor, MI 48106
Reference is made
to (a) that certain Credit Agreement dated as of
January 31, 2005 (as amended, restated or otherwise modified
prior to the date hereof and as amended or otherwise modified from
time to time in accordance with the terms thereof, the “
2005 Credit Agreement ”) among ProQuest Company, a
Delaware corporation (the “ Company ”), the
financial institutions that are or may from time to time become
parties thereto (together with their respective successors and
assigns, the “ Bank Lenders ”) and LaSalle Bank
Midwest National Association, f/k/a Standard Federal Bank, N.A., as
administrative agent for the Bank Lenders (in such capacity, the
“ Bank Agent ”, and in its capacity as
collateral agent for the Bank Lenders, the Noteholders and the 2006
Lenders under the Intercreditor Agreement, together with its
successors and assigns in such capacity, the “ Collateral
Agent ”), (ii) that certain Note Purchase Agreement
dated as of October 1, 2002, between the Company and the
respective purchasers which are a party thereto, as amended by that
certain First Amendment to Note Purchase Agreement dated as of
January 31, 2005 (as amended, restated or otherwise modified
prior to the date hereof and as amended or otherwise modified from
time to time in accordance with the terms thereof, the “
2002 Note Purchase Agreement ”), (iii) that
certain Note Purchase Agreement dated as of January 31, 2005
(as amended, restated or otherwise modified prior to the date
hereof and as amended or otherwise modified from time to time in
accordance with the terms thereof, the “ 2005 Note
Purchase Agreement ” and together with the 2002 Note
Purchase Agreement, collectively, the “ Note Purchase
Agreements ”), between the Company and the respective
purchasers which are a party thereto, (iv) that certain Credit
Agreement dated as of May 2, 2006 (as amended or otherwise
modified from time to time in accordance with the terms thereof,
the “ 2006 Credit Agreement ”), among the
Company, the institutions that are or may
from time to
time become parties thereto (together with their respective
successors and assigns, the “ 2006 Lenders ”),
and ING Investment Management, LLC, as administrative agent for the
2006 Lenders, and (v) the Waiver and Omnibus Amendment
Agreement dated as of May 2, 2006 (the “ Waiver and
Omnibus Amendment Agreement ”) among the Company, the
Subsidiary Guarantors, the Collateral Agent, the Bank Lenders, the
Noteholders, and the 2006 Lenders (such parties, other than the
Company and the Subsidiary Guarantors, collectively, the “
Creditor Parties ”). All capitalized terms used herein
that are not otherwise defined herein have the meanings given to
such terms in the Waiver and Omnibus Amendment
Agreement.
The Company has
advised the Creditor Parties that the Company desires to sell all
of the stock of its Subsidiary, ProQuest Business Solutions Inc.,
on terms and conditions substantially the same as those set forth
in the form of [Stock and Asset Purchase Agreement (the “
Draft Stock Purchase Agreement ”) attached as
Exhibit A to this Waiver (the “ Sale
”)], and the Company has requested that the Required Creditor
Group waive the provisions of Sections 2.1(c) of the covenants
set forth on Exhibit E to the Waiver and Omnibus
Amendment Agreement, which are pursuant to the terms thereof
incorporated into each of the Note Purchase Agreements and Credit
Agreements, to the extent necessary (but only to the extent
necessary) to permit the Company (a) to enter into an
agreement substantially on the terms and conditions set forth in
the Draft Stock Purchase Agreement (the “ Execution
Waiver ”), and (b) to consummate such Sale (the
“ Consummation Waiver ”).
Upon execution of
this Waiver by the Company and by Noteholders constituting the
Required Greater Noteholder Group and Bank Lenders constituting the
Required Bank Lenders, which together will constitute the Required
Creditor Group, (a) the Execution Waiver is granted, and (b)
conditioned on satisfaction of the Waiver Conditions, the
Consummation Waiver is granted. As used herein, the “
Waiver Conditions ” means that (i) the Sale is
consummated on or before December 31, 2006, (ii) all of
the Proceeds from the Sale other than the Permitted Deductions
shall be paid by the purchaser directly to the Collateral Agent, by
wire transfer of immediately available funds in accordance with
wire transfer instructions to be provided by the Collateral Agent
for such purpose, for allocation, application and distribution as
Secured Obligation Distributions in accordance with the terms of
the Intercreditor Agreement and (iii) an amendment to the
Waiver and Omnibus Amendment Agreement is executed by the Company,
the Subsidiary Guarantors and the Creditor Parties in accordance
with the terms of the commitment letter with respect to such
amendment, dated as of the date hereof. As used herein, the “
Permitted Deductions ” means the categories of
expenses of sale and other payments to be made by the Company that
are listed on Schedule A attached to this Waiver in
amounts that do not exceed, with respect to each such category, the
lesser of (x) the actual expenses for such category that have
been documented to the satisfaction of the Required Greater
Noteholder Group and the Required Bank Lenders, and (y) the
respective maximum amounts for such category that are listed on
Schedule A attached to this Waiver, but not any other
categories of expenses or payments.
Whether or not
this Waiver is approved by the Required Creditor Group and thereby
takes effect, the Company agrees to pay on the date hereof all
reasonable out-of-pocket expenses of the Noteholders and Bank
Lenders in connection with the preparation, negotiation, execution
and delivery of this Waiver (the “ Noteholder and Bank
Lender Expenses ”), including, but not
2
limited to, the
reasonable fees and disbursements of the Noteholders’ Special
Counsel, Bingham McCutchen LLP, and the Bank Lenders’ special
counsel, Dickinson Wright PLLC.
Except to the
extent expressly provided herein, the execution, delivery and
effectiveness of this Waiver shall not be deemed (i) to
operate as a waiver of any right, power or remedy of any of the
Creditor Parties under the Note Purchase Agreements, the Credit
Agreements, the Waiver and Omnibus Amendment Agreement, or any
other agreement or instrument, or constitute a waiver of any
provision thereunder, (ii)&n
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