AMENDED AND RESTATED MASTER SECURITIES PLEDGE AGREEMENT
This is an amended and restated securities pledge agreement made as of June 7,
1999 by each of the Pledgors to Canadian Imperial Bank of Commerce, as
Administrative Agent.
For valuable consideration, each of the Pledgors severally (and not jointly,
or jointly and severally) agrees with the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, as follows:
1. Definitions. Capitalized terms not otherwise defined in this Agreement
have the meanings specified in the Credit Agreement, and the following terms
have the following meanings:
"Administrative Agent" shall mean Canadian Imperial Bank of Commerce in
its capacity as administrative agent for the Lenders under the Credit
Documents, and shall include its successors and permitted assigns in such
capacity.
"Borrowers" shall mean Xxxxxxxxx Inc., 504468 N.B. Inc. and Sugra
Limited, and shall include their respective successors.
"Charges" shall mean any mortgage, charge, pledge, hypothecation, lien
(statutory or otherwise), assignment, finance lease, title retention
agreement or arrangement, security interest or other encumbrance or
adverse claim of any nature, or any other security agreement or
arrangement creating in favour of any creditor a right in respect of a
particular property that is prior to the right of any other creditor in
respect of such property.
"Credit Agreement" shall mean the amended and restated credit agreement
made as of June 7, 1999, among Xxxxxxxxx Inc., 504468 N.B. Inc. and Sugra
Limited, as borrowers, each financial institution that is a signatory
thereto and each financial institution that becomes a party thereto from
time to time, as lenders, Canadian Imperial Bank of Commerce, as Lead
Arranger and Administrative Agent, The Bank of Nova Scotia, as
Syndication Agent, and The Toronto-Dominion Bank, as Documentation Agent,
as such credit agreement may be supplemented, amended, restated,
consolidated or replaced from time to time.
"Credit Documents" shall mean the Credit Agreement, the Notes (as defined
in the Credit Agreement), the Security (as defined in the Credit
Agreement), all certificates delivered from time to time by or on behalf
of the Borrowers to the Administrative Agent or the Lenders pursuant to
the Credit Agreement or the Security (as defined in the Credit
Agreement), and any other document acknowledged by any Borrower to be a
Credit Document.
"Default" shall mean, with respect to each Pledgor, a default by such
Pledgor in the payment or performance of any of such Pledgor's
Obligations.
"Issuer" shall mean, at any time, any person who is at such time an
issuer of any securities which constitute part of the Pledged Collateral
of any Pledgor.
"Obligations" shall mean, with respect to each Pledgor, all present and
future obligations of such Pledgor to each of the Administrative Agent
and the Lenders under the Credit Documents, and any unpaid balance
thereof.
"person" is to be broadly interpreted and shall include an individual, a
corporation, a partnership, a trust, an unincorporated organization, a
joint venture, the government of a country or any political subdivision
of a country, or an agency or department of any such government, any
other governmental authority and the executors, administrators or other
legal representatives of an individual in such capacity.
"Pledged Collateral" shall have the meaning specified in Section 2.
"Pledged Securities" shall mean, with respect to each Pledgor, the
securities listed in Schedule A hereto, as such schedule may be amended
from time to time.
"Pledgors" shall mean the signatories to this Agreement (other than the
Administrative Agent), together with any other person who becomes a
Pledgor under this Agreement from time to time by executing and
delivering to the Administrative Agent a Supplement to this Agreement as
provided for in Section 21 hereof, and "Pledgor" shall mean any one of
the Pledgors.
"PPSA" shall mean the Personal Property Security Act (Ontario), as such
legislation may be amended, renamed or replaced from time to time, and
includes all regulations from time to time made under such legislation.
"Proceeds" shall have the meaning given to such term in the PPSA.
"Receiver" shall mean a receiver, a manager or a receiver and manager.
-2-
"Records" shall mean, with respect to each Pledgor, all books, records,
files, papers, disks, documents and other repositories of data recording
in any form or medium, evidencing or relating to the Pledged Collateral
of such Pledgor which are at any time owned by such Pledgor or to which
such Pledgor (or any person on such Pledgor's behalf) has access.
"Supplement" shall have the meaning specified in Section 21 hereof.
2. Grant of Security Interest. As general and continuing security for the due
payment and performance of its Obligations (including the payment of any such
Obligations that would become due but for any automatic stay under the
provisions of the Bankruptcy and Insolvency Act (Canada), the United States
Bankruptcy Code or any analogous provisions of any other applicable law in
Canada, the United States of America or any other jurisdiction), each Pledgor
assigns and pledges to and in favour of the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, and grants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, a continuing security interest in:
(a) the Pledged Securities of such Pledgor, together with all
replacements of any such Pledged Securities and substitutions for
any such Pledged Securities and all certificates and instruments
evidencing such Pledged Securities;
(b) all interest and dividends, whether in cash, kind or stock, received
or receivable upon or in respect of any of the Pledged Securities of
such Pledgor and all moneys or other property payable or paid on
account of any return or repayment of capital in respect of any of
the Pledged Securities of such Pledgor or otherwise distributed in
respect of such Pledged Securities or which will in any way be
charged to, or payable or paid out of, the capital of the applicable
Issuer on account of any such Pledged Securities;
(c) all other property that may at any time be received or receivable by
or otherwise distributed to such Pledgor in respect of, or in
substitution for, or in exchange for, any of the foregoing; and
(d) all cash, securities and other Proceeds of any of the foregoing and
all rights and interests of such Pledgor
-3-
in respect thereof or evidenced thereby, including all moneys
received from time to time by such Pledgor in connection with any
sale or disposition of any of the Pledged Securities of such
Pledgor;(collectively, the "Pledged Collateral").
3. Delivery of Pledged Collateral. Each of the Pledgors, concurrently
with its execution and delivery of this Agreement (or, if applicable,
concurrently with its execution and delivery of a Supplement) will deliver to
the Administrative Agent all certificates or other documents representing or
evidencing the Pledged Collateral of such Pledgor in suitable form for
transfer by delivery, or accompanied by duly executed instruments of transfer
or assignment in blank, in each case satisfactory to the Administrative Agent,
all of which shall remain in the custody of the Administrative Agent or its
nominee. If the constating documents of any Issuer restrict the transfer of
the securities of such Issuer, then the applicable Pledgor will also deliver
to the Administrative Agent a certified copy of a resolution of the directors
or shareholders of such Issuer (as required) consenting to the transfers
contemplated by this Agreement, including any prospective transfer of the
Pledged Collateral by the Administrative Agent or its nominee upon a
realization on the security constituted by this Agreement in accordance with
this Agreement. All Pledged Collateral that is in registrable form may, at the
option of the Administrative Agent, be registered in the name of
Administrative Agent or its nominee. Each Pledgor agrees to execute and
deliver to the appropriate persons, promptly if and when required by the
Administrative Agent, all such instruments, documents and agreements as the
Administrative Agent in its discretion may deem necessary to effect a change
in the shareholders' register of any Issuer of any Pledged Collateral of such
Pledgor from such Pledgor to the Administrative Agent or a nominee of the
Administrative Agent. In addition, the Administrative Agent shall have the
right to exchange certificates or other documents representing or evidencing
any Pledged Collateral for certificates or other documents of smaller or
larger denominations. If the Administrative Agent so requests, any endorsement
on any certificate representing any of the Pledged Collateral will also be
guaranteed by a Canadian or United States bank or other financial institution
acceptable to the Administrative Agent.
4. Attachment. Each of the Pledgors confirms that value has been given by
the Administrative Agent and the Lenders to such Pledgor, that such Pledgor
has rights in its Pledged Collateral existing at the date of this Agreement,
and that the
-4-
Administrative Agent has not agreed to postpone the time for attachment of the
Charges created by this Agreement to any of the Pledged Collateral of such
Pledgor. The Charges created by this Agreement on the Pledged Collateral of
each Pledgor will have effect and be deemed to be effective whether or not the
obligations of such Pledgor or any part thereof are owing or in existence
before or after or upon the date of this Agreement or the date of any
Supplement, as the case may be.
5. Covenants.
(a) Further Documentation. Each of the Pledgors will from time to time,
at the expense of such Pledgor, promptly and duly authorize, execute and
deliver such further instruments and documents, and take such further action,
as the Administrative Agent may request for the purpose of obtaining or
preserving the full benefits of, and the rights and powers granted by, this
Agreement (including the filing of any financing statements or financing
change statements under any applicable law with respect to the Charges created
by this Agreement). Such Pledgor acknowledges that this Agreement has been
prepared based on existing applicable laws and that a change in such laws, or
the laws of other jurisdictions, may require the execution and delivery of
different forms of security documentation. Accordingly, such Pledgor agrees
that the Administrative Agent will have the right to require that this
Agreement be amended, supplemented or replaced by such Pledgor, and that such
Pledgor will immediately on request by the Administrative Agent authorize,
execute and deliver any such amendment, supplement or replacement (i) to
reflect any changes in such laws, whether arising as a result of statutory
amendments, court decisions or otherwise, (ii) to facilitate the creation and
registration of appropriate security in all appropriate jurisdictions, or
(iii) if such Pledgor merges or amalgamates with any other person or enters
into any corporate reorganization, in each case in order to confer on the
Administrative Agent Charges similar to, and having the same effect and
priority as, the Charges created by this Agreement.
(b) Additional Pledged Collateral. Each of the Pledgors will deliver to
the Administrative Agent such additional Pledged Collateral as is required to
satisfy the financial covenant set out in Section 8.03(i) of the Credit
Agreement from time to time; provided that, the Administrative Agent, on
behalf of the Lenders, will release some or all of such additional Pledged
Collateral from the Charge constituted by this Agreement if the Administrative
Agent and the Lenders, acting reasonably, conclude that such additional
Pledged Collateral will not be required to
-5-
satisfy the financial covenant set out in Section 8.03(i) of the Credit
Agreement from time to time. For greater certainty, the Pledged Collateral
existing at the date of this Agreement shall not be released at any time
pursuant to this Section 5(b) (including, without limitation, on the
satisfaction of the repayment obligation contained in Section 4.02(1) of the
Credit Agreement). The parties shall also deliver a duly amended form of
Schedule A to this Agreement concurrently with all deliveries of additional
Pledged Collateral or releases of surplus Pledged Collateral, as the case may
be.
6. Voting Rights. Unless a Default has occurred and is continuing, each
Pledgor will be entitled to exercise all voting power from time to time
exercisable in respect of the Pledged Collateral of such Pledgor and give
consents, waivers and ratifications in respect thereof; provided, however,
that no vote will be cast or consent, waiver or ratification given or action
taken which would be prejudicial to the interests of the Administrative Agent
and the Lenders or which would have the effect of reducing the value of the
Pledged Collateral of such Pledgor as security for the Obligations of such
Pledgor or imposing any restriction on the transferability of any of the
Pledged Collateral Of such Pledgor. Unless a Default has occurred and is
continuing, the Administrative Agent shall, from time to time at the request
and expense of each Pledgor, execute, in respect of all Pledged Securities of
a Pledgor that are registered in the name of the Administrative Agent, valid
proxies appointing such Pledgor as its proxy to attend, vote and act for and
on behalf of the Administrative Agent at any and all meetings of each Issuer
of Pledged Securities of such Pledgor that are registered in the name of the
Administrative Agent and to execute and deliver, consent to or approve or
disapprove of or withhold consent to any resolutions in writing of
shareholders of each such Issuer for and on behalf of the Administrative
Agent. Immediately upon the occurrence and during the continuance of any
Default, all such rights of the defaulting Pledgor to vote and give consents,
waivers and ratifications will cease and the Administrative Agent or any
nominee of the Administrative Agent will be entitled to exercise all such
voting rights and to give all such consents, waivers and ratifications.
7. Dividends. Unless a Default has occurred and is continuing, each
Pledgor will be entitled to receive any and all dividends and other forms of
distribution on the Pledged Collateral of such Pledgor which it is otherwise
entitled to receive, but any and all stock and/or liquidating dividends,
distributions of property, returns of capital or other distributions made on
or in respect of the Pledged Collateral of such Pledgor, whether
-6-
resulting from a subdivision, combination or reclassification of the
outstanding capital stock of any Issuer or received in exchange for the
Pledged Collateral of such Pledgor or any part thereof or as a result of any
amalgamation, merger, consolidation, acquisition or other exchange of property
to which any Issuer may be a party or otherwise, and any and all cash and
other property received in exchange for any Pledged Collateral of such
Pledgor, will be and become part of the Pledged Collateral of such Pledgor
subject to the Charges created by this Agreement and, if received by such
Pledgor, unless otherwise applied by such Pledgor in a manner expressly
permitted by the Administrative Agent, will immediately be delivered to the
Administrative Agent or its nominee (accompanied, if appropriate, by proper
and duly executed instruments of assignment or transfer in accordance with the
Administrative Agent's instructions) to be held subject to the terms of this
Agreement; and if any of the Pledged Collateral of any such Pledgor has been
registered in the name of the Administrative Agent or its nominee, the
Administrative Agent will execute and deliver (or cause to be executed and
delivered) to such Pledgor all such dividend orders and other instruments as
such Pledgor may request for the purpose of enabling such Pledgor to receive
the dividends or other payments which such Pledgor is authorized to receive
and retain pursuant to this Section. If a Default has occurred and is
continuing, all rights of any Pledgor pursuant to this Section will cease and
the Administrative Agent will have the sole and exclusive right and authority
to receive and retain the cash dividends and other forms of cash distribution
which such Pledgor would otherwise be authorized to retain pursuant to this
Section. Any money and other property paid over to or received by the
Administrative Agent pursuant to the provisions of this Section will be
retained by the Administrative Agent as additional Pledged Collateral of the
applicable Pledgor and be applied in accordance with the provisions of this
Agreement.
B. Rights on Default. Upon the occurrence and during the continuance of a
Default, the security constituted by this Agreement on the Pledged Collateral
of the defaulting Pledgor shall become enforceable, and the Administrative
Agent may, personally or by agent, at such time or times as the Administrative
Agent in its discretion may determine, do any one or more of the following:
(a) Rights under PPSA, etc. Exercise against such Pledgor and any or all
of the Pledged Collateral of such Pledgor all of the rights and remedies
granted to secured parties under the PPSA and any other applicable statute, or
otherwise available to the Administrative Agent by contract, at law or in
equity.
-7-
(b) Dispose of Pledged Collateral. Realize on any or all of the Pledged
Collateral of such Pledgor and sell or otherwise dispose of and deliver any or
all of the Pledged Collateral of such Pledgor (or contract to do any of the
above), in one or more parcels at any public or private sale, at any exchange,
broker's board or office of the Administrative Agent or elsewhere, on such
terms and conditions as the Administrative Agent may deem advisable and at
such prices as it may deem best, for cash or on credit or for future delivery.
(c) Court-Approved Disposition of Pledged Collateral. Obtain from any
court of competent jurisdiction an order for the sale or foreclosure of any or
all of the Pledged Collateral of such Pledgor.
(d) Purchase by Administrative Agent or Lenders. At any public sale, and
to the extent permitted by law on any private sale, bid for and purchase, or
permit any Lender to bid for or purchase, any or all of the Pledged Collateral
of such Pledgor offered for sale and, upon compliance with the terms of such
sale, hold, retain, sell or otherwise dispose of such Pledged Collateral
without any further accountability to such Pledgor or any other person with
respect to such holding, retention, sale or other disposition, except as
required by law. In any such sale to the Administrative Agent or any Lender,
the Administrative Agent or such Lender may, for the purpose of making payment
for all or any part of the Pledged Collateral of any Pledgor so purchased, use
any claim for Obligations of such Pledgor then due and payable to such person
as a credit against the purchase price.
(e) Transfer of Pledged Collateral. Transfer all or part of the Pledged
Collateral of such Pledgor into the name of the Administrative Agent or its
nominee, with or without disclosing that the Pledged Collateral of such
Pledgor is subject to the Charges created by this Agreement.
(f) Vote Pledged Collateral. Vote any or all of the Pledged Collateral of
such Pledgor (whether or not transferred to the Administrative Agent or its
nominee) and give or withhold all consents, waivers and ratifications in
respect thereof and otherwise act with respect thereto as though it were the
outright owner thereof.
(g) Appoint Receiver. Appoint by instrument in writing one or more
Receivers of any or all of the Pledged Collateral of such Pledgor with such
rights, powers and authority (including any or all of the rights, powers and
authority of the Administrative
-8-
Agent under this Agreement) as may be provided for in the instrument of
appointment or any supplemental instrument, and remove and replace any such
Receiver from time to time. To the extent permitted by applicable law, any
Receiver appointed by the Administrative Agent will (for purposes relating to
responsibility for the Receiver's acts or omissions) be considered to be the
agent of such Pledgor and not of the Administrative Agent or the Lenders.
(h) Court-Appointed Receiver. Obtain from any court of competent
jurisdiction an order for the appointment of a Receiver of any or all of the
Pledged Collateral of such Pledgor.
(i) Exercise Other Rights. Exercise any and all rights of conversion,
exchange, subscription or any other rights, privileges or options pertaining
to any of the Pledged Collateral of such Pledgor as if it were the absolute
owner thereof, including the right to exchange at its discretion any and all
of the Pledged Collateral of such Pledgor upon the amalgamation, merger,
consolidation, reorganization, recapitalization or other readjustment of any
Issuer or upon the exercise by any Issuer or the Administrative Agent of any
right, privilege or option pertaining to any of the Pledged Collateral of such
Pledgor, and in connection therewith, to deposit and deliver any and all of
the Pledged Collateral of such Pledgor with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as it may determine, all without liability except to account for
property actually received by the Administrative Agent.
9. Sale of Securities. The Administrative Agent is authorized, in
connection with any offer or sale of any Pledged Collateral of a Pledgor, to
comply with any limitation or restriction as it may be advised by counsel is
necessary to comply with applicable law, including compliance with procedures
that may restrict the number of prospective bidders and purchasers, requiring
that prospective bidders and purchasers have certain qualifications, and
restricting prospective bidders and purchasers to persons who will represent
and agree that they are purchasing for their own account or investment and not
with a view to the distribution or resale of such Pledged Collateral of such
Pledgor. Each Pledgor further agrees that compliance with any such limitation
or restriction will not result in a sale of the Pledged Collateral of such
Pledgor being considered or deemed not to have been made in a commercially
reasonable manner, and neither the Administrative Agent nor any Lender will be
liable or accountable to such Pledgor for any discount allowed by reason of
the fact that such Pledged Collateral of such Pledgor is sold in
-9-
compliance with any such limitation or restriction.
l0. Application of Proceeds. All Proceeds of Pledged Collateral of a
Pledgor received by the Administrative Agent may be applied to discharge or
satisfy any expenses (including the Receiver's remuneration and other expenses
of enforcing the Administrative Agent's rights against such Pledgor under this
Agreement), Charges over the Pledged Collateral of such Pledgor in favour of
persons other than the Administrative Agent, borrowings, taxes and other
outgoings affecting the Pledged Collateral of such Pledgor or which are
considered advisable by the Administrative Agent. The balance of such Proceeds
may, at the sole discretion of the Administrative Agent, be held as collateral
security for the obligations of such Pledgor or be applied to such of the
obligations of such Pledgor (whether or not the same are due and payable) in
such manner and at such times as the Administrative Agent considers
appropriate and thereafter will be accounted for as required by law.
11. Continuing Liability of Pledgors. Each of the Pledgors will remain
liable for any obligations of such Pledgor that are outstanding following
realization of all or any part of the Pledged Collateral of such Pledgor and
the application of the Proceeds of such Pledged Collateral.
12. Appointment as Attorney-in-Fact. Each of the Pledgors constitutes and
appoints the Administrative Agent and any officer or agent of the
Administrative Agent, with full power of substitution, as such Pledgor's true
and lawful attorney-in-fact with full power and authority in the place of such
Pledgor and in the name of such Pledgor or in its own name, from time to time
in the Administrative Agent's discretion (a) at any time, to sign, deliver and
register on behalf of and in the name of such Pledgor all such financing
statements, financing change statements, notices, verification statements and
other documents relating to the Pledged Collateral of such Pledgor and this
Agreement as the Administrative Agent or such other person considers
appropriate or desirable, and (b) after the occurrence and during the
continuance of a Default, to take any and all appropriate action and to
execute any and all documents and instruments as, in the opinion of such
attorney acting reasonably, may be necessary or desirable to accomplish the
purposes of this Agreement. These powers from each Pledgor are coupled with an
interest and are irrevocable until this Agreement is terminated and the
Charges created by this Agreement over the Pledged Collateral of such Pledgor
are released. Nothing in this Section affects the right of the Administrative
Agent as secured party, or any other person on behalf of the Administrative
Agent, to sign and file or
-10-
deliver (as applicable) all such financing statements, financing change
statements, notices, verification statements and other documents relating to
the Pledged Collateral of any Pledgor and this Agreement as the Administrative
Agent or such other person considers appropriate.
13. Performance by Administrative Agent of Pledgor's Obligations. If any
Pledgor fails to perform or comply with any of the obligations of such Pledgor
under this Agreement, the Administrative Agent may, but need not, perform or
otherwise cause the performance or compliance of such obligation, provided
that such performance or compliance will not constitute a waiver, remedy or
satisfaction of such failure. The expenses of the Administrative Agent
incurred in connection with any such performance or compliance will be payable
by such Pledgor to the Administrative Agent immediately on demand, and until
paid, any such expenses will form part of the obligations of such Pledgor and
will be secured by the Charges created by this Agreement over the Pledged
Collateral of such Pledgor.
14. Interest. If any amount payable by a Pledgor to the Administrative
Agent or any Lender under this Agreement is not paid when due, such Pledgor
will pay to the Administrative Agent or such Lender, as the case may be,
immediately on demand, interest on such amount from the date due until paid,
at a nominal rate per annum equal at all times to the Prime Rate in effect
from time to time plus 5% if such amount is payable in Cdn. Dollars, or to the
U.S. Base Rate in effect from time to time plus 5% if such amount is payable
in U.S. Dollars, which rate per annum will change automatically without notice
to such Pledgor as and when the Prime Rate or the U.S. Base Rate, as the case
may be, changes. All amounts payable by any Pledgor to the Administrative
Agent or any other Lender under this Agreement, and all interest on all such
amounts, will form part of the obligations of such Pledgor and will be secured
by the Charges created by this Agreement over the Pledged Collateral of such
Pledgor.
15. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction or against any Pledgor will, as to that
jurisdiction and such Pledgor, be ineffective to the extent of such
prohibition or unenforceability and will be severed from the balance of this
Agreement, all without affecting the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction or against any other Pledgor.
-11-
16. Rights of Administrative Agent, Etc. Neither the Administrative
Agent, nor any Lender, nor any Receiver or any agent of any of the foregoing
(including, in Alberta or British Columbia, any sheriff) (i) will be liable to
any Pledgor or any other person for any failure or delay in exercising any of
its rights under this Agreement (including any failure to take possession of,
sell or otherwise dispose of any Pledged Collateral of such Pledgor, or to
preserve rights against prior parties); is required to take, or will have any
liability for any failure to take or delay in taking, any steps necessary or
advisable to preserve rights against other persons under any Pledged
Collateral of any Pledgor in its possession; or (iii) will be liable for any,
and each Pledgor will bear the full risk of all, loss or damage to any and all
of the Pledged Collateral of such Pledgor (including any Pledged Collateral of
such Pledgor in the possession of any such person) caused for any reason other
than the gross negligence or wilful misconduct of such person.
17. Dealings by Administrative Agent. The Administrative Agent will not
be obliged to exhaust its recourse against any Pledgor or any other person or
against any other security it may hold in respect of the Obligations of any
Pledgor before realizing upon or otherwise dealing with the Pledged Collateral
of such Pledgor in such manner as the Administrative Agent may consider
desirable. The Administrative Agent and the Lenders may grant extensions of
time and other indulgences, take and give up security, accept compositions,
grant releases and discharges and otherwise deal with each Pledgor and any
other person, and with any or all of the Pledged Collateral of each Pledgor,
and with other security and sureties, as the Administrative Agent and the
Lenders may see fit, all without prejudice to the Obligations of any Pledgor
or to the rights and remedies of the Administrative Agent under this
Agreement. The powers conferred on the Administrative Agent under this
Agreement are solely to protect the interests of the Administrative Agent and
the Lenders in the Pledged Collateral of each of the Pledgors and will not
impose any duty upon the Administrative Agent to exercise any such powers.
18. Communication. All notices and other communications given under or
with respect to this Agreement will be in writing and may be sent by
facsimile, mailed or delivered to the Administrative Agent at Canadian
Imperial Bank of Commerce, Media & Telecommunications, BCE Place, 8th Floor,
000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, facsimile (000) 000-0000, attention
Managing Director, or to any Pledgor care of Xxxxxxxxx Inc. at 00 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, facsimile (416)
-12-
364-2088, attention General Counsel, or, as to any such person, at such other
address or facsimile number as may be designated by such person in a notice to
the others given as required hereby. Except as otherwise provided in this
Agreement, all such communications will be deemed to have been duly given when
(a) transmitted by facsimile or delivered if transmitted or delivered prior to
4:00 p.m. (local time) on a Business Day and otherwise on the Business Day
following transmission or delivery, or (b) in the case of a mailed notice,
upon receipt, in each case given or addressed as aforesaid.
19. Release of Information. Each of the Pledgors authorizes the
Administrative Agent to provide a copy of this Agreement and such other
information as may be requested of the Administrative Agent by any Lender and
by any other persons entitled thereto pursuant to any applicable law or court
order, and otherwise with the consent of such Pledgor.
20. Waivers and Indemnity. To the extent permitted by applicable law,
each of the Pledgors unconditionally and irrevocably waives (i) all claims,
damages and demands it may acquire against the Administrative Agent or any
Lender arising out of the exercise by the Administrative Agent or any Receiver
of any rights or remedies under this Agreement or at law, and (ii) all of the
rights, benefits and protections given by any present or future statute that
imposes limitations on the rights, powers or remedies of a secured party or on
the methods of, or procedures for, realization of security, including any
"seize or xxx" or "anti-deficiency" statute or any similar provision of any
other statute. The Administrative Agent and the Lenders will not, by any act
or delay, be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or in any breach of any of the terms and conditions
hereof. Neither the taking of any judgment nor the exercise of any power of
seizure or sale will extinguish the liability of any Pledgor to pay the
obligations of such Pledgor, nor will the same operate as a merger of any
covenant contained in this Agreement or of any other liability, nor will the
acceptance of any payment or other security constitute or create any novation.
Each of the Pledgors severally (and not jointly or jointly and severally)
agrees to indemnify the Administrative Agent and the Lenders from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (except by reason of the gross negligence or wilful misconduct of
such person) which may be imposed on, incurred by, or asserted against the
Administrative Agent or any Lender and arising by reason of any action
(including any action referred to in this Agreement) or
-13-
inaction or omission to do any act legally required by such Pledgor. These
indemnifications will survive the satisfaction, release or extinguishment of
the obligations of each Pledgor and the Charges created by this Agreement.
21. Addition of Pledgors. Additional persons may from time to time after
the date of this Agreement become Pledgors under this Agreement by executing
and delivering to the Administrative Agent a supplemental agreement (a
"Supplement")to this Agreement in substantially the form attached as Schedule
B to this Agreement. Effective from and after the date of the execution and
delivery by any person to the Administrative Agent of a Supplement such person
shall be, and shall be deemed for all purposes to be, a Pledgor under this
Agreement with the same force and effect, and subject to the same agreements,
representations, indemnities, liabilities, obligations and Charges, as if such
person had been an original signatory to this Agreement as a Pledgor. The
execution and delivery of a Supplement by any additional person shall not
require the consent of any Pledgor and all of the obligations of each Pledgor
under this Agreement, and all Charges granted by each Pledgor under the
Agreement, shall remain in full force and effect notwithstanding the addition
of any new Pledgor to this Agreement.
22. Amalgamation. If any Pledgor is a corporation, such Pledgor
acknowledges that if it amalgamates or merges with any other corporation or
corporations, then (i) the term "Pledgor", where used in this Agreement, will
extend to and include the continuing corporation from such amalgamation or
merger, (ii) the term "Obligations", where used in this Agreement in
connection with such Pledgor, will extend to and include the obligations of
each of the amalgamating or merging corporations at the time of such
amalgamation or merger and the Obligations of the continuing corporation from
such amalgamation or merger arising thereafter, and (iii) the Pledged
Collateral of such Pledgor and the Charges created by this Agreement over the
Pledged Collateral of such Pledgor will extend to and include all of the
Pledged Collateral of each of the amalgamating or merging corporations at the
time of such amalgamation or merger and to any and all Pledged Collateral of
the continuing corporation from such amalgamation or merger thereafter owned
or acquired.
23. Release of Pledgor. Promptly following any release of any Pledgor
from all of its Obligations, the Administrative Agent, without affecting in
any manner whatsoever any of the Obligations of any other Pledgor or any of
the Charges created by this Agreement over the Pledged Collateral of any other
Pledgor, will release such Pledgor and the Pledged Collateral of such Pledgor
-14-
then subject to the Charges created by this Agreement from this Agreement and
from the Charges created by this Agreement. Upon such release, and at the
request and expense of such Pledgor, the Administrative Agent shall execute
and deliver such releases, discharges, instruments and resolutions as such
Pledgor may reasonably request.
24. Additional Security. This Agreement is in addition to, and not in
substitution of, any and all other security documents previously or
concurrently delivered by any Pledgor to the Administrative Agent or to any
Lender, all of which other security documents shall remain in full force and
effect.
25. Several Agreement; Alteration or Waiver. No provision of this
Agreement may be changed, waived, discharged or terminated except with the
written consent of each Pledgor directly affected thereby and the written
consent of the Administrative Agent. This Agreement shall be construed as a
separate agreement with respect to each Pledgor and, subject to the first
sentence of this Section, may be amended, modified, supplemented, waived or
released with respect to any Pledgor, or any representations, agreements,
covenants, indemnities, liabilities, obligations or Pledged Collateral of, or
any Charge from, any Pledgor, without the approval of any other Pledgor and
without affecting the liabilities or obligations of any other Pledgor under
this Agreement. Any waiver will be effective only in the specific instance,
and only for the specific purpose, in respect of which the waiver is given. No
failure by the Administrative Agent or any Lender to exercise, and no delay in
exercising, any right under this Agreement will operate as a waiver of any
right, nor will any single or partial exercise of any right under this
Agreement against any Pledgor preclude any other or further exercise of such
right against such Pledgor, the exercise of such right against any other
Pledgor or the exercise of any other right against such Pledgor or against any
other Pledgor.
26. Governing Law; Attornment. This Agreement is a contract made under,
and will for all purposes be governed by and interpreted and enforced
according to, the laws of the Province of Ontario (including the laws of
Canada applicable in such Province), excluding any conflict of laws rule or
principle that might refer these matters to the laws of another jurisdiction,
and without prejudice to or limitation of any other rights or remedies
available to the Administrative Agent and the Lenders under the laws of any
other jurisdiction. Each of the Pledgors irrevocably submits to the
jurisdiction of the courts of the Province of Ontario and to the Supreme Court
of Canada without prejudice to the right of the Administrative Agent to
commence an
-15-
action against such Pledgor in any other jurisdiction. Each of the Pledgors
(other than Xxxxxxxxx Inc.) agrees that service of all writs, processes,
statements, correspondence and summonses in any suit, action or proceeding
brought against such Pledgor under or in respect of this Agreement in the
Province of Ontario may be made upon such Pledgor at such Pledgor's address
for notices as provided for in Section 18 of this Agreement, and each of the
Pledgors irrevocably appoints Xxxxxxxxx Inc. as such Pledgor's true and lawful
attorney-in-fact in such Pledgor's name, place and stead to accept such
service of any and all writs, processes, statements, correspondence and
summonses, and agrees that the failure of Xxxxxxxxx Inc. to give any notice
thereof to such Pledgor shall not impair or affect the validity of such
service or of any judgment based thereon. Each of the Pledgors further
irrevocably consents to the service of any writs, processes, statements,
correspondence and summonses in any suit, action or proceeding in such courts
by the mailing thereof by registered or certified mail, postage prepaid to
such Pledgor at such Pledgor's address for notice as provided for in Section
18 of this Agreement. Nothing in this Section shall be deemed to in any way
limit the ability of the Administrative Agent or any Lender to serve any such
writs, processes, statements, correspondence or summonses in any other manner
permitted by applicable law or to obtain jurisdiction over any Pledgor in such
other jurisdictions, and in such manner, as may be permitted by applicable
law. Each of the Pledgors irrevocably waives any objection which it may now or
in the future have based on lack of personal jurisdiction over such Pledgor or
which it may have to the laying of venue of any such suit, action or
proceeding brought in the courts of the Province of Ontario or the Supreme
Court of Canada and further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an improper
venue or in an inconvenient forum.
27. Waiver of Jury Trial. Because disputes arising in connection with
complex financial transactions are most quickly and economically resolved by
an experienced and expert person and the Pledgors, the Administrative Agent
and the Lenders wish applicable laws to apply (rather than arbitration rules),
the parties desire that their disputes be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the benefits of
the judicial system and of arbitration, the Pledgors, the Administrative Agent
and the Lenders waive all right to trial by jury in any action, suit, or
proceeding brought to resolve any dispute, whether in contract, tort, or
otherwise, between any Pledgor and the Administrative Agent and the Lenders
arising out of, connected with, related to,
-16-
or incidental to the relationship established between them in connection with
this Agreement.
28. Delivery and Completeness of Agreement. Upon this Agreement (or a
Supplement as provided for in Section 21 hereof), bearing the signature of a
person claiming to have authority to bind a Pledgor, coming into the
possession of the Administrative Agent, and irrespective of whether this
Agreement (or any such Supplement) has been executed by any other Pledgor,
this Agreement (and such Supplement) will be deemed to be finally and
irrevocably executed and delivered by, and be effective and binding on, and
enforceable against, such Pledgor free from any promise or condition affecting
or limiting the liabilities or obligations of such Pledgor under or in respect
of this Agreement. No statement, representation, agreement or promise by any
officer, employee or agent of the Administrative Agent or any Lender, unless
expressly set forth in this Agreement, forms any part of this Agreement or has
induced the making of this Agreement by any Pledgor or in any way affects any
of the liabilities or obligations of any Pledgor under this Agreement. This
Agreement constitutes the entire agreement between the Administrative Agent
and the Lenders and each of the Pledgors with respect to the subject matter of
this Agreement and cancels and supersedes any prior understandings and
agreements between the Administrative Agent and the Lenders and each such
Pledgor with respect to this Agreement (without affecting any other security
previously delivered by any Pledgor to the Administrative Agent and the
Lenders).
29. Interpretation. Unless otherwise expressly provided in this
Agreement, if any matter in this Agreement is subject to the consent or
approval of the Administrative Agent or is to be acceptable to the
Administrative Agent, such consent, approval or determination of acceptability
will be in the sole discretion of the Administrative Agent. If any provision
in this Agreement refers to any action taken or to be taken by any Pledgor, or
which such Pledgor is prohibited from taking, such provision will be
interpreted to include any and all means, direct or indirect, of taking, or
not taking, such action.
30. Successors and Assigns. This Agreement will enure to the benefit of,
and be binding on, each of the Pledgors and their successors, and will enure
to the benefit of, and be binding on, the Administrative Agent and the other
Administrative Agent and the Lenders and their respective successors and
assigns. No Pledgor may assign this Agreement, or any of its rights or
obligations under this Agreement, without the prior written consent of the
Administrative Agent.
-17-
31. Acknowledgment of Receipt/Waiver. Each of the Pledgors acknowledges
receipt of an executed copy of this Agreement and, to the extent permitted by
applicable law, waives the right to receive a copy of any financing statement,
financing change statement or verification statement registered or issued in
connection with this Agreement.
32. Counterparts and Facsimile. This Agreement may be executed in
counterparts. Each executed counterpart shall be deemed to be an original and
all counterparts taken together shall constitute one and the same Agreement.
Delivery of an executed signature page to this Agreement by any Pledgor by
facsimile transmission shall be as effective as delivery of a manually
executed copy of this Agreement by such Pledgor.
33. Language. The parties to this Agreement expressly request and require
that this Agreement, all other Credit Documents, and all related documents be
drafted in English. Les parties aux presentes conviennent et exigent que cette
Convention et tous les documents qui s'y rattachent soient rediges en Anglais.
IN WITNESS OF WHICH each of the undersigned has executed this Agreement as of
the date shown on the first page of this Agreement.
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
by: ____________________________________
name: Xxxxx Xxxxxxxxx
title: Executive Director
by: ____________________________________
name:
title:
XXXXXXXXX INC.
by: ____________________________________
name: Xxxx Xxxxxx Xxxxxxxx
title: Executive Vice-
President and Chief
Financial Officer
-18-
504468 N.B. INC.
by: ___________________________________
name: Xxxx Xxxxxx Xxxxxxxx
title: President
-19-
SCHEDULE B
SUPPLEMENT TO AMENDED AND RESTATED
MASTER SECURITIES PLEDGE AGREEMENT
This is a Supplement made as of to __________________________________ the
amended and restated securities pledge agreement made as of June 7, 1999 by
certain persons to Canadian Imperial Bank of Commerce, as Administrative Agent
(the "Pledge Agreement"). The ---------------- provisions of the Pledge
Agreement shall apply, mutatis mutandis, to this Supplement. Capitalized terms
used but not otherwise defined in this Supplement have the meanings specified
in the Pledge Agreement.
For valuable consideration, each of the undersigned (each a "New Pledgor")
severally (and not jointly, or jointly and severally) agrees with the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, as follows:
1. Each New Pledgor acknowledges that it has received and reviewed a copy
of the Pledge Agreement and the Credit Documents in existence on the date of
this Supplement, and confirms that it is executing and delivering this
Supplement to the Administrative Agent, for the benefit of the Administrative
Agent and the Lenders, pursuant to Section 21 of the Pledge Agreement.
2. Effective from and after the date this Supplement is executed and
delivered to the Administrative Agent by any New Pledgor (and irrespective of
whether this Supplement has been executed and delivered by any other person),
such New Pledgor is, and shall be deemed for all purposes to be, a Pledgor
under the Pledge Agreement with the same force and effect, and subject to the
same agreements, representations, guarantees, indemnities, liabilities and
obligations, as if such New Pledgor was, effective as of the date of this
Supplement, an original signatory to the Pledge Agreement as a Pledgor. In
furtherance of the foregoing, each New Pledgor severally (and not jointly, or
jointly and severally) as security for the payment and performance of the
Obligations of such New Pledgor (including any obligations that would become
due but for any automatic stay under the provisions of the Bankruptcy and
insolvency Act (Canada), the United States Bankruptcy Code or any analogous
provisions of any other applicable law in Canada, the United States of America
or any other jurisdiction) hereby assigns and pledges to the Administrative
Agent, for the benefit of the Administrative Agent and the Lenders, and grants
to the Administrative Agent, for the benefit of the Administrative Agent and
the Lenders, a continuing security interest in, the Pledged Collateral of such
New Pledgor.
3. Upon this Supplement bearing the signature of any of person claiming
to have authority to bind a New Pledgor coming into the hands of the
Administrative Agent, and irrespective of whether this Supplement or the
Pledge Agreement has been executed
by any other person, this Supplement will be deemed to be finally and
irrevocably executed and delivered by, and be effective and binding on, and
enforceable against, such New Pledgor free from any promise or condition
affecting or limiting the obligations of such New Pledgor and such New Pledgor
shall be, and shall be deemed for all purposes to be, a Pledgor under the
Pledge Agreement. No statement, representation, agreement or promise by any
officer, employee or agent of the Administrative Agent or any Lender forms any
part of this Supplement or the Pledge Agreement or has induced the making of
this Supplement or the Pledge Agreement by any New Pledgor or in any way
affects any of the obligations of any New Pledgor.
IN WITNESS OF WHICH this Supplement has been duly executed and delivered by
each New Pledgor as of the date indicated on the first page of this
Supplement.
[signatures of one or more New
Pledgors]
A-2
