EXHIBIT 4.8
PLEDGE AGREEMENT entered into as of the 7th day of February, 2003,
BY: SUN MEDIA CORPORATION/CORPORATION SUN MEDIA, a
company continued under the laws of British Columbia,
having its registered office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
and having its chief executive office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (hereinafter called
"Pledgor")
IN FAVOUR OF: BANK OF AMERICA, N.A., a duly constituted bank,
having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
floor, in the City of ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
and at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, acting as Administrative Agent for
each present and future Lender under the Credit
Agreement hereinafter described (the "Secured Party")
In consideration of the sum of $1.00 and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the Pledgor and the Issuer (as hereinafter defined) agree with the Secured Party
as follows:
1. INTERPRETATION
1.1. Definitions - In this Agreement:
"this Agreement", "hereto", "herein", "hereof", "hereby", "hereunder"
and any similar expressions refer to this Agreement as it may be
amended or supplemented from time to time, and not to any particular
section or other portion hereof;
"Business Day" means any day, other than Saturday, Sunday or any
statutory holiday in the State of New York;
"Collateral" means all of the property of the Pledgor subject to, or
intended to be subject to, the Security Interest, and any reference to
"Collateral" shall be deemed to be a reference to "Collateral or any
part thereof" except where otherwise specifically provided;
"Credit Agreement" means the credit agreement dated as of February 7th,
2003 among the Pledgor as borrower, the financial institutions named on
the signature pages thereto, as Lenders, and the Secured Party (as same
may subsequently be amended, amended and restated, modified,
supplemented or replaced from time to time);
"Credit Documents" has the meaning ascribed thereto in the Credit
Agreement;
"Event of Default" has the meaning given to such term in section 7;
"General Intangible" has the meaning given to such term in the UCC;
Pledge Agreement
Signature Page
Exhibit 4.8
"Instrument" has the meaning given to such term in the UCC;
"Issuer" means Toronto Sun International, Inc., a Delaware corporation.
"Lien" means any mortgage, pledge, charge, assignment, security
interest, hypothec, lien or other encumbrance, including, without
limitation, any agreement to give any of the foregoing, or any
conditional sale or other title retention agreement;
"Obligations" means obligations of every nature, absolute or
contingent, direct, indirect or otherwise, in any currency, now or at
any time and from time to time hereafter due or owing by the Pledgor to
the Secured Party and each Lender arising under or in connection with
the Credit Documents (such obligations as amended, amended and
restated, modified, supplemented or renewed);
"Person" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, company or corporation with or
without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative,
regulatory body or agency, government or governmental agency, authority
or entity however designated or constituted;
"Proceeds" has the meaning given to such term in the UCC;
"Security" has the meaning given to such term in the UCC;
"Security Interest" has the meaning given to such term in section 2.1;
and
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
1.2. Currency - Except where otherwise expressly provided and without limitation
of Pledgor's obligations pursuant to Section 7.4 of that certain Guarantee dated
as of the date hereof made by the Pledgor and certain of its affiliates in
favour of the Secured Party, all amounts in this Agreement are stated and shall
be paid in United States currency.
1.3. Gender and Number - In this Agreement, unless the context otherwise
requires, words importing the singular include the plural and vice versa and
words importing gender include all genders.
1.4. Invalidity of Provisions - Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other
provision hereof.
1.5. Amendment, Waiver - No amendment or waiver of this Agreement shall be
binding unless executed in writing by the party to be bound thereby. No waiver
of any provision of this Agreement shall constitute a waiver of any other
provision nor shall any waiver of any provision of this Agreement constitute a
continuing waiver unless otherwise expressly provided.
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1.6. Governing Law, etc. - (a) This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and performed entirely within such State, except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular collateral are governed by the laws of a
jurisdiction other than the State of New York.
(a)
(b) Any legal action or proceeding with respect to this Agreement may
be brought in the courts of the State of New York sitting in New York
or of the United States for the Southern District of such state;
provided, however, that any suit seeking enforcement against any
collateral or other property shall be brought, at the Secured Party's
option, in the courts of any jurisdiction where such collateral or
other property may be found. By execution and delivery of this
Agreement, the Pledgor and the Secured Party consents, for itself and
in respect of its property, to the non-exclusive jurisdiction of those
courts. The Pledgor and the Secured Party irrevocably waives, to the
fullest extent permitted by applicable law, any objection, including
any objection to the laying of venue or based on the grounds of forum
non conveniens, which it may now or hereafter have to the bringing of
any action or proceeding in such jurisdiction in respect of this
Agreement or other document related thereto. The Pledgor and the
Secured Party waives personal service of any summons, complaint or
other process, which may be made by any other means permitted by the
law of such state.
(c) Each party to this Agreement hereby expressly waives, to the
fullest extent permitted by applicable law, any right to trial by jury
of any claim, demand, action or cause of action arising under any loan
document or in any way connected with or related or incidental to the
dealings of the parties hereto or any of them with respect to any
Credit Document, or the transactions related thereto, in each case
whether now existing or hereafter arising, and whether founded in
contract or tort or otherwise; and each party hereby agrees and
consents that any such claim, demand, action or cause of action shall
be decided by court trial without a jury, and that any party to this
Agreement may file an original counterpart or a copy of this section
with any court as written evidence of the consent of the signatories
hereto to the waiver of their right to trial by jury.
2. SECURITY INTEREST
2.1. Creation of Security Interest - The Pledgor hereby grants to the Secured
Party, by way of a security interest, pledge, charge, assignment and hypothec, a
security interest (the "Security Interest") in:
(a) all of the Securities listed in Schedule "A", appended hereto and
forming part hereof;
(b) all dividends, income or other distributions, whether paid or
distributed in cash, Securities or other property, in respect of any of
the property described in this section;
(c) all General Intangibles now or hereafter relating in any way to any
of the property described in this section; and
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(d) all Proceeds (including Proceeds of Proceeds) of any of the
property fescribed in this section.
2.2. Attachment - The attachment of the Security Interest has not been postponed
and the Security Interest shall attach to any particular Collateral as soon as
the Pledgor has rights in such Collateral.
2.3. Delivery of Certificate and Documents - The Pledgor herewith delivers to
the Secured Party all certificates or other documents representing or relating
to the Collateral described in clause 2.1(a) either endorsed in blank or
accompanied by duly executed in blank stock powers or other necessary
instruments of transfer requested by the Secured Party.
3. OBLIGATIONS SECURED
3.1. Obligations Secured - The Security Interest granted hereby secures payment,
performance and satisfaction of the Obligations.
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties - The Pledgor represents and warrants, and
so long as this Agreement remains in effect shall be deemed continuously to
represent and warrant, that:
(a) the Collateral have been duly authorized and validly issued and are
outstanding as fully paid and non-assessable shares and constitute that
percentage of the issued and outstanding shares in the capital and
other ownership interest of the Issuer set forth in Schedule "A"
hereto;
(b) none of the rights of the Pledgor arising as the legal and
beneficial owner of the Collateral have been surrendered, cancelled or
terminated except as set forth in this Agreement; and
(c) there is no default or dispute existing in respect of the
Collateral.
5. COVENANTS OF THE PLEDGOR
5.1. Covenants - The Pledgor covenants and agrees that:
(a) it shall deliver to the Secured Party from time to time promptly
upon request any Securities or certificates constituting, representing
or relating to the Collateral; and
(b) in the event that it shall become entitled to receive or shall
receive any shares or certificate (including any certificate
representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any portion of the Collateral (or otherwise in respect
thereof), the Pledgor shall accept the same as the agent of the Secured
Party, hold the same in trust for the Secured Party and deliver the
same forthwith to the Secured Party in the exact form received, duly
endorsed (in blank) by the Pledgor
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to the Secured Party, if required, together with an undated stock power
or other necessary instrument of transfer covering such certificate
duly executed in blank by the Pledgor, to be held by the Secured Party,
subject to the terms of this Agreement, as additional security for the
Obligations. In addition, any sums paid upon or in respect of the
Collateral upon the liquidation or dissolution of the Issuer shall be
held by the Secured Party as additional security for the Obligations.
If any sums of money or property so paid or distributed in respect of
any Collateral shall be received by the Pledgor, then the Pledgor
shall, until such money or property is paid or delivered to the Secured
Party, hold such money or property in trust for the Secured Party,
segregated from other funds of the Pledgor, as additional collateral
securing the Obligations.
6. DEALING WITH THE COLLATERAL
6.1. Registration of the Collateral in Name of Secured Party - The Pledgor
hereby authorizes the Secured Party, immediately following the occurrence and
continuation of an Event of Default that has not been waived, to (a) cause such
of the Collateral as is registrable to be registered in the name of the Secured
Party or its nominee, (b) instruct the Issuer to effect such registration upon
the request of the Secured Party, and (c) transfer such Collateral into the name
of the Secured Party or its nominee, so that the Secured Party or its nominee
may appear as the sole owner of record of such Collateral.
6.2. Notices and Other Communications in Respect of the Collateral - The Pledgor
shall deliver promptly to the Secured Party copies of all notices or other
communications received by the Pledgor in respect of the Collateral. Until the
occurrence and continuation of an Event of Default that has not been waived, the
Secured Party shall deliver promptly to the Pledgor all notices or other
communications received by the Secured Party or its nominee in respect of the
Collateral. After the occurrence and continuation of an Event of Default that
has not been waived, the Pledgor waives all rights to receive any notices or
communications received by the Secured Party or its nominee in respect of the
Collateral.
6.3. Voting and Other Rights - Once any part of the Collateral is registered in
the name of the Secured Party, the Secured Party may, but shall not be obligated
to, vote and exercise all rights of conversion or retraction or other similar
rights with respect to any Collateral and the Secured Party shall be entitled to
receive all dividends (whether paid or distributed in cash, securities or other
property) and interest declared and paid or distributed in respect of the
Collateral. The Pledgor covenants and agrees that it has not and shall not enter
into any voting trust arrangements or shareholder's agreements of any nature
whatsoever in respect of the Collateral, including without limitation any
agreement which would limit or purport to limit the voting rights of the Pledgor
prior to the occurrence of an Event of Default or the Secured Party following
any Event of Default.
6.4. Delivery of the Collateral to Secured Party - Save for Permitted
Distributions (as such term is defined in the Credit Agreement) all Collateral
received at any time by or on behalf of the Pledgor, whether before or after the
occurrence of an Event of Default, shall be received and held by or on behalf of
the Pledgor in trust for the Secured Party and shall be delivered to the Secured
Party immediately upon such receipt.
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7. EVENTS OF DEFAULT
7.1. Events of Default - The occurrence of any "Event of Default" as defined in
the Credit Agreement shall constitute an Event of Default hereunder.
8. REMEDIES
8.1. Remedies Available - Upon the occurrence and continuation of an Event of
Default, the Secured Party may, either directly or through its agents or
nominees, sell or otherwise dispose of, or concur in selling or otherwise
disposing of, whether by public sale, private sale or otherwise, the Collateral
in such manner and on such terms as it considers to be commercially reasonable.
In addition, the Secured Party, shall have the following rights, powers and
remedies:
(a) to make payments to Persons having prior rights or Liens on the
Collateral; and
(b) to demand, commence, continue or defend proceedings in the name of
the Secured Party or in the name of the Pledgor for the purpose of
protecting, seizing, collecting, realizing or obtaining possession or
payment of, or otherwise enforcing rights, powers or remedies with
respect to, the Collateral and to give effectual receipts and
discharges therefor.
In addition to the rights granted in this Agreement and in any other
agreement now or hereafter in effect between the Pledgor and the Secured Party,
and in addition to any other rights the Secured Party may have at law or in
equity or otherwise, the Secured Party shall have, both before and after the
occurrence of an Event of Default, all rights and remedies of a secured party
under the UCC.
The Secured Party may incur reasonable expenses in the exercise of its
rights, powers and remedies set out in this Agreement.
8.2. Possession of the Collateral - The Pledgor acknowledges that the Secured
Party shall at all times have possession of the Collateral, save for Permitted
Distributions (as such term is defined in the Credit Agreement) whether before
or after the occurrence of an Event of Default.
8.3. Remedies Not Exclusive - All rights, powers and remedies of the Secured
Party under this Agreement may be exercised separately or in combination and
shall be in addition to, and not in substitution for, any other security now or
hereafter held by the Secured Party and any other rights, powers and remedies of
the Secured Party however created or arising. No single or partial exercise by
the Secured Party of any of the rights, powers and remedies under this Agreement
or under any other security now or hereafter held by the Secured Party shall
preclude any other and further exercise of any other right, power or remedy
pursuant to this Agreement or any other security or at law, in equity or
otherwise. The Secured Party shall at all times have the right to proceed
against the Collateral or any other security in such order and in such manner as
it shall determine without waiving any rights, powers or remedies which the
Secured Party may have with respect to this Agreement or any other security or
at law, in equity or otherwise. No delay or omission by the Secured Party in
exercising any right, power or remedy hereunder or otherwise shall operate as a
waiver thereof or of any other right, power or remedy.
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8.4. Liability for Deficiency -- Upon a realization of the security interest
constituted hereby, the Pledgor shall remain liable to the Secured Party for the
Obligations.
8.5. Exclusion of Liability of the Secured Party - The Secured Party shall not
be liable for any exercise or any failure to exercise its rights, powers or
remedies arising hereunder or otherwise, including, without limitation, taking
possession of, collecting, enforcing, realizing, selling or otherwise disposing
of, preserving or protecting the Collateral, or taking any steps or proceedings
for any such purposes or any failure to do any of the foregoing, except in the
event of its gross negligence or wilful misconduct. The Secured Party shall not
have any obligation to examine any notices or other communications with respect
to the Collateral or to advise the Pledgor of the expiry of any warrants,
options or other rights in respect of or comprising the Collateral or to advise
the Pledgor of any other matter relating to any Persons which are issuers of any
of the Collateral, and the Secured Party shall not have any obligation to take
any steps or proceedings to preserve rights against prior parties to or in
respect of the Collateral, whether or not in the Secured Party's possession.
Subject to the foregoing, the Secured Party shall use reasonable care in the
custody and preservation of the Collateral in its possession.
8.6. Notice of Sale -- Except as required by the UCC or other applicable law,
the Secured Party shall not be required to give the Pledgor any notice of any
sale or other disposition of the Collateral, the date, time and place of any
public sale of the Collateral or the date after which any private disposition of
the Collateral is to be made.
8.7. Restriction on Public Sales - The Pledgor recognizes that the Secured Party
may be unable to effect a public sale of any or all of the Collateral by reason
of certain prohibitions contained in applicable securities laws or otherwise,
and accordingly, may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire such Collateral for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favourable than if such sale were a public sale, and notwithstanding such
circumstances, agrees that any such private sale shall not be deemed to have
been made in a commercially unreasonable manner solely by reason of its being a
private sale. The Secured Party shall be under no obligation to delay a sale of
any of the Collateral for the period of time necessary to permit the issuer of
such securities to register such securities for public sale under applicable
securities laws, or otherwise, even if the issuer would agree to do so.
9. APPLICATION OF PROCEEDS
9.1. Application of Proceeds - The Proceeds arising from the enforcement of the
Security Interest as a result of the possession by the Secured Party of the
Collateral or from any sale or other disposition of, or realization of security
on, the Collateral (except following acceptance of the Collateral in
satisfaction of the Obligations) shall be applied by the Secured Party in the
following order:
(a) first, in payment of the Secured Party's reasonable costs, charges
and expenses (including legal fees on a solicitor and his own client
basis) incurred in the exercise of all or any of the rights, powers or
remedies granted to it under this Agreement;
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(b) second, in payment of amounts paid by the Secured Party pursuant to
clause 8.1(a);
(c) third, in payment of the remainder of the Obligations in such order
of application as the Secured Party may determine in accordance with
the provisions of the Credit Agreement;
(d) fourth, subject to sections 9.2 and 9.3, to any Person who has a
security interest in the Collateral that is subordinate to that of the
Secured Party and whose interest,
(i) was perfected by possession, the continuance of which
was prevented by the Secured Party taking possession
of the Collateral, or
(ii) was, immediately before the sale or other disposition
by the Secured Party, perfected by registration;
(e) fifth, subject to sections 9.2 and 9.3, to any other Person with an
interest in such Proceeds who has delivered a written notice to the
Secured Party of the interest before the distribution of such Proceeds;
and
(f) last, subject to sections 9.2 and 9.3, to the Pledgor or any other
Person who is known by the Secured Party to be an owner of the
Collateral.
9.2. Proof of Interest - The Secured Party may require any Person mentioned in
clauses 9.1(d), 9.1(e), or 9.1(f) to furnish proof of that Person's interest,
and unless the proof is furnished within ten days after demand by the Secured
Party, the Secured Party need not pay over any portion of the Proceeds referred
to therein to such Person.
9.3. Payment Into Court - Where there is a question as to who is entitled to
receive payment under clauses 9.1(d), 9.1(e) or 9.1(f), the Secured Party may
pay the Proceeds referred to therein into court.
9.4. Monies Actually Received - Only the actual Proceeds arising from the sale
or other disposition of, or realization of security on, the Collateral, when
actually received by the Secured Party, shall be credited to the Pledgor, and
such actual Proceeds shall mean all amounts received in cash by the Secured
Party upon such sale or other disposition of, or realization of security on, the
Collateral.
10. GENERAL
10.1. Power of Attorney - The Pledgor hereby appoints the Secured Party as the
Pledgor's attorney, with full power of substitution, in the name and on behalf
of the Pledgor, to execute, deliver and do all such acts, deeds, documents,
transfers, demands, conveyances, assignments, contracts, assurances, consents,
financing statements and things as the Pledgor has herein agreed to execute,
deliver and do or as may be required by the Secured Party to give effect to this
Agreement or in the exercise of any rights, powers or remedies hereby conferred
on the Secured Party, and generally to use the name of the Pledgor in the
exercise of all or any of the rights, powers or remedies hereby conferred on the
Secured Party. This appointment, coupled with an
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interest, shall not be revoked by the death, insolvency, bankruptcy,
dissolution, liquidation or other termination of the existence of the Pledgor or
for any other reason.
10.2. Expenses -- Subject to any limitations in the Credit Agreement, the
Pledgor shall pay to the Secured Party on demand all of the Secured Party's
reasonable costs, charges and expenses (including, without limitation, legal
fees on a solicitor and his own client basis) in connection with the
preparation, registration or amendment of this Agreement, the perfection or
preservation of the Security Interest, the enforcement by any means of any of
the provisions hereof or the exercise of any rights, powers or remedies
hereunder, together with interest thereon from the date each of such costs,
charges and expenses was incurred to the date of payment at a rate equal to the
applicable rate of interest on Prime Rate Advances determined in accordance with
the provisions of the Credit Agreement.
10.3. Indemnity - The Pledgor shall indemnify the Secured Party and its nominees
against all costs, expenses, liabilities, claims, demands, damages, losses,
actions and proceedings of any kind which the Secured Party or its nominees may
suffer or incur by reason of the Secured Party being now or hereafter a holder,
or registered as owner, of the Collateral, save and except for those resulting
from the Secured Party's own gross negligence or wilful misconduct.
10.4. Dealings with Others - The Secured Party may grant extensions of time and
other -indulgences, take and give up security, accept compositions, make
settlements, grant releases and discharges and otherwise deal with the Issuer,
debtors of the Issuer, sureties and other Persons and with the Collateral and
other security as the Secured Party sees fit, without prejudice to the liability
of the Pledgor to the Secured Party or the rights, powers and remedies of the
Secured Party under this Agreement.
10.5. No Obligation to Advance - Nothing herein contained shall in any way
obligate the Secured Party to advance any funds or otherwise make or continue to
make any credit available to the Pledgor.
10.6. Perfection of Security Interest - The Pledgor and each of the Issuers
authorizes the Secured Party to file such financing statements and other
documents and do such acts, matters and things as the Secured Party may consider
appropriate to perfect and continue the Security Interest, to protect and
preserve the interest of the Secured Party in the Collateral and to realize upon
the Security Interest.
10.7. Communication - All notices, requests, demands or other communications
between the parties hereto shall be given in accordance with the provisions of
the Credit Agreement.
10.8. Successors and Assigns - This Agreement shall be binding on the Pledgor,
the Issuer and each of their successors and shall enure to the benefit of the
Secured Party and its successors and assigns. This Agreement may not be assigned
by the Pledgor or the Issuer but shall be assignable by the Secured Party in
connection with any permitted assignment under the Credit Agreement, free of any
set-off, counter-claim or equities between the Pledgor or the Issuer and the
Secured Party, and neither the Pledgor nor the Issuer shall assert against any
assignee of the Secured Party any claim or defense that the Pledgor or the
Issuer has against the Secured Party.
Copy Received --The Pledgor and the Issuer hereby acknowledge receipt of (i) a
copy of this
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Agreement, and (ii) a copy of the financing statements/verification statement
registered under the UCC in respect of the Security Interest, and (iii) a copy
of the Credit Agreement.
IN WITNESS WHEREOF the Pledgor, the Issuer and the Secured Party have executed
this Agreement as of the date first above written.
SUN MEDIA CORPORATION/CORPORATION
SUN MEDIA
Per: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
ACCEPTED AND AGREED as of the date first above written
TORONTO SUN INTERNATIONAL, INC.
Per: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
BANK OF AMERICA, N.A.
Per: /s/ [illegible]
--------------------------------------
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SCHEDULE "A"
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NUMBER OF SHARES OR DESCRIPTION OF SECURITY INTEREST PERCENTAGE OF SHARES
OTHER SECURITIES
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Common Shares of Toronto Sun
100 International, Inc. represented by 10%
certificate #1
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Common Shares of Toronto Sun
900 International, Inc. represented by 90%
certificate #2
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