EXHIBIT 16
MASTER SECURITIES PLEDGE AGREEMENT
This is a securities pledge agreement made as of June 4, 1998 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.
"Borrower" shall mean ▇▇▇▇▇▇▇▇▇ Inc., and shall include its
successors.
"Charge" 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 credit agreement made as of June 4,
1998, among ▇▇▇▇▇▇▇▇▇ Inc., as borrower, 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 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 Borrower 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 the 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.
"Guarantee" shall mean the guarantee given as of June 4, 1998 by,
inter alia, each of the Pledgors (except the Borrower) to the
Administrative Agent, for the benefit of the Administrative Agent and
the Lenders, of the obligations of the Borrower to the Administrative
Agent and the Lenders under the Credit Documents, as such guarantee
may be supplemented, amended, restated, consolidated or replaced from
time to time.
"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.
"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 distrusted 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 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 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 statement 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 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 as at
the date of this Agreement shall not be released at any time pursuant to
this Section 5(b). 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 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 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.
8. 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.
(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 of 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 o 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 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, 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
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 compliance with any such limitation or restriction.
10. 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 renumeration
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 financings 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
proposes 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 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% is 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.
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, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, attention
Managing Director, or to any Pledgor care of the Borrower at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, 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 at 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 ▇▇▇" 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 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 and supplemental
agreement (a "Supplemental") 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 for 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 (including any such release effecting
by the operation of an express provision of the Guarantee providing for the
release of such Obligations in specified circumstances), 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 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 action against such Pledgor in any
other jurisdiction. Each of the Pledgors (other than the Borrower) 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 the Borrower 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 the Borrower 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, 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 Administration 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.
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: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
name: ▇▇▇▇▇ ▇▇▇▇▇
title: Managing Director
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
title: Executive Director
▇▇▇▇▇▇▇▇▇ INC.
by: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
title: Executive Vice-President and
Chief Financial Officer
504468 N.B. INC.
by: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
title: President
SCHEDULE A
PLEDGED SECURITIES
Pledgor Class No. of Shares Certificate No.
▇▇▇▇▇▇▇▇▇ Inc. A common 3,000,000 A0299
610,754 A0300
4,050,000 A0359
504468 N.B. Inc. B common 12,990,000 B0005
SCHEDULE B
SUPPLEMENT TO MASTER SECURITIES PLEDGE AGREEMENT
This is a Supplement made as of ___________ to the securities pledge
agreement made as of June 4, 1998 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 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]