EXHIBIT 1.1
SUN MEDIA CORPORATION
US$205,000,000
7-5/8% Senior Notes due 2013
Purchase Agreement
New York, New York
January 30, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
RBC Dominion Securities Corporation
TD Securities (USA) Inc.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.
Credit Suisse First Boston Corporation
Scotia Capital (USA) Inc.
CIBC World Markets Corp.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Sun Media Corporation, a company continued under the laws of
the Province of British Columbia (the "Company"), proposes to issue and sell to
the several parties named in Schedule I hereto as initial purchasers (the
"Initial Purchasers"), US$205,000,000 principal amount of its 7-5/8% Senior
Notes due 2013 (the "Notes," and the Notes together with the Guarantees (as
defined below), the "Securities"). The Securities are to be issued under an
indenture (the "Indenture"), to be dated as of the Closing Date (as defined
below), among the Company, the Subsidiary Guarantors (as defined below) and
National City Bank, as trustee (the "Trustee"). The Securities will have the
benefit of a registration rights agreement (the "Registration Rights
Agreement"), to be dated as of the Closing Date, among the Company, the
Subsidiary Guarantors and the Initial Purchasers, pursuant to which the Company
has agreed to register a new series of notes (the "Exchange Notes") and the
Subsidiary Guarantors have agreed to register the related guarantees (the
"Exchange Guarantees," and, together with the Exchange Notes, the "Exchange
Securities") under the Act subject to the terms and conditions therein
specified. Pursuant to the Registration Rights Agreement, the Exchange
Securities will be offered in exchange for the Securities (the "Registered
Exchange Offer"). The Notes will be unconditionally guaranteed (the
"Guarantees") by each of the Company's direct and indirect Subsidiaries set
forth on the signature page hereto (the "Subsidiary Guarantors"). The term
Initial Purchasers as used herein shall mean either the singular or plural as
the context requires. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Certain capitalized terms used
herein are defined in Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated January 17, 2003 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto
and wrappers thereof and including the Preliminary Canadian Offering Memorandum,
dated January 17, 2003 and the Preliminary Offering Memorandum Supplement, dated
January 27, 2003, the "Preliminary Memorandum"), and a final offering
memorandum, dated as of the date hereof (as amended or supplemented at the
Execution Time, including any and all exhibits thereto and wrappers thereof and
including the Canadian Offering Memorandum, dated as of the date hereof, the
"Final Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum
sets forth certain information concerning the Company and the Securities. The
Company hereby confirms that it has authorized the use of the Preliminary
Memorandum and the Final Memorandum, and any amendment or supplement thereto, in
connection with the offer and sale of the Securities by the Initial Purchasers.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SUBSIDIARY GUARANTORS. The Company and the Subsidiary Guarantors, jointly and
severally, represent and warrant to and agree with each Initial Purchaser as set
forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. At
the Execution Time and on the Closing Date, the Final Memorandum did
not, and will not (and any amendment or supplement thereto, at the
date thereof and on the Closing Date will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding two sentences do not apply to statements in or omissions
from the Preliminary Memorandum or Final Memorandum based upon
written information furnished to the Company by or on behalf of any
Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 8(b) hereof.
(b) The Company has been duly constituted and is an existing
company in good standing under the laws of the Province of British
Columbia, with power and authority (corporate and other) to own or
lease, as the case may be, and operate its properties and conduct
its business as described in the Final Memorandum; and the Company
is duly qualified or registered to carry on business as a foreign or
extra-provincial corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to be so qualified or in good standing (i) would not
reasonably be expected to have a material adverse effect on the
performance by the Company of its obligations under this Agreement,
the Indenture, the Securities or the Registration Rights Agreement
or (ii) would not individually or in the aggregate, have a material
adverse
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effect on the condition (financial or otherwise), business,
properties, results of operations or prospects of the Company and
its Subsidiaries taken as a whole ("Material Adverse Effect")
whether or not arising from transactions in the ordinary course of
business. The Company has a capitalization as set forth in the Final
Memorandum under the caption headed "Capitalization," and all of the
issued and outstanding shares in the capital of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(c) The Subsidiaries of the Company listed on Exhibit B
hereto (the "Material Subsidiaries") include all of the Subsidiaries
material to the assets and operations of the Company.
(d) Each Material Subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction in which it is incorporated, organized
or chartered, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Final
Memorandum; and each Material Subsidiary of the Company is duly
qualified or registered to do business as a foreign or
extra-provincial corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except to the
extent that the failure to be so qualified or in good standing would
not reasonably be expected to have a Material Adverse Effect. All of
the issued and outstanding shares in the capital of each Material
Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and are owned directly or indirectly by
the Company, free and clear from all liens, encumbrances, defects,
equities or claims, except as set forth under the caption
"Description of Certain Indebtedness" in the Final Memorandum.
(e) Each of the Indenture and the Registration Rights
Agreement has been duly authorized by each of the Company and the
Subsidiary Guarantors; the Securities and Exchange Securities have
been duly authorized by each of the Company and the Subsidiary
Guarantors; and when the Securities are delivered and paid for
pursuant to this Agreement on the Closing Date (and, when the
Company and the Subsidiary Guarantors have duly executed each global
certificate representing the Exchange Securities and such Exchange
Securities have been authenticated, in accordance with the
provisions of the Indenture and delivered to the holders of Notes in
exchange therefor as contemplated by the Registration Rights
Agreement), and the Indenture and the Registration Rights Agreement
will have been duly executed and delivered, such Securities and
Exchange Securities will have been duly executed, authenticated,
issued and delivered and will conform to the descriptions thereof
contained in the Final Memorandum, and the Indenture, the
Registration Rights Agreement and such Securities and Exchange
Securities will constitute valid and legally binding obligations of
the Company and the Subsidiary Guarantors, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
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(f) Except as disclosed in the Final Memorandum, there are
no contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the Company
or any Initial Purchaser for a brokerage commission, finder's fee or
other like payment.
(g) Each of the Company and the Subsidiary Guarantors has all
requisite power and authority (corporate and otherwise) and has
taken all requisite action (corporate and otherwise) necessary to
enter into and perform this Agreement, the Indenture, the
Securities, the Exchange Securities and the Registration Rights
Agreement. No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement, the Indenture or the Registration Rights Agreement
in connection with the issuance and sale of the Securities and
Exchange Securities by the Company except for the order of the
Commission declaring the Exchange Offer Registration Statement or
the Shelf Registration Statement (each as defined in the
Registration Rights Agreement) effective and except such as may be
required under the securities or Blue Sky laws of the various states
and except for the filing of notices of private placement and the
payment of filing fees required by the securities legislation of
certain provinces in Canada, to the extent any Securities are sold
by private placement therein.
(h) Except as disclosed in the Final Memorandum, under
current laws and regulations of Canada and any political subdivision
thereof, all interest, principal, premium, if any, and other
payments due or made on the Securities may be paid by the Company to
the holder thereof in United States dollars that may be converted
into foreign currency and freely transferred out of Canada and all
such payments made to holders thereof who are non-residents of
Canada for the purposes of the Income Tax Act (Canada) (other than
holders who (i) use or hold, or are deemed to use or hold, the
Securities in the course of carrying on a business in Canada, (ii)
are persons who carry on an insurance business in Canada and
elsewhere, or (iii) who do not deal at arm's length with the
Company) will not be subject to income, withholding or other taxes
under laws and regulations of Canada or any political subdivision or
taxing authority thereof or therein and will otherwise be free and
clear of any other tax, duty, withholding or deduction in Canada or
any political subdivision thereof or by any taxing authority thereof
or therein and without the necessity of obtaining any governmental
authorization in Canada or any political subdivision or taxing
authority thereof or therein.
(i) Neither the Company nor any of its Material Subsidiaries
is (i) in violation of its respective constituting documents or
by-laws, or (ii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, deed of trust, mortgage, lease or other
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its
Material Subsidiaries or their respective property is bound, except,
in the case of clause (ii) above, to the extent such violation or
default would not have a Material Adverse Effect.
(j) The execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement, and
the issuance and sale of the
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Securities and Exchange Securities and compliance with the terms and
provisions hereof and thereof will not, (i) conflict with, or
constitute a breach of, any of the terms or provisions of, or a
default under, the constituting documents or by-laws, of the Company
or any Subsidiary Guarantor, (ii) conflict with, or constitute a
breach of, any of the terms or provisions of, or a default under,
any indenture, loan agreement, deed of trust, mortgage, lease or
other agreement or instrument to which the Company or any of the
Subsidiary Guarantors is a party or by which the Company or any of
the Subsidiary Guarantors or their respective property is bound,
(iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company,
any of the Subsidiary Guarantors or their respective property, (iv)
result in the imposition or creation of (or the obligation to create
or impose) a lien under, any agreement or instrument to which the
Company or any of the Subsidiary Guarantors is a party or by which
the Company or any of the Subsidiary Guarantors or their respective
property is bound, or (v) result in the termination, suspension or
revocation of any permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an
"Authorization") of the Company or any of the Subsidiary Guarantors
or result in any other impairment of the rights of the holder of any
such Authorization except, in the case of each of clauses (ii)
through (v) above, for such violations that would not have a
Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiary Guarantors.
(l) Each of the Company and each of its Material Subsidiaries
owns or leases all such properties as are necessary to the conduct
of its operations as presently conducted. Except as disclosed in the
Final Memorandum, including with respect to the Existing Credit
Facility (as defined in Section 6(j) hereof), the Company and its
Material Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in
the Final Memorandum, the Company and its Material Subsidiaries hold
any leased real or personal property under valid and enforceable
leases with no exceptions that would have a Material Adverse Effect.
(m) The Company and its Material Subsidiaries possess
adequate certificates, authorities or permits of, and have made all
filings with and notice to, all appropriate governmental agencies or
bodies necessary to conduct the businesses now operated by them and
have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
Material Subsidiaries would, individually or in the aggregate, have
a Material Adverse Effect.
(n) Except as disclosed in the Final Memorandum, there is no
filing, license, consent, permission, approval, authorization or
order of any court or governmental agency or body in Canada which is
required to be obtained by the
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Company or any of its Subsidiaries in order for the Company or any
of its Subsidiaries to carry on their current or contemplated
businesses and operations as described in the Final Memorandum,
other than as would not have a Material Adverse Effect.
(o) Except as disclosed in the Final Memorandum, no labor
dispute with the employees of the Company or any Material Subsidiary
exists or, to the knowledge of the Company, is imminent that could
reasonably be expected to have a Material Adverse Effect.
(p) Except as disclosed in the Final Memorandum, the Company
and its Material Subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business
now operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its Material
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(q) The Company and each of its Material Subsidiaries are
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; and neither
the Company nor any of its Material Subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be
made in order to continue such insurance or (ii) has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers at a cost that would not have a
Material Adverse Effect.
(r) The Company and each of its Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles in Canada and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(s) Under current laws and regulations of Canada and any
political subdivisions thereof, no withholding tax imposed under the
federal laws of Canada or any political subdivision thereof will be
payable in respect of the payment or crediting of any discount,
commission or fee as contemplated by this Agreement to an Initial
Purchaser that is not resident in Canada, but resident in the United
States or if a partnership, all the members of which are not
resident in Canada but resident in the United States, in each case,
for purposes of the INCOME TAX ACT (Canada) and the CANADA-US INCOME
TAX CONVENTION, 1980 (a "U.S. Purchaser") or any interest or deemed
interest on the resale of
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Securities by a U.S. Purchaser to U.S. residents, provided that such
U.S. Purchaser deals at arm's-length with the Company and that any
such discount, commission or fee is payable in respect of services
rendered by such U.S. Purchaser outside of Canada, that are
performed by such U.S. Purchaser in the ordinary course of business
carried on by it that includes the performance of such services for
a fee and any such amount is reasonable in the circumstances.
(t) All material tax returns required to be filed by the
Company and each of its Material Subsidiaries in any jurisdiction
have been filed, other than any filings not yet due or being
contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of its Material
Subsidiaries have been paid, other than those not yet payable or
being contested in good faith and for which adequate reserves have
been provided.
(u) Expect as disclosed in the Final Memorandum, neither the
Company nor any of its Material Subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental
laws, is liable for any off-site disposal or contamination pursuant
to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation
which might lead to such a claim.
(v) Except as disclosed in the Final Memorandum, there are
no pending actions, suits or proceedings against or affecting the
Company, any of its Material Subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its Material Subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under
this Agreement, the Indenture or the Registration Rights Agreement,
or which are otherwise material in the context of the sale of the
Securities; and, to the Company's knowledge, no such actions, suits
or proceedings are threatened or contemplated.
(w) The consolidated financial statements, including the
notes thereto, included in the Final Memorandum (including those
included in Appendix I to the Final Memorandum) present fairly the
financial position of the Company and its consolidated Subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been
prepared in conformity with Canadian generally accepted accounting
principles applied on a consistent basis. The selected financial
data set forth under the captions "Summary Consolidated Financial
and Operating Data" and "Selected Consolidated Financial and
Operating Data" in the Final Memorandum fairly present, on the basis
stated in the Final Memorandum, the
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information included therein. The statistical and market-related
data included in the Final Memorandum are based on or derived from
sources that the Company believes to be reliable and accurate.
(x) Note 18 to the consolidated financial statements of the
Company contained in the Final Memorandum fairly represents the
manner in which the financial position of the Company as of December
31, 2001 and 2000 and the results of operations for the years ended
December 31, 2001, 2000 and 1999 would have been affected by the
application of generally accepted accounting principles in the
United States. Note 18 to the consolidated financial statements of
the Company contained in Appendix I to the Final Memorandum fairly
represents the manner in which the financial position of the Company
as of December 31, 2002 and 2001 and the results of operations for
the years ended December 31, 2002, 2001 and 2000 would have been
affected by the application of generally accepted accounting
principles in the United States.
(y) Except as disclosed in the Final Memorandum, since the
date of the latest audited financial statements included in the
Final Memorandum (including those included in Appendix I to the
Final Memorandum), there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties,
results of operations or prospects of the Company and its Material
Subsidiaries taken as a whole, and, except as disclosed in, or
contemplated by, the Final Memorandum, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(z) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act; and the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum, will not be an
"investment company" as defined in the Investment Company Act,
without taking account of any exemption arising out of the number of
holders of the Company's securities.
(aa) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Act) as the Securities are listed on any
national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system.
(bb) The offer and sale of the Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Act by reason of Section 4(2) thereof and
Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Securities under the Trust Indenture
Act.
(cc) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United
States or to any U.S. person (as such terms are defined in
Regulation S) the Securities or any security of the same class or
series as the Securities or
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(ii) has offered or will offer or sell the Securities (A) in the
United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation
D or (B) with respect to any such securities sold in reliance on
Rule 903 of Regulation S, by means of any "directed selling efforts"
within the meaning of Rule 902(c) of Regulation S. The Company, its
Affiliates and any person acting on its or their behalf have
complied and will comply with the offering restrictions requirement
of Regulation S. The Company has not entered and will not enter into
any contractual arrangement with respect to the distribution of the
Securities except for this Agreement.
(dd) Neither the Company, nor any person acting on its behalf,
has, directly or indirectly, (i) made offers or sales of any
security, or solicited offers to buy any security, under
circumstances that would require the distribution of the Securities
in any Canadian province to be qualified by a prospectus filed in
accordance with the securities laws, and the regulations thereunder,
of, and the applicable published rules, policy statements, blanket
orders and notices of the securities regulatory authorities in, such
province (the "Canadian Securities Laws") or (ii) has engaged in any
advertisement of the Securities in any printed media of general and
regular paid circulation, radio or television or any other form of
advertising in connection with the offer and sale of the Securities
in such province.
(ee) The accountants, KPMG LLP, that have certified the
financial statements and supporting schedules included in the Final
Memorandum, are independent public accountants with respect to the
Company and its Subsidiaries, as required by the Act and the
Exchange Act, and are independent with respect to the Company and
its Subsidiaries within the meaning of the Code of Ethics of the
Canadian Institute of Chartered Accountants. To the best knowledge
of the Company, other than the consolidated financial statements of
the Company as of and for the year ended December 31, 1999 with
respect to the requirements of Rule 3-10 of Regulation S-X under the
Exchange Act, the historical financial statements and pro forma
financial information, together with related schedules and notes,
set forth in the Final Memorandum comply as to form in all material
respects with the requirements applicable to registration statements
on Form F-4 under the Act.
(ff) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act (i) has imposed (or has informed the Company that it
is considering imposing) any condition (financial or otherwise) on
the Company's retaining any rating assigned to the Company or any
securities of the Company or (ii) has indicated to the Company that
it is considering (a) the downgrading suspension, or withdrawal of,
or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b)
any negative change in the outlook for any rating of the Company or
any securities of the Company.
(gg) Upon application of the net proceeds of the Offering as
set forth under the heading "Use of Proceeds" in the Final
Memorandum, either (i) the credit facility pursuant to the Amended
and Restated Credit Agreement dated April 1, 2000, as amended on
March 31, 2001 and June 20, 2001, between the Company, Royal Bank of
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Canada, as administrative agent, Credit Suisse First Boston
Corporation, as documentation agent, and the lenders thereto (the
"Existing Credit Facility"), shall be fully repaid and all
borrowings and obligations of the Company and its Subsidiaries
thereunder shall be satisfied in full and discharged, or (i)(A) the
Company will have irrevocably deposited with the administrative
agent under the Existing Credit Facility thereunder funds in an
amount sufficient to repay all borrowings and obligations under the
Existing Credit Facility, (B) the lenders under such Existing Credit
Facility shall have no claims with respect to outstanding borrowings
against the Company other than with respect to the deposited funds,
(C) all covenants thereunder shall cease to be in effect, (D) the
lending commitments thereunder shall be terminated, and (E) within
five Business Days of the Closing Date, the Existing Credit Facility
shall be fully repaid and all borrowings and obligations of the
Company and its Subsidiaries thereunder shall be satisfied in full
and discharged.
(hh) The credit facility to be entered into by and among Bank
of America, N.A., Banc of America Securities LLC, Credit Suisse
First Boston Corporation as lead arrangers, Bank of America, N.A.,
as administrative agent, the lenders thereunder, and the Company
(the "New Credit Facility") has been duly authorized by the Company
and when duly executed and delivered by the Company, the terms of
the indebtedness thereunder will conform to the description thereof
contained in the Final Memorandum and the New Credit Facility will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(ii) Each of the relationships and transactions specified in
Item 7.B of Form 20-F that would have been required to be described
in a prospectus if the Securities had been registered under the Act
has been so described in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(jj) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in
connection with the execution, delivery and performance of this
Agreement or the Indenture by the Company or the Subsidiary
Guarantors or the issuance or sale by the Company of the Securities
or the Exchange Securities.
(kk) No Subsidiary of the Company, other than Le Courrier du
Sud (1998) Inc., is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary's Capital Stock, from repaying to
the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or
assets to the Company or any other Subsidiary of the Company.
(ll) None of the Company, the Subsidiary Guarantors or any of
its or their Affiliates, nor any person acting on its or their
behalf has, directly or indirectly, taken any action designed to
cause or which has constituted or which could reasonably be
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expected to cause or result, under the Exchange Act or otherwise, in
the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(mm) Each of the Company and the Subsidiary Guarantors is not
and, after giving effect to the transactions contemplated by this
Agreement, including the issuance of the Securities and the
application of the proceeds thereof as set forth in the Final
Memorandum, will not be insolvent, as such term is defined by, and
in accordance with the applicable test therefor pursuant to, the
laws under which the Company or such Subsidiary Guarantor, as
applicable, exists.
Any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company, as to matters covered thereby, to each Initial
Purchaser.
2. PURCHASE AND SALE. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company and the Subsidiary Guarantors agree to sell to each Initial Purchaser,
and each Initial Purchaser agrees, severally and not jointly, to purchase from
the Company and the Subsidiary Guarantors, at a purchase price of 96.286% of the
principal amount thereof, plus accrued interest, if any, from February 7, 2003
to the Closing Date, the principal amount of Securities set forth opposite such
Initial Purchaser's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Securities shall be made at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or such other place as the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney shall agree, at 10:00 A.M., New York City time, on February 7, 2003, or
at such time on such date (not later than February 14, 2003) as ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ shall designate, which date and time may be postponed by agreement
between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being herein
called the "Closing Date"). Delivery of the Securities shall be made to ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ for the respective accounts of the several Initial Purchasers
against payment by the several Initial Purchasers through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to the account specified by the Company. The
Securities shall be delivered in such names, forms and amounts as ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ shall specify and delivery shall be made through the facilities of The
Depository Trust Company unless ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney shall otherwise instruct.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INITIAL
PURCHASERS. Each Initial Purchaser, severally and not jointly, represents and
warrants to and agrees with the Company and the Subsidiary Guarantors that:
(a) It has not offered or sold, and will not offer or
sell, any Securities except to those it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the
Act) and that, in connection with each such sale, it has taken or
will take reasonable steps to ensure that the purchaser of such
Securities is aware that such
11
sale is being made in reliance on Rule 144A under the Act; or in
accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it, its Affiliates nor any person acting
on its or their behalf has made or will make offers or sales of
the Securities in the United States by means of any form of
general solicitation or general advertising (within the meaning
of Regulation D).
(c) It is an "accredited investor" within the meaning
of Regulation D under the Act.
5. AGREEMENTS. The Company and the Subsidiary Guarantors
agree with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser
and to counsel for the Initial Purchasers, without charge, during
the period referred to in paragraph (c) below, as many copies of
the Final Memorandum and any amendments and supplements thereto
as they may reasonably request.
(b) The Company will not amend or supplement the Final
Memorandum, without the prior written consent of the Initial
Purchasers.
(c) If at any time prior to the completion of the
sale of the Securities by the Initial Purchasers (as determined
by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇), any event occurs as a result of which
the Final Memorandum, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it should be necessary to amend or supplement
the Final Memorandum to comply with applicable law, the Company
promptly (i) will notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney of any such event;
(ii) subject to the requirements of paragraph (b) of this Section
5, will prepare an amendment or supplement that will correct such
statement or omission or effect such compliance; and (iii) will
supply any supplemented or amended Final Memorandum to the
several Initial Purchasers and counsel for the Initial Purchasers
without charge in such quantities as they may reasonably request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial
Purchasers under the laws of such jurisdictions in the United
States or Canada as the Initial Purchasers may designate and will
maintain such qualifications in effect so long as required for
the sale of the Securities; PROVIDED that in no event shall the
Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified, to qualify a
prospectus under the federal laws of Canada or any political
subdivision thereof, or to take any action that would subject it
to service of process in suits, other than those arising out of
the offering or sale of the Securities, or to taxation in any
jurisdiction where it is not now so subject. The Company will
promptly advise ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
12
(e) None of the Company, the Subsidiary Guarantors or
any of its or their Affiliates, nor any person acting on its or
their behalf will, prior to completion of the Registered Exchange
Offer, resell any Securities that have been acquired by any of
them.
(f) None of the Company, the Subsidiary Guarantors or
any of its or their Affiliates, nor any person acting on its or
their behalf will, directly or indirectly, make offers or sales
of any security, or solicit offers to buy any security, under
circumstances that would cause the exemption afforded by Section
4(2) of the Act or the safe harbor of Regulation S under the Act
to cease to be applicable to the offer and sale of the Securities
contemplated under this Agreement.
(g) On or prior to the Closing Date, none of the
Company, the Subsidiary Guarantors or any of its or their
Affiliates, nor any person acting on its or their behalf will
engage in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer
or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act,
the Company will, during any period in which it is not subject to
Section 13 or 15(d) of the Exchange Act and it is not exempt from
such reporting requirements pursuant to and in compliance with
Rule 12g3-2(b) under the Exchange Act, provide to each holder of
such restricted securities and to each prospective purchaser (as
designated by such holder of the Securities) of such restricted
securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule
144A(d)(4) under the Act in order to permit compliance with Rule
144A under the Act in connection with resales by such holder of
such restricted securities. Such information will not, at the
date thereof, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. This covenant is intended to be for the
benefit of the holders of the Securities, and the prospective
purchasers designated by such holders, from time to time of such
restricted securities.
(i) None of the Company, the Subsidiary Guarantors or
any of its or their Affiliates, nor any person acting on its or
their behalf will engage in any directed selling efforts with
respect to the Securities, and each of them will comply with the
offering restrictions requirement of Regulation S with respect to
the Securities. Terms used in this paragraph have the meanings
given to them by Regulation S.
(j) The Company will cooperate with the Initial
Purchasers and use its best efforts to permit the Securities and
the Exchange Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(k) None of the Company, the Subsidiary Guarantors or
any of its or their Affiliates will, for a period of 60 days
following the Execution Time, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, offer, sell or contract to sell, or
otherwise dispose of (or enter into any transaction that is
designed to, or might
13
reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any Affiliate of the
Company or any person in privity with the Company or any
Affiliate of the Company), directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed by the
Company (other than the Securities).
(l) None of the Company, the Subsidiary Guarantors or
any of its or their Affiliates will take, directly or indirectly,
any action designed to or which has constituted or which could
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the Securities.
(m) The Company will apply the net proceeds from the
sale of the Notes as set forth under the heading "Use of
Proceeds" in the Final Memorandum.
(n) The Company agrees to pay the costs and expenses
relating to the following matters: (i) the preparation of the
Indenture and the Registration Rights Agreement, the issuance of
the Securities and the Exchange Securities and the fees of the
Trustee; (ii) the preparation, printing or reproduction of the
Preliminary Memorandum and Final Memorandum and each amendment or
supplement to either of them; (iii) the printing (or
reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of
the Preliminary Memorandum and Final Memorandum, and all
amendments or supplements to either of them, as may, in each
case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iv) the preparation,
printing, authentication, issuance and delivery of certificates
for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities;
(v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection
with the offering of the Securities and the Exchange Securities;
(vi) any registration or qualification of the Securities for
offer and sale under applicable securities laws, including blue
sky laws, in accordance with Section 5(d) hereof (including
filing fees and the reasonable fees and expenses of counsel for
the Initial Purchasers relating to such registration and
qualification); (vii) Canadian trade report filing fees, (viii)
admitting the Notes and Exchange Notes for trading in the Portal
Market; (ix) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (x)
the fees and expenses of the Company's accountants and the fees
and expenses of counsel (including local and special counsel) for
the Company; and (xi) all other costs and expenses incident to
the performance by the Company of its obligations hereunder;
PROVIDED that the Company will not be obligated to pay the
expenses of the Initial Purchasers except as provided in Section
7 hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE INITIAL PURCHASERS.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Subsidiary Guarantors contained herein at the Execution Time and
the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Subsidiary Guarantors made in any
14
certificates pursuant to the provisions hereof, to the performance by the
Company and the Subsidiary Guarantors of its or their obligations hereunder and
to the following additional conditions:
(a) The Company shall have requested and caused ▇▇▇▇▇▇
& ▇▇▇▇▇▇, U.S. counsel for the Company and the Subsidiary
Guarantors, to furnish to the Initial Purchasers its opinion,
dated the Closing Date and addressed to the Initial Purchasers,
to the effect that
(i) Each of Toronto Sun International, Inc.,
Florida Sun Publications, Inc. and TS Printing Inc. (the
"Delaware Guarantors") has been duly incorporated and is an
existing corporation, in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Final Memorandum; and each Delaware Guarantor (other than
Toronto Sun International, Inc.) is duly qualified to do
business as a foreign corporation, in good standing in
Florida; all of the issued shares of the capital stock of
each of the Delaware Guarantors have been duly authorized
and, assuming full payment of the consideration thereof
where the minutes of Board meetings for such issuances do
not indicate that payment has been received and assuming in
all other cases the accuracy and completeness of all minutes
of Board meetings, validly issued and are fully paid and
nonassessable and are owned directly or indirectly by the
Company;
(ii) The Indenture, the Registration Rights
Agreement and the Guarantees to be issued by the Delaware
Guarantors have been duly authorized, executed and delivered
by each of the Delaware Guarantors; and conform to the
description thereof contained in the Final Memorandum;
(iii) Assuming the due authorization, execution and
delivery of the Indenture, the Registration Rights Agreement
and the Securities by each of the Company and the Subsidiary
Guarantors other than the Delaware Guarantors (the "Canadian
Guarantors"), the Indenture, the Registration Rights
Agreement and the Securities constitute valid and legally
binding obligations of the Company and the Subsidiary
Guarantors enforceable in accordance with their terms
(subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance,
preference or other laws affecting or relating to the
enforcement of creditors' rights generally from time to time
in effect and to equitable principles, regardless of whether
enforcement is sought in equity or at law) and conform to
the description thereof contained in the Final Memorandum;
when the Company and the Subsidiary Guarantors have duly
executed each global certificate representing the Exchange
Securities and such Exchange Securities have been
authenticated, in accordance with the provisions of the
Indenture and delivered to the holders of Notes in exchange
therefor as contemplated by the Registration Rights
Agreements, and assuming that the Canadian Guarantors have
duly and validly authorized the Exchange Guarantees, such
Exchange Securities will constitute legal, valid, binding
and enforceable obligations of the Company and the
Subsidiary Guarantors entitled to the benefits of the
Indenture (subject, as to
15
enforcement, to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, preference or other laws
affecting or relating to the enforcement of creditors'
rights generally from time to time in effect and to
equitable principles, regardless of whether enforcement is
sought in equity or at law);
(iv) The Guarantees to be issued by the Delaware
Guarantors have been duly authorized, authenticated, issued
and delivered; the form of global certificate representing
the Guarantees has been duly approved and adopted by each of
the Delaware Guarantors and complies with applicable laws;
the issuance of the Exchange Guarantees to be issued by the
Delaware Guarantors has been duly and validly authorized by
the Delaware Guarantors;
(v) Assuming due authorization by each of the
Company and the Canadian Guarantors, this Agreement has been
duly executed and delivered by the Company and the
Subsidiary Guarantors, to the extent that execution and
delivery are governed by the law of the State of New York;
(vi) The Company is not and, after giving effect
to the offering and sale of the Securities and the
application of the proceeds thereof as described in the
Final Memorandum, will not be an "investment company" as
defined in the Investment Company Act;
(vii) No consent, approval, authorization or order
of, or filing, registration or qualification with, any
Governmental Authority, which has not been obtained, taken
or made (other than as required by any state securities or
Blue Sky laws of the various states, as to which such
counsel need express no opinion) is required under any
Applicable Law for the issuance, authentication or sale of
the Securities or the performance by the Company and the
Subsidiary Guarantors of its or their obligations under this
Agreement, the Registration Rights Agreement and the
Indenture, except as may be required in connection with the
registration of the Securities under the Registration Rights
Agreement. For purposes of this opinion, the term
"Governmental Authority" means any executive, legislative,
judicial, administrative or regulatory body of the State of
New York or the United States. For purposes of this opinion,
the term "Applicable Law" means those laws, rules and
regulations of the United States of America and the State of
New York, in each case which are normally applicable to the
transactions of the type contemplated by this Agreement;
(viii) The execution, delivery and performance of
the Indenture, this Agreement and the Registration Rights
Agreement will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any federal statute of Applicable Law;
(ix) It is not necessary in connection with (i)
the offer, sale and delivery of the Securities by the
Company and the Subsidiary Guarantors to the several Initial
Purchasers pursuant to this Agreement or (ii) the resales of
the Securities by the several Initial Purchasers in the
manner contemplated by this
16
Agreement, to register the Securities under the Act or to
qualify the Indenture under the Trust Indenture Act;
(x) The statements in the Final Memorandum under
the caption "Tax Considerations - U.S. Federal Income Tax
Considerations," to the extent they constitute matters of
U.S. law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in
all material respects and fairly summarize the matters set
forth therein;
(xi) The statements in the Final Memorandum under
the captions "Description of the Notes" and "Plan of
Distribution" in the Final Memorandum, insofar as such
statements constitute a summary of the documents referred to
therein, fairly summarize in all material respects such
documents;
(xii) Assuming the due authorization, execution
and delivery of this Agreement, the Indenture and the
Registration Rights Agreement by each party thereto (other
than the Delaware Guarantors), each of the Company and the
Subsidiary Guarantors have validly and irrevocably submitted
to the jurisdiction of any United States federal or state
court located in the State of New York, County of New York,
have expressly accepted the non-exclusive jurisdiction of
any such court and have validly and irrevocably appointed CT
Corporation System as their authorized agent in any suit or
proceeding against them instituted by the Initial Purchasers
based on or arising under the Indenture, this Agreement or
the Registration Rights Agreement; and
(xiii) Such counsel has no reason to believe that
the Final Memorandum, or any amendment or supplement
thereto, as of the date hereof and as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; it
being understood that such counsel need express no opinion
as to the financial statements or other financial data
contained in the Final Memorandum.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company, the Subsidiary Guarantors and public officials.
References to the Final Memorandum in this paragraph (a) include any amendment
or supplement thereto at the Closing Date.
(b) The Company shall have requested and caused ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Canadian counsel for the Company and the Subsidiary
Guarantors, to furnish to the Initial Purchasers its opinion
(containing customary assumptions, qualifications, limitations and
exceptions acceptable to the Initial Purchasers), dated the Closing
Date and addressed to the Initial Purchasers, and covering, in
substance, the following matters:
(i) The Company has been duly incorporated and
is an existing company in good standing under the laws of
British Columbia, with the corporate power and authority to
own or lease, as the case may be, and operate its properties
17
and conduct its business as described in the Final
Memorandum; the Company has the corporate power and
authority to execute, deliver and perform its obligations
under this Agreement, the Indenture, the Securities, the
Exchange Securities and the Registration Rights Agreement;
and the Company is duly qualified or registered to carry on
business as a foreign or extra-provincial corporation in
good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its
business requires such qualification except to the extent
that such failure to be so qualified or in good standing
would not have a Material Adverse Effect; all of the issued
shares of the capital stock of the Company have been duly
authorized and, assuming full payment of the consideration
thereof where the minutes of Board meetings for such
issuances do not indicate that payment has been received and
assuming in all other cases the accuracy and completeness of
all minutes of Board meetings, validly issued and are fully
paid and nonassessable; all of the issued shares of the
capital stock of the Company are owned indirectly by
Quebecor Media Inc.;
(ii) Each of the Canadian Guarantors has been
duly incorporated or formed and is an existing corporation,
partnership or limited partnership, as applicable, in good
standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, with the
corporate power and authority to own its properties and
conduct its business as described in the Final Memorandum;
each Canadian Guarantor has the corporate power and
authority to execute, deliver and perform its obligations
under this Agreement, the Indenture, the Securities, the
Exchange Securities and the Registration Rights Agreement;
and each Canadian Guarantor is duly qualified to do business
as a foreign corporation, partnership, or limited
partnership, as applicable, in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification
except to the extent that such failure to be so qualified or
in good standing would not have a Material Adverse Effect;
all of the issued shares of the capital stock of each of the
Canadian Guarantors have been duly authorized and, assuming
full payment of the consideration thereof where the minutes
of Board meetings for such issuances do not indicate that
payment has been received and assuming in all other cases
the accuracy and completeness of all minutes of Board
meetings, validly issued and are fully paid and
nonassessable and are owned directly or indirectly by the
Company;
(iii) The Indenture, the Registration Rights
Agreement, the Notes and the Guarantees to be issued by the
Canadian Guarantors have been duly authorized, executed and
delivered by each of the Company and the Canadian
Guarantors; and conform to the description thereof contained
in the Final Memorandum;
(iv) No consent, approval, authorization,
registration, exemption, recording, qualification, or order
of, or filing with, any governmental agency or body or any
court in Canada is required under the laws of the Province
of British Columbia, Ontario or Quebec or the federal laws
of Canada for the consummation of the transactions
contemplated by this Agreement and the
18
Registration Rights Agreement in connection with the
issuance or sale of the Securities by each of the Company
and the Canadian Guarantors, or to preserve or protect the
validity or enforceability of the Indenture or the
Securities, except for filings, registrations and recordings
which have been made and the filing of certain notices of
private placement and the payment of filing fees required by
the securities legislation of certain provinces in Canada to
the extent Securities are sold by private placement therein;
(v) No filing, license, consent, permission,
approval, authorization, or order of any court or
governmental agency or body in Canada is required to be
obtained by the Company or any of its Subsidiaries in order
for the Company or any of its Subsidiaries to carry on their
current or contemplated business and operations as described
in the Final Memorandum, except to the extent that the
failure does not have a Material Adverse Effect;
(vi) Neither the execution, delivery and
performance by any of the Company or the Canadian Guarantors
of their respective obligations under the Indenture, this
Agreement and the Registration Rights Agreement, nor the
issue and sale of the Securities or the Exchange Securities,
will conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, (A) any federal statute of Canada or any statute of
the Province of British Columbia, Ontario or Quebec, or any
rule, regulation or order thereunder, or (B) any indenture,
note, loan agreement, mortgage, deed of trust, security
agreement or other written agreement or instrument creating,
evidencing or securing indebtedness of the Company or any
Canadian Guarantor, listed on Exhibit C to this Agreement
and identified to us by an officer of the Company as
material to the Company or any Canadian Guarantor (the
"Material Agreements") except to the extent that such
breach, violation or default would not have a Material
Adverse Effect, or (C) the constituting documents or
by-laws, of any of the Company or the Canadian Guarantors.
Each of the Company and the Canadian Guarantors has full
power and authority to authorize, issue and sell the
Securities and the Exchange Securities as contemplated by
this Agreement;
(vii) This Agreement has been duly authorized,
executed and delivered by each of the Company and the
Canadian Guarantors;
(viii) The Notes and the Guarantees to be issued by
the Canadian Guarantors have been duly authorized,
authenticated, issued and delivered by the Company and the
Canadian Guarantors, respectively; the form of global
certificates representing the Securities has been duly
approved and adopted by each of the Company and the Canadian
Guarantors and complies with applicable laws; the issuance
of the Exchange Notes and Exchange Guarantees to be issued
by the Canadian Guarantors has been duly and validly
authorized by the Company and the Canadian Guarantors,
respectively;
(ix) The statements in the Final Memorandum under
the captions "Canadian Federal Income Tax Considerations" to
the extent they
19
constitute matters of Canadian law, fairly and accurately
describe the principal Canadian federal income tax
consequences under the INCOME TAX ACT (Canada) to a
purchaser described therein;
(x) Neither the Company nor any of the Canadian
Guarantors is in violation of its constituting documents or
by-laws and to the best of such counsel's knowledge after
due enquiry, neither the Company nor any of the Canadian
Guarantors is in default in the performance of any
obligation, agreement, covenant or condition contained in
any Material Agreement, except to the extent that such
default in the performance of any obligation, agreement,
covenant or condition in any Material Agreement does not
have a Material Adverse Effect;
(xi) The statements in the Final Memorandum under
the captions "Business--Regulation," "Description of Certain
Indebtedness," "Risk Factors--U.S. investors in the notes
may have difficulties enforcing certain civil liabilities,"
"Risk Factors--Canadian bankruptcy and insolvency laws may
impair the trustee's ability to enforce remedies under the
notes," "Risk Factors-Applicable statutes allow courts,
under specific circumstances, to void the subsidiary
guarantees of the notes,' "Risk Factors--We are subject to
extensive environmental regulation," "Management," "Our
Shareholder" and "Certain Relationships and Related
Transactions" in the Final Memorandum, insofar as such
statements constitute a summary of the documents referred to
therein, fairly summarize in all material respects such
documents;
(xii) A judgment obtained in the State of New York
or a state or federal court of the Borough of Manhattan in
the City of New York (a "New York Court"), arising out of or
in relation to the obligations of the Company or the
Canadian Guarantors under this Agreement, the Indenture, the
Securities or the Registration Rights Agreement for a sum
certain would be recognized by a court of competent
jurisdiction in the Province of Quebec (a "Quebec Court")
and would be declared enforceable against the Company and
the Canadian Guarantors in the Province of Quebec, unless
(a) the New York Court where the decision was rendered had
no jurisdiction according to the laws of the Province of
Quebec (however, submission by the Company and the Canadian
Guarantors in this Agreement to the non-exclusive
jurisdiction of the New York Court will be sufficient for
that purpose), (b) the decision was subject to ordinary
remedy or was not final or enforceable at the place where it
was rendered, (c) the decision was rendered in contravention
of fundamental principles of procedure, (d) a dispute
between the same parties, based on the same facts and having
the same object has given rise to a decision rendered in the
Province of Quebec, whether it has acquired the authority of
a final judgment or not, or is pending before a Quebec
authority in first instance or has been decided in a third
country and the decision meets the necessary conditions for
recognition in the Province of Quebec, (e) the outcome of
the decision of the New York Court is manifestly
inconsistent with public order as understood in
international relations, (f) the decision enforces
obligations arising from the taxation or other public laws
of a
20
foreign country unless there is reciprocity, (g) such
judgment was obtained contrary to an order made by the
Attorney General of Canada under the FOREIGN
EXTRATERRITORIAL MEASURES ACT (Canada) or by the Competition
Tribunal under the COMPETITION ACT (Canada) in respect of
certain judgments, decrees, orders or processes having
effect on competition in Canada, or (h) the motion for
recognition and declaration for enforcement of such judgment
in the Province of Quebec has not been commenced within the
applicable limitation period. A decision rendered by default
by a New York Court may not be recognized or declared
enforceable by a Quebec Court unless the plaintiff proves
that the act of procedure initiating the proceedings was
duly served on the defaulting party in accordance with the
law of the place where the decision was rendered. The
authority may nonetheless refuse recognition or enforcement
if the defaulting party proves that, owing to the
circumstances, he was unable to learn of the act of
procedure initiating the proceedings or was not given
sufficient time to offer his defense;
(xiii) The laws of the Provinces of Ontario,
Alberta and British Columbia and the laws of Canada
applicable therein permit an action to be brought in a court
of competent jurisdiction in such provinces on any final,
conclusive and enforceable judgment IN PERSONAM of a New
York Court that is subsisting and unsatisfied respecting the
enforcement of the Indenture, the Purchase Agreement, the
Securities or the Registration Rights Agreement that is not
impeachable as void or voidable under New York law for a sum
certain if, in an action commenced in any of the Provinces
of Ontario, Alberta and British Columbia (a) the court
rendering such judgment had jurisdiction over the judgment
debtor as recognized by a court of competent jurisdiction in
the Provinces of Ontario, Alberta or British Columbia (and
submission to the non-exclusive jurisdiction of the New York
Court by the Company and the Canadian Guarantors pursuant to
the Indenture, the Purchase Agreement and the Registration
Rights Agreement will be sufficient for the purpose), (b)
such judgment was not obtained by fraud or in a manner
contrary to natural justice or in contravention of the
fundamental principles of procedure and the decision and
enforcement thereof would not be inconsistent with public
policy, as such term is understood under the laws of the
Provinces of Ontario, Alberta or British Columbia and the
laws of Canada applicable therein, as the case may be, (c)
the enforcement of such judgment does not constitute,
directly or indirectly, the enforcement of foreign revenue,
expropriatory or penal laws, (d) the action to enforce such
judgment is commenced within the applicable limitation
period, (e) such judgment was not obtained in a manner
contrary to an order made by the Attorney General of Canada
under the FOREIGN EXTRATERRITORIAL MEASURES ACT (Canada) or
by the Competition Tribunal under the COMPETITION ACT
(Canada) in respect of certain judgments, decrees, orders or
processes having effect on competition in Canada, and (f) a
dispute between the same parties based on the same subject
matter has not given rise to a decision rendered by a court
of competent jurisdiction in the Provinces of Ontario,
Alberta or British Columbia or been decided by a foreign
authority and the decision meets the necessary
21
conditions for recognition under the laws of the Provinces
of Ontario, Alberta or British Columbia and the laws of
Canada applicable therein;
(xiv) A court of competent jurisdiction in the
Provinces of Quebec, Ontario, British Columbia or Alberta
(the "Relevant Provinces") would uphold the choice of the
laws of the State of New York as the proper law governing
this Agreement, the Indenture, the Securities and the
Registration Rights Agreement, provided that such choice of
law is BONA FIDE (in the sense that it was not made with a
view to avoiding the consequences of the laws of any other
jurisdiction) and provided that the application of such law
is not contrary to public policy, as that term is understood
under the laws of the Relevant Provinces and the laws of
Canada applicable therein. Such counsel is not aware of any
reason why a court of competent jurisdiction in the Relevant
Provinces would find such choice of law not to be BONA FIDE
or to be contrary to public policy, as that term is
understood under the laws of the Relevant Provinces and the
laws of Canada applicable therein;
(xv) Should enforcement of this Agreement, the
Indenture, the Securities and the Registration Rights
Agreement against the Company or any Canadian Guarantor be
sought in the Province of Quebec in accordance with the laws
of the State of New York, a Quebec Court would, subject to
paragraph (xiv) above, recognize the choice of laws of the
State of New York (other than for matters of procedure or
laws in force in the Province of Quebec which are applicable
by reason of their particular object, in respect of which
the laws of the relevant province will then be applied),
and, upon adducing appropriate evidence to establish such
law, the laws of the State of New York would be applied by a
Quebec Court, provided that a Quebec Court will retain
discretion to decline to hear such action if, on application
by a party, (a) another action between the same parties,
based on the same facts and having the same object, is
pending before a foreign authority, provided that the latter
action can result in a decision which may be recognized in
the relevant province, or if such a decision has already
been rendered by a foreign authority, or (b) it considers
that the authorities of another jurisdiction are in a better
position to decide;
(xvi) In any proceedings undertaken in courts of
competent jurisdiction of the Provinces of Ontario, British
Columbia or Alberta to enforce and interpret this Agreement,
the Indenture, the Securities or the Registration Rights
Agreement, such courts will, to the extent pleaded and
proved, apply the laws of New York chosen by the parties
thereto to govern such agreements provided that, (a) such
choice of law is BONA FIDE (in the sense that it was not
made with a view to avoiding the consequences of the law of
any other jurisdiction), (b) the courts will apply the
procedural laws of the Provinces of Ontario, British
Columbia or Alberta and the laws of Canada applicable
therein, as the case may be, (c) the courts may not enforce
an obligation enforceable under New York law where
performance of the obligation would be illegal by the laws
of the place of performance, or which constitutes the direct
or indirect enforcement of foreign revenue, expropriatory or
penal laws, (d) a court may
22
decline to hear an action if it determines, in its
discretion, that it is not the appropriate forum to hear the
action or if concurrent proceedings are being brought
elsewhere, and (e) the application of the provisions of New
York law sought to be applied is not contrary to public
policy, as such term is understood under the laws of
Provinces of Ontario, British Columbia or Alberta;
(xvii) Such counsel is not aware of any reasons,
under the laws of the Relevant Provinces or the federal laws
of Canada applicable therein or with respect to the
application of the laws of the State of New York by a court
of competent jurisdiction in the Relevant Provinces for
avoiding enforcement of judgments of a New York Court with
respect to this Agreement, the Indenture and the Securities
on the basis of public policy or public order, as that term
is understood in international relations and under the laws
of the Relevant Provinces and the laws of Canada applicable
therein;
(xviii) Pursuant to the CURRENCY ACT (Canada) and,
where applicable, the Civil Code of Quebec, a judgment
rendered by a court in any province of Canada may only be
awarded in Canadian currency;
(xix) Each of the Company and the Canadian
Guarantors has the legal capacity to ▇▇▇ and be sued in its
own name under the laws of the Relevant Provinces. Assuming
the choice of law of the State of New York provided for in
this Agreement is effective and enforceable under the laws
of New York, each of the Company and the Canadian Guarantors
has the necessary power to submit, and has irrevocably
submitted, to the non-exclusive jurisdiction of the New York
Court and has validly and irrevocably appointed CT
Corporation System as its authorized agent for the purpose
described in Section 14 hereof; each of the Company and the
Canadian Guarantors has the necessary power to submit, and
has irrevocably submitted, to the non-exclusive jurisdiction
of the New York Court and has validly and irrevocably
appointed CT Corporation System as its authorized agent for
the purposes described in the Indenture, the Securities and
the Registration Rights Agreement under the laws of the
Relevant Provinces; the irrevocable submission of the
Company and the Canadian Guarantors to the non-exclusive
jurisdiction of the New York Court in the Purchase Agreement
will be recognized by the courts of the Relevant Provinces
and such counsel knows of no reason why a court of competent
jurisdiction in the Relevant Provinces would not give effect
to such submission; the irrevocable submission of the
Company and the Canadian Guarantors to the non-exclusive
jurisdiction of the New York Court in the Indenture, the
Securities and the Registration Rights Agreement will be
recognized by the courts of the Relevant Provinces and such
counsel knows of no reason why such courts would not give
effect to such submission;
(xx) To the knowledge of such counsel, there is
no pending or threatened action, suit or proceeding by or
before any court or governmental agency, authority or body
or any arbitrator involving the Company or any of its
Subsidiaries or its or their officers, directors or property
of a character required to be disclosed in a registration
statement on Form F-1 that is not adequately
23
disclosed in the Final Memorandum, except in each case for
such proceedings that, if the subject of an unfavorable
decision, ruling or finding would not singly or in the
aggregate, result in a material adverse change in the
condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiaries,
taken as a whole; and
(xxi) Such counsel has no reason to believe that
the Final Memorandum, or any amendment or supplement
thereto, as of the date hereof and as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; the
descriptions in the Final Memorandum of statutes, legal and
governmental proceedings and contracts and other documents,
insofar as such disclosure describes or summarizes matters
of Canadian law or constitutes conclusions of Canadian law,
are accurate and fairly summarize in all material respects
the matters described therein; it being understood that such
counsel need express no opinion as to the financial
statements or other financial data contained in the Final
Memorandum.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company, the Subsidiary Guarantors and public officials.
References to the Final Memorandum in this paragraph (b) include any amendment
or supplement thereto at the Closing Date.
(c) The Initial Purchasers shall have received from
Weil, Gotshal & ▇▇▇▇▇▇ LLP, U.S. counsel for the Initial Purchasers,
such opinion or opinions, dated the Closing Date and addressed to the
Initial Purchasers, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Rights Agreement, the
Final Memorandum (as amended or supplemented at the Closing Date) and
other related matters as the Initial Purchasers may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(d) The Initial Purchasers shall have received from
Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for the Initial
Purchasers, such opinion or opinions, dated the Closing Date and
addressed to the Initial Purchasers, with respect to the issuance and
sale of the Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum (as amended or supplemented at the
Closing Date) and other related matters as the Initial Purchasers may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Company and each Subsidiary Guarantor shall
have furnished to the Initial Purchasers a certificate of the Company
and each Subsidiary Guarantor, signed by the President and Chief
Executive Officer and the Vice President, Corporate Controller of the
Company and by the principal executive officer and the principal
financial or accounting officer of each Subsidiary Guarantor, dated
the Closing Date, to the effect that the signers of each such
certificate have carefully examined the Final
24
Memorandum, any amendment or supplement to the Final Memorandum and
this Agreement and that the representations and warranties of the
Company in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date, and
the Company and the Subsidiary Guarantors have complied with all the
agreements and satisfied all the conditions on its or their part to be
performed or satisfied hereunder at or prior to the Closing Date.
(f) At the Execution Time and at the Closing Date, the
Company shall have requested and caused KPMG LLP to furnish to the
Initial Purchasers letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Initial Purchasers, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder, that they have performed a review of the unaudited interim
financial information of the Company for the 9-month period ended
September 30, 2002 and as at September 30, 2002, in accordance with
the Statement on Auditing Standards No. 71, and stating in effect
that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated by reference in the Final Memorandum and
reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related rules and regulations adopted
by the Commission thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its Subsidiaries; their limited review in accordance
with the standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the 9-month period ended September 30, 2002,
and as at September 30, 2002, as indicated in their report
included or incorporated in the Final Memorandum; carrying
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) that
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading
of the minutes of the meetings of the shareholder and
directors of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
Subsidiaries as to transactions and events subsequent to
December 31, 2001, nothing came to their attention that
caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the Final
Memorandum do not comply as to form in all
material respects with applicable accounting
requirements and with the related rules and
regulations of the Commission with respect to
financial statements included or incorporated by
reference in current reports on Form 6-K under the
Exchange Act; and said unaudited financial
statements are not in conformity with Canadian
generally accepted accounting principles applied
on a basis substantially consistent with that
25
of the audited financial statements included or
incorporated by reference in the Final Memorandum;
or
(2) with respect to the period subsequent to
December 31, 2002, there were any changes, at a
specified date not more than five days prior to
the date of the letter, in the capital stock or
long-term debt of the Company and its Subsidiaries
or decreases in the shareholder's equity of the
Company or in net assets or working capital of the
Company and its consolidated Subsidiaries as
compared with the amounts shown on the September
30, 2002 consolidated balance sheet included or
incorporated by reference in the Final Memorandum,
or for the period from January 1, 2003 to such
specified date there were any decreases, as
compared with the corresponding period in the
preceding year in net sales, operating income or
net earnings of the Company and its Subsidiaries,
except in all instances for changes or decreases
set forth in such letter, in which case the letter
shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Initial
Purchasers; or
(3) the financial information included in
the Final Memorandum under the headings "Summary
Consolidated Financial and Operating Data,"
"Selected Consolidated Financial and Operating
Data," "Management-Compensation of Directors and
Executive Officers" and the information provided
in accordance with Item 503(d) of Regulation S-K
(Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure
requirements of Regulation S-K or Form 20-F, as
the case may be; or
(iii) they have performed certain other
specified procedures as a result of which they determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and its
Subsidiaries) set forth in the Final Memorandum, including
the information set forth under the captions "Summary
Consolidated Financial and Operating Data," "Selected
Consolidated Financial and Operating Data," "Management's
Discussion and Analysis of Financial Condition and Results
of Operations," "Business" and "Management," agrees with the
accounting records of the Company and its Subsidiaries,
excluding any questions of legal interpretation.
References to the Final Memorandum in this Section 6(f)
include any amendment or supplement thereto at the date of the
applicable letter.
(g) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the Final Memorandum
(exclusive of any amendment or supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (f)(ii)(2) of this Section 6; or (ii)
any change, or
26
any development involving a prospective change, in or affecting the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, so
material and adverse as to make it impractical or inadvisable to
market the Securities as contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(h) The Notes shall have been designated as
Portal-eligible securities in accordance with the rules and
regulations of the NASD, and the Notes shall be eligible for clearance
and settlement through The Depository Trust Company.
(i) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities (including the Securities) by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(j) Concurrently with the closing of the offering,
(i) the Company shall have consummated the New Credit Facility, and
(ii) either (A) the Existing Credit Facility shall be fully repaid and
all obligations of the Company and its Subsidiaries thereunder shall
be satisfied in full and discharged, or (B)(1) the Company will have
irrevocably deposited with the administrative agent under the Existing
Credit Facility thereunder funds in an amount sufficient to repay all
borrowings and obligations under the Existing Credit Facility, (2) the
lenders under such Existing Credit Facility shall have no claims with
respect to outstanding borrowings against the Company other than with
respect to the deposited funds, (3) all covenants thereunder shall
cease to be in effect, (4) the lending commitments thereunder shall be
terminated, and (5) within five Business Days of the Closing Date, the
Existing Credit Facility shall be fully repaid and all borrowings and
obligations of the Company and its Subsidiaries thereunder shall be
satisfied in full and discharged, and (iii) in the case of either (A)
or (B), the Company shall have delivered to the Initial Purchasers
written evidence to such effect from the administrative agent under
the Existing Credit Facility.
(k) On or before the Closing Date, the Company shall
have (i) irrevocably directed ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney to deposit with the
trustee under the indentures (the "Existing Indentures") with respect
to the Company's two series of 9-1/2% Senior Subordinated Notes due
2007 (the "Existing Notes") of such portion of the proceeds from the
sale of the Securities hereunder as is necessary to redeem such
Existing Notes on the earliest date following the Closing Date as is
permitted by the Existing Indentures, (ii) mailed, or cause to be
mailed, a notice of redemption required under the Existing Indentures
to effect the redemption of the Existing Notes pursuant to clause (i)
above and (iii) furnished the opinions of counsel, officers'
certificates and other documents necessary to effect a Covenant
Defeasance (as such term is defined in the Existing Indentures) with
respect to the Existing Notes in accordance with the applicable
27
provisions of the Existing Indentures, such Covenant Defeasance to be
effective upon such irrevocable deposit.
(l) On or before the Closing Date, (i) Communications
Gratte-Ciel Ltee shall have been voluntarily liquidated and wound up
into its parent company in accordance with the provisions of the
Companies Act (Quebec), and (ii) Classified-Extra Limited Partnership
shall have been dissolved by its partners in accordance with the
provisions of the Civil Code (Quebec) , and, in the case of each of
(i) and (ii) the Company shall have delivered a certificate or notice
of the Company to such effect.
(m) The Company and each Subsidiary Guarantor shall
have furnished to the Initial Purchasers a certificate of the Company
and each Subsidiary Guarantor, signed by the Vice President, Corporate
Controller of the Company and the principal financial officer of each
Subsidiary Guarantor to the effect that each of the Company and each
Subsidiary Guarantor is not, and after giving effect to the
transactions contemplated by this Agreement, including the issuance of
the Securities and the application of the proceeds thereof as set
forth in the Final Memorandum, will not be insolvent, as such term is
defined by, and in accordance with the applicable test therefor
pursuant to, the laws under which the Company or such Subsidiary
Guarantor, as applicable, exists.
(n) On or before the Closing Date, Quebecor Media and
the Company shall have entered into the Subordination Agreement in the
form attached as Exhibit E to the Indenture.
(o) Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Initial Purchasers and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Initial Purchasers. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
7. REIMBURSEMENT OF EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or any Subsidiary
Guarantor to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Initial Purchasers, the Company
will reimburse the Initial Purchasers severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ on
demand for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
28
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Subsidiary Guarantors, jointly
and severally, agree to indemnify and hold harmless each Initial
Purchaser, the directors, officers, employees and agents of each
Initial Purchaser and each person who controls any Initial Purchaser
within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act or other federal, state or provincial statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum,
the Final Memorandum (or in any supplement or amendment thereto) or
any information provided by the Company or any Subsidiary Guarantor to
any holder or prospective purchaser of Securities pursuant to Section
5(h), or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by them, as incurred, in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company and the Subsidiary Guarantors will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made in the
Preliminary Memorandum or the Final Memorandum, or in any amendment
thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Initial Purchasers through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability that the Company and the Subsidiary Guarantors may otherwise
have.
(b) Each Initial Purchaser severally and not jointly
agrees to indemnify and hold harmless the Company, the Subsidiary
Guarantors each of its or their directors, each of its or their
officers, and each person who controls the Company or any Subsidiary
Guarantor within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the
Subsidiary Guarantors to each Initial Purchaser, but only with
reference to written information relating to such Initial Purchaser
furnished to the Company and the Subsidiary Guarantors by or on behalf
of such Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ specifically
for inclusion in the Preliminary Memorandum or the Final Memorandum
(or in any amendment or supplement thereto) and agrees to reimburse
each such indemnified party for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or
defending any such loss, claim damage, liability or action. This
indemnity agreement will be in addition to any liability that any
Initial Purchaser may otherwise have. The Company and the Subsidiary
Guarantors acknowledge that the statements set forth in the last
paragraph of the cover page regarding the delivery of the Securities,
and, under the heading "Plan of Distribution," paragraphs 6, 8 and 12
in the Preliminary Memorandum and the Final Memorandum, constitute the
only information furnished in writing by or on
29
behalf of the Initial Purchasers for inclusion in the Preliminary
Memorandum or the Final Memorandum (or in any amendment or supplement
thereto).
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); PROVIDED, HOWEVER, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or
(iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the
Company, the Subsidiary Guarantors and the Initial Purchasers agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Company or any Subsidiary Guarantor and one or more of the Initial
Purchasers may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Subsidiary Guarantors on
30
the one hand and by the Initial Purchasers on the other from the
offering of the Securities; PROVIDED, HOWEVER, that in no case shall
any Initial Purchaser (except as may be provided in any agreement
among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase
discount or commission applicable to the Securities purchased by such
Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company, the Subsidiary Guarantors and the Initial Purchasers shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and
the Subsidiary Guarantors on the one hand and of the Initial
Purchasers on the other in connection with the statements or omissions
that resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company and the Subsidiary
Guarantors shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by the Company, and
benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions in each case set
forth on the cover page of the Final Memorandum. Relative fault shall
be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
provided by the Company or a Subsidiary Guarantor on the one hand or
the Initial Purchasers on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the
Subsidiary Guarantors and the Initial Purchasers agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Initial Purchaser within the
meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Initial Purchaser shall have the
same rights to contribution as such Initial Purchaser, and each person
who controls the Company or a Subsidiary Guarantor within the meaning
of either the Act or the Exchange Act and each officer and director of
the Company and any Subsidiary Guarantor shall have the same rights to
contribution as the Company and the Subsidiary Guarantors, subject in
each case to the applicable terms and conditions of this paragraph
(d).
9. DEFAULT BY AN INITIAL PURCHASER. If any one or more
Initial Purchasers shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the amount of Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Securities set forth opposite the names of all
the remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; PROVIDED,
HOWEVER, that in the event that the aggregate amount of Securities that the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set forth in Schedule I
hereto, the remaining Initial Purchasers shall have
31
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Initial Purchasers do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Initial Purchaser or the Company or the Subsidiary Guarantors.
In the event of a default by any Initial Purchaser as set forth in this Section
9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ shall determine in order that the
required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Initial Purchaser of its liability, if any, to the Company, the
Subsidiary Guarantors or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in securities generally on the New York
Stock Exchange or the Toronto Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on either of such
Exchanges; (ii) a banking moratorium shall have been declared either by
Canadian, United States or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by Canada or the
United States of a national emergency or war or other calamity or a crisis the
effect of which on the financial markets is such as to make it, in the judgment
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and other
statements of the Company, the Subsidiary Guarantors or its or their officers
and of the Initial Purchasers set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Initial Purchasers or the Company, the Subsidiary Guarantors or
any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: General Counsel,
or, if sent to the Company or any Subsidiary Guarantor, will be mailed,
delivered or telefaxed to (a) Sun Media Corporation, Vice President, Corporate
Controller (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, attention of the Vice President,
Corporate Controller and (b) Quebecor Media Inc., Vice President and Treasurer
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, attention of Vice President and Treasurer.
13. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees,
32
agents and controlling persons referred to in Section 8 hereof, and, except as
expressly set forth in Section 5(h) hereof, no other person will have any right
or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
The Company and each Subsidiary Guarantor hereby submits to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company
and each Subsidiary Guarantor irrevocably appoints CT Corporation System, as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to the Company or
any Subsidiary Guarantor, by the person serving the same to the address provided
in Section 12, shall be deemed in every respect effective service of process
upon the Company or such Subsidiary Guarantor in any such suit or proceeding.
The Company and the Subsidiary Guarantors further agree to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for a period of seven years from the date of this
Agreement.
The obligation of the Company and the Subsidiary Guarantors in
respect of any sum due to any Initial Purchaser, notwithstanding any judgment in
a currency other than United States dollars, shall not be discharged until the
first Business Day following receipt by such Initial Purchaser of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Initial Purchaser may in accordance with normal banking procedures
purchase United States dollars with such other currency; if the United States
dollars so purchased are less than the sum originally due to such Initial
Purchaser hereunder, the Company and the Subsidiary Guarantors agree, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Initial Purchaser against such loss. If the United States dollars so purchased
are greater than the sum originally due to such Initial Purchaser hereunder,
such Initial Purchaser agrees to pay to the Company and the Subsidiary
Guarantors an amount equal to the excess of the dollars so purchased over the
sum originally due to such Initial Purchaser hereunder.
15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. DEFINITIONS. The terms that follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b)
of Regulation D.
33
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
preferred stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean, the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Person" shall mean any individual, corporation, company
(including any limited liability company), association, partnership, joint
venture, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
"Subsidiary" shall mean in respect of any Person, any
corporation, company (including any limited liability company), association,
partnership, joint venture, trust, unincorporated organization or other business
entity of which a majority of the total voting power of all classes of Capital
Stock then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof, is at the time owned or controlled, directly or indirectly, by:
(a) such Person,
(b) such Person and one or more Subsidiaries of such Person,
or
(c) one or more Subsidiaries of such Person.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
34
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
SUN MEDIA CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇ PUBLISHERS LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
SUN MEDIA (TORONTO) CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
SMC NOMINEECO INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
TORONTO SUN INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
TS PRINTING, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
FLORIDA SUN PUBLICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
3351611 CANADA INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
3661458 CANADA INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
RBC DOMINION SECURITIES CORPORATION
TD SECURITIES (USA) INC.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
CREDIT SUISSE FIRST BOSTON CORPORATION
SCOTIA CAPITAL (USA) INC.
CIBC WORLD MARKETS CORP.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
SCHEDULE I
Principal Amount of
INITIAL PURCHASERS SECURITIES TO BE PURCHASED
------------------ --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc............................................... US$82,000,000
RBC Dominion Securities Corporation.................................... 30,750,000
TD Securities (USA) Inc................................................ 23,062,500
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp................................................. 23,062,500
Credit Suisse First Boston Corporation................................. 15,375,000
Scotia Capital (USA) Inc............................................... 15,375,000
CIBC World Markets Corp................................................ 15,375,000
--------------------------
Total......................................................... US$ 205,000,000
I-1
Exhibit A
SELLING RESTRICTIONS FOR OFFERS AND
SALES OUTSIDE THE UNITED STATES
(1)(a) Each Initial Purchaser acknowledges that the Securities
have not been and will not be registered under the Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Act or pursuant to an
exemption from the registration requirements of the Act. Each Initial Purchaser
represents and agrees that, except as otherwise permitted by Section 4(a) of the
Agreement to which this is an exhibit, it has offered and sold the Securities,
and will offer and sell the Securities, (i) as part of its distribution at any
time; and (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 903 of
Regulation S or Rule 144A under the Act. Accordingly, each Initial Purchaser
represents and agrees that neither it, nor any of its Affiliates nor any person
acting on its or their behalf has engaged or will engage in any directed selling
efforts with respect to the Securities, and that it and they have complied and
will comply with the offering restrictions requirement of Regulation S. Each
Initial Purchaser agrees that, at or prior to the confirmation of sale of
Securities (other than a sale of Securities pursuant to Section 4(a) of the
Agreement to which this is an exhibit), it shall have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the distribution compliance period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and February 7,
2003, except in either case in accordance with Regulation S or
Rule 144A under the Act. Terms used above have the meanings
given to them by Regulation S under the Act."
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Securities, except with its
Affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it
has not offered or sold and prior to the expiry of the period of six months from
the closing of the offering of the Securities, will not offer or sell any
Securities to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances that have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services and Markets
A-1
Act 2000 (the "FSMA") with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) received by it in
connection with the issue or sale of any Securities in circumstances in which
section 21(1) of the FSMA would not apply to the Company.
(3) Each of the Initial Purchasers severally represents and
warrants and agrees that it will not offer or sell the Securities in any
province or territory of Canada except as contemplated by the Canadian Offering
Memorandum of even date herewith.
A-2
Exhibit B
MATERIAL SUBSIDIARIES
SUBSIDIARY NAME JURISDICTION OF INCORPORATION
--------------- -----------------------------
▇▇▇▇▇ Publishers Limited Canada
Sun Media (Toronto) Corporation Ontario
B-1
Exhibit C
MATERIAL AGREEMENTS
1. Management Services Agreement dated January 17, 2003 between the
Company and Quebecor Media.
2. Indenture relating to $150,000,000 9 1/2% Senior Subordinated Notes due
2007, dated as of February 19, 1997, between the Company and United
States Trust Company of New York, together with the First Supplemental
Indenture, dated as of December 15, 1997, the Second Supplemental
Indenture, dated as of December 31, 1998, and the Third Supplemental
Indenture, dated as of February 28, 1999 (the "First Indenture").
3. Indenture relating to $90,000,000 9 1/2% Senior Subordinated Notes due
2007, dated as of May 20, 1997, between the Company and United States
Trust Company of New York, together with the First Supplemental
Indenture, dated as of December 15, 1997, the Second Supplemental
Indenture, dated as of December 31, 1998, and the Third Supplemental
Indenture, dated as of February 28, 1999 (the "Second Indenture").
4. Guarantee dated December 31, 1998 executed by Sun Media (Toronto)
Corporation with respect to the First Indenture.
5. Guarantee dated December 31, 1998 executed by Sun Media (Toronto)
Corporation with respect to the Second Indenture.
6. Guarantee dated December 31, 1998 executed by SMC Nomineeco Inc. with
respect to the First Indenture.
7. Guarantee dated December 31, 1998 executed by SMC Nomineeco Inc. with
respect to the Second Indenture.
8. Amended and Restated Credit Agreement dated as of April 1, 2000, as
amended, between the Company, as borrower, certain financial
institutions, Royal Bank of Canada, as Administrative Agent and Credit
Suisse First Boston Canada, as Documentation Agent.
9. Newsprint Purchase Contract dated January 1, 2000 between the Company
and Imprimeries Quebecor Inc., as purchasers, and Les Produits
Forestiers ▇▇▇▇▇▇▇ Inc., as vendor.
10. $1,600,000,000 12.15% convertible obligation dated July 9, 2001 between
the Company and Quebecor Media which is due on July 14, 2007.
11. $500,000,000 12.25% convertible obligation dated July 9, 2001 between
▇▇▇▇▇ Publishers Limited and the Company which is due on July 14, 2007.
12. $350,000,000 12.15% convertible obligation dated November 28, 2002
between the Company and Quebecor Media which is due on November 28,
2008.
C-1
13. $350,000,000 12.25% convertible obligation dated November 28, 2002
between Sun Media (Toronto) Corporation and the Company which is due on
November 28, 2008.
14. Sales and Service Agreement dated October 10, 2002 between Le Journal
de Montreal and Printing Press Services International Ltd.
15. Partnership Agreement for Dynamic Press Group dated August 5, 1996
between The News Group, a division of ▇▇▇ ▇▇▇▇▇▇▇▇ International Ltd.,
and Groupe de Presse Quebecor Inc.
16. Partnership Agreement for CP24 dated March 1, 2000 between CHUM
Limited, 1401735 Ontario Inc. and 3661458 Canada Inc.
17. Shareholders' Agreement for Le Courier du Sud (1998) Inc. dated June
30, 1998 between La Compagnie D'Impriemiere et de Publication de la
Rive-Sud Limited, Les Placements ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, Communications Quebecor Inc. and Le Courier du Sud (1998) Inc.
18. Lease Agreement dated June 1, 2002 between HMR Properties Inc., as
lessor, and the Company, as lessee, for the premises located at ▇▇▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
19. Lease Extension Agreement dated October 1, 1996 between Camden Partners
1 Inc., as sub-landlord, and The Toronto Sun Publishing Corporation, as
sub-tenant, for ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
C-2