EXHIBIT 4.6
GUARANTEE dated as of February 7, 2003.
BY: XXXXX PUBLISHERS LIMITED, a company continued under
the laws of British Columbia, having its head office
at 000 Xxxx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0;
AND BY: SUN MEDIA (TORONTO) CORPORATION, a company continued
under the laws of British Columbia, having its head
office at 000 Xxxx Xxxxx, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0;
AND BY: SMC NOMINEECO INC., a company incorporated under the
laws of Ontario, having its head office at 000 Xxxx
Xx. Xxxx, Xxxxxxx, XX, X0X 0X0;
AND BY: 3661458 CANADA INC., a company incorporated under the
federal laws of Canada, having its head office at 000
Xxxx Xx. Xxxx, Xxxxxxx, XX, X0X 0X0;
AND BY: TORONTO SUN INTERNATIONAL, INC., a corporation formed
under the laws of the State of Delaware, having its
head office at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx, 0000;
AND BY: T.S. PRINTING, INC., a corporation formed under the
laws of the State of Delaware, having its head office
at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 0000;
AND BY: FLORIDA SUN PUBLICATIONS, INC., a corporation formed
under the laws of the State of Delaware, having its
head office at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx, 0000;
AND BY: 3351611 CANADA INC., a company incorporated under the
federal laws of Canada, having its head office at 000
Xxxxxx Xxxxx Xxxx, Xxxxxxxx, XX, X0X 0X0;
(each a "GUARANTOR" and collectively the
"GUARANTORS")
IN FAVOUR OF: BANK OF AMERICA, N.A., a duly constituted bank,
having a place of business at 000 Xxxxx Xxxxxx,
00xx floor, in the City of Xxx Xxxxxxx, Xxxxxxxxxx,
00000, and at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx, X0X 0X0, acting as Administrative
Agent for the Lenders as defined in the Credit
Agreement hereinafter described (the "AGENT")
WHEREAS pursuant to a credit agreement dated as of February 7, 2003 among Sun
Media Corporation, as borrower (the "BORROWER"), the financial institutions
named on the signature pages thereto, as Lenders, and the Agent (as same may
subsequently be amended, amended and restated, modified, supplemented or
replaced from time to time, the "CREDIT AGREEMENT"), it is a condition precedent
to the obligation of each Lender to make its initial Accommodation to the
Borrower thereunder that the Guarantors shall have provided the Agent with a
guarantee of all of the obligations of the Borrower under the Credit Documents
(as such term is defined in the Credit Agreement);
WHEREAS each Guarantor will derive substantial benefit from the Accommodations
made available to the Borrower under the Credit Agreement;
AND WHEREAS pursuant to subsection 10.04 of the Credit Agreement, the Agent has
been granted the authority to hold any and all Security under the Credit
Agreement for the rateable benefit of the Lenders;
NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. GUARANTEE
1.1 GUARANTEE
For valuable consideration, each of the Guarantors hereby irrevocably and
unconditionally jointly and severally guarantees to the Agent on its own behalf
and on behalf of each Lender forthwith after demand therefor made in accordance
with the provisions of the Credit Agreement, due and punctual payment of all
present and future debts and liabilities, and the performance of all obligations
of every nature, absolute or contingent, direct, indirect or otherwise, in any
currency, now or at any time and from time to time hereafter due or owing by the
Borrower to the Agent and each Lender arising under or in connection with the
Credit Documents (such obligations as amended, amended and restated, modified,
supplemented or renewed, collectively, the "SECURED OBLIGATIONS"). Each of the
Guarantors expressly renounces to the benefits of division and discussion. The
obligation undertaken by each Guarantor pursuant to this Agreement is
hereinafter referred to as the "GUARANTEE".
1.2 GUARANTEE ABSOLUTE
The liability of each of the Guarantors hereunder shall be absolute and
unconditional and shall not be affected by:
(a) any lack of validity or enforceability of any of the Secured
Obligations; any change in the time, manner or place of payment of the
Secured Obligations; or the failure on the part of the
Borrower or any of the other Guarantors within the meaning of the
Credit Agreement (the "OTHER GUARANTORS") to carry out any of the
Secured Obligations;
(b) any impossibility, impracticability, frustration of purpose,
illegality, FORCE MAJEURE or act of government;
(c) the bankruptcy, winding-up, liquidation, dissolution or insolvency of
the Borrower or any of the Other Guarantors, the Agent or the Lenders
or any of them or any party to any agreement to which the Agent, the
Lenders, the Borrower or the Other Guarantors or any of them is a
party;
(d) any lack or limitation of power, incapacity or disability on the part
of any of the Borrower or the Other Guarantors or of the directors,
partners or agents thereof or any other irregularity, defect or
informality on the part of any of the Borrower or the Other Guarantors
in its obligations to the Agent or the Lenders or any of them;
(e) any change or changes in the name, corporate existence or structure of
any of the Borrower or Guarantors (whether by way of reconstruction,
consolidation, amalgamation, merger, transfer, sale, lease or
otherwise); or
(f) any other law, regulation or other circumstance which might otherwise
constitute a defence available to, or a discharge of, any of the
Borrower or the Other Guarantors in respect of any or all of the
Secured Obligations.
1.3 RECOVERY AS PRINCIPAL DEBTOR
Any amount which may not be recoverable from a Guarantor by the Agent on the
basis of a guarantee shall be recoverable by the Agent from such Guarantor as
principal debtor in respect thereof and shall be paid to the Agent for the
account of the Lenders forthwith after demand therefor.
1.4 LIMITATION ON AMOUNT GUARANTEED
Anything contained in this Guarantee to the contrary notwithstanding, if any
Fraudulent Transfer Law (as hereinafter defined) is determined by a court of
competent jurisdiction to be applicable to the obligations of any Guarantor
under this Guarantee, such obligations of such Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Bankruptcy
Code, any applicable provisions of comparable law of any state of the United
States of America, or any provisions of any law of Canada, any of its provinces
or any other relevant jurisdiction, including any laws which may be applicable
in any proceeding of the type referred to in Section 9.01(k) of the Credit
Agreement (collectively, the "FRAUDULENT TRANSFER LAWS") in each case after
giving effect to all other liabilities of such Guarantor, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Guarantor (1) in respect of
intercompany indebtedness to the Borrower or other Affiliates of the Borrower to
the extent that such indebtedness would be discharged in an amount equal to the
amount paid by such Guarantor hereunder and (2)
under any guaranty of Debt the repayment of which is subordinated to the amounts
owed to the Agent and the other Lenders, which guarantee contains a limitation
as to maximum amount similar to that set forth in this Section 1.4, pursuant to
which the liability of such Guarantor hereunder is included in the liabilities
taken into account in determining such maximum amount) and after giving effect
as assets to the value (as determined under the applicable provisions of the
Fraudulent Transfer Laws) of any rights to subrogation, reimbursement,
indemnification or contribution of such Guarantor pursuant to applicable law or
pursuant to the terms of any agreement (including any such right of contribution
under Section 1.5).
1.5 CONTRIBUTION BY GUARANTORS
The Guarantors under this Guarantee together desire to allocate among themselves
(collectively, the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner,
their obligations arising under this Guarantee. Accordingly, in the event any
payment or distribution is made on any date by any Guarantor under this
Guarantee (a "FUNDING GUARANTOR") that exceeds its Fair Share (as defined below)
as of such date, that Funding Guarantor shall be entitled to a contribution from
each of the other Contributing Guarantors in the amount of such other
Contributing Guarantor's Fair Share Shortfall (as defined below) as of such
date, with the result that all such contributions will cause each Contributing
Guarantor's Aggregate Payments (as defined below) to equal its Fair Share as of
such date. "FAIR SHARE" means, with respect to a Contributing Guarantor as of
any date of determination, an amount equal to (i) the ratio of (1) the Adjusted
Maximum Amount (as defined below) with respect to such Contributing Guarantor to
(2) the aggregate of the Adjusted Maximum Amounts with respect to all
Contributing Guarantors MULTIPLIED BY (ii) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this
Guarantee in respect of the obligations guarantied. "FAIR SHARE SHORTFALL"
means, with respect to a Contributing Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Contributing Guarantor over the
Aggregate Payments of such Contributing Guarantor. "ADJUSTED MAXIMUM AMOUNT"
means, with respect to a Contributing Guarantor as of any date of determination,
the maximum aggregate amount of the obligations of such Contributing Guarantor
under this Guarantee, determined as of such date, in the case of any Guarantor,
in accordance with Section 1.4; PROVIDED that, solely for purposes of
calculating the "ADJUSTED MAXIMUM AMOUNT" with respect to any Contributing
Guarantor for purposes of this Section 1.5, any assets or liabilities of such
Contributing Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing
Guarantor. "AGGREGATE PAYMENTS" means, with respect to a Contributing Guarantor
as of any date of determination, an amount equal to (i) the aggregate amount of
all payments and distributions made on or before such date by such Contributing
Guarantor in respect of this Guarantee (including in respect of this Section
1.5) MINUS (ii) the aggregate amount of all payments received on or before such
date by such Contributing Guarantor from the other Contributing Guarantors as
contributions under this Section 1.5. The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among
Contributing Guarantors of their obligations as set forth in this Section 1.5
shall not be construed in any way to limit the joint and several nature of the
liability of any Contributing Guarantor hereunder.
2. DEALINGS WITH CREDIT PARTIES AND OTHERS
2.1 NO RELEASE
The liability of each of the Guarantors hereunder shall not be released,
discharged, limited or in any way affected by anything done, suffered or
permitted by the Agent or the Lenders or any of them in connection with any
duties or liabilities of the Borrower or the Other Guarantors or any of them to
the Agent or the Lenders or any of them, or any security therefor including any
loss of or in respect of any security received by the Agent or the Lenders or
any of them from the Borrower, the Other Guarantors or any other Person. Without
limiting the generality of the foregoing and without releasing, discharging,
limiting or otherwise affecting in whole or in part each Guarantor's liability
hereunder, without obtaining the consent of or giving notice to the Guarantors,
the Agent and the Lenders may:
(a) grant time, renewals, extensions, indulgences, releases and discharges
to the Borrower or the Other Guarantors;
(b) take or abstain from taking or enforcing securities or collateral from
the Borrower or the Other Guarantors or from perfecting securities or
collateral of the Borrower or the Other Guarantors;
(c) accept compromises from the Borrower or the Other Guarantors;
(d) subject to the applicable provisions of the Credit Agreement, apply all
money at any time owing from the Borrower or the Other Guarantors or
from any collateral security to such part of the Secured Obligations as
the Agent may see fit or change any such application in whole or in
part from time to time as the Agent may see fit; for greater certainty,
the Agent or any of the Lenders may at any time and from time to time,
to the fullest extent permitted by law, set-off and apply any and all
deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Agent or
any of the Lenders to or for the credit of a Guarantor against any and
all of the liabilities of the Borrower, whether or not the Agent shall
have made any demand under the Guarantee. The Agent or the Lenders, as
the case may be, shall promptly notify such Guarantor after any such
set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The
rights of the Agent and the Lenders under this paragraph are in
addition to other rights and remedies (including without limitation,
other rights of set-off) that the Agent and the Lenders may have; and
(e) otherwise deal with the all other Persons and securities as the Agent
and the Lenders may see fit, acting reasonably.
2.2 NO EXHAUSTION OF REMEDIES
The Agent and the Lenders shall not be bound or obligated to exhaust their
recourse against the Borrower, the Other Guarantors, any other Person or any
securities or collateral they may hold or
take any other action before being entitled to demand payment from any of the
Guarantors hereunder.
2.3 ACCOUNTS BINDING UPON THE GUARANTORS
Any account settled or stated in writing by or between the Agent and the
Borrower shall be accepted by the Guarantors as conclusive evidence, absent
manifest mathematical error, that the balance or amount thereby appearing due by
the Borrower to the Agent or the Lenders is so due.
2.4 NO SET-OFF
In any claim by the Agent and the Lenders against a Guarantor, the Guarantor may
not assert any set-off or counterclaim that the Guarantor or any of the Other
Guarantors may have against the Agent and the Lenders or any of them. In
particular, any loss of or in respect of any securities received by the Agent
and the Lenders or any of them from the Borrower or any other Person, and the
failure to perfect any mortgage, prior claim or security interest of any nature
whatsoever, whether occasioned through the fault or negligence of the Agent and
the Lenders or any of them or otherwise, shall not discharge, limit or lessen
the liability of the Guarantors under this agreement.
3. CONTINUING GUARANTEE
The Guarantee shall be a continuing guarantee of the Secured Obligations and
shall apply to and secure all Secured Obligations and shall not be considered as
wholly or partially satisfied by the payment or liquidation at any time of any
sum of money for the time being due or remaining unpaid to the Agent and the
Lenders or any of them. The Guarantee shall continue to be effective even if at
any time any payment of any of the Secured Obligations is rendered unenforceable
or is rescinded or must otherwise be returned by the Agent and the Lenders or
any of them upon the occurrence of any action or event including the insolvency,
bankruptcy or reorganization of the Borrower or any Other Guarantor or
otherwise, all as though such payment had not been made. Any payments so
rescinded or recovered from the Agent and the Lenders or any of them, whether as
a preference, fraudulent transfer or otherwise, shall constitute Secured
Obligations for all purposes hereunder.
4. RIGHT TO PAYMENTS
Should the Agent and the Lenders or any of them receive from a Guarantor one or
more payments on account of its liability under the Guarantee, such Guarantor
shall not be entitled to claim repayment against the Borrower or the Other
Guarantors until the Agent's and the Lenders' claims against the Borrower have
been paid in full. In the event of the liquidation, winding-up or bankruptcy of
the Borrower or any other Guarantor (whether voluntary or compulsory); or a bulk
sale of any of its assets within the meaning of any applicable legislation of
any province of Canada, under the Uniform Commercial Code of any state of the
United States of America or under any other applicable Laws; or should the
Borrower or any other Guarantor make any proposal, composition or scheme of
arrangement with its creditors; then, in any of such events the Agent and the
Lenders shall have the right to rank for their full claim and receive all
dividends or other payments in respect thereof until their claim has been paid
in full, and the Guarantors shall remain liable up to the amount guaranteed for
any balance which may be owing to the Agent and the Lenders by the
Borrower; and in the event of the valuation by the Agent and the Lenders or any
of them of any security held in respect of the debts of the Borrower, or of the
retention by the Agent and the Lenders or any of them of such security, such
valuation and/or retention shall not, as between the Agent and the Lenders and
the Guarantors, be considered as a purchase of such security, or as payment or
satisfaction or reduction of the liabilities of the Borrower to the Agent and
the Lenders, or any part thereof.
5. TAXES
All payments to be made hereunder by the Guarantors shall be made free and clear
of deduction for any present or future Taxes (as such term is defined in the
Credit Agreement, and hereinafter "TAXES"). The Guarantors shall indemnify the
Agent and the Lenders for any Taxes required to be withheld from any payment
hereunder (and shall take the other actions) to the same extent and in the same
manner as the Borrower is required to indemnify the Agent and the Lenders for
any Taxes required to be withheld from payments under the Credit Agreement (and
take certain other actions), in each case, as described in Section 12.07 of the
Credit Agreement, the provisions of which are hereby incorporated herein by
reference, modified as appropriate to be applicable to each Guarantor.
6. POSTPONEMENT OF CLAIMS AND SUBROGATION RIGHTS
To the fullest extent permitted by law, each of the Guarantors hereby
irrevocably postpones any claim or other rights that it may now or hereafter
acquire against the Borrower or the Other Guarantors, or any of them, that arise
from the existence, payment, performance or enforcement of the Guarantors'
obligations under this agreement including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy against the Borrower, the Other
Guarantors, or any collateral securing any obligation of the Borrower or the
Other Guarantors, or any of them, whether or not such claim, remedy or right
arises under contract, including, without limitation, the right to take or
receive from the Borrower or the Other Guarantors or any of them, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, until such time
as the Secured Obligations and all amounts payable under this agreement have
been paid in full to the Agent and the Lenders in cash. If any amount shall be
paid to a Guarantor in violation of the preceding sentence at any time prior to
the full cash payment of the Secured Obligations and all other amounts payable
under this agreement, such amount shall be held by such Guarantor in trust for
the benefit of the Agent and the Lenders and shall forthwith be paid to the
Agent and the Lenders to be credited and applied to the Secured Obligations,
whether matured or unmatured, and all other amounts payable under this
agreement.
Upon the occurrence of Event of Default (as such term is defined in the Credit
Agreement), all indebtedness, present and future, of the Borrower or the Other
Guarantors to the Guarantors shall forthwith be assigned to the Agent and
Lenders and postponed and subordinated to the Secured Obligations without any
further act or formality, and all moneys received by the Guarantors in respect
thereof shall be received in trust for the Agent and Lenders and forthwith upon
receipt shall be paid over to the Agent, the whole without in any way limiting
or lessening the liability of the
Guarantors under this Guarantee. This postponement and subordination is
independent of the other provisions of this agreement and shall survive the
extinction of the other provisions of this Guarantee
7. GENERAL
7.1 REPRESENTATIONS AND WARRANTIES
Each of the Guarantors reiterates the representations and warranties made in the
Credit Agreement to the Lenders on its behalf by the Borrower (which
representations and warranties are hereby deemed to have been made by such
Guarantor and to be and remain in effect at all times).
7.2 COVENANTS
Each of the Guarantors reiterates the covenants made in the Credit Agreement on
its behalf by the Borrower (which are hereby deemed to have been made by such
Guarantor).
7.3 PAYMENT OF SECURED OBLIGATIONS, FEES AND COSTS
Subject to any limitations contained in the Credit Agreement, each of the
Guarantors agrees to pay, within two Business Days of demand therefor, any
amounts payable hereunder, including without limitation all out-of-pocket
expenses (including the reasonable fees and expenses of the Agent's counsel) in
any way relating to the enforcement or protection of the rights of the Agent and
the Lenders or any of them hereunder. The liability of each of the Guarantors
shall bear interest from the date of such demand at the rate or rates of
interest then applicable to the Secured Obligations under and calculated in the
manner provided in the Credit Agreement (including any adjustment to give effect
to the provisions of the Interest Act (Canada)).
7.4 CURRENCY
Each payment to be made under the Guarantee will be made in the currency in
which the relevant Secured Obligation is payable (the "SPECIFIED CURRENCY"). To
the fullest extent permitted by applicable law, any obligation of a Guarantor to
make payments under the Guarantee in a Specified Currency will not be discharged
or satisfied by any tender in any currency other than the Specified Currency.
To the fullest extent permitted by applicable law, if any judgment or order
expressed in a currency other than the Specified Currency is rendered (i) for
any payment of any amount owing in respect of the Guarantee, or (ii) in respect
of a judgment or order of another court for the payment of any amount described
in (i) above, the Agent, after recovery in full of the aggregate amount to which
it is entitled pursuant to the judgment or order, shall be entitled to receive
immediately from the Guarantors the amount of any shortfall of the Specified
Currency received by the Agent as a consequence of sums paid in such other
currency, and will refund promptly to the Guarantors any excess of the Specified
Currency received by the Agent as a consequence of sums paid in such other
currency if such shortfall or such excess arises or results from any variation
between (i) the rate of exchange at which the Specified Currency is converted
into the currency of the judgment or order for the purposes of such judgment or
order and (ii) the rate of exchange at which the Agent is able,
acting in a reasonable manner and in good faith, in converting the currency
received into the Specified Currency, to purchase the Specified Currency with
the amount of the currency of the judgment or order actually received by the
Agent. The term "rate of exchange" includes, without limitation, any premiums
and costs of exchange payable in connection with the purchase of or conversion
into the Specified Currency.
To the fullest extent permitted by applicable law, the indemnities in this
Section 7.4 constitute separate and independent obligations of the Guarantors
from the other obligations in this agreement, will be enforceable as separate
and independent causes of action, will apply notwithstanding any indulgence
granted by the Agent, the Lenders or any of them and will not be affected by
judgment being obtained or claim or proof being made for any other sums due in
respect of this agreement.
For the purposes of this Section 7.4, it will be sufficient for a party to
demonstrate that it would have suffered a loss had an actual exchange or
purchase been made.
7.5 DISCHARGE
The Guarantors will not be discharged from any of their obligations hereunder
except by a release or discharge signed in writing by the Agent, duly authorized
by the Lenders in accordance with the provisions of the Credit Agreement.
7.6 NOTICE
Any notice permitted or required to be given hereunder shall be given, in the
case of the Agent, in accordance with the relevant provisions of the Credit
Agreement and, in the case of each Guarantor, to its address indicated above and
otherwise in accordance with the relevant provisions of the Credit Agreement.
7.7 ENTIRE AGREEMENT
Save as provided in Section 7.12, this agreement constitutes the entire
agreement between each of the Guarantors, the Agent and the Lenders with respect
to the subject matter hereof and cancels and supersedes any prior understandings
and agreements between such parties with respect thereto. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory, between the parties except as
expressly set forth herein. The Agent and the Lenders shall not be bound by any
representations or promises made by the Borrower, the Other Guarantors or any of
them to the Guarantors or any of them, and possession of this agreement by the
Agent shall be conclusive evidence against each Guarantor that this agreement
was not delivered in escrow or pursuant to any agreement that it should not be
effective until any condition precedent or subsequent has been complied with.
This agreement shall be operative and binding notwithstanding the non-execution
thereof by any proposed signatory.
7.8 AMENDMENTS AND WAIVERS
No amendment to this agreement will be valid or binding unless set forth in
writing and duly executed by each Guarantor and the Agent, duly authorized by
the Lenders in accordance with the
provisions of the Credit Agreement. No waiver of any breach of any provision of
this agreement will be effective or binding unless made in writing and signed by
the Agent, duly authorized by the Lenders in accordance with the provisions of
the Credit Agreement and, unless otherwise provided in the written waiver, will
be limited to the specific breach waived.
7.9 SEVERABILITY
Each provision of this agreement is separate and distinct from the others, such
that any decision of a court or tribunal to the effect that any provision hereof
is null or unenforceable shall in no way affect the validity of the other
provisions hereof or the enforceability thereof. Any provision of this agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable Laws, each of the Guarantors hereby waives any provision
of any Laws which renders any provision hereof prohibited or unenforceable in
any respect.
7.10 INTERPRETATION
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Credit Agreement. The words "this agreement", "hereof", "hereto",
etc. mean the present instrument executed by one or more Guarantors.
7.11 ADDITIONAL RIGHTS AND SURVIVAL
This agreement is in addition and supplemental to all other guarantees and/or
postponement agreements (whether or not in the same form as this instrument)
held or which may hereafter be held by the Agent, the Lenders or any of them.
All covenants, agreements, representations and warranties made herein shall
survive the execution and delivery of the Guarantee and shall continue in full
force and effect so long as any Secured Obligations are outstanding.
7.12 GOVERNING LAW AND ATTORNMENT CLAUSE
This agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein and the
parties hereby attorn to the non-exclusive jurisdiction of the courts of the
Province of Ontario and to any courts from which an appeal of the decisions of
such court may be taken.
7.13 BENEFIT OF AGREEMENT
This agreement shall extend to and enure to the benefit of the successors and
assigns of the Agent and each of the Lenders and shall be binding upon each of
the Guarantors and their respective successors. Each Guarantor irrevocably
waives any objection, including any objection to the laying of venue or based on
the grounds of FORUM NON CONVENIENS, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of this
agreement. Each
Guarantor waives personal service of any summons, complaint or
other process, which may be made by any other means permitted by the laws of the
Province of Ontario and the laws of Canada, as applicable.
7.14 AUTHORITY OF AGENT
Each of the Guarantors acknowledges and agrees that the Agent has full authority
to act on behalf of the Lenders in all matters relating to this agreement, and
that any Person dealing with the Agent or the Lenders or any of them in respect
of any such matter need not inquire further as to the authority of the Agent to
act on behalf of the Lenders.
7.15 EXECUTED COPY
Each of the Guarantors acknowledges receipt of a fully executed copy of this
agreement.
[signature page follows]
IN WITNESS WHEREOF the Guarantors have executed this agreement on the date and
at the place first hereinabove mentioned.
XXXXX PUBLISHERS LIMITED SUN MEDIA (TORONTO) CORPORATION
Per: /s/ Xxxxxxxx Xxxxxxxx Per: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- ---------------------------
SMC NOMINEECO INC. 3661458 CANADA INC.
Per: /s/ Xxxxxxxx Xxxxxxxx Per: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- ---------------------------
TORONTO SUN INTERNATIONAL, INC. T.S. PRINTING, INC.
Per: /s/ Xxxxxxxx Xxxxxxxx Per: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- ---------------------------
FLORIDA SUN PUBLICATIONS, INC. 3351611 CANADA INC.
Per: /s/ Xxxxxxxx Xxxxxxxx Per: /s/ Xxxxxxxx Xxxxxxxx
---------------------------- ---------------------------
ACCEPTED AND AGREED as of this 7th day of February, 2003:
BANK OF AMERICA, N.A.,
in its aforementioned capacities
Per: /s/ [illegible]
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