Exhibit 15
MASTER SECURITIES PLEDGE AGREEMENT
This is a securities pledge agreement made as of August 10, 1998 by each of
the Pledgors to Canadian Imperial Bank of Commerce, as Lender.
For valuable consideration, each of the Pledgors severally (and not
jointly, or jointly and severally) agrees with the Lender as follows:
1. Definitions. Capitalized terms not otherwise defined in this Agreement
have the meanings specified in the Credit Agreement, and the following term
have the following meanings:
"Borrower" shall mean Xxxxxxxxx Inc., and shall include its
successors.
"Charge" shall mean any mortgage, charge, pledge, hypothecation, lien
(statutory or otherwise), assignment, finance lease, the retention
agreement or arrangement, security interest or other encumbrance or
adverse claim of any nature, or any other security agreement or
arrangement creating in favour of any creditor a right in respect of a
particular property that is prior to the right of any other creditor
in respect of such property.
"Credit Agreement" shall mean the credit agreement made as of August
10, 1998, among Xxxxxxxxx Inc., as borrower, and Canadian Imperial
Bank of Commerce, as lender, as such credit agreement may be
supplemented, amended, restated, consolidated or replaced from time to
time.
"Credit Documents" shall mean the Credit Agreement, the Notes (as
defined in the Credit Agreement), the Security (as defined in the
Credit Agreement), all certificates delivered from time to time by or
on behalf of the Borrower to the Lender pursuant to the Credit
Agreement or the Security (as defined in the Credit Agreement), and
any other document acknowledged by the Borrower to be a Credit
Document.
"Default" shall mean, with respect to each Pledgor, a default by such
Pledgor in the payment or performance of any of such Pledgor's
Obligations.
"Guarantee" shall mean the guarantee given as of August 10, 1998 by,
inter alia , each of the Pledgors (except the Borrower) to the Lender
of the obligations of the Borrower to the Lender under the Credit
Documents, as such guarantee may be supplemented, amended, restated,
consolidated or replaced from time to time.
"Issuer" shall mean, at any time, any person who is at such time an
issuer of any securities which constitute part of the Pledged
Collateral of any Pledgor.
"Lender" shall mean Canadian Imperial Bank of Commerce, in its
individual capacity, and shall include its successors and permitted
assigns.
"Obligations" shall mean, with respect to each Pledgor, all present
and future obligations of such Pledgor to the Lender under the Credit
Documents, and any unpaid balance thereof.
"person" is to be broadly interpreted and shall include an individual,
a corporation, a partnership, a trust, an unincorporated organization,
a joint venture, the government of a country or any political
subdivision of a county, or an agency or department of any such
government, any other governmental
authority and the executors, administrators or other legal
representatives of an individual in such capacity.
"Pledged Collateral" shall have the meaning specified in Section 2.
"Pledged Securities" shall mean, with respect to each Pledgor, the
securities listed in Schedule A hereto, as such schedule may be
amended from time to time.
"Pledgors" shall mean the signatories to this Agreement (other than
the Lender), together with any other person who becomes a Pledgor
under this Agreement from time to time by executing and delivering to
the Lender a Supplement to this Agreement as provided for in Section
21 hereof, and "Pledgor" shall mean any one of the Pledgors.
"PPSA" shall mean the Personal Property Security Act (Ontario), as
such legislation may be amended, renamed or replaced from time to
time, and includes all regulations from time to time made under such
legislation.
"Proceeds" shall have the meaning given to such term in the PPSA.
"Receiver" shall mean a receiver, a manager or a receiver and manager.
"Records" shall mean, with respect to each Pledgor, all books,
records, files, papers, disks, documents and other repositories of
data recording in any form or medium, evidencing or relating to the
Pledged Collateral of such Pledgor which are at any time owned by such
Pledgor or to which such Pledgor (or any person on such Pledgor's
behalf) has access.
"Supplement" shall have the meaning specified in Section 21 hereof.
2. Grant of Security Interest. As general and continuing security for the
due payment and performance of its Obligations (including the payment of
any such Obligations that would become due but for any automatic stay under
the provisions of the Bankruptcy and Insolvency Act (Canada), the United
States Bankruptcy Code or any analogous provisions of any other applicable
law in Canada, the United States of America or any other jurisdiction),
each Pledgor assigns and pledges to and in favor of the Lender and grants
to the Lender a continuing security interest in:
a. the Pledged Securities of such Pledgor, together with all
replacements of any such Pledged Securities and substitutions for
any such Pledged Securities and all certificates and instruments
evidencing such Pledged Securities;
b. all interest and dividends, whether in cash, kind or stock,
received or receivable upon or in respect of any of the Pledged
Securities or such Pledgor and all moneys or other property
payable or paid on account of any return or repayment of capital
in respect of any of the Pledged Securities of such Pledgor or
otherwise distributed in respect of such Pledged Securities or
which will in any way be charged to, or payable or paid out of,
the capital of the applicable Issuer on account of any such
Pledged Securities;
c. all other property that may at any time be received or receivable
by or otherwise distributed to such Pledgor in respect of, or in
substitution for, or in exchange for, any of the foregoing; and
d. all cash, securities and other Proceeds of any of the foregoing
and all rights and interests of such Pledgor in respect thereof
or evidenced thereby, including all moneys received from
time to time by such Pledgor in connection with any sale or
disposition of any of the Pledged Securities of such Pledgor;
(collectively, the "Pledged Collateral").
3. Delivery of Pledged Collateral. Each of the Pledgors, concurrently with
its execution and delivery of this Agreement (or, if applicable,
concurrently with its execution and delivery of a Supplement) will deliver
to the Lender all certificates or other documents representing or
evidencing the Pledged Collateral of such Pledgor in suitable form for
transfer by delivery, or accompanied by duly executed instruments of
transfer or assignment in blank, in each case satisfactory to the Lender,
all of which shall remain in the custody of the Lender or its nominee. If
the constating documents of any Issuer restrict the transfer of the
securities of such Issuer, then the applicable Pledgor will also deliver to
the Lender a certified copy of a resolution of the directors or
shareholders of such Issuer (as required) consenting to the transfers
contemplated by this Agreement, including any prospective transfer of the
Pledged Collateral by the Lender or its nominee upon a realization on the
security constituted by this Agreement in accordance with this Agreement.
All Pledged Collateral that is in registrable form may, at the option of
the Lender, be registered in the name of Lender or its nominee. Each
Pledgor agrees to execute and deliver to the appropriate persons, promptly
if and when required by the Lender, all such instruments, documents and
agreements as the Lenders in its discretion may deem necessary to effect a
change in the shareholders' register of any Issuer of any Pledged
Collateral of such Pledgor from such Pledgor to the Lender or a nominee of
the Lender. In addition, the Lender shall have the right to exchange
certificates or other documents representing or evidencing any Pledged
Collateral for certificates or other documents of smaller or larger
denominations. If the Lender so requests, any endorsement on any
certificate representing any of the Pledged Collateral will also be
guaranteed by a Canadian or United States bank or other financial
institution acceptable to the Lender.
4. Attachment. Each of the Pledgors confirms that value has been given by
the Lender to such Pledgor, that such Pledgor has rights in its Pledged
Collateral existing at the date of this Agreement, and that the Lender has
not agreed to postpone the time for attachment of the Charges created by
this Agreement to any of the Pledged Collateral of such Pledgor. The
Charges created by this Agreement on the Pledged Collateral of each Pledgor
will have effect and be deemed to be effective whether or not the
Obligations of such Pledgor or any part thereof are owing or in existence
before or after or upon the date of this Agreement or the date of any
Supplement, as the case may be.
5. Covenants.
a. Further Documentation. Each of the Pledgors will from time to
time, at the expense of such Pledgor, promptly and duly authorize, execute
and deliver such further instruments and documents, and take such further
action, as the Lender may request for the purpose of obtaining or
preserving the full benefits of, and the rights and powers granted by, this
Agreement (including the filing of any financing statements or financing
change statements under any applicable law with respect to the Charges
created by this Agreement). Such Pledgor acknowledges that this Agreement
has been prepared based on existing applicable laws and that a change in
such laws, or the laws of other jurisdictions, may require the execution
and delivery of different forms of security documentation. Accordingly,
such Pledgor agrees that the Lender will have the right to require that
this Agreement be amended, supplemented or replaced by such Pledgor, and
that such Pledgor will immediately on request by the Lender authorize,
execute and deliver any such amendment, supplement or replacement (i) to
reflect any changes in such laws, whether arising as a result of statutory
amendments, court decisions or otherwise, (ii) to facilitate the creation
and registration of appropriate security in all appropriate jurisdictions,
or (iii) if such Pledgor merges or amalgamates with any other person or
enters into any corporate reorganization, in each case in order to confer
on the Lender Charges similar to, and having the same effect and priority
as, the Charges created by this Agreement.
b. Additional Pledged Collateral. Each of the Pledgors will
deliver to the Lender such additional Pledged Collateral as is required to
satisfy the financial covenants set out or incorporated by reference in the
Credit Agreement from time to time. The parties shall also deliver a duly
amended form of Schedule A to this Agreement concurrently with all
deliveries of additional Pledged Collateral.
6. Voting Rights. Unless a Default has occurred and is continuing, each
Pledgor will be entitled to exercise all voting power from time to time
exercisable in respect of the Pledged Collateral of such Pledgor and give
consents, waivers and ratifications in respect thereof; provided, however,
that no vote will be cast or consent, waiver or ratification given or
action taken which would be prejudicial to the interests of the Lender or
which would have the effect of reducing the value of the Pledged Collateral
of such Pledgor as security for the Obligations of such Pledgor or imposing
any restriction on the transferability of any of the Pledged Collateral of
such Pledgor. Unless a Default has occurred and is continuing, the Lender
shall, from time to time at the request and expense of each Pledgor,
execute, in respect of all Pledged Securities of a Pledgor that are
registered in the name of the Lender, valid proxies appointing such Pledgor
as its proxy to attend, vote and act for and on behalf of the Lender at any
and all meetings of each Issuer of Pledged Securities of such Pledgor that
are registered in the name of the Lender and to execute and deliver,
consent to or approve or disapprove of or withhold consent to any
resolutions in writing of shareholders of each such Issuer for and on
behalf of the Lender. Immediately upon the occurrence and during the
continuance of any Default, all such rights of the defaulting Pledgor to
vote and give consents, waivers and ratifications will cease and the Lender
or any nominee of the Lender will be entitled to exercise all such voting
rights and to give all such consents, waivers and ratifications.
7. Dividends. Unless a Default has occurred and is continuing, each Pledgor
will be entitled to receive any and all dividends and other forms of
distribution on the Pledged Collateral of such Pledgor which it is
otherwise entitled to receive, but any and all stock and/or liquidating
dividends, distributions of property, returns of capital or other
distributions made on or in respect of the Pledged Collateral of such
Pledgor, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of any Issuer or received
in exchange for the Pledged Collateral of such Pledgor or any part thereof
or as a result of any amalgamation, merger, consolidation, acquisition or
other exchange of property to which any Issuer may be a party or otherwise,
and any and all cash and other property received in exchange for any
Pledged Collateral of such Pledgor, will be and become part of the Pledged
Collateral of such Pledgor subject to the Charges created by this Agreement
and, if received by such Pledgor, unless otherwise applied by such Pledgor
in a manner expressly permitted by the Lender, will immediately be
delivered to the Lender or its nominee (accompanied, if appropriate, by
proper and duly executed instruments of assignment or transfer in
accordance with the Lender's instructions) to be held subject to the terms
of this Agreement; and if any of the Pledged Collateral of any such Pledgor
has been registered in the name of the Lender or its nominee, the Lender
will execute and deliver (or cause to be executed and delivered) to such
Pledgor all such dividend orders and other instruments as such Pledgor may
request for the purpose of enabling such Pledgor to receive the dividends
or other payments which such Pledgor is authorized to receive and retain
pursuant to this Section. If a Default has occurred and is continuing, all
rights of any Pledgor pursuant to this Section will cease and the Lender
will have the sole and exclusive right and authority to receive and retain
the cash dividends and other forms of cash distribution which such Pledgor
would otherwise be authorized to retain pursuant to this Section. Any money
and other property paid over to or received by the Lender pursuant to the
provisions of this Section will be retained by the Lender as additional
Pledged Collateral of the applicable Pledgor and be applied in accordance
with the provisions of this Agreement.
8. Rights of Default. Upon the occurrence and during the continuance of a
Default, the security constituted by this Agreement on the Pledged
Collateral of the defaulting Pledgor shall become enforceable, and the
Lender may, personally or by agent, at such time or times as the Lender in
its discretion may determine, do any one or more of the following:
a. Rights under PPSA, etc. Exercise against such Pledgor and any
or all of the Pledged Collateral of such Pledgor all of the rights and
remedies granted to secured parties under the PPSA and any other applicable
statute, or otherwise available to the Lender by contract, at law or in
equity.
b. Dispose of Pledged Collateral. Realize on any or all of the
Pledged Collateral of such Pledgor and sell or otherwise dispose of and
deliver any or all of the Pledged Collateral of such Pledgor (or contract
to do any of the above), in one or more parcels at any public or private
sale, at any exchange, broker's board or office of the Lender or elsewhere,
of such terms and conditions as the Lender may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery.
c. Court-Appointed Disposition of Pledged Collateral. Obtain from
any court of competent jurisdiction an order for the sale or foreclosure of
any or all of the Pledged Collateral of such Pledgor.
d. Purchase by Lender. At any public sale, and to the extent
permitted by law on any private sale, bid for and purchase any or all of
the Pledged Collateral of such Pledgor offered for sale and, upon
compliance with the terms of such sale, hold, retain, sell or otherwise
dispose of such Pledged Collateral without any further accountability to
such Pledgor or any other person with respect to such holding, retention,
sale or other disposition, except as required by law. The Lender may, for
the purpose of making payment for all or any part of the Pledged Collateral
of any Pledgor so purchased, use any claim for Obligations of such Pledgor
then due and payable to such person as a credit against the purchase price.
e. Transfer of Pledged Collateral. Transfer all or part of the
Pledged Collateral of such Pledgor into the name of the Lender or its
nominee, with or without disclosing that the Pledged Collateral of such
Pledgor is subject to the Charges created by this Agreement.
f. Vote Pledged Collateral. Vote any or all of the Pledged
Collateral of such Pledgor (whether or not transferred to the Lender or its
nominee) and give or withhold all consents, waivers and ratifications in
respect thereof and otherwise act with respect thereto as though it were
the outright owner thereof.
g. Appoint Receiver. Appoint by instrument in writing one or more
Receivers of any or all of the Pledged Collateral of such Pledgor with such
rights, powers and authority (including any or all of the rights, powers
and authority of the Lender under this Agreement) as may be provided for in
the instrument of appointment or any supplemental instrument, and remove
and replace any such Receiver from time to time. To the extent permitted by
applicable law, any Receiver appointed by the Lender will (for purposes
relating to responsibility for the Receiver's acts or omissions) be
considered to be the agent of such Pledgor and not of the Lender.
h. Court-Appointed Receiver. Obtain from any court of competent
jurisdiction an order for the appointment of a Receiver of any or all of
the Pledged Collateral of such Pledgor.
i. Exercise Other Rights. Exercise any and all rights of
conversion, exchange, subscription or any other rights, privileges or
options pertaining to any of the Pledged Collateral of such Pledgor as if
it were the absolute owner thereof, including the right to exchange at its
discretion any and all of the Pledged Collateral of such Pledgor upon the
amalgamation, merger, consolidation, reorganization, recapitalization or
other readjustment of any Issuer or upon the exercise by any Issuer or the
Lender of any right, privilege or option pertaining to any of the Pledged
Collateral of such Pledgor, and in connection therewith, to deposit and
deliver any and all of the Pledged Collateral of such Pledgor with any
committee, depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as it may determine, all without liability
except to account for property actually received by the Lender.
9. Sale of Securities. The Lender is authorized, in connection with any
offer or sale of any Pledged Collateral of a Pledgor, to comply with any
limitation or restriction as it may be advised by counsel is necessary to
comply with applicable law, including compliance with procedures that may
restrict the number of prospective bidders and purchasers, requiring that
prospective bidders and purchasers have certain qualifications, and
restricting prospective bidders and purchasers to persons who will
represent and agree that they are purchasing for their own account or
investment and not with a view to the distribution or resale of such
Pledged Collateral of such Pledgor. Each Pledgor further agrees that
compliance with any such limitation or restriction will not result in a
sale of the Pledged Collateral of such Pledgor being considered or deemed
not to have been made in a commercially reasonable manner, and the Lender
will not be liable or accountable to such Pledgor for any discount allowed
by reason of the fact that such Pledged Collateral of such Pledgor is sold
in compliance with any such limitation or restriction.
10. Application of Proceeds. All proceeds of Pledged Collateral of a Pledgor
received by the Lender may be applied to discharge or satisfy any expenses
(including the Receiver's remuneration and other expenses of enforcing the
Lender's rights against such Pledgor under this Agreement), Charges over
the Pledged Collateral of such Pledgor in favour of persons other than the
Lender, borrowings, taxes and other outgoings affecting the Pledged
Collateral of such Pledgor or which are considered advisable by the Lender.
The balance of such Proceeds may, at the sole discretion of the Lender, be
held as collateral security for the Obligations of such Pledgor or be
applied to such of the Obligations of such Pledgor (whether or not the same
are due and payable) in such manner and at such times as the Lender
considers appropriate and thereafter will be accounted for as required by
law.
11. Continuing Liability of Pledgors. Each of the Pledgors will remain
liable for any Obligations of such Pledgor that are outstanding following
realization of all or any part of the Pledged Collateral of such Pledgor
and the application of the Proceeds of such Pledged Collateral.
12. Appointment as Attorney-in-Fact. Each of the Pledgors constitutes and
appoints the Lender and any officer or agent of the Lender, with full power
of substitution, as such Pledgor's true and lawful attorney-in-fact with
full power and authority in the place of such Pledgor and in the name of
such Pledgor or in its own name, from time to time in the Lender's
discretion (a) at any time, to sign, deliver and register on behalf of and
in the name of such Pledgor all such financing statements, financing change
statements, notices, verification statements and other documents relating
to the Pledged Collateral of such Pledgor and this Agreement as the Lender
or such other person considers appropriate or desirable, and (b) after the
occurrence and during the continuance of a Default, to take any and all
appropriate action and to execute any and all documents and instruments as,
in the opinion of such attorney acting reasonably, may be necessary or
desirable to accomplish the purposes of this Agreement. These powers from
each Pledgor are coupled with an interest and are irrevocable until this
Agreement is terminated and the Charges created by this Agreement over the
Pledged Collateral of such Pledgor are released. Nothing in this Section
affects the right of the Lender as secured party, or any other person on
behalf of the Lender, to sign and file or deliver (as applicable) all such
financing statements, financing change statements, notices, verification
statements and other documents relating to the Pledged Collateral of any
Pledgor and this Agreement as the Lender or such other person considers
appropriate.
13. Performance by Lender of Pledgor's Obligations. If any Pledgor fails to
perform or comply with any of the obligations of such Pledgor under this
Agreement, the Lender may, but need not, perform or otherwise cause the
performance or compliance of such obligation, provided that such
performance or compliance will not constitute a waiver, remedy or
satisfaction of such failure. The expenses of the Lender incurred in
connection with any such performance or compliance will be payable by such
Pledgor to the Lender immediately on demand, and until paid, any such
expenses will form part of the Obligations of such Pledgor and will be
secured by the Charges created by this Agreement over the Pledged
Collateral of such Pledgor.
14. Interest. If any amount payable by a Pledgor to the Lender under this
Agreement is not paid when due, such Pledgor will pay to the Lender,
immediately on demand, interest on such amount from the date due until
paid, at a nominal rate per annum equal at all times to the Prime Rate in
effect from time to time plus 5%
if such amount is payable in Cdn. Dollars, or to the U.S. Base Rate in
effect from time to time plus 5% if such amount is payable in U.S. Dollars,
which rate per annum will change automatically without notice to such
Pledgor as and when the Prime Rate or the U.S. Base Rate, as the case may
be, changes. All amounts payable by any Pledgor to the Lender under this
Agreement, and all interest on all such amounts, will form part of the
Obligations of such Pledgor and will be secured by the Charges created by
this Agreement over the Pledged Collateral of such Pledgor.
15. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction or against any Pledgor will, as to that
jurisdiction and such Pledgor, be ineffective to the extent of such
prohibition or unenforceableability and will be severed from the balance of
this Agreement, all without affecting the remaining provisions or this
Agreement of affecting the validity or enforceability of such provision in
any other jurisdiction or against any other Pledgor.
16. Rights of Lender, Etc. Neither the Lender nor any Receiver or any agent
of any of the foregoing (including, in Alberta or British Columbia, any
sheriff) (i) will be liable to any Pledgor or any other person for any
failure or delay in exercising any of its rights under this Agreement
(including any failure to take possession of, sell or otherwise dispose of
any Pledged Collateral of such Pledgor, or to preserve rights against prior
parties); is required to take, or will have any liability for any failure
to take or delay in taking, any steps necessary or advisable to preserve
rights against other persons under any Pledged Collateral of any Pledgor in
its possession; or (iii) will be liable for any, and each Pledgor will bear
the full risk of all, loss or damage to any and all of the Pledged
Collateral of such Pledgor (including any Pledged Collateral of such
Pledgor in the possession of any such person) caused for any reason other
than the gross negligence or wilful misconduct of such person.
17. Dealings by Lender. The Lender will be obliged to exhaust its recourse
against any Pledgor or any other person or against any other security it
may hold in respect of the Obligations of any Pledgor before realizing upon
or otherwise dealing with the Pledged Collateral of such Pledgor in such
manner as the Lender may consider desirable. The Lender may grant
extensions of time and other indulgences, take and give up security, accept
compositions, grant releases and discharges and otherwise deal with each
Pledgor and any other person, and with any or all of the Pledged Collateral
of each Pledgor, and with other security and sureties, as the Lender may
see fit, all without prejudice to the Obligations of any Pledgor or to the
rights and remedies of the Lender under this Agreement. The powers
conferred on the Lender under this Agreement are solely to protect the
interests of the Lender to the Pledged Collateral of each of the Pledgors
and will not impose any duty upon the Lender to exercise any such powers.
18. Communication. All notices and other communications given under or with
respect to this Agreement will be in writing and may be sent by facsimile,
mailed or delivered to the Lender at Canadian Imperial Bank of Commerce,
Media & Telecommunications, 000 Xxx Xxxxxx, 0xx Xxxxx, XXX Xxxxx, Xxxxxxx,
Xxxxxxx, X0X 0X0, facsimile (000) 000-0000, attention Managing Director, or
to any Pledgor care of the Borrower at 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx,
X0X 0X0, facsimile (000) 000-0000, attention General Counsel, or, as to any
such person, at such other address or facsimile number as may be designated
by such person in a notice to the others given as required hereby. Except
as otherwise provided in this Agreement, all such communications will be
deemed to have been duly given when (a) transmitted by facsimile or
delivered if transmitted or delivered prior to 4:00 p.m. (local time) on a
Business Day and otherwise on the Business Day following transmission or
delivery, or (b) in the case of a mailed notice, upon receipt, in each case
given or addressed as aforesaid.
19. Release of Information. Each of the Pledgors authorizes the Lender to
provide a copy of this Agreement and such other information as may be
requested of the Lender by other persons entitled thereto pursuant to any
applicable law or court order, and otherwise with the consent of such
Pledgor.
20. Waivers and Indemnity. To the extent permitted by applicable law, each
of the Pledgors unconditionally and irrevocably waives (i) all claims,
damages and demands it may acquire against the Lender
arising out of the exercise by the Lender or any Receiver of any rights or
remedies under this Agreement or at law, and (ii) all of the rights,
benefits and protections given by any present or future statute that
imposes limitations on the rights, powers or remedies of a secured party or
on the methods of, or procedures for, realization of security, including
any "seize or xxx" or "anti-deficiency" statute or any similar provision of
any other statute. The Lender will not, by any act or delay, be deemed to
have waived any right or remedy hereunder or to have acquiesced in any
Default or in any breach of any of the terms and conditions hereof. Neither
the taking of any judgment nor the exercise of any power of seizure or sale
will extinguish the liability of any Pledgor to pay the Obligations of such
Pledgor, nor will the same operate as a merger of any covenant contained in
this Agreement or of any other liability, nor will the acceptance of any
payment or other security constitute or create any novation. Each of the
Pledgors severally (and not jointly or jointly and severally) agrees to
indemnify the Lender from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (except by reason of the
gross negligence or wilful misconduct of such person) which may be imposed
on, incurred by, or asserted against the Lender and arising by reason of
any action (including any action referred to in this Agreement) or inaction
or omission to day any act legally required by such Pledgor. These
indemnifications will survive the satisfaction, release or extinguishment
of the Obligations of each Pledgor and the Charges created by this
Agreement.
21. Addition of Pledgors. Additional persons may from time to time after
the date of this Agreement become Pledgors under this Agreement by
executing and delivering to the Lender a supplemental agreement (a
"Supplemental") to this Agreement in substantially the form attached as
Schedule B to this Agreement. Effective from and after the date of the
execution and delivery by any person to the Lender of a Supplement such
person shall be, and shall be deemed for all purposes to be, a Pledgor
under this Agreement with the same force and effect, and subject to the
same agreements, representations, indemnities, liabilities, obligations and
Charges, as if such person had been an original signatory to this Agreement
as a Pledgor. The execution and delivery of a Supplement by any additional
person shall not require the consent of any Pledgor and all of the
Obligations of each Pledgor under this Agreement, and all Charges granted
by each Pledgor under the Agreement, shall remain in full force and effect
notwithstanding the addition of any new Pledgor to this Agreement.
22. Amalgamation. If any Pledgor is a corporation, such Pledgor
acknowledges that if it amalgamates or merges with any other corporation or
corporations, then (i) the term "Pledgor", where used in this Agreement,
will extend to and include the continuing corporation from such
amalgamation or merger, (ii) the term "Obligations", where used in this
Agreement in connection with such Pledgor, will extend to and include the
Obligations of each of the amalgamating or merging corporations at the time
of such amalgamation or merger and the Obligations of the continuing
corporation from such amalgamation or merger arising thereafter, and (iii)
the Pledged Collateral of such Pledgor and the Charges created by this
Agreement over the Pledged Collateral of such Pledgor will extend to and
include all of the Pledged Collateral of each of the amalgamating or
merging corporations at the time of such amalgamation or merger and to any
and all Pledged Collateral of the continuing corporation from such
amalgamation or merger thereafter owned or acquired.
23. Release of Pledgor. Promptly following any release of any Pledgor from
all of its Obligations (including any such release effected by the
operation of an express provision of the Guarantee providing for the
release of such Obligations in specified circumstances), the Lender,
without affecting in any manner whatsoever any of the Obligations of any
other Pledgor or any of the Charges created by this Agreement over the
Pledged Collateral of any other Pledgor, will release such Pledgor and the
Pledged Collateral of such Pledgor then subject to the Charges created by
this Agreement from this Agreement and from the Charges created by this
Agreement. Upon such release, and at the request and expense of such
Pledgor, the Lender shall execute and deliver such releases, discharges,
instruments and resolutions as such Pledgor may reasonably request.
24. Additional Security. This Agreement is in addition to, and not in
substitution of, any and all other security documents, previously or
concurrently delivered by any Pledgor to the Lender, all of which other
security documents shall remain in full force and effect.
25. Several Agreement; Alteration or Waiver. No provision of this Agreement
may be changed, waived, discharged or terminated except with the written
consent of each Pledgor directly affected thereby and the written consent
of the Lender. This Agreement shall be construed as a separate agreement
with respect to each Pledgor and, subject to the first sentence of this
Section, may be amended, modified, supplemented, waived or released with
respect to any Pledgor, or any representations, agreements, covenants,
indemnities, liabilities, obligations or Pledged Collateral of, or any
Charge from, any Pledgor, without the approval of any other Pledgor and
without affecting the liabilities or obligations of any other Pledgor under
this Agreement. Any waiver will be effective only in the specific instance,
and only for the specific purpose, in respect of which the waiver is given.
No failure by the Lender to exercise, and no delay in exercising, any right
under this Agreement will operate as a waiver of any right, nor will any
single or partial exercise of any right under this Agreement against any
Pledgor preclude any other or further exercise of such right against such
Pledgor, the exercise of such right against any other Pledgor or the
exercise of any other right against such Pledgor or against any other
Pledgor.
26. Governing Law; Attornment. This Agreement is a contract made under, and
will for all purposes be governed by and interpreted and enforced according
to, the laws of the Province of Ontario (including the laws of Canada
applicable in such Province), excluding any conflict of laws, rule or
principle that might refer these matters to the laws of another
jurisdiction, and without prejudice to or limitation of any other rights or
remedies available to the Lender under the laws of any other jurisdiction.
Each of the Pledgors irrevocably submits to the jurisdiction of the courts
of the Province of Ontario and to the Supreme Court of Canada without
prejudice to the right of the Lender to commence an action against such
Pledgor in any other jurisdiction. Each of the Pledgors (other than the
Borrower) agrees that service of all writs, processes, statements,
correspondence and summonses in any suit, action or proceeding brought
against such Pledgor under or in respect of this Agreement in the Province
of Ontario may be made upon such Pledgor at such Pledgor's address for
notices as provided for in Section 18 of this Agreement, and each of the
Pledgors irrevocably appoints the Borrower as such Pledgor's true and
lawful attorney-in-fact in such Pledgor's name, place and stead to accept
such service of any and all writs, processes, statements, correspondence
and summonses, and agrees that the failure of the Borrower to give any
notice thereof to such Pledgor shall not impair or affect the validity of
such service or of any judgment based thereon. Each of the Pledgors further
irrevocably consents to the service of any writs, processes, statements,
correspondence and summonses in any suit, action or proceeding in such
courts by the mailing thereof by registered or certified mail, postage
prepaid to such Pledgor at such Pledgor's address for notice as provided
for in Section 18 of this Agreement. Nothing in this Section shall be
deemed to in any way limit the ability of the Lender to serve any such
writs, processes, statements, correspondence or summonses in any other
manner permitted by applicable law or to obtain jurisdiction over any
Pledgor in such other jurisdictions, and in such manner, as may be
permitted by applicable law. Each of the Pledgors irrevocably waives any
objection which it may now or in the future have based on lack of personal
jurisdiction over such Pledgor or which it may have to the laying of venue
of any such suit, action or proceeding brought in the courts of the
Province of Ontario or the Supreme Court of Canada and further irrevocably
waives any claim that any such suit, action or proceeding brought in any
such court has been brought in an improper venue or in an inconvenient
forum.
27. Waiver of Jury Trial. Because disputes arising in connection with
complex financial transactions are most quickly and economically resolved
by an experienced and expert person, and the Pledgors and the Lender wish
applicable laws to apply (rather than arbitration rules), the parties
desire that their disputes be resolved by a judge applying such applicable
laws. Therefore, to achieve the best combination of the benefits of the
judicial system and or arbitration, the Pledgors and the Lender waive all
right to trial by jury in any action, suit, or proceeding brought to
resolve any dispute, whether in contract, tort, or otherwise, between any
Pledgor and
the Lender arising out of, connected with, related to, or incidental to the
relationship established between them in connection with this Agreement.
28. Delivery and Completeness of Agreement. Upon this Agreement (or a
Supplement as provided for in Section 21 hereof), bearing the signature of
a person claiming to have authority to bind a Pledgor, coming into the
possession of the Lender, and irrespective of whether this Agreement (or
any such Supplemental) has been executed by any other Pledgor, this
Agreement (and such Supplement) will be deemed to be finally and
irrevocably executed and delivered by, and be effective and binding on, and
enforceable against, such Pledgor free from promise or condition affecting
or limiting the liabilities or obligations of such Pledgor under or in
respect of this Agreement. No statement, representation, agreement or
promise by any officer, employee or agent of the Lender, unless expressly
set forth in this Agreement, forms any part of this Agreement or has
induced the making of this Agreement by any Pledgor or in any way affects
any of the liabilities or obligations of any Pledgor under this Agreement.
This Agreement constitutes the entire agreement between the Lender and each
of the Pledgors with respect to the subject matter of this Agreement and
cancels and supersedes any prior understandings and agreements between the
Lender and each such Pledgor with respect to this Agreement (without
affecting any other security previously delivered by any Pledgor to the
Lender).
29. Interpretation. Unless otherwise expressly provided in this Agreement,
if any matter in this Agreement is subject to the consent or approval of
the Lender or is to be acceptable to the Lender, such consent, approval or
determination of acceptability will be in the sole discretion of the
Lender. If any provision in this Agreement refers to any action taken or to
be taken by any Pledgor, or which such Pledgor is prohibited from taking,
such provision will be interpreted to include any and all means, direct or
indirect, of taking, or not taking, such action.
30. Successors and Assigns. This Agreement will enure to the benefit of,
and be binding on, each of the Pledgors and their successors, and will
enure to the benefit of, and be binding on, the Lender and its respective
successors and assigns. No Pledgor may assign this Agreement, or any of its
rights or obligations under this Agreement, without the prior written
consent of the Lender.
31. Acknowledgment of Receipt/Waiver. Each of the Pledgors acknowledges
receipt of an executed copy of this Agreement and, to the extent permitted
by applicable law, waives the right to receive a copy of any financing
statement, financing change statement or verification statement registered
or issued in connection with this Agreement.
32. Counterparts and Facsimile. This Agreement may be executed in
counterparts. Each executed counterpart shall be deemed to be an original
and all counterparts taken together shall constitute one and the same
Agreement. Delivery of an executed signature page to this Agreement by any
Pledgor by facsimile transmission shall be as effective as delivery of a
manually executed copy of this Agreement by such Pledgor.
33. Language. The parties to this Agreement expressly request and require
that this Agreement, all other Credit Documents, and all related documents
be drafted in English. Les parties aux prsentes conviennent et exigent que
cette Convention et tous les documents qui s y rattachent soient rdigs en
Anglais.
IN WITNESS OF WHICH each of the undersigned has executed this Agreement as
of the date shown on the first page of this Agreement.
CANADIAN IMPERIAL BANK OF
COMMERCE, as Lender
by: /s/ Xxxxx Xxxxx
--------------------------
name: Xxxxx Xxxxx
title: Managing Director
by:
--------------------------
name: Xxxxx Xxxxxxxxx
title: Executive Director
XXXXXXXXX INC.
by: /s/ Xxxxx X. Xxxxxxxx
--------------------------
name: Xxxxx X. Xxxxxxxx
title: Vice-President and General Counsel
504468 N.B. INC.
by: /s/ Xxxxx X. Xxxxxxxx
--------------------------
name: Xxxxx X. Xxxxxxxx
title: Vice-President and General Counsel
SCHEDULE A
PLEDGED SECURITIES
All present and after-acquired shares in the capital of Xxxxxxxxx
International Inc. owned by the Pledgors from time to time, including,
without limitation, the following:
Pledgor Class No. of Shares Certificate No.
Xxxxxxxxx Inc. Class A Common 3,000,000 A 0299
Xxxxxxxxx Inc. Class A Common 610,754 A 0300
Xxxxxxxxx Inc. Class A Common 4,050,000 A 0359
Xxxxxxxxx Inc. Class A Common 2,460,972 A 0500
Xxxxxxxxx Inc. Class A Common 2,800,000 A 5126
Xxxxxxxxx Inc. Class A Common 2,800,000 A 5127
Xxxxxxxxx Inc. Class A Common 2,800,000 A 5128
Xxxxxxxxx Inc. Class A Common 2,800,000 A 5129
Xxxxxxxxx Inc. Class A Common 2,800,000 A 5130
Xxxxxxxxx Inc. Class A Common 1,950,000 A 5131
504468 N.B. Inc. Class A Common 3,207,045 A 5120
504468 N.B. Inc. Class A Common 2,000,000 A 5122
504468 N.B. Inc. Class A Common 2,000,000 A 5123
504468 N.B. Inc. Class A Common 2,000,000 A 5124
504468 N.B. Inc. Class A Common 1,539,028 A 5125
Xxxxxxxxx Inc. Class B Common 2,000,000 B 0006
504468 N.B. Inc. Class B Common 12,990,000 B 0005
Xxxxxxxxx Inc. Series C Preferred 666,548 C 7
504468 N.B. Inc. Series C Preferred 162,861 C9
504468 N.B. Inc. D Preferred 739,500 D 2
SCHEDULE B
SUPPLEMENT TO MASTER SECURITIES PLEDGE AGREEMENT
This is a Supplement made as of __________________ to the securities pledge
agreement made as of August 10, 1998 by certain persons to Canadian
Imperial Bank of Commerce, as Lender (the "Pledge Agreement") . The
provisions of the Pledge Agreement shall apply, mutatis mutandis, to this
Supplement. Capitalized terms used but not otherwise defined in this
Supplement have the meanings specified in the Pledge Agreement.
For valuable consideration, each of the undersigned (each a "New Pledgor")
severally (and not jointly, or jointly and severally) agrees with the
Lender as follows:
1. Each New Pledgor acknowledges that it has received and reviewed a copy
of the Pledge Agreement and the Credit Documents in existence on the date
of this Supplement, and confirms that it is executing and delivering this
Supplement to the Lender pursuant to Section 21 of the Pledge Agreement.
2. Effective from and after the date this Supplement is executed and
delivered to the Lender by any New Pledgor (and irrespective of whether
this Supplement has been executed and delivered by any other person), such
New Pledgor is, and shall be deemed for all purposes to be, a Pledgor under
the Pledge Agreement with the same force and effect, and subject to the
same agreements, representations, guarantees, indemnities, liabilities and
obligations, as if such New Pledgor was, effective as of the date of this
Supplement, an original signatory to the Pledge Agreement as a Pledgor. In
furtherance of the foregoing, each New Pledgor severally (and not jointly,
or jointly and severally) as security for the payment and performance of
the Obligations of such New Pledgor (including any Obligations that would
become due but for any automatic stay under the provisions of the
Bankruptcy and Insolvency Act (Canada), the United States Bankruptcy Code
or any analogous provisions of any other applicable law in Canada, the
United States of America or any other jurisdiction) hereby assigns and
pledges to the Lender and grants to the Lender a continuing security
interest in, the Pledged Collateral of such New Pledgor.
3. Upon this Supplement bearing the signature of any of person claiming to
have authority to bind a New Pledgor coming into the hands of the Lender,
and irrespective of whether this Supplement or the Pledge Agreement has
been executed by any other person, this Supplement will be deemed to be
finally and irrevocably executed and delivered by, and be effective and
binding on, and enforceable against, such New Pledgor free from any promise
or condition affecting or limiting the obligations of such New Pledgor and
such New Pledgor shall be, and shall be deemed for all purposes to be, a
Pledgor under the Pledge Agreement. No statement, representation, agreement
or promise by any officer, employee or agent of the Lender forms any part
of this Supplement or the Pledge Agreement or has induced the making of
this Supplement or the Pledge Agreement by any New Pledgor or in any way
affects of the Obligations of any New Pledgor.
IN WITNESS OF WHICH this Supplement has been duly executed and delivered by
each New Pledgor as of the date indicated on the first page of this
Supplement.
[signatures of one or more New Pledgors]
