EXHIBIT 8
FIRST AMENDMENT TO SECURITY AGREEMENT
Dated as of September 30, 2004
Among
The Grantors referred to herein
as Grantors
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and
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee and Collateral Agent,
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and the other Secured Parties referred to herein
FIRST AMENDMENT TO SECURITY AGREEMENT
First Amendment to Security Agreement dated as of September 30, 2004 (this
"FIRST AMENDMENT TO SECURITY Agreement") made by XXXXXXXXX INC., a Canadian
corporation (the "COMPANY"), RAVELSTON MANAGEMENT INC., an Ontario corporation
("RMI"), and 504468 N.B. INC., a New Brunswick corporation ("NBI"), and the
Additional Grantors (as such term is defined in Section 19 of the Security
Agreement dated March 10, 2003 (the "SECURITY AGREEMENT") among the Company,
RMI, NBI and the Additional Grantors) (the Company, RMI, NBI, and the Additional
Grantors being, collectively, the "GRANTORS"), to WACHOVIA TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee and as Collateral Agent under the Indenture (as
hereinafter defined) (in such capacity, together with any successor appointed
pursuant to the Indenture, the "COLLATERAL AGENT") for itself, each of the
Holders (as defined in the Indenture), and each other secured party specified in
any of the other Note Documents (as hereinafter defined) (collectively, the
"SECURED PARTIES"), being an amendment to the Security Agreement.
PRELIMINARY STATEMENTS
(1) The Company, as issuer, and RMI and NBI, as guarantors,
entered into an Indenture dated as of March 10, 2003 (said indenture, as it may
be amended, amended and restated, supplemented or otherwise modified from time
to time, being the "INDENTURE") with The Ravelston Corporation Limited, Sugra
Limited and the Collateral Agent.
(2) The Grantors entered into the Security Agreement in order
to grant to the Collateral Agent for the ratable benefit of itself and the other
Secured Parties a security interest in the Collateral (as defined in the
Security Agreement).
(3) The Company, as issuer, and RMI and NBI, as guarantors,
have entered into a First Supplemental Indenture (the "SUPPLEMENTAL INDENTURE")
dated as of the date hereof with The Ravelston Corporation Limited, Sugra
Limited and the Collateral Agent in order to amend the Indenture to permit,
among other things, the issuance of New Notes (as defined in the Supplemental
Indenture) pursuant to the New Notes Indenture (as defined in the Supplemental
Indenture).
(4) It is desired to amend certain provisions of the Security
Agreement to reflect the terms of the Supplemental Indenture.
(5) The Company intends to issue up to $15,000,000 in
aggregate principal amount of New Notes to be secured by a second priority
security interest in the Senior Notes Collateral pursuant to a security
agreement dated the date hereof among the Grantors and HSBC Bank USA, National
Association, as trustee and as collateral agent under the New Notes Indenture
(the "NEW NOTES COLLATERAL AGENT") and an intercreditor agreement dated the date
hereof among the Company, Trustee, the Collateral Agent, the trustee for the New
Notes and the New Notes Collateral Agent.
(6) For all purposes of this First Amendment to Security
Agreement, except as otherwise stated herein, capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the
Security Agreement or in the Note Documents (as defined in the Security
Agreement), as the case may be.
NOW THEREFORE, in consideration of the premises and in order
to implement the terms of the Supplemental Indenture, each Grantor agrees with
the Collateral Agent and the other Secured Parties that the Security Agreement
will be hereby amended as follows:
Section 1. Amendment of Section 10 of the Security Agreement. The third sentence
of Section 10(a) of the Security Agreement is hereby amended and restated by
deleting that sentence in its entirety and replacing it with the following:
"Except for the security agreement dated as of September 30,
2004 (said agreement, as it may hereafter be amended, amended
and restated, supplemented or otherwise modified from time to
time, being the "NEW NOTES SECURITY AGREEMENT") among the
Grantors and HSBC Bank USA, National Association, as trustee
and as collateral agent under the New Notes Indenture, no
Grantor will become bound by a security agreement
authenticated by another Person which by its terms may pertain
to the Collateral (including, without limitation, a security
agreement authenticated as provided in Section 9-203(d) of the
UCC) without giving the Collateral Agent 30 days prior written
notice thereof and taking all action required by the
Collateral Agent to ensure that the perfection and first
priority nature of the Collateral Agent's security interest in
the Collateral will be maintained."
Section 2. Amendments of Section 13 of the Security Agreement.
(a) Subsection 13(a)(ii) of the Security Agreement is hereby
amended and restated by deleting that subsection in its entirety and replacing
it with the following:
"(ii) create or suffer to exist any Lien upon or with respect
to any of the Collateral of such Grantor except for: (A) the
pledge, assignment and security interest created under this
Agreement and (B) the pledge, assignment and security interest
created under the New Notes Security Agreement."
(b) Section 13 of the Security Agreement is hereby amended to
add a new Section 13(c) at the end thereof as follows:
"(c) The Collateral Agent is authorized to hold the Collateral
as agent for the benefit of the secured parties under the New Notes Security
Agreement, including the Second Priority Notes Collateral Agent (as defined in
the New Notes Security Agreement) (collectively, the "SECOND PRIORITY SECURED
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PARTIES"), to the extent of such secured parties' interest in the Collateral as
provided in, and otherwise subject to the terms and conditions of, the New Notes
Security Agreement and the New Notes Intercreditor Agreement, provided that the
Collateral Agent shall not be required to take any action with respect to the
Collateral or any proceeds thereof in favor of the Second Priority Secured
Parties unless expressly provided in the New Notes Intercreditor Agreement or an
instruction properly given pursuant thereto.
Section 3. Amendment of Section 17 of the Security Agreement.
The last sentence of Section 17(b) of the Security Agreement is hereby amended
and restated by deleting that sentence in its entirety and replacing it with the
following:
Any surplus of such cash or cash proceeds held by or on the
behalf of the Collateral Agent and remaining after payment in full of all the
Secured Obligations shall be paid over to the Second Priority Notes Collateral
Agent, if such turnover is required by the applicable provisions of the New
Notes Intercreditor Agreement, and if not so required, to the applicable Grantor
or to whomsoever may be lawfully entitled to receive such surplus.
Section 4. Amendment of Schedule III to the Security
Agreement. Schedule III to the Security Agreement is hereby amended and restated
by deleting that Schedule in its entirety and replacing it with Schedule A
annexed hereto.
Section 5. Miscellaneous.
(a) Effectiveness. Upon the execution hereof, the amendments
to the Security Agreement set forth herein shall become effective, the Security
Agreement shall be modified in accordance therewith and this First Amendment to
Security Agreement shall form part of the Security Agreement for all purposes.
(b) GOVERNING LAW. THIS FIRST AMENDMENT TO SECURITY AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
(c) Counterparts. This First Amendment to Security Agreement
may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page to this
First Amendment to Security Agreement by telecopier shall be effective as
delivery of an original executed counterpart of this First Amendment to Security
Agreement.
(d) Successors and Assigns. All covenants and agreements in
this First Amendment to Security Agreement by the Company or any other Grantor
shall bind its successors and assigns, whether so expressed or not.
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(e) Conflicts. In the event of a conflict between the terms
and conditions of the Security Agreement and the terms and conditions of this
First Amendment to Security Agreement, the terms and conditions of this First
Amendment to Security Agreement shall prevail.
(f) Headings. The Section and Subsection headings in this
First Amendment to Security Agreement are for convenience only and shall not
affect the construction hereof.
(g) Separability Clause. In case any provision in this First
Amendment to Security Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
anyway be affected or impaired thereby.
(h) Benefits of First Amendment to Security Agreement. Nothing
in this First Amendment to Security Agreement, express or implied, shall give to
any Person (other than the parties hereto, their successors hereunder and the
Holders) any benefit or any legal or equitable right, remedy or claim under this
First Amendment to Security Agreement.
(i) The Trustee and the Collateral Agent. The recitals herein
shall be taken as statements of the Grantors and neither the Trustee nor the
Collateral Agent shall assume any responsibility for their correctness. Neither
the Trustee nor the Collateral Agent make any representations as to the validity
or sufficiency of this First Amendment to Security Agreement.
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IN WITNESS WHEREOF, each of parties hereto and the Collateral
Agent have caused this First Amendment to Security Agreement to be duly
executed, all as of the day and year first written above.
XXXXXXXXX INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Co-COO
RAVELSTON MANAGEMENT INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive VP
504468 N.B. INC.
By: /s/ Xxxxx X. Xxxxx
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Title: Executive VP
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Trustee and as Collateral Agent under the
Indenture
By: /s/ Xxxxxx X. Xxxxxxx
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Title: CCTS Vice President
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SCHEDULE A TO THE
FIRST AMENDMENT TO SECURITY AGREEMENT
ASSIGNMENTS AGREEMENTS
GRANTOR ASSIGNED AGREEMENT
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RMI Services Agreement between Xxxxxxxxx International Inc. and The
Ravelston Corporation Limited, dated as of January 1, 1998 as
assigned by The Ravelston Corporation Limited to Ravelston
Management Inc. pursuant to a Transfer and Consent Agreement
dated July 5, 2002 (as amended, amended and restated, or
otherwise modified or supplemented from time to time).
(Agreement has been terminated).
RMI Amended and Restated Services Agreement between Xxxxxxxxx
Canadian Publishing Holdings Co. and The Ravelston Corporation
Limited, dated as of December 1, 1999 as assigned by The
Ravelston Corporation Limited to Ravelston Management Inc.
pursuant to a Transfer and Consent Agreement dated July 5, 2002
(as amended, amended and restated, or otherwise modified or
supplemented from time to time). (Agreement has been
terminated).
HI Support Agreement between Xxxxxxxxx Inc. and Ravelston
Management Inc. dated as of March 10, 2003 (as amended, amended
and restated, or otherwise modified or supplemented from time to
time).
