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Exhibit 99.06
SECURITIES PLEDGE AGREEMENT
TO: CANADIAN IMPERIAL BANK OF COMMERCE
Commerce Court West - 7th Floor
Toronto, Ontario
M5L 1A2
WHEREAS in order to secure the due payment and performance of the Obligations
(as defined below), the undersigned (the "Debtor") has agreed to pledge the
Pledged Securities (as defined below) to Canadian Imperial Bank of Commerce
(the "Bank");
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are conclusively acknowledged by the parties hereto, the Debtor hereby
agrees as follows:
1. DEFINED TERMS. In this Agreement, the following words have the following
meanings:
"Companies" means the corporations, companies, partnerships, limited
partnerships, trusts and other entities listed under the heading "Companies" in
Schedule "A" and their respective successors;
"Default" means a failure to pay any of the Obligations when due;
"Lien" means a mortgage, hypothec, title retention, pledge, lien, charge,
security interest or other encumbrance whatsoever, whether fixed or floating
and howsoever created or arising;
"Obligations" means all present and future indebtedness and liabilities of
every kind, nature and description (whether direct or indirect, joint or
several, absolute or contingent, matured or unmatured) of the Debtor to the
Bank under or pursuant to the guarantee dated the date hereof made by the
Debtor in favour of the Bank in respect of Xxxxxxxxx International Inc. and any
unpaid balance thereof; and
"Pledged Securities" means the securities listed under the heading "Pledged
Securities" in Schedule "A", together with any other securities in the capital
of the Companies owned by the Debtor from time to time (other than 15,950,000
Class A Common Stock of Xxxxxxxxx International Inc. presently owned by the
Debtor and evidenced or represented by share certificate #A0358).
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2. PLEDGE. As general and continuing collateral security for the payment and
performance of all Obligations, the Debtor hereby assigns and pledges to and in
favour of the Bank, and the Debtor hereby grants to the Bank a continuing
security interest in the following (collectively, the "Collateral"): (i) the
Pledged Securities, together with any replacements thereof and substitutions
therefor, and all certificates and instruments evidencing or representing such
securities; (ii) all dividends, whether in cash, kind or stock, received or
receivable upon or in respect of any of the Pledged Securities 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 or otherwise distributed in
respect thereof or which will in any way be charged to, or payable or paid out
of, the capital of any of the Companies on account of the Pledged Securities;
(iii) all other property that may at any time be received or receivable by or
otherwise distributed to the Debtor in respect of, or in substitution for, or
in exchange for, any of the foregoing; and (iv) all cash, securities and other
proceeds of the foregoing and all rights and interests of the Debtor in respect
thereof or evidenced thereby, including all moneys received from time to time
by the Debtor in connection with the sale or other disposition of any of the
Pledged Securities; provided, however, that the Debtor will not sell or
otherwise dispose of any of the Pledged Securities or purport to do any of the
foregoing without the prior written consent of the Bank.
3. DELIVERY OF PLEDGED SECURITIES. The certificates representing the Pledged
Securities duly endorsed by the appropriate person in blank for transfer or
accompanied by powers of attorney satisfactory to the Bank will forthwith be
delivered to and remain in the custody of the Bank or its nominee. All Pledged
Securities may, at the option of the Bank, be registered in the name of the
Bank or its nominee. If the Bank so requests, the certificates representing
the Pledged Securities will also be guaranteed by a Canadian chartered bank.
4. REPRESENTATIONS AND WARRANTIES. The Debtor hereby represents and warrants
to the Bank and acknowledges that the Bank is relying thereon, notwithstanding
any investigation by the Bank or otherwise, that: (i) the Debtor is the lawful
owner of the Collateral, free and clear of any and all Liens or claims of
others other than any Lien granted by the Debtor to the Bank hereunder or Liens
in favour of Canadian Imperial Bank of Commerce, with full right to deliver,
assign, pledge and charge the Collateral to the Bank pursuant hereto; (ii) the
Pledged Securities represent all of the issued and outstanding shares in the
capital of each of the Companies held by the Debtor (other than 15,950,000
Class A Common Stock of Xxxxxxxxx International Inc. referred to in the
definition of "Pledged Securities"); (iii) the Pledged Securities are validly
issued, fully paid and non-assessable; (iv) there is no existing agreement,
option,
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right or privilege capable of becoming an agreement or option pursuant to which
the Debtor would be required to sell or otherwise dispose of any of the Pledged
Securities; (v) except as otherwise agreed by the Bank in writing, the Liens
granted by the Debtor to the Bank pursuant to this Agreement constitute Liens
on the Collateral in favour of the Bank which are prior to all other Liens on
the Collateral other than Liens in favour of Canadian Imperial Bank of
Commerce, whether created by the Debtor or any other Person, and in existence
on the date hereof; (vi) the Debtor has the power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant
the Lien on the Collateral pursuant to, this Agreement and the Debtor has taken
all necessary corporate action to authorize its execution, delivery and
performance of, and grant of the Lien on the Collateral pursuant to, this
Agreement; (vii) this Agreement constitutes a legal, valid and binding
obligation of the Debtor, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity; (viii) the execution, delivery
and performance of this Agreement will not violate any provision or requirement
of any law or contractual obligation of the Debtor and will not result in the
creation or imposition of any Lien on any of the properties or revenues of the
Debtor pursuant to any requirement of law or contractual obligation of the
Debtor; (ix) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or governmental authority and no consent of any
other person (including any shareholder or creditor of the Debtor), is required
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such as have been obtained or made
and are in full force and effect, and the terms of which have been disclosed to
the Bank; and (x) no litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of the
Debtor, threatened by or against the Debtor or against any of its properties or
revenues which may materially adversely affect the business, property or
financial or other condition of the Debtor.
5. COVENANTS. The Debtor covenants and agrees with the Bank that: (i) at any
time and from time to time, upon the written request of the Bank, and at the
sole expense of the Debtor, the Debtor will promptly and duly execute and
deliver such further instruments and documents and take such further action as
the Bank may request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including the filing or execution of any financing or financing change
statements under any applicable legislation in effect in any jurisdiction with
respect to the Liens created hereby; (ii) the Debtor authorizes the Bank to
file any such financing or financing change statement without the
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signature of the Debtor to the extent permitted by applicable law; (iii) the
Debtor will not create, incur or permit to exist, but will defend the
Collateral against, and will take such other action as is necessary to remove,
any Lien or claim on or to the Collateral, other than the Liens created hereby
and Liens in favour of Canadian Imperial Bank of Commerce and other than as
permitted in writing by the Bank; (iv) the Debtor will not sell, transfer,
lease or otherwise dispose of any of the Collateral except as permitted in
writing by the Bank; and (v) the Debtor will ensure that at the request of the
Bank, all Pledged Securities are registered in the name of the Bank or its
nominee, that the certificates representing the Pledged Securities will be
forthwith delivered to and remain in the custody of the Bank or its nominee,
and that all certificates, instruments or other documents representing or
evidencing any Pledged Securities acquired or issued subsequent to the date
hereof will be registered in the name of the Bank or its nominee and will
forthwith after issuance be delivered to, and remain in the custody of, the
Bank or its nominee.
6. RIGHTS AND DUTIES OF BANK. The Bank will have and be entitled to exercise
all such powers hereunder as are specifically delegated to the Bank by the
terms hereof, together with such powers as are incidental thereto. The Bank
may execute any of its duties hereunder by or through agents and will be
entitled to retain counsel and to act in reliance upon the advice of such
counsel concerning all matters pertaining to its duties hereunder. The Bank
and any nominee on its behalf will be bound to exercise in the holding of the
Pledged Securities and other Collateral only the same degree of care as it
would exercise with respect to similar property of its own held in the same
place. Neither the Bank, nor any nominee acting on behalf of the Bank, nor any
director, officer or employee of the Bank or such nominee, will be liable for
any action taken or admitted to be taken by it hereunder or in connection
herewith except for its own gross negligence or wilful misconduct.
7. VOTING RIGHTS. Unless a Default has occurred and is continuing, the Debtor
will be entitled to exercise all voting power from time to time exercisable in
respect of the Pledged Securities and give consents, waivers and ratifications
in respect thereof. Immediately upon the occurrence and during the continuance
of any Default, all such rights of the Debtor to vote and give consents,
waivers and ratifications will cease and the Bank will be entitled to exercise
all such voting rights and to give all consents, waivers and ratifications as
permitted by the Bank.
8. DIVIDENDS. Unless a Default has occurred and is continuing, the Debtor
will, subject to any agreement with the Bank to the contrary, be entitled to
receive any and all cash dividends and other distributions on the Pledged
Securities which it is
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otherwise entitled to receive. If a Default has occurred and is continuing,
the Bank will have the sole and exclusive right and authority to receive and
retain the dividends and other distributions which the Debtor would otherwise
be authorized to receive. Any money and other property paid over to or
received by the Bank pursuant to the provisions of this Section 8 will be
retained by the Bank as additional Collateral hereunder and be applied in
accordance with the provisions hereof.
9. REMEDIES. If a Default has occurred and is continuing, the Bank may,
without notice to or the consent of the Debtor or any other person (other than
as required by applicable law), take all or any of the following actions:
(a) transfer all or any part of the Collateral into the name of the Bank or
any nominee on behalf of the Bank, with or without disclosing that such
Collateral is subject to the Lien hereunder;
(b) notify any parties obligated on any of the Collateral to make payment to
the Bank of any amounts due or to become due thereunder;
(c) exercise any and all rights of conversion, exchange, subscription or any
other rights, privileges or options pertaining to any of the Pledged
Securities as if it were the absolute owner thereof;
(d) from time to time realize upon, collect, sell, transfer, assign, give
options to purchase, or otherwise dispose of and deliver the Pledged
Securities and other Collateral, or any part thereof, in such a manner as
may seem to it advisable, and for the purposes thereof each and every
requirement relating thereto and prescribed by law or otherwise is hereby
waived to the extent permitted by law;
(e) enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part of any property in addition
to the Collateral, securing any of the Obligations, or compromise or
extend or renew for any period (whether or not longer than the original
period) any obligations of any nature of any party with respect to any
property; and
(f) to the extent permitted by applicable law, the Bank may purchase any or
all of the Pledged Securities and other Collateral, whether in connection
with a sale made under the power of sale herein contained or pursuant to
judicial proceedings or otherwise;
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provided, however, that the Bank will not be bound to deal with the Pledged
Securities and other Collateral as aforesaid, and will not be liable for any
loss which may be occasioned by any failure to do so and no action of the Bank
permitted hereunder will impair or affect any rights of the Bank in and to the
Collateral.
10. APPLICATION OF PROCEEDS. After payment of expenses as provided in Section
11 hereof, the balance of any proceeds received by the Bank in or in connection
with realizing, collecting, selling, transferring, delivering or obtaining
payment of the Collateral or any part thereof may be held by the Bank and may,
as and when the Bank thinks fit, be applied on account of such part of the
Obligations as to the Bank seems best, without prejudice to the Bank's claims
upon the Debtor for any deficiency.
11. PAYMENT OF EXPENSES. The Bank may charge on its own behalf and also pay
to others all out-of-pocket expenses of the Bank and others retained by the
Bank, incurred in connection with realizing, collecting, selling, transferring,
delivering or obtaining payment of the Pledged Securities or any other
Collateral or any part thereof, or in connection with the administration or
amendment of this Agreement or incidental to the care, safe keeping, or
otherwise of any and all of the Collateral, and may deduct the amount of such
sums from any proceeds of the Collateral. The Debtor agrees to indemnify and
hold harmless the Bank from and against any and all liability incurred by the
Bank, or any nominee, agent or employees of the Bank hereunder or in connection
herewith, unless such liability was due to wilful misconduct or gross
negligence on the part of the Bank or such nominee or agent.
12. ASSIGNMENT. This Agreement will be binding upon the Debtor and its
successors and permitted assigns and will enure to the benefit of and be
enforceable by the Bank and its respective successors and assigns. The Debtor
will not assign all or any part of this Agreement without the Bank's prior
written consent.
13. NO WAIVER; CUMULATIVE REMEDIES. The Bank will not by any act, delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising, on the
part of the Bank, any right, power or privilege hereunder will operate as a
waiver thereof.
14. COMMUNICATION. All communications provided for or permitted hereunder
shall be in writing, personally delivered to an officer or other responsible
employee of the addressee or sent by registered mail, charges prepaid, or by
telecopy, to the address or telecopy number set forth opposite the name of the
Debtor in
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the execution pages of this Agreement, in the case of the Debtor, and to
Canadian Imperial Bank of Commerce, Head Office, Commerce Court West, 7th
Floor, Toronto, Ontario M5L 1A2 (Attention: Vice-President, Global Media &
Telecommunications) (Telecopy: (000) 000-0000), in the case of the Bank, or to
such other address as the applicable party hereto may from time to time
designate to the other in such manner. Any communication so personally
delivered shall be deemed to have been validly and effectively given on the
date of such delivery. Communications so sent by telecopy shall be deemed to
have been validly and effectively given on the business day next following the
day on which it is sent. Communications so sent by mail shall be deemed to
have been validly and effectively given on the fifth business day next
following the day on which it is sent.
15. DEALINGS BY BANK. The Bank may grant extensions of time and other
indulgences, take and give up security, accept compositions, grant releases and
discharges and otherwise deal with the Debtor and any third party having
dealings with the Debtor, and with the Collateral or any part thereof, and with
other security and sureties, as the Bank may see fit, all without prejudice to
the Obligations or to the rights of the Bank under this Agreement. The Bank
will be accountable only for amounts that the Bank actually receives as a
result of the exercise of such powers, and neither the Bank nor any of its
officers, directors, employees or agents will be responsible to the Debtor for
any act or failure to act hereunder, except for its or their own gross
negligence or wilful misconduct.
16. NON-EXCLUSIVITY OF REMEDIES. This Agreement and the Liens arising
hereunder are in addition to and not in substitution for any other security now
or hereafter held by the Bank in respect of the Debtor, the Obligations or the
Collateral. No remedy for the enforcement of the rights of the Bank hereunder
will be exclusive of or dependent on any other such remedy but any one or more
of such remedies may from time to time be exercised independently or in
combination.
17. POWER OF ATTORNEY. The Debtor hereby irrevocably constitutes and appoints
the Bank and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact, with full irrevocable power and authority
in the place and stead of the Debtor and in the name of the Debtor or in its
own name, from time to time in the Bank's discretion, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate
action, to do, make and execute any and all statements, acts, matters,
documents, instruments and things which may be necessary or desirable to
accomplish the purposes of this Agreement and from time to time to exercise all
rights and powers and to perform all acts of ownership in respect to the
Pledged Securities to the same extent as the Debtor might have done were it not
for this Agreement. The Debtor hereby ratifies
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all that said attorneys will lawfully do or cause to be done by virtue hereof.
This power of attorney is a power coupled with an interest and will be
irrevocable until the Obligations have been paid and performed in full.
18. NO MERGER. Neither the taking and holding of the Pledged Securities and
other Collateral nor the obtaining of any judgment by the Bank will operate as
a merger of any Obligation or any other indebtedness or liability of the Debtor
to the Bank or operate to prejudice the security constituted by this Agreement.
19. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, 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 will not invalidate or render unenforceable such provision in any
other jurisdiction.
20. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of Ontario.
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All agreements,
representations, warranties and covenants made by or on behalf of the Debtor
herein are material, will be considered to have been relied upon by the Bank
and will survive the execution and delivery of this Agreement or any
investigation made at any time by or on behalf of the Bank and any disposition
or payment of the Obligations until repayment in full thereof.
22. ACKNOWLEDGEMENT OF RECEIPT. The Debtor acknowledges receipt of an
executed copy of this Agreement.
DATED: May 24, 1996.
ADDRESS 3184081 CANADA LIMITED
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx By: /s/ X.X. XXXXX
M5K 1N2 --------------------
Name: Xxxxxxx X. Xxxxx
Attention: President Title: Vice President &
Secretary
Facsimile: (000) 000-0000
By: /s/ X.X. XXXXXXXX
--------------------
Name: X. X. Xxxxxxxx
Title: President
Schedule A - Pledged Securities
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SCHEDULE "A"
Certificate
Companies Pledged Securities Number No. Class
--------- ------------------ ----------- --- -----
1. Xxxxxxxxx International Inc. 7,539,028 Class A A0499 Common Stock
