CANADIAN SECURITY AGREEMENT Dated October 18, 2005 Amended and Restated as of March 31, 2009 From THE GRANTORS REFERRED TO HEREIN AS GRANTORS To CITICORP USA, INC. AS AGENT
EXECUTION
COPY
Exhibit
(4.10)
Dated
October 18, 2005
Amended
and Restated as of March 31, 2009
From
THE
GRANTORS REFERRED TO HEREIN
AS
GRANTORS
To
CITICORP
USA, INC.
AS
AGENT
TABLE
OF CONTENTS
Page
GRANT
OF SECURITY
|
2
|
SECTION
2
|
SECURITY
FOR OBLIGATIONS
|
6
|
SECTION
3
|
GRANTORS
REMAIN LIABLE
|
7
|
SECTION
4
|
DELIVERY
AND CONTROL OF SECURITY COLLATERAL
|
7
|
SECTION
5
|
MAINTAINING
THE ACCOUNT COLLATERAL
|
9
|
SECTION
6
|
REPRESENTATIONS
AND WARRANTIES
|
9
|
SECTION
7
|
FURTHER
ASSURANCES
|
13
|
SECTION
8
|
AS
TO EQUIPMENT AND INVENTORY
|
14
|
SECTION
9
|
INSURANCE
|
14
|
SECTION
10
|
POST-CLOSING
CHANGES; COLLECTIONS ON ASSIGNED AGREEMENTS AND
RECEIVABLES
16
|
SECTION
11
|
AS
TO INTELLECTUAL PROPERTY
COLLATERAL 17
|
SECTION
12
|
VOTING
RIGHTS; DIVIDENDS;
ETC
18
|
SECTION
13
|
AS
TO THE ASSIGNED
AGREEMENTS
19
|
SECTION
14
|
AS
TO LETTER-OF-CREDIT
RIGHTS 20
|
SECTION
15
|
SECTION
15TRANSFERS AND OTHER LIENS; ADDITIONAL
SHARES 20
|
SECTION
16
|
SECTION
16AGENT APPOINTED ATTORNEY IN
FACT
21
|
SECTION
17
|
AGENT
MAY
PERFORM
21
|
SECTION
18
|
THE
AGENT'S
DUTIES
21
|
SECTION
19
|
REMEDIES
22
|
SECTION
20
|
INDEMNITY
AND
EXPENSES
25
|
SECTION
21
|
AMENDMENTS;
WAIVERS; ADDITIONAL GRANTORS;
ETC 25
|
SECTION
22
|
CONFIDENTIALITY;
NOTICES;
REFERENCES
26
|
SECTION
23
|
CONTINUING
SECURITY INTEREST; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT
27
|
SECTION
24
|
RELEASE;
TERMINATION
27
|
SECTION
25
|
CURRENCY
REFERENCES
28
|
SECTION
26
|
EXECUTION
IN
COUNTERPARTS
28
|
SECTION
27
|
GOVERNING
LAW THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE
WITH, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS
OF
CANADA APPLICABLE
THEREIN
28
|
-i-
|
TABLE
OF CONTENTS
(continued)
SCHEDULES
|
Schedule
I - Investment
Property
Schedule
II - Pledged
Deposit Accounts
Schedule
III - Receivables
and Agreement Collateral
Schedule
IV - Intellectual
Property
Schedule
V - Location,
Chief Executive Office, Type of Organization, Jurisdiction of Organization and
Organizational
Identification Number
Schedule
VI - Changes
in Name, Location, Etc.
Schedule
VII - Letters
of Credit
Schedule
VIII - Equipment
Locations
Schedule
IX - Inventory
Locations
Schedule
X - Collateral
Reserved for Sale
Exhibits
Exhibit
A - Form
of Consent and Agreement
Exhibit
B - Form
of Intellectual Property Security Agreement
Exhibit
C - Form
of Intellectual Property Security Agreement Supplement
Exhibit
D - Form
of Security Agreement Supplement
-ii-
|
CANADIAN SECURITY AGREEMENT dated
October 18, 2005, as amended and restated as of March 31, 2009 (the "Agreement") made by Kodak
Canada Inc., an Ontario corporation (the "Borrower"), and the other
Persons listed on the signature pages hereof, or which at any time execute and
deliver a Canadian Security Agreement Supplement in substantially the form
attached hereto as Exhibit C (the Borrower and such Persons so listed being,
collectively, the "Grantors"), to Citicorp USA,
Inc., as Agent (in such capacity, together with any successor Agent appointed
pursuant to Article VIII of the Credit Agreement (as hereinafter defined), the
"Agent") for the Secured
Parties (as hereinafter defined).
PRELIMINARY
STATEMENTS
(1) Xxxxxxx
Kodak Company and Kodak Graphic Communications Canada Company entered into a
Credit Agreement dated as of October 18, 2005 with the Lenders and the Agents
(each as defined therein) as the same has been amended and restated by that
certain Amended and Restated Credit Agreement dated as of the date hereof
entered into by Xxxxxxx Kodak Company and the Borrower with the Lenders and the
Agents (each as defined therein) (said Amended and Restated Credit Agreement, as
it may hereafter be amended, amended and restated, supplemented or otherwise
modified from time to time, being the "Credit
Agreement").
(2) Each
Grantor is the owner of the shares of stock or other equity interests (the
"Initial Pledged
Equity") set forth opposite such Grantor's name on and as otherwise
described in Part I of Schedule I hereto and issued by the Persons named therein
and of the indebtedness owed to such Grantor (the "Initial Pledged Debt") set
forth opposite such Grantor's name on and as otherwise described in Part II of
Schedule I hereto and issued by the obligors named therein.
(3) Each
Grantor is the owner of the deposit accounts (the "Pledged Deposit Accounts") set
forth opposite such Grantor's name on Schedule II hereto.
(4) It is a
condition precedent to the making of Advances by the Lenders under the Credit
Agreement that the Grantors shall have granted the security interests
contemplated by this Agreement. Each Grantor will derive substantial
direct or indirect benefit from the transactions contemplated by this Agreement,
the Credit Agreement and the other Loan Documents.
(5) Terms
defined in the Credit Agreement and not otherwise defined in this Agreement are
used in this Agreement as defined in the Credit Agreement. Further,
unless otherwise defined in this Agreement or in the Credit Agreement and unless
the context otherwise requires, all the terms used in this Agreement without
initial capitals, which are defined in the PPSA (as defined below) or the STA
(as defined below), have the same meanings in this Agreement as in the PPSA or
the STA, as applicable. "PPSA" means the Personal Property Security
Act as in effect from time to time in the Province of Ontario; provided that, if the
validity, perfection or the effect of perfection or non-perfection or the
priority of the security interest in any Collateral is governed by the Personal Property Security
Act as in effect in a jurisdiction other than the Province of Ontario,
"PPSA" means the Personal Property Security
Act as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof
- 2 -
(6) relating
to such validity, perfection, effect of perfection or non-perfection or
priority. "STA" means the Securities Xxxxxxxx Xxx,
0000, S.O. 2006, c.8.
NOW, THEREFORE, in consideration of the
premises and in order to induce the Lenders to make Advances under the Credit
Agreement, each Grantor hereby agrees with the Agent for the ratable benefit of
the Secured Parties as follows:
SECTION
1
|
GRANT
OF SECURITY
|
(1) Each
Grantor hereby grants to the Agent, for the ratable benefit of the Secured
Parties, a security interest and a security interest is taken in such Grantor's
right, title and interest in and to all of such Grantor's present and future
undertaking and property (collectively, the "Collateral") including,
without limitation, all its present and after acquired personal property and the
following, in each case, as to each type of property, whether now owned or
hereafter acquired by such Grantor, wherever located, and whether now or
hereafter existing or arising, provided, however, in no event shall
any lien or security interest be created in any asset which is, or hereafter
becomes, a "Principal Property" or consists of the capital stock or other equity
interest in an entity which is, or hereafter becomes, a "Restricted Subsidiary"
as such terms are defined in the Indenture (as defined in the Credit Agreement),
and provided, further, that notwithstanding
anything herein to the contrary, in no event shall the Collateral (or, for
certainty, the Pledged Equity, or Security Collateral) include or the security
interest granted under this Section 1 hereof attach to: (A) any assets of any
Grantor located outside of Canada, (B) any lease, license, contract, or
agreement or other property right, to which any Grantor is a party or of any of
its rights or interests thereunder if and for so long as the grant of such
security interest shall constitute or result in: (x) the abandonment,
invalidation, unenforceability or other impairment of any right, title or
interest of any Grantor therein, or (y) in a breach or termination pursuant to
the terms of, or a default under, any such lease, license, contract, agreement
or other property right, (C) any of the outstanding capital stock of a CFC in
excess of 65% of the voting power of all classes of capital stock of such CFC
entitled to vote, (D) any real property or fixture, or (E) the last day of the
term of any lease or any agreement therefor now held or hereafter acquired by a
Grantor, but should the Agent enforce its security interest therein the Grantor
will thereafter stand possessed of such last day and must hold it in trust to
assign the same to any person acquiring such term in the course of the
enforcement of such security interest, or (F) any capital stock or assets of
1680382 Ontario Limited:
(a)
|
all
equipment in all of its forms, including, without limitation, all
machinery, tools, motor vehicles, vessels, aircraft and furniture
(excepting all fixtures), all parts thereof and all accessions thereto and
all other tangible personal property which is not Inventory (as hereafter
defined) or consumer goods (any and all such property being the "Equipment");
|
(b)
|
all
inventory in all of its forms, including, without limitation, (i) all raw
materials, work in process, finished goods and materials used or consumed
in the manufacture, production, preparation or shipping thereof, (ii)
goods in which such Grantor has an interest in mass or a joint or other
interest or right of any kind (including, without limitation, goods in
which such Grantor has an interest or right as consignee) and (iii) goods
that are returned to or repossessed or stopped
in
|
- 3 -
(c)
|
transit
by such Grantor, and all accessions thereto and products thereof and
documents therefor, (any and all such property being the "Inventory");
|
(d)
|
all
accounts, instruments (including, without limitation, promissory notes),
deposit accounts, general intangibles (including, without limitation,
payment intangibles) and other obligations of any kind owing to Grantors,
whether or not arising out of or in connection with the sale or lease of
goods or the rendering of services and whether or not earned by
performance (any and all such instruments, deposit accounts, general
intangibles and other obligations to the extent not referred to in clause
(g) or (h) below, being the "Receivables", subject to
restrictions on assignment and/or all such supporting obligations,
security agreements, Liens, leases, letters of credit and other contracts
owing to Grantors or supporting the obligations owing to the Grantors
under the Receivables being the "Related
Contracts");
|
(e)
|
all
chattel paper, warehouse receipts, bills of lading and other documents of
title, whether negotiable or not;
|
(f)
|
all
coins or bills or other medium of exchange adopted for use as part of the
currency of Canada or of any foreign
government;
|
(g)
|
the
following (the "Security
Collateral"):
|
(i)
|
the
Initial Pledged Equity and the certificates, if any, representing the
Initial Pledged Equity, and all dividends, distributions, return of
capital, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of the Initial Pledged Equity and all warrants, rights or options
issued thereon or with respect
thereto;
|
(ii)
|
the
Initial Pledged Debt and the instruments, if any, evidencing the Initial
Pledged Debt, and all interest, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Initial Pledged
Debt;
|
(iii)
|
all
additional shares of stock and other equity interests from time to time
acquired by such Grantor in any manner of the issuers of such Pledged
Equity or of other Material Subsidiaries of such Borrower other than more
than 65% of the equity in any CFC, (such shares and other equity
interests, together with the Initial Pledged Equity, being the "Pledged Equity"), and
the certificates, if any, representing such additional shares or other
equity interests, and all dividends, distributions, return of capital,
cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of such shares or other equity interests and all warrants, rights
or options issued thereon or with respect
thereto;
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- 4 -
(iv)
|
all
additional indebtedness from time to time owed to such Grantor (such
indebtedness, together with the Initial Pledged Debt, being the "Pledged Debt") and the
instruments, if any, evidencing such indebtedness, and all interest, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
indebtedness;
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(v)
|
subject
to restrictions on assignment and/or transfer, all security entitlements
or commodity or futures contracts carried in a securities account or
commodity or futures account, all security entitlements with respect to
all financial assets from time to time credited to the Pledged Deposit
Accounts and all financial assets, and all dividends, distributions,
return of capital, interest, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such security entitlements or financial
assets and all warrants, rights or options issued thereon with respect
thereto; and
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(vi)
|
subject
to restrictions on assignment and/or transfer, all other investment
property (including, without limitation, all (A) securities, whether
certificated or uncertificated, (B) security entitlements, (C) securities
accounts, (D) commodity or futures contracts and (E) commodity or futures
accounts, but excluding any equity interest in any Affiliate excluded from
the Pledged Equity) in which such Grantor has now, or acquires from time
to time hereafter, any right, title or interest in any manner, and the
certificates or instruments, if any, representing or evidencing such
investment property, and all dividends, distributions, return of capital,
interest, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of such investment property and all warrants, rights or options
issued thereon or with respect
thereto;
|
(h)
|
subject
to restrictions on assignment and/or transfer, each Hedge Agreement to
which such Grantor is now or may hereafter become a party, in each case as
such agreements may be amended, amended and restated, supplemented or
otherwise modified from time to time (collectively, the "Assigned Agreements"),
including, without limitation, (i) all rights of such Grantor to receive
moneys due and to become due under or pursuant to the Assigned Agreements,
(ii) all rights of such Grantor to receive proceeds of any insurance,
indemnity, warranty or guarantee with respect to the Assigned Agreements,
(iii) claims of such Grantor for damages arising out of or for breach of
or default under the Assigned Agreements and (iv) the right of such
Grantor to terminate the Assigned Agreements, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder (all
such Collateral being the "Agreement
Collateral");
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(i)
|
the
following (collectively, the "Account
Collateral"):
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- 5 -
(j)
|
the
Pledged Deposit Accounts and all funds and financial assets from time to
time credited thereto (including, without limitation, all Cash
Equivalents), and all certificates and instruments, if any, from time to
time representing or evidencing the Pledged Deposit
Accounts;
|
(i)
|
all
promissory notes, certificates of deposit, cheques and other instruments
from time to time delivered to or otherwise possessed by the Agent for or
on behalf of such Grantor in substitution for or in addition to any or all
of the then existing Account Collateral;
and
|
(ii)
|
all
interest, dividends, distributions, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the then existing Account
Collateral;
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(k)
|
the
following (collectively, the "Intellectual Property
Collateral"):
|
(i)
|
all
patents, patent applications, utility models and statutory invention
registrations, all inventions claimed or disclosed therein and all
improvements thereto, other than those patents and related rights
currently contemplated to be sold by any Grantor listed on Schedule IV
attached hereto ("Patents");
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(ii)
|
all
trademarks, service marks, domain names, trade dress, logos, designs,
slogans, trade names, business names, corporate names and other source
identifiers, whether registered or unregistered, together, in each case,
with the goodwill symbolized thereby ("Trademarks");
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(iii)
|
all
copyrights, including, without limitation, copyrights in computer
software, internet web sites and the content thereof, whether registered
or unregistered ("Copyrights"); all
confidential and proprietary information, including, without limitation,
know-how, trade secrets, manufacturing and production processes and
techniques, inventions, research and development information, databases
and data, including, without limitation, technical data, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information
(collectively, "Trade
Secrets"), and all other intellectual, industrial and intangible
property of any type, including, without limitation, industrial designs
and integrated circuit
topographies;
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(iv)
|
except
as set forth above, all registrations and applications for registration
for any of the foregoing, including, without limitation, those
registrations and applications for registration, together with all
reissues, divisions, continuations, continuations-in-part, extensions,
renewals and reexaminations
thereof;
|
(v)
|
subject
to restrictions on assignment and/or transfer, all agreements, permits,
consents, orders and franchises relating to the license, development, use
or disclosure of any of the foregoing to which
such
|
- 6 -
(vi)
|
Grantor,
now or hereafter, is a party or a beneficiary ("IP Agreements");
and
|
(vii)
|
subject
to restrictions on assignment and/or transfer, any and all claims for
damages and injunctive relief for past, present and future infringement,
dilution, misappropriation, violation, misuse or breach with respect to
any of the foregoing, with the right, but not the obligation, to xxx for
and collect, or otherwise recover, such
damages;
|
(l)
|
all
proceeds of, collateral for, income, royalties and other payments now or
hereafter due and payable with respect to, and supporting obligations
relating to, any and all of the Collateral (including, without limitation,
proceeds, collateral and supporting obligations that constitute property
of the types described in clauses (a) through (i) of this Section 1) and,
to the extent not otherwise included, all (A) payments under insurance
(whether or not the Agent is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or otherwise
with respect to any of the foregoing Collateral, and (B) cash;
and
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(m)
|
all
books, papers, accounts, invoices, documents and other records in any form
evidencing or relating to any of the property described in this Section 1
and all contracts, instruments and other rights and benefits in respect
thereof and all replacements of, substitutions for and increases,
additions and accessions to any of the property described in this Section
1.
|
(2) The
Grantors each acknowledge that (i) value has been given, (ii) it has rights in
the Collateral (other than after-acquired Collateral), (iii) it has not agreed
to postpone the time of attachment of the security interests granted hereby,
(iv) security interests granted hereby in Collateral in which it acquires an
interest after the execution of this Agreement attach when it acquires such
interest, and (v) it has received a duplicate copy of this
Agreement.
SECTION
2
|
SECURITY
FOR OBLIGATIONS
|
This
Agreement secures, in the case of each Grantor, the payment and performance of
all obligations of such Grantor and the Subsidiaries of the Company now or
hereafter existing under (a) the Loan Documents, and (b) as disclosed to the
Agent from time to time and in an amount not to exceed $100,000,000 in the
aggregate, as to each Lender and its Affiliates, for so long as such Lender is a
party to the Credit Agreement, all agreements and other documents relating to
any treasury management services provided by any of the Lenders and their
Affiliates to the Company and any of its Subsidiaries, all agreements evidencing
any other obligations of the Company and any of the Subsidiaries owing to any of
the Lenders and their Affiliates including, without limitation, all letters of
credit issued by any of the Lenders and their Affiliates for the benefit of the
Company or any of its Subsidiaries, all Hedge Agreements entered into with the
Company or any of its Subsidiaries by any of the Lenders and their Affiliates,
and each agreement or instrument delivered by any Grantor or Subsidiary or the
Company pursuant to any of the foregoing, as the same may be amended from time
to time in accordance with the provisions thereof (the Loan Documents and the
documents described in this clause (b) are the
- 7 -
"Secured Agreements"), whether
direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, fees, premiums, penalties,
indemnifications, contract causes of action, costs, expenses or otherwise (all
such obligations being the "Secured Obligations") owing to
the Agent, the Lenders and their respective Affiliates that are party to any
Secured Agreement (the "Secured
Parties"). Without limiting the generality of the foregoing,
this Agreement secures, as to each Grantor, the payment of all amounts that
constitute part of the Secured Obligations and would be owed by such Grantor or
Subsidiary of the Company, as applicable, to any Secured Party under the Loan
Documents or Security Agreements but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving any of the Loan Parties and other Subsidiaries of the
Company.
SECTION
3
|
GRANTORS
REMAIN LIABLE
|
(a)
|
Anything
herein to the contrary notwithstanding, (a) each Grantor shall remain
liable under the contracts and agreements included in such Grantor's
Collateral to perform all of its duties and obligations thereunder to the
extent set forth therein to the same extent as if this Agreement had not
been executed, (b) the exercise by the Agent of any of the rights
hereunder shall not release any Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral
and (c) no Secured Party shall have any obligation or liability under the
contracts and agreements included in the Collateral by reason of this
Agreement or any other Loan Document, nor shall any Secured Party be
obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
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(b)
|
The
security interest granted hereby does not and will not extend to, and
Collateral will not include, any agreement, right, franchise, licence or
permit (the "Contractual Rights") to which a Grantor is a party or of
which the Grantor has the benefit, to the extent that the creation of the
security interest herein would constitute a breach of the terms of or
permit any person to terminate the Contractual Rights, but such Grantor
must hold its interest therein in trust for the Agent and will assign the
Contractual Rights to the Agent on behalf of the Secured Parties forthwith
upon obtaining the consent of the other party thereto. Each
Grantor agrees that it will, upon the request of the Agent, following the
occurrence and during the continuance of an Event of Default, use its
reasonable best efforts to obtain any consent required to permit any
Contractual Rights to be subjected to the security
interest.
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SECTION
4
|
DELIVERY
AND CONTROL OF SECURITY COLLATERAL
|
(a)
|
All
certificates or instruments representing or evidencing existing Security
Collateral shall be delivered to and held by or on behalf of the Agent
pursuant hereto and shall be in suitable form for transfer by delivery, or
shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to
the Agent except to the extent that such transfer or assignment is (x)
prohibited by applicable law or (y)
subject
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- 8 -
(b)
|
to
certain corporate actions by the holders or issuers of non-US Initial
Pledged Equity which have not occurred as of the Effective Date and
governmental approvals or consents to pledge or transfer with respect to
non-US Material Subsidiaries which have not yet been obtained as to which
Grantor shall use commercially reasonable efforts to complete as soon as
practicable after the date hereof.
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(c)
|
With
respect to any Security Collateral representing interests in Material
Subsidiaries in which any Grantor has any right, title or interest and
that constitutes an uncertificated security, such Grantor will use
commercially reasonable efforts to cause the issuer thereof to agree in an
authenticated record with such Grantor and the Agent that, upon notice
from the Agent that an Event of Default has occurred and is continuing,
such issuer will comply with instructions with respect to such Security
Collateral originated by the Agent without further consent of such
Grantor, such authenticated record to be in form and substance reasonably
satisfactory to the Agent. Upon the request of the Agent upon
the occurrence and during the continuance of an Event of Default, each
Grantor will notify each issuer of certificated Security Collateral as
provided in Section 4(e) below.
|
(d)
|
With
respect to any securities or commodity or futures account, any Security
Collateral that constitutes a security entitlement as to which the
financial institution acting as Agent hereunder is not the securities
intermediary, upon the request of the Agent upon the occurrence and during
the continuance of an Event of Default the relevant Grantor will use its
commercially reasonable efforts to cause the securities intermediary with
respect to such security or commodity or futures account or security
entitlement to identify in its records the Agent as the entitlement holder
thereof.
|
(e)
|
Upon
the request of the Agent upon the occurrence and during the continuance of
an Event of Default, each Grantor shall cause the Security Collateral to
be registered in the name of the Agent or such of its nominees as the
Agent shall direct, subject only to the revocable rights specified in
Section 12(a). In addition, the Agent shall have the right upon
the occurrence and during the continuance of an Event of Default to
convert Security Collateral consisting of financial assets credited to any
securities account to Security Collateral consisting of financial assets
held directly by the Agent, and to convert Security Collateral consisting
of financial assets held directly by the Agent to Security Collateral
consisting of financial assets credited to any securities or commodity or
futures account.
|
(f)
|
Upon
the request of the Agent upon the occurrence and during the continuance of
an Event of Default, each Grantor will notify each issuer of Security
Collateral granted by it hereunder that such Security Collateral is
subject to the security interest granted
hereunder.
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- 9 -
(g)
|
MAINTAINING
THE ACCOUNT COLLATERAL
|
So long
as any Advance or any other payment obligation of any Loan Party of which the
Borrower has notice under any Loan Document shall remain unpaid, or any Lender
shall have any Commitment:
(h)
|
Upon
request of the Agent made upon the occurrence and during the continuance
of an Event of Default, each Grantor will promptly enter into an agreement
with the financial institution holding the Pledged Account pursuant to
which such financial institution shall agree with such Grantor and the
Agent to, upon notice from the Agent, comply with instructions originated
by the Agent directing the disposition of funds in such deposit account
without the further consent of such Grantor, such agreement to be in form
and substance reasonably satisfactory to the Agent (a "Deposit Account Control
Agreement"), and instruct each Person obligated at any time to make
any payment to such Grantor for any reason (an "Obligor") to make such
payment to such a Pledged Deposit
Account.
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(i)
|
Upon
notice from the Agent that an Event of Default has occurred and is
continuing, each Grantor agrees to terminate any or all Pledged Deposit
Accounts and Deposit Account Control Agreements upon request by the
Agent.
|
(j)
|
The
Agent may, at any time and without notice to, or consent from, the
Grantor, transfer, or direct the transfer of, funds from the Pledged
Deposit Accounts to satisfy the Grantor's obligations under the Loan
Documents if an Event of Default shall have occurred and be
continuing. As soon as reasonably practicable after any such
transfer, the Agent agrees to give written notice thereof to the
applicable Grantor.
|
SECTION
5
|
REPRESENTATIONS
AND WARRANTIES
|
Each
Grantor represents and warrants as follows:
(a)
|
Such
Grantor's exact legal name, place of business, chief executive office, the
province in which it has tangible personal property, type of organization,
jurisdiction of formation as of the date hereof is set forth in Schedule V
hereto. Within the twelve months preceding the date hereof,
such Grantor has not changed its name, location, place of business, chief
executive office, type of organization, jurisdiction of organization or
organizational identification number from those set forth in Schedule V
hereto except as set forth in Schedule VI
hereto.
|
(b)
|
Such
Grantor is the owner of the Collateral granted or purported to be granted
by it free and clear of any Lien, claim, option or right of others, except
for the security interest created under this Agreement or Liens permitted
under the Credit Agreement (other than pursuant to Section 5.02(a)(vii) of
the Credit Agreement). No effective financing statement or
other instrument similar in effect covering all or any part of such
Collateral or listing such Grantor or any trade name of such Grantor as
debtor is on file in any recording office, except such as may exist
on
|
- 10 -
(c)
|
the
date of this Agreement, have been filed in favour of the Agent relating to
the Loan Documents or are otherwise permitted under the Credit
Agreement.
|
(d)
|
All
Equipment of such Grantor having a value in excess of $10,000,000 and
Inventory of such Grantor having a value in excess of $10,000,000 as of
the date hereof is located at the places specified therefor in Schedule
VIII and Schedule IX hereto, respectively. Such
Grantor has exclusive possession and control of its Inventory, other than
Inventory stored at any leased premises or third party
warehouse.
|
(e)
|
None
of the Receivables or Agreement Collateral is evidenced by a promissory
note or other instrument in excess of $10,000,000 that has not been
delivered to the Agent. All such Receivables or Agreement
Collateral valued in excess of $10,000,000 is listed on Schedule III
attached hereto.
|
(f)
|
All
Security Collateral consisting of certificated securities and instruments
with an aggregate fair market value in excess of $10,000,000 for all such
Security Collateral of the Grantors have been delivered to the
Agent.
|
(g)
|
If
such Grantor is an issuer of Security Collateral, such Grantor confirms
that it has received notice of the security interest granted
hereunder.
|
(h)
|
The
Pledged Equity pledged by such Grantor hereunder has been duly authorized
and validly issued and is fully paid and non assessable. The
Pledged Debt pledged by such Grantor hereunder has been duly authorized,
authenticated or issued and delivered, is the legal, valid and binding
obligation of the issuers thereof and, if evidenced by any
promissory notes, such promissory notes have been delivered to the Agent,
and is not in default.
|
(i)
|
The
Initial Pledged Equity pledged by such Grantor constitutes, as of the date
hereof, 100% of the issued and outstanding equity interests of the issuers
thereof indicated on Part I of Schedule I hereto. The Initial
Pledged Debt constitutes all of the outstanding Debt for Borrowed Money
owed to such Grantor by the issuers thereof as indicated on Part II of
Schedule I hereof.
|
(j)
|
Such
Grantor has no investment property with a market value in excess of
$10,000,000 as of the date hereof, other than the investment property
listed on Part III of Schedule I
hereto.
|
(k)
|
The
Assigned Agreements to which such Grantor is a party have been duly
authorized, executed and delivered by such Grantor and, to such Grantor's
knowledge, any material Assigned Agreements are in full force and effect
and are binding upon and enforceable against all parties thereto in
accordance with their terms.
|
(l)
|
Such
Grantor has no material deposit accounts subject to the grant or security
in Section 1 of this Agreement as of the date hereof, other than the
Pledged Deposit Accounts listed on Schedule II
hereto.
|
- 11 -
(m)
|
Such
Grantor is not a beneficiary or assignee under any letter of credit with a
stated amount in excess of $10,000,000 and issued by a United States or
Canadian financial institution as of the date hereof, other than the
letters of credit described in Schedule VII
hereto.
|
(n)
|
This
Agreement creates in favour of the Agent for the benefit of the Secured
Parties a valid security interest in the Collateral granted by such
Grantor under this Agreement, securing the payment of the Secured
Obligations except to the extent that control or possession by the Agent
is required for the creation of the security interest; all filings and
other actions necessary to perfect the security interest in the Collateral
granted by such Grantor have been duly made or taken and are in full force
and effect other than (i) federal registration which may be necessary to
perfect the Agent's security interest with respect to Collateral
consisting of vessels, rolling stock or aircraft; and (ii) actions
necessary to transfer and prior approval of or filings with any
governmental entity required in connection with any interest in Pledged
Equity; provided however, that the Agent will receive a security interest,
but not a first priority security interest, in (1) Collateral consisting
of any securities or commodity or futures account, (2) Account Collateral
maintained with a financial institution other than the Agent, (3) assets
encumbered by Liens on the date of this Agreement, (4) Collateral
evidenced by a certificate of title or consisting of vessels or aircraft,
(5) collateral subject to Liens permitted by the terms of the Credit
Agreement, (6) Collateral with an aggregate book value of less than
$10,000,000 and (7) other Collateral to the extent consented to by Agent
and approved by the Required Lenders (collectively, the "Specified
Collateral").
|
(o)
|
No
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third
party is required for (i) the grant by such Grantor of the security
interest granted hereunder or for the execution, delivery or performance
of this Agreement by such Grantor, (ii) the perfection or maintenance of
the security interest created hereunder (including the first priority
nature of such security interest in Collateral other than the Specified
Collateral), except for (A) the filing of financing statements under the
PPSA, which financing statements have been duly filed and are in full
force and effect, (B) subject to certain corporate actions by the holders
or issuers of non-US Initial Pledged Equity which have not occurred as of
the Effective Date, necessary to transfer or assign, (C) the actions
described in Section 4 with respect to the Security Collateral, (D)
federal filings which may be necessary in respect of vessels, rolling
stock or aircraft, or (iii) the exercise by the Agent of its voting or
other rights provided for in this Agreement or the remedies in respect of
the Collateral pursuant to this Agreement, except as set forth above and
as may be required in connection with the disposition of any portion of
the Security Collateral by laws affecting the offering and sale of
securities generally.
|
(p)
|
The
Inventory that has been produced or distributed by such Grantor has been
produced in compliance with all requirements of applicable law except
where the failure to so comply would not have a Material Adverse
Effect.
|
- 12 -
(q)
|
As
to itself and its Intellectual Property
Collateral:
|
(i)
|
The
operation of such Grantor's business as currently conducted or as
contemplated to be conducted and the use of the Intellectual Property
Collateral in connection therewith do not conflict with, infringe,
misappropriate, dilute, misuse or otherwise violate the intellectual
property rights of any third party except as are not expected to have a
Material Adverse Effect.
|
(ii)
|
Such
Grantor is the exclusive owner of all right, title and interest in and to
Patents, Trademarks and Copyrights contained in the Intellectual Property
Collateral, except as set forth in Schedule IV hereto with respect to
co-ownership of certain Patents, and such Grantor is entitled to use all
such Intellectual Property Collateral in accordance with applicable law,
subject to the terms of the IP
Agreements.
|
(iii)
|
The
Intellectual Property Collateral set forth on Schedule IV hereto includes
all of the registered patents, patent applications, domain names,
trademark registrations and applications, copyright registrations and
applications owned by such Grantor as of the date set forth
therein.
|
(iv)
|
The
issued Patents and registered Trademarks contained in the Intellectual
Property Collateral have not been adjudged invalid or unenforceable in
whole or part, and to the knowledge of the Borrower, are valid and
enforceable, except to the extent Grantor has ceased use of any such
registered Trademarks.
|
(v)
|
Such
Grantor has made or performed all filings, recordings and other acts and
has paid all required fees and taxes, as deemed necessary by Grantor in
its reasonable business discretion, to maintain and protect its interest
in each and every material item of Intellectual Property Collateral owned
by such Grantor in full force and
effect.
|
(vi)
|
No
claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property Collateral or the
validity of effectiveness of any such Intellectual Property Collateral,
nor does the Borrower know of any valid basis for any such claim, except,
in either case, for such claims that in the aggregate are not reasonably
expected to have a Material Adverse Effect. The use of such
Intellectual Property Collateral by the Borrower and its Subsidiaries does
not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, are not reasonably expected to have
a Material Adverse Effect. The consummation of the transactions
contemplated by the Loan Documents will not result in the termination or
impairment of any of the Intellectual Property
Collateral.
|
- 13 -
(vii)
|
With
respect to each IP Agreement: (A) to the knowledge of the Borrower, such
IP Agreement is valid and binding and in full force and effect; (B) such
IP Agreement will not cease to be valid and binding and in full force and
effect on terms identical to those currently in effect as a result of the
rights and interest granted herein, nor will the grant of such rights and
interest constitute a breach or default under such IP Agreement or
otherwise give any party thereto a right to terminate such IP Agreement;
(C) such Grantor has not received any notice of termination or
cancellation under such IP Agreement within the six months immediately
preceding the date of this Canadian Security Agreement; (D) within the six
months immediately preceding the date of this Canadian Security Agreement,
such Grantor has not received any notice of a breach or default under such
IP Agreement, which breach or default has not been cured; and (E) neither
such Grantor nor, to such Grantor's knowledge, any other party to such IP
Agreement is in breach or default thereof in any material respect, and no
event has occurred that, with notice or lapse of time or both, would
constitute such a breach or default or permit termination or modification
under such IP Agreement, in each case except as would not reasonably be
expected to have a Material Adverse
Effect.
|
(viii)
|
To
the Borrower's knowledge, none of the material Trade Secrets of such
Grantor has been used, divulged, disclosed or appropriated to the
detriment of such Grantor for the benefit of any other Person other than
such Grantor within the past two
years.
|
SECTION
6
|
FURTHER
ASSURANCES
|
(a)
|
Each
Grantor agrees that from time to time, in accordance with the terms of
this Agreement at the expense of such Grantor and at the reasonable
request of the Agent, such Grantor will promptly execute and deliver, or
otherwise authenticate, all further instruments and documents, and take
all further action that may be reasonably necessary or desirable, or that
the Agent may reasonably request, in order to perfect and protect any
pledge or security interest granted or purported to be granted by such
Grantor hereunder or to enable the Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral of such
Grantor. Without limiting the generality of the foregoing, each
Grantor will, at the reasonable request of the Agent, promptly with
respect to the Collateral of such Grantor: (i) xxxx
conspicuously each document included in Inventory, each chattel paper
included in Receivables each Assigned Agreement and, at the request of the
Agent, each of its records pertaining to such Collateral with a legend, in
form and substance reasonably satisfactory to the Agent, indicating that
such document, Assigned Agreement or Collateral is subject to the security
interest granted hereby; (ii) if any such Collateral shall be evidenced by
a promissory note or other instrument or chattel paper, deliver and pledge
to the Agent hereunder such note or instrument or chattel paper duly
endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance reasonably satisfactory to the
Agent; (iii) file such financing
|
- 14 -
(b)
|
statements
or amendments thereto, and such other instruments or notices, as may be
reasonably necessary or desirable, or as the Agent may reasonably request,
in order to perfect and preserve the security interest granted or
purported to be granted by such Grantor hereunder; (iv) at the request of
the Agent, take all action to ensure that the Agent's security interest is
noted on any certificate of title related to any Collateral evidenced by a
certificate of title; and (v) deliver to the Agent evidence that all other
actions that the Agent may deem reasonably necessary or desirable in order
to perfect and protect the security interest granted or purported to be
granted by such Grantor under this Agreement has been
taken.
|
(c)
|
Each
Grantor hereby authorizes the Agent to file one or more financing
statements, and amendments thereto, including, without limitation, one or
more financing statements indicating that such financing statements cover
all assets or all personal property (or words of similar effect) of such
Grantor in Canada other than assets now or hereafter constituting
Principal Properties or the equity of Restricted Subsidiaries, or any real
property or fixtures, regardless of whether any particular asset described
in such financing statements falls within the scope of the
PPSA. A photocopy or other reproduction of this Agreement shall
be sufficient as a financing statement where permitted by
law. Each Grantor ratifies its authorization for the Agent to
have filed such financing statements or amendments filed prior to the date
hereof.
|
(d)
|
Each
Grantor will furnish to the Agent from time to time statements and
schedules further identifying and describing the Collateral of such
Grantor and such other reports in connection with such Collateral as the
Agent may reasonably request, all in reasonable
detail.
|
SECTION
7
|
AS
TO EQUIPMENT AND INVENTORY
|
(a)
|
Each
Grantor will keep its Equipment having a value in excess of $10,000,000
and Inventory having a value in excess of $10,000,000 (other than
Inventory sold in the ordinary course of business) at the places therefor
specified in Schedule VIII and Schedule IX, respectively, or, upon 30
days' prior written notice to the Agent, at such other places designated
by such Grantor in such notice.
|
(b)
|
Each
Grantor will pay promptly when due all property and other taxes,
assessments and governmental charges or levies imposed upon, and all
claims (including, without limitation, claims for labor, materials and
supplies) against, its Equipment and Inventory, except to the extent
payment thereof is not required by Section 5.01(b) of the Credit
Agreement. In producing its Inventory, each Grantor will comply
with all requirements of applicable law, except where the failure to so
comply will not have a Material Adverse
Effect.
|
SECTION
8
|
INSURANCE
|
(a)
|
Each
Grantor will, at its own expense, maintain or cause to be maintained,
insurance with respect to its Equipment and Inventory in such amounts,
against
|
- 15 -
(b)
|
such
risks, in such form and with such insurers, as shall be customary for
similar businesses of the size and scope of the Borrower on a consolidated
basis, provided however that the Grantor may self insure to the extent
consistent with prudent business practice. Each policy of each
Grantor for liability insurance shall provide for all losses to be paid on
behalf of the Agent and such Grantor as their interests may appear, and
each policy for property damage insurance shall provide for all losses,
except for losses of less than $25,000,000 per occurrence, to be paid
directly to the Agent. So long as no Event of Default shall
have occurred and be continuing, all property damage insurance payments
received by the Agent in connection with any loss, damage or destruction
of Inventory will be released by the Agent to the applicable
Grantor. Each such policy shall in addition (i) name such
Grantor and the Agent as insured parties thereunder (without any
representation or warranty by or obligation upon the Agent) as their
interests may appear, (ii) provide that there shall be no recourse against
the Agent for payment of premiums or other amounts with respect thereto
and (iii) provide that at least 10 days' prior written notice of
cancellation or of lapse shall be given to the Agent by the
insurer. Each Grantor will, if so requested by the Agent,
deliver to the Agent certificates of insurance evidencing such insurance
and, as often as the Agent may reasonably request, a report of a reputable
insurance broker or the insurer with respect to such
insurance. Further, each Grantor will, at the request of the
Agent, duly execute and deliver instruments of assignment of such
insurance policies to comply with the requirements of Section 1(g) and
cause the insurers to acknowledge notice of such
assignment.
|
(c)
|
Reimbursement
under any liability insurance maintained by any Grantor pursuant to this
Section 9 may be paid directly to the Person who shall have incurred
damages covered by such insurance. In case of any loss
involving damage to Equipment or Inventory when subsection (c) of this
Section 9 is not applicable, the applicable Grantor, to the extent
determined to be in the business interest of such Grantor, will make or
cause to be made the necessary repairs to or replacements of such
Equipment or Inventory, and any proceeds of insurance properly received by
or released to such Grantor shall be used by such Grantor, except as
otherwise required hereunder or by the Credit Agreement, to pay or as
reimbursement for the costs of such repairs or replacements or, if such
Grantor determines not to repair or replace such Equipment or Inventory,
treat the loss or damage as a disposition under Section 5.02(e)(v) of the
Credit Agreement.
|
(d)
|
So
long as no Event of Default shall have occurred and be continuing, all
insurance payments received by the Agent in connection with any loss,
damage or destruction of any Inventory or Equipment will be released by
the Agent to the applicable Grantor. Upon the occurrence and
during the continuance of any Event of Default, all insurance payments in
respect of such Equipment or Inventory shall be paid to the Agent and
shall, in the Agent's sole discretion, (i) be released to the applicable
Grantor for the repair, replacement or restoration thereof, (ii) be held
as additional Collateral hereunder or applied as specified in Section
20(b) or (iii) be released to the Agent Sweep Account and applied as
provided in Section 2.18(h) of the Credit
Agreement.
|
- 16 -
(e)
|
POST-CLOSING
CHANGES; COLLECTIONS ON ASSIGNED AGREEMENTS AND
RECEIVABLES
|
(f)
|
No
Grantor will change its name, place of business, chief executive office,
type of organization, jurisdiction of formation or province in which it
has tangible personal property from those set forth in Schedule V of this
Agreement without first giving at least 15 Business Days prior written
notice to the Agent and taking all action reasonably required by the Agent
for the purpose of perfecting or protecting the security interest granted
by this Agreement. Each Grantor will hold and preserve its
records relating to the Collateral, including, without limitation, the
Assigned Agreements and Related Contracts, and will permit representatives
of the Agent at any time during normal business hours to inspect and make
abstracts from such records and other documents to the extent provided in
Section 5.01(e) of the Credit
Agreement.
|
(g)
|
Except
as otherwise provided in this subsection (b), each Grantor will continue
to collect, at its own expense, all amounts due or to become due such
Grantor under the Assigned Agreements and Receivables. In
connection with such collections, such Grantor may take (and, at the
Agent's direction, will take) such action as such Grantor or the Agent may
deem necessary or advisable to enforce collection of the Assigned
Agreements and Receivables; provided, however, that the Agent
shall have the right at any time, upon the occurrence and during the
continuance of an Event of Default and upon written notice to such Grantor
of its intention to do so, to notify the Obligors under any Assigned
Agreements and Receivables of the assignment of such Assigned Agreements
to the Agent and to direct such Obligors to make payment of all amounts
due or to become due to such Grantor thereunder directly to the Agent and,
upon such notification and at the expense of such Grantor, to enforce
collection of any such Assigned Agreements and Receivables, to adjust,
settle or compromise the amount or payment thereof, in the same manner and
to the same extent as such Grantor might have done, and to otherwise
exercise all rights with respect to such Assigned Agreements and
Receivables. After receipt by any Grantor of the notice from
the Agent referred to in the proviso to the preceding sentence, (i) all
amounts and proceeds (including, without limitation, instruments) received
by such Grantor in respect of the Assigned Agreements and Receivables of
such Grantor shall be received in trust for the benefit of the Secured
Parties, shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Agent in the same form as so received (with any
necessary endorsement) to be deposited in the Agent Sweep Account in
Canada and applied as provided in Section 20(b) of this Agreement or as
provided in Section 2.18(h) of the Credit Agreement and (ii) such Grantor
will not adjust, settle or compromise the amount or payment of any
Receivable or amount due on any Assigned Agreement, release wholly or
partly any Obligor thereof or allow any credit or discount thereon other
than credits or discounts given in the ordinary course of
business.
|
- 17 -
(h)
|
AS
TO INTELLECTUAL PROPERTY COLLATERAL
|
(i)
|
With
respect to each item of its Intellectual Property Collateral material to
the business of the Borrower and its Subsidiaries, each Grantor agrees to
take, at its expense, all commercially reasonable steps as determined in
Grantor's reasonable discretion, including, without limitation, in the
Canadian Intellectual Property Office and any other governmental
authority, to (i) maintain the validity and enforceability of such
Intellectual Property Collateral and maintain such Intellectual Property
Collateral in full force and effect, and (ii) pursue the registration and
maintenance (in accordance with the exercise of such Grantor's reasonable
business discretion) of each patent, trademark, or copyright registration
or application, now or hereafter included in such Intellectual Property
Collateral of such Grantor, including, without limitation, the payment of
required fees and taxes, the filing of responses to office actions issued
by the Canadian Intellectual Property Office or other governmental
authorities, the filing of applications for renewal or extension, the
filing of divisional, continuation, continuation-in-part, reissue and
renewal applications or extensions, the payment of maintenance fees and
the participation in interference, reexamination, opposition,
cancellation, infringement and misappropriation proceedings, in each case
except where the failure to so file, register or maintain is not
reasonably likely to have a Material Adverse Effect. No Grantor
shall, without the written consent of the Agent, which shall not be
unreasonably withheld or delayed, discontinue use of or otherwise abandon
any such material Intellectual Property Collateral, or abandon any right
to file an application for patent, trademark, or copyright, unless such
Grantor shall have determined that such use or the pursuit or maintenance
of such Intellectual Property Collateral is no longer necessary or
desirable in the conduct of such Grantor's business and that the loss
thereof would not be reasonably likely to have a Material Adverse
Effect.
|
(j)
|
Until
the termination of the Credit Agreement, each Grantor agrees to provide,
annually to the Agent an updated Schedule of its Patents, Trademarks and
registered Copyrights.
|
(k)
|
In
the event that any Grantor becomes aware that any item of the Intellectual
Property Collateral is being infringed or misappropriated by a third
party, such Grantor shall take such commercially reasonable actions
determined in its reasonable discretion, at its expense, to protect or
enforce such Intellectual Property Collateral, including, without
limitation, suing for infringement or misappropriation and for an
injunction against such infringement or
misappropriation.
|
(l)
|
Each
Grantor shall take all reasonable steps which it deems appropriate under
the circumstances to preserve and protect each item of its material
Trademarks included in the Intellectual Property Collateral, including,
without limitation, maintaining substantially the quality of any and all
products or services used or provided in connection with any of the
Trademarks, consistent with the general quality of the products and
services as of the date hereof, and taking all
steps
|
- 18 -
(m)
|
reasonably
necessary to ensure that all licensed users of any of the Trademarks use
such consistent standards of
quality.
|
(n)
|
With
respect to its Intellectual Property Collateral, upon the reasonable
request of Agent made upon the occurrence and during the continuance of an
Event of Default, each Grantor agrees to execute or otherwise authenticate
an agreement, in substantially the form set forth in Exhibit A hereto or
otherwise in form and substance satisfactory to the Agent (an "Intellectual Property Security
Agreement"), for recording the security interest granted hereunder
to the Agent in such Intellectual Property Collateral with the Canadian
Intellectual Property Office and any other governmental authorities
necessary to register, file or record the security interest hereunder in
such Intellectual Property
Collateral.
|
(o)
|
Upon
the occurrence and during the continuance of an Event of Default, each
Grantor and each entity which executes a Canadian Security Agreement
Supplement shall execute and deliver to the Agent with such written
notice, or otherwise authenticate, an agreement substantially in the form
of Exhibit B hereto or otherwise in form and substance satisfactory to the
Agent (an "IP Security
Agreement Supplement") covering such Intellectual Property, which
IP Security Agreement Supplement shall be recorded with the Canadian
Intellectual Property Office and any other governmental authorities
necessary to register, file or record the security interest hereunder in
such Intellectual Property.
|
SECTION
9
|
VOTING
RIGHTS; DIVIDENDS; ETC.
|
(a)
|
So
long as no Default under Section 6.01(a) or (e) of the Credit Agreement
shall have occurred and be
continuing:
|
(i)
|
Each
Grantor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Security Collateral of such Grantor or
any part thereof for any purpose.
|
(ii)
|
Each
Grantor shall be entitled to receive and retain any and all dividends,
interest and other distributions paid in respect of the Security
Collateral of such Grantor if and to the extent that the payment thereof
is not otherwise prohibited by the terms of the Loan Documents; provided, however, that any and
all dividends, interest and other distributions paid or payable in the
form of instruments or certificates in respect of, or in exchange for, any
Security Collateral, shall be promptly delivered to the Agent to hold as
Security Collateral and shall, if received by such Grantor, be received in
trust for the benefit of the Secured Parties, be segregated from the other
property or funds of such Grantor and be promptly delivered to the Agent
as Security Collateral in the same form as so received (with any necessary
endorsement).
|
(iii)
|
The
Agent will execute and deliver (or cause to be executed and delivered) to
each Grantor all such proxies and other instruments as such
Grantor
|
- 19 -
(iv)
|
may
reasonably request for the purpose of enabling such Grantor to exercise
the voting and other rights that it is entitled to exercise pursuant to
paragraph (i) above and to receive the dividends or interest payments that
it is authorized to receive and retain pursuant to paragraph (ii)
above.
|
(b)
|
Upon
the occurrence and during the continuance of a Default under Section
6.01(a) or (e) of the Credit
Agreement:
|
(i)
|
All
rights of each Grantor (x) to exercise or refrain from exercising the
voting and other consensual rights that it would otherwise be entitled to
exercise pursuant to Section 12(a)(i) shall, upon notice to such Grantor
by the Agent, cease and (y) to receive the dividends, interest and other
distributions that it would otherwise be authorized to receive and retain
pursuant to Section 12(a)(ii) shall automatically cease, and all such
rights shall thereupon become vested in the Agent for the benefit of the
Secured Parties, which shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and to
receive and hold as Security Collateral such dividends, interest and other
distributions.
|
(ii)
|
All
dividends, interest and other distributions that are received by any
Grantor contrary to the provisions of paragraph (i) of this Section 12(b)
shall be received in trust for the benefit of the Secured Parties, shall
be segregated from other funds of such Grantor and shall be promptly paid
over to the Agent as Security Collateral in the same form as so received
(with any necessary endorsement).
|
SECTION
10
|
AS
TO THE ASSIGNED AGREEMENTS
|
(a)
|
Each
Grantor will at its expense:
|
(i)
|
perform
and observe all terms and provisions of the Assigned Agreements to be
performed or observed by it to the extent consistent with its past
practice or reasonable business judgement, maintain the Assigned
Agreements to which it is a party in full force and effect, enforce the
Assigned Agreements to which it is a party in accordance with the terms
thereof and take all such action to such end as may be requested from time
to time by the Agent; and
|
(ii)
|
furnish
to the Agent promptly upon receipt thereof copies of all notices of
defaults in excess of $50,000,000 received by such Grantor under or
pursuant to the Assigned Agreements to which it is a party, and from time
to time (A) furnish to the Agent such information and reports regarding
the Assigned Agreements and such other Collateral of such Grantor as the
Agent may reasonably request and (B) upon request of the Agent, make to
each other party to any Assigned Agreement to which it is a party such
demands and requests for information and reports or for action as such
Grantor is entitled to make
thereunder.
|
- 20 -
(iii)
|
Each
Grantor hereby consents on its behalf and on behalf of its Subsidiaries to
the assignment and pledge to the Agent for benefit of the Secured Parties
of each Assigned Agreement to which it is a party by any other Grantor
hereunder.
|
(b)
|
Each
Grantor agrees, upon the reasonable request of Agent, to instruct each
other party to each Assigned Agreement to which it is a party, that all
payments due or to become due under or in connection with such Assigned
Agreement will be made directly to a Pledged Deposit
Account.
|
(c)
|
All
moneys received or collected pursuant to subsection (c) above shall be (i)
released to the applicable Grantor on the terms set forth in Section 5 so
long as no Event of Default shall have occurred and be continuing or (ii)
if any Event of Default shall have occurred and be continuing, applied as
provided in Section 19(6).
|
SECTION
11
|
AS
TO LETTER-OF-CREDIT RIGHTS
|
(a)
|
Except
as otherwise permitted by the Credit Agreement and this Agreement, each
Grantor, by granting a security interest in its Receivables consisting of
letter-of-credit, hereby assigns to the Agent such rights (including its
contingent rights) to the proceeds of all Related Contracts consisting of
letters of credit of which it is or hereafter becomes a beneficiary or
assignee. Upon request of the Agent, each Grantor will promptly
use commercially reasonable efforts to cause the issuer of each
letter-of-credit with a stated amount in excess of $10,000,000 and each
nominated person (if any) with respect thereto to consent to such
assignment of the proceeds thereof pursuant to a consent in form and
substance reasonably satisfactory to the Agent and deliver written
evidence of such consent to the
Agent.
|
(b)
|
Upon
the occurrence and during the continuance of an Event of Default, each
Grantor will, promptly upon request by the Agent, (i) notify (and such
Grantor hereby authorizes the Agent to notify) the issuer and each
nominated person with respect to each of the Related Contracts consisting
of letters of credit that the proceeds thereof have been assigned to the
Agent hereunder and any payments due or to become due in respect thereof
are to be made directly to the Agent or its designee and (ii) arrange for
the Agent to become the transferee beneficiary of letter of
credit.
|
SECTION
12
|
TRANSFERS
AND OTHER LIENS; ADDITIONAL SHARES
|
(a)
|
Each
Grantor agrees that it will not (i) sell, assign or dispose of Collateral
except as permitted under the terms of the Credit Agreement, or (ii)
create or suffer to exist any Lien upon or with respect to any of the
Collateral of such Grantor except for the pledge, assignment and security
interest created under this Agreement and Liens permitted under the Credit
Agreement.
|
- 21 -
(b)
|
Subject
to the terms of the Credit Agreement and this Agreement, each Grantor
agrees that it will (i) cause each issuer of the Pledged Equity pledged by
such Grantor not to issue any equity interests or other securities in
addition to or in substitution for the Pledged Equity issued by such
issuer except to such Grantor or its Affiliates, and (ii) pledge
hereunder, promptly upon its acquisition (directly or indirectly) thereof,
any and all additional equity interests or other securities as required by
Section 5.01(i) of the Credit Agreement from time to time acquired by such
Grantor in any manner.
|
SECTION
13
|
AGENT
APPOINTED ATTORNEY IN FACT
|
Each Grantor hereby irrevocably
appoints the Agent such Grantor's attorney-in-fact, with full authority in the
place and stead of such Grantor and in the name of such Grantor or otherwise,
from time to time, upon the occurrence and during the continuance of an Event of
Default, in the Agent's discretion, to take any action and to execute any
instrument that the Agent may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:
(a)
|
to
obtain and adjust insurance required to be paid to the Agent pursuant to
Section 9,
|
(b)
|
to
ask for, demand, collect, xxx for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral,
|
(c)
|
to
receive, endorse and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) or (b) above,
and
|
(d)
|
to
file any claims or take any action or institute any proceedings that the
Agent may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce compliance with the terms and
conditions of any Assigned Agreement or the rights of the Agent with
respect to any of the Collateral.
|
SECTION
14
|
AGENT
MAY PERFORM
|
If any Grantor fails to perform any
agreement contained herein, the Agent may, but without any obligation to do so,
upon notice to the Borrower with a copy to the Company of at least five Business
Days in advance and if the Borrower fails to cure within such period, itself
perform, or cause performance of, such agreement, and the expenses of the Agent
incurred in connection therewith shall be payable by such Grantor under Section
20.
SECTION
15
|
THE
AGENT'S DUTIES
|
(a)
|
The
powers conferred on the Agent hereunder are solely to protect the Secured
Parties' interest in the Collateral and shall not impose any duty upon it
to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Agent shall have no duty as to any
Collateral, as to ascertaining or taking action with
respect
|
- 22 -
(b)
|
to
calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not any Secured Party has or is
deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which it accords its own
property.
|
(c)
|
Anything
contained herein to the contrary notwithstanding, the Agent may from time
to time, when the Agent deems it to be necessary, appoint one or more of
its Affiliates (or, with the consent of the Borrower, any other Persons)
subagents (each a "Subagent") for the Agent
hereunder with respect to all or any part of the Collateral. In
the event that the Agent so appoints any Subagent with respect to any
Collateral, (i) the assignment and pledge of such Collateral and the
security interest granted in such Collateral by each Grantor hereunder
shall be deemed for purposes of this Canadian Security Agreement to have
been made to such Subagent, in addition to the Agent, for the ratable
benefit of the Secured Parties, as security for the Secured Obligations of
such Grantor, (ii) such Subagent shall automatically be vested, in
addition to the Agent, with all rights, powers, privileges, interests and
remedies of the Agent hereunder with respect to such Collateral, and (iii)
the term "Agent," when used herein in relation to any rights, powers,
privileges, interests and remedies of the Agent with respect to such
Collateral, shall include such Subagent; provided, however, that no such
Subagent shall be authorized to take any action with respect to any such
Collateral unless and except to the extent expressly authorized in writing
by the Agent.
|
SECTION
16
|
REMEDIES
|
(1) If any
Event of Default shall have occurred and be continuing and such Event of Default
has resulted in the acceleration of the Secured Obligations, which acceleration
has not been rescinded or otherwise terminated:
(a)
|
the
Agent may exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party upon default under the PPSA
(whether or not the PPSA applies to the affected
Collateral);
|
(b)
|
the
Agent may by appointment in writing appoint a receiver or receiver and
manager (each herein referred to as the "Receiver") of the Collateral
(which term when used in this Section 19 will include the whole or any
part of the Collateral) and may remove or replace such Receiver from time
to time or may institute proceedings in any court of competent
jurisdiction for the appointment of a Receiver of the Collateral; and the
term "Agent" when used in this Section 19 will include any Receiver so
appointed and the agents, officers and employees of such Receiver; and the
Agent will not be in any way responsible for any misconduct or negligence
of any such Receiver;
|
- 23 -
(c)
|
the
Agent may take possession of the Collateral and require the Grantors to
assemble the Collateral and deliver or make the Collateral available to
the Agent at such place or places as may be specified by the
Agent;
|
(d)
|
the
Agent may take such steps as it considers desirable to maintain, preserve
or protect the Collateral;
|
(e)
|
the
Agent may enforce any rights of the Grantors in respect of the Collateral
by any manner permitted by applicable
law;
|
(f)
|
the
Agent may withdraw, or cause the direct withdrawal, of all funds with
respect to the Account Collateral;
|
(g)
|
the
Agent may sell, lease or otherwise dispose of the Collateral at public
auction, by private tender, by private sale or otherwise either for cash
or upon credit upon such terms and conditions as the Agent may determine
and without notice to the Grantors unless required by
law;
|
(h)
|
the
Agent may accept the Collateral in satisfaction of the Secured Obligations
upon notice to the Grantors of its intention to do so in the manner
required by applicable law;
|
(i)
|
the
Agent may, consistent with Section 5.01(e) of the Credit Agreement on a
non-exclusive basis, occupy any premises owned or leased by any of the
Guarantors where the Collateral or any part thereof is assembled or
located for a reasonable period in order to effectuate its rights and
remedies hereunder or under law, without obligation to such Grantor for
rental in respect of such
occupation;
|
(j)
|
the
Agent may charge on its own behalf and pay to others all reasonable
amounts for expenses incurred and for services rendered in connection with
the exercise of the rights and remedies of the Agent hereunder, including,
without limiting the generality of the foregoing, reasonable legal,
Receiver and accounting fees and expenses, and in every such case the
amounts so paid together with all costs, charges and expenses incurred in
connection therewith, including interest thereon at such rate as the Agent
deems reasonable, will be added to and form part of the Secured
Obligations hereby secured; and
|
(k)
|
to
the extent permitted by law, the Agent may discharge any claim, lien,
mortgage, charge, security interest, encumbrance or any rights of others
that may exist or be threatened against the Collateral, and in every such
case the amounts so paid together with costs, charges and expenses
incurred in connection therewith will be added to the Secured Obligations
hereby secured.
|
(2) The Agent
may (i) grant extensions of time, (ii) take and perfect or abstain from taking
and perfecting security, (iii) give up securities, (iv) accept compositions or
compromises, (v) grant releases and discharges, and (vi) release any part of the
Collateral or otherwise deal with the Grantors, debtors of the Grantors,
sureties and others and with the Collateral and other
- 24 -
(3) security
as the Agent sees fit without prejudice to the liability of the Grantors to the
Agent or the Agent's rights hereunder.
(4) The Agent
will not be liable or responsible for any failure to seize, collect, realize, or
obtain payment with respect to the Collateral and is not bound to institute
proceedings or to take other steps for the purpose of seizing, collecting,
realizing or obtaining possession or payment with respect to the Collateral or
for the purpose of preserving any rights of the Agent, the Grantors or any other
person, in respect of the Collateral.
(5) Any cash
held by or on behalf of the Agent and all cash proceeds received by or on behalf
of the Agent in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral may, in the discretion of the Agent, be
held by the Agent as collateral for, and/or then or at any time thereafter shall
be applied (after payment of any amounts payable to the Agent pursuant to
Section 20) in whole or in part by the Agent for the ratable benefit of the
Secured Parties against, all or any part of the Secured Obligations, in the
following manner:
(i)
|
first, paid to the
Agent for any amounts then owing to the Agent in its capacity as such
pursuant to Section 9.04 of the Credit Agreement or otherwise under the
Loan Documents, including all expenses of any Receiver hereunder;
and
|
(ii)
|
second, ratably (A)
paid to the Secured Parties for any amounts then owing to them, in their
capacities as such, under the Secured Agreements (other than in respect of
undrawn Letters of Credit) ratably in accordance with the amounts then
owing to the Secured Parties, and (B) deposited as Collateral in the L/C
Cash Deposit Account as required by Section 6.02 of the Credit
Agreement.
|
Any
surplus of such cash or cash proceeds held by or on the behalf of the Agent and
remaining after payment in full of all the Secured Obligations shall be paid
over to the applicable Grantor or to whomsoever may be lawfully entitled to
receive such surplus.
(6) All
payments received by any Grantor under or in connection with any Assigned
Agreement or otherwise in respect of the Collateral shall be received in trust
for the benefit of the Agent, shall be segregated from other funds of such
Grantor and shall be forthwith paid over to the Agent in the same form as so
received (with any necessary endorsement).
(7) Subject
to the provisions of Section 9.05 of the Credit Agreement, the Agent may,
without notice to any Grantor except as required by law and at any time or from
time to time, charge, set off and otherwise apply all or any part of the Secured
Obligations against any funds held with respect to the Account Collateral or in
any other deposit account.
(8) In the
event of any sale or other disposition of any of the Intellectual Property
Collateral of any Grantor, the goodwill symbolized by any Trademarks subject to
such sale or other disposition shall be included therein, and such Grantor shall
supply to the Agent or its designee, to the extent practicable, such Grantor's
know-how and expertise, and documents and things relating to any Intellectual
Property Collateral subject to such sale or other disposition, and such
Grantor's customer lists and other records and documents relating to such
Intellectual
- 25 -
(9) Property
Collateral and to the manufacture, distribution, advertising and sale of
products and services of such Grantor.
(10) In each
case under this Agreement in which the Agent takes any action with respect to
the Collateral, including proceeds, the Agent shall provide to the Borrower such
records and information regarding the possession, control, sale and any receipt
of amounts with respect to such Collateral as may be reasonably requested by the
Borrower as a basis for the preparation of the Borrower's financial statements
in accordance with GAAP.
SECTION
17
|
INDEMNITY
AND EXPENSES
|
(a)
|
Each
Grantor agrees to indemnify, defend and save and hold harmless each
Secured Party and each of their Affiliates and their respective officers,
directors, employees, trustees, agents and advisors (each, an "Indemnified Party") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in
connection with or resulting from this Agreement (including, without
limitation, enforcement of this Agreement), except to the extent such
claim, damage, loss, liability or expense is found in a final,
non-appealable judgement by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct.
|
(b)
|
Each
Grantor will upon demand pay to the Agent the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees
and expenses of its counsel and of any experts and agents, that the Agent
may incur in connection with (i) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon,
any of the Collateral of such Grantor, (ii) the exercise or enforcement of
any of the rights of the Agent or the other Secured Parties hereunder or
(iii) the failure by such Grantor to perform or observe any of the
provisions hereof.
|
SECTION
18
|
AMENDMENTS;
WAIVERS; ADDITIONAL GRANTORS; ETC.
|
(a)
|
No
amendment or waiver of any provision of this Agreement, and no consent to
any departure by any Grantor herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Agent and, with
respect to any amendment, the Borrower on behalf of the Grantors, and then
such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the
part of the Agent or any other Secured Party to exercise, and no delay in
exercising any right hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other
right.
|
(b)
|
Upon
the execution and delivery by any Person of a security agreement
supplement in substantially the form of Exhibit C hereto (each a "Canadian
|
- 26 -
(c)
|
Security Agreement
Supplement"), such Person shall be referred to as an "Additional Grantor" and
shall be and become a Grantor hereunder, and each reference in this
Agreement and the other Loan Documents to "Grantor" shall also mean and be
a reference to such Additional Grantor, each reference in this Agreement
and the other Loan Documents to the "Collateral" shall also mean and be a
reference to the Collateral granted by such Additional Grantor and each
reference in this Agreement to a Schedule shall also mean and be a
reference to the schedules attached to such Canadian Security Agreement
Supplement.
|
SECTION
19
|
CONFIDENTIALITY;
NOTICES; REFERENCES.
|
(a)
|
The
confidentiality provisions of Section 9.08 of the Credit Agreement shall
apply to all information received by the Agent or any Lender under this
Agreement.
|
(b)
|
All
notices and other communications provided for hereunder shall be delivered
as provided in Section 9.02 of the Credit
Agreement.
|
(c)
|
The
definitions of certain terms used in this Agreement are set forth in the
following locations:
|
Account
Collateral
|
Section
1(f)
|
Additional
Grantor
|
Section
21(b)
|
Agreement
|
Preamble
|
Agreement
Collateral
|
Section
1(e)
|
Assigned
Agreements
|
Section
1(e)
|
Borrower
|
Preamble
|
Canadian
Security Agreement Supplement
|
Section
21(b)
|
Collateral
|
Section
1
|
Contractual
Rights
|
Section
3(b)
|
Copyrights
|
Section
1(i)(iii)
|
Credit
Agreement
|
Recitals
A(1)
|
Deposit
Account Control Agreement
|
Section
5(a)
|
Equipment
|
Section
1(a)
|
Grantor,
Grantors
|
Preamble
|
Initial
Pledged Equity
|
Recitals
A(2)
|
Initial
Pledged Debt
|
Recitals
A(2)
|
Intellectual
Property Collateral
|
Section
1(g)
|
Inventory
|
Section
1(b) above
|
IP
Agreements
|
Section
1(i)(v)
|
Obligor
|
Section
5(a)
|
Patents
|
Section
1(i)(i)
|
Pledged
Debt
|
Section
1(f)(ii) above
|
Pledged
Deposit Accounts
|
Recitals
A(3)
|
Pledged
Equity
|
Section
1(f)(i)
|
PPSA
|
Recitals
A(5)
|
Receivables
|
Section
1(c)
|
Receiver
|
Section
19(b)
|
Related
Contracts
|
Section
1(c)
|
Secured
Agreements
|
Section
2
|
Secured
Obligations
|
Section
2
|
Secured
Parties
|
Section
2
|
Security
Collateral
|
Section
1(f)
|
Specified
Collateral
|
Section
6(m)
|
STA/Recitals
|
Recitals
A(6)
|
Trademarks
|
Section
1(i)(ii)
|
Trade
Secrets
|
Section
1(i)(ii)
|
- 27 -
SECTION
20
|
CONTINUING
SECURITY INTEREST; ASSIGNMENTS UNDER THE CREDIT
AGREEMENT
|
This Agreement shall create a
continuing security interest in the Collateral and shall (a) except as otherwise
provided in Section 9.14 of the Credit Agreement, remain in full force and
effect until the latest of (i) the payment in full in cash of the Secured
Obligations, and (ii) the Termination Date, (b) be binding upon each Grantor,
its successors and assigns and (c) inure, together with the rights and remedies
of the Agent hereunder, to the benefit of the Secured Parties and their
respective successors, permitted transferees and permitted
assigns. Without limiting the generality of the foregoing clause (c),
to the extent permitted in Section 9.07 of the Credit Agreement, any Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement (including, without limitation, all or any portion of
its Commitments, the Advances owing to it and the Note or Notes, if any, held by
it) to any permitted transferee, and such permitted transferee shall thereupon
become vested with all the benefits in respect thereof granted to such Lender
herein or otherwise.
SECTION
21
|
RELEASE;
TERMINATION
|
(a)
|
Upon
any sale, lease, transfer or other disposition of any item of Collateral
of any Grantor in accordance with the terms of the Loan Documents, or upon
any Subsidiary ceasing to be a Material Subsidiary, the
security interests granted under this Agreement by such Grantor shall
immediately terminate and automatically be released and Agent will
promptly deliver at the Grantor's request to such Grantor all certificates
representing any Pledged Equity released and all notes and other
instruments representing any Pledged Debt, Receivables or other
Collateral, and Agent will, at such Grantor's expense, promptly execute
and deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence the release of such item of Collateral from
the assignment and security interest granted hereby; provided, however, that (i) no
such documents shall be required unless such Grantor shall have delivered
to the Agent, at least
|
- 28 -
(b)
|
five
Business Days prior to the date such documents are required by Grantor, a
written request for release describing the item of Collateral and the
consideration to be received in the sale, transfer or other disposition
and any expenses in connection therewith, together with a form of release
for execution by the Agent and a certificate of such Grantor to the effect
that the transaction is in compliance with the Loan
Documents.
|
(c)
|
As
provided in Section 9.14(b) of the Credit Agreement, the pledge and
security interest granted hereby shall terminate immediately and
automatically and all rights to the Collateral shall revert to the
applicable Grantor and the Agent will promptly deliver to Grantors all
certificates representing any Pledged Equity or Pledged Debt, Receivables
or other Collateral. Upon any such termination, the Agent will,
at the applicable Grantor's expense, promptly execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to
evidence such termination.
|
SECTION
22
|
CURRENCY
REFERENCES
|
Unless expressly stated otherwise, all
references in this Agreement to "$", "Dollars" or "Cdn. $" are to the lawful
money of Canada and any references to "United States Dollars", "US Dollars" or
"US$" are to the lawful money of the United States of America.
SECTION
23
|
EXECUTION
IN COUNTERPARTS
|
This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION
24
|
GOVERNING
LAW THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA
APPLICABLE THEREIN.
|
IN WITNESS WHEREOF, each Grantor has
caused this Agreement to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
[Remainder
of page intentionally left blank]
0
Xxxxxxxx Xxxxx, Xxxxx
000 XXXXX
XXXXXX INC.
Xxxxxxx,
Xxxxxxx, X0X 0X0
Facsimile:
416.761.4399
Attention:
Legal Department
|
By
|
/s/ Xxxxxxx X.
Love
|
Name:
Xxxxxxx X. Love
Title:
Assistant Treasurer