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EXHIBIT 4.3
SUN MEDIA CORPORATION
7 5/8% SENIOR NOTES DUE 2013
REGISTRATION RIGHTS AGREEMENT
New York, New York
February 7, 2003
Salomon Smith Barney Inc.
RBC Dominion Securities Corporation
TD Securities (USA) Inc.
BMO Nesbitt Burns Corp.
Credit Suisse First Boston Corporation
Scotia Capital (USA) Inc.
CIBC World Markets Corp.
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Sun Media Corporation, a company continued under the laws of
the Province of British Columbia (the "Company"), proposes to issue and sell its
7 5/8% Senior Notes due 2013 (the "Notes") to certain purchasers (the "Initial
Purchasers"), upon the terms set forth in a Purchase Agreement, dated as of
January 30, 2003, by and among the Company, the subsidiary guarantors signatory
thereto and the Initial Purchasers (the "Purchase Agreement") relating to the
initial placement of the Notes (the "Initial Placement"). The Notes will be
guaranteed (the "Guarantees" and, together with the Notes, the "Securities") on
an unsecured senior basis by each of the Company's direct and indirect
subsidiaries set forth on the signature page hereto (the "Subsidiary
Guarantors"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
and the Subsidiary Guarantors, jointly and severally, agree with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchasers) (each a "Holder" and, together, the
"Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified
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Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the preamble
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the period
following the consummation of the Registered Exchange Offer, which period shall
end on the sooner of the 180th day after the consummation of the Registered
Exchange Offer and the date on which all Exchanging Dealers have sold all New
Securities held by them (unless such period is extended pursuant to Section 5(k)
hereof).
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Subsidiary Guarantors on an
appropriate form under the Act with respect to the Registered Exchange Offer,
all amendments and supplements to such registration statement, including
post-effective amendments thereto, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Holder" and "Holders" shall have the respective meanings set
forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of February 7, 2003, among the Company, the Subsidiary
Guarantors and National City Bank, as the Trustee, as the same may be amended
from time to time in accordance with the terms thereof.
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"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered or to be registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Securities" shall mean the 7 5/8% Senior Notes due 2013
issued by the Company containing terms identical in all material respects to,
and evidencing the same indebtedness as, the Securities (except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from the date of their
original issue, (ii) the transfer restrictions thereon shall be eliminated and
(iii) certain provisions relating to an increase in the rate of interest thereon
shall be eliminated), to be offered to Holders in exchange for Securities
pursuant to the Registered Exchange Offer.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company and the Guarantors to issue and deliver to the Holders that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
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"Shelf Registration Period" has the meaning set forth in
Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Subsidiary Guarantors pursuant to
the provisions of Section 3 hereof which covers some or all of the Securities or
New Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Subsidiary Guarantors" shall have the meaning set forth in
the preamble hereto.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of the Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER.
(a) The Company shall prepare and, not later than 45
days following the date of the original issuance of the Securities (or
if such 45th day is not a Business Day, the next succeeding Business
Day), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company
shall use its best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Act within 120 days of
the date of the original issuance of the Securities (or if such 120th
day is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Securities
for New Securities (assuming that such Holder is not an Affiliate of
the Company, acquires the New Securities in the ordinary course of
such Holder's business, has no arrangements with any Person to
participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer) to trade such New Securities from
and after their receipt without any limitations or restrictions under
the Act and without material restrictions under the securities laws of
a substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer,
the Company shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and
related documents;
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(ii) keep the Registered Exchange Offer open for
not less than 30 days and not more than 45 days after the
date notice thereof is mailed to the Holders (or, in each
case, longer if required by applicable law);
(iii) use its best efforts to keep the Exchange
Offer Registration Statement continuously effective under
the Act, supplemented and amended as required under the Act,
to ensure that it is available for sales of New Securities
by Exchanging Dealers during the Exchange Offer Registration
Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan in New York City, which may be the Trustee or its
Affiliate;
(v) permit Holders to withdraw tendered
Securities at any time prior to the close of business, New
York time, on the last Business Day on which the Registered
Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, if requested by the Commission,
provide a supplemental letter to the Commission (A) stating
that the Company and the Subsidiary Guarantors are
conducting the Registered Exchange Offer in reliance on the
position of the Commission in EXXON CAPITAL HOLDINGS
CORPORATION (pub. avail. May 13, 1988) and MORGAN STANLEY
AND CO., INC. (pub. avail. June 5, 1991); and (B) including
a representation that neither the Company nor any Subsidiary
Guarantor has entered into any arrangement or understanding
with any Person to distribute the New Securities to be
received in the Registered Exchange Offer and that neither
the Company nor any Subsidiary Guarantor will issue New
Securities to any Holder participating in the Registered
Exchange Offer who fails to certify to the Company that such
Holder is acquiring the New Securities in the ordinary
course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
New Securities; and
(vii) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company and the Subsidiary Guarantors
shall:
(i) accept for exchange all Securities tendered
and not validly withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 5(s) hereof all Securities so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate
and deliver to each Holder a principal amount of New
Securities equal to the principal amount of the Securities
of such Holder so accepted for exchange.
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(e) With respect to any resales of New Securities
obtained by a Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its Affiliates, each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities, (x) could not under Commission
policy as in effect on the date of this Agreement rely on the position
of the Commission in MORGAN STANLEY AND CO., INC. (pub. avail. June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (pub. avail. May 13,
1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993 and similar no-action letters; and (y)
must comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction that
must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act. Accordingly, each Holder
participating in the Registered Exchange Offer shall be required to
represent in writing to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder
will be acquired in the ordinary course of business;
(ii) such Holder has had and will have no
arrangement or understanding with any Person to participate
in the distribution of the Securities or the New Securities
within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the
Company or any of the Subsidiary Guarantors (or if it is
such an Affiliate, that it will comply with the registration
and prospectus delivery requirements of the Act to the
extent applicable).
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect
to the exchange of Securities constituting any portion of an unsold
allotment, at the request of such Initial Purchaser, the Company and
the Subsidiary Guarantors shall issue and deliver to such Initial
Purchaser or the Person purchasing New Securities registered under a
Shelf Registration Statement as contemplated by Section 3 hereof from
such Initial Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company shall use its best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued pursuant
to the Registered Exchange Offer.
3. SHELF REGISTRATION.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it or any
Subsidiary Guarantor is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; or (ii) for any
other reason the Exchange Offer Registration Statement is not declared
effective by the Commission under the Act within 120 days of the date
of the original issuance of the Securities (or if such 120th day is
not a Business Day, the next succeeding Business Day) or the
Registered Exchange
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Offer is not consummated within 150 days of the date hereof (or if
such 150th day is not a Business Day, the next succeeding Business
Day); (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in
the Registered Exchange Offer and that are held by it following
consummation of the Registered Exchange Offer; (iv) any Holder (other
than an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or does not receive freely tradeable New
Securities in the Registered Exchange Offer, other than by reason of
such Holder being an Affiliate of the Company and the Subsidiary
Guarantors (it being understood that the requirement that a
participating Broker-Dealer deliver the prospectus contained in the
Exchange Offer Registration Statement in connection with sales of New
Securities shall not result in such New Securities being not "freely
tradable"); or (v) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, such Initial Purchaser
does not receive freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment, other than
by reason of such Holder being an Affiliate of the Company (it being
understood that (x) the requirement that an Initial Purchaser deliver
a Prospectus containing the information required by Item 507 or 508 of
Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall not result
in such New Securities being not "freely tradeable;" and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of New Securities acquired in the Registered
Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result
in such New Securities being not "freely tradeable"), the Company
shall effect, at its cost, a Shelf Registration Statement in
accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable
(but in no event more than 45 days after so required or requested
pursuant to this Section 3, or if such 45th day is not a Business Day,
the next succeeding Business Day), file with the Commission and
thereafter shall use its best efforts to cause to be declared
effective under the Act a Shelf Registration Statement relating to the
offer and sale of the Securities or the New Securities, as applicable,
by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement; PROVIDED, HOWEVER, that no Holder (other
than an Initial Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and PROVIDED FURTHER, that with
respect to New Securities received by an Initial Purchaser in exchange
for Securities constituting any portion of an unsold allotment, the
Company may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of
its obligations under this subsection with respect thereto, and any
such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
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(ii) The Company shall use its best efforts to
keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act,
in order to permit the Prospectus forming part thereof to be
usable by Holders for a period of two years from the date
the Shelf Registration Statement is declared effective by
the Commission (or for such longer period if extended
pursuant to Section 5(k) hereof) or such shorter period that
will terminate when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement (in
any such case, such period being called the "Shelf
Registration Period"). The Company shall be deemed not to
have used its best efforts to keep the Shelf Registration
Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of
Securities covered thereby not being able to offer and sell
such Securities during that period, unless (A) such action
is required by applicable law; or (B) such action is taken
by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of
assets (to the extent permitted by the terms of the
Indenture), so long as the Company promptly thereafter
complies with the requirements of Section 5(k) hereof, if
applicable.
(iii) The Company shall cause the Shelf
Registration Statement and the related Prospectus and any
amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the
applicable requirements of the Act; and (B) not to contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4. SPECIAL INTEREST. If (a) on or prior to the 45th day
following the original issue date of the Securities (or if such 45th day is not
a Business Day, the next succeeding Business Day), neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed with
the Commission, (b) on or prior to the 120th day following the original issue
date of the Securities (or if such 120th day is not a Business Day, the next
succeeding Business Day), neither the Exchange Offer nor the Shelf Registration
Statement has been declared effective by the Commission, (c) on or prior to the
150th day following the original issue date of the Securities (or if such 150th
day is not a Business Day the next succeeding Business Day), neither has the
Exchange Offer Registration Statement been consummated nor had the Shelf
Registration Statement been declared effective, or (d) after either the Exchange
Offer Registration Statement or the Shelf Registration Statement has been
declared effective, such Registration Statement thereafter ceases to be
effective or usable in connection with resales of Securities or New Securities
in accordance with and during the periods specified in this Agreement, unless,
in the case of this clause (d), a Shelf Registration Statement or its related
Prospectus ceases to be effective or usable solely as a result of the occurrence
of material events with respect to the Company and/or the Subsidiary Guarantors
that would be required by law to be described in such Shelf Registration
Statement or the related Prospectus, PROVIDED that the Company shall promptly
and in good faith amend or supplement such Shelf Registration
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Statement and the related Prospectus to describe such events, (each such event
referred to in clauses (a) through (d), a "Registration Default"), then interest
("Special Interest") shall accrue on the principal amount of the Securities and
the New Securities (in addition to the special interest on the Securities and
New Securities) from and including the date on which any such Registration
Default shall have occurred to but excluding the date on which all Registration
Defaults have been cured. Special Interest shall accrue at a rate of 0.25% per
annum during the 90-day period immediately following the occurrence of such
Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum.
All obligations of the Company and the Subsidiary Guarantors
set forth in the preceding paragraph that are outstanding with respect to any
Security at the time such Security is exchanged for a New Security shall survive
until such time as all such obligations with respect to such Security have been
satisfied in full.
5. ADDITIONAL REGISTRATION PROCEDURES. In connection with
any Shelf Registration Statement and, to the extent applicable, any Exchange
Offer Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, prior to the filing thereof
with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement,
if any, to the Prospectus included therein (including, upon
request, all documents incorporated by reference therein
after the initial filing) and shall use its best efforts to
reflect in each such document, when so filed with the
Commission, such comments as you reasonably propose;
(ii) include the information set forth in Annex A
hereto on the facing page of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration
Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by an Initial Purchaser, include
the information required by Item 507 or 508 of Regulation
S-K, as applicable, in the Prospectus contained in the
Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration
Statement, include the names of the Holders that propose to
sell Securities pursuant to the Shelf Registration Statement
as selling securityholders.
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(b) The Company shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material
respects with the Act and the rules and regulations
thereunder; and
(ii) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto does not, when the
Registration Statement becomes effective, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not
misleading.
(c) The Company shall advise you, the Holders of
Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that
has provided in writing to the Company a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder
or Exchanging Dealer, shall confirm such advice in writing (which
notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus
until the Company shall have remedied the basis for such suspension):
(i) when a Registration Statement or any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the
Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or the
Subsidiary Guarantors of any notification with respect to
the suspension of the qualification of the Securities or the
New Securities, as the case may be, included therein for
sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires
any change in the Registration Statement or the Prospectus
so that, as of such date, the Registration Statement or the
Prospectus does not contain an untrue statement of a
material fact and does not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not
misleading.
(d) The Company shall make every reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or
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the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of
Securities or New Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities or New Securities covered
by any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in
such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request. The Company and the
Subsidiary Guarantors consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Securities or New Securities in connection with the offering and sale
of the Securities or New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto,
including all material incorporated by reference therein, and, if the
Exchanging Dealer so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(h) The Company shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the final Prospectus included in
such Exchange Offer Registration Statement and any amendment or
supplement thereto as any such Person may reasonably request. The
Company and the Subsidiary Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other Person that may be
required to deliver a Prospectus following the Registered Exchange
Offer in connection with the offering and sale of the New Securities
covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any
other offering of Securities or New Securities pursuant to any
Registration Statement, the Company and the Subsidiary Guarantors
shall arrange, if necessary, for the qualification of the Securities
or the New Securities for sale under the state securities or blue sky
laws of such jurisdictions in the United States as any Holder shall
reasonably request and will maintain such qualification in effect so
long as required; PROVIDED that in no event shall either the Company
or any Subsidiary Guarantor be obligated to qualify to do business or
as a dealer in securities in any jurisdiction where it is not then so
qualified or to take any action that would subject it to service of
process in suits or taxation, other than suits
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arising out of the Initial Placement, the Registered Exchange Offer or
any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Company and the Subsidiary Guarantors shall
cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing New Securities or Securities to
be issued or sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above during any period of time in
which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or
supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to initial purchasers of the
securities included therein, the Prospectus shall not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such
circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be
extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 5(c) hereof to
and including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section 5(k).
(l) Not later than the effective date of any
Registration Statement, the Company shall provide a CUSIP number for
the Securities or the New Securities, as the case may be, registered
under such Registration Statement and provide the Trustee with printed
certificates for such Securities or New Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(m) The Company and the Subsidiary Guarantors shall
comply with all applicable rules and regulations of the Commission and
shall make generally available to their security holders no later than
45 days after the end of the 12-month period (or 90 days if such
period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter after the effective date of the
applicable Registration Statement, an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Securities
or New Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company such information regarding the
Holder and the distribution of such Securities or New Securities as
the Company may from time to time reasonably require for inclusion in
such Shelf Registration Statement. The Company may exclude from such
Shelf
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Registration Statement the Securities or New Securities of any Holder
that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement,
the Company and the Subsidiary Guarantors shall enter into such
agreements and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the
Securities or New Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 7 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section
7.
(q) In the case of any Shelf Registration Statement,
the Company and the Subsidiary Guarantors shall:
(i) make reasonably available for inspection by
the Holders of Securities or New Securities to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders
or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the
Company and its subsidiaries; PROVIDED, HOWEVER, that the
foregoing inspection and information gathering shall be
coordinated on behalf of the Holders by the one firm or
counsel designated by the Majority Holders pursuant to
Section 6 hereof; PROVIDED, FURTHER, that any information
that is designated in writing by the Company or any
Subsidiary Guarantor, in good faith, as confidential at the
time of delivery of such information shall be kept
confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by
law, or such information becomes available to the public
generally or through a third party without an accompanying
obligation of confidentiality;
(ii) cause the Company's and the Subsidiary
Guarantors' officers, directors and employees to supply all
relevant information reasonably requested by the Holders or
any underwriter, attorney, accountant or agent in connection
with any such Shelf Registration Statement as is customary
for similar due diligence examinations; PROVIDED, HOWEVER,
that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders by the one
firm or counsel designated by the Majority Holders pursuant
to Section 6 hereof; PROVIDED, FURTHER, that any information
that is designated in writing by the Company or any
Subsidiary Guarantor, in good faith, as confidential at the
time of delivery of such information shall be kept
confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by
law, or such information becomes available to the public
generally or through a third party without an accompanying
obligation of confidentiality;
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(iii) make such representations and warranties to
the Holders of Securities or New Securities registered
thereunder and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters
as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which
financial statements and financial data are, or are required
to be, included in such Shelf Registration Statement),
addressed to each selling Holder of Securities or New
Securities registered thereunder and the underwriters, if
any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection
with primary underwritten offerings; and
(vi) deliver such documents and certificates as
may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Subsidiary
Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 5(q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration
Statement, the Company and the Subsidiary Guarantors shall:
(i) make reasonably available for inspection by
any Initial Purchaser, and any attorney, accountant or other
agent retained by such Initial Purchaser, all relevant
financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries;
PROVIDED, HOWEVER, that the foregoing inspection and
information gathering shall be coordinated on behalf of the
Initial Purchasers by the one firm or counsel designated by
Salomon Smith Barney Inc. pursuant to Section 6 hereof;
PROVIDED, FURTHER, that any information that is designated
in writing by the Company or any Subsidiary Guarantor, in
good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Initial
Purchaser or any such attorney, accountant or agent,
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unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes
available to the public generally or through a third party
without an accompanying obligation of confidentiality;
(ii) cause the Company and the Subsidiary
Guarantors' officers, directors and employees to supply all
relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in
connection with any such Exchange Offer Registration
Statement as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that the foregoing
inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers by the one counsel or firm
designated by Salomon Smith Barney Inc. pursuant to Section
6 hereof; PROVIDED, FURTHER, that any information that is
designated in writing by the Company or any Subsidiary
Guarantor, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by
such Initial Purchaser or any such attorney, accountant or
agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information
becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to
such Initial Purchaser, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but
not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company or
any Subsidiary Guarantor and updates thereof (which counsel
and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Initial Purchaser and its
counsel), addressed to such Initial Purchaser, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such Initial Purchaser or its
counsel;
(v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which
financial statements and financial data are, or are required
to be, included in such Exchange Offer Registration
Statement), addressed to such Initial Purchaser, in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by such Initial
Purchaser or its counsel in lieu of a "cold comfort" letter,
an agreed-upon procedures letter under Statement on Auditing
Standards No. 35, covering matters requested by such Initial
Purchaser or its counsel; and
(vi) deliver such documents and certificates as
may be reasonably requested by such Initial Purchaser or its
counsel, including those to
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evidence compliance with Section 5(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 5(r) shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be
consummated, upon delivery of the Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for
the New Securities, the Company shall mark, or caused to be marked, on
the Securities so exchanged that such Securities are being canceled in
exchange for the New Securities. In no event shall the Securities be
marked as paid or otherwise satisfied.
(t) The Company and the Subsidiary Guarantors shall
use their respective best efforts (i) if the Securities have been
rated prior to the initial sale of such Securities, to confirm such
ratings will apply to the Securities or the New Securities, as the
case may be, covered by a Registration Statement; or (ii) if the
Securities were not previously rated, to cause the Securities or the
New Securities covered by a Registration Statement to be rated with at
least one nationally recognized statistical rating agency, if so
requested by Majority Holders with respect to the related Registration
Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall
underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.)
thereof, whether as a Holder of such Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof,
or otherwise, the Company and the Subsidiary Guarantors shall assist
such Broker-Dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined
in such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 7 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Rules.
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(v) The Company and the Subsidiary Guarantors
shall use their respective best efforts to take all other
steps necessary to effect the registration of the Securities
or the New Securities, as the case may be, covered by a
Registration Statement.
6. REGISTRATION EXPENSES. The Company shall bear all
expenses incurred in connection with the performance of its and the Subsidiary
Guarantors' obligations under Sections 2, 3 and 5 hereof , including filing
fees, if any, in respect of the trade of the New Securities by way of private
placement to those Holders in Canada, and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers for
the reasonable fees and disbursements of one firm or counsel designated by
Salomon Smith Barney Inc. to act as counsel for the Initial Purchasers in
connection therewith.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Subsidiary Guarantors,
jointly and severally, agree to indemnify and hold harmless each
Holder of Securities or New Securities, as the case may be, covered by
any Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each Person who controls any such
Holder within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto or in any "wrapped" version thereof constituting an
offering memorandum under applicable Canadian provincial securities
legislation, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that (i) the Company and the
Subsidiary Guarantors will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company and the
Subsidiary Guarantors by or on behalf of any such Holder specifically
for inclusion therein, (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any
preliminary Prospectus relating to a Shelf Registration Statement, the
foregoing indemnity shall not inure to the benefit of any Holder
(including any Exchanging Dealer) from whom the Person asserting any
such loss, claim, damage or liability purchased the
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Securities or the New Securities, as the case may be, to the extent
that a final Prospectus relating to such Securities or New Securities,
as the case may be, was required to be delivered by such Holder under
the Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder results from the failure of such
Holder to send to such Person, at or prior to the written confirmation
of the sale of such Securities or New Securities, as the case may be,
a copy of the final Prospectus if the Company had previously furnished
copies thereof to such Holder and (iii) the Company and the Subsidiary
Guarantors shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of or is based upon
the use of a Registration Statement after (x) a stop order has been
issued in a respect of a Registration Statement or (y) a Registration
Statement has been suspended, so long as, in the case of each of (x)
and (y), such Holder has received notice of such action in accordance
with Section 5(c) hereof. This indemnity agreement will be in addition
to any liability which the Company and the Subsidiary Guarantors may
otherwise have.
The Company and the Subsidiary Guarantors also, jointly and
severally, agree to indemnify or contribute as provided in Section 7(d)
to Losses of any underwriter of any Securities or New Securities, as
the case may be, registered under a Shelf Registration Statement, their
directors, officers, employees or agents and each Person who controls
such underwriter (within the meaning of the Act or the Exchange Act) on
substantially the same basis as that of the indemnification of the
Initial Purchasers and the selling Holders provided in this Section
7(a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 5(p)
hereof.
(b) Each Holder of Securities or New Securities,
as the case may be, covered by a Registration Statement (including
each Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 5(h) hereof, each Exchanging Dealer) severally
agrees to indemnify and hold harmless the Company and the Subsidiary
Guarantors, each of their directors, each of their officers who signs
such Registration Statement and each Person who controls the Company
or any of the Subsidiary Guarantors within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Subsidiary Guarantors to each such Holder,
but only with reference to written information furnished to the
Company or the Subsidiary Guarantors by or on behalf of such Holder
specifically for inclusion in the documents referred to in the
foregoing indemnity and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred, as
incurred, by them in connection with investigation or defending such
loss, claim, liability, damage or action. This indemnity agreement
will be in addition to any liability which any such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and
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defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or
(iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason,
then each applicable indemnifying party shall have a joint and several
obligation to contribute to the amount paid or payable by such
indemnified party as a result of the aggregate losses, claims, damages
and liabilities referred to in subsection (a) or (b), as the case may
be, above, (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; PROVIDED,
HOWEVER, that in no case shall any Initial Purchaser of any Security
or New Security be obligated to contribute in accordance with this
paragraph (d) an amount, in the aggregate, in excess of the purchase
discount or commission applicable to such Security, or in the case of
a New Security, applicable to the Security that was exchangeable into
such New Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be obligated to contribute in
accordance with this paragraph (d) an amount in excess of the
underwriting discount or commission applicable to the securities
purchased by such underwriter under
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the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified
party shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on
the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Subsidiary
Guarantors shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set
forth on the cover page of the Final Memorandum and (y) the total
amount of additional interest which the Company was not required to
pay as a result of registering the securities covered by the
Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions as set forth on the cover
page of the Final Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the proceeds received from the
sale of the Securities or New Securities, as applicable. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page
of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement
or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7,
each Person who controls a Holder within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder,
and each Person who controls the Company or any of the Subsidiary
Guarantors within the meaning of either the Act or the Exchange Act,
each officer of the Company or any of the Subsidiary Guarantors who
shall have signed the Registration Statement and each director of the
Company or any of the Subsidiary Guarantors shall have the same rights
to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain
in full force and effect, regardless of any investigation made by or
on behalf of any Holder or the Company and the Subsidiary Guarantors
or any of the officers, directors or controlling Persons referred to
in this Section 7, and will survive the sale by a Holder of Securities
or New Securities covered by a Registration Statement or any
termination or cancellation of this Agreement.
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8. UNDERWRITTEN REGISTRATIONS.
(a) If any of the Securities or New Securities,
as the case may be, covered by any Shelf Registration Statement are to
be sold in an underwritten offering, the Managing Underwriters shall
be selected by the Majority Holders.
(b) No Person may participate in any underwritten
offering pursuant to any Shelf Registration Statement, unless such
Person (i) agrees to sell such Person's Securities or New Securities,
as the case may be, on the basis reasonably provided in any
underwriting arrangements approved by the Persons entitled hereunder
to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of
such underwriting arrangements.
9. NO INCONSISTENT AGREEMENTS. The Company and the
Subsidiary Guarantors have not, as of the date hereof, entered into, nor shall
they, on or after the date hereof, enter into, any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
10. AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, holders of a majority in
aggregate principal amount outstanding of New Securities); PROVIDED that, with
respect to any matter that directly or indirectly adversely affects the rights
of any Initial Purchaser (but not all of the Initial Purchasers) hereunder, the
Company shall obtain the written consent of each such Initial Purchaser against
which such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except for the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of some Holders whose Securities
or New Securities (the "affected Securities"), as the case may be, are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Holders
representing a majority of the aggregate principal amount of the affected
Securities, voting together as a single class.
11. NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, facsimile transmission or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address
given by such holder to the Company in accordance with the provisions
of this Section, which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under
the Indenture, with a copy in like manner to Salomon Smith Barney
Inc.;
(b) if to you, initially at the respective
addresses set forth in the Purchase Agreement; and
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(c) if to the Company or the Subsidiary
Guarantors, initially at the address of the Company set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers, the Company or the Subsidiary
Guarantors by notice to the other parties may designate additional or different
addresses for subsequent notices or communications.
12. SUCCESSORS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Securities and the New Securities.
The Company hereby agrees to extend the benefits of this Agreement to any Holder
of Securities and the New Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
13. COUNTERPARTS. This Agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
14. HEADINGS. The headings used herein are for
convenience only and shall not affect the construction hereof.
15. APPLICABLE LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed in the State of New York.
16. SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
17. SECURITIES HELD BY THE COMPANY, ETC. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
18. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES. By the execution and delivery of this Agreement, each of
the Company and the Subsidiary Guarantors (i) hereby irrevocably designates and
appoints CT Corporation System (and any successor entity), as its authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to this Agreement that may be instituted in any Federal or state
court in the Borough of Manhattan in the City of New York or brought under
federal or
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state securities laws, and acknowledges that CT Corporation System has accepted
such designation, (ii) submits to the nonexclusive jurisdiction of any such
court in any such suit or proceeding, and (iii) agrees that service of process
upon CT Corporation System and written notice of said service to the Company
shall be deemed in every respect effective service of process upon it in any
such suit or proceeding. Each of the Company and the Subsidiary Guarantors
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and effect so
long as any of the Securities or New Securities shall be outstanding. To the
extent that either the Company or any Subsidiary Guarantor may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, each
of them hereby irrevocably waives such immunity in respect of this Agreement, to
the fullest extent permitted by law.
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<Page>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Subsidiary Guarantors and the several Initial Purchasers.
Very truly yours,
COMPANY:
SUN MEDIA CORPORATION
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Corporate Controller
SUBSIDIARY GUARANTORS:
BOWES PUBLISHERS LIMITED
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Finance and Administration
SUN MEDIA (TORONTO) CORPORATION
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Corporate Controller
SMC NOMINEECO INC.
By: /s/ Pierre Francoeur
-------------------------------------------------
Name: Pierre Francoeur
Title: President and Chief Executive Officer
TORONTO SUN INTERNATIONAL, INC.
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Corporate Controller
<Page>
TS PRINTING, INC.
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Corporate Controller
FLORIDA SUN PUBLICATIONS, INC.
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Corporate Controller
3661458 CANADA INC.
By: /s/ Kin-Man Lee
-------------------------------------------------
Name: Kin-Man Lee
Title: Vice President, Corporate Controller
3351611 CANADA INC.
By: /s/ Pierre Francoeur
-------------------------------------------------
Name: Pierre Francoeur
Title: President
<Page>
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
SALOMON SMITH BARNEY INC.
RBC DOMINION SECURITIES CORPORATION
TD SECURITIES (USA) INC.
BMO NESBITT BURNS CORP.
CREDIT SUISSE FIRST BOSTON CORPORATION
SCOTIA CAPITAL (USA) INC.
CIBC WORLD MARKETS CORP.
By: SALOMON SMITH BARNEY INC.
By: /s/ Kevin M. Sisson
----------------------------------
Name: Kevin Sisson
Title: Vice President
<Page>
ANNEX A
Each broker-dealer that receives new securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of these new securities. The letter of
transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new securities received in exchange for securities where those
securities were acquired by this broker-dealer as a result of market-making
activities or other trading activities. We have agreed that, starting on the
expiration date and ending on the close of business 180 days after the
expiration date, we will make this prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of Distribution."
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ANNEX B
Each broker-dealer that receives new securities for its own
account in exchange for securities, where those securities were acquired by this
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of those new securities. See "Plan of Distribution."
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<Page>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of these new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where those securities were acquired as a result of
market-making activities or other trading activities. We and the subsidiary
guarantors have agreed that, starting on the expiration date and ending on the
close of business 180 days after the expiration date, we will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until __________, 200__, all
dealers effecting transactions in the new securities may be required to deliver
a prospectus.
We will not receive any proceeds from any sale of new
securities by broker-dealers. New securities received by broker-dealers for
their own account pursuant to the exchange offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the exchange offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of new securities and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The letter of transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date, we and the
Subsidiary Guarantors will promptly send additional copies of this prospectus
and any amendment or supplement to this prospectus to any broker-dealer that
requests such documents in the letter of transmittal. We have agreed to pay all
expenses incident to the exchange offer (including the expenses of one counsel
for the holders of the securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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<Page>
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _______________________________
Address: _______________________________
_______________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it
acquired the new securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of new securities
and it has no arrangements or understandings with any person to participate in a
distribution of the new securities. If the undersigned is a broker-dealer that
will receive new securities for its own account in exchange for securities, it
represents that the securities to be exchanged for new securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such new securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
30