Exhibit 4.16
DEBENTURE PLEDGE AGREEMENT entered into in Montreal, Quebec, as of this 7th
day of February, 2003
BY: 3351611 CANADA INC., a corporation existing
under the laws of Canada, having its
registered office at 300 Viger Avenue,
Montreal, Quebec, H2X 2W4, herein acting
and represented by Claudine Tremblay, duly
authorized as she so declares,
IN FAVOUR OF: BANK OF AMERICA, N.A., a Schedule III Bank governed by the
BANK ACT (Canada), having an office at 200 Front Street
West, Suite 2700, Toronto, Ontario M5V 3L2, herein acting
for its own benefit as a Lender, and as agent and solidary
creditor for the other Lenders as defined in the Credit
Agreement as hereinafter defined (the "LENDERS").
WHEREAS 3351611 Canada Inc. (the "GRANTOR") has created and executed
a Debenture dated February 7, 2003 (as amended, restated, renewed, re-issued,
supplemented or modified from time to time, the "DEBENTURE") in favour of the
Agent (as defined below) payable on demand in the principal amount of
$600,000,000 in lawful currency of Canada; and
WHEREAS the Grantor has agreed to pledge the Debenture to the Agent
(as defined below) as a general and continuing collateral security for the
due and punctual payment, performance and fulfilment of the Obligations (as
defined below).
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT the parties hereto
agree as follows:
1. DEFINITIONS AND INTERPRETIVE PROVISIONS
1.1 DEFINITIONS
Capitalized terms not otherwise defined herein shall have the
meaning ascribed thereto in the Credit Agreement. The following
words or expressions whenever used in this debenture pledge
agreement (the "AGREEMENT") (and in the preamble above which forms
an integral part of this Agreement) shall have the following
meanings:
1.1.1. "AGENT" means Bank of America, N.A., for its own benefit as
a Lender, and as agent and solidary creditor on behalf and
for the benefit of the other Lenders, and
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includes such other Person, if any, as shall hereafter be
appointed as a successor Agent under and in accordance with
the provisions of the Credit Agreement;
1.1.2. "CREDIT AGREEMENT" means that certain credit agreement
dated as of February 7, 2003 among Sun Media Corporation,
as Borrower, the financial institutions named on the
signature pages thereto, as Lenders, and Bank of America,
N.A., as Administrative Agent, as same may subsequently be
amended, amended and restated, modified, supplemented or
replaced from time to time;
1.1.3. "DEBENTURE" has the meaning ascribed to such term in the
preamble;
1.1.4. "EVENT OF DEFAULT" has the meaning ascribed to such term in
the Credit Agreement;
1.1.5. "GRANTOR" has the meaning ascribed to such term in the
preamble;
1.1.6. "OBLIGATIONS" means all obligations of the Grantor owed to
the Agent and the Lenders pursuant to the Credit Documents
to which it is a party, including without limitation its
obligations hereunder; and
1.1.7. "PERSON" has the meaning ascribed to such term in the
Credit Agreement.
1.2 INTERPRETATION
This Agreement shall be interpreted in accordance with the following:
1.2.1. words denoting the singular include the plural and vice
versa, and words denoting any gender include all genders;
1.2.2. the division of this Agreement into articles and sections
and the insertion of headings are for convenience of
reference only and shall not affect the construction or
interpretation of this Agreement; and
1.2.3. the word "including" shall mean "including without
limitation", and "includes" shall mean "includes without
limitation".
2. PLEDGE AND AGENT'S RIGHTS
2.1 As a general and continuing collateral security for the due and
punctual payment, performance and fulfillment of the Obligations,
the Grantor hereby hypothecates and pledges the Debenture to the
Agent subject to and in accordance with the terms hereof. The
hypothec hereby granted is in the amount of $600,000,000, the whole
with interest from the date of this Agreement at the rate of
twenty-five percent (25%) per annum, calculated semi-annually and
not in advance with interest on overdue interest calculated at the
same rate and in the same manner.
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2.2 Notwithstanding that the Debenture is payable on demand, the Agent
may, forthwith and from time to time but only upon the occurrence
and continuance of an Event of Default, exercise and enforce all the
rights and remedies available to it under the Debenture (subject to
Section 4.4 hereof). The rights of the Agent herein stipulated with
respect to the Debenture shall be in addition to and not exclusive
of all other rights and remedies which the Agent has or may
otherwise enforce or exercise.
2.3 The Agent may charge on its own behalf and pay to others reasonable
sums for services rendered (expressly including legal advice and
services) in connection with realizing, collecting, selling,
transferring, delivering and/or obtaining payment for the Debenture
and may deduct the amount of such charges and payments from the
proceeds thereof. The balance of such proceeds may be held by the
Agent in lieu of the Debenture and may, as and when the Agent sees
fit, be applied on account of such part of the Grantor's Obligations
as the Agent deems best, without prejudice to the claims of the
Agent or the Lenders upon the Grantor for any deficiency.
3. COVENANTS
The Grantor hereby covenants and agrees as follows:
3.1 ADDITIONAL SECURITY
It shall perform all acts and execute all deeds and documents
(including notices of renewal) necessary to give full effect to the
security constituted by this Agreement and to ensure that such
security is at all times fully enforceable against third persons.
3.2 DELIVERY
It shall deliver to the Agent any instrument of indebtedness that is
supplemental to, or in replacement of, the Debenture immediately
upon issuing same or coming into possession thereof, together with
any power of attorney, document and confirmation that the Agent may
reasonably request in order to effect the transfer of such
instrument, if necessary, into the name of the Agent.
4. ADDITIONAL PROVISIONS
4.1 If any material provision of this Agreement is, or becomes, illegal,
invalid or unenforceable, such provision shall be severed from this
Agreement and be ineffective to the extent only of such illegality,
invalidity or unenforceability. The remaining provisions hereof
shall be unaffected by such deletion and shall continue to be valid
and enforceable.
4.2 The parties acknowledge that the Grantor has agreed to grant to the
Agent, as FONDE DE POUVOIR for the Lenders, a deed of hypothec in
the Province of Quebec charging all the movable property of the
Grantor located in the Province of Quebec and securing the payment
of the Debenture.
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4.3 The Agent shall not be obliged to exhaust its recourses against the
Grantor, any other parties or against any other security any of them
may hold in respect of the Obligations before realizing upon or
otherwise dealing with the Debenture in such manner as it may
consider appropriate.
4.4 Notwithstanding that the Debenture is stated to be payable on
demand, the Agent agrees that it shall not demand payment under the
Debenture unless an Event of Default has occurred and is continuing.
The Agent also agrees that it shall only have the right to demand
payment from the Grantor under the Debenture of an aggregate amount
which may not in any manner whatsoever be in excess of the aggregate
amount of the outstanding Obligations in principal, interest and
costs.
4.5 The Agent may grant extensions or other indulgences, take and give
up securities, accept compositions, grant releases and discharges
and otherwise deal with the Grantor and with other parties, sureties
or securities as it may deem fit, without prejudice to the
Obligations or the rights of the Lenders or the Agent in respect of
the Debenture. The Agent shall not (a) be liable or accountable for
any failure to collect, realize or obtain payment in respect of the
Debenture; (b) be bound to institute proceedings for the purpose of
collecting, enforcing, realizing or obtaining payment of the
Debenture or for the purpose of preserving any rights of the Lenders
or any of them or of the Grantor in respect thereof; (c) be
responsible for any loss occasioned by any sale or other dealing
with the Debenture or by the retention thereof or failure to sell
same or otherwise deal therewith; or (d) be bound to protect the
Debenture from depreciating in value or becoming worthless.
4.6 If Bank of America, N.A. shall at any time resign as Agent, and
another Person be appointed as a successor to Bank of America, N.A.
as Agent under and in accordance with the provisions of the Credit
Agreement, the Agent shall assign the Debenture to its successor,
and such successor shall become vested with all rights, powers,
privileges, obligations and duties of the Agent hereunder, and Bank
of America, N.A. shall be discharged from its duties and obligations
hereunder except as may be otherwise set forth in the Credit
Agreement. This provision shall apply, MUTATIS MUTANDIS, to and be
binding upon each and every successor Agent.
4.7 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
4.8 This Agreement shall be governed by, and interpreted in accordance
with, the laws of the Province of Quebec and the laws of Canada
applicable therein, without giving effect to any conflicts of law
rules thereof. The Grantor hereby irrevocably attorns and submits to
the non-exclusive jurisdiction of the courts of the Province of
Quebec with respect to any matter arising under or relating to this
Agreement, the whole without prejudice to the rights of the Agent or
the Lenders to bring proceedings against the Grantor in any other
jurisdiction.
4.9 In the event of any contradiction or inconsistency between the
provisions of this Agreement and those of the Credit Agreement, the
provisions of the latter shall prevail to the extent of such
contradiction or inconsistency.
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IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of
the date first written above.
3351611 CANADA INC.
Per: /s/ CLAUDINE TREMBLAY
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Name: Claudine Tremblay
Title: Assistant Secretary
BANK OF AMERICA, N.A., in its aforementioned capacities
Per: /s/ ROBERT CAMPBELL
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Name: Robert Campbell
Title: Mandatary