May 5, 2009 Canwest Media Inc. 31st Floor CanWest Global Place Winnipeg, MB R3B 3L7 Attention: General Counsel Dear Sirs:
May 5,
2009
31st
Floor
CanWest
Global Place
000
Xxxxxxx Xxxxxx
Winnipeg,
MB R3B 3L7
Attention:
General Counsel
Dear
Sirs:
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Re:
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Canwest
Media Inc. (the “Issuer”)
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Reference
is made to an extension agreement dated as of April 14, 2009 (the “Original Extension Agreement”)
between the Issuer, the guarantors party to the Indenture (as hereinafter
defined) as of the date hereof and listed on the signature pages hereto (the
“Guarantors”), and the
holders, or parties with discretionary authority to manage the funds of the
holders, of certain of the 8% senior subordinated notes due 2012 (collectively,
the “Notes”) issued
pursuant to the indenture dated as of November 18, 2004 (as amended, modified,
restated or supplemented from time to time, the “Indenture”) that are listed on
the signature pages hereto (such holders, or parties with discretionary
authority to manage the funds of the holders, being collectively, the “Noteholders”). All
capitalized terms used herein but not defined shall have the meanings ascribed
thereto in the Original Extension Agreement.
The
Original Extension Agreement was amended by an extension letter dated April 22,
2009 (the “Extension Agreement
No. 2”; the Original Extension Agreement, as amended by Extension
Agreement No. 2, is the “Extension
Agreement”). Pursuant to Extension Agreement No. 2, the
Noteholders agreed not to demand payment of their Notes for a period ending on
May 5, 2009 (which date coincided with the expiry date of the Issuer’s waiver
agreement dated April 21, 2009 with the Senior Lenders), notwithstanding the
Issuer’s Interest Payment Default.
The
Issuer has requested that the Noteholders further extend the period which they
would not demand payment of their Notes, and the Noteholders have agreed not to
exercise their rights and remedies available under the Indenture,
notwithstanding the occurrence of the Interest Payment Default which is
continuing, until the date and upon the terms and conditions set forth herein
(it being understood by the Parties hereto that the terms of the Extension
Agreement shall continue to be in full force and effect except as modified by
the terms of this letter agreement).
1. The
Original Extension Agreement is hereby amended as follows:
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(a)
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The
definition of “Extension Effective Date” in the Original Extension
Agreement is hereby deleted in its entirety and replaced with the
following:
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““Extension Effective Date” means the date upon
which executed copies of counterparts of this letter agreement have been
delivered to Xxxxxxxx by the Issuer, the Guarantors and the
Noteholders.”
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(b)
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The
definition of “Waiver Agreement” in the Original Extension Agreement is
hereby deleted in its entirety and replaced with the
following:
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““Waiver Agreement” means the waiver
agreement dated as of May 5, 2009 among the Issuer, as xxxxxxxx, the Guarantors,
as guarantors, the lenders from time to time party to the Senior Credit
Agreement, as lenders, and The Bank of Nova Scotia, in its capacity as
administrative agent.”
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(c)
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The
date of “May 5, 2009” referred to in the definition of “Extension Period”
and in Sections 3 and 10(e) of the Original Extension Agreement is hereby
deleted and replaced with “May 19,
2009”.
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2.
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A
Statement of Projected Cash Flows for the period from May 5, 2009 to May
19, 2009 (the “Cash
Flows”) prepared by the Issuer has been delivered to Goodmans in
connection with this letter agreement. The Issuer covenants and
agrees to adhere in all material respects to the Cash Flows in the
operation of its business during the Extension Period, assuming that the
assumptions underlying the Cash Flows do not materially change during the
Extension Period.
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3.
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The
Issuer shall pay by the end of the business day on May 8, 2009
all invoiced fees and expenses of Xxxxxxxx and Xxxxxxxx that remain
outstanding.
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4.
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The
Issuer and each Guarantor hereby represents and warrants, severally and
not jointly, that the representations and warranties set forth in Section
5 of the Original Extension Agreement continue to be true and correct in
all respects as of the date hereof.
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5.
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The
Issuer and the Guarantors hereby ratify and reaffirm all of their payment
and performance obligations and obligations to indemnify, contingent or
otherwise, under the Indenture and the
Guarantees.
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6.
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Except
as expressly modified by the terms of this letter agreement, the terms of
the Extension Agreement shall continue to apply in full force and effect,
unamended. This letter agreement may not be modified or amended
except by a written instrument signed by the Issuer, the Guarantors and
each of the members of the Noteholders’ Committee at the time of the
execution of such written
instrument.
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7.
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This
letter agreement may be signed in counterparts, each of which, when taken
together, shall be deemed an original. Execution of this letter agreement
is effective if a signature is delivered by facsimile transmission or
electronic (e.g., pdf)
transmission.
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8.
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This
letter agreement shall be binding upon and enure to the benefit of the
Parties hereto and each of their respective successors and
assigns.
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9.
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If
any term or other provision of this letter agreement is invalid, illegal
or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this letter agreement shall
nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the Parties shall negotiate in good faith to modify this letter
agreement so as to effect the original intent of the Parties as closely as
possible in a mutually acceptable manner in order that the terms of this
letter agreement remain as originally contemplated to the fullest extent
possible.
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10.
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THIS
LETTER 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, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH
PARTY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LETTER
AGREEMENT.
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11.
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The
Issuer and the Guarantors acknowledge and agree that any waiver or consent
that the Noteholders may make on or after the date hereof has been made by
the Noteholders in reliance upon, and in consideration for, the covenants,
agreements, representations and warranties of the Issuer and the
Guarantors hereunder.
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The above
terms are subject to the condition precedent that a fully signed copy of this
letter agreement signed by the Issuer and the Guarantors shall be provided to
Xxxxxxxx on behalf of the Noteholders prior to 12 p.m. on May 6, 2009, failing
which an immediate Event of Default shall occur without any further action on
the part of the Noteholders or the Trustee.
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