EXHIBIT 4.8
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO, OR IN SUCH OTHER NAME
AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE U.S. SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(l), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S (WITHIN THE
MEANING OF RULE 903(c)(2) OF REGULATION S UNDER THE U.S. SECURITIES ACT) AND (2)
IN THE CASE OF (A) OR (B) ABOVE, AGREES THAT IT WILL NOT PRIOR TO THE DATE WHICH
IS TWO YEARS AFTER THE LATER OF (A) THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) AND (B) THE LAST DAY ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF
THIS SECURITY (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE U.S. SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 000X XXXXXX XXX XXXXXX XXXXXX, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE U.S. SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
AN INSTITUTIONAL ACCREDITED INVESTOR, (E) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE U.S. SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S
(PROVIDED THAT SUCH NON-U.S. PERSONS AGREE NOT TO RESELL OR OTHERWISE TRANSFER
THE SECURITIES IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT, EXCEPT
IN ACCORDANCE WITH APPLICABLE CANADIAN SECURITIES LAWS) OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S.
SECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND TO THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE U.S. SECURITIES
ACT.
2
CUSIP 138747 AD 2
CANWEST MEDIA INC.
No. 001 U.S.$199,530,000
7-5/8% SENIOR NOTE DUE 2013
CANWEST MEDIA INC., a corporation organized under the federal laws of
Canada (the "Issuer," which term includes any successor corporation), for value
received, promises to pay to CEDE & CO. or registered assigns the principal sum
of ONE HUNDRED NINETY NINE MILLION FIVE HUNDRED THIRTY THOUSAND
(U.S.$199,530,000) U.S. DOLLARS on April l5, 2013.
Interest Payment Dates: April 15 and October 15, commencing October 15,
2003.
Record Dates: April 1 and October 1.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
3
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
CANWEST MEDIA INC.
By: /s/ XXXX XXXXXXX
---------------------------
Name:
Title:
By: /s/ P A XXXXXX
---------------------------
Name:
Title:
Dated: April 3, 2003
Certificate of Authentication:
This is one of the 7 5/8% Senior Notes due 2013 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: /s/ XXXXXXX XXXX
----------------------------
Authorized Signatory
4
[REVERSE OF NOTE]
CANWEST MEDIA INC.
7-5/8% SENIOR NOTE DUE 2013
1. Interest. CANWEST MEDIA INC., a corporation organized under
the federal laws of Canada (the "Issuer"), promises to pay, until the principal
hereof is paid or made available for payment, interest on the principal amount
set forth on the face hereof at a rate of 7-5/8% per annum. Interest hereon will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including April 3, 2003 to but
excluding the date on which interest is paid. Interest shall be payable in
arrears on each April 15 and October 15 commencing October 15, 2003. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. For
purposes of the Interest Act (Canada), the yearly rate of interest which is
equivalent to the rate payable hereunder is the rate multiplied by the actual
number of days in the year and divided by 360. The Issuer shall pay interest on
overdue principal and on overdue interest (to the full extent permitted by law)
at the rate borne by the Notes.
2. Method of Payment. The Issuer will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on April 1 or October 1 next preceding the Interest Payment Date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Issuer will pay principal, premium, if any,
and interest on the Notes in the manner set forth in Article 2 of the Indenture.
Interest may be paid by check mailed to the Holder entitled thereto at the
address indicated on the register maintained by the Registrar for the Notes.
3. Paying Agent and Registrar. Initially, The Bank of New York,
in its capacity as Trustee (the "Trustee"), will act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar without notice to
any Holder. Neither the Issuer nor any of its Affiliates may act as Paying Agent
or Registrar.
4. Indenture. The Issuer issued the Notes under an Indenture
dated as of April 3, 2003 (the "Indenture") between the Issuer, the Guarantors
and the Trustee. This is one of an issue of Notes of the Issuer issued, or to be
issued, under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as amended from time
to time (the "TIA"). The Notes are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of them. Capitalized and
certain other terms used herein and not otherwise defined have the meanings set
forth in the Indenture. The Issuer shall be entitled to issue Additional Notes
pursuant to Section 2.19 of the Indenture. The Notes include the Exchange Notes
issued in exchange for the Notes pursuant to the Registration Rights Agreement.
All Notes issued under the Indenture are treated as a single class of securities
under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the
5
terms of this Note and the terms of the Indenture, the terms of the Indenture
shall control. This is one of the Notes referred to in the Indenture.
5. Additional Amounts. The Issuer will pay to the Holders of
Notes such Additional Amounts as may become payable under Section 4.25 of the
Indenture.
6. Optional Redemption. The Issuer, at its option, may redeem the
Notes, in whole or in part, at any time on or after April 15, 2008 upon not less
than 30 nor more than 60 days' prior written notice, at the redemption prices
(expressed as percentages of principal amount), set forth below, together, in
each case, with accrued and unpaid interest to the Redemption Date, if redeemed
during the twelve month period beginning on April 15 of each year listed below:
Year Redemption Price
--- ----------------
2008.............................................. 103.813%
2009.............................................. 102.542%
2010.............................................. 101.271%
2011 and thereafter............................... 100.000%
Notwithstanding the foregoing, the Issuer may redeem in the aggregate
up to (i) 35% of the original principal amount of the Notes at any time and from
time to time prior to April 15, 2006 at a redemption price equal to 107.625% of
the aggregate principal amount so redeemed, plus accrued and unpaid interest, if
any, to the Redemption Date, out of the net cash proceeds of one or more Equity
Offerings; provided that at least 65% of the principal amount of Notes
originally issued (including the original principal amount of Additional Notes)
shall remain outstanding immediately after the occurrence of any such redemption
and that any such redemption occurs within 90 days following the closing of any
such Equity Offering.
Notwithstanding the foregoing and notwithstanding any other term of the
Notes or of the Indenture, until the completion of an exchange offer under the
Registration Rights Agreement, the Issuer may not redeem in the aggregate more
than 25% of the original principal amount of the Notes.
In the event of a redemption of fewer than all of the Notes, the
Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which
such Notes are listed or, if such Notes are not then listed on a national
securities exchange, on a pro rata basis, by lot or in such other manner as the
Trustee in its sole discretion shall deem fair and equitable. The Notes will be
redeemable in whole or in part upon not less than 30 nor more than 60 days'
prior written notice, mailed by first class mail to a holder's last address as
it shall appear on the register maintained by the Registrar. On and after any
redemption date, interest will cease to accrue on the Notes or portions thereof
called for redemption as long as sufficient funds to effect such redemption are
deposited by or on behalf of the Issuer with the Paying Agent.
7. Tax Redemption. The Notes will be redeemable, in whole but not
in part, at the option of the Issuer, upon not less than 30 nor more than 60
days' prior written notice
6
mailed by first class mail to each Holder of Notes at its address appearing on
the Register maintained by the Registrar, at 100% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the redemption
date, if the Issuer or any Guarantor is or would become obligated to pay, on the
next date on which any amount would be payable with respect to the Notes, any
Additional Amounts pursuant to Section 4.25 of the Indenture as a result of a
change in, or amendment to, the laws (or any regulation or rulings promulgated
thereunder) of any Taxing Jurisdiction, or any change in, or amendment to, any
administrative or other official position regarding the application or
interpretation of such laws, regulations or rulings (including, without
limitation, a ruling by a `court of competent jurisdiction), which change or
amendment is announced on or after the Issue Date; provided that the Issuer or
such Guarantor determines, in its business judgment, that the obligation to pay
such Additional Amounts cannot be avoided by the use of reasonable measures
available to the Issuer or such Guarantor (not including substitution of the
obligor under the Notes). No such notice of redemption may be given later than
180 days after the Issuer first becomes liable to pay any Additional Amounts as
a result of such change or amendment.
8. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Issuer defaults in making the redemption payment,
interest will cease to accrue on Notes or portions thereof called for
redemption.
9. Offers to Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale, and subject to further
limitations contained therein, the Issuer shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
10. Registration Rights. Pursuant to the Registration Rights
Agreement among the Issuer and initial purchasers of the Notes, the Issuer may
be obligated to consummate an exchange offer pursuant to which the Holder of
this Note shall have the right to exchange this Note for notes of a separate
series issued under the Indenture (or a trust indenture substantially identical
to the Indenture in accordance with the terms of a registration rights
agreement) which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes. The
Holders shall be entitled to receive certain additional interest payments in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
11. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes or portion of a Note selected
for redemption, or register the transfer of or exchange any Notes for a period
of 15 days before a mailing of notice of redemption.
7
12. Persons Deemed Owners. The registered Holder of this Note may
be treated as the owner of this Note for all purposes.
13. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or a Paying Agent will pay
the money back to the Issuer (or, if appropriate, any Guarantors) at its written
request. After that, Holders entitled to the money must look to the Issuer and
any Guarantors for payment as unsecured general creditors unless applicable
"abandoned property" law designates another Person.
14. Amendment, Supplement, Waiver, Etc. The Issuer, any Guarantor
and the Trustee may, without the consent of the Holders of any outstanding
Notes, amend, waive or supplement the Indenture or the Notes for certain
specified purposes, including, among other things, curing ambiguities, defects
or inconsistencies, maintaining the qualification of the Indenture under the TIA
and making any change that does not adversely affect the rights of any Holder.
Other amendments and modifications of the Indenture or the Notes may be made by
the Issuer, any Guarantor and the Trustee with the written consent of the
Holders of not less than a majority of the aggregate principal amount of then
outstanding Notes, subject to certain exceptions requiring the written consent
of the Holders of the particular Notes to be affected.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Issuer and the Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
their Capital Stock or certain Indebtedness, make certain Investments, create or
incur liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions, issue Preferred Stock of any Restricted Subsidiaries of the
Issuer, enter into sale and leaseback transactions and on the ability of the
Issuer to merge or consolidate with any other Person or transfer all or
substantially all of the Issuer's or any Guarantor's assets. Such limitations
are subject to a number of important qualifications and exceptions. Pursuant to
Section 4.04 of the Indenture, the Issuer must annually report to the Trustee in
writing on compliance with such limitations.
16. Successor Corporation. When a successor corporation assumes
all the obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article 5 of the Indenture, the
predecessor corporation will, except as provided in Article 5, be released from
those obligations.
17. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(7) or (8) of
the Indenture with respect to the Issuer or any Restricted Subsidiary) occurs
and is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of then outstanding Notes may, by written notice to the Trustee
and the Issuer, declare all principal of and accrued interest on all Notes to be
immediately due and payable and such amounts shall become immediately due and
payable. If an Event of Default specified in Section 6.01(7) or (8) of the
Indenture occurs with respect to the Issuer or any Restricted Subsidiary, the
principal amount of and interest on, all Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. Holders may not enforce the Indenture or the Notes
except as
8
provided in the Indenture. The Trustee may require indemnity reasonably
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may, in writing, direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal, premium, if any, or interest
or a default in the observance or performance of any of the obligations of the
Issuer under Article 5 of the Indenture) if it determines in its sole discretion
that withholding notice is in the Holders' best interests.
18. Trustee Dealings with Issuer. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer, any Guarantor or their Affiliates, and may otherwise
deal with the Issuer, any Guarantor or their Affiliates, as if it were not a
Trustee.
19. No Recourse Against Others. No director, officer, employee
incorporator or stockholder, of the Issuer or any Guarantor shall have any
liability for any obligations of the Issuer or any Guarantor under the Notes,
the Indenture or the Guarantees or for a claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
20. Discharge. The Issuer's obligations pursuant to the Indenture
will be discharged, except for obligations pursuant to certain sections thereof,
subject to the terms of the Indenture, upon the payment of all the Notes or upon
the irrevocable deposit with the Trustee of U.S. dollars or Government
Obligations sufficient to pay when due principal of and interest on the Notes to
maturity or redemption, as the case may be.
21. Authentication. This Note shall not be valid until the Trustee
manually signs the certificate of authentication on the other side of this Note.
22. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance of the entire indebtedness on this Note and for
defeasance of certain covenants in the Indenture upon compliance by the Issuer
and Guarantors with certain conditions set forth in the Indenture.
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Issuer and Guarantors
have caused CUSIP Numbers to be printed on the Notes and have directed the
Trustee in writing to use CUSIP numbers in notices of redemption as a
convenience to Holders of the Notes. No representation is made to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
24. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
9
25. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE.
THE ISSUER WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
CANWEST MEDIA INC.
31st Floor, TD Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx, X0X 0X0
Xxxxxx
Attention: Chief Financial Officer
10
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:___________________
11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to accept the offer to have all or any part of
this Note purchased by the Issuer pursuant to Section 4.09 or Section 4.20 of
the Indenture, check the appropriate box:
[ ] Section 4.09 [ ] Section 4.20
If you want to have only part of the Note purchased by the
Issuer pursuant to Section 4.09 or Section 4.20 of the Indenture, state the
amount you elect to have purchased:
$___________________
(multiple of $1,000)
Date:_______________
Your Signature:_________________________________
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:_________________
12
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being furnished
which comply with the conditions of transfer set forth in this
Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date:_______________________
Your Signature:_________________________________
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:____________________
13
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:_________________________ ______________________________________
NOTICE: To be executed by an executive
officer
14
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
_____________,_________
Attention:
Re: CanWest Media Inc. (the "Issuer")
7-5/8% Senior Notes due 2013 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$200,000,000
aggregate principal amount of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a U.S. person
or to a person in the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes (including that such Notes may not
be resold or otherwise transferred in Canada or to or for the benefit
of a Canadian resident, except pursuant to an exemption from the
prospectus and registration requirements under applicable Canadian
securities laws); and
(6) if the circumstances set forth in Rule 904(c) under
the Securities Act are applicable, we have complied with the additional
conditions therein.
15
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:__________________________
16
THE OBLIGATIONS OF THE GUARANTORS TO THE HOLDERS OF NOTES
PURSUANT TO THIS GUARANTEE AND THE INDENTURE DATED AS OF April 3, 2003, BY AND
AMONG CANWEST MEDIA INC. (THE "COMPANY"), THE GUARANTORS NAMED THEREIN AND THE
TRUSTEE NAMED THEREIN (THE "INDENTURE") ARE EXPRESSLY SET FORTH IN ARTICLE 11 OF
THE INDENTURE, AND REFERENCE IS HEREBY MADE TO SUCH INDENTURE FOR THE PRECISE
TERMS OF THIS GUARANTEE. THE TERMS OF THE INDENTURE, INCLUDING WITHOUT
LIMITATION ARTICLE 11, ARE INCORPORATED HEREIN BY REFERENCE.
Each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Noteholder, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Company
thereunder, that: (a) the principal of and premium and interest on the Notes
shall be promptly paid in full when due, whether at the Maturity Date, by
acceleration, redemption or otherwise, and interest on the overdue principal of
(and any premium) and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Noteholders thereunder shall be promptly paid
in full or performed, all in accordance with the terms thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at the
Maturity Date, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Noteholder with respect to any provisions thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that, subject to Article 11 of the Indenture, this Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and the Indenture.
If any Noteholder is required by any court or otherwise to
return to the Company or Guarantors, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or Guarantors,
any amount paid to such Noteholder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor agrees
that it shall not be entitled to any right of subrogation in relation to the
Noteholders in respect of any obligations guaranteed hereby until such time as
the Indebtedness of the Company evidenced by the Note shall have been paid in
full. Each Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Noteholders, on the other hand, (a) the Maturity Date of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02 of
the Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations Guaranteed hereby, and (b) in the event of any declaration of
acceleration of such obligations as provided in Section 6.02 of the Indenture,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Guarantee. The Guarantors
shall have the right
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to seek contribution from any non-paying Guarantor so long as the exercise of
such right does not impair the rights of the Noteholders under the Guarantees.
Each Guarantor, and by its acceptance of Notes, each
Noteholder, hereby confirms that it is the intention of all such parties that
this Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal, state, provincial or territorial
law to the extent applicable to any Guarantee. To effectuate the foregoing
intention, the Noteholders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under this Guarantee and Article 11 of the
Indenture shall be limited to the maximum amount as will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article 11 of the Indenture, result in the obligations of such
Guarantor under this Guarantee not constituting a fraudulent transfer or
conveyance.
This is a continuing Guarantee and shall remain in full force
and effect and shall be binding upon the undersigned Guarantors and their
respective successors and assigns to the extent set forth in the Indenture until
full and final payment of all of the Company's obligations under the Notes and
the Indenture and shall inure to the benefit of the Noteholders and their
predecessors and assigns and, in the event of any transfer or assignment of
rights by any Noteholder, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof and of Article 11 of
the Indenture. Notwithstanding the foregoing, any Guarantor that satisfies the
provisions of Section 11.05 of the Indenture shall be released of its
obligations hereunder.
THIS GUARANTEE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE
OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAWS OF THE STATE OF NEW
YORK THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
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