CANWEST MEDIA INC. and CANWEST TELEVISION LIMITED PARTNERSHIP CDN.$105,000,000 12% Senior Secured Notes _________________ NOTE PURCHASE AGREEMENT __________________ Dated May 20, 2009
REDACTED
COPY
|
and
CANWEST
TELEVISION LIMITED PARTNERSHIP
CDN.$105,000,000
12%
Senior Secured Notes
_________________
__________________
Dated
May 20, 2009
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TABLE
OF CONTENTS
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1
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DEFINITIONS
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1
|
|
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2
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SALE
AND PURCHASE OF SENIOR SECURED NOTES
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1
|
|
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2.1
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Purchase
and Sale
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1
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|
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2.2
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Closing
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2
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|
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2.3
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Delivery
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2
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|
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2.4
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Additional
Notes
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2
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|
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3
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TERMS
OF THE NOTES
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2
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|
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3.1
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Commitment
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2
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|
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3.2
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Interest
Rate
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2
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|
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3.3
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Currency
of Fees and Repayment
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2
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|
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3.4
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Purpose
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2
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|
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4
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DECISIONS
BY PURCHASERS
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3
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5
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SECURITY
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3
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|
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6
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MANDATORY
REPAYMENT
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4
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|
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7
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VOLUNTARY
REPAYMENTS
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5
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|
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8
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PAYMENT
OF INTEREST
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5
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|
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9
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CONDITIONS
PRECEDENT TO FUNDING
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5
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|
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10
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REPRESENTATIONS
AND WARRANTIES
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7
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|
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11
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COVENANTS
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9
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|
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12
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EVENTS
OF DEFAULT
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16
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13
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REMEDIES
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18
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|
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14
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GUARANTEE
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18
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15
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PURCHASER
REPRESENTATIONS AND WARRANTIES
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21
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16
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EXPENSES
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21
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17
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TAXES
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21
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18
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NOTES
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22
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18.1
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Transfer
and Exchange of Notes
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22
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18.2
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Replacement
of Notes
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22
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|
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18.3
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Notes
Held by Issuers, etc.
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22
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19
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MISCELLANEOUS
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23
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19.1
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Further
Assurances
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23
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|
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19.2
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Unrestricted
Purchasers
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23
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19.3
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Debtor
in Possession Financing
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23
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19.4
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Disclosure
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23
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19.5
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Conflict
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23
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19.6
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Amendments
and Waivers
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23
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(i)
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19.7
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Assignments
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24
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19.8
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Governing
Law
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24
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19.9
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Currency
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24
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19.1
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Exclusivity
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24
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19.1
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Confidentiality
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24
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19.1
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Counterparts
and Facsimile; Signatures
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25
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19.1
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Indemnity
|
25
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19.1
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No
Waiver
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25
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19.2
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Remedies
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26
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19.2
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Severability
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26
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19.2
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Conflict
of Terms
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26
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19.2
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Notices
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26
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19.2
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Section
Titles
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27
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19.2
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Reinstatement
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27
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19.2
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No
Strict Construction
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27
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19.2
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Permitted
Liens
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27
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19.2
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Existing
Indenture
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27
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19.2
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Principles
of Construction
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27
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(ii)
and
CANWEST
TELEVISION LIMITED PARTNERSHIP
12%
Senior Secured Notes
THIS AGREEMENT made as of the
20th day of May, 2009.
A
M O N G:
CANWEST MEDIA INC. (“CMI”) and CANWEST TELEVISION LIMITED
PARTNERSHIP, by its general partner CANWEST TELEVISION GP
INC.
(each, an
“Issuer”, and
collectively, the “Issuers”)
- and
-
All
guarantors (as listed in Schedule
E) that have provided guarantees for the Existing Facility,
(collectively,
the “Guarantors”)
- and
-
The
parties listed on the signature pages hereto, as “Purchasers”, together with
their successors and assigns
(each, a
“Purchaser” and
collectively the “Purchasers”)
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1.
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DEFINITIONS
|
Defined
terms used in this Agreement are defined in Schedule F.
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2.
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SALE
AND PURCHASE OF SENIOR SECURED
NOTES
|
|
2.1
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Purchase and
Sale
|
Subject
to the terms and conditions of this Agreement, the Issuers shall issue and sell
to the Purchasers and the Purchasers shall purchase from the Issuers the
equivalent amount in US dollars of $105,000,000 Canadian dollars (based on an
exchange rate to be agreed) in aggregate principal amount of senior secured
promissory notes (the “Notes”) on the Closing Date on
the terms set forth herein, which Notes shall be in the form set out in Exhibit A hereto and
in the amounts set forth on Schedule
G hereto. The purchase price for the Notes shall be the equivalent amount
in US dollars of $100,000,000 Canadian dollars (based on an exchange rate to be
agreed) (the “Purchase
Price”). The Purchasers’ obligations hereunder are several and not joint
or joint and several obligations, each in accordance with Schedule
A, and no Purchaser shall have liability to any Person for the
performance or non-performance by any Person. The terms of the Notes
are set forth in this Agreement and in the Notes. The Notes will
be
secured,
along with the CIT Facility by the Existing Security. The security
structure is described more fully in Section 5.
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2.2
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Closing
|
The
closing of the purchase and sale of the Notes pursuant to this Agreement shall
be held at the offices of Xxxxx Xxxxxx & Harcourt LLP, at 12:00PM on
Thursday, May 22, 2009 (the “Closing Date”).
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2.3
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Delivery
|
At
closing, the Issuers shall deliver to the Purchasers the Notes, duly executed,
and free and clear of all Liens and the Purchasers shall pay the Purchase Price
to the Issuers.
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2.4
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Additional
Notes
|
In the
event that any Purchaser funds additional US dollars to the Issuers on or after
the Closing Date in order to ensure that the Issuers receive the equivalent of
$100,000,000 Canadian dollars as the Purchase Price (calculated as of the
Closing Date), the Issuers shall issue additional Notes at the time of such
funding to such Purchaser in the form set out in Exhibit A and on the same terms
and conditions set forth herein.
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3.
|
TERMS
OF THE NOTES
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|
3.1
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Commitment
|
Each
Purchaser commits to purchase its pro rata share of the Notes
on the Closing Date in accordance with its commitment set forth on Schdule A
hereto (each, a “Commitment”).
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3.2
|
Interest
Rate
|
Interest
shall be paid at the rate of 12%, to be paid in cash on the terms set forth in
Section 8.
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3.3
|
Currency of Fees and
Repayment
|
All
repayments shall be made in US dollars. All interest and fees on the
notes shall be payable in US dollars.
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3.4
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Purpose
|
|
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(a)
|
The
proceeds from the Notes shall be used for the following
purposes: (i) to repay any and all outstanding obligations
under the Credit Agreement, dated as of October 13, 2005, among CMI, the
guarantors party thereto, the lenders party thereto and The Bank of Nova
Scotia (as amended or otherwise modified through the date hereof, the
“Existing Credit
Agreement”, and the credit facility made available pursuant
thereto, the “Existing
Facility”), which repayment shall include the replacement or cash
collateralization of any letters of credit issued thereunder and the
repayment of related hedging obligations to The Bank of Nova Scotia; (ii)
subject to the following paragraph, to pay legal fees and expenses in
connection with this Agreement, to provide cash collateral to the Bank of
Nova Scotia in connection with cash management obligations and to pay
other legal fees and expenses; and (iii) to provide for short-term working
capital liquidity needs and general operating
expenses.
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- 2
-
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(b)
|
Notwithstanding
the foregoing, the proceeds from the Notes shall only be used in
accordance with the Funding Forecast and the most recent 3 Month Forecast
that have been approved by the Purchasers. No proceeds from the
Notes or the CIT Facility shall be used to fund any debt structuring fees
(including any placement or similar fees) without the consent of the
Purchasers, other than fees payable to the Purchasers, CIT and their
respective professional advisors or fees payable to Royal Bank of Canada
and its affiliates in the amount of $3,025,000 under the terms of its
existing engagement.
|
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4.
|
DECISIONS
BY PURCHASERS
|
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4.1
|
Subject
to Section 4.2, any actions taken or not taken under this Agreement or any
other document delivered in connection herewith by the Purchasers may be
taken upon the direction of Purchasers who hold Notes in an aggregate
principal amount equal to at least 66 2/3% of aggregate principal amount
of all Notes outstanding at a given time (the “Required
Purchasers”).
|
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4.2
|
The
following actions may only be taken with the prior unanimous written
consent of all of the
Purchasers:
|
|
|
(a)
|
increasing
the amount of the Notes or the commitment of any Purchaser under the
Notes;
|
|
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(b)
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decreasing
the interest rates or fees applicable to the
Notes;
|
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(c)
|
extending
the date fixed for payment of principal, interest, fees or any other
amount relating to the Notes;
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(d)
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amending
the Maturity Date of the Notes;
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(e)
|
the
subordination of the Security or permitting new or existing indebtedness
to rank pari-passu with the
Notes or the Security;
|
|
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(f)
|
the
release or material amendment of the security documents provided pursuant
to this Agreement; and
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(g)
|
any
amendment to this Section 4 of the
Agreement.
|
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5.
|
SECURITY
|
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5.1
|
The
Notes shall be provided concurrently with an asset-based facility (the
“CIT Facility”)
provided by CIT Business Credit Canada Inc. (“CIT”). Each
of the Notes and the CIT Facility shall be secured by a first-priority
perfected Lien in all property, assets and undertaking of the Issuers and
the Guarantors, subject to the Intercreditor
Terms (collectively, the “Collateral”). The
security for the Existing Facility granted in favour of CIBC Mellon Trust
Company, in such capacity, pursuant to the 2005 collateral agency
agreement setting out the terms of such agency (the “Collateral Agent”) for
the benefit of the creditors noted therein (the “Existing Security”)
shall be held by CIBC Mellon Trust Company for the benefit of securing the
Notes and the CIT Facility.
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5.2
|
[CANWEST
redacted the priority of collateral in Section 5.2 for
confidentiality reasons.]
|
- 3
-
|
5.3
|
For
the purposes of this Agreement, “Lien” means any
mortgage, charge, hypothec, lien and security interest of any kind or
nature whatsoever.
|
|
6.
|
MANDATORY
REPAYMENT
|
|
6.1
|
The
Notes shall be repayable in full on the date (the “Maturity Date”) which is
the earlier of (i) the date that is 6 months after the Closing Date,
subject to the following sentence and (ii) the occurrence of an Event of
Default that has resulted in an acceleration of the Notes. The
Maturity Date in clause (i) may be extended at the option of the Issuers
for an additional 3 month period, subject to the following conditions: the
Issuers shall pay to each Purchaser a special interest payment in cash on
the date of the extension in an amount of 1% of the aggregate principal
amount of Notes held by such Purchaser; all representations and warranties
set out in this Agreement shall remain true and correct as of the
extension date and no Default or Event of Default shall have occurred as
of such date (and the Issuers shall have delivered a certificate from the
Chief Financial Officer to such effect); and cash flow forecasts shall
have been approved by the Purchasers on the terms set forth below and
delivered for the entire extension period by the
Issuers.
|
|
6.2
|
Subject
to Section 6.3, the Issuers will be required to make additional
repayments with the following:
|
|
|
(a)
|
100%
of the net proceeds of any sale or other disposition of property or assets
of any Issuer or Guarantor that is permitted by this Agreement (other than
net cash proceeds of sales or other dispositions of inventory in the
ordinary course of business or a Turkish Asset
Sale);
|
|
|
(b)
|
100%
of the net proceeds of any sale or other disposition of property or assets
of a subsidiary of a Guarantor or an Issuer that is not a Guarantor (a
“Non-Guarantor”)
that are distributed to a Guarantor or an Issuer under the terms of the
constituent documents for such Non-Guarantor or loan documentation to
which such Non-Guarantor is a party (other than net cash proceeds of sales
or other dispositions of inventory in the ordinary course of business or a
Turkish Asset Sale);
|
|
|
(c)
|
100%
of the net proceeds from the sale or issuance of any equity securities by
any Issuer or Guarantor that is permitted by this
Agreement;
|
|
|
(d)
|
100%
of the net proceeds from the sale or issuance of any equity securities by
a Non-Guarantor that are distributed to a Guarantor or an Issuer under the
terms of the constituent documents for such Non-Guarantor or loan
documentation to which such Non-Guarantor is a
party;
|
|
|
(e)
|
100%
of the net proceeds of the incurrence of indebtedness (other than
indebtedness incurred under the CIT Facility) by any Issuer or Guarantor
that is permitted by this Agreement;
and
|
|
|
(f)
|
100%
of insurance proceeds paid on account of any loss of any property or
assets of any Issuer or Guarantor.
|
|
6.3
|
[CANWEST
redacted the priority of collateral in Section 6.3 for
confidentiality reasons.]
|
- 4
-
|
6.4
|
For
the purposes of this Agreement, “Turkish Asset Sale”
shall mean the sale of the shares or assets of Canwest Medya A.S., Canwest
Medya Yönetim Ticaret U.C. A.S., Karaköy Televizyon ve Radyo Yayinciliĝi
Ticaret A.S., CGS Televizyon ve Radyo Yayinciliĝi Ticaret A.S., Pasifik
Televizyon ve Radyo Yayinciliĝi Ticaret A.S., Galata Televizyon ve Radyo
Yayinciliĝi Ticaret A.S., and Halic Televizyon ve Radyo Yayinciliĝi A.S.
or the sale of any amounts receivable from such entities or their
shareholder, as applicable, pursuant to notes made to such entities or
their shareholder by Canwest Irish Holdings (Barbados) Inc. or Canwest
International Communications Inc. (all such assets collectively, the
“Turkish
Assets”).
|
|
6.5
|
Any
partial repayment of the Notes shall be applied to all of the Notes at a
given time pro rata
in accordance with the aggregate outstanding principal amount
thereof at such time.
|
|
7.
|
VOLUNTARY
REPAYMENTS
|
Voluntary
prepayments shall be permitted at any time, subject to payment of the applicable
fees described above.
|
8.
|
PAYMENT
OF INTEREST
|
|
8.1
|
Interest
shall be payable monthly in arrears on the first Business Day of the
following month and on the Maturity Date, commencing with the period
starting on May 19, 2009. The first interest payment date shall
be payable on June 1, 2009. Interest shall be calculated daily
for the actual number of days elapsed in the period during which it
accrues based on a year of 365 days. “Business Day” means each
day other than a Saturday or Sunday or a statutory or civic holiday that
banks are open for business in Xxxxxxx, Xxxxxxx,
Xxxxxx.
|
|
8.2
|
For
purposes of the Interest
Act (Canada), where in this Agreement or the Notes a rate of
interest is to be calculated on the basis of a year of 365 days, the
yearly rate of interest to which the rate is equivalent is the rate
multiplied by the number of days in the year for which the calculation is
made and divided by 365, as
applicable.
|
|
8.3
|
If
any provision of this Agreement or the Notes would obligate a Issuer to
make any payment of interest or other amount payable to the Purchasers in
an amount or calculated at a rate which would be prohibited by law or
would result in a receipt by the Purchasers of interest at a criminal rate
(as defined under the Criminal Code
(Canada)), then notwithstanding that provision, that amount or rate shall
be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so
prohibited by law or result in a receipt by the Purchasers, as the case
may be, of interest at a criminal rate, the adjustment to be effected, to
the extent necessary, as follows:
|
|
|
(a)
|
firstly,
by reducing the amount or rate of interest required to be paid to the
Purchasers under this provision;
and
|
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(b)
|
thereafter,
by reducing any fees, commissions, premiums and other amounts required to
be paid to the Purchasers which would constitute interest for purposes of
Section 347 of the Criminal Code
(Canada).
|
|
9.
|
CONDITIONS
PRECEDENT TO FUNDING
|
The
issuance of the Notes shall be subject to the following conditions precedent,
all of which shall be for the benefit of the Purchasers and shall be satisfied
prior to the purchase of the Notes (or, at the option of
- 5
-
the
Purchasers, on the basis of a post-closing undertaking acceptable to the
Purchasers), in each case in form and substance satisfactory to the
Purchasers:
|
|
(a)
|
execution
and delivery by the Issuers and the Guarantors of this Agreement, the
Notes and all such other documents as the Purchasers reasonably require,
including without limitation a side-letter with respect to potential
proceedings under the CCAA or comparable
legislation;
|
|
|
(b)
|
delivery
of all Existing Security and an officer’s certificate confirming its
completeness and accuracy and execution and delivery by all necessary
parties thereto (and satisfaction with the terms thereof) of the credit
confirmation required to be delivered under the terms of the existing
collateral agency agreement (and upon such delivery, the Existing Security
and the Quebec Security as defined below shall collectively be the “Security”);
|
|
|
(c)
|
delivery
of all new security documentation required by the Purchasers in the
Province of Quebec to create and perfect the Liens on the Collateral (the
“Quebec
Security”);
|
|
|
(d)
|
registration
of the TEN shares in the name of Collateral
Agent;
|
|
|
(e)
|
(i)
completion of all necessary lien and other searches, together with all
registrations, filings and recordings wherever the Purchasers deem
appropriate in connection with the requirements in clause (b), and (ii)
satisfaction that there are no mortgages, pledges, charges, security
interests, liens or other liens ranking ahead of any security held by the
Purchasers, except (A) as provided for herein, (B) as arising by operation
of law in the ordinary course of business without any contractual grant of
security or (C) as have been previously disclosed in lien searches
delivered to the Purchasers’ counsel by Osler, Xxxxxx & Harcourt LLP
(collectively, “Permitted
Liens”);
|
|
|
(f)
|
satisfaction
with (i) the total amount of all outstanding obligations owing under the
Existing Facility (including without limitation all professional fees) and
all related hedging obligations, (ii) the payout arrangements and related
documentation for the Existing Facility and all related hedging
obligations and (iii) the releases given by the lenders under the Existing
Facility and related hedge providers and (iv) the costs associated with
all letters of credit that are to remain outstanding in connection with
the Existing Facility;
|
|
|
(g)
|
satisfaction
that each of the Issuers and Guarantors has complied with and is
continuing to comply in all material respects with all applicable laws,
regulations and policies and the requirements of applicable regulators in
relation to its activities, to the extent that the failure to comply would
have a material adverse effect on the business of any Issuer or
Guarantor;
|
|
|
(h)
|
execution
and delivery of closing certificates by each Issuer and Guarantor,
together with all customary attachments thereto including without
limitation board resolutions, governing documents and evidence of
incumbency;
|
|
|
(i)
|
delivery
of all necessary legal opinions from relevant counsel to the Issuers and
the Guarantors, including without limitation opinions confirming that the
obligations under the Notes are secured by the Existing
Security;
|
- 6
-
|
|
(j)
|
the
closing of the CIT Facility, and satisfaction with the terms of and all
documentation for (A) the CIT Facility and (B) all intercreditor terms
governing the priorities and other matters between the Notes and the CIT
Facility (the “Intercreditor
Terms”);
|
|
|
(k)
|
satisfaction
with (i) a 4 week cash flow for the Issuers and their affiliates for the
period from April 20, 2009 to May 15, 2009 and (ii) a 3 month cash flow
forecast for the Issuers and their affiliates ((i) and (ii) collectively,
the “Funding
Forecast”);
|
|
|
(l)
|
satisfaction
that, after giving effect to the purchase of Notes and the closing of the
CIT Facility, the Issuers and the Guarantors shall have sufficient
liquidity to fund their operations in accordance with the Funding
Forecast;
|
|
|
(m)
|
execution
and delivery of amendments to the confidentiality, non-disclosure and
non-use agreements entered into between inter alia, CMI and the
Purchasers and the Purchasers’ financial and legal advisors, in each case
to remove any restrictions on such parties from contacting any other
parties involved in the Restructuring Transactions (provided that such
parties report to and keep the Issuers apprised forthwith as to the
substance and nature of any material contact), which amendments shall be
in form and substance satisfactory to the
Purchasers;
|
|
|
(n)
|
certification
by the Issuers and Guarantors that: (i) all representations and warranties
contained in this Agreement remain true and correct as of the Closing Date
and that no Default or Event of Default has occurred and is continuing or
would result from the purchase of Notes contemplated hereby; and (ii) all
representations and warranties contained in the Existing Security remain
true and correct in all material respects as of the Closing Date (unless
specifically given with reference to an earlier date, in which case such
representations and warrants shall be true and correct as of such earlier
date); and
|
|
|
(o)
|
all
of the expenses of each of the Collateral Agent, the Purchasers and the Ad
Hoc Committee previously incurred in connection with the Notes and the
restructuring transactions, including, without limitation, legal fees of
counsel to the Collateral Agent, the Purchasers and the Ad Hoc Committee
shall have been paid in full.
|
|
10.
|
REPRESENTATIONS
AND WARRANTIES
|
Each
Issuer and each Guarantor makes each of the following representations and
warranties with respect to itself:
|
|
(a)
|
The
transactions contemplated by this Agreement and all documents delivered
pursuant to the terms hereof, including without limitation the Notes and
the Security: (i) are within the powers of each Issuer and each
Guarantor who has executed such documents; (ii) have been duly authorized
by all necessary corporate and, if required, partnership shareholder
approval; (iii) have been duly executed and delivered by or on behalf of
each Issuer and each Guarantor who has executed such documents; (iv)
constitute legal, valid and binding obligations of each Issuer and each
Guarantor who has executed such document, enforceable in accordance with
their terms; (v) do not require the consent or approval of, registration
or filing with, or any other action by, any governmental authority or any
party to a Material Contract, other than filings which may be made to
register or otherwise record (or assign) the Security; and (vi) will not
violate the charter documents
|
- 7
-
|
|
or
bylaws of any of any Issuer or any Guarantor who has executed such
documents or any applicable law relating to such
parties;
|
|
|
(b)
|
There
is no Default or Event of Default that has occurred and is continuing as
of the date hereof;
|
|
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(c)
|
The
Security is effective to create a valid and continuing perfected Lien on
the Collateral in favour of the Collateral Agent for the benefit of the
Purchasers having the priority set forth herein, subject only to Permitted
Liens, and there are no other creditors secured by the Existing Security
(after giving effect to the prepayment in full of the Existing Facility on
the Closing Date) other than the Purchasers and the lenders under the CIT
Facility;
|
|
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(d)
|
There
are no Liens on the Ten shares other than a Lien in favour of the
Collateral Agent under the Equitable Mortgage of Securities among Irish
Holdings and the Collateral Agent (the “Equitable Mortgage”);
there are no contractual arrangements affecting the Ten shares other than
the Equitable Mortgage and the Participant Sponsorship Agreement (the
“Participant
Agreement”) among Irish Holdings, the Collateral Agent and
Citigroup Global Markets Australia Pty Limited, which agreements have not
been amended or modified since they were entered into; and all of the
representations and warranties of Irish Holdings contained in the
Equitable Mortgage remain true and correct on the Closing Date as if set
forth herein;
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(e)
|
The
Issuers and Guarantors maintain appropriate insurance coverage in amounts
and on terms that are customary in the industry of the Issuers and
Guarantors;
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(f)
|
Neither
Irish Holdings nor Canwest Ireland Nominee Ltd. have any assets or
liabilities other than (i) customary liabilities associated with a holding
company including without limitation legal and accounting expenses in an
amount not to exceed $150,000 in the aggregate, (ii) the TEN shares, (iii)
guarantees provided of the Notes. the Existing Facility (pending the
funding of the Notes and the CIT Facility), the CIT Facility and the 8%
Notes and (iv) intercompany obligations owed to Canwest Mediaworks Ireland
Holdings by CMI in the amount of approximately
$72,000,000;
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(g)
|
All
retainers for professionals and advisors engaged by any Issuer or
Guarantor (or any of their subsidiaries) as of the date hereof, including
with respect to the Restructuring Transactions (other than retainers for
local counsel that are not material), and all policies of directors’ and
officers’ insurance maintained by any Issuer or Guarantor have been
disclosed to the Purchasers and their advisors, and there are no directors
or employees trusts that have been established by any Issuer or
Guarantor;
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(h)
|
The
quantum and nature of all payments, on a monthly basis, to senior
executives and their related parties and all bonus payments contractually
required to be paid to any senior executive or their related party have
been disclosed in writing to the Purchasers and their
advisors.
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(i)
|
Neither
the financial statements delivered to the Purchasers or their advisors
from time to time nor any other written statement or information (other
than projections, which are subject to following sentence) furnished by or
on behalf of or at the direction of any Issuer or Guarantor to the
Purchasers or their advisors in connection with the negotiation,
consummation or administration of this Agreement contain, as of the time
such statements were so furnished, any untrue statement of a material fact
or an omission of a
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material
fact as of such time, which material fact is necessary to make the
statements contained therein not misleading and all such statements, taken
as a whole, together with this Agreement, the Notes, the Security and all
other relevant documents do not contain any untrue statement of a material
fact or omit a material fact necessary to make the statements contained
herein or therein not misleading. All financial projections
furnished or made available by the Issuers and the Guarantors to the
Purchasers and their advisors have been prepared in good faith, on the
basis of all known facts and using reasonable assumptions and the Issuers
and the Guarantors believe such projections to be fair and
reasonable.
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(j)
|
All
written information furnished by or on behalf of the Issuers and the
Guarantors to the Purchasers or their advisors for the purposes of, or in
connection with, this Agreement, the Notes, the Security or any other
relevant document or any other transaction contemplated thereby, is true
and accurate in all respects on the date as of which such information is
dated or certified, and not incomplete by omitting to state any material
fact necessary to make such information not misleading at such time in
light of then-current
circumstances.
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(k)
|
All
documents and information filed with relevant securities authorities by
the Issuers and Guarantors comply with all applicable laws and, at the
time filed, did not contain any 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 light of the circumstances under which
they were made, not misleading.
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(l)
|
At
the time of funding, all of the representations and warranties contained
in Article 3 of the Credit Agreement, to be dated as of the Closing Date,
among CMI, the guarantors party thereto from time to time, the lenders
party thereto from time to time, and CIT Business Credit Canada Inc., as
agent, which credit agreement establishes the CIT Facility (the “CIT Credit Agreement”)
are true and correct as if such representations and warranties were set
forth herein, mutatis
mutandis, such that, without limitation, (i) the “Borrower” as
defined therein shall refer to the Issuers, (ii) the “Lenders” as defined
therein shall refer to the Purchasers, (iii) “Credit Party” as defined
therein shall refer to the Issuers and the Guarantors collectively, (iv)
“Agreement” shall refer to this Agreement, (v) “Loan Documents” shall
refer to this Agreement, the Notes, the Security and all other documents
delivered pursuant to the terms thereof, and (vi) “Obligations” shall
refer to the obligations under this Agreement, the Notes, the Security and
all other documents delivered pursuant to the terms
thereof.
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11.
|
COVENANTS
|
Each
Issuer and Guarantor covenants and agrees to comply with the following
covenants:
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(a)
|
The
Issuers and the Guarantors shall duly and punctually pay all principal,
interest, fees and other amounts on the Notes and contemplated by this
Agreement when due and payable.
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(b)
|
The
Issuers and the Guarantors shall use the proceeds of the Notes only in
accordance with Section 3.4.
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(c)
|
The
Issuers and the Guarantors shall maintain at all times adequate insurance
coverage of such kind and in such amounts and against such risks as is
prudent for a business of an
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established
reputation with financially sound and reputable insurers in coverage and
scope acceptable to the Purchasers, it being agreed that the coverage
levels at closing are acceptable as of such
date.
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(d)
|
The
Issuers shall deliver to each of the
Purchasers:
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(i)
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monthly
financial statements of the Issuers and the Guarantors which are material
operating subsidiaries within 20 days of the end of each calendar month
along with a certificate of the Chief Financial Officer of the Issuers
certifying that no Default or Event of Default has
occurred;
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(ii)
|
along
with delivery of the monthly financial statements, a weekly cash flow
forecast (each, a “3
Month Forecast”) for the 3 month period commencing with the
following month, which 3 Month Forecast shall have been approved in
advance by the Purchasers (and in support of which approval right the
Issuers shall provide all background documentation requested by the
Purchasers); provided, that such 3
Month Forecast shall not be required to be approved for any period
commencing after the Maturity Date (assuming an extension of the Maturity
Date as contemplated by this
Agreement);
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(iii)
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on
the fourth Business Day of each week, report as to the last week’s actual
cash flows accompanied by a variance analysis explaining how and why
actual results for the immediately preceding week varied from the
applicable week in the 3 Month Forecast and/or from the Funding
Forecast;
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(iv)
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on
the second Business Day of each week, a summary of all bank account
balances, cash collections and disbursements of the Issuers and Guarantors
summarized in detail (by category and operating divisions) as of the close
of the last Business Day of the previous
week;
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(v)
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on
the first Business Day of each week, a weekly status update and plan
regarding the Restructuring Transactions (including reports on the
progress of any sale or investment process and information which may
otherwise be confidential subject to the same being maintained as
confidential by the Purchasers and their advisors, subject to usual
exceptions);
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(vi)
|
concurrently
with the delivery thereof pursuant to the terms of the CIT Credit
Agreement (as amended, restated, replaced or otherwise modified from time
to time), copies of any collateral reports, valuations, financial
information or any other documents or information delivered to the lenders
under the CIT Credit Agreement (as amended, restated, replaced or
otherwise modified from time to
time);
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(vii)
|
notice
forthwith upon any Issuer or Guarantor determining that there will be a
material change from the Funding Forecast or a 3 Month Forecast, or of any
other material developments with respect to the business and affairs of
any Issuer, any Guarantor or any of their subsidiaries (including without
limitation Ten);
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(viii)
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notice
forthwith upon any Issuer or Guarantor receiving notice from any creditor,
landlord or other third party delivering a notice of default, demand,
acceleration
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or
enforcement in respect of any material obligation of any Issuer or any
Guarantor;
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(ix)
|
from
and after the Closing Date, notice forthwith, and copies of, any
discussion papers, agreements, letters of intent, funding or financing
proposals, commitment letters, offers or agreements entered into or
relating to the business of any Issuer or any Guarantor other than a
proposal from the Purchasers (each, a “Financing Proposal”);
provided, that disclosure of copies of unsolicited unilateral Financing
Proposals containing confidentiality restrictions shall not be required to
be disclosed until such restrictions have been removed, and the Issuers or
Guarantors shall negotiate in good faith to remove such restrictions (and
if unsuccessful, the Issuers or Guarantors shall not be entitled to pursue
such Financing Proposals any
further);
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(x)
|
notice
forthwith of any event or occurrence that, with notice or the passage of
time or both, would be an “Event of Default”
hereunder (a “Default”);
and
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(xi)
|
such
other information as may be requested by the Purchasers or their advisors
from time to time acting
reasonably.
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(e)
|
The
Issuers and the Guarantors shall ensure that, (i) as of any date, each of
the actual total receipts and capital expenditures of the Issuers and the
Guarantors for the previous 4-week period will not exceed by more than 10%
the comparable item for the Issuers and the Guarantors for such period as
set forth in the Funding Forecast, as such item may be updated in the most
recent 3 Month Forecast that was approved by the Purchasers, and (ii) as
of any date, each of the net operating cash flow and total net cash flow
of the Issuers and the Guarantors for the previous 4-week period will not
exceed the greater of 10% or $1,500,000 in excess of the comparable item
for the Issuers and the Guarantors for such period as set forth in the
Funding Forecast, as such item may be updated in the most recent 3 Month
Forecast that was approved by the
Purchasers.
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(f)
|
Neither
the Issuers nor the Guarantors shall take any action whatsoever
(including, without limitation, any sale or loan transaction, the
incurrence of Indebtedness including any guarantees thereof,
recapitalization or equity issuance or any other action outside of the
ordinary course of business) that could reasonably be expected to have an
adverse or dilutive (in the case of shares) effect on (a) the TEN shares
held by Canwest MediaWorks Ireland Holdings (“Irish Holdings”), (b)
the Equitable Mortgage, (c) Irish Holdings or (d) the guarantee of Irish
Holdings of the 8% Notes and the structural priority created
thereby. Neither the Issuers nor the Guarantors shall consent
to or co-operate in any such action by TEN and shall take all steps within
their powers to prevent such action by TEN, and to the knowledge of the
Issuers and the Guarantors, Ten does not have any current intention to
take any such action..
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(g)
|
The
Issuers and the Guarantors shall complete the milestones set forth in
Schedule B (the “Milestone Conditions”)
within the timeframes contemplated by Schedule B and shall comply with all
other terms, conditions and covenants contained in the Note Agreement, the
Definitive Note Agreement and this
Agreement.
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(h)
|
Following
reasonable advance notice, the Issuers and the Guarantors shall, to the
extent permitted by law:
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(i)
|
provide
the Purchasers and each of their advisors who have signed a
confidentiality and non-disclosure agreement in favour of and on the terms
acceptable to the Issuers (a “Confidentiality
Agreement”) with reasonable access to the offices, notes, and books
and records of the Issuers and the Guarantors during normal business
hours;
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(ii)
|
make
the officers and legal and financial advisors of the Issuers and the
Guarantors available on a reasonable basis for any discussions with any
signatory to a Confidentiality
Agreement;
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(iii)
|
keep
each signatory to a Confidentiality Agreement informed as to the matters
contemplated by this Agreement and the Restructuring Transactions;
and
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(iv)
|
if
not permitted, to use commercially reasonable efforts to request the
permission of any third parties with whom it has a contractual obligation
of confidentiality to disclose any information required by this
Agreement;
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(i)
|
Neither
the Issuers nor the Guarantors shall be entitled to make any Restricted
Payment, provided that the Issuers alone shall be entitled
to: (i) make Restricted Payments between each other and to
National Post Company General Partnership; and (ii) make restricted
payments to any other Guarantor that is necessary to fund such Guarantor’s
operating expenses in accordance with the Funding Forecast or a 3 Month
Forecast.
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(j)
|
Neither
the Issuers nor the Guarantors shall amalgamate, consolidate with or merge
into or sell all or substantially all of their assets to another entity,
or change the nature of their business or their corporate or capital
structure.
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(k)
|
Neither
the Issuers nor the Guarantors shall prepay, redeem prior to maturity,
defease, repurchase or make other prepayments in respect of any
Indebtedness, (other than as required hereby or by the CIT Facility and
other than any repayment of the CIT Facility in connection with the
revolving nature thereof).
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(l)
|
Neither
the Issuers nor the Guarantors shall transfer, lease or otherwise dispose
of all or any part of its property, assets or undertaking over $500,000 at
any one time or aggregating over $2,000,000 during the term of the Notes
(excluding a Turkish Asset Sale), and all proceeds of any such disposition
shall be subject to application as described in Section
6.
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(m)
|
Neither
the Issuers nor the Guarantors shall create, incur or guarantee any
Indebtedness for borrowed money other than indebtedness and guarantees
existing on the Closing Date that have been disclosed in writing to the
Purchasers and Indebtedness under the Notes, this Agreement and the CIT
Facility.
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(n)
|
Neither
the Issuers nor the Guarantors shall make any new Investments or
acquisitions of any kind, direct or indirect, other than Investments in
Canwest Television Limited Partnership by
CMI.
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(o)
|
Neither
the Issuers nor the Guarantors shall create any Liens on the Collateral
other than Permitted Liens, and in any event, shall not create any new
Liens which are senior to, or pari passu with, the
Liens of the Collateral Agent under the Security (other than, (A) prior to
the creation of the DIP Charge, non-consensual liens by operation of law
that are
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permitted
under the terms of this Agreement and (B) upon creation of the DIP Charge,
the Administrative Charge).
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(p)
|
Neither
the Issuers nor the Guarantors shall materially increase compensation or
severance entitlements or other benefits payable to directors, officers or
employees (including by way of a “KERP”), or pay any bonuses whatsoever,
other than as required by law or pursuant to the terms of existing benefit
plans or employment contracts. Notwithstanding the foregoing, neither the
Issuers nor the Guarantors shall be entitled to make any severance or
other similar payments to directors or senior officers unless such
payments are specifically listed in the most recent 3 Month Forecast
approved by the Purchasers, or make any bonus or KERP payments to
directors or senior officers.
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(q)
|
Neither
the Issuers nor the Guarantors shall be entitled to pay any professional
or advisory fees unless such fees are specifically listed in the most
recent 3 Month Forecast approved by the Purchasers; provided, that the
Issuers and the Guarantors shall be entitled to make ordinary course
professional fee and legal fee payments that are not success-based or lump
sum payments without specifically listing such payments as separate
line-items in a 3 Month Forecast. Neither the Issuers nor the
Guarantors shall pay professional or advisory fees in connection with the
restructuring or recapitalization of Canwest Limited Partnership and its
subsidiaries and to the extent professional and advisory fees relate to
the restructuring or recapitalization of both the Issuers, on the one
hand, and Canwest Limited Partnership and its subsidiaries, on the other
hand, such fees shall be allocated between such groups on a fair and
reasonable basis.
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(r)
|
The
Issuers and the Guarantors shall operate their businesses in the ordinary
course of business, and, in any event, neither the Issuers nor the
Guarantors shall make a public announcement in respect of, enter into any
agreement or letter of intent with respect to, or attempt to consummate,
any transaction or agreement that could reasonably be expected to
materially adversely affect any of (i) the Issuers or the Guarantors or
(ii) the Purchasers.
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(s)
|
Neither
the Issuers nor the Guarantors shall enter into, extend, renew, waive or
otherwise modify in any material respect the terms of any transaction with
an Affiliate, other than the transactions disclosed on
Schedule hereto or the extension or renewal of existing operational
arrangements on substantially the same terms if such extensions or
renewals are in the best interests of the Issuers and the
Guarantors.
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(t)
|
Neither
the Issuers nor the Guarantors shall participate in any material
discussions with (A) the Canadian Radio-Television and Telecommunications
Commission with respect to the Restructuring Transactions, (B) any of the
stakeholders in CW Investments Co. and the CW Media group of companies
with respect to the Restructuring Transactions, or (C) any party (other
than legal and financial advisors to the Issuers and Guarantors) with
respect to the Restructuring Transactions, in each case without providing
reasonable notice to the Purchasers and an opportunity for a
representative from the ad hoc committee of holders of the 8.0% Notes (the
“Ad Hoc
Committee”) or its legal counsel or financial advisor to
participate in such discussions. The Issuers agree to cooperate and
facilitate discussions between the Ad Hoc Committee and stakeholders in CW
Investments Co. and the CW Media group of companies (including The Xxxxxxx
Xxxxx Group, Inc. and its affiliates) as soon as practicable when
requested by the Purchasers.
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(u)
|
Neither
the Issuers nor the Guarantors shall enter into any agreement with another
party relating to a restructuring transaction or the restructuring process
involving the 8% Notes or the Notes in which any fee or repayment of legal
fees shall be payable or exclusivity is granted without the consent of the
Purchasers, and in no event shall any such agreement be entered into to
the extent that full disclosure of such agreement cannot be made to the
Purchasers and the Ad Hoc
Committee.
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(v)
|
Neither
the Issuers nor the Guarantors shall (i) establish or fund any directors
or employees trusts or (ii) purchase or fund any additional directors’ and
officers’ insurance, in each case unless approved by the
Purchasers.
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(w)
|
Upon
the request of the Purchasers, the Issuers and the Guarantors shall
promptly engage a chief restructuring officer (a “Chief Restructuring
Officer”) acceptable to the Purchasers, the terms of the engagement
of which (including the authorities, responsibilities and remuneration of)
shall be acceptable to the Purchasers and the Ad Hoc
Committee.
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(x)
|
Upon
the making of a filing under the Companies’ Creditors
Arrangement Act (the “CCAA”) or comparable
legislation or another form of creditor relief or protection proceeding
(each, a “Filing”), the Issuers
and the Guarantors shall (subject to the consent of the Purchasers) cause
the Notes to be converted into a debtor-in-possession financing
arrangement (a “Conversion”), which
Conversion shall include without limitation the following steps, each of
which shall be in form and substance satisfactory to the
Purchasers:
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|
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(i)
|
a
court of competent jurisdiction shall have issued an initial order or
orders under the CCAA or other comparable legislation (the “Initial Order”), which
order(s) shall be approved by the Purchasers and shall include, without
limitation:
|
|
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(A)
|
provisions
approving this Agreement and all notes documentation delivered pursuant to
the terms hereof, together with such other documents as the Purchasers
deem necessary or appropriate;
|
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|
(B)
|
provisions
granting to the Purchasers and to CIT, as security for the Notes and the
CIT Facility, Liens on all present and future assets of the Issuer and the
Guarantors having the priority as set out in Section 5 above (the “DIP Charge”), with such
DIP Charge (together with the Existing Security) explicitly having
priority over all present and future Liens other than a Lien for
administrative expenses in scope and quantum acceptable to the Purchasers
(the “Administrative
Charge”), which Administrative Charge shall not cover the TEN
Collateral;
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(C)
|
provisions
confirming that the DIP Charge is in addition to and without prejudice to
the Existing Security and that all liabilities and obligations of the
Issuers and Guarantors under the Notes will be secured by the Existing
Security as well as by the DIP
Charge;
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|
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(D)
|
provisions
declaring that the granting of the DIP Charge and all other documents
executed and delivered to the Purchasers as contemplated herein,
including, without limitation, all actions taken to perfect, record and
register the DIP Charge, do not constitute conduct meriting
an
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oppression
remedy, settlements, fraudulent preferences, fraudulent conveyances or
other challengeable or reviewable transactions under any applicable
legislation;
|
|
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(E)
|
provisions
restricting the granting of any additional liens or liens on the assets of
the Issuers and the Guarantors, other than a charge (subordinated to the
DIP Charge) in respect of obligations owing or which may become owing by
the Issuers and or the Guarantors in respect of which their directors
and/or officers may be liable in an amount satisfactory to the Issuers and
the Purchasers;
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|
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(F)
|
provisions
appointing a monitor that is acceptable to the Purchasers (provided that
for the purposes hereof, FTI Consulting shall be
acceptable);
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|
|
(G)
|
provisions
ordering and declaring the Purchasers to be treated as unaffected
creditors in respect of the Notes and the obligations hereunder in any
CCAA or similar plan and providing that the stay of proceedings under the
Initial Order shall not apply to the Purchasers and their rights under
this Agreement or any other notes document (including without limitation
the Existing Security) delivered pursuant to the terms
hereof;
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|
|
(H)
|
provisions
providing on reasonable notice the Purchasers and their advisors clear and
unfettered access to the books and records of the Issuers and the
Guarantors and such other information as the Issuers and the Guarantors
deem necessary or appropriate; and
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(I)
|
such
other matters as the Purchasers may
require.
|
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|
(ii)
|
the
execution and delivery by the Issuers and Guarantors of any additional
legal documentation deemed necessary or appropriate by the
Purchasers.
|
|
|
(y)
|
Upon
the making of a Filing, and without regard to whether a Conversion has
occurred, the Issuers and the Guarantors shall: (i) ensure that
the Initial Order and all ancillary and subsequent court orders (“Other Restructuring
Orders”) issued in connection with a Filing at any time shall be in
form and substance satisfactory to the Purchasers; and (ii) comply with
all terms of the Initial Order and all Other Restructuring Orders at all
times.
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|
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(z)
|
Upon
obtaining a Financing Proposal which the Issuers propose to accept, the
Issuers and the Guarantors shall provide the Purchasers a right of first
refusal to provide such financing on the same terms as outlined in the
Financing Proposal.
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|
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(aa)
|
The
Issuers and the Guarantors shall comply with all covenants contained in
Article 5 and Article 6 of the CIT Credit Agreement as they exist on the
date hereof without regard to any amendment or waiver by CIT (it being
understood and agreed that any amendment or waiver of such covenants for
the purposes of this Agreement can only be provided by the Purchasers) as
if such covenants were set forth herein, mutatis mutandis, such
that, without limitation, (i) the “Borrower” as defined therein shall
refer to the Issuers, (ii) the “Lenders” as defined therein shall refer to
the Purchasers, (iii) “Credit Party” as defined therein shall refer to the
Issuers and the Guarantors collectively, (iv) “Agreement” shall refer to
this Agreement, (v) “Loan Documents” shall refer to this Agreement, the
Notes,
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the
Security and all other documents delivered pursuant to the terms thereof,
and (vi) “Obligations” shall mean the obligations under this Agreement,
the Notes, the Security and all other documents delivered pursuant to the
terms thereof.
|
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|
(bb)
|
Subject
to disclosure of such items in the applicable 3 Month Forecast,
notwithstanding anything to the contrary contained herein, the Issuers and
the Guarantors shall be entitled to make any of the following payments
which, collectively during the term of the Notes, shall not exceed
$2,000,000 in the aggregate: (i) Restricted Payments to
affiliates that are not an Issuer or a Guarantor; (ii) payments on account
of renewal or runoff of directors’ and officers’ insurance policies; and
(iii) payments of advisory fees and other similar fees to the professional
advisors to the Issuers and the
Guarantors.
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(cc)
|
Notwithstanding
anything to the contrary contained herein, to the extent the covenants
contained in Xxxxxxx 00(x), (x), (x), (x), (x), (x), (x) or (s) hereof
would prohibit or restrict a transaction between the “Issuer” and one or
more “Restricted Subsidiaries” or between one or more Restricted
Subsidiaries (each as defined in the Existing Indenture) in contravention
of Section 4.15 of the Existing Indenture, the covenant contained in
Xxxxxxx 00(x), (x), (x), (x), (x), (x), (x) or (s) as applicable shall be
read so as not to prohibit or restrict such transaction unless or until an
appropriate waiver or consent has been obtained from the holders of 8%
Notes under the terms of the Indenture. The Issuers and
Guarantors shall, at their expense, solicit such consents or waivers from
the holders of 8% Notes promptly upon the request of the
Purchasers.
|
|
12.
|
EVENTS
OF DEFAULT
|
|
12.1
|
Each
of the following shall constitute an event of default hereunder and under
the Notes and the Security (each, an “Event of
Default”):
|
|
|
(a)
|
the
failure by any Issuer or Guarantor to pay any principal amount outstanding
under the Notes when the same shall become due and payable
hereunder;
|
|
|
(b)
|
the
failure by any Issuer or Guarantor to pay within 2 Business Days any
interest on the Notes within or any fees or other amounts payable to the
Collateral Agent or the Purchasers after the same shall become due and
payable hereunder;
|
|
|
(c)
|
the
failure by any Issuer or Guarantor to pay the fees of any legal or
financial advisor to the Purchasers or the Ad Hoc Committee within 5
Business Days of the receipt of any invoice from any such
party;
|
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(d)
|
the
failure by any Issuer or Guarantor to comply with the covenants contained
in clauses (b), (d), (e), (f), (g), (i), (j), (k), (l), (m), (n), (o),
(p), (q), (s), (u), (x), or (y) under
Section 11;
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|
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(e)
|
the
failure by any Issuer or Guarantor to perform or comply with any term,
condition, covenant or obligation contained herein (including by reference
from the CIT Credit Agreement) or in the Notes, the Security or any other
document delivered pursuant to the terms thereof on their part to be
performed or complied with where any such failure to perform or comply is
not remedied within 5 Business Days of notice from the Purchasers to so
remedy;
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|
(f)
|
the
failure by any Issuer or Guarantor to perform or comply with any term,
condition, covenant or obligation contained in the Note Agreement or the
Definitive Note Agreement, or if any “Milestone” noted on Schedule
B is not achieved within the timeframe listed on Schedule
B;
|
|
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(g)
|
a
(i) default under any Indebtedness in an amount exceeding $5,000,000 or
(ii) a default under, or cancellation of, any Material Contact, in each
case of any Issuer or any Guarantor, but excluding any default under the
8% Notes or the Existing Indenture relating to non-payment of interest or
a Filing;
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|
|
(h)
|
a
default under any Indebtedness in an amount exceeding $5,000,000 of CW
Investments Co. or any of its
subsidiaries;
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|
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(i)
|
the
acceleration of Indebtedness in an amount exceeding $5,000,000 of (or a
Filing in respect to) Canwest Limited Partnership or any of its
subsidiaries; provided that such
event shall not be an Event of Default if a Conversion has
occurred;
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|
|
(j)
|
the
cessation (or threat of cessation) by any Issuer or Guarantor to carry on
business in the ordinary course, other than as contemplated by this
Agreement;
|
|
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(k)
|
the
denial or repudiation by any Issuer or Guarantor of the legality,
validity, binding nature or enforceability of this Agreement, the Notes,
the Security or any other document or certificate delivered pursuant to
the terms hereof;
|
|
|
(l)
|
the
cessation of any of the Security to constitute, in whole or in part, a
Lien on the Collateral in the priority contemplated by this
Agreement;
|
|
|
(m)
|
the
entry of one or more final judgements, writs of execution, garnishment or
attachment representing a claim in excess of $5,000,000 against any Issuer
or Guarantor or the Collateral that is not released, bonded, satisfied,
discharged, vacated, stayed or accepted for payment by an insurer within
30 days after their entry, commencement or
levy;
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|
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(n)
|
there
occurs a change in applicable law restricting the trading of the TEN
shares;
|
|
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(o)
|
the
commencement by any Issuer or Guarantor of any action, application,
petition, suit or other proceeding under any bankruptcy, arrangement,
reorganization, dissolution, liquidation, insolvency, winding-up or
similar law of any jurisdiction now or hereafter in effect, for the relief
from or otherwise affecting creditors of such entity, including without
limitation, under the Bankruptcy and Insolvency
Act (Canada) (the “BIA”) (including the
filing of a notice of intention to make a proposal), CCAA, Winding-up and Restructuring
Act (Canada), the Canada Business Corporations
Act or the United States Bankruptcy Code; provided that such
event shall not be an Event of Default if a Conversion has
occurred;
|
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(p)
|
the
appointment of any receiver, receiver-manager, interim receiver, monitor,
liquidator, assignee, custodian, trustee, sequestrator or other similar
entity in respect of any Issuer or Guarantor (or any of their
subsidiaries) or all or any part of their respective property, assets or
undertaking;
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|
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(q)
|
the
act of any Issuer or Guarantor (i) making a general assignment for the
benefit of its creditors, including without limitation, any assignment
made pursuant to the BIA, (ii)
|
- 17
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|
|
acknowledging
its insolvency or is declared or becomes bankrupt or insolvent, (iii)
failing to meet its liabilities generally as they become due, or (iv)
committing an act of bankruptcy under the BIA or any similar law of any
jurisdiction; provided, that such
event shall not be an Event of Default if a Conversion has
occurred;
|
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(r)
|
once
appointed, the resignation or replacement of the Chief Restructuring
Officer or the amendment of any duties of the Chief Restructuring Officer
(in each case to the extent not approved by the Purchasers), subject to
the ability to appoint a new Chief Restructuring Officer acceptable to the
Purchasers within 10 days of a
resignation;
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(s)
|
the
occurrence of a Change of Control;
|
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(t)
|
after
the entry of the Initial Order and a Conversion, (i) the entry of an order
granting any other claim superpriority status or a Lien equal to or prior
to the DIP Charge, other than the Administrative Charge to the extent
noted above, or (ii) the entry of an order staying, reversing, vacating or
otherwise modifying the DIP Charge or the documentation for the Notes
without the consent of the
Purchasers;
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|
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(u)
|
after
the entry of the Initial Order, the entry of an order dismissing the
bankruptcy cases, lifting the stay imposed by the Initial Order or the
making of any receiving order against any Issuer or Guarantor;
and
|
|
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(v)
|
an
“Event of Default” as defined in the CIT Credit Agreement, as such
agreement may be amended, restated, replaced or otherwise modified from
time to time.
|
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13.
|
REMEDIES
|
Following
the occurrence of an Event of Default, without limiting the remedies available
under the Existing Security or hereunder, the Purchasers may, subject to the
Intercreditor Terms:
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|
(a)
|
on
demand, accelerate all payments due by the Issuers under the Notes, and
set off amounts owing by the Purchasers to the Issuers against amounts
owing by the Issuers to the
Purchasers;
|
|
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(b)
|
apply
to a court (i) for the appointment of an interim receiver or a receiver
and manager of the undertaking, property and assets of any Issuer or
Guarantor, (ii) for the appointment of a trustee in bankruptcy of any
Issuer or Guarantor, or (iii) to seek other relief;
or
|
|
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(c)
|
without
limiting the foregoing, the Collateral Agent and the Purchasers shall have
the power and rights of a secured party under section 17 and Part V of the
Personal Property
Security Act (Ontario).
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14.
|
GUARANTEE
|
|
14.1
|
Each
of the Guarantors hereby agrees it is jointly and severally liable for,
and hereby irrevocably and unconditionally guarantees to the Purchasers
and their respective successors and assigns, the full and prompt payment
when due (whether at stated maturity, by acceleration or otherwise) and at
all times thereafter, and performance, of all of the obligations owed or
hereafter owing to the Purchasers by the Issuers hereunder and under the
Notes. Each of the Guarantors agree that its guarantee
obligation hereunder is a continuing guarantee of payment and performance
and not of
|
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|
|
collection,
that its obligations under this Guarantee shall not be discharged until
payment and performance, in full, of all of the obligations of the Issuers
under the Notes has occurred and this Agreement has been terminated, and
that its obligations hereunder shall be primary, absolute and
unconditional.
|
|
14.2
|
The
obligations of the Guarantors hereunder shall not be satisfied, reduced,
perfected or discharged by any intermediate payment, settlement or
satisfaction of the whole or any part of the principal, interest, fees or
other money or amounts which may at any time be or become owing or payable
under, by virtue of, or otherwise in connection with the obligations of
the Issuers under this Agreement or any of the documents executed in
connection herewith.
|
|
14.3
|
The
Guarantors shall be regarded, and shall be in the same position, as
principal debtor with respect to the obligations of the Issuers hereunder
and any amounts expressed to be payable from the Guarantors shall be
recoverable from the Guarantors as primary obligors and principal debtors
in respect thereof.
|
|
14.4
|
The
Guarantors hereby expressly and irrevocably subordinate to the payment of
the obligations of the Issuers hereunder, any and all rights at law or in
equity to reimbursement, exoneration, contribution, indemnification or
set-off and any and all defences available to a surety, guarantor or
accommodation co-obligor until all of the obligations of the Issuers
hereunder are indefeasibly paid in full in cash and this Agreement has
been terminated. The Guarantors further agree to waive any
rights of subrogation arising at law or in
equity.
|
|
14.5
|
The
obligations of the Guarantors hereunder shall not be affected or impaired
by any act, omission, matter or thing whatsoever, occurring before, upon
or after any demand for payment hereunder which, but for this provision,
might constitute a whole or partial defence to a claim against the
Guarantors hereunder or might operate to release or otherwise exonerate
the Guarantors from any of their obligations hereunder or otherwise affect
such obligations. The Guarantors hereby irrevocably waive any
defence they may now or hereafter have in any way relating to any of the
foregoing, including, without
limitation:
|
|
|
(a)
|
any
limitation of status or power, disability, incapacity or other
circumstance relating to any Issuer or any
Guarantor;
|
|
|
(b)
|
any
irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of any Issuer or any
Guarantor;
|
|
|
(c)
|
any
failure of any Issuer or any Guarantor to perform or to comply with any of
the provisions of this Agreement, the Notes or any documents executed in
connection herewith;
|
|
|
(d)
|
the
taking or enforcing or exercising or the refusal or neglect to take or
enforce or exercise any right or remedy from or against any Issuer, any
Guarantor or their respective assets or the release or discharge of any
such right or remedy by the Collateral Agent or the
Purchasers;
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|
|
(e)
|
the
granting of time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to any Issuer or any
Guarantor;
|
|
|
(f)
|
any
amendment, restatement, variation, modification, supplement or replacement
of this Agreement, the Notes or any documents executed in connection
herewith;
|
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|
|
(g)
|
any
change in the ownership, control, name, objects, businesses, assets,
capital structure or constitution of any Issuer or any Guarantor or any
merger or amalgamation of any Issuer or any Guarantor with any person or
persons;
|
|
|
(h)
|
the
existence of any claim, set-off or other rights that any Guarantor may
have at any time against any Issuer, the Collateral Agent and the
Purchasers, whether in connection with the Agreement, the Notes or
otherwise; and
|
|
|
(i)
|
any
other circumstance that might otherwise constitute a legal or equitable
discharge or defence of any
Guarantor.
|
|
14.6
|
The
Purchasers, without releasing, discharging, limiting or otherwise
affecting in whole or in part the Guarantors’ obligations and liabilities
hereunder and without the consent of or notice to the Guarantors
may:
|
|
|
(a)
|
grant
time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and any other indulgences to any Issuer or any
Guarantor;
|
|
|
(b)
|
amend,
vary, modify, supplement or replace this Agreement, the Notes or any
document issued in connection therewith or any other related document to
which the Guarantors are not a
party;
|
|
|
(c)
|
take
or abstain from taking security or collateral from any Issuer or any
Guarantor or from perfecting security or collateral of any such
person;
|
|
|
(d)
|
release,
discharge, compromise, realize, enforce or otherwise deal with or do any
act or things in respect of any security given by any Issuer or any
Guarantor with respect to any of the obligations of any Issuer or any
Guarantor contemplated by this
Agreement;
|
|
|
(e)
|
accept
compromises or arrangements from any Issuer or any
Guarantor;
|
|
|
(f)
|
apply
all money at any time received from any Issuer or any Guarantor or from
any collateral to any part of the obligations outstanding under this
Agreement or the Notes as they may see fit;
and
|
|
|
(g)
|
otherwise
deal with, or waive or modify their right to deal with, any Issuer, any
Guarantor and all other persons and securities as they may see
fit.
|
|
14.7
|
The
guarantee and any other undertaking provided by CANWEST GLOBAL
BROADCASTING INC./RADIODIFFUSION CANWEST GLOBAL INC. (“CGBI” ) hereunder and
under the Quebec Security in respect of the obligations of CANWEST
TELEVISION LIMITED PARTNERSHIP and CMI may be subject in
whole or in part to the restrictions on financial assistance contained in
Section 123.66 of the Companies
Act (Quebec). To the extent such restrictions apply, and
notwithstanding anything to the contrary herein, the aggregate liability
of CGBI hereunder and under any Quebec Security signed by it in respect of
such obligations shall be limited to the amount, if any, by which (x) the
higher of (A) the realization value and (B) the book value of the assets
of CGBI exceeds (y) the sum of the liabilities and the issued and paid-up
share capital account of CGBI. Such amount shall be determined as at the
date hereof and again on any date on which a demand for payment is made in
writing to CGBI in accordance with
the
|
- 20
-
|
|
provisions
hereof and CGBI’s aggregate liability for the purposes hereof shall be
limited to the greater of such
amounts.
|
The
guarantee and any other undertaking provided by CANWEST FINANCE INC./FINANCIÈRE
CANWEST INC. (“CFI”)
hereunder and under the Quebec Security in respect of the obligations of CMI may
be subject in whole or in part to the restrictions on financial
assistance contained in Section 123.66 of the Companies
Act (Quebec). To the extent such restrictions apply, and notwithstanding
anything to the contrary herein, the aggregate liability of CFI hereunder and
under any Quebec Security signed by it in respect of such obligations shall be
limited to the amount, if any, by which (x) the higher of (A) the realization
value and (B) the book value of the assets of CFI exceeds (y) the sum of the
liabilities and the issued and paid-up share capital account of CFI. Such amount
shall be determined as at the date hereof and again on any date on which a
demand for payment is made in writing to CFI in accordance with the provisions
hereof and CFI’s aggregate liability for the purposes hereof shall be limited to
the greater of such amounts.
|
15.
|
PURCHASER
REPRESENTATIONS AND WARRANTIES
|
|
15.1
|
Each
Purchaser (if it is a resident in Canada) is an “accredited investor”
within the meaning of National Instrument 45-106 Prospectus and
Registration Exemptions and Regulation 45-106 Respecting Prospectus and
Registration Exemptions (collectively, “45-106”), is, or is deemed to be,
purchasing the Notes as principal and was not created or used solely to
purchase or hold securities as an accredited investor as defined in
paragraph (m) of the definition of accredited investor in Section 1.1 of
45-106.
|
|
15.2
|
By
accepting this Note, the holder acknowledges that it is: (a) a
“qualified institutional buyer” (as defined in Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”)), (b)
an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) or (c) a non-U.S.
person for purposes of Regulation S under the Securities
Act. Any assignee or transferee of this Note in whole or in
party will be required to make a written certification to the Issuers to
the effect of the foregoing prior to the transfer or assignment of the
Note, or issuance of a new Note, to such assignee or
transferee.
|
|
16.
|
EXPENSES
|
All
reasonable out-of-pocket expenses and costs, including, without limitation, all
reasonable travel expenses and reasonable legal and advisory fees, incurred by
each of the Purchasers and their respective advisors or by the Ad Hoc Committee
and its respective advisors in connection with any matter arising hereunder or
any documents issued in connection with this Agreement or otherwise in
connection with the purchase of the Notes or the Restructuring Transactions
shall be for the sole account of the Issuers and shall be paid within five (5)
Business Days of being invoiced.
|
17.
|
TAXES
|
All
payments by the Issuers and/or the Guarantors to any Purchaser, including
without limitation any payments required to be made from and after the exercise
of any remedies available to the Purchasers
- 21
-
upon an
Event of Default, shall be made free and clear of, and without reduction for or
on account of, any present or future taxes, levies, imposts, duties, charges,
fees, deductions or withholdings of any kind or nature whatsoever or any
interest or penalties payable with respect thereto now or in the future imposed,
levied, collected, withheld or assessed by any country or any political
subdivision of any country, but excluding any reduction for any amount required
to be paid by the Issuer under subsection 224(1.2) of the Income Tax Act (Canada) or a
similar provision of that or any other taxation statute (collectively “Taxes”); provided, however, that if
any Taxes are required by applicable law to be withheld (“Withholding Taxes”) from any
interest or other amount payable to any Purchaser hereunder or under any other
document delivered pursuant to the terms hereof, the amount so payable to such
Purchaser shall be increased to the extent necessary to yield to the relevant
party on a net basis after payment of all Withholding Taxes, the amount payable
under such documentation at the rate or in the amount specified in such
documentation and the Issuers shall provide evidence satisfactory to the
Purchasers that the Taxes have been so withheld and remitted.
|
18.
|
NOTES
|
|
18.1
|
Transfer and Exchange of
Notes
|
Upon any
assignment by any Purchaser of its rights and obligations in accordance with the
terms of this Agreement to any other Person, and upon surrender of any Note
issued in the name of the assigning Purchaser in connection therewith to the
Issuers, the Issuers shall execute and deliver, at the Issuers’ expense, one or
more new Notes, (as requested by the assigning Purchaser) in exchange therefor,
in an aggregate principal amount equal to the unpaid principal amount (and
accrued and unpaid interest owing in respect thereof) of the surrendered Note
(evidencing the same and continuing obligation of the Note(s) so
surrendered). Each such new Note shall be substantially in the form
of Exhibit A
and shall be dated and bear interest from the date to which interest shall have
been paid on the surrendered Note.
|
18.2
|
Replacement of
Notes
|
Upon
receipt by the Issuers of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction, or mutilation of any Note,
and
|
|
(a)
|
in
the case of loss, theft or destruction, of indemnity reasonably
satisfactory to the Issuers, or
|
|
|
(b)
|
in
the case of mutilation, upon surrender and cancellation
thereof,
|
the
Issuers at its own expense, within five (5) Business Days thereafter, shall
execute and deliver in lieu thereof, a new Note (representing the same,
continuing obligation as the lost, stolen, destroyed or mutilated Note), dated
and bearing interest from the date to which interest shall have been paid on
such lost, stolen, destroyed or mutilated Note.
|
18.3
|
Notes Held by Issuers,
etc.
|
Solely
for the purpose of determining whether the holders of the requisite percentage
of the aggregate principal amount of Notes then outstanding approved or
consented to any amendment, waiver or consent to be given under this Agreement
or under any documents related thereto, or have directed the taking of any
action provided herein or in any of the documents related thereto to be taken
upon the direction of the holders of a specified percentage of the aggregate
principal amount of Notes then outstanding, Notes directly or indirectly owned
by the Issuers or any of its Affiliates shall be deemed not to be
outstanding.
- 22
-
19. MISCELLANEOUS
|
19.1
|
Further
Assurances
|
The
Issuers and Guarantors shall at their expense, from time to time do, execute and
deliver, all such further acts, documents (including, without limitation,
certificates, declarations, affidavits, reports and opinions) and things as the
Purchasers may request for the purpose of giving effect to this Agreement,
perfecting, protecting and maintaining the liens created by the Security
establishing compliance with the representations, warranties and conditions of
this Agreement or any other document delivered in connection
herewith.
|
19.2
|
Unrestricted
Purchasers
|
The
Issuers and the Purchasers agree that any item required to be delivered to a
Purchaser hereunder shall be satisfied by delivery to such Purchaser’s legal
advisor, Goodmans LLP, or such Purchaser’s financial advisor, Xxxxxxxx Xxxxx, in
the event such Purchaser is unrestricted and unable to receive confidential
information from the Issuer and the Guarantors.
|
19.3
|
Debtor in Possession
Financing
|
In the
event that any Issuer or Guarantor becomes subject to a Filing, the Notes shall,
subject to the consent of the Purchasers, be converted into a debtor in
possession financing as described more fully above, and the Collateral Agent and
the Purchasers shall retain all of their rights with respect to security and
enforcement (as provided for herein). Upon such a Filing and
Conversion, the Notes shall also be subject to the DIP Charge.
|
19.4
|
Disclosure
|
Subject
to Section 18.4, no press release or other public disclosure concerning the
transactions contemplated herein shall be made by any Issuer or Guarantor
without the prior consent of the Purchasers (such consent not to be unreasonably
withheld); provided,
however, that the Issuers and Guarantors shall, after providing the Purchasers
with copies of all related documents and an opportunity to consult with the
Purchasers as to the contents, make prompt disclosure of the material terms of
this Agreement and make such disclosure as may be required by applicable law or
by any stock exchange rules on which its securities or those of any of its
affiliates are traded, by any other regulatory authority having jurisdiction
over the Issuers and Guarantors, or by any court of competent
jurisdiction. Notwithstanding the foregoing, no information with
respect to the identity of any Purchaser shall be disclosed by the Issuer or any
Guarantor except as may be required by applicable law or by any stock exchange
rules on which its securities or those of any of its affiliates are traded, by
any other regulatory authority having jurisdiction over the Issuers or
Guarantors, or by any court of competent jurisdiction.
|
19.5
|
Conflict
|
To the
extent that there is any inconsistency between this Agreement and any of the
other documentation relating hereto, including without limitation the CIT Credit
Agreement, this Agreement shall govern.
|
19.6
|
Amendments and
Waivers
|
This
Agreement shall only be amended or waived with the consent of the Purchasers,
and, to the extent affected thereby, the Issuers and the
Guarantors.
- 23
-
19.7 Assignments
Each
Purchaser may assign and/or grant participations in its Commitment and any
portion or all of its Notes without the consent of any other
party. No Issuer or Guarantor may assign its rights hereunder without
the consent of the Purchasers.
|
19.8
|
Governing
Law
|
|
|
(a)
|
This
Agreement, the Notes and each of the documents contemplated herein shall
be governed by the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
|
|
|
(b)
|
The
Issuers hereby consents and agrees that the courts of the Province of
Ontario shall have non-exclusive jurisdiction to hear and determine any
claims or disputes between the Issuers, the Collateral Agent and the
Purchasers pertaining to this Agreement or any of the other documents
related thereto or to any matter arising out of or relating to this
Agreement or any of the other documents related
thereto. Nothing in this Agreement shall be deemed or operate
to preclude the Collateral Agent or the Purchasers from bringing suit or
taking other legal action in any other jurisdiction to realize on the
Collateral or any other security for the obligations, or to enforce a
judgment or other court order. The Issuers expressly submit and
consent in advance to such jurisdiction in any action or suit commenced in
any such court, and the Issuers hereby waive any objection that the
Issuers may have based upon lack of personal jurisdiction, improper venue
or forum non
conveniens and hereby consents to the granting of such legal or
equitable relief as is deemed appropriate by such court. The
Issuers hereby waive personal service of the summons, complaint and other
process issued in any such action or suit and agree that service of such
summons, complaints and other process may be made by registered mail
(return receipt requested) addressed to Issuers at the address set forth
in Section 19.18 of this Agreement and that
service so made shall be deemed completed upon the earlier of Issuers’
actual receipt thereof or three (3) Business Days after deposit with
Canada post, proper postage paid.
|
|
19.9
|
Currency
|
All
dollar amounts referred to in this Agreement are in Canadian Dollars unless
otherwise indicated.
|
19.10
|
Exclusivity
|
Upon
entering into this Agreement, the Issuers agree that they will not, and will not
permit any Guarantor to, (i) engage in discussions with any party concerning any
debt facility or similar financing or any renewal or refinancing of existing
indebtedness, or (ii) enter into bilateral arrangements with any party to
provide any debt facility of any kind or similar financing arrangement, in each
case for any purpose contemplated by this Agreement or any other similar
purpose, in each case excluding the CIT Facility contemplated hereby, unless the
consent of the Purchasers has been obtained.
|
19.11
|
Confidentiality
|
This
Agreement is being executed on a highly confidential basis on the understanding
that this Agreement, any related documents, the existence and contents thereof
and the existence and contents of any discussions related thereto (“Confidential Information”)
shall not be disclosed by any Issuer or any Guarantor to any third party or made
public without the prior written consent of the Purchasers, except
for
- 24
-
disclosure
to the Issuers’ and Guarantors’ legal and financial advisors, directors,
officers and employees who are bound by the terms of confidentiality
arrangements to keep all such Confidential Information confidential (with the
Company bearing all risk of such disclosure). For the sake of
clarity, and without limitation, the Issuers and Guarantors and their legal and
financial advisors, directors, officers and employees shall not under any
circumstances be entitled to disclose any Confidential Information to other
potential financing sources for the purposes of generating competing offers or
otherwise.
|
19.12
|
Counterparts and Facsimile;
Signatures
|
This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Signatures provided by facsimile machine
shall be valid and binding.
|
19.13
|
Indemnity
|
The
Issuers shall indemnify and hold harmless each of the Collateral Agent, the
Purchasers and their respective Affiliates, and each such Person’s respective
officers, directors, shareholders, employees, legal counsel, agents and
representatives (each, an “Indemnified Person”), from and
against any and all suits, actions, proceedings, orders, claims, damages,
losses, liabilities and expenses (including reasonable legal fees and
disbursements and other costs of investigation or defense, including those
incurred upon any appeal) that may be instituted or asserted against or incurred
by any such Indemnified Person as a result of or in connection with (i) the
breach by the Issuers of its obligations in connection with or arising out of
the transactions contemplated under this Agreement and the other documents
related thereto and any actions or failures to act in connection therewith
including the taking of any enforcement actions by the Collateral
Agent, and (ii) all legal costs and expenses arising out of or
incurred in connection with disputes between or among the Purchasers, the
Issuers and/or any other party or parties to any of the documents related
thereto (excluding any such legal costs and expenses incurred by any Purchaser
or the Collateral Agent in connection with disputes solely between such
Purchasers, or as between a Purchaser or Purchasers and the Collateral Agent
(except to the extent that the Issuers are required to reimburse the Collateral
Agent for such costs and expenses under the Collateral Agency Agreement))
(collectively, “Indemnified
Liabilities”); provided that the Issuers shall not be liable for any
indemnification to an Indemnified Person to the extent that any such suit,
action, proceeding, claim, damage, loss, liability or expense results from that
Indemnified Person’s gross negligence or wilful misconduct. No
Indemnified Person shall be responsible or liable to any other party to any
document related thereto, any successor, assignee or third party beneficiary of
such Person or any other Person asserting claims derivatively through such
party, for indirect, punitive, exemplary or consequential damages which may be
alleged as a result of the purchase of the Notes or as a result of any other
transaction contemplated hereunder or under any of the documents related
thereto.
|
19.14
|
No
Waiver
|
Collateral
Agent’s or any Purchaser’s failure, at any time or times, to require strict
performance by the Issuers of any provision of this Agreement or any other
document related thereto shall not waive, affect or diminish any right of the
Collateral Agent or such Purchaser thereafter to demand strict compliance and
performance herewith or therewith. Any suspension or waiver of an
Event of Default shall not suspend, waive or affect any other Event of Default
whether the same is prior or subsequent thereto and whether the same or of a
different type. Except as otherwise provided for herein, none of the
undertakings, agreements, warranties, covenants and representations of the
Issuers contained in this Agreement or any of the other documents related
thereto and no Default or Event of Default by the Issuers shall be deemed to
have been suspended or waived by the Collateral Agent or any Purchaser, as
applicable, unless such
- 25
-
waiver or
suspension is by an instrument in writing from the Collateral Agent and/or the
applicable required Purchasers and directed to the Issuers specifying such
suspension or waiver.
|
19.15
|
Remedies
|
The
Purchasers’ rights and remedies under this Agreement shall be cumulative and
nonexclusive of any other rights and remedies that the Collateral Agent or any
Purchaser may have under any other agreement, including the other documents
related thereto, by operation of law or otherwise. Recourse to the
collateral shall not be required.
|
19.16
|
Severability
|
Wherever
possible, each provision of this Agreement and the other documents related
thereto shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement or any other document
related thereto shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement or such other document related
thereto.
|
19.17
|
Conflict of
Terms
|
To the
extent that there is any inconsistency between this Agreement and any of the
other documentation relating hereto or the terms of the CIT Credit Agreement
that are incorporated by reference, this Agreement shall govern.
|
19.18
|
Notices
|
Except as
otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by any other parties, or
whenever any of the parties desires to give or serve upon any other parties any
communication with respect to this Agreement, each such notice, demand, request,
consent, approval, declaration or other communication shall be in writing and
shall be deemed to have been validly served, given or delivered (a) upon the
earlier of actual receipt and three (3) Business Days after deposit with Canada
Post, registered mail, return receipt requested, with proper postage prepaid,
(b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or with Canada Post as otherwise provided in this
Section 19.18), (c) upon receipt, when sent by electronic mail (with such
electronic mail promptly confirmed by delivery of a copy by personal delivery or
Canada Post as otherwise provided in this Section 19.18) and such notice,
demand, request, consent, approval, declaration or other communication shall be
in “pdf” format and shall include the actual signature of the party sending such
communication if that signature would be required or customary if the
communication was delivered by telecopier, (d) one (1) Business Day after
deposit with a reputable courier for overnight delivery with all charges
prepaid, or (e) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address or
facsimile number indicated Schedule D hereto or
to such other address (or facsimile number) as may be substituted by notice
given as herein provided. The giving of any notice required hereunder
may be waived in writing by the party entitled to receive such
notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to any Person
(other than the Issuers or Agent) designated Schedule D to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other
communication.
- 26
-
19.19 Section Titles
The
Section titles and Table of Contents contained in this Agreement are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.
|
19.20
|
Reinstatement
|
This
Agreement shall remain in full force and effect and continue to be effective
should any petition or other proceeding be filed by or against the Issuers for
liquidation or reorganization, should the Issuers become insolvent or make an
assignment for the benefit of any creditor or creditors or should an interim
receiver, receiver, receiver and manager or trustee be appointed for all or any
significant part of the Issuers’ assets, and shall continue to be effective or
to be reinstated, as the case may be, if at any time payment and performance of
the obligations under the Notes, or any part thereof, is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee of the Notes, whether as a fraudulent preference reviewable
transaction or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the obligations under the notes shall
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
|
19.21
|
No Strict
Construction
|
The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise
favouring or disfavouring any party by virtue of the authorship of any
provisions of this Agreement.
|
19.22
|
Permitted
Liens
|
The
designation of any Lien as a permitted lien is not, and shall not be deemed to
be, an acknowledgment by the Collateral Agent or any of the Purchasers that the
Lien shall have priority over the security interests granted to the Collateral
Agent (for the benefit of itself and the Purchasers) in the Collateral pursuant
to the Security documents.
|
19.23
|
Existing
Indenture
|
The
parties hereto acknowledge and agree that for the purposes of the Indenture,
dated as of November 18, 2004, among CMI, as issuer, the guarantors party
thereto and The Bank of New York, as Trustee (the “Existing Indenture”), the
Notes and the Indebtedness under this Agreement are intended to be a refinancing
and replacement by a group of lenders of a portion of the CMI Credit Facility
(as defined in the Existing Indenture) and will provide a portion of the
liquidity for the company’s operations as previously provided by the CMI Credit
Facility.
|
19.24
|
Principles of
Construction
|
|
|
(a)
|
Unless
otherwise specified, references in this Agreement or any of the Exhibits,
Annexes, Schedules or Appendices to a Section, subsection or clause refer
to such Section, subsection or clause as contained in this
Agreement. The words “herein,” “hereof” and “hereunder” and
other words of similar import refer to this Agreement as a whole,
including all Annexes, Exhibits and Schedules, as the same may from time
to time be amended, restated, modified or supplemented, and not to any
particular section,
|
- 27
-
|
|
subsection
or clause contained in this Agreement or any such Annex, Exhibit or
Schedule.
|
|
|
(b)
|
Wherever
from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. The words “including”,
“includes” and “include” shall be deemed to be followed by the words
“without limitation”; the word “or” is not exclusive; references to
Persons include their respective successors and assigns (to the extent and
only to the extent permitted by the agreement) or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
Persons; and all references to statutes and related regulations shall
include any amendments of the same and any successor statutes and
regulations. Whenever any provision in any agreement refers to
the knowledge (or an analogous phrase) of the Issuers, such words are
intended to signify that the Issuers has actual knowledge or awareness of
a particular fact or circumstance or that the Issuers, if it had exercised
reasonable diligence, would have known or been aware of such fact or
circumstance.
|
|
|
(c)
|
All
Annexes, Schedules, Exhibits and other attachments (collectively, “Appendices”) hereto, or
expressly identified to this Agreement, are incorporated herein by
reference, and taken together with this Agreement, shall constitute one
single agreement.
|
[Remainder
of this page is intentionally left blank.]
- 28
-
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
[CANWEST
has removed all signature blocks for confidentiality reasons]
SCHEDULE A – PURCHASERS’
COMMITMENTS
[CANWEST
has redacted all Purchasers’ Commitments for confidentiality
reasons]
SCHEDULE B – MILESTONE
CONDITIONS
On or before June 15, 2009,
the Issuers and the Guarantors shall have:
|
(a)
|
reached
an agreement in principle (the “Note Agreement”) as set
forth in an agreement, duly executed and delivered with members of the Ad
Hoc Committee of holders of 8.0% senior unsecured subordinated notes due
2012 (the “8%
Notes”) pursuant to which such members of the Ad Hoc Committee
agree to Restructuring Transactions that will address the treatment of the
8% Notes and other related matters;
and
|
|
(b)
|
initiated
discussions with the Canadian Radio-Television and Telecommunications
Commission with respect to the regulatory approvals necessary in
connection with the Restructuring
Transactions.
|
On or before July 15, 2009,
the Issuers and the Guarantors shall have:
|
(a)
|
completed
all steps required by the Note
Agreement;
|
|
(b)
|
executed
and delivered a definitive agreement (the “Definitive Note
Agreement”) with the members of the Ad Hoc Committee in respect of
the Note Agreement; and
|
|
(c)
|
executed
and delivered any other definitive agreement required by the Purchasers in
connection with the Restructuring
Transactions.
|
On or before the deadlines set forth
in the Definitive Note Agreement, all conditions precedent set forth in
the Definitive Note Agreement shall have been satisfied or waived by the
Purchasers and the Ad Hoc Committee.
For the
purposes of this Agreement, “Restructuring Transactions”
shall mean restructuring transactions involving the Issuers and the Guarantors
that are in form and substance satisfactory to the Purchasers in their sole
discretion.
SCHEDULE C – PERMITTED AFFILIATE
TRANSACTIONS
|
1.
|
Execution
of unanimous shareholder declarations
between:
|
|
|
·
|
Canwest
Global Communications Corp. and
CMI;
|
|
|
·
|
CMI
and National Post Holdings Ltd.;
|
|
|
·
|
CMI
and each of 4501063 Canada Inc. (“Broadcast Holdco”) and 4501071
Canada Inc. (“Publishing Holdco”), both of which
became Guarantors and Restricted Subsidiaries on April 2, 2009, created to
hold the shares of the general partner of Canwest Television Limited
Partnership (“Canwest Television GP”) and Canwest Limited
Partnership (“Canwest Publishing GP”);
|
|
|
·
|
Broadcast
Holdco and Canwest Television GP;
|
|
|
·
|
Publishing
Holdco and Canwest Publishing GP;
and
|
|
|
·
|
Canwest
Publishing GP and Canwest Publishing
Inc.
|
|
2.
|
Continuance
of CMI, National Post Holdings Ltd. and Canwest Television GP Inc. from
The Corporations
Act (Manitoba) to the Canada Business Corporations
Act.
|
SCHEDULE D –
NOTICES
[CANWEST
has redacted all notice information for confidentiality reasons]
SCHEDULE E – LIST OF
GUARANTORS
30109,
LLC
3919056
Canada Ltd.
4501063
Canada Inc.
4501071
Canada Inc.
BCTV
Holdings Inc.
Canwest
Finance Inc./Financière Canwest Inc.
Canwest
Global Broadcasting Inc./Radioiffusion Canwest Global Inc.
Canwest
Global Communications Corp.
Canwest
International Communications Inc.
Canwest
International Distribution Limited
Canwest
International Management Inc.
Canwest
Ireland Nominee Limited
Canwest
Irish Holdings (Barbados) Inc.
Canwest
Mediaworks Ireland Holdings
Canwest
Media Inc., as the general partner on behalf of The National Post Company/La
Publication National Post
Canwest
Mediaworks (US) Holdings Corp.
Canwest
Mediaworks Turkish Holdings (Netherlands) B.V.
Canwest
Television GP Inc.
Canwest
Television Limited Partnership, by its general partner, Canwest Television GP
Inc.
Canwest
Television Limited Partnership, as the general partner on behalf of Fox Sports
World Canada, by its general partner, Canwest Television GP Inc.
CGS
Debenture Holding (Netherlands) B.V.
CGS
International Holdings (Netherlands) B.V.
CGS NZ
Radio Shareholding (Netherlands) B.V.
CGS
Shareholding (Netherlands) B.V.
CHBC
Holdings Inc.
CHEK
Holdings Inc.
Fox
Sports World Canada
Fox
Sports World Canada Holdco Inc.
Fox
Sports World Canada Holdco Inc. as general partner on behalf of Fox Sports World
Canada
Global
Centre Inc.
MBS
Productions Inc.
Multisound
Publishers Ltd.
National
Post Holdings Ltd.
National
Post Holdings Ltd., as the general partner on behalf of The National Post
Company/La Publication National Post
ONTV
Holdings Inc.
The
National Post Company/ La Publication National Post
Western
Communications Inc.
Yellow
Card Productions Inc.
SCHEDULE F – DEFINITIONS
|
Defined
Term
|
Section
Number
|
|
3
Month Forecast
|
11(d)(ii)
|
|
8%
Notes
|
Schedule
B
|
|
45-106
|
15.1
|
|
Ad
Hoc Committee
|
11(t)
|
|
Administrative
Charge
|
11(x)(i)(B)
|
|
Appendices
|
19.24(c)
|
|
BIA
|
12.1(o)
|
|
Broadcast
Holdco
|
Schedule
C
|
|
Business
Day
|
8.1
|
|
Canwest
Publishing GP
|
Schedule
C
|
|
Canwest
Television GP
|
Schedule
C
|
|
CCAA
|
11(x)
|
|
Chief
Restructuring Officer
|
11(w)
|
|
CIT
|
5.1
|
|
CIT
Credit Agreement
|
10(l)
|
|
CIT
Facility
|
5.1
|
|
Closing
Date
|
2.2
|
|
CMI
|
Parties
|
|
Collateral
|
5.1
|
|
Collateral
Agent
|
5.1
|
|
Commitment
|
3.1
|
|
Confidential
Information
|
19.11
|
|
Confidentiality
Agreement
|
11(h)(i)
|
|
Conversion
|
11(x)
|
|
Default
|
11(d)(x)
|
|
Definitive
Note Agreement
|
Schedule
B
|
|
DIP
Charge
|
11(x)(i)(B)
|
|
Distribution
|
11(i)
|
|
Equitable
Mortgage
|
10(d)
|
|
Event
of Default
|
12.1
|
|
Existing
Credit Agreement
|
3.4(a)
|
|
Existing
Facility
|
3.4(a)
|
|
Existing
Indenture
|
19.23
|
|
Existing
Security
|
5.1
|
|
Filing
|
11(x)
|
| Defined Term | Section Number |
|
Financing
Proposal
|
11(d)(ix)
|
|
Funding
Forecast
|
9(k)
|
|
Guarantors
|
Parties
|
|
Indemnified
Liabilities
|
19.13
|
|
Indemnified
Person
|
19.13
|
|
Initial
Order
|
11(x)(i)
|
|
Intercreditor
Terms
|
9(j)
|
|
Irish
Holdings
|
11(f)
|
|
Issuer(s)
|
Parties
|
|
Lien
|
5.3
|
|
Maturity
Date
|
6.1
|
|
Milestone
Conditions
|
11(g)
|
|
Non-Guarantor
|
6.2(b)
|
|
Note
Agreement
|
Schedule
B
|
|
Notes
|
2.1
|
|
Other
Restructuring Orders
|
11(y)
|
|
Participant
Agreement
|
10(d)
|
|
Permitted
Liens
|
9(d)
|
|
Publishing
Holdco
|
Schedule
C
|
|
Purchase
Price
|
2.1
|
|
Purchaser(s)
|
Parties
|
|
Quebec
Security
|
9(c)
|
|
Required
Purchasers
|
4.1
|
|
Restructuring
Transactions
|
Schedule
B
|
|
Security
|
9(b)
|
|
Taxes
|
17
|
|
TEN
|
5.2(a)
|
|
TEN
Collateral
|
5.2(a)
|
|
TEN
shares
|
5.2(a)
|
|
Turkish
Asset Sale
|
6.4
|
|
Turkish
Assets
|
6.3
|
|
Withholding
Taxes
|
17
|
In
addition, the following terms used in this Agreement shall have the following
meanings:
“Affiliate” means (a) any
Person which, directly or indirectly, Controls, is Controlled by or is under
common Control with any other Person; (b) any Person which beneficially
owns or holds, directly or
indirectly,
10% or more of any class of voting stock or equity interest (including
partnership interests) of any other Person; (c) any Person, 10% or more of
any class of the voting stock (or if such Person is not a corporation, 10% or
more of the equity interest, including partnership interests) of which is
beneficially owned or held, directly or indirectly, by any other Person; or
(d) any Person related within the meaning of the ITA to any such Person and
includes any “Affiliate” within the meaning specified in the Canada Business Corporations
Act on the date hereof. .
“Capital Lease” means any lease
of property that, in accordance with GAAP, is required to be capitalized on the
consolidated balance sheet of the Issuers or Guarantors.
“Capital Lease Obligations” of
any Person means the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as Capital Leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
“Change in Control” means
(a) the acquisition of ownership, directly or indirectly, beneficially or
of record, by any Person or group of Persons acting jointly or otherwise in
concert, other than the Permitted Holders, of Equity Securities representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding Equity Securities of the CMI; (b) the occupation of a
majority of the seats (other than vacant seats) on the board of directors of CMI
by Persons who were neither (i) nominated by the board of directors of CMI
nor (ii) appointed by directors so nominated; (c) the acquisition of
direct or indirect Control of the CMI by any Person or group of Persons acting
jointly or otherwise in concert, other than the Permitted Holders; or (d) the
failure of CMI to own 100% of the Equity Securities of Canwest Television
Limited Partnership.
“Control” (including the terms
“controlled by” and “under common control with”), means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of the Person in question
“Equity Securities” means, with
respect to any Person, any and all shares, interests, participations, rights in,
or other equivalents (however designated and whether voting and non-voting) of,
such Person’s capital, whether outstanding on the date hereof or issued after
the date hereof, including any interest in a partnership, limited partnership or
other similar Person and any beneficial interest in a trust, and any
and all rights, warrants, debt securities, options or other rights exchangeable
for or convertible into any of the foregoing.
“Governmental Authority” means
the Government of Canada, any other nation or any political subdivision thereof,
whether provincial, state, territorial or local, and any agency, authority,
instrumentality, regulatory body, court, central bank, fiscal or monetary
authority or other authority regulating financial institutions, and any other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to any such government,
including the Bank Committee on Banking Regulation and Supervisory Practices of
the Bank of International Settlements.
“Guarantee” of or by any Person
(in this definition, the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (in this definition, the “primary credit party”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for
the
payment
thereof (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital solvency, or any other balance sheet, income statement or other
financial statement condition or liquidity of the primary credit party so as to
enable the primary credit party to pay such Indebtedness or other obligation,
(d) as an account party in respect of any letter of credit or letter of
guarantee issued to support such Indebtedness or other obligation, or
(e) to purchase, sell or lease (as lessor or lessee) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such Indebtedness
against loss.
“Indebtedness” of any Person
means, without duplication, (a) all obligations of such Person for borrowed
money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges
are customarily paid, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable
incurred in the ordinary course of business), (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others,
(h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guarantee, (j) all obligations, contingent
or otherwise, of such Person in respect of bankers’ acceptances, (k) all
obligations of such Person under Swap Agreements, and (l) all obligations
of such Person to purchase, redeem, retire, defease or otherwise acquire for
value (other than for other Equity Securities) any Equity Securities of such
Person, valued, in the case of redeemable Equity Securities, at the greater of
voluntary or involuntary liquidation preference, plus accrued and unpaid
dividends.
“Investment” means, as applied
to any Person (the “investor”), any direct or
indirect purchase or other acquisition by the investor of, or a beneficial
interest in, Equity Securities of any other Person, including any exchange of
Equity Securities for Indebtedness, or any direct or indirect loan, advance
(other than advances to employees for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business) or capital
contribution by the investor to any other Person, including all Indebtedness and
accounts owing to the investor from such other Person that did not arise from
sales or services rendered to such other Person in the ordinary course of the
investor’s business, or any direct or indirect purchase or other acquisition
of bonds, notes, debentures or other debt securities of, any other
Person.
“Material Adverse Effect” means
a material adverse effect on (a) the business, assets, operations,
prospects or condition, financial or otherwise, of the Issuers and the
Guarantors taken as a whole, or (b) the validity or enforceability of any
of this Agreement, the Notes, the Security or any documents delivered pursuant
to the terms hereof, the priority of the Liens created thereby or the rights and
remedies of the Agent and the Lenders thereunder or (c) any Material
Contract, or (d) the amount which the Lenders would be likely to receive
(after giving effect to delays in payment and costs of enforcement) upon the
liquidation of the Ten shares; provided that a Filing shall not, in and of
itself, be deemed to constitute or give rise to a Material Adverse
Effect.
“Material Contract” means
(a) the contracts, licences and agreements listed and described on
Schedule C to the CIT Credit Agreement, and (b) any other
contract, licence or agreement (i) to which any Issuer or Guarantor is a
party or bound, (ii) which is material to, or necessary in, the operation
of the
business
of any Issuer or Guarantor, and (iii) which any Issuer or Guarantor cannot
promptly replace by an alternative and comparable contract with comparable
commercial terms.
“Permitted Holders” means (a)
the late Israel Xxxxxx Xxxxx (in this definition, the “Primary Permitted
Holder”); (b) the spouse of the Primary Permitted Holder (including a widow or
widower); (c) any lineal descendent of the Primary Permitted Holder (treating
for this purpose, any legally adopted descendant as a lineal descendant); (d)
the estate trustee of any Person listed in clauses (a) to (c); (e) any trust
(whether testamentary or inter
vivos) primarily for the lineal descendants of the Primary Permitted
Holder, spouses of such lineal descendants, the Primary Permitted Holder himself
or his spouse; and (f) any and all corporations which are directly or indirectly
Controlled by any one or more of the foregoing.
“Person” means any natural
person, corporation, company, limited liability company, unlimited liability
company, trust, joint venture, association, incorporated organization,
partnership, Governmental Authority or other entity.
“Restricted Payment” shall
mean, with respect to any Person, any payment by such Person (i) of any
dividends on any of its Equity Securities, (ii) on account of, or for the
purpose of setting apart any property for a sinking or other analogous fund for,
the purchase, redemption, retirement or other acquisition of any of its Equity
Securities or any warrants, options or rights to acquire any Equity Securities,
or the making by such Person of any other distribution in respect of any of its
Equity Securities, (iii) of any principal of or interest or premium on or
of any amount in respect of a sinking or analogous fund or defeasance fund for
any Indebtedness of such Person ranking in right of payment or security
subordinate to any liability of such Person under this Agreement, the Notes or
the Security, (iv) of any principal of or
interest or premium on or of any amount in respect of a sinking or analogous
fund or defeasance fund for any Indebtedness of such Person to a shareholder of
such Person or to an Affiliate of a shareholder of such Person, (v) in
respect of an Investment, or (vi) of any management, consulting or similar
fee or any bonus payment or comparable payment, or by way of gift or other
gratuity, to any Affiliate of such Person or to any director or officer
thereof.
“Swap Agreement” means any
agreement with respect to any swap, forward, future or derivative transaction or
option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions.
SCHEDULE
G – PRINCIPAL AMOUNT OF NOTES
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Purchaser
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C$105M
Principal
(US$)
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[Redacted
individual Purchaser name and Notes for confidentiality reasons]
EXHIBIT
A – FORM OF NOTE
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THESE SECURITIES MUST NOT
TRADE THE SECURITIES BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE
LATER OF (I) MAY [l], 2009, AND (II) THE
DATE THE COMPANY BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF
CANADA. - CANADIAN PURCHASERS
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS OR REGULATIONS AND CANNOT BE TRANSFERRED EXCEPT PURSUANT
TO REGISTRATION UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS AND
REGULATIONS OR AN EXEMPTION THEREFROM.
and
CANWEST TELEVISION LIMITED PARTNERSHIP
12%
Senior Secured Note
l, 2009
FOR VALUE
RECEIVED, each of the undersigned, CANWEST MEDIA INC. and CANWEST TELEVISION
LIMITED PARTNERSHIP (herein, collectively, called the “Company”), a corporation
organized or a partnership formed and existing under the laws of Canada, hereby
jointly and severally promises to pay to [___________________], or its
successors or permitted assigns, the principal sum of l THOUSAND U.S. DOLLARS
(U.S.$l) on the
Maturity Date, with interest (a) on the unpaid balance thereof at the interest
rate specified in the Note Purchase Agreement (as defined below) from the date
hereof, calculated daily and payable monthly in arrears on the first Business
Day of the following month in accordance with the terms of the Note Purchase
Agreement, commencing on l, 2009, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal or any overdue payment of interest, calculated and payable in
accordance with the terms of the Note Purchase Agreement (or, at the option of
the registered holder hereof, on demand), at a rate per annum from time to time
equal to 2% above the interest rate on the Notes.
All
interest payable by the Company hereunder shall accrue from day to day, computed
as described herein and shall be payable after as well as before maturity,
demand, default and judgment in accordance with the provisions of the Note
Purchase Agreement referred to below.
Payments
of principal or interest on this Note are to be made in lawful money of the
United States to the holder of this Note or at such other place as the holder of
this Note shall have designated by written notice to the Company as provided in
the Note Purchase Agreement referred to below.
This Note
is issued pursuant to the Note Purchase Agreement, dated as of May l, 2009 (as from time to
time amended, restated, replaced or modified, the “Note Purchase Agreement”),
between inter alia the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned thereto in the Note Purchase
Agreement.
Upon
surrender of this Note for transfer, duly endorsed, or accompanied by a written
instrument of transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for a like principal
amount will be issued to and in the name of, the transferee. Prior to due
presentment for transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note
is subject to optional and/or mandatory prepayment, in whole or from time to
time in part, at the times and on the terms specified in the Note Purchase
Agreement. In addition to payments of principal and interest required
to be paid by the Company, the Company promises to pay the holder of this Note
all fees required to be paid in respect of this Note pursuant to the terms of
the Note Purchase Agreement.
If an
Event of Default, as defined in the Note Purchase Agreement, occurs and is
continuing, the principal of this Note may be declared or otherwise become due
and payable in the manner and with the effect provided in the Note Purchase
Agreement.
This Note
is secured by the Security.
This Note
shall be governed by and construed in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein.
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By:
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Name:
Title:
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By:
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Name:
Title:
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- 2
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CANWEST
TELEVISION LIMITED PARTNERSHIP, by its general partner, CANWEST TELEVISION
GP INC.
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By:
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Name:
Title:
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By:
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Name:
Title:
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