EXHIBIT 4.79
SENIOR SECURED CREDIT FACILITIES
CANWEST MEDIA INC.
as Borrower
- and -
CANWEST GLOBAL COMMUNICATIONS CORP.
as Guarantor
-and-
THE FINANCIAL INSTITUTIONS IDENTIFIED
ON THE SIGNATURE PAGES HERETO
as Lenders
- and -
THE BANK OF NOVA SCOTIA
as Co-Lead Arranger, Joint Bookrunner and Administrative Agent
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
as Co-Lead Arranger, Joint Bookrunner and Syndication Agent
- and -
BANK OF AMERICA, N.A.
as Arranger and Documentation Agent
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AMENDING AGREEMENT NO. 4
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Dated as of August 29, 2003
AMENDING AGREEMENT NO. 4
This amending agreement no. 4 dated as of August 29, 2003 among CanWest
Media Inc. (the "BORROWER"), as borrower, CanWest Global Communications Corp.
(the "GUARANTOR"), as guarantor, the Lenders (as defined below), and The Bank of
Nova Scotia, as administrative agent.
WHEREAS The Bank of Nova Scotia, as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT"), and such other Persons (as that term is defined in
the Credit Agreement hereinafter defined and referred to) as may from time to
time be parties to the Credit Agreement (collectively, together with The Bank of
Nova Scotia in its capacity as a lender, the "LENDERS") agreed to make certain
credit facilities available to the Borrower upon the terms and conditions
contained in a credit agreement among the Borrower, the Guarantor, the
Administrative Agent and the Lenders dated as of November 7, 2000 (as amended
by that certain amending agreement dated as of September 5, 2001, that certain
amending agreement no. 2 dated as of July 15, 2002, and that certain amending
agreement no. 3 dated as of March 27, 2003, the "CREDIT AGREEMENT");
AND WHEREAS the Borrower has requested of the Administrative Agent and the
Lenders that the Credit Agreement be amended as hereinafter provided and the
Administrative Agent and the Lenders have agreed to such amendments to the
Credit Agreement on the terms and conditions set forth in this Amending
Agreement No. 4;
NOW THEREFORE in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the Borrower, the Guarantor, the Administrative Agent and the Lenders agree as
follows:
1. DEFINED TERMS. Capitalized terms used in this Amending Agreement No. 4 and
not otherwise defined shall have the respective meanings attributed to them in
the Credit Agreement.
2. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. Section 1.01 of the Credit
Agreement is amended effective as of this date as follows:
(i) by amending the definition of "Accommodations Outstanding" by deleting
the word "and" before clause (viii) and inserting at the end of the
first sentence thereof the following:
"; (ix) under the Tranche D(1) Credit Facility, in relation to
(a) the Borrower and all Tranche D(1) Lenders, the amount of all
Accommodations outstanding thereunder at such time made to the
Borrower by the Tranche D(1) Lenders, and (b) the Borrower and
each Tranche D(1) Lender, the amount of all Accommodations
outstanding thereunder at such time made by such Tranche D(1)
Lender under its Tranche D(1) Credit Commitment; and (x) under
the Tranche D(2) Credit Facility, in relation to (a) the Borrower
and all Tranche D(2) Lenders, the amount of all Accommodations
outstanding thereunder at such time made to the Borrower by the
Tranche D(2) Lenders, and (b) the Borrower and each Tranche D(2)
Lender, the
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amount of all Accommodations outstanding thereunder at such time made
by such Tranche D(2) Lender under its Tranche D(2) Credit Commitment";
by Amending the definition of "Aggregate Mark-to-Market Exposure" by
deleting that definition and inserting the following in its place:
""AGGREGATE MARK-TO-MARKET EXPOSURE" means, on any day, the sum of the
averages of the Market Values (expressed in Canadian Dollars), for the
preceding five Business Days, whether positive or negative, in respect
of all Eligible Hedging Agreements and any other interest rate xxxxxx
and foreign exchange xxxxxx to which any Global Group Entity is a
party.";
by amending the definition of "Commitment" by:
(a) deleting the word "and" before clause (viii) of the first sentence
thereof and inserting the following immediately following such clause
(viii):
"; (ix) the Tranche D(1) Credit Facility, Cdn.$30,240,625.00 (the
"TRANCHE D(1) CREDIT COMMITMENT"); and (x) the Tranche D(2) Credit
Facility, U.S.$648,772,037.18 (the "TRANCHE D(2) CREDIT COMMITMENT")",
and
(b) by inserting immediately before the second last sentence thereof the
following sentence:
"A "XXXXXX'S TRANCHE D(1) CREDIT COMMITMENT" and a "LENDER'S TRANCHE
D(2) CREDIT COMMITMENT" means, at any time, the relevant amount
designated as such and set forth opposite such Xxxxxx's name on the
signature pages to Amending Agreement No. 4 or in the assignment and
assumption agreement executed and delivered pursuant to Section
12.08(4) pursuant to which it shall become a party hereto (as reduced
or increased in accordance with the terms hereof).";
(c) by inserting at the end thereof the following sentence:
"The Lenders' Tranche D(1) Credit Commitments and Lenders' Tranche
D(2) Credit Commitments are sometimes collectively referred to herein
as the "TRANCHE D CREDIT COMMITMENTS",";
by deleting the definition of "Commitment Increase Amount";
(v) by amending the definition of "Hedging Requirements" by deleting the word
"and" before clause (c) and inserting after clause (c) the following:
", and (d) the Accommodations Outstanding under the Tranche D Credit
Facilities denominated in U.S. Dollars";
-3-
by amending the definition of "Lenders" by:
(a) inserting after the words "signature pages hereof" in the first
sentence the phrase "or of Amending Agreement No. 4";
(b) deleting the word "and" before clause (viii) of the second sentence
and inserting after clause (viii) of such sentence the following:
"; (ix) a Lender's Tranche D(1) Credit Commitment is sometimes
referred to herein as a "TRANCHE D(1) LENDER"; and (x) a Lender's
Tranche D(2) Credit Commitment is sometimes referred to herein as a
"TRANCHE D(2) LENDER".";
(c) inserting at the end thereof the following sentence:
"The Tranche D(1) Lenders and the Tranche D(2) Lenders are sometimes
referred to herein collectively as the Tranche D Lenders."
(vii) by amending the definition of "Relevant Repayment Date" by inserting,
after the first occurrence of the phrase "Tranche C Credit Facilities",
the phrase "and Tranche D Credit Facilities", and inserting, after the
second occurrence of the phrase "Tranche C Credit Facilities", the phrase
"or Tranche D Credit Facilities".
by amending the definition of "Term Credit Facilities" by inserting at the
end thereof the phrase "and the Tranche D Credit Facilities".
by amending the definition of "Threshold Amount" by deleting the word
"and" before clause (ii) thereof and inserting at the end of the
definition the phrase "and, (iii) the Tranche D(2) Credit Facility, after
November 15, 2005 an amount equal to 25% of the Accommodations Outstanding
thereunder on the Tranche D Funding Date, and on or prior to November 15,
2005, an amount equal to the lessor of: (A) 25% of the Accommodations
Outstanding under the Tranche D(2) Credit Facility on the Tranche D
Funding Date, and (B) the aggregate Threshold Amounts in clauses (i) and
(ii), above, less the aggregate of all amounts that have been repaid, as
of the Tranche D Funding Date, under the Tranche B(2) Credit Facility and
the Tranche C(2) Credit Facility pursuant to Section 2.04(3), Section
2.04(4), Section 2.05(2), Section 2.05(3), Section 2.05(4), Section
2.05(5), Section 2.05(6), inclusive".
(x) by deleting the definition of "Tranche D Credit Facility" and inserting in
its place the following three definitions:
""TRANCHE D CREDIT FACILITIES" means collectively, the Tranche D(1)
Credit Facility and the Tranche D(2) Credit Facility.
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TRANCHE D(1) CREDIT FACILITY" means the term credit facility made
available to the Borrower in accordance with Article 2 for the
purposes specified in Section 2.03(2).
"TRANCHE D(2) CREDIT FACILITY" means that the term credit
facility made available to the Borrower in accordance with
Article 2 for the purposes specified in Section 2.03(2).";
(xi) by the addition of the following new definitions:
""AMENDING AGREEMENT NO. 4" means the certain amending agreement
no. 4, dated as of August 29, 2003, among the Borrower, the
Guarantor, the Lenders and the Administrative Agent, amending the
Credit Agreement.
"TRANCHE D FUNDING DATE" means the date upon which the conditions
precedent to Amending Agreement No. 4 are satisfied."
3. AMENDMENTS TO ARTICLE 2 OF THE CREDIT AGREEMENT.
(a) Section 2.01 of the Credit Agreement is amended effective as of
this date as follows:
(i) by amending Section 2.01(1) by inserting at the end of the first
sentence thereof the phrase ", Xxxxxx's Tranche D(1) Credit
Commitment and Xxxxxx's Tranche D(2) Credit Commitment"; and
(ii) by amending Section 2.01(2) by (A) inserting after the phrase
"Tranche C(1) Credit Facility" the phrase "and the Tranche D(1)
Credit Facility", and (B) inserting after the phrase "Tranche C(2)
Credit Facility" the phrase "and the Tranche D(2) Credit Facility".
(b) Section 2.02 of the Credit Agreement is amended effective as of
this date as follows;
(i) by amending Section 2.02(1) by inserting at the end thereof the
following two sentences:
"The Accommodations Outstanding (xvii) to all Tranche D(1)
Lenders shall not at any time exceed the Tranche D(1) Credit
Commitment; and (xviii) to each Tranche D(1) Lender shall not at
any time exceed such Lender's Tranche D(1) Credit Commitment. The
Accommodations Outstanding (xix) to all Tranche D(2) Lenders
shall not at any time exceed the Tranche D(2) Credit Commitment;
and (xx) to each Tranche D(2) Lender shall not at any time exceed
such Xxxxxx's Tranche D(2) Credit Commitment.";
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by amending Section 2.02(2) by inserting after the phrase "Tranche
C(2) Credit Commitment" the phrase ", the Tranche D(1) Credit
Commitment or the Tranche D(2) Credit Commitment"; and
by inserting the following at the end of Section 2.02 as a new
sub-section 2.02(7):
"(7) Accommodations under the Tranche D(1) Credit Facility and
the Tranche D(2) Credit Facility shall be made available in a
single drawing on the Tranche D Funding Date. The unused portion
of the Tranche D(1) Credit Commitment and the Tranche D(2) Credit
Commitment shall be permanently cancelled on the date immediately
following the Tranche D Funding Date and the Tranche D(1) Credit
Commitment or the Tranche D(2) Credit Commitment, as the case may
be, shall be permanently reduced by the amount by which the
Accommodations Outstanding under the Tranche D(1) Credit Facility
or the Tranche D(2) Credit Facility, as the case may be, on such
date are less than the Tranche D(1) Credit Commitment or Tranche
D(2) Credit Commitment, as the case may be, on such date."
(c) Section 2.03 of the Credit Agreement is amended effective as of this
date by inserting at the end of Section 2.03(2) the phrase ", and, in the case
of the Tranche D Credit Facilities, for repayment of all Accommodations
Outstanding under the Tranche B Credit Facilities and the Tranche C Credit
Facilities".
(d) Section 2.04 of the Credit Agreement is amended effective as of this
date by inserting before the first word of Section 2.04(4) the letter "(a)" and
inserting at the end of Section 2.04(4) the following as a new sub-section
2.04(4)(b):
"(b) The Borrower shall repay (subject to Section 9.01) the Accommodations
Outstanding under the Tranche D(1) Credit Facility and the Tranche D(2)
Credit Facility in semi-annual installments in the following amounts
(expressed as a percentage of the Tranche D(1) Credit Commitment or the
Tranche D(2) Credit Commitment, as the case may be, drawn on the Tranche D
Funding Date) and on the last Business Day of the following periods:
November 15, 2003 0.5%
May 15, 2004 0.5%
November 15, 2004 0.5%
May 15, 2005 0.5%
November 15, 2005 0.5%
May 15, 2006 0.5%
November 15, 2006 0.5%
May 15, 2007 0.5%
November 15, 2007 0.5%
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May 15, 2008 12.5%
November 15, 2008 12.5%
May 15, 2009 the remainder";
(e) Section 2.05 of the Credit Agreement is amended effective as of this
date as follows:
(i) by inserting after each occurrence of the phrase "Section 2.09" the
phrase "and Section 2.11"; and
(ii) by amending Section 205(7) by inserting after each occurrence of the
phrase "Tranche C Credit Facilities" the phrase "and the Tranche D
Credit Facilities", inserting after the first occurrence of the phrase
"Tranche C Lender" the phrase "or Tranche D Lender", and inserting
after the second occurrence of the phrase "Tranche C Lender" the
phrase "and Tranche D Lender".
(f) Section 2.06 of the Credit Agreement is amended effective of this
date by amending Section 2.06(l) by (A) inserting, after the phrase "Tranche
C(l) Credit Facility", the phrase "and the Tranche D(l) Credit Facility", and
(B) inserting, after the phrase "Tranche C(2) Credit Facility", the phrase "and
the Tranche D(2) Credit Facility".
(g) Section 2.11 of the Credit Agreement is amended effective as of this
date by deleting the whole of Section 2.11 and inserting the following in its
place:
"2.11. APPLICATION OF PAYMENTS AND PREPAYMENTS TO TRANCHE D(2). (1)
The aggregate amount of all payments made pursuant to Section
2.04(4)(b) and Section 2.05(2), Section 2.05(3), Section 2.05(4),
Section 2.05(5) and Section 2.05(6), inclusive, in respect of the
Tranche D(2) Credit Facility, on or prior to such fifth anniversary of
the Tranche D Funding Date shall not, notwithstanding any other
provision of this Agreement, exceed the applicable Threshold Amount.
If at any time on or prior to such fifth anniversary the amount of any
payment in respect of the Tranche D(2) Credit Facility, when
aggregated with all other payments made pursuant to Section 2.04(4)(b)
and Section 2.05(2), Section 2.05(3), Section 2.05(4), Section 2.05(5)
and Section 2.05(6) in respect of the Tranche D(2) Credit Facility
would exceed the applicable Threshold Amount, then the excess amount
shall be applied (i) firstly, rateably to the prepayment of the
instalments due pursuant to Section 2.04(2) in respect of the Tranche
A Credit Facility and the Tranche D(1) Credit Facility; and (ii)
secondly, to the permanent reduction of the Revolving Credit
Commitment (and the Borrower shall repay the amount by which the
Accommodations Outstanding under the Revolving Credit Facility after
giving effect to such reduction exceed the Revolving Credit
Commitment). After such fifth anniversary any such prepayment shall be
applied to the rateable prepayment of the Term Credit Facilities.
(2) Each prepayment pursuant to Section 2.05, Section 2.06 and Section
2.11(1) in respect of the Tranche D Credit Facility shall be applied
rateably to the
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remaining instalments specified in Section 2.04(4)(b) in respect of
the Tranche D Credit Facility. Prepayments applied by the
Administrative Agent pursuant to Section 2.11(1) in respect of the
Tranche D Term Credit Facility shall, except as therein otherwise
provided, (i) first, be applied to the payment of any Advances
outstanding under the Tranche D Credit Facility; and (ii) second, the
balance shall be held by the Administrative Agent and be applied to
the Borrower's reimbursement obligation in respect of any outstanding
Drawing on the maturity date of such Drawing."
4. AMENDMENT TO ARTICLE 3 OF THE CREDIT AGREEMENT.
(a) Section 3.01(1) of the Credit Agreement is amended effective as of
this date by inserting after the phrase "Tranche C Lender" the phrase "and
Tranche D Lender";
(b) Section 3.01(2) of the Credit Agreement is amended effective as of
this date by inserting after the phrase "Tranche C(2) Credit Facility" the
phrase ",the Tranche D(1) Credit Facility or the Tranche D(2) Credit Facility";
(c) Section 3.02(1) of the Credit Agreement is amended effective as of
this date by (A) inserting after the phrase "Tranche C(1) Credit Facility" the
phrase "and the Tranche D(1) Credit Facility", and (B) inserting after the
phrase "Tranche C(2) Credit Facility" the phrase "or the Tranche D(2) Credit
Facility";
(d) Section 3.03(3) of the Credit Agreement is amended effective as of
this date by (A) inserting after the phrase "Tranche C(1) Credit Facility" the
phrase "and the Tranche D(1) Credit Facility", and (B) inserting after the
phrase "Tranche C(2) Credit Facility" the phrase "or the Tranche D(2) Credit
Facility"; and
(e) Section 3.05(d) of the Credit Agreement is amended effective as of
this date by (A) inserting after the phrase "Tranche C(1) Credit Facility" the
phrase "or the Tranche D(1) Credit Facility", and (B) inserting after the
phrase "Tranche C(2) Credit Facility" the phrase "or the Tranche D(2) Credit
Facility".
5. AMENDMENT TO ARTICLE 4 OF THE CREDIT AGREEMENT.
(a) Section 4.01(1) of the Credit Agreement is amended effective as of
this date by (A) inserting, immediately after the phrase "and Tranche C(1)
Lender", the phrase "and Tranche D(1) Lender", (B) inserting, immediately after
the phrase "or Tranche C(1) Lender", the phrase "or Tranche D(1) Lender"; and
(b) Section 4.04 of the Credit Agreement is amended effective as of this
date by inserting, immediately after the phrase "and Tranche C(1) Lender", the
phrase "and Tranche D(1) Lender".
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6. AMENDMENT TO ARTICLE 8 OF THE CREDIT AGREEMENT. Section 8.01(s) of the
Credit Agreement is amended effective as of this date by deleting that section
and inserting the following in its place:
"(s) AGGREGATE MARK-TO-MARKET EXPOSURE. If the Aggregate Mark-to-Market
Exposure of all Eligible Hedging Agreements and any other interest rate
xxxxxx or foreign exchange xxxxxx entered into by the Global Group Entities
results at any time in a negative value of greater than (a) when the Senior
Secured Leverage Ratio is greater than 4.00:1, Cdn.$300,000,000 (or the
equivalent thereof in any other currencies), (b) when the Senior Secured
Leverage Ratio is greater than 3.50:1, and less than or equal to 4.00:1,
Cdn.$400,000,000 (or the equivalent thereof in any other currencies), and
(c) when the Senior Secured Leverage Ratio is less than or equal to 3.50:1,
Cdn.$500,000,000 (or the equivalent thereof in any other currencies), the
Global Group Entities shall immediately terminate or reprice such
agreements or take other actions acceptable to the Majority Lenders so that
the negative value is reduced to not more than (d) when the Senior Secured
Leverage Ratio is greater than 4.00:1, Cdn.$250,000,000 (or the equivalent
thereof in any other currencies), (e) when the Senior Secured Leverage
Ratio is greater than 3.50:1, and less than or equal to 4.00:1,
Cdn.$350,000,000 (or the equivalent thereof in any other currencies), and
(f) when the Senior Secured Leverage Ratio is less than or equal to 3.50:1,
Cdn.$450,000,000 (or the equivalent thereof in any other currencies)."
7. AMENDMENT TO ARTICLE 10 OF THE CREDIT AGREEMENT. Section 10.09(1) of the
Credit Agreement is amended effective as of this date by inserting, after the
phrase "Tranche C(2) Credit Facility", the phrase "or the Tranche D(2) Credit
Facility".
8. AMENDMENT TO ARTICLE 12 OF THE CREDIT AGREEMENT. Section 12.07(1) of the
Credit Agreement is amended effective as of this date by inserting, after each
occurrence of the phrase "Tranche C(2) Credit Facility", the phrase "or the
Tranche D(2) Credit Facility".
9. AMENDMENT TO SCHEDULES TO THE CREDIT AGREEMENT. The Schedules to the
Credit Agreement are amended effective as of this date by deleting Schedules 6
and 11 thereof and inserting Schedules 6 and 11 to this Amending Agreement No.
4 in their respective places.
10. CONDITIONS PRECEDENT. It is a condition precedent to the effectiveness of
this Amending Agreement No. 4 that:
(a) the Administrative Agent shall have received copies of this Amending
Agreement No. 4 executed by the Borrower, the Guarantor, the Administrative
Agent, the Majority Lenders and all Tranche D Xxxxxxx;
(b) the conditions precedent in Section 6.02 of the Credit Agreement are
satisfied on the Tranche D Funding Date;
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(c) the Borrower, the Guarantor and each other Global Group Entity shall have
delivered a confirmation of guarantees and security in form and substance
reasonably satisfactory to the Administrative Agent;
(d) a certified copy of (i) the charter documents and by-laws of the Borrower
and the Guarantor; (ii) the resolutions of the board of directors (or any duly
authorized committee thereof) or of the Borrower approving this Amending
Agreement No. 4 and the completion of all transactions contemplated thereunder;
and (iii) all other instruments evidencing necessary corporate action of the
Borrower and the Guarantor and of any required Authorization with respect to
such matters;
(e) a certificate of the secretary or an assistant secretary of the Borrower
and of the Guarantor certifying the names and true signatures of its respective
officers authorized to sign this Amending Agreement No. 4 manually or by
mechanical means;
(f) certificates of compliance with respect to the Borrower and the Guarantor
issued by Industry Canada;
(g) favorable opinions of counsel to the Borrower and the Guarantor concerning
corporate existence of the Borrower and the Guarantor, due authorization,
execution and enforceability of this Amending Agreement No. 4, that
Accommodations Outstanding under the Tranche D Credit Facilities will constitute
permitted debt under the HCN Indenture and all existing Senior Unsecured Debt
and Senior Subordinated Debt, that all Accommodations Outstanding, or
anticipated to be to be outstanding pursuant to this Amending Agreement No. 4,
under the Tranche D Credit Facilities constitute indebtedness to which the debt
outstanding under the HCN Notes and all Senior Unsecured Debt and Senior
Subordinated Debt, respectively, is fully and indefeasibly subordinated, and
such as other matters as may reasonably be required by legal counsel to the
Administrative Agent; and
(h) such other certificates and documentation as the Administrative Agent may
reasonably request.
11. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. On and after this date,
each reference in the Credit Agreement to "this Agreement" and each reference to
the Credit Agreement in the Credit Documents and any and all other agreements,
documents and instruments delivered by any of the Lenders, the Administrative
Agent, the Borrower, the Guarantor or any other Person shall mean and be a
reference to the Credit Agreement as amended by this Amending Agreement No. 4.
Except as specifically amended by this Amending Agreement No. 4, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed. This Amending Agreement No. 4 will not result in a novation,
substitution, discharge or extinguishment of any Credit Document.
12. NO WAIVER, ETC. The execution, delivery and effectiveness of this Amending
Agreement No. 4 shall not, except as expressly provided, operate as a waiver of
any right, power or remedy
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of the Administrative Agent or any of the Lenders under any of the Credit
Documents nor constitute a waiver of any provision of any of the Credit
Documents.
13. GOVERNING LAW. This Amending Agreement No. 4 shall be governed by and
interpreted and enforced in accordance with the laws of the Province of Ontario
and the laws of Canada applicable therein.
14. COUNTERPARTS. This Amending Agreement No. 4 may be executed in any number
of counterparts (including by way of facsimile) and all of such counterparts
taken together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amending Agreement No. 4
to be executed by their respective duly authorized officers as of the date first
above written.
CANWEST MEDIA INC.,
as Borrower
Per: /s/ ILLEGIBLE
________________________________________
Authorized Signing Officer
Per: /s/ ILLEGIBLE
________________________________________
Authorized Signing Officer
CANWEST GLOBAL COMMUNICATIONS CORP.,
as Guarantor
Per: /s/ ILLEGIBLE
________________________________________
Authorized Signing Officer
Per: /s/ ILLEGIBLE
________________________________________
Authorized Signing Officer
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[This page has been intentionally left blank.]
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THE BANK OF NOVA SCOTIA,
as Administrative Agent
/s/ Illegible
------------------------
Authorized Signing Officer
------------------------
Authorized Signing Officer
THE BANK OF NOVA SCOTIA,
as Administrative Agent on behalf of
Majority Lenders
/s/ Illegible
------------------------
Authorized Signing Officer
------------------------
Authorized Signing Officer
TRANCHE D LENDER SIGNATURE PAGE
Tranche D(1) THE BANK OF NOVA SCOTIA,
Credit Commitment: as Tranche D Lender
Cdn.$30,240,625.00
Tranche D(2) Per: /s/ Illegible
Credit Commitment: --------------------------
U.S.$648,772,037.18 Authorized Signing Officer
--------------------------
Authorized Signing Officer
Notice Information:
Address:
28th Floor, 00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
(000) 000-0000
Attention: Xxx Xxxxxx
SCHEDULE 6
APPLICABLE MARGINS/APPLICABLE UTILIZATION FEE
A. APPLICABLE MARGIN:
Revolving Credit Facility and Tranche A Credit Facility
TOTAL DEBT/EBITDA LIBOR FLOATING RATE
MARGIN/OFFERED ADVANCE
RATE MARGIN/
DRAWING FEE/
DOCUMENTARY
CREDIT FEE
------------------ -------------- --------------
>
- 5.5 275 bps 175 bps
------------------ -------------- --------------
>
- 5.0 < 5.5 250 bps 150 bps
------------------ -------------- --------------
>
- 4.5 < 5.0 200 bps 100 bps
------------------ -------------- --------------
>
- 4.0 < 4.5 175 bps 75 bps
------------------ -------------- --------------
>
- 3.5 < 4.0 125 bps 25 bps
------------------ -------------- --------------
>
- 3.0 < 3.5 100 bps Nil
------------------ -------------- --------------
< 3.0 75 bps Nil
------------------ -------------- --------------
2. Tranche D Credit Facilities:
LIBOR MARGIN/ FLOATING RATE
DRAWING FEE ADVANCES
------------- -------------
275 bps 175 bps
------------- -------------
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B. APPLICABLE UTILIZATION FEE:
UTILIZATION FEE
------------------ -------
> 66 2/3% 50 bps
> 33 1/3% less than or equal to 66 2/3% 75 bps
less than or equal to 33 1/3% 100 bps
SCHEDULE 11
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "AGREEMENT") is entered
into by and between the parties designated as Assignor ("ASSIGNOR", shall herein
mean the party or parties so designated and, if more than one, each of them) and
Assignee ("ASSIGNEE") above the signatures of such parties on the Schedule of
Terms attached hereto and hereby made an integral part hereof (the "SCHEDULE OF
TERMS") and relates to that certain Credit Agreement described in the Schedule
of Terms (said Credit Agreement, as amended, supplemented or otherwise modified
to the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "CREDIT AGREEMENT", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1.01. ASSIGNMENT AND ASSUMPTION.
(a) Effective upon the Settlement Date specified in Item 4 of the Schedule
of Terms (the "SETTLEMENT DATE"), Assignor hereby sells and assigns to
Assignee, without recourse, representation or warranty (except as
expressly set forth herein), and Assignee hereby purchases and assumes
from Assignor, the percentage interest(s) in all of Assignor's rights
and obligations as a Lender arising under the Credit Agreement and the
other Credit Documents with respect to Assignor's Commitments and
Accommodations Outstanding, if any, which represents as of the
Settlement Date, the percentage interest(s) specified in Item 3 of the
Schedule of Terms of all rights and obligations of Lenders arising
under the Credit Agreement and the other Credit Documents with respect
to the Commitments and any Accommodations Outstanding (the "ASSIGNED
SHARE");
(b) where there is more than one Assignor, such assignment shall be made
on a pro rata basis in accordance with each such Assignor's percentage
interest in each of the Accommodations Outstanding as of the date
hereof for each of the Accommodations Outstanding being hereby
assigned;
(c) in consideration of the assignment described above, Assignee hereby
agrees to pay to Assignor, on the Settlement Date, the principal
amount of any Accommodations Outstanding included within the Assigned
Share, such payment to be made by wire transfer of immediately
available funds in accordance with the applicable payment instructions
set forth in Item 5 of the Schedule of Terms;
(d) Assignor hereby represents and warrants that Item 3 of the Schedule of
Terms correctly sets forth the amount of the Commitments, the
Accommodations Outstanding and the pro rata share(s) corresponding to
the Assigned Share;
(e) Assignor and Assignee hereby agree that, upon giving effect to the
assignment and assumption described above, (i) Assignee shall be a
party to the Credit Agreement and shall have all of the rights and
obligations under the Credit Documents, and shall be deemed to have
made all of the representations, covenants and agreements contained in
the Credit Documents, arising out of or
2
otherwise related to the Assigned Share; and (ii) Assignor shall be
absolutely released from any of such obligations, covenants and agreements
assumed or made by Assignee in respect of the Assigned Share (without
prejudice to any claim which the Borrower may have against the Assignor on
the Effective Date for breach of any such obligations, covenants and
agreements). Assignee hereby acknowledges and agrees that the agreement set
forth in this subsection 1(e) is expressly made for the benefit of the
Borrower, Administrative Agent, Assignor and the other Lenders and their
respective successors and permitted assigns; and
(f) Assignor and Assignee hereby acknowledge and confirm their understanding
and intent that (i) this Agreement shall effect the assignment by Assignor
and the assumption by Assignee of Assignor's rights and obligations with
respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and
any Accommodations Outstanding shall have no effect on the Commitments, the
Accommodations Outstanding and the pro rata share(s) corresponding to the
Assigned Share as set forth in Item 3 of the Schedule of Terms, and (iii)
from and after the Settlement Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the Assigned Share
(including all payments of principal, accrued and unpaid interest,
commitment fees and letter of credit fees with respect thereto) (A) in the
case of any such interest and fees that shall have accrued prior to the
Settlement Date, to Assignor, and (B) in all other cases, to Assignee;
provided that Assignor and Assignee shall make payments directly to each
other to the extent necessary to effect any appropriate adjustments in any
amounts distributed to Assignor and/or Assignee by the Administrative
Agent under the Credit Documents in respect of the Assigned Share in the
event that, for any reason whatsoever, the payment of consideration
contemplated by subsection 1(c) occurs on a date other than the Settlement
Date.
SECTION 2.01. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Assignor represents and warrants that it is the legal and beneficial owner
of the Assigned Share, free and clear of any adverse claim;
(b) Assignor shall not be responsible to Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Credit Documents or for any representations,
warranties, recitals or statements made therein or made in any written or
oral statements or in any financial or other statements, instruments,
reports or certificates or any other documents furnished or made by
Assignor to Assignee or by or on behalf of CanWest, the Borrower or any of
their Subsidiaries to Assignor or Assignee in connection with the Credit
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of CanWest, the Borrower or any other Person
liable for the payment of any of the Accommodations Outstanding or any
other amount under any of the Credit Documents, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreements contained in
any of the Credit Documents or
-3-
as to the use of the proceeds of the Accommodations or as to the
existence or possible existence of any Default or Event of Default
or potential Default or Event of Default;
Assignee represents and warrants that it is an eligible Assignee
pursuant to Section 12.08 of the Credit Agreement; that it has
experience and expertise in the making of loans such as the
Accommodations; and that it has received, reviewed and approved a
copy of the Credit Agreement (including all Exhibits and Schedules
thereto);
Assignee represents and warrants that it has received from Assignor
such financial information regarding CanWest, the Borrower and their
Subsidiaries as is available to Assignor and as Assignee has
requested, that it has made its own independent investigation of the
financial condition and affairs of CanWest, the Borrower and their
Subsidiaries in connection with the assignment evidenced by this
Agreement, and that it has made and shall continue to make its own
appraisal of the creditworthiness of CanWest, the Borrower and their
Subsidiaries. Assignor shall have no duty or responsibility, either
initially or on a continuing basis, to make any such investigation
or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto,
whether coming into its possession before the making of the initial
Accommodations or at any time or times thereafter, and Assignor
shall not have any responsibility with respect to the accuracy of or
the completeness of any information provided to Assignee; and
(e) each party to this Agreement represents and warrants to the other
party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance
with the provisions hereof, that this Agreement has been duly
authorized, executed and delivered by such party and that this
Agreement constitutes a legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of
equity.
SECTION 3.01. MISCELLANEOUS.
(a) Each of Assignor and Assignee hereby agrees from time to time, upon
request of the other such party hereto, to take such additional
actions and to execute and deliver such additional documents and
instruments as such other party may reasonably request to effect
the transactions contemplated by, and to carry out the intent of,
this Agreement;
(b) neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed
by the party (including, if applicable, any party required to
evidence its consent to or acceptance of this Agreement) against
whom enforcement of such change, waiver, discharge or termination
is sought;
4-
(c) unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing
and shall be deemed to have been duly given or made when delivered, or
three days after being deposited in the mail, postage prepaid, or, in the
case of telecopy notice, when received and, for the purposes hereof, the
notice address of each of Assignor and Assignee shall be as set forth on
the Schedule of Terms or, as to either such party, such other address as
shall be designated by such party in a written notice delivered to the
other such party and, in addition, the notice address of Assignee set
forth on the Schedule of Terms shall serve as the initial notice address
of Assignee for purposes of subsection 12.04 of the Credit Agreement;
(d) in case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction, shall not in
any way be affected or impaired thereby;
this Agreement shall be governed by and construed in accordance with the
laws of the Province of
Ontario and the laws of Canada applicable therein
and the parties hereto hereby attorn to the exclusive jurisdiction of the
courts of the Province of
Ontario for the purpose of all proceedings
relating to this Agreement;
(f) this Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns;
this Agreement may be executed in several counterparts, each of which when
so executed shall be deemed to be an original and which counterparts
together shall constitute one and the same instrument and notwithstanding
the date of execution shall be deemed to bear date as of the date written
in the beginning of this agreement and an executed copy of this Agreement
may be delivered by any party hereto by facsimile, in which event, such
party shall forthwith deliver to the other parties hereto the copy of this
Agreement executed by such party;
(h) this Agreement shall become effective upon the date (the "EFFECTIVE DATE")
upon which all of the following conditions are satisfied: (i) the
execution of a counterpart hereof by each of Assignor and Assignee; (ii)
the execution of a counterpart hereof by the Borrower as evidence of its
consent hereto to the extent required under Section 12.08 of the Credit
Agreement; (iii) the receipt by Administrative Agent of the applicable
processing and recordation fee referred to in Section 12.08 of the Credit
Agreement; (iv) the execution of a counterpart hereof by Administrative
Agent as evidence of the delivery hereof to the Administrative Agent in
accordance with Section 12.08 of the Credit Agreement; and (v) the receipt
by Administrative Agent of originals or facsimiles of the counterparts
described above and authorization of delivery thereof; and
(i) the parties acknowledge and agree that the Assignee and each of the Agents
are solidary creditors of the Borrower and each other Global Group Entity
under the Credit Agreement and the other Credit Documents in respect of
all amounts, liabilities and other obligations owing or owed by the
Borrower and each other Global Group Entity to each of them under the
Credit Agreement and the other
-5-
Credit Documents, as contemplated in Section 11.01(2) of the Credit
Agreement and the applicable provisions of the guarantees of the
Global Group Entities forming part of the Credit Documents and in
accordance with Article 1541 of the Civil Code of Quebec.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, and delivered by their respective officers thereunto duly
authorized, such execution being made as of the Effective Date in the
applicable spaces provided on the Schedule of Terms.
SCHEDULE OF TERMS
Borrower:
CanWest Media Inc. (the "Borrower").
2. Name and Date of Credit Agreement: Credit Agreement dated as of November 7,
2000 among, inter alia, the Borrower, as borrower, CanWest Global Communications
Limited, as guarantor, the lenders from time to time party thereto, The Bank of
Nova Scotia, as Administrative Agent, Canadian Imperial Bank of Commerce, as
Co-Lead Arranger, Joint Bookrunner and Syndication Agent, The Bank of Nova
Scotia, as Co-Lead Arranger, Joint Bookrunner and Administrative Agent and Bank
of America, N.A., as Arranger and Documentation Agent, as amended by that
certain amending agreement dated as of September 5, 2001, that certain amending
agreement no. 2 dated as of July 15, 2002, that certain amending agreement no. 3
dated as of March 27, 2003 and that certain amending agreement no. 4 dated as of
August 29, 2003.
3. Amounts:
Re: Tranche Re: Tranche
A D(1)/D(2) Re:
Credit Credit Revolving
Facility Facility Credit Facility
----------- ---------------- ---------------
(a) Aggregate
Commitments of
Lenders $ $ $
----------- ------------ -----------
(b) Assigned
Share/Pro Rata
Share .% .% .%
(c) Amount of
Assigned Share
of Commitments $ $ $
----------- ------------ -----------
(d) Amount of
Assigned Share
of Accommodations
Outstanding $ $ $
4. Settlement Date:
-2-
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
----------------------------- -----------------------------
----------------------------- -----------------------------
----------------------------- -----------------------------
Attention: Attention:
------------------ ---------------------
Reference: Reference:
------------------ ------------------
6. Notice Addresses:
ASSIGNOR: ASSIGNEE:
----------------------------- -----------------------------
----------------------------- -----------------------------
----------------------------- -----------------------------
Attention: Attention:
------------------ ---------------------
Reference: Reference:
------------------ ------------------
7. Signatures:
[NAME OF XXXXXXXX], [NAME OF ASSIGNEE],
as Assignor As Assignee
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
Consented to in accordance with Accepted in accordance with Section
Section 12.08(4) of the Credit 12.08(4) of the Credit Agreement
Agreement
CANWEST MEDIA INC. THE BANK OF NOVA SCOTIA, as
Administrative Agent
Per: Per:
------------------------ ------------------------
Name: Name:
Title: Title:
Per:
------------------------
Name:
Title:
