CCAA SUPPORT AGREEMENT
Execution
Copy
CCAA
SUPPORT AGREEMENT
This
support agreement (the “Support
Agreement”) dated October 5, 2009 between: (a) Canwest Global
Communications Corp. (“Canwest
Global”), (b) Canwest Media Inc. (“CMI”), (c) Canwest Television
Limited Partnership (“CTLP”), by its general
partner, Canwest Television GP Inc., (d) the entities listed in Schedule A (each a “CMI Subsidiary” and,
collectively, the “CMI
Subsidiaries” and, together with Canwest Global, CMI and CTLP, the “Companies”), and (e) each of
the other signatories hereto (subject to Section
15(a), each a
“Consenting Noteholder” and, collectively, the “Consenting Noteholders”), each being a holder of the 8.0%
senior subordinated notes due 2012 issued by CMI (collectively, the “8% Notes”), regarding the principal aspects of a
recapitalization of the Companies (the “Recapitalization”), as more fully described in the term sheet
attached hereto as Schedule B (the
“Term Sheet”, with the terms set forth therein being the
“Recapitalization Terms”), which Recapitalization and Term
Sheet are intended to form the basis of a plan of arrangement (the “Plan”), under the Companies’ Creditors Arrangement
Act (the “CCAA”)
and related transactions involving the Companies and certain of their
subsidiaries in proceedings under the CCAA (the “Recapitalization Proceedings”)
in the Ontario Superior Court of Justice (the “Court”).
Capitalized
terms shall have the meaning ascribed thereto in
Schedule C or, where not otherwise defined herein, shall have the
meaning ascribed thereto in the Term Sheet. The Consenting Noteholders, Canwest
Global, CMI, CTLP and the CMI Subsidiaries are collectively referred to as the
“Parties”.
|
1.
|
Recapitalization
|
The
Recapitalization Terms as agreed among the Parties are set forth in the Term
Sheet, which is incorporated herein and made a part of this Support
Agreement. In the case of a conflict between the provisions contained
in the text of this Support Agreement and the Term Sheet, the provisions of this
Support Agreement shall govern. The Support Agreement and the Term Sheet are
herein collectively referred to as this “Agreement”.
|
2.
|
The
Consenting Noteholders’ Representations and
Warranties
|
Each
Consenting Noteholder hereby represents and warrants, severally and not jointly,
to each of the other Parties (and acknowledges that each of the other Parties is
relying upon such representations and warranties) that:
|
|
(a)
|
As
of September 23, 2009, it either (i) was the sole legal and beneficial
owner of the principal amount of 8% Notes, as had been disclosed to
Goodmans and FTI Consulting Inc. (“FTI”) on a confidential
basis, or (ii) had the investment and voting discretion with respect to
the principal amount of 8% Notes as had been disclosed to Goodmans and FTI
on a confidential basis and had the power and authority to bind the
beneficial owner(s) of such 8% Notes to the terms of this Agreement; and
each Consenting Noteholder had authorized and instructed Goodmans to
advise Canwest Global of the aggregate holdings of the 8% Notes by such
Consenting Noteholder as of such date (the “Relevant Notes”; the
Relevant Notes, together with the aggregate amount owing in respect of
the
|
- 2 -
|
|
Relevant
Notes, including accrued and unpaid interest and any other amount that
such Consenting Noteholder is entitled to claim pursuant to the Relevant
Notes under the Plan, its “Debt”);
|
|
|
(b)
|
To
the best of its knowledge after due inquiry (or, where applicable, to the
best of the knowledge of its Investment Advisor), there is no proceeding,
claim or investigation pending before any court, regulatory body,
tribunal, agency, government or legislative body, or threatened against it
or any of its properties that, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on its ability to
execute and deliver this Agreement and to comply with its
terms;
|
|
|
(c)
|
Its
Debt (or, where applicable, to the best of the knowledge of its Investment
Advisor, the Consenting Noteholder’s Debt) is not subject to any liens,
encumbrances, obligations or other restrictions that could adversely
affect the Consenting Noteholder’s ability to perform its obligations
under this Agreement;
|
|
|
(d)
|
It
is a sophisticated party with sufficient knowledge and experience to
properly evaluate the terms and conditions of this Agreement; it (or its
Investment Advisor) has conducted its own analysis and made its own
decision to enter into this Agreement (or its Investment Advisor made the
decision for the Consenting Noteholder to enter into this Agreement) and
it (or its Investment Advisor) has obtained such independent advice in
this regard as deemed appropriate; and it (or its Investment Advisor) has
not relied on the analysis or the decision of any Person other than its
own independent advisors (it being recognized that legal and financial
advisors (the “Committee
Advisors”) to the ad hoc committee of Noteholders (the “Ad Hoc Committee”) to
which certain of the Consenting Noteholders belong as of the date hereof,
are not, by virtue of advising the Ad Hoc Committee, advisors to any
Noteholders, including such Consenting Noteholder, on an individual
basis);
|
|
|
(e)
|
The
execution, delivery and performance by the Consenting Noteholder of this
Agreement:
|
|
|
(i)
|
are
within its corporate, partnership, limited partnership or similar power,
as applicable;
|
|
|
(ii)
|
have
been duly authorized by all necessary corporate, partnership, limited
partnership or similar action, as applicable, including all necessary
consents of the holders of its equity interests where required;
and
|
|
|
(iii)
|
do
not require the consent of, authorization by, approval of or notification
to any Governmental Entity, other than the Regulatory Authorities (except
that this representation shall not apply to a Consenting Noteholder whose
Relevant Notes are managed by its Investment
Advisor).
|
|
|
(f)
|
This
Agreement constitutes a valid and binding obligation of such Consenting
Noteholder enforceable in accordance with its terms, except as enforcement
may
|
- 3 -
|
|
be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors’ rights generally or by general
principles of equity, whether asserted in a proceeding in equity or law;
and
|
|
|
(g)
|
It
has disclosed (or, where applicable, to the best of the knowledge of its
Investment Advisor, the Consenting Noteholder has disclosed) to Canwest
Global all material written agreements between itself and any other
Consenting Noteholder or any New Investor, in its capacity as such, in
connection with the Recapitalization
Transaction.
|
|
3.
|
The
Companies’ Representations and
Warranties
|
Each of
the Companies hereby represents and warrants to each Consenting Noteholder (and
each of the Companies acknowledges that each Consenting Noteholder is relying
upon such representations and warranties) that:
|
|
(a)
|
The
execution, delivery and performance by each of the Companies of this
Agreement:
|
|
|
(i)
|
are
within its respective corporate, partnership, limited partnership or
similar power, as applicable;
|
|
|
(ii)
|
have
been duly authorized by all necessary corporate, partnership, limited
partnership or similar action, as applicable, including all necessary
consents of the holders of its equity interests, where
required;
|
|
|
(iii)
|
do
not (A) contravene its respective certificate of incorporation, by-laws or
limited partnership agreement or other constating documents, (B) violate
any judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to it or any of its properties or assets, (C)
conflict with or result in the breach of, or constitute a default under,
any of its material contractual obligations (other than under the 8% Notes
or the 8% Note Indenture and as contemplated by Section C.4 of the Term
Sheet), or (D) result in the creation or imposition of any lien or
encumbrance upon any of the property of the Companies;
and
|
|
|
(iv)
|
do
not require the consent of, authorization by, approval of or
notification to any Governmental Entity, other than the Regulatory
Authorities and the Court;
|
|
|
(b)
|
This
Agreement constitutes a valid and binding obligation of such Company
enforceable in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors’ rights generally or by general
principles of equity, whether asserted in a proceeding in equity or
law;
|
|
|
(c)
|
To
the best of the knowledge after due inquiry of Xxxxxx Strike, Xxxx Xxxxxxx
and Xxxxxxx Xxxxxxx (the “Relevant Company
Personnel”), there is no proceeding, claim or investigation pending
before any court, regulatory body,
|
- 4 -
|
|
tribunal,
agency, government or legislative body, or threatened against it or any of
its properties that, individually or in the aggregate, would reasonably be
expected to have a material adverse effect on its ability to execute and
deliver this Agreement and to comply with its
terms;
|
|
|
(d)
|
As
of the date hereof, except as disclosed in the Information or the Plan,
since September 1, 2008 there has not been (i) any Material Adverse
Effect, (ii) any transaction which is material to Canwest Global and its
Subsidiaries (taken as a whole) or CMI and its Subsidiaries (taken as a
whole), (iii) any obligation, direct or contingent (including any
off-balance sheet obligations), incurred by Canwest Global and its
Subsidiaries or CMI and its Subsidiaries which is material to Canwest
Global and its Subsidiaries (taken as a whole), (iv) any material change
in the capital or outstanding indebtedness of Canwest Global and its
Subsidiaries (taken as a whole) or CMI and its Subsidiaries (taken as a
whole), as the case may be, or (v) other than in connection with the
reorganization of certain broadcasting assets as contemplated by the
shareholders agreement in respect of CW Investments Co., any dividend or
distribution of any kind declared, paid or made on the capital stock of
Canwest Global or CMI. As of the date hereof, each of Canwest
Global and CMI has filed with the Canadian Securities Administrators and
the Commission all documents required to be filed by it under the
Securities Legislation, as applicable;
and
|
|
|
(e)
|
Each
of Canwest Global, CMI, CTLP and Canwest MediaWorks Ireland Holdings
(“Irish Holdco”)
has authorized, issued and outstanding capitalization as set forth in Schedule
D. No order halting or suspending trading in
securities of Canwest Global or CMI nor prohibiting the sale of such
securities has been issued to and is outstanding against Canwest Global or
CMI, and to the knowledge of the Relevant Company Personnel and the
directors and officers of Canwest Global or CMI, as applicable, other than
enquiries by the Toronto Stock Exchange, no investigations or proceedings
for such purpose are pending or
threatened.
|
|
4.
|
Consenting
Noteholders’ Covenants and Consents
|
|
|
(a)
|
Each
Consenting Noteholder consents and agrees to the terms of, and the
transactions contemplated by, this
Agreement.
|
|
|
(b)
|
Each
Consenting Noteholder agrees not to sell, assign, pledge or hypothecate
(except with respect to security generally applying to its investments
which does not adversely affect such Consenting Noteholder’s ability to
perform its obligations under this Agreement) or otherwise transfer (a
“Transfer”),
between the date of this Agreement and the Termination Date, any Relevant
Notes (or any rights in respect thereof, including, but not limited to,
the right to vote) held by such Consenting Noteholder as of the date
hereof, except to a transferee, who (i) is already a signatory Consenting
Noteholder hereunder (an “ExistingSignatory”); or (ii)
contemporaneously with any such Transfer, agrees to be fully bound as a
signatory Consenting Noteholder hereunder in respect of the 8%
Notes that are the subject of the Transfer by executing and delivering to
the Companies a joinder to this Agreement, the form of which is attached
hereto as
|
- 5 -
|
|
Schedule E. For greater certainty, where the
transferee is not an Existing Signatory, such transferee shall be bound by
the terms of this Agreement only in respect of the Relevant Notes that are
the subject of the Transfer, and not in respect of any other 8% Notes of
the transferee. Each Consenting Noteholder hereby agrees (or,
in the case of a Consenting Noteholder whose Relevant Notes are managed by
its Investment Advisor, its Investment Advisor hereby agrees) to provide
Canwest Global and Goodmans with written notice (and a fully executed copy
of the joinder to this Agreement) within one (1) Business Day following
any Transfer to a transferee that is not an Existing Signatory of any
Relevant Notes (or any rights in respect thereof, including the right to
vote) held by such Consenting Noteholder as of the date
hereof.
|
|
|
(c)
|
As
long as this Agreement has not been terminated in accordance with the
terms hereof, each Consenting Noteholder agrees that, until the
Termination Date, it shall:
|
|
|
(i)
|
vote
(or cause to be voted) all of its Debt in all votes and in each vote in
favour of the approval, consent, ratification and adoption of the
Recapitalization and the Plan (and any actions required in furtherance
thereof);
|
|
|
(ii)
|
to
the extent it effects a Transfer of any of its Relevant Notes in
accordance with Section
4(b) hereof after 5:00 p.m. (Toronto time) on the
record date for the meeting of creditors to be held to consider the
Recapitalization and the Plan and is entitled to vote on the adoption and
approval of the Recapitalization and the Plan, vote all of the Relevant
Notes that are the subject of the Transfer on behalf of the transferee in
all votes and in each vote in favour of the approval, consent,
ratification and adoption of the Recapitalization and the Plan (and any
actions required in furtherance
thereof);
|
|
|
(iii)
|
support
the approval of the Plan as promptly as practicable by the Court (but in
no case later than any voting
deadline);
|
|
|
(iv)
|
execute
any and all documents and perform any and all commercially reasonable acts
required by this Agreement to satisfy its obligations hereunder (except
that this covenant shall be limited, as it applies to a Consenting
Noteholder whose Relevant Notes are managed by its Investment Advisor, to
an agreement to provide all information reasonably requested by the
Companies or the advisors to the Ad Hoc Committee in connection with such
documents or acts);
|
|
|
(v)
|
on
or prior to the time at which the Recapitalization is completed, make or
assist the Companies to make all necessary notifications to Governmental
Entities and use commercially reasonable efforts to obtain or assist the
Companies to obtain any and all required regulatory approvals and/or
material third party approvals in connection with the Recapitalization in
each case at the Companies’ expense (except that this covenant shall
not
|
- 6 -
|
|
apply
to a Consenting Noteholder whose Relevant Notes are managed by its
Investment Advisor);
|
|
|
(vi)
|
not
take any action, directly or indirectly, against Irish Holdco except as
expressly contemplated in the Term Sheet or pursuant to the Cash
Collateral Agreement; and
|
|
|
(vii)
|
not
take any action, directly or indirectly, that is materially inconsistent
with, or is intended or is likely to interfere with the consummation of,
the Recapitalization, except as required by applicable law or by any stock
exchange rules, by any other regulatory authority having jurisdiction over
the Consenting Noteholder or by any court of competent jurisdiction;
provided that, each Consenting Noteholder may participate in discussions
or negotiations with any Person that are materially inconsistent with, or
are intended or likely interfere with the consummation of, the
Recapitalization, provided that such Consenting Noteholder provides prompt
written communication indicating the identity of any Person engaged in the
discussions or negotiations and all material terms and details thereof,
including all updates and any changes to the material terms and details of
any such discussions or
negotiations.
|
|
|
(d)
|
Upon
the request of FTI or the Monitor from time to time, each Consenting
Noteholder agrees to confirm to FTI or the Monitor its aggregate holdings
of Relevant Notes on a confidential basis. Each Consenting
Noteholder agrees to advise FTI or the Monitor as promptly as reasonably
practicable if it becomes aware (or, in the case of a Consenting
Noteholder whose Relevant Notes are managed by its Investment Advisor, its
Investment Advisor becomes aware) that Supporting Consenting Noteholders
hold less than two-thirds of the aggregate principal amount of outstanding
Notes. FTI or the Monitor will be authorised to disclose to the
Companies from time to time the total percentage of outstanding Notes held
by the Supporting Consenting Noteholders at that time or to advise the
Companies at any time if the Supporting Consenting Noteholders hold less
than two-thirds of the aggregate principal amount of outstanding
Notes.
|
|
5.
|
Companies’
Covenants and Consents
|
|
|
(a)
|
Once
this Agreement has become effective and binding on all of the Parties, the
Companies will, in a timely manner, cause to be issued a press release or
other public disclosure that discloses the material provisions of the
Recapitalization Terms, subject to the terms of Section 7 hereof.
|
|
|
(b)
|
Subject
to any order of the Court, the Companies shall (i) pursue, support and use
commercially reasonable efforts to complete the Recapitalization in good
faith, (ii) do all things that are reasonably necessary and appropriate in
furtherance of, and to consummate and make effective, the
Recapitalization, including, without limitation (A) commencing the
Recapitalization Proceedings on or before October 15, 2009, (B) taking all
steps reasonably necessary and desirable to obtain an order of the Court,
reasonably acceptable in all material respects to the counsel
to
|
- 7 -
|
|
the
Ad Hoc Committee, approving the Plan within the timeframes contemplated by
this Agreement, (C) taking all steps reasonably necessary and desirable to
cause the Plan Implementation Date to occur within the timeframes
contemplated by this Agreement and (D) use commercially reasonable efforts
to satisfy the conditions precedent set forth in the Term Sheet, (iii) as
soon as practicable following the date hereof, in cooperation with the Ad
Hoc Committee and its advisors, make all such filings and seek all such
consents, approvals, permits and authorizations with any Governmental
Entities or third parties whose consent is required in connection with the
Recapitalization and use commercially reasonable efforts to obtain any and
all required regulatory and/or material third party approvals for or in
connection with the Recapitalization and (iv) not take any action,
directly or indirectly, that is materially inconsistent with, or is
intended or is likely to interfere with the consummation of, the
Recapitalization, except as required by applicable law or by any stock
exchange rules, by any other regulatory authority having jurisdiction over
the Companies or by any court of competent jurisdiction; provided that,
the Companies may participate in discussions or negotiations with any
Person that are materially inconsistent with, or are intended or likely to
interfere with the consummation of, the Recapitalization, provided that
the Companies provide prompt written communication indicating the identity
of any Person engaged in the discussions or negotiations and all material
terms and details thereof, including all updates and any changes to the
material terms and details of any such discussions or
negotiations.
|
|
|
(c)
|
The
Companies shall provide draft copies of all motions or applications and
other documents the Companies intend to file with the Court to counsel to
the Ad Hoc Committee at least three days prior to the date when the
Companies intend to file such document (except in exigent circumstances
where the Companies shall provide the documents within such time prior to
the filing as is practicable) and such filings shall be in form and
substance acceptable to the counsel to the Ad Hoc Committee, acting
reasonably. The initial order shall be submitted to the Court
in the form attached as Schedule F and shall be subject to any amendments that are required
by the Court that are acceptable to the Ad Hoc Committee and the Companies
(and, with respect to the directors’ and officers’ charge, the management
directors). The claims procedure order shall be submitted to
the Court substantially in the form attached as Schedule G and shall be subject to any amendments
that are required by the Court that are acceptable to the Ad Hoc Committee
and the Companies.
|
|
|
(d)
|
Following
reasonable advance notice, the Companies shall, to the extent permitted by
law and the terms of any contractual obligation of confidentiality, and
subject to and in accordance with the terms of the applicable Advisor
Confidentiality Agreement or Noteholder Confidentiality Agreement, as the
case may be:
|
|
|
(i)
|
provide
to each Confidentiality Agreement Signatory reasonable access to the data
room established by Canwest Global in connection with the
Recapitalization; and
|
- 8 -
|
|
(ii)
|
make
the officers and legal and financial advisors of the Companies available
on a reasonable basis for any discussions with any Confidentiality
Agreement Signatory.
|
|
|
(e)
|
CMI
shall pay the fees of any legal or financial advisor to the Ad Hoc
Committee within 5 Business Days of the receipt of any invoice from any
such party.
|
|
|
(f)
|
Neither
Canwest Global, CMI, CTLP nor the other CMI Subsidiaries shall participate
in any material discussions with (i) the Canadian Radio-Television
and Telecommunications Commission with respect to the Recapitalization
Transaction, (ii) any of the stakeholders in CW Investments Co. and
the CW Media group of companies with respect to the Recapitalization
Transaction, or (iii) any party (other than legal and financial
advisors to the Companies) with respect to the Recapitalization
Transaction, in each case without providing reasonable notice to the
Consenting Noteholders and an opportunity for a representative from the Ad
Hoc Committee or its legal counsel or financial advisor to participate in
such discussions. Canwest Global, CMI and CTLP 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 Consenting
Noteholders.
|
|
6.
|
Conditions
to Recapitalization
|
The
Recapitalization Transaction, in addition to the conditions set out in the Term
Sheet, shall be subject to the satisfaction of the following conditions prior to
or at the time on which the Recapitalization is implemented, each of which is
for the exclusive benefit of the Consenting Noteholders:
|
|
(a)
|
All
securities of Canwest Global, when issued and delivered in accordance with
the Plan, shall have been duly authorized and shall be validly issued and
shall be fully paid and non-assessable;
and
|
|
|
(b)
|
When
Canwest Global issues and delivers the securities issued and delivered in
accordance with the Plan, such securities shall be offered and sold (i)
pursuant to exemptions from the registration requirements of the United
States Securities Act of 1933, as amended, and of any state securities law
and the respective rules and regulations thereunder, and (ii) pursuant to
exemptions from the prospectus and registration requirements of applicable
Canadian Securities Legislation.
|
|
7.
|
Public
Disclosure
|
|
|
(a)
|
No
press release or other public disclosure concerning the transactions
contemplated herein shall be made by the Companies without the prior
consent of the Ad Hoc Committee (such consent not to be unreasonably
withheld) except as, and only to the extent that, the disclosure is
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
Companies,
|
- 9 -
|
|
or
by any court of competent jurisdiction; provided, however, that the
Companies shall provide the Ad Hoc Committee with a copy of such
disclosure in advance of any release and an opportunity to consult with
the Companies as to the contents and to provide comments thereon; and
provided further that the Companies shall, after providing the Ad Hoc
Committee with copies of the press release or other public disclosure (and
all related documents) in advance and an opportunity to consult with the
Companies as to the contents and permitting the Ad Hoc Committee to
provide comments thereon to the Companies, make prompt disclosure of the
material terms of this Agreement.
|
|
|
(b)
|
Notwithstanding
the foregoing and subject to Section 14, no information with respect to each of the
Consenting Noteholder’s specific ownership of Relevant Notes, the
principal amount of Relevant Notes held by a Consenting Noteholder or the
identity of any individual Consenting Noteholder or its Investment Advisor
shall be disclosed by the Companies, 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 Companies, or by any court of
competent jurisdiction; provided, however, that
the aggregate amount of Relevant Notes held by the Ad Hoc Committee and
the Consenting Noteholders may be
disclosed.
|
|
|
(c)
|
Each
Consenting Noteholder agrees (or, in the case of a Consenting Noteholder
whose Relevant Notes are managed by its Investment Advisor, its Investment
Advisor agrees) that, except as otherwise specified in this Agreement, in
a Noteholder Confidentiality Agreement (or, in the case of a Consenting
Noteholder whose Relevant Notes are managed by its Investment Advisor, in
a confidentiality agreement binding upon the Investment Advisor), prior to
making any public announcement or statement or issuing any press release
or any other public disclosure with respect to this Agreement, the Plan,
the Recapitalization or any negotiations, terms or other facts with
respect thereto, it shall, to the extent practicable under the
circumstances, provide Canwest Global with a copy of such disclosure in
advance of any release and an opportunity to consult with the Ad Hoc
Committee as to the contents and to provide comments thereon; provided,
however, that each of the Companies acknowledges and agrees that whether
or not any revisions to the disclosure will be made as a result of such
comments will be determined solely by the Consenting Noteholder (or, if
applicable, the Investment
Advisor).
|
|
8.
|
Further
Assurances
|
Each
Party shall do all such things in its control, take all such actions as are
commercially reasonable, deliver to the other Parties such further information
and documents and execute and deliver to the other Parties such further
instruments and agreements as another Party shall reasonably request to
consummate or confirm the transactions provided for in this Agreement, to
accomplish the purpose of this Agreement or to assure to the other Party the
benefits of this Agreement (except that this covenant shall not apply to a
Consenting Noteholder whose Relevant Notes are managed by its Investment
Advisor).
- 10 -
|
9.
|
Consenting
Noteholder Termination
Event
|
This
Agreement may be terminated by the delivery to the Companies and the Ad Hoc
Committee of a written notice in accordance with Section 15(p) hereof by Consenting Noteholders holding no less
than a majority of the aggregate principal amount of the Relevant Notes held at
such time by the Consenting Noteholders (unless otherwise provided in this
Section 9), in the exercise of their sole
discretion, upon the occurrence and, if applicable, continuation of any of the
following events:
|
|
(a)
|
failure
of the Companies to commence the Recapitalization Proceedings on or before
October 15, 2009;
|
|
|
(b)
|
failure
of the Companies to file the Plan with the Court within 30 days after the
commencement of the Recapitalization Proceedings, which shall be
materially consistent with this Agreement and otherwise in form and
substance reasonably acceptable to the counsel to the Ad Hoc
Committee;
|
|
|
(c)
|
the
Plan Implementation Date shall not have occurred on or before the Outside
Date;
|
|
|
(d)
|
failure
by any of the Companies to comply in all material respects with, or
default by any of the Companies in the performance or observance of, any
material term, condition, covenant or agreement set forth in this
Agreement, which is not cured within five Business Days after the receipt
of written notice of such failure or
default;
|
|
|
(e)
|
if
any representation, warranty or other statement of any of the Companies
made or deemed to be made in this Agreement shall prove untrue in any
material respect as of the date when
made;
|
|
|
(f)
|
the
issuance of any preliminary or final decision, order or decree by a
Governmental Entity, the making of an application to any Governmental
Entity, or the announcement, threat or commencement of an action or
investigation by any Governmental Entity, in consequence of or in
connection with the Recapitalization Transaction, which restrains, impedes
or prohibits (or if granted could reasonably be expected to restrain,
impede or inhibit), the Recapitalization Transaction or any part thereof
or requires or purports to require a variation of the Recapitalization
Transaction;
|
|
|
(g)
|
if
the Recapitalization Proceedings are dismissed, terminated,
stayed or converted to a proceeding under the Bankruptcy and Insolvency
Act (Canada) or Winding-Up and Restructuring
Act (Canada), unless such dismissal, termination, stay or
conversion, as applicable, is made with the prior written consent of the
counsel to the Ad Hoc Committee;
|
|
|
(h)
|
other
than in relation to Canwest Limited Partnership (“Canwest LP”), its
subsidiaries and its general partner, Canwest (Canada) Inc., the appointment of a
receiver, interim receiver, receiver and manager, trustee in bankruptcy,
liquidator
|
- 11 -
|
|
or
administrator in the Recapitalization Proceedings, unless such appointment
is made with the prior written consent of the counsel to the Ad Hoc
Committee;
|
|
|
(i)
|
the
amendment, modification or filing of a pleading by the Companies seeking
to amend or modify the Plans or any documents related thereto, in a manner
not reasonably acceptable to the counsel to the Ad Hoc
Committee;
|
|
|
(j)
|
if
the Ad Hoc Committee determines, acting reasonably, that the conditions
precedent to the implementation of the Recapitalization set out in the
Term Sheet and herein that are in its favour cannot reasonably be expected
to be satisfied; or
|
|
|
(k)
|
the
occurrence of one or more of the following: (i) a default under any
indebtedness in an amount exceeding $5,000,000 of CW Investments Co. or
any of its subsidiaries; (ii) once appointed, the resignation or
replacement of the chief restructuring advisor (the “Chief Restructuring
Advisor”) or the amendment of any duties of the Chief Restructuring
Advisor (in each case to the extent not approved by the Ad Hoc Committee),
subject to the ability to appoint a new Chief Restructuring Advisor
acceptable to the Ad Hoc Committee within 10 days of a resignation; (iii)
an “Event of Default” as defined in the CIT Credit Agreement; or (iv) an
“Event of Default” as defined in the Cash Collateral Agreement, provided
that an Event of Default arising from a breach of Section 5(b) of the Cash
Collateral Agreement shall not constitute a termination event hereunder,
unless the result of such breach causes another termination
event.
|
If this
Agreement is terminated by the Consenting Noteholders pursuant to this Section
9, this
Agreement shall be automatically and simultaneously terminated as to any other
Party that is a signatory to this Agreement. Notwithstanding any
provision in this Agreement to the contrary, upon the written consent of
Consenting Noteholders holding at least two-thirds of the aggregate principal
amount of the Relevant Notes held at such time by the Consenting Noteholders,
the dates set forth in this Section
9
may be extended prior to or upon each such date and such later dates agreed to
in lieu thereof and shall be of the same force and effect as the dates provided
herein; provided, however, in the event that the Outside Date is extended beyond
May 31, 2010, any Objecting Noteholder that has objected in writing to such
extension of the Outside Date may terminate its obligations under this Agreement
upon five Business Days’ written notice to the other Parties to this
Agreement.
|
10.
|
Companies
Termination Event
|
|
|
(a)
|
This
Agreement may be terminated by the delivery to the Consenting Noteholders
of a written notice in accordance with Section 15(p) by Canwest Global on behalf of the Companies,
in the exercise of its sole discretion, upon the occurrence and
continuation of any of the following
events:
|
|
|
(i)
|
the
issuance of any preliminary or final decision, order or decree by a
Governmental Entity, the making of an application to any Governmental
Entity, or the announcement, threat or commencement of an action or
investigation by any Governmental Entity, in consequence of or in
connection with the Recapitalization Transaction, which
restrains,
|
- 12 -
|
|
impedes
or prohibits (or if granted could reasonably be expected to restrain,
impede or inhibit), the Recapitalization Transaction or any part thereof
or requires or purports to require a variation of the Recapitalization
Transaction;
|
|
|
(ii)
|
if
Canwest Global determines, acting reasonably, that the conditions
precedent to the implementation of the Recapitalization set out in the
Term Sheet and herein that are in its favour cannot reasonably be expected
to be satisfied;
|
|
|
(iii)
|
failure
by any Consenting Noteholder to comply in all material respects with, or
default by any Consenting Noteholder in the performance or observance of,
any covenant or agreement set forth in Section 4(b) or
4(c) of
this Agreement, which is not cured within five Business Days after the
receipt of written notice of such failure or default and which results in
Supporting Consenting Noteholders holding less than two-thirds of the
aggregate principal amount of outstanding Notes; provided that if within
10 Business Days after receipt of such written notice, additional holders
of 8% Notes become Consenting Noteholders pursuant to
Section 15(d), and
including such additional Consenting Noteholders, Supporting Consulting
Noteholders hold at least two-thirds of the aggregate principal amount of
outstanding Notes, a termination right under this Section 10(a)(iii) shall not arise;
or
|
|
|
(iv)
|
if
the Outside Date is extended by more than 30 days after April 15,
2010.
|
If this
Agreement is terminated by the Companies pursuant to this Section
10(a), this
Agreement shall be automatically and simultaneously terminated as to any other
Party that is a signatory to this Agreement.
|
|
(b)
|
This
Agreement may be terminated as to a breaching Consenting Noteholder (the
“Breaching
Noteholder”) only, by the delivery to such Breaching Noteholder of
a written notice in accordance with Section 15(p) by Canwest Global on behalf of the
Companies, in the exercise of its sole discretion and provided that the
Companies are not in default hereunder, upon the occurrence and
continuation of any of the following
events:
|
|
|
(i)
|
failure
by the Consenting Noteholder to comply in all material respects with, or
default by the Consenting Noteholder in the performance or observance of,
any material term, condition, covenant or agreement set forth in this
Agreement which is not cured within five Business Days after the receipt
of written notice of such failure or
default;
|
|
|
(ii)
|
if
any representation, warranty or other statement of the Consenting
Noteholder made or deemed to be made in this Agreement shall prove untrue
in any material respect as of the date when made;
or
|
- 13 -
|
|
(iii)
|
in
the case of a Consenting Noteholder whose Relevant Notes are managed by
its Investment Advisor, if the Consenting Noteholder does not execute the
documents or perform the commercially reasonable acts required by this
Agreement to satisfy its obligations
hereunder.
|
|
11.
|
Mutual
Termination
|
This
Agreement, and the obligations of all Parties hereunder, may be terminated by
mutual agreement between (a) the Companies and (b) the Consenting Noteholders
holding at least two-thirds in principal amount of the Relevant Notes held at
such time by the Consenting Noteholders.
|
12.
|
Effect
of Termination
|
|
|
(a)
|
Upon
termination of this Agreement under Sections
9 (except by an Objecting Noteholder under Section
9),
10(a) or
11, this
Agreement shall be of no further force and effect and each Party hereto
shall be released from its commitments, undertakings, and agreements under
or related to this Agreement, except for the obligations under Sections
7(b),
14 and 15, all of
which shall survive the termination, and each Party shall have the rights
and remedies that it would have had it not entered into this Agreement,
and shall be entitled to take all actions, whether with respect to
the Recapitalization or otherwise, that it would have been entitled to
take had it not entered into this
Agreement.
|
|
|
(b)
|
Upon
termination of this Agreement by the Companies under Section
10(b) or
by an Objecting Noteholder under Sections 9 or
15(n), this
Agreement shall be of no further force and effect with respect to the
Breaching Noteholder or Objecting Noteholder, as applicable, and the
Breaching Noteholder or Objecting Noteholder, as applicable, shall be
released from its commitments, undertakings, and agreements under or
related to this Agreement, except for its obligations under Sections
14 and 15, all of
which shall survive the termination, and it shall have the rights
and remedies that it would have had it not entered into this Agreement,
and shall be entitled to take all actions, whether with respect to the
Recapitalization or otherwise, that it would have been entitled to take
had it not entered into this Agreement. For greater certainty,
any Breaching Noteholder or Objecting Noteholder shall not be entitled to
receive its pro rata share of the Support Agreement Consideration which
would otherwise be payable to it as set out in the Term Sheet, and the pro
rata share of such Breaching Noteholder or Objecting Noteholder shall be
allocated pro rata amongst the Supporting Consenting Noteholders so that
the total amount of the Support Agreement Consideration is paid to all the
Supporting Consenting Noteholders.
|
|
|
(c)
|
Upon
the occurrence of any termination of this Agreement, any and all consents,
tendered prior to such termination by (i) the Consenting Noteholders with
respect to termination pursuant
to Sections 9,
10(a) or
11, (ii)
the Breaching Noteholder(s) with respect to termination pursuant to
Section 10(b), or
(iii) the Objecting Noteholder(s) with respect to termination pursuant to
Sections 9 or
15(n),
shall be deemed, for all purposes, to be null and void from the
first instance
|
- 14 -
|
|
and
shall not be considered or otherwise used in any manner by the Parties in
connection with the Recapitalization and this Agreement or
otherwise.
|
|
13.
|
Termination
Upon the Plan Implementation Date
|
This
Agreement shall terminate automatically without any further required action or
notice on the Plan Implementation Date (immediately following the Effective
Time).
|
14.
|
Confidentiality
|
The
Companies agree, on their own behalf and on behalf of their Representatives, to
maintain the confidentiality of the identity and, to the extent known, specific
holdings of the Consenting Noteholders; provided, however, that such information
may be disclosed: (a) to the Companies’ respective directors, trustees,
executives, officers, auditors, and employees and financial and legal advisors
or other agents (collectively referred to herein as the “Representatives” and
individually as a “Representative”) provided
further that each such Representative is informed of, and agrees to abide by,
this confidentiality provision; and (b) to Persons in response to, and to the
extent required by, (i) any subpoena, or other legal process, including, without
limitation, by the Court or applicable rules, regulations or procedures of the
Court, (ii) any Governmental Entity, or (iii) applicable law. If the
Companies or their Representatives receive a subpoena or other legal process as
referred to above in connection with this Agreement or the Plan, the Companies
shall provide the relevant Consenting Noteholder with prompt written notice of
any such request or requirement, to the extent permissible and practicable under
the circumstances, so that the relevant Consenting Noteholder may (at the
Companies’ expense) seek a protective order or other appropriate remedy or
waiver of compliance with the provisions of this Agreement. Notwithstanding the
provisions in this Section 14 or
elsewhere in this Agreement: (x) the Companies may disclose the identity of a
Consenting Noteholder in any action to enforce this Agreement against such
Consenting Noteholder (and only to the extent necessary to enforce this
Agreement against such Consenting Noteholder); and (y) the Companies may
disclose, to the extent consented to in writing by a Consenting Noteholder (or
by the Consenting Noteholder’s duly authorised advisor), such Consenting
Noteholder’s identity and holdings. Except as set forth in Section
5(a) (and
subject to the terms of Section
7),
nothing in this Agreement shall obligate the Companies to make any public
disclosure of this Agreement, the Recapitalization or the Plan.
|
15.
|
Miscellaneous
|
|
|
(a)
|
Subject
to Section 15(c) hereof, notwithstanding anything herein to
the contrary, this Agreement applies only to the Debt and to
the Consenting Noteholders solely with respect to their legal and
beneficial ownership of, or their investment and voting discretion of,
their Debt (and not, for greater certainty, any other securities, loans or
obligations that may be held, acquired or sold by the Consenting
Noteholders, including any 8% Notes acquired after the date of this
Agreement which are not Relevant Notes) and, without limiting the
generality of the foregoing, shall not apply
to:
|
|
|
(i)
|
any
securities, loans or other obligations that may be held, acquired or sold
by, or any activities, services or businesses conducted or provided by,
any
|
- 15 -
|
|
group
or business unit within or affiliate of any Consenting Noteholder (A) that
has not been involved in and is not acting at the direction of or with
knowledge of the Companies’ affairs provided by any person involved in the
Recapitalization discussions or (B) is on the other side of an information
firewall with respect to the officers, partners and employees of such
Consenting Noteholder who have been working on the Recapitalization and is
not acting at the direction of or with knowledge of the Companies’ affairs
provided by any officers, partners and employees of such Consenting
Noteholder who have been working on the Recapitalization;
or
|
|
|
(ii)
|
any
securities, loans or other obligations that may be beneficially owned by
non-affiliated clients of the Consenting
Noteholders.
|
|
|
(b)
|
|
|
(c)
|
This
Agreement shall in no way be construed to preclude any Consenting
Noteholder from acquiring additional 8% Notes (“Additional
Notes”). If a Consenting Noteholder acquires Relevant
Notes (or, in the case of a Consenting Noteholder whose Relevant Notes are
managed by its Investment Advisor, if the Consenting Noteholder
acquires Relevant Notes through its Investment Advisor) after the date
hereof from another Consenting Noteholder in reliance on clause (i) of
Section 4(b), the
acquiring Consenting Noteholder shall be bound by the terms of this
Agreement in respect of such Relevant Notes. If a Consenting
Noteholder acquires Additional Notes after the date that it becomes a
party hereto that are not Relevant Notes, any and all rights and claims
obtained by such Consenting Noteholder with respect to, on account of or
pursuant to such Additional Notes, including accrued and unpaid
interest and any other amount that such Consenting Noteholder is entitled
to claim pursuant to such Additional Notes under the Plan, shall not be
subject to this Agreement, unless agreed to by the Consenting
Noteholder. In the case of a Consenting Noteholder whose
Relevant Notes are managed by its Investment Advisor, if the Consenting
Noteholder acquires Relevant Notes after the date hereof through an
advisor other than its Investment Advisor, then the exemption in clause
(i) of Section 4(b) shall not
apply.
|
|
|
(d)
|
At
any time, a holder of 8% Notes who is not a Consenting Noteholder may
become a party to this Agreement by executing and delivering to the
Companies a joinder to this Agreement substantially in the form of Schedule E.
|
|
|
(e)
|
The
headings of the Sections of this Agreement have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions
hereof.
|
- 16 -
|
|
(f)
|
Unless
the context otherwise requires, words importing the singular shall include
the plural and vice versa and words importing any gender shall include all
genders.
|
|
|
(g)
|
Unless
otherwise specifically indicated, all sums of money referred to in this
Agreement are expressed in lawful money of
Canada.
|
|
|
(h)
|
This
Agreement (including the Term Sheet, the other schedules attached to this
Agreement, the Cash Collateral Agreement and the other agreements
contemplated by this Agreement or the Term Sheet), together with the
Noteholder Confidentiality Agreements and Advisor Confidentiality
Agreements, constitutes the entire agreement and supersedes all prior
agreements and understandings, both oral and written, among the Parties
with respect to the subject matter
hereof.
|
|
|
(i)
|
The
agreements, representations and obligations of the Companies under this
Agreement are, in all respects, joint and several. The
Companies acknowledge and agree that any waiver or consent that the
Consenting Noteholders may make on or after the date hereof has been made
by the Consenting Noteholders in reliance upon, and in consideration for,
the covenants, agreements, representations and warranties of the Companies
hereunder.
|
|
|
(j)
|
The
agreements, representations and obligations of the Consenting Noteholders
under this Agreement are, in all respects, several (as to the percentage
of the outstanding 8% Notes represented by a Consenting Noteholder’s
Relevant Notes) and not joint and several. Each Consenting
Noteholder acknowledges and agrees that any waiver or consent that the
Companies may make on or after the Companies Execution Date has
been made by the Companies in reliance upon, and in consideration for, the
covenants, agreements, representations and warranties of such Consenting
Noteholder hereunder.
|
|
|
(k)
|
Any
person signing this Agreement in a representative capacity (i) represents
and warrants that he/she is authorized to sign this Agreement on behalf of
the Party he/she represents and that his/her signature upon this Agreement
will bind the represented Party to the terms hereof, and (ii) acknowledges
that the other Parties hereto have relied upon such representation and
warranty.
|
|
|
(l)
|
For
the purposes of the Term Sheet and this Support Agreement, any matter
requiring the consent or approval of the Ad Hoc Committee shall require
(a) the unanimous consent or approval of members of the Ad Hoc Committee,
or (b) if the Ad Hoc Committee has not unanimously consented to or
approved the particular matter, then the consent or approval of Consenting
Noteholders representing at least two-thirds of the aggregate principal
amount of Relevant Notes held by all Consenting
Noteholders. The Companies shall rely on written confirmation
from the counsel to the Ad Hoc Committee that the Ad Hoc Committee has
consented to or approved the particular matter, as required pursuant to
the Term Sheet or the Support
Agreement.
|
- 17 -
|
|
(m)
|
Solely
for the purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Relevant 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 Relevant Notes
then outstanding, Relevant Notes directly or indirectly owned by any of
the Companies or their Affiliates shall be deemed not to be
outstanding.
|
|
|
(n)
|
This
Agreement (including the Recapitalization Terms) may be modified, amended
or supplemented as to any matter by an instrument in writing signed by the
Companies and Consenting Noteholders representing at least two-thirds of
the aggregate principal amount of Relevant Notes held by
all Consenting Noteholders, provided, however, that any Objecting
Noteholder that has objected in writing to any material modification,
amendment or supplement that becomes effective pursuant to this Section
15(n) without their consent may terminate its
obligations under this Agreement upon five Business Days’ written notice
to the other Parties to this
Agreement.
|
|
|
(o)
|
Any
date, time or period referred to in this Agreement shall be of the
essence, except to the extent to which the Parties agree in writing to
vary any date, time or period, in which event the varied date, time or
period shall be of the essence.
|
|
|
(p)
|
All
notices and other communications which may be or are required to be given
pursuant to any provision of this Agreement shall be given or made in
writing and shall be deemed to be validly given if served personally or by
facsimile transmission, in each case addressed to the particular
Party:
|
|
|
(i)
|
If
to the Companies, at:
|
31xx
Xxxxx
Xxxxxxx
Xxxxxx Xxxxx
200
Xxxxxxx Xxx
Xxxxxxxx,
Xxxxxxxx X0X 0X0
Attention: General
Counsel
Facsimile: 000-000-0000
- 18 -
With a
required copy by email or fax (which shall not be deemed notice)
to:
Osler,
Hoxxxx & Xxxxxxxx XXX
Xxx
00
1 First
Canadian Place
Toronto,
Ontario M5X 1B8
Attention: Xxxxxx
Xxxxxxx
Email:
xxxxxxxx@xxxxx.xxx
Facsimile:
000-000-0000
|
|
(ii)
|
If
to the Consenting Noteholders (or its Investment Advisor), at the address
set forth for each Consenting Noteholder (or its Investment Advisor) at
the address shown for it beside its
signature.
|
With a
required copy by email or fax (which shall not be deemed notice)
to:
Goodmans
LLP
250 Xxxxx
Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxxx
Xxxxxxxx
Email:
xxxxxxxxx@xxxxxxxx.xx
Facsimile:
000-000-0000
or at
such other address of which any Party may, from time to time, advise the other
Parties by notice in writing given in accordance with the foregoing. The date of
receipt of any such notice shall be deemed to be the date of delivery or
transmission thereof.
|
|
(q)
|
If
any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent
possible.
|
|
|
(r)
|
This
Agreement shall be binding upon and enure to the benefit of the Parties
hereto and each of their respective successors, assigns, heirs and
personal representatives, provided that no Party may assign, delegate or
otherwise transfer any of its rights, interests or obligations under this
Agreement without the prior written consent of the other Parties hereto,
except that a Consenting Noteholder
is
|
- 19 -
|
|
permitted
to assign, delegate or otherwise transfer any of its rights, interests or
obligations under this Agreement as set forth in Section 4(b).
|
|
|
(s)
|
This
Agreement shall be governed by and construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada applicable
therein, without regard to principles of conflicts of law. Each
Party submits to the jurisdiction of the courts of the Province of Ontario
in any action or proceeding arising out of or relating to this
Agreement.
|
|
|
(t)
|
The
Parties waive any right to trial by jury in any proceeding arising out of
or relating to this Agreement or any of the transactions contemplated by
this Agreement, present or future, and whether sounding in contract, tort
or otherwise. Any Party may file a copy of this provision with any court
as written evidence of the knowing, voluntary and bargained for agreement
between the Parties irrevocably to waive trial by jury, and that any
proceeding whatsoever between them relating to this Agreement or any of
the transactions contemplated by this Agreement shall instead be tried by
a judge or judges sitting without a
jury.
|
|
|
(u)
|
It
is understood and agreed by the Parties that money damages would be an
insufficient remedy for any breach of this Agreement by any Party and each
non-breaching Party shall be entitled to specific performance and
injunctive or other equitable relief as a remedy of any such breach
including, without limitation, an order of the Court or other court of
competent jurisdiction requiring any Party to comply promptly with any of
its obligations hereunder.
|
|
|
(v)
|
All
rights, powers, and remedies provided under this Agreement or otherwise in
respect hereof at law or in equity shall be cumulative and not
alternative, and the exercise of any right, power, or remedy thereof by
any Party shall not preclude the simultaneous or later exercise of any
other such right, power, or remedy by such
Party.
|
|
|
(w)
|
Unless
expressly stated herein, this Agreement shall be solely for the benefit of
the Parties, and no other person or entity shall be a third-party
beneficiary hereof.
|
|
|
(x)
|
This
Agreement may be signed in counterparts, each of which, when taken
together, shall be deemed an original. Execution of this Agreement is
effective if a signature is delivered by facsimile transmission or
electronic (e.g., pdf)
transmission.
|
[Remainder of this page intentionally
left blank; next page is signature page]
SCHEDULE A
CMI
SUBSIDIARIES
30109,
LLC
4501063
Canada Inc.
4501071
Canada Inc.
Canwest
Finance Inc./Financière Canwest Inc.
Canwest
Global Broadcasting Inc./Radiodiffusion Canwest Global Inc.
Canwest
International Communications Inc.
Canwest
International Distribution Limited
Canwest
International Management Inc.
Canwest
Ireland Nominee Limited
Canwest
Irish Holdings (Barbados) Inc.
Canwest
Media Inc., as general partner on behalf of The National Post Company/La
Publication National Post
Canwest
Mediaworks Ireland Holdings
Canwest
Mediaworks Turkish Holdings (Netherlands) B.V.
Canwest
Mediaworks (US) Holdings Corp.
Canwest
Television GP Inc.
Canwest
Television Limited Partnership, as general partner on behalf of Fox Sports World
Canada Partnership, 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.
Fox
Sports World Canada Partnership
Fox
Sports World Canada Holdco Inc.
Fox
Sports World Canada Holdco Inc., as general partner on behalf of Fox Sports
World Canada Partnership
Global
Centre Inc.
MBS
Productions Inc.
Multisound
Publishers Ltd.
National
Post Holdings Ltd.
National
Post Holdings Ltd., as general partner on behalf of The National Post Company/La
Publication National Post
The
National Post Company/ La Publication National Post
Western
Communications Inc.
Yellow
Card Productions Inc.
SCHEDULE B
RECAPITALIZATION
TERM SHEET
See
attached.
PRIVILEGED AND
CONFIDENTIAL
CANWEST
GLOBAL COMMUNICATIONS CORP.
AND
RECAPITALIZATION
TRANSACTION TERM SHEET
|
RE:
|
8.0%
Senior Subordinated Notes due 2012 issued by Canwest Media Inc.
(collectively, the “Notes”, and the holders
of such Notes, collectively, the “Noteholders”, and the
indenture under which the Notes were issued by Canwest Media Inc., as
amended, modified or supplemented prior to the date hereof, the “Indenture”).
|
The
purpose of this Term Sheet is to set out the principal terms of a proposed
Recapitalization Transaction (defined below) of Canwest Global Communications
Corp. (“Canwest
Global”), Canwest Media Inc. (“CMI”), Canwest Television
Limited Partnership (“CTLP”) and certain of their
respective subsidiary entities (but specifically excluding Canwest Limited
Partnership and its subsidiaries1, CW Investments Co. and its subsidiaries and
Ten Network Holdings Limited and its subsidiaries) (collectively, the “Canwest Group”). Schedule “A”
of this Term Sheet includes a corporate chart of the Canwest Group following
completion of the Recapitalization Transaction. The purpose of the
Recapitalization Transaction is, among other things, to restructure CMI into a
viable and competitive industry participant able to deal with the current issues
facing the broadcasting industry and other competitive factors.
This Term
Sheet is a summary of the terms and conditions of the Recapitalization
Transaction. This Term Sheet does not create any obligations on the
part of Canwest Global, CMI or any of their respective subsidiaries, any
Noteholder or any other person, until such party has executed a support
agreement (the “Support
Agreement”) attaching this Term Sheet and such Support Agreement has
become effective and binding on such party in accordance with its terms, at
which time this Term Sheet shall be binding upon such party. Certain
matters described herein may be subject to the negotiation, execution and
delivery of definitive documentation.
This Term
Sheet shall not constitute an offer to sell, buy or exchange into, nor the
solicitation of an offer to sell, buy or exchange into, any of the securities or
instruments referred to herein. Furthermore, until a party has
executed a Support Agreement attaching this Term Sheet and such Support
Agreement has become effective and binding upon such party in accordance with
its terms, nothing herein constitutes a commitment to exchange any debt, lend
funds to Canwest Global, CMI or any of their respective subsidiaries, vote debt
in a certain way, or negotiate, agree to or otherwise engage in the transactions
described herein.
All
dollar amounts expressed herein are in Canadian dollars except as specifically
noted otherwise.
|
1
|
Any
reference to “Canwest Limited Partnership and its subsidiaries” or
“Publishing LP and its subsidiaries” shall include Canwest (Canada) Inc.
(the general partner of Canwest Limited
Partnership).
|
- 2 -
A. RECAPITALIZATION
TRANSACTION
|
1.
|
Summary
|
The
Noteholders’ claims pursuant to the Notes and the Indenture shall be addressed
in accordance with the transactions described in this Term Sheet (collectively,
the “Recapitalization
Transaction”), which shall be approved or implemented as part of a plan
of arrangement (the “Plan”) to be filed pursuant to
the Companies’ Creditors
Arrangement Act (the “CCAA”) and approved and
sanctioned by the Ontario Superior Court of Justice (the “Court”) pursuant to a Court
Order (the “Sanction
Order”). Canwest Mediaworks Ireland Holdings (“Irish Holdco”) will not be a
party to the CCAA filing.
|
2.
|
Certain
Steps
|
As part
of the Recapitalization Transaction:
|
|
(i)
|
the
proceeds of the shares of Ten Network Holdings Limited (“Ten Network”) that were
held by Irish Holdco and subject to the equitable mortgage held by CIBC
Mellon Trust Company (collectively, the “Irish Holdco Ten
Shares”) and that have been sold have been applied as set forth in
the Use of Cash Collateral and Consent Agreement entered into by, among
others, CMI, Canwest Global and certain of the Noteholders dated as of
September 23, 2009 (the “Cash Collateral
Agreement”);
|
|
|
(ii)
|
the
Class B Subordinated Voting Shares and Non-Voting Shares, together as a
stapled security, and the Class A Subordinated Voting Shares of a
restructured Canwest Global will be listed on the Toronto Stock Exchange
(the “TSX”) or,
subject to compliance with applicable laws and obtaining any necessary or
desirable regulatory or third party approvals or consents, a
new TSX listed company will be formed (such restructured or new company is
referred to in this Term Sheet as “Restructured Canwest
Global”); and
|
|
|
(iii)
|
Restructured
Canwest Global will issue to affected creditors (including the
Noteholders) and existing shareholders of Canwest Global either Class A
Subordinated Voting Shares or Non-Voting Shares and Class B Subordinated
Voting Shares, together as a stapled security, in the capital of
Restructured Canwest Global, as described more fully below; provided that
the foregoing is at all times in compliance with the Canadian ownership
and control requirements as contained in the Direction to the CRTC
(Ineligibility of Non-Canadians) (the “Direction”) and subject
to the prior approval of the Canadian Radio-television and
Telecommunications Commission (the “CRTC”), as
applicable.
|
|
3.
|
Other
Investors in Restructured Canwest
Global
|
One or
more Canadians (as defined in the Direction) (the “New Investors”) will subscribe
for (the “New
Investment”) Class A Subordinated Voting Shares in the capital of
Restructured Canwest Global or a combination of Class A Subordinated Voting
Shares and Multiple Voting
- 3 -
Shares,
in each case, representing an equity interest in Restructured Canwest Global
that is acceptable to CMI and the Ad Hoc Committee.
The
Multiple Voting Shares, if any, and Class A Subordinated Voting Shares in the
capital of Restructured Canwest Global will be owned by the New Investors (and,
in the case of the Class A Subordinated Voting Shares, affected creditors
(including the Noteholders) and existing shareholders of Canwest Global that are
Canadians (as defined in the Direction)) and will, collectively, represent a 66
2/3% voting interest in Restructured Canwest Global. The Non-Voting Shares and
Class B Subordinated Voting Shares in the capital of Restructured Canwest Global
will be owned by affected creditors (including the Noteholders) and existing
shareholders of Canwest Global that are not Canadians (as defined in the
Direction) and will represent a 33 1/3% voting interest in Restructured Canwest
Global.
|
4.
|
Application
of Proceeds from Sale of Irish Holdco
Shares
|
All of
the net proceeds of the sale of the Irish Holdco Ten Shares (the “Ten Proceeds”) have been
loaned to CMI and applied by CMI as follows: (i) as to the amount of $85
million, to fund ongoing liquidity requirements of CMI and/or CTLP (including
temporarily repaying the amount outstanding under the CIT Facility), (ii) to
repay in full the Existing Senior Notes and (iii) as to the balance,
to make a payment to the trustee under the Indenture (the “Trustee”) on behalf of the
Noteholders, all in the manner set forth in the Cash Collateral Agreement (as
defined below).
The
portion of the Ten Proceeds referred to in (i) and (ii) above are evidenced by a
secured promissory note (the “Secured Intercompany Note”)
and the portion of the Ten Proceeds referred to in (iii) above is evidenced by
one or more unsecured promissory notes (the “Unsecured Promissory
Note”). The proceeds of the New Investment described in
section A.3 above,
together with cash on hand or an amount drawn under the emergence asset based
loan facility referred to in Section A.10, shall be used to repay $85 million of
the Secured Intercompany Note, to Irish Holdco and, having regard to the
guarantee of the Notes by Irish Holdco, the proceeds of such repayment shall be
used by Irish Holdco to redeem $85 million of the preferred shares held by CMI
and CMI shall forthwith pay $85 million to the Trustee (on behalf of the
Noteholders).
|
5.
|
Affected
Claims
|
The
procedure for determining the validity and amount of affected creditors’ claims
against Canwest Global, CMI and CTLP for purposes of voting and receiving
distributions under the Plan will be governed by an order of the Court in the
CCAA proceedings (the “Claims
Procedure Order”), which order shall be satisfactory to Canwest Global,
CMI, CTLP and the ad hoc committee of Noteholders (the “Ad Hoc
Committee”).
As part
of the Recapitalization Transaction:
|
|
(i)
|
affected
creditors of Canwest Global and CMI with claims against Canwest Global or
CMI accepted for purposes of receiving distributions under the Plan
(“CMI Proven Distribution
Claims”) shall have such claims valued for purposes of receiving
distributions under the Plan on the basis of the amount of each such claim
relative to the total CMI Proven Distribution Claims (such percentage for
any particular affected creditor is referred to as the affected creditor’s
“CMI Percentage”),
affected creditors of CTLP with claims against CTLP accepted for purposes
of receiving distributions under the Plan (“CTLP Proven Distribution
Claims”) shall have such claims valued for purposes of receiving
distributions under the Plan on the basis of the amount of each such claim
relative to the total CTLP Proven
|
- 4 -
|
|
(ii)
|
Distribution
Claims (such percentage for any particular affected creditor is referred
to as the affected creditor’s “CTLP
Percentage”),
|
|
|
(iii)
|
subject
to any Convenience Class Claims (as defined below), an affected creditor
with one or more CMI Proven Distribution Claims shall, in full
satisfaction of such CMI Proven Distribution Claims, receive that
percentage of the outstanding equity shares (as defined below) of
Restructured Canwest Global as of the Effective Time (as defined below)
(but excluding for such purposes any equity shares issued to the New
Investors and to certain of the Noteholders pursuant to section
C.5)
equal to the product obtained by multiplying such affected
creditor’s CMI Percentage by the amount obtained by dividing $109 million
by $283 million,
|
|
|
(iv)
|
subject
to any Convenience Class Claims (as defined below), an affected creditor
with one or more CTLP Proven Distribution Claims shall, in full
satisfaction of such CTLP Proven Distribution Claims, receive that
percentage of the outstanding equity shares of Restructured Canwest Global
as of the Effective Time (as defined below) (but excluding for such
purposes any equity shares issued to the New Investors and to certain of
the Noteholders pursuant to section
C.5)
equal to the product obtained by multiplying such affected
creditor’s CTLP Percentage by the amount obtained by dividing $129 million
by $283 million,
|
|
|
(v)
|
the
trustee under the Indenture, on behalf of the Noteholders
as beneficiaries of a guarantee of the Notes by Irish Holdco,
shall, having regard for the guarantee of the Notes by Irish Holdco and
having regard to the Secured Intercompany Note, receive that percentage of
the outstanding equity shares of Restructured Canwest Global as of the
Effective Time (but excluding for such purposes any equity shares issued
to the New Investors, to existing shareholders pursuant to section
A.6 and to certain of the Noteholders pursuant to section
C.5)
equal to the amount obtained by dividing $45 million by $283
million, and
|
|
|
(vi)
|
notwithstanding
any legal rights or entitlements of the Noteholders or the
Trustee and strictly for the purposes of the Recapitalization Transaction
contemplated by this Term Sheet, for purposes of receiving distributions
of CMI under the Plan, having regard for the guarantee of the Notes by
Irish Holdco and the Secured Intercompany Note and the Unsecured
Promissory Note, CMI Proven Distribution Claims of the Noteholders shall
be agreed to be an amount of US$761 million in aggregate, together
|
- 5 -
|
|
with
accrued interest on the Notes up to and including the date of filing under
the CCAA; and for purposes of receiving distributions of CTLP under the
Plan only, CTLP Proven Distribution Claims of the Noteholders shall be
agreed to be an amount of $800
million.
|
Under the
Plan, the claims of (i) each affected creditor with CMI Proven Distribution
Claims or CTLP Proven Distribution Claims of $5,000 (such specified
amount, in the case of CMI Proven Distribution Claims, is referred to as the
“CMI Maximum Amount” and
in the case of CTLP Proven Distribution Claims, is referred to as the “CTLP Maximum Amount”) or less
and (ii) each affected creditor with CMI Proven Distribution Claims or CTLP
Proven Distribution Claims in excess of the CMI Maximum Amount or CTLP Maximum
Amount, respectively, but who has elected to value such claims at the CMI
Maximum Amount or CTLP Maximum Amount, as the case may be, for purposes of the
Plan (collectively “Convenience
Class Claims”) shall be valued for purposes of voting on the Plan and, if
applicable, receiving distributions under the Plan at an amount equal to the
lesser of (a) the CMI Maximum Amount or the CTLP Maximum Amount, as the case may
be, and (b) the value of the applicable CMI Proven Distribution Claim or CTLP
Proven Distribution Claim. Each affected creditor holding one or more CMI Proven
Distribution Claims or CTLP Proven Distribution Claims that are Convenience
Class Claims will receive a cash payment equal to the lesser of (A) the CMI
Maximum Amount or the CTLP Maximum Amount, as applicable and (B) the value of
such creditor’s CMI Proven Distribution Claims or CTLP Proven Distribution
Claims, as the case may be, in full and final satisfaction of such claims and
each such creditor shall be deemed to have voted in favour of the
Plan.
The
percentage of the outstanding shares of Restructured Canwest Global to be issued
to the affected creditors pursuant to sub-paragraphs (iii) and (iv) of this
section A.5 shall be diluted by the issuance of shares of
Restructured Canwest Global to the New Investors and pursuant to the provisions
of section C.5.
The
percentage of the outstanding shares of Restructured Canwest Global to be issued
to the affected creditors pursuant to sub-paragraph (v) of this section
A.5 shall be diluted by the issuance of shares of
Restructured Canwest Global to the New Investors, to existing shareholders
pursuant to section A.6 and pursuant to the provisions of section
C.5.
Each
affected creditor holding one or more proven voting claims will be entitled to
vote on the Plan based on the aggregate amount of its proven voting claims as
stipulated by the Claims Procedure Order.
The Plan
shall provide for the following two classes of creditors: (i) affected creditors
with CMI Proven Distribution Claims and (ii) affected creditors with CTLP Proven
Distribution Claims.
Claims
against entities other than Canwest Global, CMI and CTLP, including any of the
Canwest Subsidiaries (as defined below), will be dealt with in an equitable
manner having regard to the assets and liabilities of each such
entity.
For purposes
of the Recapitalization Transaction only, and provided the condition in section
B(y) is
satisfied, notwithstanding any legal rights or entitlements of the
Noteholders, intercompany claims among the Canwest Group (including, without
limitation, claims against CMI by Canwest International Communications Inc.,
Canwest Irish Holdings (Barbados) Inc. and Irish
Holdco),
- 6 -
other
than claims by CMI against CTLP or vice versa, shall be excluded for purposes of
receiving distributions under the Plan.
If either
CMI or CTLP is entitled to receive shares of Restructured Canwest Global
pursuant to section A.5(iii) or
A.5(iv),
respectively, such shares shall instead be distributed to the creditors of CMI
or CTLP, as the case may be, pro rata, based on each such creditor’s CMI Proven
Distribution Claim or CTLP Proven Distribution Claim.
Amounts
owing between Canwest Global and one or more of its subsidiaries or between
subsidiaries of Canwest Global that have arisen in accordance with the terms and
conditions of any arrangement or agreement for the provision of services between
CMI and/or its subsidiaries and Canwest Limited Partnership and/or its
subsidiaries as of the date of the Support Agreement or past practice will be
settled monthly.
On the
Plan Implementation Date, Restructured Canwest Global shall release the
guarantees of the Canwest Subsidiaries under the Notes after acquiring such
claims.
In
connection with the Plan, the CMI Percentages and CTLP Percentages shall be
calculated to the fourth decimal place.
For
purposes of this Term Sheet, “affected creditors” means those creditors whose
claims are compromised under the Plan and include, for greater certainty, the
Noteholders. For greater certainty, the CIT Facility (defined below) shall be an
unaffected obligation under the Plan and CIT shall, in respect of such
obligation, be an unaffected creditor.
|
6.
|
Existing
Shareholders
|
Existing
shareholders of Canwest Global who are not Canadians as defined in the Direction
will, in exchange for their existing shares in the capital of Canwest Global, be
issued Non-Voting Shares and Class B Subordinated Voting Shares in the capital
of Restructured Canwest Global. Existing shareholders of Canwest Global who are
Canadians as defined in the Direction will, in exchange for their existing
shares in the capital of Canwest Global, be issued Class A Subordinated Voting
Shares in the capital of Restructured Canwest Global. The shares issued to
existing shareholders pursuant to this section shall represent, in the
aggregate, an equity interest in Restructured Canwest Global having a value of
2.3% of the outstanding equity shares. Such shares will be issued on
a pro rata basis, based on the number of shares owned by each existing
shareholder and, for greater certainty, without taking into account the number
of votes attributed to each such share.
|
7.
|
Repayment
of Existing Senior Secured Indebtedness of
CMI
|
On
completion of the Recapitalization Transaction, the senior secured debt facility
of CMI (the “CIT
Facility”) in an available amount of approximately $100 million, will be
(i) extended by way of an emergence asset backed loan facility entered into by
CIT Business Credit Canada Inc. (“CIT”) of approximately $100
million or such other amount as agreed to by CIT, the Ad Hoc
Committee and CMI, which shall be secured by a first ranking security interest
over all of the assets of CMI and CTLP on terms acceptable to CIT, CMI and the
Ad Hoc Committee, as contemplated by the indicative term sheet provided by CIT
to CMI and the Ad Hoc Committee, or (ii) replaced by a new asset backed or other
form of loan facility entered into with a third party
- -
lender,
which shall be secured by a first ranking security interest over all of the
assets of CMI and CTLP on terms acceptable to CMI and the Ad Hoc
Committee.
8.
Repayment of Existing Senior Notes
The 12%
senior secured notes of CMI issued on May 22, 2009 (the “Existing Senior Notes”) have
been repaid in full by CMI with a portion of the proceeds of the loan from Irish
Holdco evidenced by the Secured Intercompany Note.
|
9.
|
Liquidity
and Emergence Funding Matters
|
Overall
liquidity for the restructured business and emergence costs will be funded
through the CIT Facility.
|
10.
|
Sources
and Uses of Funds
|
The
following table outlines the sources and uses of funds in connection with the
Recapitalization Transaction:
|
Sources
|
Amount
|
Uses
|
|
(i)
CIT Facility shall have extended by way of an emergence ABL facility
secured by all of the assets of CMI and CTLP on terms acceptable to CMI,
CIT and the Ad Hoc Committee or (ii) a new asset backed loan facility will
be entered into secured by a first ranking priority over the assets of CMI
and CTLP on terms acceptable to CMI and the Ad Hoc
Committee
|
$100
million (or such other amount agreed to by CIT, the Ad Hoc
Committee and CMI)
|
Repayment
of CIT Facility and, if applicable, partial repayment of the Secured
Intercompany Note
|
|
Retention
of a portion of the Ten Proceeds to be loaned to CMI by Irish
Holdco.
|
$190
million
|
Prepayment
of Existing Senior Notes and funding emergence matters and
liquidity
|
|
Investment
by New Investors
|
Minimum
of $65 million
|
Partial
repayment of the Secured Intercompany
Note
|
|
11.
|
Description
of Restructured Canwest Global
Shares
|
The share
capital of Restructured Canwest Global will be comprised of the following four
classes of shares:
|
|
(i)
|
Multiple
Voting Shares, if any, issued to the New
Investors,
|
|
|
(ii)
|
Class
A Subordinated Voting Shares issued to the New
Investors, affected creditors and existing shareholders of
Canwest Global that are Canadians within the meaning of the
Direction,
|
- 8 -
|
|
(iii)
|
Non-Voting
Shares issued to affected creditors and existing shareholders of Canwest
Global that are not Canadians within the meaning of the Direction,
and
|
|
|
(iv)
|
Class
B Subordinated Voting Shares issued to affected creditors and existing
shareholders of Canwest Global that are not Canadians within the meaning
of the Direction.
|
For
purposes of this Term Sheet, “equity shares” refer to, collectively, the
Multiple Voting Shares, the Class A Subordinated Voting Shares and the
Non-Voting Shares.
|
B.
|
CONDITIONS
TO RECAPITALIZATION
|
The
Recapitalization Transaction shall be subject to the satisfaction of the
following conditions prior to or at the time on which the Recapitalization
Transaction is implemented (the “Effective Time”), each of
which is for the exclusive benefit of the Noteholders and may be waived by the
Ad Hoc Committee, on behalf of the Noteholders; provided, however that the
conditions in sub-paragraphs (a), (c), (e), (f), (g), (h), (j), (l) (n), (o) (p),
(q), (r), (t), (v), (z), (dd) and
(ee) shall
also be for the benefit of CMI and, if not satisfied on or prior to the
Effective Time, can only be waived by both CMI and the Ad Hoc
Committee:
|
|
(a)
|
the
Plan, Sanction Order and the new (or amended) articles, by-laws and other
constating documents of Restructured Canwest Global, as applicable, and
all definitive legal documentation in connection with all of the foregoing
shall be in a form agreed by CMI and the Ad Hoc
Committee;
|
|
|
(b)
|
there
shall not exist or have occurred any default or event of default (other
than those defaults or events of default that are remedied or waived and
other than an event of default arising from a breach of Section 5(b) of
the Cash Collateral Agreement which does not result in another event of
default) under the CIT Facility or the Cash Collateral
Agreement;
|
|
|
(c)
|
the
Plan shall have been approved by the Court and the Sanction Order shall be
in full force and effect and the transactions contemplated by the Plan
shall have been consummated;
|
|
|
(d)
|
there
shall not exist or have occurred any orders or other matters in the CCAA
proceedings relating to the Recapitalization Transaction, which, in the
view of the Ad Hoc Committee, could reasonably be expected to have a
material adverse effect on the Recapitalization
Transaction;
|
|
|
(e)
|
all
filings under applicable laws shall have been made and any material
regulatory consents or approvals that are required in connection with the
Recapitalization Transaction shall have been obtained, including without
limitation, under the Broadcasting Act
(Canada) in the form of a final non-appealable decision on terms
satisfactory to CMI and the Ad Hoc Committee, and, in the case of waiting
or suspensory periods, shall have expired or been
terminated;
|
- 9 -
|
|
(f)
|
there
shall not be in effect any preliminary or final decision, order or decree
by a government, government authority, court or public authority and no
application shall have been made to any government, government authority,
court or public authority, or action or investigation shall have been
announced, threatened or commenced by any government, government
authority, court or public authority, in consequence of or in connection
with the Recapitalization Transaction, which restrains,
impedes or prohibits (or if granted could reasonably be expected to
restrain, impede or inhibit), the Recapitalization Transaction or any part
thereof or requires or purports to require a variation of the
Recapitalization
Transaction;
|
|
|
(g)
|
the
listing and posting of the Class B Subordinated Voting Shares and
Non-Voting Shares, together as a stapled security, and the Class A
Subordinated Voting Shares of Restructured Canwest Global on the TSX shall
have been approved by the TSX, subject only to standard listing conditions
and the separate listing (but not posting) of each of the Class B
Subordinated Voting Shares and Non-Voting Shares of Restructured Canwest
Global shall have been approved by the TSX subject only to standard
listing conditions;
|
|
|
(h)
|
Restructured
Canwest Global shall be a “reporting issuer” under applicable Canadian
provincial securities laws and the equity shares of Restructured Canwest
Global to be issued pursuant to this Term Sheet shall be issued, offered
and sold pursuant to exemptions from the prospectus and registration
requirements of applicable Canadian provincial securities laws and the
registration requirements of U.S. securities laws and shall not be subject
to any hold period or restrictions on resale (unless part of a control
block or otherwise held by an affiliate (as such term is defined under
Rule 144 promulgated under the United States Securities Act of 1933, as
amended)) under Canadian provincial and U.S. securities
laws;
|
|
|
(i)
|
no
more than 18.5% of the outstanding equity shares of Restructured Canwest
Global as of the Effective Time shall be issuable to affected creditors
(other than the Noteholders and the Trustee) with respect to the
conversion of any compromised claims pursuant to section A.5 above;
|
|
|
(j)
|
the
CIT Facility shall have been extended or replaced pursuant to section
A.7 above;
|
|
|
(k)
|
the
Secured Intercompany Note shall have been repaid in cash as to $85 million
and such amount shall have been distributed to the Trustee (on behalf of
the Noteholders);
|
|
|
(l)
|
the
terms and conditions of any arrangement or agreement for the provision of
services between CMI and/or its subsidiaries and Canwest Limited
Partnership (“Publishing
LP”) and/or its subsidiaries, including any services provided by
Publishing LP and/or its subsidiaries to CMI and/or its subsidiaries, as
of the Effective Time, either in their current form or as amended or
replaced (including as replaced by an arrangement with a third party
provider other than Publishing LP and/or its subsidiaries), in each case,
shall be satisfactory in all respects to the Ad Hoc Committee and CMI, and
there shall have been no material adverse
effect
|
- -
|
|
|
on
CMI’s operations in connection with the disposition, recapitalization or
restructuring of Publishing LP;
|
|
|
(m)
|
no
CRTC tangible benefits shall have become assessed or payable in connection
with, relating to, or arising from the Recapitalization
Transaction;
|
|
|
(n)
|
the
exit budget and all emergence costs (including, without limitation, as to
individual amounts, the aggregate amount and uses) shall have been agreed
to by CMI and the Ad Hoc Committee;
|
|
|
(o)
|
any
Court imposed charge on the assets and property of Canwest Global or any
of its subsidiaries (other than Publishing LP and its subsidiaries,
National Post Holdings Ltd., National Post Company, CW Investments Co. and
its subsidiaries and Ten Network Holdings Limited and its subsidiaries)
(collectively, the “Canwest Subsidiaries”),
including without limitation, any administration charge or directors and
officers’ charge in connection with the CCAA proceedings shall have been
agreed to by CMI, the management directors (with respect to the directors
and officers charge) and the Ad Hoc Committee and shall have been fully
and irrevocably discharged and
released;
|
|
|
(p)
|
the
terms and conditions with respect to any release and discharge of the
court ordered charges in (o) above shall have been satisfactory to CMI,
the management directors (with respect to the directors and officers
charge) and the Ad Hoc Committee;
|
|
|
(q)
|
a
definitive agreement in respect of the transfer of the business operated
by the National Post (together with all related liabilities and
obligations (excluding for greater certainty a net intercompany payable of
approximately $137 million)) to the Publishing LP shall have entered into
on terms agreed to by CMI and the Ad Hoc Committee by no later than
October 15, 2009;
|
|
|
(r)
|
the
New Investment in an amount of at least $65 million shall have been
completed on terms acceptable to CMI and the Ad Hoc Committee and shall
have been used as partial repayment of the Secured Intercompany
Note;
|
|
|
(s)
|
Canwest
Global and CMI shall have entered into the Plan Emergence Agreement (as
defined below) on or prior to the date that is 21 days prior to the
meeting of creditors in respect of the
Plan;
|
|
|
(t)
|
each
of the claims process, claims order, meetings order, Plan, disclosure
documents, company sanction material and Sanction Order shall have been in
a form agreed in advance by CMI and the Ad Hoc
Committee;
|
|
|
(u)
|
there
shall be no liabilities or contingent liabilities of Canwest Global or the
Canwest Subsidiaries in respect of any registered pension plans, except
for those registered pension plans sponsored or administered by any of
Canwest Global or the Canwest Subsidiaries and any multi-employer pension
plans in which Canwest Global or the Canwest Subsidiaries are required to
contribute pursuant to a collective bargaining
agreement;
|
- 11 -
|
|
(v)
|
Restructured
Canwest Global shall, at the Effective Time, own directly or indirectly, a
minimum of 35.33% of the outstanding shares of CW Investments Co. and CW
Investments Co. shall, at the Effective Time, own substantially all of the
assets that it owns as at the date of the Support
Agreement;
|
|
|
(w)
|
the
representations and warranties of Canwest Global and CMI set forth in this
Term Sheet and in the Support Agreement shall be true and correct in all
material respects at the Effective Time with the same force and effect as
if made at and as of such time except as such representations and
warranties may be affected by the occurrence of events or transactions
contemplated and permitted by the Support Agreement or this Term Sheet and
except that representations and warranties that are given as of a
specified date shall be true and correct in all material respects as of
such date;
|
|
|
(x)
|
there
shall not exist or have occurred any Material Adverse
Effect. The term “Material Adverse Effect” shall mean a fact,
circumstance, change, effect, matter, action, condition, event, occurrence
or development that, individually or in the aggregate, is, or would
reasonably be expected to be, material and adverse to the business,
affairs, results of operations or financial condition of Canwest Global
and the Canwest Subsidiaries (taken as a whole) and shall include, without
limitation, any disposition by Canwest Global or any of the Canwest
Subsidiaries of any material asset (other than as contemplated by this
term sheet) without the prior consent of the Ad Hoc Committee; provided
that a Material Adverse Effect will not include the entering into of the
Support Agreement (including this Term Sheet) or the performance of its
terms, or the fact that Canwest Global and certain of the Canwest
Subsidiaries are insolvent and/or have filed under the CCAA pursuant to,
and in the manner contemplated by, this Term Sheet and provided further
that a Material Adverse Effect shall not include the termination of any
material contracts relating to the E Network in connection with the sale
or closure of the E Stations;
|
|
|
(y)
|
|
|
(z)
|
the
Amended and Restated Shareholders Agreement relating to CW Investments
Co., as amended and restated as of January 4, 2008, and the agreements
contemplated therein shall have been amended and restated or otherwise
addressed in a manner agreed to by CMI and the Ad Hoc Committee, subject
to CRTC approval, if required;
|
|
|
(aa)
|
the
events set forth in section C.9 shall have occurred on or before the
corresponding dates indicated in such
section;
|
|
|
(bb)
|
the
size and composition of the board of directors of Restructured Canwest
Global shall be acceptable to the Ad Hoc
Committee;
|
|
|
(cc)
|
CMI
shall have complied in all material respects with each covenant in this
Term Sheet and in the Support Agreement that is to be performed on or
before the Effective Time;
|
- 12 -
|
|
(dd)
|
insurance
in respect of the director’s and officer’s insurance policy of Canwest
Global shall have been put in place on terms and at a cost acceptable to
CMI and the Ad Hoc Committee; and
|
|
|
(ee)
|
shares
of Restructured Canwest Global shall have been issuable to fewer than 290
holders of record (as provided in Rule 12g5-1 promulgated under the U.S.
Securities Exchange Act of 1934 (as amended and including any relevant
rules promulgated thereunder, the “Exchange Act”)) under
the Recapitalization Transaction or Restructured Canwest Global shall have
otherwise been exempt from the registration requirements under Section
12(g) of the Exchange Act.
|
|
C.
|
GENERAL
PROVISIONS
|
|
1.
|
CRTC
Application
|
CMI and
the Ad Hoc Committee will each use their commercially reasonable efforts to
take, or cause to be taken, all actions to assist and cooperate with each other
to obtain CRTC approval of the Recapitalization Transaction. The
parties shall reasonably cooperate with each other with respect to the preparing
of the application and all related correspondence to the CRTC, and the advisors
to the Ad Hoc Committee and CMI shall agree as to the form and content of such
application and correspondence.
|
2.
|
CCAA
Plan of Arrangement
|
The
implementation of the Plan shall be subject to and conditional upon all required
Court, creditor and other approvals, if and to the extent
required. The successful completion (or waiver by CMI and the Ad Hoc
Committee) of all of the steps and matters noted above shall be a condition
precedent to the Plan. Court filings, disclosure documents and news
releases announcing the Recapitalization Transaction of Canwest Global and/or
CMI shall be made available to the Noteholders prior to issuance or filing
thereof for review in connection with the implementation of the
Plan.
|
3.
|
Representations,
Warranties and Covenants of Canwest Global, CMI and
CTLP
|
Each of
Canwest Global, CMI and CTLP hereby represents, warrants and covenants
that:
|
|
(i)
|
the
proposed monitor, FTI Consulting Inc. (“FTI”) has received a
written Canadian legal opinion, in a form acceptable to FTI, from counsel
to FTI with respect to customary matters relating to the CIT
Facility,
|
|
|
(ii)
|
Canwest
Global and the Canwest Subsidiaries maintain appropriate insurance
coverage in amounts and on terms that are customary in the industries in
which they conduct business,
|
|
|
(iii)
|
neither
Canwest Mediaworks Ireland Holdings nor Canwest Ireland Nominee Ltd. has
any assets or liabilities other than (i) customary liabilities associated
with a holding company, (ii) the Secured Intercompany Note and the
Unsecured Promissory Note, (iii) guarantees of the Notes, (iv)
intercompany obligations owed to Irish Holdco by CMI
|
- 13 -
|
|
|
in
the amount of approximately $72,000,000 and (v) a right of redemption in
favour of CMI, the holder of the preferred shares of Irish
Holdco,
|
|
|
(iv)
|
it
shall and shall cause the Canwest Subsidiaries to, except as contemplated
by the Recapitalization Transaction, operate their businesses in
the ordinary course of business, and, in any event, shall not 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 Canwest Global or the Canwest
Subsidiaries,
|
|
|
(v)
|
except
for the renewal or extension of the director`s and officer`s insurance
currently in place and any additional insurance as contemplated by section
B(dd) and except for a trust to hold the funds
contributed by Canwest Limited Partnership in respect of funding a portion
of the key employee retention plans of CMI, neither Canwest Global nor any
of the Canwest Subsidiaries shall establish or fund any directors or
employees trusts or purchase or fund any additional directors’ and
officers’ insurance, in each case unless approved by the Ad Hoc
Committee,
|
|
|
(vi)
|
upon
the making of a filing under the CCAA (a “Filing”), Canwest Global
and the Canwest Subsidiaries will: (i) ensure that the initial
CCAA order (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 Ad Hoc Committee; and (ii) comply
with all terms of the Initial Order and all Other Restructuring Orders at
all times,
|
|
|
(vii)
|
Restructured
Canwest Global shall enter into an agreement with any shareholder of
Restructured Canwest Global that, as of the Effective Time, holds an
agreed percentage of the outstanding shares of Restructured Canwest Global
providing for the right of such shareholder(s) to nominate up to two
individuals to the board of directors of Restructured Canwest Global,
and
|
|
|
(viii)
|
Restructured
Canwest Global shall enter into a registration rights agreement with any
shareholder that owns at least 15% of the outstanding equity shares of
Restructured Canwest Global immediately following the Effective Time,
which shall provide for, among other things, customary demand and
piggy-back registration rights in Canada in favour of such shareholders,
with each shareholder being entitled to up to one demand registration per
year and up to two demand registrations in the
aggregate.
|
|
4.
|
Plan
Emergence Agreement
|
On or
prior to the date that is 21 days prior to the meeting of creditors in respect
of the Plan, Canwest Global, CMI and the Ad Hoc Committee shall enter into a
Plan emergence agreement (the “Plan Emergence Agreement”)
that will, among other things, include schedules that are approved by the Ad Hoc
Committee and set forth:
- 14 -
|
|
(i)
|
a
list of all existing management employees of Canwest Global and the
Canwest Subsidiaries, who will not remain as employees of Restructured
Canwest Global or any of the Canwest Subsidiaries following the Effective
Time, and
|
|
|
(ii)
|
a
list of all material contracts and agreements that will not remain as
ongoing obligations of Restructured Canwest Global or any of the Canwest
Subsidiaries, following the Effective Time, which contracts and agreements
shall be terminated, repudiated or renegotiated on terms agreed to by CMI
and the Ad Hoc Committee.
|
It is
acknowledged and agreed that each of (i) the engagement letter entered into
between Stonecrest Capital Inc. and Canwest Global dated June 30, 2009, (ii) the
engagement letter entered into between Genuity Capital Markets and Canwest
Global on May 29, 2009, (iii) the engagement letter entered into between
RBC Dominion Securities Inc. and Canwest Global on December 10, 2008, as amended
by a letter dated January 20, 2009 and as further amended by a letter dated
October 5, 2009 (which amending letter has been approved by the Ad Hoc
Committee), (iv) the agreements delivered by CMI to Goodmans LLP on October 5,
2009, which relate to key employee retention plans that have been offered to
certain employees in the Canwest Group (the “KERP Employees”), (v) all
contractual severance obligations in respect of the non-KERP Employees of the
Canwest Group set forth in a schedule delivered by CMI to Goodmans LLP on
September 22, 2009 and (vi) the CIT Facility, shall remain as unaffected
obligations of the Canwest Group and shall not be repudiated or amended other
than to the extent provided for therein, if applicable.
All
material contracts and agreements of Canwest Global or one of the Canwest
Subsidiaries that are not set forth in the schedule referenced in sub-paragraph
(ii) above shall remain as ongoing obligations of Restructured Canwest Global or
one of the Canwest Subsidiaries following the Plan Implementation
Date.
|
5.
|
Support
Agreement
|
As part
of the consideration for their Notes under the Recapitalization Transaction,
Noteholders who enter into a Support Agreement prior to November 2, 2009 (the
“Consenting
Noteholders”) shall receive additional consideration (the “Support Agreement Consideration”). The Support
Agreement Consideration shall be received by the Consenting Noteholders at the
Effective Time in the form of additional Non-Voting Shares and Class B
Subordinated Voting Shares or Class A Subordinated Voting Shares, as applicable,
of Restructured Canwest Global representing, in aggregate, the Canadian dollar
equivalent of US$5 million based on the exchange
rate set forth in section C.10 based on a Plan
value of $408 million. The Support Agreement Consideration shall be received by
the Consenting Noteholders pro rata (based on the aggregate principal amount of
Notes subject to a Support Agreement).
|
6.
|
DIP
Financing
|
The
debtor in possession arrangements in respect of the CIT Facility shall be agreed
to by CMI and the Ad Hoc Committee, it being acknowledged by CMI and the Ad Hoc
Committee that the debtor in possession arrangements agreed to pursuant to the
CIT Facility are acceptable to CMI and the Ad Hoc Committee.
- 15 -
|
7.
|
Chief
Restructuring Advisor
|
Upon the
commencement of CCAA proceedings in respect of Canwest Global, CMI and/or CTLP,
Canwest Global, CMI and CTLP shall promptly engage a chief restructuring advisor
acceptable to the Ad Hoc Committee on terms (including the authorities,
responsibilities, remuneration
and length of engagement) acceptable to the Ad Hoc Committee, it being
acknowledged by the Ad Hoc Committee that the terms of the engagement letter
entered into between Canwest Global and Stonecrest Capital Inc. are acceptable
to the Ad Hoc Committee provided that upon the commencement of CCAA proceedings
Stonecrest Capital Inc. becomes chief restructuring advisor as contemplated by
such agreement. The chief restructuring advisor shall be discharged and released
at the Effective Time.
|
8.
|
Amendments
|
No
amendments to the Plan or the Recapitalization Transaction shall be made without
the prior written consent of the Ad Hoc Committee.
|
9.
|
Key
Dates
|
The date
on which the Plan is implemented is currently contemplated to be no later than
April 15, 2010, subject to approval of the Plan by the Court (the date on which
the Plan is implemented being the “Plan Implementation Date”).
Additional key dates related to the Recapitalization Transaction are as
follows:
|
|
·
|
CCAA
initial hearing date
|
No
later than October 15, 2009
|
|
|
·
|
Claims
process hearing date
|
No
later than October 22, 2009
|
|
|
·
|
Creditor
approval of Plan
|
No
later than January 30, 2010
|
|
|
·
|
Plan
Implementation Date
|
No
later than April 15, 2010
|
|
10.
|
Conversion
of US Dollar Claims
|
For
purposes of the Plan any claims that are in United States dollars shall be
converted into Canadian dollars on the basis of the average Bank of Canada
United States/Canadian dollar noon exchange rate in effect over the ten day
period preceding the filing of the Plan in the CCAA proceedings.
|
11.
|
Releases
|
At the
Effective Time, pursuant to the Plan, Canwest Global and the Canwest
Subsidiaries and each of their respective present and former shareholders,
officers, directors, financial advisors (including RBC Capital Markets and
Genuity Capital Markets), legal counsel and agents, the proposed monitor, FTI
Consulting Inc. and its counsel and Stonecrest Capital Inc. (including in its
capacity as the chief restructuring advisor of Canwest Global) (collectively,
the “Released Parties”)
will be released and discharged from any and all demands, claims, actions,
causes of action, counterclaims, suits, debts, sums of money, accounts,
covenants, damages, judgments, expenses, executions, liens and other recoveries
on account of any indebtedness, liability, obligation, demand or cause of action
of whatever nature that any person (including any person
- 16 -
who may
claim contribution or indemnification against or from them) may be entitled to
assert whether known or unknown, matured or unmatured, direct, indirect or
derivative, foreseen or unforeseen, existing or hereafter arising, based in
whole or in part on any act or omission, transaction, dealing or other
occurrence existing or taking place at or prior to the Effective Time relating
to, arising out of or in connection with any claim existing on the date hereof,
any claimarising out of the restructuring, repudiation or termination after the
date hereof of any contract, lease, agreement or other arrangement, whether
written or oral, the business and affairs of Canwest Global and the Canwest
Subsidiaries, the Plan, the CCAA proceedings or the Recapitalization
Transaction, including, without limitation, any transaction referenced in this
Term Sheet that has already occurred, provided that nothing in this section will
release or discharge Canwest Global or any of the Canwest Subsidiaries from or
in respect of (a) any unaffected claim or claim that arises after the date
hereof, other than claims affected by the Recapitalization Transaction (b) its
obligations under the Plan or under any order, or (c) any rights of Canwest
Global or any of the Canwest Subsidiaries in respect of any affected claims
assigned to it pursuant to the Plan or in respect of any claims it has against
any Canwest Subsidiary, and further provided that nothing in this section will
release or discharge a Released Party if the Released Party is adjudged by the
express terms of a judgment rendered on a final determination on the merits to
have committed fraud or willful misconduct or to have been grossly negligent or,
in the case of directors, in respect of any claims referred to in section 5.1(2)
of the CCAA.
At the
Effective Time, pursuant to the Plan, the Noteholders, the Ad Hoc Committee, the
Trustee and each of their respective present and former shareholders, officers,
directors, financial advisors, legal counsel and agents (collectively, the
“Noteholder Released
Parties”) will be released and discharged from any and all demands,
claims, actions, causes of action, counterclaims, suits, debts, sums of money,
accounts, covenants, damages, judgments, expenses, executions, liens and other
recoveries on account of any indebtedness, liability, obligation, demand or
cause of action of whatever nature that any person (including any person who may
claim contribution or indemnification against or from them) may be entitled to
assert whether known or unknown, matured or unmatured, direct, indirect or
derivative, foreseen or unforeseen, existing or hereafter arising, based in
whole or in part on any act or omission, transaction, dealing or other
occurrence existing or taking place at or prior to the Effective Time relating
to, arising out of or in connection with the Notes (including, without
limitation, any guarantee obligation under the Notes or the Indenture), the
Recapitalization Transaction, including, without limitation, any transaction
referenced in this Term Sheet that has already occurred, the CCAA proceedings,
the Plan and any other actions or matters related directly or indirectly to the
foregoing; provided that nothing in this paragraph will release or discharge any
of the Noteholder Released Parties in respect of its obligations under the
Plan.
|
12.
|
Other
|
Canwest
Global and CMI, in consultation with their legal and financial advisors and the
legal and financial advisors to the Noteholders, shall use their commercially
reasonable efforts to structure and complete the Plan in the most tax effective
manner. The restructuring of Canwest Global and CMI may include the transfer of
certain assets and/or one or more of the Canwest Subsidiaries and/or Publishing
LP to other Canwest Subsidiaries as agreed upon by CMI and the Ad Hoc Committee
and as subject to prior CRTC approval, if required.
SCHEDULE C
DEFINITIONS
|
Definition
|
Section
or Page Number
|
|
“8%
Notes”
|
Page
1 (1st
paragraph)
|
|
“Ad Hoc
Committee”
|
Section
2(d)
|
|
“Additional Notes”
|
Section
15(c)
|
|
“Breaching Noteholder”
|
Section
10(b)
|
|
“Agreement”
|
Section
1
|
|
“CCAA”
|
Page 1 (1st
paragraph)
|
|
“Canwest Global”
|
Page 1 (1st
paragraph)
|
|
“Canwest LP”
|
Section
9(h)
|
|
“Chief Restructuring Advisor”
|
Section
9(k)
|
|
“CMI”
|
Page 1 (1st
paragraph)
|
|
“CMI Subsidiary” or “Subsidiaries”
|
Page 1 (1st
paragraph)
|
|
“Committee Advisors”
|
Section
2(d)
|
|
“Companies”
|
Page 1 (1st
paragraph)
|
|
“Consenting Noteholder(s)”
|
Page 1 (1st
paragraph)
|
|
“Court”
|
Page 1 (1st
paragraph)
|
|
“CTLP”
|
Page 1 (1st
paragraph)
|
|
“Debt”
|
Section
2(a)
|
|
“Event of Default”
|
Section
9(k)
|
|
“Existing Signatory”
|
Section
4(b)
|
|
“FTI”
|
Section
2(a)
|
|
“Irish Holdco”
|
Section 3(e)
|
|
“Party” or “Parties”
|
Page 1 (2nd
paragraph)
|
|
“Plan”
|
Page 1 (1st
paragraph)
|
|
“Recapitalization”
|
Page 1 (1st
paragraph)
|
|
“Recapitalization Proceedings”
|
Page 1 (1st
paragraph)
|
|
“Recapitalization Terms”
|
Page 1 (1st
paragraph)
|
|
“Relevant Company Personnel”
|
Section
3(c)
|
|
“Relevant Notes”
|
Section
2(a)
|
|
“Representative(s)”
|
Section
14
|
- 2 -
|
Definition
|
Section
or Page Number
|
|
“Support Agreement”
|
Page 1 (1st
paragraph)
|
|
“Term Sheet”
|
Page 1 (1st
paragraph)
|
|
“Transfer”
|
Section
4(b)
|
In
addition, the following terms used in this Agreement shall have the following
meanings:
“8% Note Indenture” means the
indenture under which the 8% Notes were issued by CMI, dated as of November 18,
2004, among 3815668 Canada Inc. (as predecessor to CMI), the guarantors party
thereto and The Bank of New York Mellon, as trustee, as amended, modified or
supplemented prior to the date hereof.
“Advisor Confidentiality
Agreement” means the confidentiality agreement entered into or binding
upon a Committee Advisor and one or more of the Companies.
“Affiliate” has the meaning set
forth in the 8% Note Indenture.
“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.
“Cash Collateral Agreement”
means the use of cash collateral and consent agreement, dated as of September
23rd,
2009, as amended, restated, replaced or otherwise modified from time to time,
between all of the parties hereto.
“CIT” means CIT Business Credit
Canada Inc.
“CIT Credit Agreement” means
the credit agreement, dated May 20, 2009, as amended, restated, replaced or
otherwise modified from time to time, between CMI, the guarantors party thereto
from time to time, the lenders party thereto from time to time and CIT, as
agent, which agreement establishes the asset-based facility provided by
CIT.
“Commission” means the United
States Securities and Exchange Commission.
“Confidentiality Agreement
Signatory” means each of (a) Goodmans; (b) Xxxxxxxx Xxxxx, financial
advisor to the Ad Hoc Committee; (c) any Consenting Noteholder that is a party
to this Agreement and that has executed and delivered to one or more of the
Companies a Noteholder Confidentiality Agreement; and (d) any Committee Advisor
that has executed and delivered to one or more of the Companies an Advisor
Confidentiality Agreement.
“Goodmans” means Goodmans LLP,
counsel to the Ad Hoc Committee.
“Governmental Entity” means any
government, Regulatory Authority, governmental department, agency, commission,
bureau, official, minister, Crown corporation, court body, board, tribunal or
dispute settlement panel or other law, rule or regulation-making organization or
entity: (a) having or purporting to have jurisdiction on behalf of any nation,
province, territory or state or any other geographic or political subdivision of
any of them; or (b) exercising, or
- 3 -
entitled
or purporting to exercise any administrative, executive, judicial, legislative,
policy, regulatory or taxing authority or power.
“Information” means information
set forth or incorporated in the Companies’ public disclosure documents filed
with the Canadian Securities Administrators and the Commission under the
Securities Legislation, as applicable, prior to the execution and delivery of
this Agreement.
“Investment Advisor” means, for
each Consenting Noteholder, the investment advisor which manages the Relevant
Notes for and on behalf of the applicable Consenting Noteholder.
“Material Adverse Effect” shall
have the meaning ascribed to such term in Section B(x) of the Term
Sheet.
“Monitor” means any party
appointed by the Court to act as the monitor in the Recapitalization
Proceedings.
“New Investor” shall have the
meaning ascribed to such term in Section A(3) of the Term Sheet.
“Noteholder Confidentiality
Agreement” means the Confidentiality Agreement entered into or binding
upon a Consenting Noteholder and one or more of the Companies.
“Noteholders” means all holders
of the 8% Notes.
“Objecting Noteholder” means
any Consenting Noteholder that has made an objection in writing pursuant to
either Section 9 (in the
last paragraph) or Section 15(n).
“Outside Date” means April 15,
2010.
“Person” means an individual, a
corporation, a partnership, a limited liability company, a trust, an
unincorporated association, a Governmental Entity or any agency, instrumentality
or political subdivision of a Governmental Entity, or any other entity or
body.
“Plan Implementation Date”
shall have the meaning ascribed to such term in Section C(9) of the Term
Sheet.
“Recapitalization Transaction”
shall have the meaning ascribed to such term in Section A(1) of the Term
Sheet.
“Regulatory Authorities” means
the Canadian Radio-television and Telecommunications Commission, the Canadian
Commissioner of Competition and Heritage Canada, as applicable.
“Securities Legislation” means
all applicable laws, regulations, rules, policies or instruments of any
securities commission, stock exchange or like body in Canada or the United
States.
“Subsidiaries” means
corporations in which the Companies have a controlling interest as defined in
the Canada Business
Corporations Act, including those listed in Schedule A, except that, “Subsidiaries” shall
specifically exclude Canwest LP and its subsidiaries, Canwest (Canada) Inc., and
CW Investments Co. and its subsidiaries.
- 4 -
“Support Agreement
Consideration” shall have the meaning ascribed to such term in Section
C(5) of the Term Sheet.
“Supporting Consenting
Noteholders” means Consenting Noteholders other than the Breaching
Noteholders and Objecting Noteholders.
“Termination Date” means the
date on which this Agreement is terminated in accordance with the provisions
hereof.
“Trustee” means The Bank of New
York Mellon, as trustee pursuant to the 8% Note Indenture.
SCHEDULE D
CAPITALIZATION
|
Class
of Shares
|
Number
of Shares Authorized
|
Number
of Shares Issued and Outstanding (as at June 30, 2009)
|
|
|
Canwest
Global Communications Corp.
|
Multiple
Voting Shares
|
Unlimited
|
76,785,976
|
|
Subordinate
Voting Shares
|
Unlimited
|
99,395,042
|
|
|
Non-Voting
Shares
|
Unlimited
|
1,465,521
|
|
|
Preference
Shares
|
Unlimited
|
None
|
|
|
Series
1 Preference Shares
|
Unlimited
|
None
|
|
|
Series
2 Preference Shares (Special Shares)
|
21,783
|
None
|
|
|
Common
Shares
|
Unlimited
|
22,924,002
|
|
|
Preference
Shares
|
Unlimited
|
None
|
|
|
Canwest
Television Limited Partnership
|
Units
|
Unlimited
|
478,406.8
|
|
Canwest
Mediaworks Ireland Holdings
|
Ordinary
Shares
|
20,000,000
|
1,000,000
|
|
Redeemable
Preference Shares
|
500,000
|
1
|
|
|
Redeemable
Preference A Shares
|
1,000,000
|
467,509
|
|
|
Redeemable
Preference B Shares
|
500,000
|
311,674
|
SCHEDULE E
FORM
OF JOINDER
This
joinder is made as of the date below (the “Joinder”) by the undersigned
(the “Joining Party”) in
connection with the support agreement dated l, 2009 (the “Support Agreement”) between
Canwest Global Communications Corp., Canwest Media Inc. (“CMI”), Canwest Television
Limited Partnership (“CTLP”), the entities listed in
Schedule A to the Support Agreement and the holders of certain of the 8% senior
subordinated notes due 2012 (collectively, the “8% Notes”) issued by
CMI. Capitalized terms used herein have the meanings assigned in the
Support Agreement unless otherwise defined herein.
RECITALS:
|
A.
|
Section
4(b) of the Support Agreement requires that,
contemporaneously with a Transfer of 8% Notes by a Consenting Noteholder
to a transferee who is not an Existing Signatory, such transferee shall
execute and deliver this Joinder.
|
|
B.
|
The
Joining Party wishes to be a transferee of 8% Notes to be transferred to
it by a Consenting Noteholder and is required to be bound by
the terms of the Support Agreement on the terms and subject to the
conditions set forth in this
Joinder.
|
NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Joining Party
agrees as follows:
|
1.
|
The
Joining Party hereby agrees to be fully bound as a Consenting Noteholder
in respect of the 8% Notes that are the subject of the Transfer. For
greater certainty, the Joining Party agrees to be bound by the terms of
the Support Agreement only in respect of the 8% Notes that are the subject
of the Transfer and not in respect of any other 8% Notes held, managed or
administered by the Joining Party that were not subject of the
Transfer.
|
|
2.
|
Except
as expressly modified hereby, the Support Agreement shall remain in full
force and effect, in accordance with its
terms.
|
|
3.
|
This
Joinder shall be governed by and construed in accordance with the laws of
the Province of Ontario and the federal laws of Canada applicable therein,
without regard to principles of conflicts of
law.
|
[Remainder
of this page intentionally left blank; next page is signature
page.]
- 2 -
DATED as of
__________________________________.
__________________________________
By: __________________________________
Name:
Title:
SCHEDULE F
INITIAL
ORDER
See
attached.
Court
File
No.
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
|
THE
HONOURABLE
|
)
|
,
THE
|
|
)
|
||
|
JUSTICE
|
)
|
DAY
OF
, 2009
|
IN THE
MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS
AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
Applicants
INITIAL
ORDER
THIS
APPLICATION, made by Canwest Global Communications Corp. (“Canwest Global”) and
the other applicants listed on Schedule “A” hereto
(collectively, the “Applicants”), pursuant to the Companies’ Creditors Arrangement
Act, R.S.C. 1985, c. C-36, as amended (the “CCAA”) was heard this day at
000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx.
ON
READING the affidavit of Xxxx Xxxxxxx sworn l , 2009 and the Exhibits
thereto (the “Xxxxxxx Affidavit”) and the Report of the Proposed Monitor, FTI
Consulting Canada ULC (“FTI Consulting”) (the “Monitor’s Pre-Filing Report”),
and on hearing the submissions of counsel for the Applicants and the
partnerships listed on Schedule “B” hereto (the
“Partnerships” and collectively with the Applicants, the “CMI Entities”), the
Special Committee of the Board of Directors of Canwest Global (the “Special
Committee”), FTI Consulting, the ad hoc committee (the “Ad Hoc
Committee”) of holders of 8% senior subordinated notes issued by Canwest Media
Inc. (“CMI”), CIT Business Credit Canada Inc. (“CIT”) and the management
directors of the Applicants (the “Management Directors”), and on reading the
consent of FTI Consulting to act as the Monitor.
2
SERVICE
1. THIS
COURT ORDERS that the time for service of the Notice of Application and the
Application Record is hereby abridged so that this Application is properly
returnable today and hereby dispenses with further service thereof.
APPLICATION
2. THIS
COURT ORDERS AND DECLARES that the Applicants are companies to which the CCAA
applies. Although not Applicants, the Partnerships shall enjoy the
benefits of the protections provided to the Applicants by this
Order.
PLAN
OF ARRANGEMENT
3. THIS
COURT ORDERS that one or more of the Applicants, individually or collectively,
shall have the authority to file and may, subject to further order of this
Court, file with this Court a plan of compromise or arrangement (hereinafter
referred to as the “CMI Plan”) between, inter alia, one or more of
the CMI Entities and one or more classes of their applicable secured and/or
unsecured creditors as the Applicants deem appropriate.
POSSESSION
OF CMI PROPERTY AND OPERATIONS
4. THIS
COURT ORDERS that the CMI Entities shall remain in possession and control of
their respective current and future assets, undertakings and properties of every
nature and kind whatsoever, and wherever situate, including all proceeds thereof
(collectively, the “CMI Property”). Subject to further Order of this
Court, the CMI Entities shall each continue to carry on business in a manner
consistent with the preservation of their respective businesses (collectively,
the “CMI Business”) and the CMI Property. The CMI Entities shall each
be authorized and empowered to continue to retain and employ the employees,
advisors, consultants, agents, experts, appraisers, valuators, accountants,
counsel and such other persons (collectively “Assistants”) currently retained or
employed by them, with liberty to retain such further Assistants as they deem
reasonably necessary or desirable in the ordinary course of business or for the
carrying out of the terms of this Order, subject to the provisions on the
payment of Assistants set forth in paragraph 7 hereof.
3
5. THIS
COURT ORDERS that the CMI Entities shall be entitled to continue to utilize the
CMI Entities’ centralized cash management system currently in place, as
described in the Xxxxxxx Affidavit, or replace it with another substantially
similar centralized cash management system satisfactory to the CMI DIP Lender
(as defined below) (the “CMI Cash Management System”). Any present or
future bank providing the CMI Cash Management System shall not be under any
obligation whatsoever to inquire into the propriety, validity or legality of any
transfer, payment, collection or other action taken thereunder, or as to the use
or application by the CMI Entities of funds transferred, paid, collected or
otherwise dealt with in the CMI Cash Management System, shall be entitled to
provide the CMI Cash Management System without any liability in respect thereof
to any Person (as hereinafter defined) other than the CMI Entities, pursuant to
the terms of the documentation applicable to the CMI Cash Management System, and
shall be, in its capacity as provider of the CMI Cash Management System, an
unaffected creditor under the CMI Plan with regard to any claims or expenses it
may suffer or incur in connection with the provision of the CMI Cash Management
System.
6. THIS
COURT ORDERS that the CMI Entities and the LP Entities (as defined in the
Xxxxxxx Affidavit) shall continue to provide and pay for the Shared Services, as
defined in the Xxxxxxx Affidavit, to each other and their other affiliated and
related entities, in accordance with current arrangements, payment terms and
business practises, except as to payment terms which may be amended to provide
for revised timing of reconciliations, with such amendments to be subject to the
approval of the CMI CRA (as defined below) and the prior consent of the Monitor
or further Order of the Court. Notwithstanding any other provision in
this Order, neither the CMI Entities nor the LP Entities shall modify, cease
providing or terminate the provision of or payment for the Shared Services
except with the consent of the other party receiving such Shared Services, the
approval of the CMI CRA and the prior consent of the Monitor or further Order of
this Court, except with respect to portions of the CMI Business which may be
shut down or reorganized in the manner contemplated by the Term Sheet attached
as part of Exhibit “l“ to the Xxxxxxx
Affidavit.
7. THIS
COURT ORDERS that, subject to availability under the CMI DIP Facility and the
CMI DIP Definitive Documents (both as hereinafter defined) and subject to the
applicable cash flow forecast approved by the Consenting Noteholders (as defined
below) in accordance with the
4
Use of
Collateral and Consent Agreement (as defined below) (the “Approved Cash Flow”),
the CMI Entities shall be entitled but not required to pay the following
expenses whether incurred prior to, on or after the date of this Order, to the
extent that such expenses are incurred or payable by the CMI
Entities:
|
|
(a)
|
all
outstanding and future wages, salaries and employee benefits (including,
but not limited to, employee medical, dental, disability, life insurance
and similar benefit plans or arrangements, incentive plans, share
compensation plans and employee assistance programs and employee or
employer contributions in respect of pension and other benefits), current
service, special and similar pension and/or retirement benefit payments,
vacation pay, commissions, bonuses and other incentive payments, payments
under collective bargaining agreements, and employee and director expenses
and reimbursements, in each case incurred in the ordinary course of
business and consistent with existing compensation policies and
arrangements;
|
|
|
(b)
|
compensation
to employees in respect of any payments made to employees prior to the
date of this Order by way of the issuance of cheques or electronic
transfers that are subsequently dishonoured due to the commencement of
these proceedings;
|
|
|
(c)
|
with
the prior consent of the Monitor, all outstanding and future amounts owing
to or in respect of individuals working as independent contractors or
freelancers in connection with the CMI
Business;
|
|
|
(d)
|
the
reasonable fees and disbursements of any Assistants retained or employed
by the CMI Entities in respect of these proceedings, at their standard
rates and charges, including any payments made to Assistants prior to the
date of this Order by way of the issuance of cheques or electronic
transfers that are subsequently dishonoured due to the commencement of
these proceedings;
|
|
|
(e)
|
any
and all sums due and owing to Amex Bank of Canada (“American Express”),
including, without limitation, amounts due and owing by the CMI Entities
to
|
5
|
|
American
Express in respect of the Corporate Card Program and Central Billed
Accounts Program as described in the Xxxxxxx
Affidavit;
|
|
|
(f)
|
amounts
owing for goods and services actually supplied to the CMI Entities, or to
obtain the release of goods contracted for prior to the date of this
Order:
|
|
|
(i)
|
by
distributors, broadcasting and/or production studios, suppliers or other
entities, for television programming and other related products, with the
prior consent of the Monitor, if, in the opinion of the CMI Entities, the
supplier is critical to the business and ongoing operations of any of the
CMI Entities;
|
|
|
(ii)
|
by
newsprint suppliers, newspaper distributors and other logistics suppliers,
with the prior consent of the Monitor, if, in the opinion of the National
Post Company, the supplier is critical to the business and ongoing
operations of the National Post Company;
and
|
|
|
(iii)
|
by
other suppliers, with the prior consent of the Monitor, if, in the opinion
of the CMI Entities, the supplier is critical to the CMI Business and
ongoing operations of any of the CMI
Entities.
|
8. THIS
COURT ORDERS that, subject to availability under the CMI DIP Facility and the
CMI DIP Definitive Documents and subject to the Approved Cash Flow, and except
as otherwise provided to the contrary herein, the CMI Entities shall be entitled
but not required to pay all reasonable expenses incurred by them in carrying on
the CMI Business in the ordinary course from and after the date of this Order,
and in carrying out the provisions of this Order, which expenses shall include,
without limitation:
|
|
(a)
|
all
expenses and capital expenditures reasonably necessary for the
preservation of the CMI Property or the CMI Business including, without
limitation, payments on account of insurance (including directors’ and
officers’ insurance), maintenance and security
services;
|
6
|
|
(b)
|
payment,
including the posting of letters of credit, for goods or services actually
supplied or to be supplied to the CMI Entities following the date of this
Order; and
|
|
|
(c)
|
payment
of fees to the Canadian Radio-television and Telecommunications
Commission, stock exchange listing fees and other regulatory or license
fees necessary for the preservation of the CMI Property or the CMI
Business,
|
For
greater certainty, the CMI Entities shall not make any payments to or in
satisfaction of any liabilities or obligations of the LP Entities, save and
except for payments in respect of the Shared Services as contemplated
herein.
9. THIS
COURT ORDERS that the CMI Entities shall remit, in accordance with legal
requirements, or pay:
|
|
(a)
|
any
statutory deemed trust amounts in favour of the Crown in right of Canada
or of any Province thereof or any other taxation authority which are
required to be deducted from the CMI Entities’ employees’ wages,
including, without limitation, amounts in respect of (i) employment
insurance, (ii) Canada Pension Plan, (iii) Quebec Pension Plan, and (iv)
income taxes;
|
|
|
(b)
|
all
goods and services or other applicable sales taxes (collectively, “Sales
Taxes”) required to be remitted by the CMI Entities in connection with the
sale of goods and services by the CMI Entities, but only where such Sales
Taxes are accrued or collected after the date of this Order, or where such
Sales Taxes were accrued or collected prior to the date of this Order but
not required to be remitted until on or after the date of this Order,
and
|
|
|
(c)
|
any
amount payable to the Crown in right of Canada or of any Province thereof
or any political subdivision thereof or any other taxation authority in
respect of municipal realty, municipal business, workers’ compensation or
other taxes, assessments or levies of any nature or kind which are
entitled at law to be paid in priority to claims of secured creditors and
which are attributable to or in respect of the carrying on of the CMI
Business by the CMI Entities.
|
7
10.
THIS
COURT ORDERS that until such time as a CMI Entity delivers a notice in writing
to repudiate a real property lease in accordance with paragraph 12(c) of this Order (a “Notice of Repudiation”), the
CMI Entities shall pay all amounts constituting rent or payable as rent under
their respective real property leases (including, for greater certainty, common
area maintenance charges, utilities and realty taxes and any other amounts
payable to the landlord under the lease) or as otherwise may be negotiated
between the applicable CMI Entity and the relevant landlord from time to time
(“Rent”), for the period commencing from and including the date of this Order,
twice-monthly in equal payments on the first and fifteenth day of each month, in
advance (but not in arrears). On the date of the first of such payments, any
arrears relating to the period commencing from and including the date of this
Order shall also be paid. Upon delivery of a Notice of Repudiation,
the relevant CMI Entity shall pay all Rent owing by the applicable CMI Entity to
the applicable landlord in respect of such lease due for the notice period
stipulated in paragraph 12(c) of this Order, to the
extent that Rent for such period has not already been paid.
11. THIS
COURT ORDERS that, except as specifically permitted herein, the CMI Entities are
hereby directed, until further Order of this Court: (a) to make no payments of
principal, interest thereon or otherwise on account of amounts owing by any one
of the CMI Entities to any of their creditors as of this date; (b) to grant no
security interests, trusts, liens, charges or encumbrances upon or in respect of
any of the CMI Property; and (c) to not grant credit or incur liabilities except
in the ordinary course of the CMI Business.
RESTRUCTURING
12. THIS
COURT ORDERS that the CMI Entities shall, subject to consulting with the CMI
CRA, the terms of
the Use of Collateral and Consent Agreement, the Support Agreement (as defined
below), the CMI DIP Facility and the CMI DIP Definitive Documents, have the
right to:
|
|
(a)
|
permanently
or temporarily cease, downsize or shut down any of their respective
businesses or operations, to dispose of redundant or non-material assets,
and to
sell
assets or operations not exceeding $1,000,000 in any one transaction or
$5,000,000 in the aggregate, subject to paragraph 12(c), if
applicable;
|
8
|
|
(b)
|
terminate
the employment of such of their employees or lay off or temporarily or
indefinitely lay off such of their employees as the relevant CMI Entity
deems appropriate on such terms as may be agreed upon between the relevant
CMI Entity and such employee, or failing such agreement, to deal with the
consequences thereof in the CMI
Plan;
|
|
|
(c)
|
in
accordance with paragraphs 13 and 14, with the prior consent of the Monitor of
further Order of the Court, vacate, abandon or quit the whole but not part
of any leased premises and/or repudiate any real property lease and any
ancillary agreements relating to any leased premises, on not less than
fourteen (14) days notice in writing to the relevant landlord on such
terms as may be agreed upon between the relevant CMI Entity and such
landlord, or failing such agreement, to deal with the consequences thereof
in the CMI Plan;
|
|
|
(d)
|
repudiate,
in whole or in part, with the prior consent of the Monitor or further
Order of the Court, such of their arrangements or agreements of any nature
whatsoever with whomsoever, whether oral or written, as the CMI Entities
deem appropriate, with such repudiations to be on such terms as may be
agreed upon between the relevant CMI Entity and such counter-parties, or
failing such agreement, to deal with the consequences thereof in the CMI
Plan, provided
that the CMI Entities shall not be entitled to repudiate, in whole or in
part, the Use of Collateral and Consent Agreement or the Support
Agreement; and
|
|
|
(e)
|
pursue
all avenues of refinancing and offers for material parts of the CMI
Business or the CMI Property, in whole or part, subject to prior approval
of this Court being obtained before any material refinancing or any sale
(except as permitted by subparagraph (a),
above),
|
all of
the foregoing to permit the CMI Entities to proceed with an orderly
restructuring of the CMI Business.
13. THIS
COURT ORDERS that the CMI Entities shall provide each of the relevant landlords
with notice of the relevant CMI Entity’s intention to remove any fixtures from
any
9
leased
premises at least seven (7) days prior to the date of the intended
removal. The relevant landlord shall be entitled to have a
representative present in the leased premises to observe such removal and, if
the landlord disputes the CMI Entity’s entitlement to remove any such fixture
under the provisions of the lease, such fixture shall remain on the premises and
shall be dealt with as agreed between any applicable secured creditors, such
landlord and the relevant CMI Entity, or by further Order of this Court upon
application by the relevant CMI Entity on at least two (2) days notice to such
landlord and any such secured creditors. If a CMI Entity repudiates the lease
governing such leased premises in accordance with paragraph 12(c) of this Order, it shall not be required to pay
Rent under such lease pending resolution of any such dispute (other than Rent
payable for the notice period provided for in paragraph 12(c) of this Order), and the repudiation of the lease
shall be without prejudice to the CMI Entity’s claim to the fixtures in
dispute.
14. THIS
COURT ORDERS that if a Notice of Repudiation is delivered by a CMI Entity, then
(a) during the notice period prior to the effective time of the repudiation, the
relevant landlord may show the affected leased premises to prospective tenants
during normal business hours, on giving the relevant CMI Entity and the Monitor
24 hours’ prior written notice, and (b) at the effective time of the
repudiation, the relevant landlord shall be entitled to take possession of any
such leased premises without waiver of or prejudice to any claims or rights such
landlord may have against the CMI Entity in respect of such lease or leased
premises and such landlord shall be entitled to notify the CMI Entity of the
basis on which it is taking possession and to gain possession of and re-lease
such leased premises to any third party or parties on such terms as such
landlord considers advisable, provided that nothing herein shall relieve such
landlord of its obligation to mitigate any damages claimed in connection
therewith.
NO
PROCEEDINGS AGAINST THE CMI ENTITIES OR THE CMI PROPERTY
15. THIS
COURT ORDERS that until and including [*l], 2009, or such later date as
this Court may order (the “Stay Period”), no proceeding or enforcement process
in any court or tribunal, including grievances referred to arbitration and
conciliation proceedings, (each, a “Proceeding”) shall be commenced or continued
against or in respect of the CMI Entities, the Monitor or the CMI CRA or
affecting the CMI Business or the CMI Property, except with the
10
written
consent of the applicable CMI Entity, the Monitor and the CMI CRA (in
respect of Proceedings affecting the CMI Entities, the CMI Property or the CMI
Business), the CMI CRA (in respect of Proceedings affecting the CMI CRA), or
with leave of this Court, and any and all Proceedings currently under way
against or in respect of the CMI Entities or the CMI CRA or affecting the CMI
Business or the CMI Property are hereby stayed and suspended pending further
Order of this Court. In the case of the CMI CRA, no Proceeding shall
be commenced against the CMI CRA or its directors and officers without prior
leave of this Court on seven (7) days notice to Stonecrest Capital
Inc.
NO
EXERCISE OF RIGHTS OR REMEDIES
16. THIS
COURT ORDERS that during the Stay Period, all rights and remedies of any
individual, firm, corporation, governmental body or agency, or any other
entities (all of the foregoing, collectively being “Persons” and each being a
“Person”) against or in respect of the CMI Entities, the Monitor and/or the CMI
CRA, or affecting the CMI Business or the CMI Property, are hereby stayed and
suspended except with the written consent of the applicable CMI Entity, the
Monitor and the CMI CRA (in respect of rights and remedies affecting the CMI
Entities, the CMI Property or the CMI Business), the CMI CRA (in respect of
rights or remedies affecting the CMI CRA), or leave of this Court, provided that
nothing in this Order shall (i) empower the CMI Entities to carry on any
business which the CMI Entities are not lawfully entitled to carry on,
(ii) exempt the CMI Entities from compliance with statutory or regulatory
provisions relating to health, safety or the environment, (iii) prevent the
filing of any registration to preserve or perfect a security interest, or
(iv) prevent the registration of a claim for lien.
NO
INTERFERENCE WITH RIGHTS
17. THIS
COURT ORDERS that during the Stay Period, no Person shall discontinue, fail to
honour, alter, interfere with, repudiate, terminate or cease to perform any
right, renewal right, contract, agreement, licence or permit in favour of or
held by the CMI Entities, except with the written consent of the relevant CMI
Entity and upon consultation with the CMI CRA and the consent of the Monitor, or
leave of this Court.
11
CONTINUATION
OF SERVICES
18. THIS
COURT ORDERS that during the Stay Period, all Persons having oral or written
agreements with a CMI Entity or statutory or regulatory mandates for the supply
of goods and/or services, including without limitation, all programming supply,
computer software, communication and other data services, centralized banking
services, payroll services, insurance, transportation services, utility or other
services to the CMI Business or a CMI Entity, are hereby restrained until
further Order of this Court from discontinuing, altering, interfering with or
terminating the supply of such goods or services as may be required by the CMI
Entities, and that the CMI Entities shall be entitled to the continued use of
their current premises, telephone numbers, facsimile numbers, internet addresses
and domain names, provided in each case that the normal prices or charges for
all such goods or services received after the date of this Order are paid by the
CMI Entities in accordance with normal payment practices of the CMI Entities or
such other practices as may be agreed upon by the supplier or service provider
and the applicable CMI Entity (upon consultation with the CMI CRA) and the
consent of the Monitor, or as may be ordered by this Court.
NON-DEROGATION
OF RIGHTS
19. THIS
COURT ORDERS that, notwithstanding anything else contained herein, no Person
shall be prohibited from requiring immediate payment for goods, services, use of
leased or licensed property or other valuable consideration provided on or after
the date of this Order, nor shall any Person be under any obligation on or after
the date of this Order to advance or re-advance any monies or otherwise extend
any credit to the CMI Entities. Nothing in this Order shall derogate
from the rights conferred and obligations imposed by the CCAA.
PROCEEDINGS
AGAINST DIRECTORS AND OFFICERS
20. THIS
COURT ORDERS that during the Stay Period, and except as permitted by subsection
11.03(2) of the CCAA, no Proceeding may be commenced or continued against any of
the former, current or future directors or officers (or their estates) of the
Applicants with respect to any claim against such directors or officers that
arose before the date hereof and that relates to any obligations of the CMI
Entities whereby the directors or officers are alleged under
12
any law
to be liable in their capacity as directors or officers for the payment or
performance of such obligations, until a compromise or arrangement in respect of
the CMI Entities, if one is filed, is sanctioned by this Court or is refused by
the creditors of the CMI Entities or this Court.
DIRECTORS’
AND OFFICERS’ INDEMNIFICATION AND CHARGE
21. THIS
COURT ORDERS that the Applicants shall jointly and severally indemnify their
directors and officers from all claims, costs, charges and expenses relating to
the failure of any of the CMI Entities, after the date hereof, to (i) make
payments in respect of the CMI Entities of the nature referred to in
subparagraphs 7(a), 9(a), 9(b) and 9(c) of this Order, and (ii) make payments of amounts
in respect of the CMI Entities for which the directors and officers are
statutorily liable, which they sustain or incur by reason of or in relation to
their respective capacities as directors and/or officers of the Applicants
except to the extent that, with respect to any officer or director, such officer
or director has actively participated in the breach of any related fiduciary
duties or has been grossly negligent or guilty of wilful
misconduct. For greater certainty, the indemnity provided by this
paragraph 21 shall not indemnify such directors or
officers from any costs, claims, charges, expenses or liabilities properly
attributable to the LP Entities.
22. THIS
COURT ORDERS that the directors and officers of the Applicants shall be entitled
to the benefit of and are hereby granted a charge (the “CMI Directors’ Charge”)
on the CMI Property, which charge shall not exceed an aggregate amount of
$20,000,000, as security for the indemnity provided in paragraph 21 of this Order. The CMI Directors’ Charge
shall have the priority set out in paragraphs 55
and 57 herein.
23. THIS
COURT ORDERS that, notwithstanding any language in any applicable insurance
policy to the contrary (a) no insurer shall be entitled to be subrogated to or
claim the benefit of the CMI Directors’ Charge and (b) the Applicants’ directors
and officers shall only be entitled to the benefit of the Director’s Charge to
the extent they do not have coverage under a directors and officers insurance
policy.
24. THIS
COURT ORDERS that, notwithstanding any other provision of this Order, the terms
and conditions with respect to any release and discharge of the Charges (as
defined herein)
13
shall be
satisfactory to the CMI Entities, the Management Directors (with respect to the
CMI Directors’ Charge), the Monitor and the Ad Hoc Committee.
APPOINTMENT
OF MONITOR
25. THIS
COURT ORDERS that FTI Consulting is hereby appointed pursuant to the CCAA as the
Monitor of the CMI Entities, an officer of this Court, to monitor the CMI
Property and the CMI Entities’ conduct of the CMI Business with the powers and
obligations set out in the CCAA and as set forth herein and that the CMI
Entities and their shareholders, officers, directors and Assistants shall advise
the Monitor of all material steps taken by the CMI Entities pursuant to this
Order, and shall co-operate fully with the Monitor in the exercise of its powers
and discharge of its obligations.
26. THIS
COURT ORDERS that the Monitor, in addition to its prescribed rights and
obligations under the CCAA, is hereby directed and empowered to:
|
|
(a)
|
monitor
the CMI Entities’ receipts and
disbursements;
|
|
|
(b)
|
report
to this Court at such times and intervals as the Monitor may deem
appropriate with respect to matters relating to the CMI Entities, the CMI
Property, the CMI Business, and such other matters as may be relevant to
the proceedings herein;
|
|
|
(c)
|
assist
the CMI Entities, to the extent required by the CMI Entities, in their
dissemination to the CMI DIP Lender, the Ad Hoc Committee and their
respective counsel of financial and other information, as agreed to
between the CMI Entities and the CMI DIP Lender or the Ad Hoc Committee,
as applicable, which may be used in these proceedings, including reporting
on a weekly basis to the CMI DIP Lender and the Ad Hoc
Committee;
|
|
|
(d)
|
advise
the CMI Entities in their preparation of the CMI Entities’ cash flow
statements and reporting required by the CMI DIP Lender and the Ad Hoc
Committee, which information shall be reviewed with the Monitor and
delivered to the CMI DIP Lender, the Ad Hoc Committee and their respective
counsel in
|
14
|
|
compliance
with the CMI DIP Definitive Documents, or as otherwise agreed to by the
CMI DIP Lender or the Ad Hoc Committee, as
applicable;
|
|
|
(e)
|
assist
the CMI CRA in the performance of its duties as set out in the CMI CRA
Agreement (as defined below);
|
|
|
(f)
|
advise
the CMI Entities in their development and implementation of the CMI Plan
and any amendments to the CMI Plan;
|
|
|
(g)
|
assist
the CMI Entities, to the extent required by the CMI Entities, with the
holding and administering of creditors’ or shareholders’ meetings for
voting on the CMI Plan, as
applicable;
|
|
|
(h)
|
have
full and complete access to the books, records and management, employees
and advisors of the CMI Entities, and to the CMI Business and the CMI
Property, to the extent required to perform its duties arising under this
Order;
|
|
|
(i)
|
be
at liberty to engage independent legal counsel or such other persons as
the Monitor deems necessary or advisable respecting the exercise of its
powers and performance of its obligations under this
Order;
|
|
|
(j)
|
monitor
and, if necessary, report to the Court on any matters pertaining to the
provision of the Shared Services in accordance with paragraph [6] of this Order;
and
|
|
|
(k)
|
perform
such other duties as are required by this Order or by this Court from time
to time.
|
27. THIS
COURT ORDERS that the Monitor shall not take possession of the CMI Property and
shall take no part whatsoever in the management or supervision of the management
of the CMI Business and shall not, by fulfilling its obligations hereunder, be
deemed to have taken or maintained possession or control of the CMI Business or
the CMI Property, or any part thereof.
28. THIS
COURT ORDERS that nothing herein contained shall require the Monitor to occupy
or to take control, care, charge, possession or management (separately
and/or
15
collectively,
“Possession”) of any of the CMI Property that might be environmentally
contaminated, might be a pollutant or a contaminant, or might cause or
contribute to a spill, discharge, release or deposit of a substance contrary to
any federal, provincial or other law respecting the protection, conservation,
enhancement, remediation or rehabilitation of the environment or relating to the
disposal of waste or other contamination including, without limitation, the
Canadian Environmental
Protection Act, the Ontario Environmental Protection
Act, the Ontario Water
Resources Act, or the Ontario Occupational Health and Safety
Act and regulations thereunder (the “Environmental Legislation”),
provided however that nothing herein shall exempt the Monitor from any duty to
report or make disclosure imposed by applicable Environmental
Legislation. The Monitor shall not, as a result of this Order or
anything done in pursuance of the Monitor’s duties and powers under this Order,
be deemed to be in Possession of any of the CMI Property within the meaning of
any Environmental Legislation, unless it is actually in possession.
29. THIS
COURT ORDERS that the Monitor shall provide any creditor of a CMI Entity with
information provided by the CMI Entity in response to reasonable requests for
information made in writing by such creditor addressed to the
Monitor. The Monitor shall not have any responsibility or liability
with respect to the information disseminated by it pursuant to this
paragraph. In the case of information that the Monitor has been
advised by a CMI Entity is confidential, the Monitor shall not provide such
information to creditors unless otherwise directed by this Court or on such
terms as the Monitor and the applicable CMI Entity may agree.
30. THIS
COURT ORDERS that, in addition to the rights and protections afforded the
Monitor under the CCAA or as an officer of this Court, the Monitor shall incur
no liability or obligation as a result of its appointment or the carrying out of
the provisions of this Order, save and except for any gross negligence or wilful
misconduct on its part. Nothing in this Order shall derogate from the
protections afforded the Monitor by the CCAA or any applicable
legislation.
31. THIS
COURT ORDERS that the Monitor, counsel to the Monitor, counsel to any of the CMI
Entities, counsel to the Special Committee, counsel to the Management Directors,
counsel to RBC Dominion Securities Inc. (the “Financial Advisor”) with respect
to matters on behalf of the CMI Entities, counsel to the Ad Hoc Committee and
the financial advisor to the Ad Hoc
16
Committee
(together with counsel to the Ad Hoc Committee, the “Committee Advisors”) shall
be paid their reasonable fees and disbursements, in each case at their standard
rates and charges, whether incurred prior to or subsequent to the date of this
Order, by any of the CMI Entities, to the extent that such fees and
disbursements relate to services provided to the CMI Entities or, in the case of
the Committee Advisors, to the Ad Hoc Committee, as part of the costs of these
proceedings. FTI Consulting, the Financial Advisor, counsel to FTI Consulting,
counsel to the CMI Entities, counsel to the Special Committee and counsel to the
Management Directors shall keep separate accounts for services provided in
respect of the CMI Entities and any services provided in respect of entities
other than the CMI Entities. The CMI Entities are hereby authorized and directed
to pay the accounts of the Monitor, the Financial Advisor, counsel to the
Monitor, counsel to the CMI Entities, counsel to the Special Committee, counsel
to the Management Directors and the Committee Advisors on a weekly basis to the
extent that such accounts relate to services provided to the CMI Entities, or,
in the case of the Committee Advisors, the Ad Hoc Committee. The CMI
Entities shall not be liable for and shall not pay any expenses, fees,
disbursements or retainers of the Monitor, counsel to the Monitor, counsel to
the LP Entities, counsel to the Special Committee, counsel to the Management
Directors, counsel to the Financial Advisor with respect to matters on behalf of
the CMI Entities, or the Financial Advisor, to the extent that such expenses,
fees, disbursements or retainers are not attributable to the CMI
Entities.
32. THIS
COURT ORDERS that the Monitor and its legal counsel shall pass their accounts
from time to time, and for this purpose the accounts of the Monitor and its
legal counsel are hereby referred to a judge of the Commercial List of the
Ontario Superior Court of Justice.
33. THIS
COURT ORDERS that the Monitor, counsel to the Monitor, counsel to the CMI
Entities, counsel to the Special Committee, counsel to the Management Directors,
counsel to the Financial Advisor with respect to matters on behalf of the CMI
Entities, the CMI CRA, the Financial Advisor and the Committee Advisors shall be
entitled to the benefit of and are hereby granted a charge on the CMI Property
(the “CMI Administration Charge”), which charge shall not exceed an aggregate
amount of [$ l ], as security for their
reasonable professional fees and disbursements incurred at their respective
standard rates and charges in respect of such services,
17
both
before and after the making of this Order in respect of these
proceedings. The CMI Administration Charge shall have the priority
set out in paragraphs 55 and 57 hereof.
CHIEF
RESTRUCTURING ADVISOR
34. THIS
COURT ORDERS that Xxx X. Xxxxxxx be and is hereby appointed as Chief
Restructuring Advisor of the CMI Entities in accordance with the terms and
conditions of the agreement entered into between Canwest Global and Stonecrest
Capital Inc. (“Stonecrest”, collectively referred to herein with Xxx X. Xxxxxxx
as the “CMI CRA”) dated June 30, 2009 (the “CMI CRA Agreement”), effective as of
the date of this Order.
35. THIS
COURT ORDERS that the CMI CRA Agreement is hereby approved and given full force
and effect and the CMI CRA is hereby authorized to retain counsel as set out in
the CMI CRA Agreement.
36. THIS
COURT ORDERS that the CMI Entities are authorized and directed to continue the
engagement of the CMI CRA on the terms and conditions set out in the CMI CRA
Agreement.
37. THIS
COURT ORDERS that the CMI CRA shall not be or be deemed to be a director,
officer or employee of any of the CMI Entities.
38. THIS
COURT ORDERS that the CMI CRA and its directors and officers shall incur no
liability or obligation as a result of Xxx X. Xxxxxxx’x appointment pursuant to
this Order, or the provision of services pursuant to the CMI CRA Agreement, save
and except as may result from gross negligence or wilful misconduct on the part
of the CMI CRA.
39. THIS
COURT ORDERS that (i) the indemnification obligations of Canwest Global in
favour of the CMI CRA and its officers and directors set out in the CMI CRA
Agreement; and (ii) the payment obligations set out in the CMI CRA Agreement
shall be entitled to the benefit of and form part of the CMI Administration
Charge set out herein.
40. THIS
COURT ORDERS that any claims of the CMI CRA under the CMI CRA Agreement shall be
treated as unaffected in any plan of compromise or arrangement filed by
the
18
CMI
Entities under the CCAA, any proposal filed by the CMI Entities under the Bankruptcy and Insolvency Act of
Canada (the “BIA”) or any other restructuring.
DIP
FINANCING
41. THIS
COURT ORDERS that the Credit Agreement dated as of May 22, 2009 and amended as
of June 15, 2009, June 30, 2009, July 17, 2009, July 31, 2009, August 14, 2009,
August 31, 2009, and September 11, 2009 (as so amended, the “CIT Credit
Agreement”) between CMI, the Guarantors party thereto and CIT as agent and
lender be and are hereby approved. For greater certainty, references
herein to CIT shall include any permitted assignee pursuant to the CIT Credit
Agreement.
42. THIS
COURT ORDERS that the CMI Entities are hereby authorized and empowered to
execute and deliver such credit agreements, mortgages, pledges, charges,
hypothecs and security documents, guarantees and other definitive documents
(collectively, and including the CIT Credit Agreement, the “CMI DIP Definitive
Documents”), as are contemplated by the CIT Credit Agreement or as may be
reasonably required by the CIT Credit Agreement, and all CMI DIP Definitive
Documents executed and delivered prior to the date hereof be and are hereby
approved. The CMI Entities are hereby authorized and directed to pay
and perform all of their indebtedness, interest, fees, liabilities and
obligations under and pursuant to the CMI DIP Definitive Documents as and when
the same become due and are to be performed, notwithstanding any other provision
of this Order.
43. THIS
COURT ORDERS that the credit facility provided under the CIT Credit Agreement be
and is hereby converted into a debtor-in-possession financing arrangement (the
“CMI DIP Facility”) in accordance with the terms of the CIT Credit Agreement,
provided that the aggregate principal amount of all borrowings under the CMI DIP
Facility shall not exceed $100,000,000. The CMI DIP Facility shall be
on the terms and subject to the conditions set forth in the CIT Credit Agreement
as attached to the Xxxxxxx Affidavit as Exhibit “[l]”, as the CIT Credit
Agreement may be amended from time to time upon the written agreement of the
parties thereto. CIT, in its capacity as lender under the CMI DIP
Facility, shall be referred to herein as the CMI DIP Lender.
19
44. THIS
COURT ORDERS that CMI is hereby authorized and empowered to obtain and borrow
the amounts previously or hereinafter advanced pursuant to the CMI DIP
Facility in order to finance the CMI Entities’ working capital requirements and
other general corporate purposes and capital expenditures as contemplated by the
CMI DIP Definitive Documents, provided that borrowings under the CMI DIP
Facility shall not exceed $100,000,000 unless approved by the CMI CRA and
permitted by further Order of this Court.
45. THIS
COURT ORDERS that the CMI Entities shall notify counsel to the Ad Hoc Committee
and the Monitor of any requested advance under the CMI DIP
Facility.
46. THIS
COURT ORDERS that the CMI DIP Lender shall be entitled to the benefit of and is
hereby granted a charge (the “CMI DIP Charge”) on the CMI Property, as security
for any and all obligations of the CMI Entities under the CMI DIP Facility and
the CMI DIP Definitive Documents (including on account of principal, interest,
fees and expenses), which charge shall not exceed the aggregate amount owed to
the CMI DIP Lender under the CMI DIP Definitive Documents advanced on or after
the date of this Order. The CMI DIP Charge shall have the priority
set out in paragraphs 55 and 57 hereof.
47. THIS
COURT ORDERS that the deposit accounts containing cash collateral pledged to The
Bank of Nova Scotia and referred to in Section 6.11 of the Collateral Agency
Agreement (as defined below) as the “Cash Management Collateral Account” (the
“Excluded Accounts”) shall not form part of the CMI Property, shall
be excluded from the CMI DIP Charge, the KERP Charge, the Directors’ Charge and
the Administration Charge, except as provided in paragraph 48 hereof, and shall
remain subject to the existing liens in favour of The Bank of Nova Scotia in
connection with the CMI Entities’ obligations to The Bank of Nova Scotia in
connection with overdrafts and related liabilities arising from cash
consolidation, electronic funds transfer arrangements, treasury, depository and
cash management services or in connection with any automated clearing house
transfers of funds in an aggregate amount not to exceed $2,500,000 (the “BNS
Cash Management Obligations”).
48. THIS
COURT ORDERS AND DECLARES that notwithstanding any stay of proceedings imposed
by this Order, The Bank of Nova Scotia shall be entitled to seize and dispose of
any collateral on deposit in the Excluded Accounts and apply such proceeds to
any
20
and all
outstanding BNS Cash Management Obligations, provided that, notwithstanding
anything herein, upon payment and satisfaction of the BNS Cash Management
Obligations in full and the return of any remaining collateral in the Excluded
Accounts to the CMI Entities, such collateral shall then form part of the CMI
Property charged by the Directors’ Charge, the Administration Charge, the KERP
Charge and the DIP Lender’s Charge.
49. THIS
COURT ORDERS that the CMI DIP Charge is in addition to the existing security
(the “Existing Security”) in favour of CIBC Mellon Trust Company (the
“Collateral Agent”) pursuant to the Intercreditor and Collateral Agency
Agreement dated as of October 13, 2005 among the CMI Entities and the Collateral
Agent, as amended by the Credit Confirmation and Amendment to Intercreditor and
Collateral Agency Agreement dated as of September l, 2009 (the
“Collateral Agency Agreement”). All liabilities and obligations of
the CMI Entities under the CIT Credit Agreement and the $190,000,000 principal
amount secured promissory note issued to Canwest MediaWorks Ireland Holdings
(“Irish Holdco”) by CMI (the “Secured Note”) shall be secured by the Existing
Security.
50. THIS
COURT ORDERS that, notwithstanding any other provision of this
Order:
|
|
(a)
|
the
CMI DIP Lender may take such steps from time to time as it may deem
necessary or appropriate to file, register, record or perfect the CMI DIP
Charge or any of the CMI DIP Definitive
Documents;
|
|
|
(b)
|
upon
the occurrence of an event of default under the CMI DIP Definitive
Documents or the CMI DIP Charge, the CMI DIP Lender may cease making
advances to the CMI Entities, and upon three (3) days notice to the
CMI Entities and the Monitor, may exercise any and all of its rights and
remedies against the CMI Entities or the CMI Property under or pursuant to
the CMI DIP Definitive Documents and the CMI DIP Charge, including without
limitation, to set off and/or consolidate any amounts owing by the CMI DIP
Lender to any of the CMI Entities against the obligations of any of the
CMI Entities to the CMI DIP Lender under the CMI DIP Definitive Documents
or the CMI DIP Charge, to make demand, accelerate payment and give other
notices, or to apply to this Court for the appointment of a receiver,
receiver and manager or interim receiver, or for
a
|
21
|
|
bankruptcy
order against any of the CMI Entities and for the appointment of a trustee
in bankruptcy of any of the CMI Entities, and upon the occurrence of an
event of default under the terms of the CMI DIP Definitive Documents, the
CMI DIP Lender shall be entitled to seize and retain proceeds from the
sale of the CMI Property and the cash flow of the CMI Entities to repay
amounts owing to the CMI DIP Lender in accordance with the CMI DIP
Definitive Documents and the CMI DIP Charge, but subject to the priorities
as set out in paragraphs 55 and 57 of this Order;
and
|
|
|
(c)
|
the
foregoing rights and remedies of the CMI DIP Lender shall be enforceable
against any trustee in bankruptcy, interim receiver, receiver or receiver
and manager of any CMI Entity or the CMI
Property.
|
51. THIS
COURT ORDERS AND DECLARES that, in respect of the CMI DIP Facility, the CMI DIP
Definitive Documents, the CIT Credit Agreement and amounts borrowed under the
CIT Credit Agreement, the CMI DIP Lender shall be treated as unaffected in any
plan of arrangement or compromise filed by the CMI Entities, or any of them,
under the CCAA, or any proposal filed by the CMI Entities, or any of them, under
the BIA. Further, the stays of proceedings provided for herein shall
not apply to the CMI DIP Lender or its rights under or in respect of the CIT
Credit Agreement, the CMI DIP Facility or the CMI DIP Definitive
Documents.
52. THIS
COURT ORDERS that the CMI Entities are hereby authorized and empowered to take
all steps and actions in respect of, and to comply with all of their obligations
pursuant to, the Secured Note, the $l unsecured promissory
note dated l, 2009 granted by
CMI to Irish Holdco in respect of the amounts advanced by Irish Holdco to CMI
(the “Unsecured Note”), the Use of Cash Collateral and Consent Agreement between
certain of the CMI Entities and certain members of the Ad Hoc Committee (the
“Consenting Noteholders”) dated l, 2009 (the “Use of
Collateral and Consent Agreement”), the CCAA Support Agreement between certain
of the CMI Entities and the Consenting Noteholders dated l, 2009 (the
“Support Agreement”) and such other agreements, security documents, guarantees
and other definitive documents as may be executed in connection with any such
matters.
22
53. THIS
COURT ORDERS that notwithstanding anything to the contrary herein, the CMI
Entities shall be required to comply with their obligations under the Use of
Collateral and Consent Agreement and the Support Agreement. Prior to exercising
any and all rights and remedies they may have against the CMI Entities under or
in respect of the Use of Cash Collateral Agreement and the Support Agreement, in
accordance with the terms of such agreements, the Consenting Noteholders shall
be required to obtain a further order of the Court, other than in respect of
contractual termination rights under the Support Agreement.
54. THIS
COURT ORDERS that, upon reasonable notice to the CMI Entities, the advisors to
the Ad Hoc Committee, CIT and CIT’s advisors shall, subject to books and records
that are privileged, have clear and unfettered access to the books and records
of the CMI Entities and such other information that the Ad Hoc Committee and/or
CIT reasonably requests.
VALIDITY
AND PRIORITY OF CHARGES CREATED BY THIS ORDER
55. THIS
COURT ORDERS that the priorities of the CMI Directors’ Charge, the CMI
Administration Charge, the CMI KERP Charge (as defined below) and the CMI DIP
Charge, as among them, shall be as follows:
First –
CMI Administration Charge;
Second –
CMI DIP Charge; and
Third –
CMI Directors’ Charge and CMI KERP Charge, save and except that these Charges
shall be postponed in right of payment to the extent of the first $85,000,000
payable under the Secured Note.
56. THIS
COURT ORDERS that the filing, registration or perfection of the CMI Directors’
Charge, the CMI Administration Charge, the CMI KERP Charge and the CMI DIP
Charge (collectively, the “Charges”) shall not be required, and that the Charges
shall be valid and enforceable for all purposes, including as against any right,
title or interest filed, registered, recorded or perfected subsequent to the
Charges coming into existence, notwithstanding any such failure to file,
register, record or perfect.
23
57. THIS
COURT ORDERS that the CMI Directors’ Charge, the CMI Administration Charge, the
CMI DIP Charge and the CMI KERP Charge shall constitute a charge on the CMI
Property and such Charges shall rank in priority to all other security
interests, trusts, liens, charges and encumbrances, statutory or otherwise
(collectively, “Encumbrances”) in favour of any Person, notwithstanding the
order of perfection or attachment. [ntd: in light of CCAA amendments
which require notice to be provided to secured creditors likely to be affected
by the order, consider not priming prior perfected security
interests]
58. THIS
COURT ORDERS that except as otherwise expressly provided for herein, or as may
be approved by this Court, the CMI Entities shall not grant any Encumbrances
over any CMI Property that rank in priority to, or pari passu with, any of the
CMI Directors’ Charge, the CMI Administration Charge, the CMI KERP Charge or the
CMI DIP Charge, unless the CMI Entities also obtain the prior consent of the
Monitor, the CMI DIP Lender and the beneficiaries of the CMI Directors’ Charge,
the CMI KERP Charge and the CMI Administration Charge, or upon further Order of
this Court.
59. THIS
COURT ORDERS that the CMI Directors’ Charge, the CMI Administration Charge, the
CMI KERP Charge, the CMI DIP Definitive Documents and the CMI DIP Charge shall
not be rendered invalid or unenforceable and the rights and remedies of the
chargees entitled to the benefit of the Charges (collectively, the “Chargees”),
the rights and remedies of the CMI DIP Lender under the CMI DIP Definitive
Documents, the rights and remedies of Irish Holdco under the Secured Note and
the rights and remedies of the Consenting Noteholders under the Use of
Collateral and Consent Agreement and the Support Agreement shall not otherwise be
limited or impaired in any way, subject to the provisions of paragraph [53] herein, by (a) the
pendency of these proceedings and the declarations of insolvency made herein;
(b) any application(s) for bankruptcy order(s) issued pursuant to the BIA, or
any bankruptcy order made pursuant to such applications; (c) the filing of any
assignments for the general benefit of creditors made pursuant to the BIA; (d)
the provisions of any federal or provincial statutes; or (e) any negative
covenants, prohibitions or other similar provisions with respect to borrowings,
incurring debt or the creation of Encumbrances, contained in any existing loan
documents, lease, sublease, offer to lease or other agreement (collectively, an
“Agreement”) which binds the CMI Entities, or any of them, and notwithstanding
any provision to the contrary in any Agreement:
24
(a) neither
the creation of the Charges nor the execution, delivery, perfection,
registration or performance of the CIT Credit Agreement, the CMI DIP Definitive
Documents, the Use of Collateral and Consent Agreement, the Support Agreement,
the Secured Note or the Unsecured Note, shall create or be deemed to constitute
a breach by any of the CMI Entities of any Agreement to which they are a
party;
|
|
(b)
|
none
of the Chargees shall have any liability to any Person whatsoever as a
result of any breach of any Agreement caused by or resulting from the CMI
Entities entering into the CIT Credit Agreement or any other CMI DIP
Definitive Documents, the creation of the Charges, or the execution,
delivery or performance of the CMI DIP Definitive Documents;
and
|
|
|
(c)
|
the
CIT Credit Agreement, the CMI DIP Definitive Documents, the Use of
Collateral and Consent Agreement, the Support Agreement, the Secured Note
and the Unsecured Note, the payments made by the CMI Entities pursuant to
the foregoing or pursuant to the terms of this Order, and the granting of
the Charges, do not and will not constitute fraudulent preferences,
fraudulent conveyances, oppressive conduct, settlements or other
challengeable, voidable or reviewable transactions under any applicable
law.
|
60. THIS
COURT ORDERS that any Charge created by this Order over leases of real property
in Canada shall only be a Charge in the relevant CMI Entity’s interest in such
real property leases.
KEY
EMPLOYEE RETENTION PLANS
61. THIS
COURT ORDERS that the key employee retention plans (the “CMI KERPs”), in the
forms attached to the Confidential Supplement to the Monitor’s Pre-Filing Report
(the “Confidential Supplement”), are hereby approved and the CMI Entities are
authorized and directed to make the payments contemplated thereunder in
accordance with the terms and conditions of the CMI KERPs.
25
62. THIS
COURT ORDERS that the Confidential Supplement be sealed, kept confidential and
not form part of the public record, but rather shall be placed, separate and
apart from all other contents of the Court file, in a sealed envelope attached
to a notice which sets out the title of these proceedings and a statement that
the contents are subject to a sealing order and shall only be opened upon
further Order of the Court.
63. THIS
COURT ORDERS that the key employees referred to in the CMI KERPs shall be
entitled to the benefit of and are hereby granted a charge (the “CMI KERP
Charge”) on the CMI Property, which charge shall not exceed an aggregate amount
of $5,500,000, to secure amounts owing to such key employees under the CMI
KERPs.
APPROVAL
OF FINANCIAL ADVISOR AGREEMENT
64. THIS
COURT ORDERS that the letter agreement dated December 10, 2008 between Canwest
Global and the Financial Advisor, as amended by a letter agreement dated January
20, 2009, in the form attached as Exhibit “l” to the Xxxxxxx
Affidavit (the “Financial Advisor Agreement”), is hereby approved and the CMI
Entities are authorized and directed to make the payments contemplated
thereunder in accordance with the terms and conditions of the Financial Advisor
Agreement.
FOREIGN
PROCEEDINGS
65. THIS
COURT ORDERS that the Monitor is hereby authorized, as the foreign
representative of the CMI Entities, to apply for recognition of these
proceedings as “Foreign Main Proceedings” in the United States pursuant to
Chapter 15 of the U.S.
Bankruptcy Code.
66. THIS
COURT HEREBY REQUESTS the aid and recognition of any court, tribunal, regulatory
or administrative body having jurisdiction in Canada, the United States,
Australia, Ireland or in any other foreign jurisdiction, to give effect to this
Order and to assist the CMI Entities, the Monitor and their respective agents in
carrying out the terms of this Order. All courts, tribunals,
regulatory and administrative bodies are hereby respectfully requested to make
such orders and to provide such assistance to the CMI Entities and to the
Monitor, as an officer of this Court, as may be necessary or desirable to give
effect to this Order, to grant representative
26
status to
the Monitor in any foreign proceeding, or to assist the CMI Entities and the
Monitor and their respective agents in carrying out the terms of this
Order.
67. THIS
COURT ORDERS that each of the CMI Entities and the Monitor be at liberty and is
hereby authorized and empowered to apply to any court, tribunal, regulatory or
administrative body, wherever located, for the recognition of this Order and for
assistance in carrying out the terms of this Order and any other Order issued in
these proceedings.
SERVICE
AND NOTICE
68. THIS
COURT ORDERS that the CMI Entities or the Monitor shall (i) without delay,
publish a notice containing the information prescribed under the CCAA, (ii)
within five days after the date of this Order, (A) make this Order publicly
available in the manner prescribed under the CCAA, (B) send, in the prescribed
manner, a notice to every known creditor who has a claim against any of the CMI
Entities of more than $5,000, and (C) prepare a list showing the names and
addresses of those creditors and the estimated amounts of those claims, and make
it publicly available in the prescribed manner, all in accordance with Section
23(1)(a) of the CCAA and the regulations made thereunder, provided that, for the
purposes of this list, with respect to the 8% senior subordinated notes issued
by CMI, only the name and address of the indenture trustee of such notes and the
aggregate amount owing in respect of such notes shall be listed and made
publicly available.
69. THIS
COURT ORDERS that the CMI Entities and the Monitor be at liberty to serve this
Order, any other materials and orders in these proceedings, and any notices or
other correspondence, by forwarding true copies thereof by prepaid ordinary
mail, courier, personal delivery or electronic transmission to the CMI Entities’
creditors or other interested parties at their respective addresses as last
shown on the records of the CMI Entities, and that any such service or notice by
courier, personal delivery or electronic transmission shall be deemed to be
received on the next business day following the date of forwarding thereof, or
if sent by ordinary mail, on the third business day after mailing.
70. THIS
COURT ORDERS that the CMI Entities, the Monitor, the CMI DIP Lender, the Ad Hoc
Committee and any party who has filed a Notice of Appearance may serve any court
27
materials
in these proceedings by e-mailing a PDF or other electronic copy of such
materials to counsels’ email addresses as recorded on the Service List from time
to time, in accordance with the E-filing protocol of the Commercial List to the
extent practicable, and the Monitor may post a copy of any or all such materials
on its website at xxxx://xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx.
GENERAL
71. THIS
COURT ORDERS that the CMI Entities or the Monitor may from time to time apply to
this Court for advice and directions in the discharge of its powers and duties
hereunder.
72. THIS
COURT ORDERS that nothing in this Order shall prevent the Monitor from acting as
an interim receiver, a receiver, a receiver and manager, or a trustee in
bankruptcy of the CMI Entities, the CMI Business or the CMI
Property.
73. THIS
COURT ORDERS that any interested party (including the CMI Entities, the CMI DIP
Lender, the Ad Hoc Committee and the Monitor) may apply to this Court to vary or
amend this Order on not less than seven (7) days notice to any other party or
parties likely to be affected by the order sought or upon such other notice, if
any, as this Court may order, provided however that the CMI DIP Lender shall be
entitled to rely on this Order as issued for all advances made under the CIT
Credit Agreement and the CMI DIP Definitive Documents up to and including the
date this Order may be varied or amended.
74. THIS
COURT Orders that, notwithstanding the immediately preceding paragraph, no order
shall be made varying, rescinding or otherwise affecting the provisions of this
Order with respect to the CIT Credit Agreement or the CMI DIP Definitive
Documents, unless notice of a motion for such order is served on the Monitor and
the CMI Entities, the Ad Hoc Committee and the CMI DIP Lender, returnable no
later than [*date of initial
order plus 30 days].
75. THIS
COURT ORDERS that this Order and all of its provisions are effective as of 12:01
a.m. Eastern Standard/Daylight Time on the date of this Order.
SCHEDULE
“A”
Applicants
1. Canwest
Global Communications Corp.
2. Canwest
Media Inc.
3. MBS
Productions Inc.
4. Yellow
Card Productions Inc.
5. Canwest
Global Broadcasting Inc./Radiodiffusion Canwest Global Inc.
6. Canwest
Television GP Inc.
7. Fox
Sports World Canada Holdco Inc.
8. Global
Centre Inc.
9. Multisound
Publishers Ltd.
10. Canwest
International Communications Inc.
11. Canwest
Irish Holdings (Barbados) Inc.
12. Western
Communications Inc.
13. Canwest
Finance Inc./Financiere Canwest Inc.
14. National
Post Holdings Ltd.
15. Canwest
International Management Inc.
16. Canwest
International Distribution Limited
17. Canwest
MediaWorks Turkish Holdings (Netherlands) B.V.
18. CGS
International Holdings (Netherlands) B.V.
-
2 -
19. CGS
Debenture Holding (Netherlands) B.V.
20. CGS
Shareholding (Netherlands) B.V.
21. CGS
NZ Radio Shareholding (Netherlands) B.V.
22. 4501063
Canada Inc.
23. 4501071
Canada Inc.
24. 30109,
LLC
25. XxxXxxx
XxxxxXxxxx (XX) Holdings Corp.
SCHEDULE
“B”
Partnerships
1. Canwest
Television Limited Partnership
2. Fox
Sports World Canada Partnership
3. The
National Post Company/La Publication National Post
SCHEDULE G
CLAIMS
PROCEDURE ORDER
See
attached.
\5750326
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’
CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
CLAIMS
PROCEDURE ORDER
THIS MOTION made by Canwest
Global Communications Corp. (“Canwest Global”) and the other applicants listed
on Schedule “A” (the “Applicants”) and the partnerships listed on Schedule “B”
(collectively and together with Canwest Global and the Applicants, the “CMI
Entities”, and each a “CMI Entity”), for an order establishing a claims
procedure for the identification and quantification of certain claims against
(i) the CMI Entities and (ii) the Directors and Officers of the Applicants was
heard this day at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx.
ON READING the Notice of
Motion, the Affidavit of Xxxx Xxxxxxx sworn l , 2009, the First
Report of FTI Consulting Canada ULC in its capacity as Court-appointed monitor
of the CMI Entities (the “Monitor”) and on hearing from counsel for the CMI
Entities, the Monitor, the Special Committee of the Board of Directors of
Canwest Global, the ad
hoc committee of holders of 8% senior subordinated notes issued by
Canwest Media Inc. (“CMI”), CIT Business Credit Canada Inc., and the Management
Directors of the Applicants and such other counsel as were present, no one else
appearing although duly served as set out in the Affidavit of l sworn l , 2009.
|
TOR_A2G:3919177.13
|
– 2
–
SERVICE
|
1.
|
THIS COURT ORDERS that
the time for service of the Notice of Motion and Motion Record herein be
and is hereby abridged and that the motion is properly returnable today
and service upon any interested party other than those parties served is
hereby dispensed with.
|
DEFINITIONS AND
INTERPRETATION
|
2.
|
THIS COURT ORDERS that,
for the purposes of this Order establishing a claims process for the CMI
Entities and their Directors and Officers (“CMI Claims Procedure Order”),
in addition to terms defined elsewhere herein, the following terms shall
have the
following meanings:
|
|
|
(a)
|
“Assessments”
means Claims of Her Majesty the Queen in Right of Canada or of any
Province or Territory or Municipality or any other taxation authority in
any Canadian or foreign jurisdiction, including, without limitation,
amounts which may arise or have arisen under any notice of assessment,
notice of reassessment, notice of appeal, audit, investigation, demand or
similar request from any taxation
authority;
|
|
|
(b)
|
“Business
Day” means a day, other than a Saturday, Sunday or a statutory holiday, on
which banks are generally open for business in Toronto,
Ontario;
|
|
|
(c)
|
“Calendar
Day” means a day, including Saturday, Sunday and any statutory holidays in
the Province of Ontario, Canada;
|
|
|
(d)
|
“CCAA”
means the Companies’
Creditors Arrangement Act, R.S.C. 1985, c. C-36, as
amended;
|
|
|
(e)
|
“CCAA
Proceedings” means the proceedings commenced by the CMI Entities in the
Court at Toronto under Court File No. l;
|
|
TOR_A2G:3919177.13
|
– 3
–
|
|
(f)
|
“Claim”
means:
|
|
|
(i)
|
any
right or claim of any Person against one or more of the CMI Entities,
whether or not asserted, in connection with any indebtedness, liability or
obligation of any kind whatsoever of one or more of the CMI Entities in
existence on the Filing Date, including on account of Wages and Benefits,
and any accrued interest thereon and costs payable in respect thereof to
and including the Filing Date, whether or not such right or claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, unsecured,
perfected, unperfected, present, future, known, or unknown, by guarantee,
surety or otherwise, and whether or not such right is executory or
anticipatory in nature, including the right or ability of any Person to
advance a claim for contribution or indemnity or otherwise with respect to
any matter, action, cause or chose in action, whether existing at present
or commenced in the future, which indebtedness, liability or obligation is
based in whole or in part on facts which existed prior to the Filing Date,
and includes any other claims that would have been claims provable in
bankruptcy had the applicable CMI Entity become bankrupt on the Filing
Date (each, a “Prefiling Claim”, and collectively, the “Prefiling
Claims”);
|
|
|
(ii)
|
any
right or claim of any Person against one or more of the CMI Entities in
connection with any indebtedness, liability or obligation of any kind
whatsoever owed by one or more of the CMI Entities to such Person arising
out of the restructuring, repudiation, termination or breach on or after
the Filing Date of any contract, lease or other agreement whether written
or oral and whether such restructuring, repudiation, termination or breach
took place or takes place before or after the date of this CMI Claims
Procedure Order (each, a “Restructuring Period Claim”, and collectively,
the “Restructuring Period Claims”); and
|
|
|
(iii)
|
any
right or claim of any Person against one or more of the Directors
or
|
|
TOR_A2G:3919177.13
|
– 4
–
|
|
Officers
of one or more of the Applicants or any of them, that relates to a
Prefiling Claim or a Restructuring Period Claim howsoever arising for
which the Directors or Officers of an Applicant are by statute or
otherwise by law liable to pay in their capacity as Directors or Officers
or in any other capacity (each a “Director/Officer Claim”, and
collectively, the “Directors/Officers
Claims”);
|
provided
however, that in any case “Claim” shall not include an Excluded
Claim;
|
|
(g)
|
“Claims
Officer” means the individuals designated by the Court pursuant to
paragraph [11] of
this Claims Procedure Order and such other Persons as may be designated by
the CMI Entities and consented to by the
Monitor;
|
|
|
(h)
|
“CMI
Claims Bar Date” means 5:00 p.m. on [Filing Date plus 39
Days];
|
|
|
(i)
|
“CMI
Claims Package” means the materials to be provided by the CMI Entities to
Persons who may have a Claim which materials shall
include:
|
|
|
(i)
|
in
the case of a CMI Known Creditor (other than a CMI Employee), a CMI
General Notice of Claim, a blank CMI Notice of Dispute of Claim, a CMI
Instruction Letter, and such other materials as the CMI Entities may
consider appropriate or desirable;
|
|
|
(ii)
|
in
the case of a CMI Employee, a CMI Employee Notice of Claim, a blank CMI
Notice of Dispute of Claim, a CMI Employee Instruction Letter, and such
other materials as the CMI Entities may consider appropriate or desirable;
or
|
|
|
(iii)
|
in
the case of a CMI Unknown Creditor, a blank CMI Proof of Claim and a CMI
Proof of Claim Instruction Letter, and such other materials as the CMI
Entities may consider appropriate or
desirable;
|
|
|
(j)
|
“CMI
Claims Schedule” means a list of all known Creditors prepared and updated
from time to time by the CMI Entities, with the assistance of the Monitor,
showing the name, last known address, last known facsimile number, and
last
|
|
TOR_A2G:3919177.13
|
– 5
–
|
|
known
email address of each CMI Known Creditor (except that where a CMI Known
Creditor is represented by counsel known by the CMI Entities, the address,
facsimile number, and email address of such counsel may be substituted)
and, to the extent possible, the amount of each CMI Known Creditor’s Claim
as valued by the CMI Entities for voting and/or distribution
purposes;
|
|
|
(k)
|
“CMI
CRA” means Hap. S. Stephen and Stonecrest Capital Inc. in their capacity
as the court-appointed Chief Restructuring Advisor of the CMI
Entities;
|
|
|
(l)
|
“CMI
Employee Instruction Letter” means the instruction letter to CMI
Employees, substantially in the form attached as Schedule [“F”] hereto, regarding
the CMI Employee Notice of Claim, completion of a CMI Notice of Dispute of
Claim by a CMI Employee and the claims procedure described
herein;
|
|
|
(m)
|
“CMI
Employee Notice of Claim” means the notice referred to in paragraph [18] hereof,
substantially in the form attached hereto as Schedule [“E”], advising each CMI
Employee of their Claim, if any, in respect of Wages and Benefits as
valued by the CMI Entities for voting and distribution purposes based on
the books and records of the CMI
Entities;
|
|
|
(n)
|
“CMI
Employees” means all current employees of the CMI Entities as at the
Filing Date, and “CMI Employee” means any one of
them;
|
|
|
(o)
|
“CMI
General Notice of Claim” means the notice referred to in paragraph [17] hereof,
substantially in the form attached hereto as Schedule [“C”], advising each CMI
Known Creditor (other than CMI Employees) of its Claim as valued by the
CMI Entities (on consultation with the CMI CRA, if applicable) for voting
and distribution purposes based on the books and records of the CMI
Entities;
|
|
|
(p)
|
“CMI
Instruction Letter” means the instruction letter to CMI Known Creditors
(other than CMI Employees), substantially in the form attached as Schedule
[“D”] hereto, regarding
the CMI General Notice of Claim, completion of a CMI Notice of Dispute of
Claim by a CMI Known Creditor and the claims procedure described
herein;
|
|
TOR_A2G:3919177.13
|
– 6
–
|
|
(q)
|
“CMI
Known Creditor” means a Creditor, other than a CMI Noteholder in its
capacity as a CMI Noteholder, including CMI Employees, former employees of
the CMI Entities, and any CMI Entity in its capacity as a Creditor of one
or more CMI Entities, whose Claim is included on the CMI Claims
Schedule;
|
|
|
(r)
|
“CMI
Note” means a bond or note issued pursuant to the CMI Noteholder Trust
Indenture and any bonds or notes issued in substitution or replacement
thereof;
|
|
|
(s)
|
“CMI
Noteholder” means a registered or beneficial holder of a CMI
Note;
|
|
|
(t)
|
“CMI
Noteholder Trustee” means The Bank of New York as Trustee under the CMI
Noteholder Trust Indenture;
|
|
|
(u)
|
“CMI
Noteholder Trust Indenture” means the trust indenture dated November 18,
2004 between CMI (through its predecessor 3815668 Canada Inc.), certain
guarantors party thereto and the CMI Noteholder Trustee, as amended by
certain supplemental indentures
thereto;
|
|
|
(v)
|
“CMI
Notice of Dispute of Claim” means the notice referred to in paragraph
[20] hereof,
substantially in the form attached as Schedule [“G”] hereto, which may be
delivered to the CMI Entities by a CMI Known Creditor disputing a CMI
General Notice of Claim or a CMI Employee Notice of Claim, as applicable,
with reasons for its dispute;
|
|
|
(w)
|
“CMI
Notice of Dispute of Revision or Disallowance” means the notice referred
to in paragraphs [33] and [38] hereof,
substantially in the form attached as Schedule [“I”] hereto, which may be
delivered to the CMI Entities by a CMI Unknown Creditor disputing a Notice
of Revision or Disallowance, with reasons for its
dispute;
|
|
|
(x)
|
“CMI
Notice of Revision or Disallowance” means the notice referred to in
paragraphs [32]
and [37] hereof,
substantially in the form of Schedule [“H”] advising a CMI
Unknown Creditor that the CMI Entities have revised or rejected all or
part of such CMI Unknown Creditor’s Claim set out in its CMI Proof
of
|
|
TOR_A2G:3919177.13
|
– 7
–
|
|
Claim;
|
|
|
(y)
|
“CMI
Notice to Creditors” means the notice for publication by the CMI Entities
or the Monitor as described in paragraph [29] hereof,
substantially in the form attached hereto as Schedule “[“J”];
|
|
|
(z)
|
“CMI
Proof of Claim” means the Proof of Claim referred to in paragraph [30] hereof to be filed
by CMI Unknown Creditors, substantially in the form attached hereto as
Schedule [“K”];
|
|
|
(aa)
|
“CMI
Proof of Claim Instruction Letter” means the instruction letter to CMI
Unknown Creditors, substantially in the form attached as Schedule [“L”] hereto, regarding
the completion of a CMI Proof of Claim by a CMI Unknown Creditor and the
claims procedure described herein;
|
|
|
(bb)
|
“CMI
Unknown Creditors” means Creditors which are not CMI Known Creditors or
CMI Noteholders;
|
|
|
(cc)
|
“Court”
means the Superior Court of Justice (Commercial List) in the City of
Toronto in the Province of Ontario;
|
|
|
(dd)
|
“Creditor”
means any Person having a Claim and includes without limitation the
transferee or assignee of a Claim transferred and recognized as a Creditor
in accordance with paragraph [45] hereof or a
trustee, executor, liquidator, receiver, receiver and manager, or other
Person acting on behalf of or through such
Person;
|
|
|
(ee)
|
“Director/Officer
Claim” has the meaning ascribed to that term in paragraph [2(e)(iii)] of this CMI
Claims Procedure Order;
|
|
|
(ff)
|
“Directors”
means all current and former directors (or their estates) of the
Applicants and “Director” means any one of
them;
|
|
|
(gg)
|
“Distribution
Claim” means the amount of the Claim of a Creditor as finally determined
for distribution purposes, in accordance with the provisions of this CMI
Claims Procedure Order and the
CCAA;
|
|
TOR_A2G:3919177.13
|
– 8
–
|
|
(hh)
|
“Excluded
Claim” means (i) claims secured by any of the “Charges”, as defined in the
Initial Order, (ii) any claim against a Director that cannot be
compromised due to the provisions of subsection 5.1(2) of the CCAA, and
(iii) that portion of a Claim arising from a cause of action for which the
applicable CMI Entities are fully
insured;
|
|
|
(ii)
|
“Filing
Date” means [October
6],
2009;
|
|
|
(jj)
|
“Initial
Order” means the Initial Order of the Honourable l made [October 6], 2009, as
amended, restated or varied from time to
time;
|
|
|
(kk)
|
“Meeting”
means a meeting of Creditors called for the purpose of considering and
voting in respect of a Plan;
|
|
|
(ll)
|
“Officers”
means all current and former officers (or their estates) of the
Applicants, and “Officer” means any one of
them;
|
|
|
(mm)
|
“Person”
means any individual, corporation, limited or unlimited liability company,
general or limited partnership, association, trust, unincorporated
organization, joint venture, government or any agency or instrumentality
thereof or any other entity;
|
|
|
(nn)
|
“Plan”
means any proposed plan(s) of compromise or arrangement to be filed by any
or all of the CMI Entities (on consultation with the CMI CRA) pursuant to
the CCAA as the same may be amended, supplemented or restated from time to
time in accordance with the terms
thereof;
|
|
|
(oo)
|
“Prefiling
Claim” has the meaning ascribed to that term in paragraph [2(e)(i)] of this CMI
Claims Procedure Order;
|
|
|
(pp)
|
“Restructuring
Period Claim” has the meaning ascribed to that term in paragraph [2(e)(ii)] of this CMI
Claims Procedure Order;
|
|
|
(qq)
|
“Wages
and Benefits” means all outstanding wages, salaries and employee benefits
(including, but not limited to, employee medical, dental, disability,
life
|
|
TOR_A2G:3919177.13
|
– 9
–
|
|
insurance
and similar benefit plans or arrangements, incentive plans, share
compensation plans and employee assistance programs and employee or
employer contributions in respect of pension and other benefits) vacation
pay, commissions, bonuses and other incentive payments, payments under
collective bargaining agreements, and employee and director expenses and
reimbursements, in each case incurred in the ordinary course of business
and consistent with existing compensation policies and arrangements;
and
|
|
|
(rr)
|
“Voting
Claim” means the amount of the Claim of a Creditor as finally determined
for voting at the Meeting, in accordance with the provisions of this CMI
Claims Procedure Order, and the
CCAA.
|
|
3.
|
THIS COURT ORDERS that
all references as to time herein shall mean local time in Xxxxxxx,
Xxxxxxx, Xxxxxx, and any reference to an event occurring on a Business Day
shall mean prior to 5:00 p.m. on such Business Day unless otherwise
indicated herein.
|
|
4.
|
THIS COURT ORDERS that
all references to the word “including” shall mean “including without
limitation”.
|
|
5.
|
THIS COURT ORDERS that
all references to the singular herein include the plural, the plural
include the singular, and any gender includes the other
gender.
|
GENERAL
PROVISIONS
|
6.
|
THIS COURT ORDERS that
the CMI Entities and the Monitor are hereby authorized to use reasonable
discretion as to the adequacy of compliance with respect to the manner in
which forms delivered hereunder are completed and executed, and may, where
they are satisfied that a Claim has been adequately proven, waive strict
compliance with the requirements of this CMI Claims Procedure Order as to
completion and execution of such forms and to request any further
documentation from a Creditor that the CMI Entities or the Monitor may
require in order to enable them to determine the validity of a
Claim.
|
|
7.
|
THIS COURT ORDERS that
any Claims denominated in a foreign currency shall be converted to
Canadian dollars for purposes of any Plan on the basis of the average
Bank
|
|
TOR_A2G:0000000.13
|
– 10
–
|
|
of
Canada United States/Canadian dollar noon exchange rate in effect over the
ten day period preceding the filing of a
Plan.
|
|
8.
|
THIS COURT ORDERS that
interest and penalties that would otherwise accrue after the Filing Date
shall not be included in any Claim. Amounts claimed in
Assessments issued after the Filing Date shall be subject to this CMI
Claims Procedure Order and there shall be no presumption of validity or
deeming of the amount due in respect of the Claim set out in any
Assessment where such Assessment was issued after the Filing
Date.
|
|
9.
|
THIS COURT ORDERS that
copies of all forms delivered hereunder, as applicable, and determinations
of Claims by a Claims Officer or the Court, as the case may be, shall be
maintained by the CMI Entities and, subject to further order of the Court,
such Creditor will be entitled to have access thereto by appointment
during normal business hours on written request to the CMI Entities or the
Monitor.
|
|
10.
|
THIS COURT ORDERS that,
notwithstanding anything to the contrary in this CMI Claims Procedure
Order, in respect of any Claim that exceeds $15 million, the CMI Entities
shall consult with the CMI CRA prior to: accepting, admitting, settling,
resolving, valuing (for purposes of a CMI General Notice of Claim, a CMI
Employee Notice of Claim, a notice of repudiation or otherwise), revising
or rejecting such Claim; referring the determination of such Claim to a
Claims Officer or the Court; appealing any determination of such Claim by
the Claims Officer; or adjourning any Meeting on account of a dispute with
respect to such Claim.
|
CLAIMS
OFFICER
|
11.
|
THIS COURT ORDERS that
Honourable Xx Xxxxxxxx, [the Honourable Xxxx Ground,
the Honourable Xxxxxxx Xxxxxxx], and such other Persons as may be
appointed by the Court from time to time on application of the CMI
Entities (on consultation with the CMI CRA) and on the consent of the
Monitor, or such other Persons designated by the CMI Entities
(on consultation with the CMI CRA) and consented to by the Monitor, be and
they are hereby appointed as Claims Officers for the claims procedure
described herein.
|
|
TOR_A2G:3919177.13
|
– 11
–
|
12.
|
THIS COURT ORDERS that,
subject to the discretion of the Court, a Claims Officer shall determine
the validity and amount of disputed Claims in accordance with this CMI
Claims Procedure Order and to the extent necessary may determine whether
any Claim or part thereof constitutes an Excluded Claim. A Claims Officer
shall determine all procedural matters which may arise in respect of his
or her determination of these matters, including the manner in which any
evidence may be adduced. A Claims Officer shall have the discretion to
determine by whom and to what extent the costs of any hearing before a
Claims Officer shall be paid.
|
|
13.
|
THIS COURT ORDERS that,
notwithstanding anything to the contrary herein, a CMI Entity may with the
consent of the Monitor: (i) refer a CMI Known Creditor’s Claim for
resolution to a Claims Officer or to the Court for voting and/or
distribution purposes; and (ii) refer a CMI Unknown Creditor’s Claim for
resolution to a Claims Officer or to the Court for voting and/or
distribution purposes, where in the CMI Entity’s view such a referral is
preferable or necessary for the resolution of the valuation of the
Claim.
|
MONITOR’S
ROLE
|
14.
|
THIS COURT ORDERS that
the Monitor, in addition to its prescribed rights, duties,
responsibilities and obligations under the CCAA and under the Initial
Order, shall assist the CMI Entities in connection with the administration
of the claims procedure provided for herein, including the determination
of Claims of Creditors and the referral of a particular Claim to a Claims
Officer, as requested by the CMI Entities from time to time, and is hereby
directed and empowered to take such other actions and fulfill such other
roles as are contemplated by this
Order.
|
CLAIMS PROCEDURE FOR CMI
NOTEHOLDERS
|
15.
|
THIS COURT ORDERS that
the CMI Entities shall not be required to send to a CMI Noteholder a CMI
General Notice of Claim and neither the CMI Noteholders nor the CMI
Noteholder Trustee shall be required to file a CMI Proof of Claim in
respect of Claims pertaining to the CMI Notes. Within [Filing Date plus 15
Days], CMI shall send to the CMI Noteholder Trustee (as
representative of the CMI Noteholders’
Voting
|
|
TOR_A2G:3919177.13
|
– 12
–
|
|
Claim),
with a copy to the advisors of the Ad Hoc Committee (as defined in the
Initial Order), a notice stating the accrued amounts owing directly by
each of the CMI Entities under the CMI Noteholder Trust Indenture and the
guarantees executed by the CMI Entities in respect of the CMI Notes
(including, in each case, principal and accrued interest thereon) up to
the Filing Date. The CMI Noteholder Trustee shall confirm whether such
amounts are accurate to the CMI Entities within 15 Calendar Days of
receipt of the CMI Entities’ notice. If such amounts are confirmed by the
CMI Noteholder Trustee, or in the absence of any response by the CMI
Noteholder Trustee within 15 Calendar Days of receipt of the CMI Entities’
notice, such amounts shall be deemed to be the accrued amounts owing
directly by each of the CMI Entities under the CMI Noteholder Trust
Indenture and the guarantees executed by the CMI Entities in respect of
the CMI Notes for the purposes of voting and for the purposes of
distributions under the Plan, unless the amounts of such Claims are
otherwise agreed to in writing by the applicable CMI Entities, the Ad Hoc
Committee, and the CMI Noteholder Trustee, in which case such agreement
shall govern. If the CMI Noteholder Trustee indicates that it
cannot confirm the accrued amounts owing directly by each of the CMI
Entities under the CMI Noteholder Trust Indenture and the guarantees
executed by the CMI Entities in respect of the CMI Notes, such amounts
shall be determined by the Court for the purposes of voting and
distributions under the Plan, unless the amount of such Claims are
otherwise agreed to in writing by the applicable CMI Entities, the Ad Hoc
Committee and the CMI Noteholder Trustee, in which case such agreement
shall govern.
|
|
|
CLAIMS PROCEDURE FOR
CMI KNOWN CREDITORS
|
|
(i)
|
Repudiation
|
|
16.
|
THIS COURT ORDERS that
any action taken by the CMI Entities to restructure, repudiate, terminate
or breach any contract, lease or other agreement, whether written or oral,
pursuant to the terms of the Initial Order, must occur on or before 23
Calendar Days prior to the date of the Meeting. Any notices of repudiation
delivered to Creditors in connection with the foregoing shall be
accompanied by a CMI Claims Package. The CMI Entities (on consultation
with the CMI CRA, if applicable), the Monitor and
such
|
|
TOR_A2G:3919177.13
|
– 13
–
|
|
Creditor
shall resolve such Restructuring Period Claims by 2 Calendar Days prior to
the date of the Meeting for voting
purposes.
|
|
(ii)
|
Notice
of Claims
|
|
17.
|
THIS COURT ORDERS that
the CMI Entities shall send a CMI Claims Package to each of the CMI Known
Creditors (other than CMI Employees who are dealt with in paragraph [18] below) by prepaid
ordinary mail to the address as shown on the CMI Claims Schedule before
11:59 p.m. on [Filing
Date plus 11 Days], 2009. The CMI Entities
shall specify in the CMI General Notice of Claim included in the CMI
Claims Package the CMI Known Creditor’s Claim for voting and distribution
purposes as valued by the CMI Entities (on consultation with the CMI CRA,
if applicable) based on the books and records of the CMI
Entities.
|
|
18.
|
THIS COURT ORDERS that
the CMI Entities shall send a CMI Claims Package to each CMI Employee by
prepaid ordinary mail to the address as shown on the CMI Claims Schedule
before 11:59 p.m. on [Filing Date plus 11
Days], 2009. The CMI Entities shall specify in the CMI Employee
Notice of Claim included in the CMI Claims Package the CMI Employee’s
Claim in respect of Wages and Benefits for voting and distribution
purposes as valued by the CMI Entities (on consultation with the CMI CRA,
if applicable) based on the books and records of the CMI
Entities.
|
|
19.
|
THIS COURT ORDERS that,
on or before 11:59 p.m. on the [Filing Date plus 11
Days], the CMI Entities shall provide a CMI General
Notice of Claim and a CMI Claims Package to any and all of the CMI
Entities that have one or more Claims against any of the CMI Entities
(each a “CMI Intercompany Claim”), with a copy to the Monitor and the
advisors to the Ad Hoc Committee, with respect to each such CMI
Intercompany Claim that appears on the books and records of the CMI
Entities. All CMI Intercompany Claims shall be deemed to be proven against
such CMI Entities for the amounts specified in the applicable CMI General
Notices of Claim, provided that the advisors of the Ad Hoc Committee, on
behalf of the CMI Noteholders, may, within 15 days of receiving notice of
such CMI Intercompany Claims, contest the quantum of any CMI Intercompany
Claim in the manner provided for herein with respect to the Claims of CMI
Known Creditors. No
|
|
TOR_A2G:3919177.13
|
– 14
–
|
|
CMI
Intercompany Claim may be amended, restated, withdrawn, settled,
discharged or released without the prior written consent of the advisors
of the Ad Hoc Committee, except where such CMI Intercompany Claim is
finally determined by the Claims Officer or the Court in the manner
provided for herein.
|
(iii) Adjudication
of Claims
|
20.
|
THIS COURT ORDERS that
if a CMI Known Creditor (other than a CMI Employee) disputes the amount of
the Claim as set out in the CMI General Notice of Claim, the CMI Known
Creditor shall deliver to the CMI Entities a CMI Notice of Dispute of
Claim which must be received by the CMI Entities by no later than the CMI
Claims Bar Date. Such Person shall specify therein whether it disputes the
value of the Claim for voting and/or distribution
purposes.
|
|
21.
|
THIS COURT ORDERS that
if a CMI Known Creditor (other than a CMI Employee) does not deliver to
the CMI Entities a completed CMI Notice of Dispute of Claim by the CMI
Claims Bar Date disputing its Claim as valued by the CMI Entities for
voting and distribution purposes, then such CMI Known Creditor shall be
deemed to have accepted for voting and distribution purposes the valuation
of the CMI Known Creditor’s Claim as set out in the CMI Notice of Claim,
and such CMI Known Creditor’s Claim shall be treated as both a Voting
Claim and a Distribution Claim. A CMI Known Creditor may accept a Claim
for voting purposes as set out in the CMI Notice of Claim and dispute the
Claim for distribution purposes in such CMI Known Creditor’s CMI Notice of
Dispute of Claim provided that it does so by the CMI Claims Bar Date. A
determination of a Voting Claim of a CMI Known Creditor does not in any
way affect and is without prejudice to the process to determine such CMI
Known Creditor’s Distribution
Claim.
|
|
22.
|
THIS COURT ORDERS that
if a CMI Employee: (i) disputes the amount of the Claim in respect of
Wages and Benefits as set out in the CMI Employee Notice of Claim; and/or
(ii) believes that they have a Claim other than in respect of Wages and
Benefits, the CMI Employee shall deliver to the CMI Entities a CMI Notice
of Dispute of Claim which must be received by the CMI Entities by no later
than the CMI Claims Bar Date. If such Person disputes the amount of the
Claim in respect of Wages and Benefits as set out
in
|
|
TOR_A2G:3919177.13
|
– 15
–
|
|
the
CMI Employee Notice of Claim, such Person shall specify therein whether it
disputes the value of such Claim in respect of Wages and Benefits for
voting and/or distribution
purposes.
|
|
23.
|
THIS COURT ORDERS that
if a CMI Employee does not deliver to the CMI Entities a completed CMI
Notice of Dispute of Claim by the CMI Claims Bar Date disputing its Claim
in respect of Wages and Benefits as valued by the CMI Entities for voting
and distribution purposes or asserting other Claims, then such CMI
Employee shall be deemed to have accepted for voting and distribution
purposes the valuation of the CMI Employee’s Claim as set out in the CMI
Employee Notice of Claim, and such CMI Employee’s Claim shall be treated
as both a Voting Claim and a Distribution Claim and all other Claims of
CMI Employees shall be forever extinguished and barred. A CMI Employee may
accept a Claim for voting purposes as set out in the CMI Employee Notice
of Claim and dispute the Claim for distribution purposes in such CMI
Employee’s CMI Notice of Dispute of Claim provided that it does so by the
CMI Claims Bar Date. A determination of a Voting Claim of a CMI Employee
does not in any way affect and is without prejudice to the process to
determine such CMI Employee’s Distribution
Claim.
|
(iv) Resolution
of Disputed Claims
|
24.
|
THIS COURT ORDERS that
in the event that a CMI Entity, with the assistance of the Monitor and on
consultation with the CMI CRA, if applicable, is unable to resolve a
dispute regarding any Voting Claim with a CMI Known Creditor, the CMI
Entity or the CMI Known Creditor shall so notify the Monitor, and the CMI
Known Creditor or the CMI Entity, as the case may be. The decision as to
whether the CMI Known Creditor’s Voting Claim should be adjudicated by the
Court or a Claims Officer shall be in the sole discretion of the CMI
Entity (on consultation with the CMI CRA, if applicable); provided,
however that to the extent a Claim is referred under this paragraph to the
Court or a Claims Officer, it shall be on the basis that the value of the
Claim shall be resolved or adjudicated both for voting and distribution
purposes (and that it shall remain open to the parties to agree that the
Creditor’s Voting Claim may be settled by the CMI Known Creditor and the
CMI Entity (on consultation with the CMI CRA) without prejudice to
a
|
|
TOR_A2G:3919177.13
|
– 16
–
|
|
future
hearing by the Court or a Claims Officer to determine the Creditor’s
Distribution Claim). Thereafter, the Court or a Claims Officer, as the
case may be, shall resolve the dispute between the CMI Entity and such CMI
Known Creditor, and in any event, the Court or a Claims Officer shall, by
no later than 2 Calendar Days prior to the date of the Meeting, notify the
CMI Entity, such CMI Known Creditor and the Monitor of the determination
of the value of the CMI Known Creditor’s Voting Claim and Distribution
Claim. Such determination of the value of the Voting Claim and
Distribution Claim by the Court or the Claims Officer shall be deemed to
be the CMI Known Creditor’s Voting Claim and Distribution Claim for voting
and distribution purposes.
|
|
25.
|
THIS COURT ORDERS that
where the value of a CMI Known Creditor’s Voting Claim has not been
finally determined by the Court or a Claims Officer by the date on which a
vote is held, the relevant CMI Entity (on consultation with the CMI CRA,
if applicable) shall either:
|
|
|
(a)
|
accept
the CMI Known Creditor’s determination of the value of their Voting Claim
as set out in the applicable CMI Notice of Dispute of Claim only for the
purposes of voting, and conduct the vote of the Creditors on that basis
subject to a final determination of such CMI Known Creditor’s Voting
Claim, and in such case the Monitor shall record separately the value of
such CMI Known Creditor’s Voting Claim and whether such CMI Known Creditor
voted in favour of or against the
Plan;
|
|
|
(b)
|
adjourn
the Meeting until a final determination of the Voting Claim(s) is made;
or
|
|
|
(c)
|
deal
with the matter as the Court may otherwise direct or as the relevant CMI
Entity, the Monitor and the CMI Known Creditor may otherwise
agree.
|
|
26.
|
THIS COURT ORDERS that
in the event that a CMI Entity, with the assistance of the Monitor (on
consultation with the CMI CRA, if applicable), is unable to resolve a
dispute with a CMI Known Creditor regarding any Distribution Claim, the
CMI Entity (on consultation with the CMI CRA, if applicable) or the CMI
Known Creditor shall so notify the Monitor, and the CMI Known Creditor or
the CMI Entity, as the case may be.
|
|
TOR_A2G:3919177.13
|
– 17
–
|
|
The
decision as to whether the CMI Known Creditor’s Distribution Claim should
be adjudicated by the Court or a Claims Officer shall be in the sole
discretion of the CMI Entity (on consultation with the CMI CRA, if
applicable). Thereafter, the Court or a Claims Officer shall resolve the
dispute between the CMI Entity and such CMI Known
Creditor.
|
|
27.
|
THIS COURT ORDERS that a
CMI Known Creditor or a CMI Entity (on consultation with the CMI CRA, if
applicable), may, within seven (7) Calendar Days of notification of a
Claims Officer’s determination of the value of a CMI Known Creditor’s
Voting Claim or Distribution Claim, appeal such determination to the Court
by filing a notice of appeal, and the appeal shall be initially returnable
within ten (10) Calendar Days of the filing of such notice of appeal, such
appeal to be an appeal based on the record before the Claims Officer and
not a hearing de novo.
|
|
28.
|
THIS COURT ORDERS that
if neither party appeals the determination of value of a Voting Claim
or Distribution Claim by a Claims Officer within the time set
out in paragraph [27] above, the decision
of the Claims Officer in determining the value of a CMI Known Creditor’s
Distribution Claim shall be final and binding upon the relevant CMI
Entity, the Monitor and the CMI Known Creditor for distribution purposes
and there shall be no further right of appeal, review or recourse to the
Court from the Claims Officer’s final determination of a Distribution
Claim.
|
CLAIMS PROCEDURE FOR CMI
UNKNOWN CREDITORS
(i) Notice
of Claims
|
29.
|
THIS COURT ORDERS that
on or before [Filing Date plus 10
Days], 2009, the CMI Entities or the Monitor shall publish the CMI
Notice to Creditors, for at least [two] Business Days in
The Globe & Mail (National Edition), the National Post, La Presse and
The Wall Street Journal.
|
|
30.
|
THIS COURT ORDERS that
the Company shall send a CMI Claims Package to any CMI Unknown Creditor
who requests these documents. Such CMI Unknown Creditor must return a
completed CMI Proof of Claim to the CMI Entities by no later than the
|
|
TOR_A2G:3919177.13
|
–
18 –
|
|
CMI
Claims Bar Date.
|
|
31.
|
THIS COURT ORDERS that
any CMI Unknown Creditor that does not return a CMI Proof of Claim to the
CMI Entities by the CMI Claims Bar Date shall not be entitled to attend or
vote at any Meeting and shall not be entitled to receive any distribution
from any Plan and its Claim shall be forever extinguished and barred
without any further act or notification by the CMI
Entities.
|
(ii) Adjudication
of Claims
|
32.
|
THIS COURT ORDERS that
the CMI Entities, with the assistance of the Monitor and on consultation
with the CMI CRA, if applicable, shall review all CMI Proofs of Claim
received by the CMI Claims Bar Date and shall accept, revise or reject the
amount of each Claim set out therein for voting and/or distribution
purposes. The CMI Entities shall by no later than 11:59 p.m. on
[Filing Date plus 50
Days], 2009, notify each CMI Unknown Creditor who has delivered a
CMI Proof of Claim as to whether such CMI Unknown Creditor’s Claim as set
out therein has been revised or rejected for voting purposes (and for
distribution purposes, if the CMI Entities (on consultation with the CMI
CRA, if applicable), elect to do so), and the reasons therefor, by sending
a CMI Notice of Revision or Disallowance. Where the CMI Entities do not
send by such date a CMI Notice of Revision or Disallowance to a CMI
Unknown Creditor, the CMI Entities shall be deemed to have accepted such
CMI Unknown Creditor’s Claim in the amount set out in that CMI Unknown
Creditor’s CMI Proof of Claim as a Voting Claim for voting purposes only,
which shall be deemed to be that CMI Unknown Creditor’s Voting
Claim.
|
|
33.
|
THIS COURT ORDERS that
any CMI Unknown Creditor who intends to dispute a CMI Notice of Revision
or Disallowance sent pursuant to the immediately preceding paragraph
shall, by no later than 5:00 p.m. on [Filing Date plus 60
Days], 2009 deliver a CMI
Notice of Dispute of Revision or Disallowance to the CMI
Entities.
|
(iii) Resolution
of Claims
|
34.
|
THIS COURT ORDERS that
where a CMI Unknown Creditor that receives a CMI Notice of Revision or
Disallowance pursuant to paragraph [32] above does not file
a CMI
|
|
TOR_A2G:3919177.13
|
– 19
–
|
|
Notice
of Dispute of Revision or Disallowance by the time set out in paragraph
[33] above, the
value of such CMI Unknown Creditor’s Voting Claim or Distribution Claim
(if the CMI Notice of Revision or Disallowance dealt with the Distribution
Claim) shall be deemed to be as set out in the CMI Notice of Revision or
Disallowance.
|
|
35.
|
THIS COURT ORDERS that
in the event that a CMI Entity, with the assistance of the Monitor and on
consultation with the CMI CRA, if applicable, is unable to resolve a
dispute regarding any Voting Claim with a CMI Unknown Creditor, the CMI
Entity or the CMI Unknown Creditor shall so notify the Monitor, and the
CMI Unknown Creditor or the CMI Entity (on consultation with the CMI CRA,
if applicable), as the case may be. The decision as to whether the CMI
Unknown Creditor’s Voting Claim should be adjudicated by the Court or a
Claims Officer shall be in the sole discretion of the CMI Entity;
provided, however that to the extent a Claim is referred under this
paragraph to the Court or a Claims Officer, it shall be on the basis that
the value of the Claim shall be resolved or adjudicated both for voting
and distribution purposes (and that it shall remain open to the parties to
agree that the Creditor’s Voting Claim may be settled by the CMI Unknown
Creditor and the CMI Entity (on consultation with the CMI CRA, if
applicable) without prejudice to a future hearing by the Court or a Claims
Officer to determine the Creditor’s Distribution Claim). Thereafter, the
Court or a Claims Officer, as the case may be, shall resolve the dispute
between the CMI Entity and such CMI Unknown Creditor, and in any event,
the Court or a Claims Officer shall, by no later 2 Calendar Days prior to
the date of the Meeting, notify the CMI Entity, such CMI Unknown Creditor
and the Monitor of the determination of the value of the CMI Unknown
Creditor’s Voting Claim and Distribution Claim. Such determination of the
value of the Voting Claim and Distribution Claim by the Court or the
Claims Officer shall be deemed to be the CMI Unknown Creditor’s Voting
Claim and Distribution Claim for voting and distribution
purposes.
|
|
36.
|
THIS COURT ORDERS that
where the value of a CMI Unknown Creditor’s Voting Claim has not been
finally determined by the Court or the Claims Officer by the date on which
a vote is held, the relevant CMI Entity shall (on consultation with the
CMI CRA, if applicable) either:
|
|
TOR_A2G:3919177.13
|
– 20
–
|
(a)
|
accept
the CMI Unknown Creditor’s determination of the value of the Voting Claim
as set out in the applicable CMI Notice of Dispute of Revision or
Disallowance only for the purposes of voting and conduct the vote of the
Creditors on that basis subject to a final determination of such CMI
Unknown Creditor’s Voting Claim, and in such case the Monitor shall record
separately the value of such CMI Unknown Creditor’s Voting Claim and
whether such CMI Unknown Creditor voted in favour of or against the
Plan;
|
|
|
(b)
|
adjourn
the Meeting until a final determination of the Voting Claim(s) is made;
or
|
|
|
(c)
|
deal
with the matter as the Court may otherwise direct or as the relevant CMI
Entity, the Monitor and the CMI Unknown Creditor may otherwise
agree.
|
|
37.
|
THIS COURT ORDERS that
the CMI Entities, with the assistance of the Monitor (on consultation with
the CMI CRA, if applicable), shall review and consider all CMI Proofs of
Claim filed in accordance with this CMI Claims Procedure Order, in order
to determine the Distribution Claims. The relevant CMI Entities shall
notify each CMI Unknown Creditor who filed a CMI Proof of Claim and who
did not receive a CMI Notice of Revision or Disallowance for distribution
purposes pursuant to paragraph [32] herein as to
whether such CMI Unknown Creditor’s Claim as set out in such CMI Unknown
Creditor’s CMI Proof of Claim has been revised or rejected for
distribution purposes, and the reasons therefore, by delivery of a CMI
Notice of Revision or Disallowance. Where the relevant CMI Entities do not
send a CMI Notice of Revision or Disallowance for distribution purposes to
a CMI Unknown Creditor, the relevant CMI Entities and the Monitor shall be
deemed to have accepted the amount of such CMI Unknown Creditor’s Claim as
set out in such CMI Unknown Creditor’s CMI Proof of Claim as such CMI
Unknown Creditor’s Distribution
Claim.
|
|
38.
|
THIS COURT ORDERS that
any CMI Unknown Creditor who intends to dispute a CMI Notice of Revision
or Disallowance for distribution purposes shall no later than 21 Calendar
Days after receiving the notice referred to in paragraph [37], deliver a CMI
Notice of Dispute of Revision or Disallowance to the CMI
Entities.
|
|
TOR_A2G:3919177.13
|
– 21
–
|
39.
|
THIS COURT ORDERS that
where a CMI Unknown Creditor that receives a CMI Notice
of Revision or Disallowance pursuant to paragraph [37] above does not
return a CMI Notice of Dispute of Revision or Disallowance for
distribution purposes to the CMI Entities by the time set out in paragraph
[38] above, the
value of such CMI Unknown Creditor’s Distribution Claim shall be deemed to
be as set out in the CMI Notice of Revision or Disallowance for
distribution purposes and the CMI Unknown Creditor will be barred from
disputing or appealing same.
|
|
|
|
|
40.
|
THIS COURT ORDERS that
in the event that a CMI Entity (on consultation with the CMI CRA, if
applicable) is unable to resolve a dispute with a CMI Unknown Creditor
regarding any Distribution Claim, the CMI Entity or the CMI Unknown
Creditor shall so notify the Monitor, and the CMI Unknown Creditor or the
CMI Entity, as the case may be. The decision as to whether the CMI Unknown
Creditor’s Distribution Claim should be adjudicated by the Court or a
Claims Officer shall be in the sole discretion of the CMI Entity (on
consultation with the CMI CRA, if applicable). Thereafter, the Court or a
Claims Officer shall resolve the dispute between the CMI Entity and such
CMI Unknown Creditor.
|
|
41.
|
THIS COURT ORDERS that
either a CMI Unknown Creditor or a CMI Entity may, within seven (7)
Calendar Days of notification of a Claims Officer’s determination of the
value of a CMI Unknown Creditor’s Voting Claim or Distribution Claim,
appeal such determination to the Court by filing a notice of appeal, and
the appeal shall be initially returnable within ten (10) Calendar Days of
the filing of such notice of appeal, such appeal to be an appeal based on
the record before the Claims Officer and not a hearing de
novo.
|
|
42.
|
THIS COURT ORDERS that
if neither party appeals the determination of value of a Voting Claim or
Distribution Claim by a Claims Officer within the time set out in
paragraph [41]
above, the decision of the Claims Officer in determining the value
of a CMI Unknown Creditor’s Voting Claim or Distribution Claim shall be
final and binding upon the relevant CMI Entity, the Monitor and the CMI
Unknown Creditor for distribution purposes and there shall be no further
right of appeal, review or recourse to
|
|
TOR_A2G:3919177.13
|
– 22
–
|
|
the
Court from the Claims Officer’s final determination of a Voting Claim or
Distribution Claim.
|
SET-OFF
|
43.
|
THIS COURT ORDERS that
the CMI Entities may set-off (whether by way of legal, equitable or
contractual set-off) against payments or other distributions to be made
pursuant to the Plan to any Creditor, any claims of any nature whatsoever
that any of the CMI Entities may have against such Creditor, however,
neither the failure to do so nor the allowance of any Claim hereunder
shall constitute a waiver or release by the CMI Entities of any such claim
that the CMI Entities may have against such
Creditor.
|
NOTICE OF
TRANSFEREES
|
44.
|
THIS COURT ORDERS that
leave is hereby granted from the date of this Order until ten (10)
Business Days prior to the date fixed by the Court for the Meeting to
permit a Creditor to provide notice of assignment or transfer of a Claim to the CMI
Entities, subject to paragraph [45].
|
|
45.
|
THIS COURT ORDERS that
if, after the Filing Date, the holder of a Claim transfers or assigns the
whole of such Claim to another Person, neither the Monitor nor the CMI
Entities shall be obligated to give notice or otherwise deal with the
transferee or assignee of such Claim in respect thereof unless and until
actual notice of transfer or assignment, together with satisfactory
evidence of such transfer or assignment, shall have been received and
acknowledged by the relevant CMI Entity and the Monitor in writing and
thereafter such transferee or assignee shall for the purposes hereof
constitute the “Creditor” in respect of such Claim. Any such transferee or
assignee of a Claim shall be bound by any notices given or steps taken in
respect of such Claim in accordance with this Order prior to receipt and
acknowledgement by the relevant CMI Entity and the Monitor of satisfactory
evidence of such transfer or assignment. A transferee or assignee of a
Claim takes the Claim subject to any rights of set-off to which a CMI
Entity may be entitled with respect to such Claim. For greater certainty,
a transferee or assignee of a Claim is not entitled to set-off, apply,
merge, consolidate or combine any
Claims
|
|
TOR_A2G:3919177.13
|
– 23
–
|
|
assigned
or transferred to it against or on account or in reduction of any amounts
owing by such Person to any of the CMI Entities. No transfer or assignment
shall be received for voting purposes unless such transfer shall have been
received by the CMI Entities no later than ten (10) Business Days prior to
the date to be fixed by the Court for the Meeting, failing which the
original transfer shall have all applicable rights as the “Creditor” with
respect to such Claim as if no transfer of the Claim had occurred.
Reference to transfer in this order includes a transfer or assignment
whether absolute or intended as
security.
|
SERVICE AND
NOTICES
|
46.
|
THIS COURT ORDERS that
the CMI Entities and the Monitor may, unless otherwise specified by this
CMI Claims Procedure Order, serve and deliver the CMI Claims Package, any
letters, notices or other documents to Creditors or any other interested
Person by forwarding true copies thereof by prepaid ordinary mail,
courier, personal delivery, facsimile transmission or email to such
Persons at the physical or electronic address, as applicable, last shown
on the books and records of the CMI Entities or set out in such Creditor’s
CMI Proof of Claim. Any such service and delivery shall be deemed to have
been received: (i) if sent by ordinary mail, on the third Business Day
after mailing within Ontario, the fifth Business Day after mailing within
Canada (other than within Ontario), and the tenth Business Day after
mailing internationally; (ii) if sent by courier or personal delivery, on
the next Business Day following dispatch; and (iii) if delivered by
facsimile transmission or email by 6:00 p.m. on a Business Day, on such
Business Day and if delivered after 6:00 p.m. or other than on a Business
Day, on the following Business Day.
|
|
47.
|
THIS COURT ORDERS that
any notice or communication required to be provided or delivered by a
Creditor to the CMI Entities under this CMI Claims Procedure Order shall
be in writing in substantially the form, if any, provided for in this CMI
Claims Procedure Order and will be sufficiently given only if delivered by
prepaid registered mail, courier, personal delivery, facsimile
transmission or email addressed
to:
|
Canwest
Global Communications Corp. et al
|
TOR_A2G:3919177.13
|
– 24
–
Claims
Process
[Address]
Attention: l [NTD: Company to advise as to
appropriate person]Telephone: l
Fax:
l
Email:
l
Any such
notice or communication delivered by a Creditor shall be deemed to be received
upon actual receipt by the CMI Entities thereof during normal business hours on
a Business Day or if delivered outside of normal business hours, the next
Business Day.
|
48.
|
THIS COURT ORDERS that
if during any period during which notices or other communications are
being given pursuant to this CMI Claims Procedure Order a postal strike or
postal work stoppage of general application should occur, such notices or
other communications sent by ordinary mail and then not received shall
not, absent further Order of this Court, be effective and notices and
other communications given hereunder during the course of any such postal
strike or work stoppage of general application shall only be effective if
given by courier, personal delivery, facsimile transmission or email in accordance with
this Order.
|
|
49.
|
THIS COURT ORDERS that
in the event that this CMI Claims Procedure Order is later amended by
further order of the Court, the CMI Entities or the Monitor may post such
further order on the Monitor’s website and such posting shall constitute
adequate notice to Creditors of such amended claims
procedure.
|
|
|
MISCELLANEOUS
|
|
50.
|
THIS COURT ORDERS that
notwithstanding any other provisions of this CMI Claims Procedure Order,
the solicitation by the Monitor or the CMI Entities of CMI Proofs of
Claim, and the filing by any Creditor of any CMI Proof of Claim shall not,
for that reason only, grant any person any standing in these proceedings
or rights under any proposed Plan. The CMI Entities shall not oppose the
Ad Hoc Committee and the Noteholder Trustee seeking standing in any
proceedings before a Claims Officer, this Court or otherwise in respect of
the determination of any Claims.
|
|
TOR_A2G:3919177.13
|
– 25
–
|
51.
|
THIS COURT ORDERS that
nothing in this CMI Claims Procedure Order shall constitute
or be deemed to constitute an allocation or assignment of Claims or
Excluded Claims by the CMI Entities into particular affected or unaffected
classes for the purpose of a Plan and, for greater certainty, the
treatment of Claims, Excluded Claims or any other claims is to be subject
to a Plan and the classes of creditors for voting and distribution
purposes shall be subject to the terms of any proposed Plan or further
order of this Court.
|
|
|
|
|
52.
|
THIS COURT ORDERS that
in the event that no Plan is approved by this Court, the CMI Claims Bar
Date shall be of no effect in any subsequent proceeding or distribution
with respect to any and all Claims made by
Creditors.
|
|
53.
|
THIS COURT ORDERS AND
REQUESTS the aid and recognition of any court or any judicial,
regulatory or administrative body in any province or territory of Canada
(including the assistance of any court in Canada pursuant to section 17 of
the CCAA) and the Federal Court of Canada and any judicial, regulatory or
administrative tribunal or other court constituted pursuant to the
Parliament of Canada or the legislature of any province and any court or
any judicial regulatory body of the United States and the states or other
subdivisions of the United States and of any other nation or state, to act
in aid of and to be complementary to this Court in carrying out the terms
of this Order.
|
|
TOR_A2G:3919177.13
|
|
|
SCHEDULE
“A”
|
|
|
APPLICANTS
|
|
1.
|
Canwest
Global Communications Corp.
|
|
2.
|
Canwest
Media Inc.
|
|
3.
|
MBS
Productions Inc.
|
|
4.
|
Yellow
Card Productions Inc.
|
|
5.
|
Canwest
Global Broadcasting Inc./Radiodiffusion Canwest Global
Inc.
|
|
6.
|
Canwest
Television GP Inc.
|
|
7.
|
Fox
Sports World Canada Holdco Inc.
|
|
8.
|
Global
Centre Inc.
|
|
9.
|
Multisound
Publishers Ltd.
|
|
10.
|
Canwest
International Communications Inc.
|
|
11.
|
Canwest
Irish Holdings (Barbados) Inc.
|
|
12.
|
Western
Communications Inc.
|
|
13.
|
Canwest
Finance Inc./Financiere Canwest
Inc.
|
|
14.
|
National
Post Holdings Ltd.
|
|
15.
|
Canwest
International Management Inc.
|
|
16.
|
Canwest
International Distribution Limited
|
|
17.
|
Canwest
MediaWorks Turkish Holdings (Netherlands)
B.V.
|
|
18.
|
CGS
International Holdings (Netherlands)
B.V.
|
|
TOR_A2G:3919177.13
|
– 27
–
|
19.
|
CGS
Debenture Holding (Netherlands)
B.V.
|
|
20.
|
CGS
Shareholding (Netherlands) B.V.
|
|
21.
|
CGS
NZ Radio Shareholding (Netherlands)
B.V.
|
|
22.
|
4501063
Canada Inc.
|
|
23.
|
4501071
Canada Inc.
|
|
24.
|
30109,
LLC
|
|
25.
|
XxxXxxx
XxxxxXxxxx (XX) Holdings Corp.
|
|
TOR_A2G:3919177.13
|
SCHEDULE
“B”
PARTNERSHIPS
|
1.
|
Canwest
Television Limited Partnership
|
|
2.
|
Fox
Sports World Canada Partnership
|
|
3.
|
The
National Post Company/La Publication National
Post
|
|
TOR_A2G:3919177.13
|
SCHEDULE
“C”
Court
File No. l
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’ CREDITORS
ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
TO: [insert name and address of
creditor]
This
notice is issued pursuant to the Claims Procedure for Canwest Global
Communications Corp. (“Canwest Global”) and the other applicants listed on
Schedule “A” (the “Applicants”), their Directors and Officers and the
partnerships listed on Schedule “B” (collectively and together with Canwest
Global and the Applicants, the “CMI Entities”) approved by the Order of the
Honourable l
granted [October 6], 2009 in the CCAA
Proceedings (the “Order”). Capitalized terms used herein are as defined in the
Order unless otherwise noted. A copy of the Order can be obtained
from the website of FTI Consulting Canada ULC, the Court-appointed Monitor of
the CMI Entities, at xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx.
The CMI
Claims Schedule prepared by the CMI Entities sets your total Claim to be
$_________________________________, against the following entities:
|
TOR_A2G:3919177.13
|
– 2
–
Entity Amount of
Claim
l
$l
If you
agree that the foregoing amount accurately reflects your Claim, you are not
required to respond to this CMI General Notice of Claim. If you
disagree with the amount of your Claim as set out herein, for either voting
and/or distribution purposes, and/or if you believe you have a Director/Officer
Claim and/or a Restructuring Period Claim (as defined in the Order) you must
deliver a CMI Notice of Dispute of Claim to the CMI Entities, by no later than
5:00 p.m. (Toronto Time) on [Filing Date plus
39 Days,] 2009 (the “CMI Claims Bar Date”).
You may
accept the Claim as set out in this CMI General Notice of Claim for voting
purposes without prejudice to your rights to dispute the Claim for distribution
purposes. IF YOU FAIL TO DELIVER A CMI NOTICE OF DISPUTE OF CLAIM for
voting and distribution purposes by the CMI Claims Bar Date, then you shall be
deemed to have accepted your Claim as set out in this CMI General Notice of
Claim and your Claim as set out in this CMI General Notice of Claim shall be
deemed to be both your Voting Claim and Distribution Claim.
DATED at
Toronto, this ________day of l , 2009.
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
l
Tel: l
Fax: l
Email: l
|
TOR_A2G:3919177.13
|
|
|
|
|
|
|
SCHEDULE
“D”
CMI
INSTRUCTION LETTER
FOR
THE CLAIMS PROCEDURE FOR KNOWN CREDITORS OF
CANWEST
GLOBAL COMMUNICATIONS CORP. ( “Canwest Global”) AND THE OTHER APPLICANTS LISTED
ON SCHEDULE “A” (the “Applicants”) AND PARTNERSHIPS LISTED ON SCHEDULE “B”
(collectively and together with Canwest Global and the Applicants, the “CMI
Entities”)
CLAIMS
PROCEDURE
By order
of the Honourable l
dated [October 6], 2009
(as may be amended from time to time, the “CMI Claims Procedure Order”) under
the Companies’ Creditors
Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”), the CMI Entities and
their Directors and Officers have been authorized to conduct a claims procedure
(the “Claims Procedure”). A copy of the CMI Claims Procedure Order and other
public information concerning these proceedings can be obtained from the website
of FTI Consulting Canada ULC, the Court-appointed Monitor of the CMI Entities,
at xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx.
This
letter provides general instructions for completing the CMI General Notice of
Dispute of Claim form. As of the date of this instruction letter, the CMI
Entities have not yet filed a plan of arrangement or compromise pursuant to the
CCAA. Defined terms not defined within this instruction letter shall have the
meaning ascribed thereto in the CMI Claims Procedure Order.
The
Claims Procedure is intended for any Person with a Claim of any kind or nature
whatsoever, other than an Excluded Claim, against any or all of the CMI Entities
or any or all of the Directors or Officers of any or all of the Applicants
arising on or prior to [October
6], 2009, whether
unliquidated, contingent or otherwise. In addition, the Claims Procedure is
intended for any Person with any Claim arising after [October 6], 2009 against any
or all of the Directors or Officers of any or all of the Applicants or against
any or all of the CMI Entities as the result of the restructuring, repudiation,
termination or breach of any contract, lease or other type of agreement. Please
review the CMI Claims Procedure Order for the complete definition of Claim and
Excluded Claim.
|
TOR_A2G:3919177.13
|
- 2 -
All
notices and inquiries with respect to the Claims Procedure should be directed to
the CMI Entities by prepaid registered mail, courier, personal delivery,
facsimile transmission or email at the address below:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention: l [NTD: Company to
advise as to appropriate person]
Tel: l
Fax: l
Email: l
FOR
CREDITORS DISPUTING A CMI GENERAL NOTICE OF CLAIM
If you
received a CMI General Notice of Claim from any or all of the CMI Entities and
you dispute the value of your Claim against any or all of the CMI Entities for
voting and/or distribution purposes and/or you believe you have a Restructuring
Period Claim and/or a Director/Officer Claim, you must file a CMI Notice of
Dispute of Claim form with the CMI Entities. All CMI Notices of Dispute of Claim
must be received by the CMI
Entities on or before 5:00 pm (Eastern Daylight Time) on [Filing Date plus 39
Days], 2009, unless the Monitor and the CMI Entities agree in writing or
the Court orders that the CMI Notice of Dispute Claim be accepted after that
date.
All
Claims shall be converted to Canadian dollars at the Bank of Canada United
States/Canadian Dollar noon exchange rate in effect over the ten day period
preceding the filing of a Plan.
Additional
CMI Notices of Dispute of Claim forms can be obtained from the Monitor’s website
at xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx or the CMI Entities’ website at
l
or by contacting the CMI Entities at l and by providing the
particulars as to your name, address, facsimile number, email address and
contact person. Once the CMI Entities have this information, you will receive,
as soon as practicable, additional CMI Notices of Dispute of Claim
forms.
DATED
this ____________day of ______________, 2009.
|
TOR_A2G:3919177.13
|
SCHEDULE
“E”
Court
File No. l
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’ CREDITORS
ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
TO: [insert name and address of
employee]
This
notice is issued pursuant to the claims procedure for Canwest Global
Communications Corp. (“Canwest Global”) and the other applicants listed on
Schedule “A” (the “Applicants”), their Directors and Officers and partnerships
listed on Schedule “B” (collectively and together with Canwest Global and the
Applicants, the “CMI Entities”) approved by the Order of the Honourable l granted [October 6], 2009 in the CCAA
Proceedings (the “CMI Claims Procedure Order”). Capitalized terms used herein
are as defined in the CMI Claims Procedure Order unless otherwise
noted. A copy of the CMI Claims Procedure Order can be obtained from
the website of FTI Consulting Canada ULC, the Court-appointed Monitor of the CMI
Entities, at xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx.
The
Initial Order of the Honourable l granted [October 6], 2009 in the CCAA
Proceedings authorizes the CMI Entities to pay, and shall pay, employees for all
Wages and Benefits outstanding as of the Filing Date. Accordingly, you will be
paid on the next scheduled date. Therefore, the CMI Claims Schedule prepared by
the CMI Entities sets your Claim against the CMI Entities to be $0
in respect of Wages and Benefits.
|
TOR_A2G:3919177.13
|
– 2
–
If you
agree that the foregoing amount accurately reflects your Claim, you are not
required to respond to this CMI Employee Notice of Claim. If you believe you have you
still have a Claim in respect of Wages and Benefits, or any other Claim,
you must deliver a CMI Notice of Dispute of Claim to the CMI Entities, by no
later than 5:00 p.m.
Eastern Daylight Time on
[Filing Date plus 39 Days,] 2009 (the “CMI Claims Bar
Date”).
You may
accept the Claim as set out in this CMI Employee Notice of Claim for voting
purposes without prejudice to your rights to dispute the Claim for distribution
purposes. IF YOU FAIL TO DELIVER A CMI NOTICE OF DISPUTE OF CLAIM for
voting and distribution purposes to the CMI Entities by the CMI Claims Bar Date,
then you shall be deemed to have accepted your Claim as set out in this CMI
Employee Notice of Claim as your total Claim against the CMI Entities and your
Claim as set out in this CMI Employee Notice of Claim shall be deemed to be both
your Voting Claim and Distribution Claim.
DATED at
Toronto, this ______day of l , 2009.
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
l [NTD: Company to advise as to
appropriate person]
Tel: l
Fax: l
Email: l
|
TOR_A2G:3919177.13
|
SCHEDULE
“F”
CMI
EMPLOYEE INSTRUCTION LETTER
FOR
THE CLAIMS PROCEDURE FOR KNOWN CREDITORS OF
CANWEST
GLOBAL COMMUNICATIONS CORP. (the “Canwest Global”) AND THE OTHER APPLICANTS
LISTED ON SCHEDULE “A” (the “Applicants”) AND PARTNERSHIP LISTED ON SCHEDULE “B”
(collectively and together with Canwest Global, the “CMI Entities”)
CLAIMS
PROCEDURE
By order
of the Honourable l
dated [October 6], 2009 (as may be amended
from time to time, the “CMI Claims Procedure Order”) under the Companies’ Creditors Arrangement
Act, R.S.C. 1985, c. C-36 (the “CCAA”), the CMI Entities and their
Directors and Officers have been authorized to conduct a claims procedure (the
“Claims Procedure”). A copy of the CMI Claims Procedure Order and other public
information concerning these proceedings can be obtained from the website of FTI
Consulting Canada ULC, the Court-appointed Monitor of the CMI Entities, at
xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx.
This
letter provides general instructions for completing the CMI Notice of Dispute of
Claim form. As of the date of this instruction letter, the CMI Entities have not
yet filed a plan of arrangement or compromise pursuant to the CCAA. Defined
terms not defined within this instruction letter shall have the meaning ascribed
thereto in the CMI Claims Procedure Order.
The
Claims Procedure is intended for any Person with a Claim of any kind or nature
whatsoever, other than an Excluded Claim, against any or all of the CMI Entities
or against any or all of the Directors or Officers of any or all of the
Applicants arising on or prior to [October 6], 2009, whether unliquidated,
contingent or otherwise. In addition, the Claims Procedure is intended for any
Person with any Claim arising after [October 6], 2009 against any
or all of the Directors or Officers of any or all of the Applicants or against
any or all of the CMI Entities as the result of the restructuring, repudiation,
termination or breach prior of any contract, lease or other type of agreement.
Please review the CMI Claims Procedure Order for the complete definition of
Claim and Excluded Claim.
|
TOR_A2G:3919177.13
|
– 2
–
All
notices and inquiries with respect to the Claims Procedure should be directed to
the CMI Entities by prepaid registered mail, courier, personal delivery,
facsimile transmission or email at the address below:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
[NTD: Company to advise as to
appropriate person]
Tel:
Fax:
Email:
FOR
CMI EMPLOYEES DISPUTING A CMI EMPLOYEE NOTICE OF CLAIM
If you
received a CMI Employee Notice of Claim from any or all of the CMI Entities
and you believe you
have you still have a Claim in respect of Wages and Benefits, or any other
Claim, you must file a CMI Notice of Dispute of Claim form with the CMI
Entities. All CMI Notices of Dispute of Claim must be received by the CMI Entities
on or before 5:00 pm (Toronto Time) on [Filing Date plus 39 Days], 2009,
unless the Monitor and the CMI Entities agree in writing or the Court orders
that the CMI Notice of Dispute of Claim be accepted after that
date.
All
Claims shall be converted to Canadian dollars at the Bank of Canada United
States/Canadian Dollar noon exchange rate in effect over the ten day period
preceding the filing of a Plan.
Additional
CMI Notices of Dispute Claim forms can be obtained from the Monitor’s website at
xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx or the CMI Entities’ website at
l or by contacting
the CMI Entities at l and by providing the
particulars as to your name, address, facsimile number, email address and
contact person. Once the CMI Entities have this information, you will receive,
as soon as practicable, additional CMI Notices of Dispute of Claim
forms.
DATED
this ____________day of ______________, 2009.
|
TOR_A2G:3919177.13
|
SCHEDULE
“G”
Court
File No. l
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’ CREDITORS
ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
|
1.
|
PARTICULARS OF
CREDITOR:
|
|
|
(a)
|
Full
Legal Name of Creditor:
|
|
|
(b)
|
Full
Mailing Address of Creditor:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c)
|
Telephone
Number of Creditor:
|
|
|
(d)
|
Facsimile
Number of Creditor:
|
|
|
(e)
|
E-mail
Address of Creditor:
|
|
|
(f)
|
Attention
(Contact Person):
|
|
TOR_A2G:3919177.13
|
– 2
–
|
2.
|
PARTICULARS
OF ORIGINAL CREDITOR FROM WHOM YOU ACQUIRED CLAIM, IF
APPLICABLE:
|
|
|
|
(a)
|
Have
you acquired this Claim by assignment?
|
Yes
o No
o
|
(if yes,
attach documents evidencing assignment)
|
|
(b)
|
Full
Legal Name of original creditor(s):
|
|
3.
|
DISPUTE OF VALUATION OF CLAIM
FOR VOTING AND/OR DISTRIBUTION
PURPOSES:
|
(Any
Claims denominated in a foreign currency shall be converted to Canadian dollars
at the Bank of Canada United States/Canadian Dollar noon exchange rate in effect
over the ten day period preceding the filing of a Plan.)
We hereby disagree with the value of
our Claim as set out in the CMI General Notice of Claim / CMI Employee Notice of
Claim dated , as set out below:
|
Claim per
Notice of Claim
|
Disputed for
|
Claim per Creditor
|
||||||||||||
|
Voting
|
Distribution
|
Voting
|
Distribution
|
Voting
|
Distribution
|
|||||||||
|
Canwest
Global Communications Corp.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
Media Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
MBS
Productions Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Yellow
Card Productions Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
Global Broadcasting Inc./Radiodiffusion Canwest Global
Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
Television GP Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Fox
Sports World Canada Holdco Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Global
Centre Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Multisound
Publishers Ltd.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
International Communications Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
TOR_A2G:3919177.13
|
– 3
–
|
Claim per
Notice of Claim
|
Disputed for
|
Claim per Creditor
|
||||||||||||
|
Voting
|
Distribution
|
Voting
|
Distribution
|
Voting
|
Distribution
|
|||||||||
|
Canwest
Irish Holdings (Barbados) Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Western
Communications Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
Finance Inc./Financiere Canwest Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
National
Post Holdings Ltd.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
International Management Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
International Distribution Limited
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
MediaWorks Turkish Holdings (Netherlands) B.V.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
CGS
International Holdings (Netherlands) B.V.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
CGS
Debenture Holding (Netherlands) B.V.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
CGS
Shareholding (Netherlands) B.V.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
CGS
NZ Radio Shareholding (Netherlands) B.V.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
4501063
Canada Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
4501071
Canada Inc.
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Canwest
Television Limited Partnership
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
Fox
Sports World Canada Partnership
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
The
National Post Company/La Publication National Post
|
$
|
$
|
o | o |
$
|
$
|
||||||||
|
TOTAL
(Consolidated)
|
$
|
$
|
$
|
$
|
||||||||||
-
4 -
4. REASONS FOR DISPUTE:
(Provide
full particulars of the Claim and supporting documentation, including amount,
description of transaction(s) or agreement(s) giving rise to the Claim, name of
any guarantor(s) which has guaranteed the Claim, and amount of Claim allocated
thereto, date and number of all invoices, particulars of all credits, discounts,
etc. claimed.)
|
5.
|
RESTRUCTURING PERIOD
CLAIMS:
|
The
undersigned asserts a Claim against any or all of the CMI Entities arising out
of the restructuring, repudiation, termination or breach after the Filing Date
of any contract, lease or other agreement.
Yes o No
o
(If
Yes, provide full particulars of the Claim and supporting documentation,
including amount, description of transaction(s) or agreement(s) giving rise to
the Claim, name of any guarantor(s) which has guaranteed the Claim, and amount
of Claim allocated thereto, date and number of all invoices, particulars of all
credits, discounts, etc. claimed.)
|
6.
|
DIRECTORS/OFFICERS
CLAIMS:
|
The
undersigned asserts a Director/Officer Claim against any or all of the Directors
or Officers of any or all of the Applicants.
Yes
o No
o
(If
Yes, provide full particulars of the Claim and supporting documentation,
including
|
TOR_A2G:3919177.13
|
– 5
–
amount,
description of transaction(s) or agreement(s) giving rise to the Claim, name of
any guarantor(s) which has guaranteed the Claim, and amount of Claim allocated
thereto, date and number of all invoices, particulars of all credits, discounts,
etc. claimed.)
This CMI
Notice of Dispute of Claim must be returned to and received by the CMI Entities
by no later than 5:00 p.m.
(Toronto Time) on [Filing Date plus 39
Days], 2009, the
CMI Claims Bar Date, at the following address or facsimile:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
l [NTD: Company to advise as to
appropriate person]
Tel: l
Fax: l
Email: l
Dated
at ____________this ________ day of ______________,
2009.
Per: _________________________
|
TOR_A2G:3919177.13
|
SCHEDULE
“H”
Court
File No. l
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’ CREDITORS
ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
TO: [insert name and address of
creditor]
The CMI
Entities have reviewed your CMI Proof of Claim dated ,
2009, and have revised or rejected your claim for the following
reasons:
|
TOR_A2G:3919177.13
|
– 2
–
Subject
to further dispute by you in accordance with the provisions of the CMI Claims
Procedure Order, your Claim will be allowed as follows:
|
CMI
Entity
|
Prefiling
Claim per Proof of Claim
|
Revised/Rejected
for Voting/
Distribution
|
Allowed
as Revised for Voting/
Distribution
|
Restructuring
Period Claim per Proof of Claim
|
Revised/Rejected
for Voting/
Distribution
|
Allowed
as Revised for Voting/
Distribution
|
|
Director/
Officer
Claim
|
Related
to Prefiling Claim per Proof of Claim
|
Revised/Rejected
for Voting/
Distribution
|
Allowed
as Revised for Voting/
Distribution
|
Related
to Restructuring Period Claim per Proof of Claim
|
Revised/Rejected
for Voting/
Distribution
|
Allowed
as Revised for Voting/
Distribution
|
If you
intend to dispute this CMI Notice of Revision or Disallowance, you must, if the
CMI Entities have elected to value your Claim for voting purposes and
distribution purposes (for voting purposes only), no later than 5:00 p.m. (Toronto Time) on
[Filing Date plus 60
Days], 2009 (and
for distribution purposes, if the CMI Entities have elected to value your claim
for distribution purposes in accordance with the CMI Claims Procedure Order, no
later than 21 Calendar Days
after you receive such CMI Notice of Revision or Disallowance, notify the
CMI Entities of such intent by delivery of a CMI Notice of Dispute of Revision
or Disallowance in accordance with the CMI Claims Procedure Order at the
following address or facsimile:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
l [NTD: Company to advise as to
appropriate person]
Tel: l
Fax: l
Email: l
|
TOR_A2G:3919177.13
|
– 3
–
If you do
not deliver a CMI Notice of Dispute of Revision or Disallowance, the value of
your Claim shall be deemed to be as set out in this CMI Notice of Revision or
Disallowance.
DATED at
Toronto, this________day of ____________, 2009.
|
TOR_A2G:3919177.13
|
SCHEDULE
“I”
Court
File No. l
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’
CREDITORS
ARRANGEMENT ACT, R.S.C. 1985,
c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
|
1.
|
PARTICULARS OF
CREDITOR:
|
|
|
(a)
|
Full
Legal Name of Creditor:
|
|
|
(b)
|
Full
Mailing Address of Creditor:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c)
|
Telephone
Number of Creditor:
|
|
|
(d)
|
Facsimile
Number of Creditor:
|
|
|
(e)
|
E-mail
Address of Creditor:
|
|
|
(f)
|
Attention
(Contact Person):
|
|
TOR_A2G:3919177.13
|
- 2 -
|
2.
|
PARTICULARS
OF ORIGINAL CREDITOR FROM WHOM YOU ACQUIRED CLAIM, IF
APPLICABLE:
|
|
|
(a)
|
Have
you acquired this Claim by assignment?
|
Yes
o No
o
|
(if yes,
attach documents evidencing assignment)
|
|
(b)
|
Full
Legal Name of original creditor(s):
|
|
3.
|
DISPUTE OF REVISION OR
DISALLOWANCE OF CLAIM FOR VOTING AND/OR DISTRIBUTION
PURPOSES:
|
(Any
Claims denominated in a foreign currency shall be converted to Canadian dollars
at the Bank of Canada United States/Canadian Dollar noon exchange rate in effect
over the ten day period preceding the filing of a Plan.)
We hereby
disagree with the value of our Claim as set out in the CMI Notice of Revision or
Disallowance dated ____________, as set out below:
(Insert
particulars of Claim per CMI Notice of Revision or Disallowance, whether the
Claim is disputed for voting and/or distribution purposes, and the value of your
Claim as asserted for voting and/or distribution purposes)
|
4.
|
REASONS FOR
DISPUTE:
|
(Provide
full particulars of the Claim and supporting documentation, including amount,
description of transaction(s) or agreement(s) giving rise to the Claim, name of
any guarantor(s) which has guaranteed the Claim, and amount of Claim allocated
thereto, date and number of all invoices, particulars of all credits, discounts,
etc. claimed.)
|
TOR_A2G:3919177.13
|
- 3 -
This CMI
Notice of Revision or Disallowance must be returned to and received by the CMI
Entities, if the CMI Entities have elected to value your Claim for voting
purposes and distribution purposes (for voting purposes only), no later than
5:00 p.m. (Toronto Time)
on [Filing Date plus 60
Days], 2009 (and
for distribution purposes, if the CMI Entities have elected to value your claim
for distribution purposes in accordance with the CMI Claims Procedure Order, no
later than 21 Calendar Days
after you receive such
CMI Notice of Revision or Disallowance at the following address or
facsimile:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
l [NTD: Company to advise as to
appropriate person]
Tel: l
Fax: l
Email:
l
Dated
at ____________ this________ day of ________________
2009.
Per: _________________________________
|
TOR_A2G:3919177.13
|
|
|
SCHEDULE
“J”
|
NOTICE
TO CREDITORS OF Canwest Global Communications Corp., Canwest Media Inc., MBS
Productions Inc., Yellow Card Productions Inc., Canwest Global Broadcasting
Inc./Radiodiffusion Canwest Global Inc., Canwest Television GP Inc., Fox Sports
World Canada Holdco Inc., Global Centre Inc., Multisound Publishers Ltd.,
Canwest International Communications Inc., Canwest Irish Holdings (Barbados)
Inc., Western Communications Inc., Canwest Finance Inc./Financiere Canwest Inc.,
National Post Holdings Ltd., Canwest International Management Inc., Canwest
International Distribution Limited, Canwest MediaWorks Turkish Holdings
(Netherlands) B.V., CGS International Holdings (Netherlands) B.V., CGS Debenture
Holding (Netherlands) B.V., CGS Shareholding (Netherlands) B.V., CGS NZ Radio
Shareholding (Netherlands) B.V., 4501063 Canada Inc., 4501071 Canada Inc.
(collectively, the “Applicants”), Canwest Television Limited Partnership, Fox
Sports World Canada Partnership, and the National Post Company/La Publication
National Post (collectively, the “Partnerships, and together with the
Applicants, the “CMI Entities”) and/or their Directors and Officers
|
RE:
|
NOTICE
OF CLAIMS BAR DATE IN COMPANIES’ CREDITORS ARRANGEMENT ACT (“CCAA”)
PROCEEDINGS
|
NOTICE IS HEREBY GIVEN that
pursuant to an Order of the Ontario Superior Court of Justice made [October 6], 2009 (the
“Order”), a claims procedure was approved for the determination of all claims,
to be affected under the CCAA Proceedings against the CMI Entities and the
Directors and Officers of the Applicants.
PLEASE TAKE NOTICE that the
claims procedure applies only to Claims of Creditors described in the
Order. No other claims are being compromised. A copy of the Order and
other public information concerning the CCAA Proceedings can be found at the
following
website: xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx.
THE CLAIMS BAR DATE is 5:00 p.m. (Toronto Time) on
[Filing Date plus 39
Days],
2009. Any creditor who has not received a CMI General Notice
of Claim or CMI Employee Notice of Claim and who believes that they have a Claim
against one or more of the
|
TOR_A2G:3919177.13
|
- 2 -
CMI
Entities or a Director/Officer Claim under the Order, other than a CMI
Noteholder, must contact the CMI Entities in order to obtain a CMI Proof of
Claim. CMI Proofs of Claim must be filed with the CMI Entities on or
before the CMI Claims Bar Date.
HOLDERS OF CLAIMS who have not
received a CMI Notice of Claim and who do not file a CMI Proof of Claim by the
CMI Entities Claims Bar Date shall not be entitled to vote at any meeting of
creditors regarding any plan of compromise or arrangement proposed by the CMI
Entities or participate in any distribution under such plan and any Claims such
Creditor may have against any of the CMI Entities and/or any of the Directors
and Officers of the Applicants shall be forever extinguished and
barred.
CREDITORS REQUIRING
INFORMATION or claim documentation may contact the CMI Entities at the
following address or facsimile:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention: l [NTD: Company to advise as to
appropriate person]
Tel: l
Fax: l
Email: l
|
TOR_A2G:3919177.13
|
SCHEDULE
“K”
Court
File No. l
ONTARIO
SUPERIOR
COURT OF JUSTICE
COMMERCIAL
LIST
IN THE
MATTER OF THE COMPANIES’ CREDITORS
ARRANGEMENT
ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN
THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF CANWEST GLOBAL
COMMUNICATIONS CORP. AND THE OTHER APPLICANTS LISTED ON SCHEDULE
“A”
APPLICANTS
|
1.
|
ENTITY AGAINST WHICH YOU ASSERT
A CLAIM:
|
Check
only one entity
for each Proof of Claim. If you have Claims against more than once entity, you
must file a
separate Proof
of Claim for each.
|
Canwest
Global Communications Corp.
|
o |
Western
Communications Inc.
|
o |
4501071
Canada Inc.
|
|
|
Canwest
Media Inc.
|
o |
Canwest
Finance Inc./Financiere Canwest Inc.
|
o |
Canwest
Television Limited Partnership
|
|
|
MBS
Productions Inc.
|
o |
National
Post Holdings Ltd.
|
o |
Fox
Sports World Canada Partnership
|
|
|
Yellow
Card Productions Inc.
|
o |
Canwest
International Management Inc.
|
o |
The
National Post Company/La Publication National Post
|
|
|
Canwest
Global Broadcasting Inc./Radiodiffusion Canwest Global
Inc.
|
o |
Canwest
International Distribution Limited
|
o |
CGS
NZ Radio Shareholding (Netherlands) B.V.
|
|
|
Canwest
Television GP Inc.
|
o |
Canwest
MediaWorks Turkish Holdings (Netherlands) B.V.
|
o |
4501071
Canada Inc.
|
|
|
Fox
Sports World Canada Holdco Inc.
|
o |
CGS
International Holdings (Netherlands) B.V.
|
o | ||
|
Global
Centre Inc.
|
o |
CGS
Debenture Holding (Netherlands) B.V.
|
o | ||
|
Multisound
Publishers Ltd.
|
o |
CGS
Shareholding (Netherlands) B.V.
|
o | ||
|
Canwest
International Communications Inc.
|
o |
CGS
NZ Radio Shareholding (Netherlands) B.V.
|
o | ||
|
Canwest
Irish Holdings (Barbados) Inc.
|
o |
4501063
Canada Inc.
|
o |
-
2 -
|
2.
|
PARTICULARS OF
CREDITOR:
|
|
|
(a)
|
Full
Legal Name of Creditor:
|
|
|
(b)
|
Full
Mailing Address of Creditor:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(c)
|
Telephone
Number of Creditor:
|
|
|
(d)
|
Facsimile
Number of Creditor:
|
|
|
(e)
|
E-mail
Address of Creditor:
|
|
|
(f)
|
Attention
(Contact Person):
|
|
3.
|
PARTICULARS OF ORIGINAL
CREDITOR FROM WHOM YOU ACQUIRED CLAIM, IF
APPLICABLE:
|
|
|
(a)
|
Have
you acquired this Claim by
assignment?
|
Yes o
No
o
(if yes,
attach documents evidencing assignment)
|
|
(b)
|
Full
Legal Name of original creditor(s):
|
|
4.
|
PROOF OF
CLAIM
|
THE UNDERSIGNED CERTIFIES AS
FOLLOWS:
|
|
(a)
|
That
I am a Creditor of/hold the position of
|
of the
Creditor and have knowledge of all the circumstances connected with the
Claim described herein;
|
|
|
(b)
|
That
I have knowledge of all the circumstances connected with the Claim
described and set out below;
|
|
|
(c)
|
The
CMI Entity was and still is indebted to the Creditor as follows (Any Claims
|
-
3 -
|
|
|
denominated in a foreign
currency shall be converted to Canadian dollars at the Bank of Canada
United States/Canadian Dollar noon exchange rate in effect over the ten
day period preceding the filing of a
Plan.)
|
|
|
(i)
|
Prefiling
Claims:
|
$___________________________
|
|
(ii)
|
Restructuring
Period Claims:
|
$___________________________
|
|
(iii)
|
Directors/Officers
Claims:
|
$___________________________
|
|
(iv)
|
TOTAL
CLAIM:
|
$___________________________
Total
of (i), (ii) and (iii)
|
5.
|
NATURE OF
CLAIM
|
(CHECK
AND COMPLETE APPROPRIATE CATEGORY)
o Unsecured Claim of
$_________________________
o Secured Claim of
$___________________________
In
respect of this debt, I hold security over the assets of the CMI Entity valued
at $___________________________, the particulars of which security and
value are attached to this Proof of Claim form.
(Give
full particulars of the security, including the date on which the security was
given the value for which you ascribe to the assets charged by your security,
the basis for such valuation and attach a copy of the security documents
evidencing the security.)
|
6.
|
PARTICULARS OF
CLAIM:
|
The
Particulars of the undersigned’s total Claim (including Directors/Officers
Claims) are attached.
(Provide
full particulars of the Claim and supporting documentation, including amount,
description of transaction(s) or agreement(s) giving rise to the Claim, name of
any
- 4 -
guarantor(s)
which has guaranteed the Claim, and amount of Claim allocated thereto, date and
number of all invoices, particulars of all credits, discounts, etc.
claimed).
|
7.
|
FILING OF
CLAIM
|
This CMI
Proof of Claim must be returned to and received by the CMI Entities by 5:00 p.m. (Toronto Time) on the CMI
Claims Bar Date ([Filing
Date plus 39 Days],
2009) at the following address:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
[NTD: Company to advise as to
appropriate person]
Tel:
Fax:
Email:
Dated
at _______________this ________day of
_________________ 2009.
Per: ______________________________________
|
TOR_A2G:3919177.13
|
SCHEDULE
“L”
CMI
PROOF OF CLAIM INSTRUCTION LETTER
FOR
THE CLAIMS PROCEDURE FOR UNKNOWN CREDITORS OF
CANWEST
GLOBAL COMMUNICATIONS CORP. (“Canwest Global”) AND THE OTHER APPLICANTS LISTED
ON SCHEDULE “A” (the “Applicants”) AND PARTNERSHIPS LISTED ON SCHEDULE “B”
(collectively and together with Canwest Global and the Applicants, the “CMI
Entities”)
CLAIMS
PROCEDURE
By order
of the Honourable l
dated [October 6], 2009
(as may be amended from time to time, the “CMI Claims Procedure Order”) under
the Companies’ Creditors
Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”), the CMI Entities and
their Directors and Officers have been authorized to conduct a claims procedure
(the “Claims Procedure”). A copy of the CMI Claims Procedure Order and other
public information concerning these proceedings can be obtained from the website
of FTI Consulting Canada ULC, the Court-appointed Monitor of the CMI Entities,
at xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx..
This
letter provides general instructions for completing the CMI Proof of Claim
forms. As of the date of this instruction letter, the CMI Entities have not yet
filed a plan of arrangement or compromise pursuant to the CCAA. Defined terms
not defined within this instruction letter shall have the meaning ascribed
thereto in the CMI Claims Procedure Order.
The
Claims Procedure is intended for any Person with a Claim of any kind or nature
whatsoever, other than an Excluded Claim, against any or all of the CMI Entities
or any or all of the Directors or Officers of any or all of the Applicants
arising on or prior to [October
6], 2009, whether
unliquidated, contingent or otherwise. In addition, the Claims Procedure is
intended for any Person with any Claim arising after [October 6], 2009 against any
or all of the Directors or Officers of any or all of the Applicants or against
any or all of the CMI Entities as the result of the restructuring, repudiation,
termination or breach of any contract, lease or other type of agreement. Please
review the CMI Claims Procedure Order for the complete definition of Claim and
Excluded Claim.
-
2 -
All
notices and inquiries with respect to the Claims Procedure should be directed to
the CMI Entities by prepaid registered mail, courier, personal delivery,
facsimile transmission or email at the address below:
Canwest
Global Communications Corp. et al
Claims
Process
[Address]
Attention:
[NTD: Company to advise as to
appropriate person]
Tel:
Fax:
Email:
FOR
CREDITORS SUBMITTING A CMI PROOF OF CLAIM FORM
If you
believe that you have a Claim against any or all of the CMI Entities or a
Director/Officer Claim, you must file a CMI Proof of Claim form with the CMI
Entities. All CMI Proofs of Claim for Claims arising prior to [October 6], 2009 against any or all of
the CMI Entities or Directors/Officers Claims must be received by the CMI Entities
on or before 5:00 pm (Toronto Time) on [Filing Date plus 39 Days], 2009,
unless the Monitor and the CMI Entities agree in writing or the Court orders
that the CMI Proof of Claim be accepted after that date. IF YOU DO NOT FILE A
CMI PROOF OF CLAIM BY THE CMI ENTITIES CLAIMS BAR DATE, you shall not be
entitled to vote at any meeting of creditors regarding any plan of compromise or
arrangement proposed by the CMI Entities or participate in any distribution
under such plan and any Claims you may have against any of the CMI Entities
and/or any of the Directors and Officers of the Applicants shall be forever
extinguished and barred.
All
Claims denominated in a foreign currency shall be converted to Canadian dollars
at the Bank of Canada United States/Canadian Dollar noon exchange rate in effect
over the ten day period preceding the filing of a Plan.
ADDITIONAL
FORMS
Additional
CMI Proof of Claim forms can be obtained from the Monitor’s website at
xxxx://xxx.xxxxxxxx.xxxxxxxxxxxxx.xxx/xxxxxxx. or the CMI Entities’ website at
l by
contacting the CMI Entities at l and by providing the
particulars as to your name, address, facsimile
number,
email address and contact person. Once the CMI Entities have this information,
you will receive, as soon as practicable, additional CMI Proof of Claim
forms.
DATED this_________________ day
of ___________________, 2009.
|
TOR_A2G:3919177.13
|
