Exhibit 4.62
FORM OF AMENDED AND RESTATED
CANWEST NEWS SERVICES AGREEMENT
THIS AGREEMENT is amended and restated as of the 14th day of February, 2003
BETWEEN:
CANWEST PUBLICATIONS INC., a corporation incorporated
under the federal laws of Canada ("CPI")
- and -
____________________________, a corporation incorporated
under the federal laws of Canada (the "Company")
RECITALS:
A. CPI operates CanWest News Service (formerly known as Southam News
Service) providing editorial and other news copy to the news media
owned and operated by CanWest Global Communications Corp. ("CanWest")
and its affiliates and to certain other news media forming the Southam
Network (as hereafter defined).
B. The Company operates certain of the newspapers which are part of the
Southam Network.
C. The Company wishes to continue as a member of the Southam Network and
derive the benefit of the services provided by CanWest News Service and
CPI wishes to have continuing access to the editorial and news content
of the Company for Southam Network publications.
D. The Company and CPI wish to amend and restate this agreement originally
made as of April 30, 2002 to reflect certain amendments made as of and
to take effect on February 14, 2003.
NOW THEREFORE in consideration of the content sharing arrangements described in
the Agreement and other good and valuable consideration, the parties agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
Wherever used in this Agreement, the following words and terms will have the
meanings set out below:
"AFFILIATE" has the meaning given in the Canada Business Corporations Act, as
amended from time to time.
"AGREEMENT" means this CanWest News Services Agreement, including all Schedules
attached to this Agreement, all as may be amended from time to time.
"BUSINESS DAY" means a day other than a Saturday or Sunday, on which the
principal commercial banks in the City of Toronto are open for business during
normal banking hours.
"CANWEST" has the meaning given it in Recital A.
"COMPANY PUBLICATIONS" means the newspapers and related publications published
by or on behalf of the Company as of February 14, 2003, and, for greater
certainty, shall not include any newspapers and related publications published
by or on behalf of the Company as a result of the Company amalgamating with
Osprey Media Group or any third party;
"COMPETING BUSINESS" means, with respect to CPI, any newspaper or publication
the circulation of which exceeds ten percent (10%) in any market in which CPI or
any of its Affiliates distributes a newspaper or publication (a list of such
markets is set out in Part 1 of Schedule A) and, with respect to the Company,
any newspaper or publication the circulation of which exceeds ten percent (10%)
in any market in which the Company or any of its Affiliates distributes a
newspaper or publication as of February 14, 2003 (a list of such markets is set
out in Part 2 of Schedule A).
"CURRENT PRACTICES" means the practices and procedures of CPI in effect as of
February 14, 2003, in the operation of CanWest News and Southam Network as such
practices may be amended by CPI from time to time.
"DISPUTE" has the meaning given it in section 4.7.
"FORCE MAJEURE" means any cause beyond the reasonable control of a Party and
affecting the ability of that Party to comply with the provisions of this
Agreement, including acts of God, strikes, lockouts or other labour or
industrial disturbances and accidents, but does not include a lack of financial
resources.
"NOTICE" has the meaning given it in section 4.9.
"NOTICE TO ARBITRATE" has the meaning attributed to that term in section 4.7.
"PARTIES" means CPI and the Company and "PARTY" means any one of them as the
context indicates.
"PERSON" means any individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization, trust, body
corporate, Governmental Authority, and a natural person in such person's
capacity as trustee, executor, administrator or other legal representative.
"SOUTHAM CONTENT" has the meaning given it in section 2.3.
"SOUTHAM EDITORIAL SERVICES" means services provided by Southam Editorial
Services, a division of Southam, including comic pagination, stock exchange
information, sports scores, weather information, television listings and
features content.
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"CANWEST NEWS" means the business and operations of CanWest News Service, a
division of Southam, providing editorial and other news content to its
participants, but not including the operations of or any services of Southam
Editorial Services.
"CANWEST NEWS SERVICES" means services provided by CanWest News to facilitate
the exchange of editorial and news content and photographs between and amongst
members of the Southam Network.
"SOUTHAM NETWORK" means the newspapers and other publications participating in
the delivery and use of the their respective editorial and news content.
"TERM" has the meaning given it in Section 3.1.
1.2 CERTAIN RULES OF INTERPRETATION
In this Agreement and the Schedules:
(a) TIME - time is of the essence in the performance of the
Parties' respective obligations;
(b) CURRENCY - unless otherwise specified, all references to money
amounts are to Canadian currency;
(c) HEADINGS - descriptive headings of Articles and sections are
inserted solely for convenience of reference and are not
intended as complete or accurate descriptions of the content
of those Articles or sections;
(d) SINGULAR, ETC. - use of words in the singular or plural, or
with a particular gender, will not limit the scope or exclude
the application of any provision of this Agreement to that
Person or those Persons or circumstances as the context
otherwise permits;
(e) CONSENT - whenever a provision of this Agreement requires an
approval or consent by a Party to this Agreement and
notification of that approval or consent is not delivered
within the applicable time limit, then, unless otherwise
specified, the Party whose consent or approval is required
will be conclusively deemed to have withheld its approval or
consent;
(f) CALCULATION OF TIME - unless otherwise specified, time periods
within or following which any payment is to be made or act is
to be done will be calculated by excluding the day on which
the period commences and including the day on which the period
ends and by extending the period to the next Business Day
following if the last day of the period is not a Business Day;
(g) BUSINESS DAY - whenever any payment to be made or action to be
taken under this Agreement is required to be made or taken on
a day other than a Business Day, that payment will be made or
action taken on the next Business Day following that day; and
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(h) INCLUSION - where the words "including" or "includes" appear
in this Agreement, they mean "including (or includes) without
limitation".
1.3 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties pertaining
to the subject matter of this Agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
Parties, and there are no warranties, representations or other agreements
between the Parties in connection with the subject matter of this Agreement
except as specifically set forth in this Agreement or in those other Agreements.
No supplement, modification or waiver or termination of this Agreement will be
binding unless executed in writing by the Party to be bound thereby.
1.4 APPLICABLE LAW AND ATTORNMENT
This Agreement will be construed in accordance with the laws of the Province of
Ontario and the laws of Canada applicable therein and will be treated, in all
respects, as an Ontario contract. Subject to section 4.7, the Parties agree to
attorn to the exclusive jurisdiction of the Courts of Ontario.
1.5 SCHEDULES
The schedules to this Agreement, as listed below, are an integral part of this
Agreement:
SCHEDULE DESCRIPTION
-------- -----------
Schedule A List of CPI and Company Markets
ARTICLE 2
CANWEST NEWS SERVICES
2.1 MEMBERSHIP IN SOUTHAM NETWORK
Subject to the terms and conditions of this Agreement, the Company Publications
shall continue as members of the Southam Network and be entitled to the benefits
of the CanWest News Services and be subject to the obligations of such
membership. The Company shall cause each Company Publication to comply with the
provisions of this Agreement. If the Company acquires, directly or indirectly, a
newspaper, it may, at its option, provide Notice of the acquisition to CPI
together with a request that such newspaper become a Company Publication subject
to the provisions of this Agreement and such newspaper shall, at the option of
CPI, become a Company Publication subject to the provisions of this Agreement.
2.2 FEES
CPI shall provide the CanWest News Services to the Company at no cost for the
Term of this Agreement.
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2.3 LICENCE OF EDITORIAL CONTENT
(a) CPI hereby grants to each Company Publication a limited
non-exclusive right and license to reproduce in the print and
electronic format of the Company Publication the editorial and
news content and photographs available through the CanWest
News Services, other than (i) content and photographs to which
CanWest News or the Southam Network member does not have
copyright or which was purchased or provided on the basis of
restricted publication rights as noted in the electronic
submission of such content or photographs or otherwise; (ii)
content provided by Xxxxxxxxx Inc. or any of its Affiliates to
CanWest and its Affiliates for use in its publications; (iii)
content, services and photographs which is available to the
Company Publications from Southam Editorial Services for a
fee; and (iv) content and photographs of the National Post
("Southam Content"). Southam Content may be edited for layout
and presentation purposes by the Company but may not otherwise
modified nor may any Southam Content be sublicensed or
provided to any other Person including Affiliates of Company
except for Affiliates who have an agreement on similar terms
with CPI.
(b) Company grants to CPI a limited non-exclusive right and
license to reproduce in print and electronic format all
editorial and news content and photographs to which Company
has copyright and to sublicense this right to members of the
Southam Network.
2.4 COMPANY OBLIGATIONS AS SOUTHAM NETWORK MEMBER
(a) Company shall cause each Company Publications to provide
advance notice or advisories of its editorial and news content
to the Southam Network through the CanWest News Services in
accordance with the Current Practices.
(b) Company shall cause each Company Publications to make
available to the Southam Network through the CanWest News
Services all editorial and news content and photographs to
which it has copyright in accordance with the Current
Practices.
(c) Company shall ensure that each Company Publications maintains
the appropriate systems to enable the exchange of Southam
Content through the CanWest News Services and in accordance
with the Current Practices.
(d) Except for the obligations of each Company Publication to
Canadian Press, the Company shall not licence its editorial
and news content and photographs to any Person other than to
CPI for the purpose set out in this Agreement without the
written consent of CPI. CPI shall not provide Southam Content
to any other newspapers or publications the circulation of
which exceeds 10% in any of the markets in which Company
Publications are distributed, except in the event CPI or an
Affiliate completes a transaction as described in Section 3(e)
of the Non-Competition, Non-Solicitation and Confidentiality
Agreement dated February 14, 2003, between CanWest, Global
Communications Limited and Osprey Media Holdings Inc. and in
such event, the Company may terminate this Agreement.
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2.5 FREELANCE MATERIAL
CPI may, from time to time, make available to members of the Southam Network for
a fee, editorial and news content from freelance authors.
2.6 NO WARRANTY
The editorial and news content and photographs available through the CanWest
News Services provided to the Company is provided "as is" and without any
representation or warranties by CPI, either express or implied. Without limiting
the generality of the foregoing, CPI does not warrant that the editorial and
news content and photographs available through the CanWest News Services is
accurate, that it is not offensive, libelous or defamatory and that it will not
infringe any intellectual property rights of any Person. The editorial and news
content and photographs provided by the Company to CPI and the Southam Network
is provided "as is" and without any representation or warranties by Company,
either express or implied. Without limiting the generality of the foregoing, the
Company does not warrant that the editorial and news content and photographs
provided by the Company is accurate, that it is not offensive, libelous or
defamatory and that it will not infringe any intellectual property rights of any
Person.
2.7 CURRENT PRACTICES
CPI may amend any Current Practice relating to the provision of the CanWest News
Services and/or the operation and procedures of the Southam Network from time to
time upon Notice to the Company provided the amendment to any Current Practice
is of general application to a majority of the members of the Southam Network.
ARTICLE 3
TERM & TERMINATION
3.1 TERM
Subject to the rights of early termination set out in section 3.2, this
Agreement will commence on February 14, 2003 and continue until February 14,
2006 (the "Term").
3.2 TERMINATION
(a) Either Party may terminate this Agreement immediately without
prior Notice if the other Party institutes or consents to the
institution against it of bankruptcy, insolvency or similar
proceedings, or the other Party makes a general assignment for
the benefit of creditors, or a liquidator, trustee in
bankruptcy, receiver or receiver manager is appointed over a
substantial or material part of the other Party's assets.
(b) Either Party may terminate this Agreement immediately in the
event of a material breach by the other Party of its
obligations under this Agreement, which is not cured within
thirty (30) days of receipt of written Notice of that breach.
(c) Either party may terminate this Agreement immediately without
prior Notice in the event that the other Party or an Affiliate
of such Party acquires, merges or amalgamates with or
commences a Competing Business or enters into any news
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sharing agreement with any Person which owns or operates a
Competing Business (other than Canadian Press or any
successor to Canadian Press).
(d) CPI may terminate this Agreement at any time after February
14, 2005, upon not less than three (3) months prior Notice to
the Company in the event it determines to discontinue the
provision of the CanWest News Services to third parties.
3.3 OBLIGATION UPON TERMINATION
Upon expiry or termination of the Agreement for any reason, Company and Company
Publications shall immediately cease publication of any editorial and news
content and photographs obtained from the Southam New Services.
ARTICLE 4
GENERAL
4.1 FORCE MAJEURE
Notwithstanding any other provision of this Agreement, if by reason of Force
Majeure, CPI is unable, wholly or in part, to perform or comply with its
obligations under this Agreement, CPI will be relieved of liability and will
suffer no prejudice for failing to perform or comply or for delaying performance
or compliance during the continuance and to the extent of the inability so
caused by the Force Majeure, provided that CPI gives the Company prompt Notice
and reasonably full particulars of the event of Force Majeure. CPI:
(a) will only be relieved from performance or compliance after
receipt of Notice,
(b) will use all reasonable commercial efforts to remedy the
situation and remove, so far as possible and with reasonable
dispatch, the cause of its inability to perform or comply,
provided that there will be no obligation on it to settle
labour disputes; and
(c) will give prompt Notice to the Company of the cessation of the
event of Force Majeure.
4.2 ASSIGNMENT
(a) Except with the written consent of the other Party, which can
be arbitrarily withheld, or as provided in this Section, this
Agreement may not be assigned by either Party.
(b) This Agreement may be assigned by a Party to an Affiliate,
provided the assignor shall remain liable for all obligations
of the assignee.
(c) This Agreement may be assigned by CPI to any successor to the
business of CanWest News upon Notice to the Company. This
Agreement may be assigned by Company to any purchaser of a
Company Publication upon Notice to CPI provided that if the
purchaser of the Company Publication is a competitor of
CanWest or any of its Affiliates in its newspaper operations
anywhere in Canada, CPI may terminate this Agreement.
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4.3 ENUREMENT
This Agreement shall enure to the benefit of CPI and Company and their
respective successors and permitted assigns, and shall be binding upon CPI and
Company and their respective successors and assigns. Without limiting the
generality of the foregoing, this Agreement and its covenants shall survive any
amalgamation or corporate reorganization of CPI or Company, so that the
resulting entity shall benefit from and be entitled to enforce the Agreement
against the other party as if it had been an original party and signatory to
this Agreement.
4.4 ASSUMPTION OF RISK AND INDEMNITY
Each Party will, at its own expense, defend and save harmless the other Party
and its Affiliates from and against any claims, demands, actions, causes of
action, damage, loss, costs, liability or expense which may be made or brought
against the Party or which the Party may suffer or incur as a result of or in
connection with: (a) any default, breach or alleged default or breach of the
other Party's obligations and covenants under this Agreement; or (b) any act or
omission on the part of the other Party.
4.5 WAIVER
The failure of CPI or Company to insist on the strict performance of any term or
terms under this Agreement, or to act upon the breach of any term or terms of
this Agreement or to exercise any right or rights under this Agreement, shall
not operate or be construed as an acquiescence in the breach of or waiver of
such right or rights or in any manner impair the ability of CPI or Company to
enforce the right or the rights or act upon any right or rights at any
subsequent time or times.
4.6 SEVERABILITY
If any covenant, provision, term, article, section, sub-section or clause herein
is determined to be void, unenforceable or illegal, in whole or in part, it
shall not be considered to affect or impair the enforceability, legality or
validity of any other covenant, provision, term, article, section, sub-section
or clause of this Agreement and this Agreement shall be interpreted and
construed as though any such illegal, unenforceable or invalid covenant,
provision, term, article, section, sub-section or clause were omitted herefrom.
4.7 ARBITRATION
In the event of any dispute, claim, question or disagreement arising out of or
relating to this Agreement ("Dispute"), the Parties shall use all reasonable
efforts to settle such Dispute within a period of thirty (30) days of one Party
giving Notice of the Dispute to the other. If settlement cannot be reached
within thirty (30) days, or such longer period as the Parties may agree, either
Party may provide written notice to the other ("Notice to Arbitrate") and such
Dispute shall be finally determined by arbitration from which there shall be no
appeal to be held in accordance with the provisions of the Ontario Arbitration
Act, 1991. The arbitration shall be heard by a single arbitrator agreed to by
the Parties and failing such agreement either Party may apply to a judge of the
Ontario Superior Court to appoint the arbitrator on behalf of the Parties. The
Notice to Arbitrate shall set out a concise description of the Dispute to be
submitted to arbitration and shall be delivered to the other Party. The
arbitration, including the rendering of the award or
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decision, shall take place in Xxxxxxx, Xxxxxxx, which shall be the seat of the
proceedings. The language to be used in the arbitration shall be English.
Nothing in this section precludes a Party from seeking interim relief by way of
an injunction (mandatory or otherwise) or other interim equitable relief in the
Ontario Superior Court in connection with this Agreement.
4.8 FURTHER ASSURANCES
Each of the Parties will promptly make, do, execute or deliver or cause to be
made, done, executed or delivered, all such further acts and things as the other
Party may reasonably require from time to time for the purpose of giving effect
to this Agreement.
4.9 CONFIDENTIALITY
Each Party covenants to keep confidential all information concerning the
business and affairs of each other Party, which information is not otherwise
available to the public and which the first Party is not required by law to
disclose. In the event that any Party is required by law to disclose any
non-public information of another Party, the first Party will promptly: (i)
provide Notice of that requirement to the other Party; (ii) assist the other
Party at that Party's request in obtaining an order protecting the confidence of
that information; and (iii) only provide that part of the information as its
counsel determines is necessary to comply with that requirement. This section
4.9 will survive any termination of this Agreement.
4.10 NOTICES
Any notice or other writing required or permitted to be given under this
Agreement or for the purposes of this Agreement (a "Notice") will be in writing
and will be sufficiently given if delivered, or if sent by pre-paid courier or
if transmitted by facsimile, e-mail or other form of recorded communication
tested prior to transmission to such Party:
(a) in the case of a Notice to the Company:
00 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxx
cc. Xxxx Xxxxxx
Facsimile: (000) 000-0000
(b) in the case of a Notice to CPI at:
00xx Xxxxx, Xxxxxxx-Xxxxxxxx Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
E-mail: xxxxxx@xxxxxxx.xxx
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and to CanWest Global Communications Corp. at:
00xx Xxxxx, Xxxxxxx-Xxxxxxxx Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxxx, Vice-President and General Counsel
Facsimile: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
or at such other address as the Party to whom such Notice is to be given shall
have last notified the Party giving the same in the manner provided in this
section 4.10. Any Notice delivered to the Party to whom it is addressed as
provided above will be deemed to have been given and received on the day it is
so delivered at that address, provided that if that day is not a Business Day
then the Notice shall be deemed to have been given and received on the next
Business Day. Any Notice sent by prepaid courier will be deemed to have been
given and received on the second Business Day following the date of its sending.
Any Notice transmitted by facsimile, e-mail or other form of recorded
communication will be deemed given and received on the first Business Day after
its transmission.
4.11 RELATIONSHIP OF PARTIES
This Agreement is not intended to and will not constitute, create, give effect
or otherwise recognize a joint venture, partnership or formal business entity of
any kind.
4.12 SURVIVAL
Sections 1.3, 1.4, 2.4(e), 2.6, 3.3, 4.4, 4.9 and 4.12 shall survive termination
or expiration of this Agreement for any reason.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF the Parties have executed this CanWest News Services
Agreement as of the date written above.
CANWEST PUBLICATIONS INC.
By: _________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Director
By: _________________________
Name: Xxxxxx X. Xxxxxx
Title: Director
_____________________________
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
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SCHEDULE A
CPI MARKETS
The following markets are as defined by the Audit Bureau of Circulations:
Toronto Census Metropolitan Area;
Newspaper Designated Market for the Ottawa Citizen;
City Zone for The Vancouver Sun and The Province;
Newspaper Designated Market for the Victoria Times-Colonist;
City Zone for The Montreal Gazette;
City Zone for The Xxxxxx Leader Post;
City Zone for The Saskatoon Star Phoenix;
City Zone for the Calgary Herald;
City Zone for the Edmonton Journal; and
City Zone for the Windsor Star.
COMPANY MARKETS
[DRAFT NOTE: TO BE COMPLETED]
