EXHIBIT 3.57
GLOBAL COMMUNICATIONS LIMITED
AND
GLOBAL TELEVISION NETWORK INC./
RESEAU DE TELEVISION GLOBAL INC.
AS OF
SEPTEMBER 3, 2002
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AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT
GLOBAL TELEVISION NETWORK QUEBEC LIMITED PARTNERSHIP/
RESEAU DE TELEVISION GLOBAL QUEBEC, SOCIETE EN COMMANDITE
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TABLE OF CONTENTS
1. INTERPRETATION........................................................................ 2
1.1 Definitions.................................................................. 2
1.2 Interpretation............................................................... 4
1.3 Currency .................................................................... 4
1.4 Generally Accepted Accounting Principles..................................... 4
1.5 Table of Contents and Headings............................................... 4
1.6 Preamble .................................................................... 4
1.7 Calculation of Time Periods.................................................. 4
1.8 Documents.................................................................... 4
1.9 Successors and Assigns....................................................... 5
1.10 Limited Partner Not Liable as General Partner................................ 5
2. THE PARTNERSHIP....................................................................... 5
2.1 Continuation of the Partnership.............................................. 5
2.2 Principal Establishment...................................................... 5
2.3 Business of the Partnership.................................................. 5
2.4 Filing of Certificates....................................................... 6
2.5 Maintenance of Licences...................................................... 6
3. AGREEMENTS TO ACT..................................................................... 6
4. CAPITAL AND FINANCING ARRANGEMENTS.................................................... 6
4.1 Authorized Capital........................................................... 6
4.2 Capital Contributions........................................................ 6
4.3 Capital Account.............................................................. 7
4.4 Third Party Borrowings....................................................... 7
4.5 Additional Capital Contributions............................................. 7
5. PROFITS AND LOSSES.................................................................... 8
5.1 Determination of Profits and Losses.......................................... 8
5.2 Allocation of Profits and Losses............................................. 8
6. DISTRIBUTIONS TO THE PARTNERS......................................................... 8
6.1 Making of Distributions...................................................... 8
7. ACCOUNTING AND REPORTING.............................................................. 9
7.1 Fiscal Year.................................................................. 9
7.2 Auditors 9
7.3 Accounts and Records......................................................... 9
7.4 Register .................................................................... 9
7.5 Financial Reports............................................................ 10
8. MANAGEMENT OF THE PARTNERSHIP......................................................... 10
8.1 Role of the General Partner.................................................. 10
8.2 Restrictions on Limited Partner.............................................. 10
8.3 Bank Accounts................................................................ 11
8.4 Signing Authority for Bank Accounts.......................................... 11
8.5 Signing Authority for Instruments............................................ 11
8.6 Title to Property............................................................ 11
8.7 Dealings with Related Parties................................................ 11
9. HOLDING AND TRANSFER OF PARTNERSHIP INTERESTS......................................... 12
9.1 Assignment................................................................... 12
10. LIABILITY OF PARTNERS AND INDEMNIFICATION............................................. 12
10.1 Liability of Limited Partner................................................. 12
10.2 Liability of General Partner................................................. 12
10.3 Indemnification of General Partner........................................... 12
10.4 Indemnification by Limited Partner........................................... 12
11. COMPLIANCE WITH APPLICABLE LAWS....................................................... 12
11.1 Observance of Laws........................................................... 12
11.2 Subject to Obtaining Authorizations.......................................... 13
11.3 Qualification of Partners.................................................... 13
12. TERM AND DISSOLUTION.................................................................. 13
12.1 Term ........................................................................ 13
12.2 Termination Not to Affect Rights or Obligations.............................. 13
12.3 Process of Dissolution....................................................... 14
12.4 Survival of Agreement........................................................ 14
13. CIVIL CODE OF QUEBEC.................................................................. 14
14. GENERAL PROVISIONS.................................................................... 15
14.1 All Units Subject to this Agreement.......................................... 15
14.2 Notices ..................................................................... 15
14.3 Counterparts................................................................. 16
14.4 Applicable Law............................................................... 16
14.5 Changes of Interpretation of Application Provisions of Law................... 16
14.6 Language .................................................................... 16
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AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
MEMORANDUM OF AGREEMENT entered into as of this 3rd day of September, 2002.
B E T W E E N:
GLOBAL COMMUNICATIONS LIMITED,
a corporation duly constituted according to law
(hereinafter called "GCL")
OF THE FIRST PART
AND
GLOBAL TELEVISION NETWORK INC.
a corporation duly constituted according to law
(hereinafter called "GTNI")
OF THE SECOND PART
WHEREAS:
A. Effective as of the 1st day of August, 1995, GCL, as the General
Partner, and 9023-3826 Quebec Inc. (now known as TVA Regional Inc./TVA
Regional Inc. ("TM")), as the Limited Partner, established the
Partnership known as "TVA CANWEST, Societe commandite", the English
version of its name being "TVA CANWEST Limited Partnership" and entered
into a Limited Partnership Agreement made as of the 1st day of August,
1995 (the "ORIGINAL AGREEMENT"). On September 3, 2002, TM transferred
all of its right, title and interest in its Partnership Interest and
Units in the Partnership, including forty-nine (49) A Units and one
hundred ninety-five thousand, nine hundred and fifty-one (195,951) A
units, to GTNI;
B. The Partnership was and continues to be organized under the Civil Code
of Quebec ("C.C.Q.");
C. It is desirable to continue the business of the Partnership in the.
same partnership (and not as a new partnership) and to amend and
restate the Original Agreement on the terms herein contained.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement and its preamble or in any deed or agreement supplementary
hereto, unless the contrary is stipulated,
1.1.1 "ACT" means the Canada Business Corporations Act, R.S.C. 1985, c. C-44
in effect as at the date of this Agreement and as amended from time to
time;
1.1.2 "AFFILIATE" has the meaning attributed thereto in the Act;
1.1.3 "AGREEMENT", "THESE PRESENTS", "HEREIN", "HEREBY", "HEREUNDER" and
other similar expressions refer collectively to this Agreement and
include any deed or document which is supplementary or accessory hereto
or which is made in order to complete this Agreement;
1.1.4 "ARM'S LENGTH" has the meaning attributed thereto in the Income Tax Act
(Canada) as amended from time to time;
1.1.5 "BROADCASTING LICENCES" means all the licences, permits, concessions,
consents and rights of whatsoever nature which now or at any time
hereafter are required by Law in order for the Partnership to carry on
its business as a broadcaster of television programs in accordance with
section 2.3;
1.1.6 "BUSINESS DAY" means a day other than a Saturday, Sunday or any
statutory holiday in the Provinces of Quebec or Ontario;
1.1.7 "CGS GROUP" means GCL, GTNI, an Affiliate of GCL or GTNI and a Parent
of GCL or GTNI and includes any successor thereof resulting from an
amalgamation or reorganization, and includes any successor thereof
resulting from an amalgamation or reorganization;
1.1.8 "CRTC" means the Canadian Radio-television and Telecommunications
Commission or any successor thereto of federal jurisdiction;
1.1.9 "CAPITAL ACCOUNT" of a Partner means an account to which is credited
all cash contributions to the capital of the Partnership received by
the Partnership from or on behalf of such Partner pursuant to article
4, plus any Profits allocated to such Partner pursuant to article 5,
less any Losses allocated to such Partner pursuant to article 5 and any
distributions made to such Partner pursuant to article 6;
1.1.10 "ENCUMBRANCE" means a pledge, hypothec, mortgage, charge, security
interest, assignment as security or other encumbrance of any nature
whatsoever;
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1.1.11 "GENERAL PARTNER" means GCL and, for greater certainty, includes a
permitted transferee of the Partnership Interest of GCL;
1.1.12 "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" means the
generally accepted accounting principles acknowledged at the time in
question by the Canadian Institute of Chartered Accountants or any
successor thereto and published in the Canadian Institute of Chartered
Accountants' Handbook or its replacement;
1.1.13 "LAW" or "LAWS" means all federal, provincial, state, municipal or
local laws, statutes, regulations, orders, by-laws, ordinances or
governmental decrees of any kind whatsoever and includes, for greater
certainty, the regulations and orders of the CRTC;
1.1.14 "LIMITED PARTNER" or "SPECIAL PARTNER" means GTNI and, for greater
certainty, includes a permitted transferee of the Partnership Interest
of GTNI;
1.1.15 "PARENT" means a "holding body corporate", as such expression is
defined in the Act;
1.1.16 "PARTNERS" means the Limited Partner and the General Partner and
"PARTNER" means any one of them;
1.1.17 "PARTNERSHIP" has the meaning attributed to it in section 2.1;
1.1.18 "PARTNERSHIP INTEREST" means the Units owned by a Partner in the
Partnership and all of its right, title and interest thereto, including
any balance in the Capital Account of the Partnership applicable to
such Partner;
1.1.19 "PERSON" means any individual, partnership, limited partnership, joint
venture, co-tenancy, syndicate, sole proprietorship, company or
corporation with or without share capital, unincorporated association,
trust, trustee, executor, administrator or other legal personal
representative, regulatory body or agency, government or governmental
agency, authority or entity however designated or constituted;
1.1.20 "PROFITS" and "LOSSES" means the income or losses of the Partnership,
as the case may be, as determined in the audited or unaudited financial
statements, as the case may be, of the Partnership;
1.1.21 "PROPORTIONATE SHARE" means, until otherwise changed in accordance with
this Agreement:
(a) with respect to GCL, fifty-one percent (51%); and
(b) with respect to GTNI, forty-nine percent (49%);
unless and until changed pursuant to this Agreement;
1.1.22 "TAX LOSSES" means the calculation of losses of the Partnership
pursuant to the Income Tax Act (Canada), as amended from time to time;
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1.1.23 "TAX PROFITS" means the calculation of income of the Partnership
pursuant to the Income Tax Act (Canada), as amended from time to time;
1.1.24 "TERM" refers to the period commencing on the date hereof and ending on
the dissolution the Partnership pursuant to the provisions of section
12.1;
1.1.25 "UNITS" means the Units evidencing the interest and share of a Partner
in the Partnership and its common stock (as referred to in the C.C.Q.),
described in section 4.1.
1.2 INTERPRETATION
Unless otherwise stipulated to the contrary, words importing the singular number
include the plural and vice versa, and words importing the use of any gender
shall include all genders. In addition, the word "INCLUDES" (or "INCLUDING")
shall be interpreted to mean "INCLUDES (OR INCLUDING) WITHOUT LIMITATION".
1.3 CURRENCY
All amounts referred to herein are expressed in Canadian dollars.
1.4 GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
Unless otherwise expressly provided herein, all of the terms of this Agreement
which are defined under the rules constituting Generally Accepted Accounting
Principles shall be interpreted, and all financial statements to be prepared
hereunder shall be prepared, in accordance with Generally Accepted Accounting
Principles consistently applied.
1.5 TABLE OF CONTENTS AND HEADINGS
The division of this Agreement into articles and sections and the article and
section headings and the Table of Contents preceding are for convenience of
reference only and shall not affect the interpretation or construction of this
Agreement.
1.6 PREAMBLE
The preamble to this Agreement shall form part hereof as though recited herein
at length.
1.7 CALCULATION OF TIME PERIODS
When calculating the period of time within which or following which any act is
to be done or step to be taken pursuant to this Agreement, the day upon which
the period commences shall be excluded. If the last day of such period is not a
Business Day, the period in question shall end on the next succeeding Business
Day.
1.8 DOCUMENTS
References to documents, including this Agreement, shall include such documents
as amended, varied, supplemented, novated or substituted periodically and any
deeds or instruments collateral to such documents.
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1.9 SUCCESSORS AND ASSIGNS
Any reference to a person shall include that person's executors, administrators,
successors and assigns as permitted hereunder; and for greater certainty, any
reference herein to GCL or GTNI includes any member of the CGS Group who is a
permitted transferee of its Partnership Interest.
1.10 LIMITED PARTNER NOT LIABLE AS GENERAL PARTNER
Any provision of this Agreement which would have the effect of imposing on the
Limited Partner any of the liabilities, obligations or powers of the General
Partner will be of no force and effect to the extent of such imposition.
2. THE PARTNERSHIP
2.1 CONTINUATION OF THE PARTNERSHIP
The Partners hereby agree and acknowledge that:
(a) on September 3, 2002, GTNI has acquired the forty-nine (49) A
Units represented by Certificate Nos. 2 and 3, and one hundred
ninety-five thousand, nine hundred and fifty-one (195,951)
Units represented by Certificate No. 5 (which, as a
consequence of this Agreement, are hereinafter described and
referred to as "Units") previously held by TM (being all of
the Units and Partnership Interests in the Partnership owned
or held by TM and representing, collectively, a forty-nine
percent (49%) Proportionate Share in the Partnership); and
(b) the Original Agreement has been amended and replaced by this
Agreement.
The Partners hereby continue the Partnership as a partnership governed by this
Agreement and the C.C.Q. under the Partnership name "Reseau de Television Global
Quebec, Societe en commandite", the English version of its name being "Global
Television Network Quebec Limited Partnership", or such other name as the
General Partner may from time to time deem appropriate; provided however, that
the name of the Limited Partner shall never appear in the firm name of the
Partnership.
2.2 PRINCIPAL ESTABLISHMENT
The principal establishment of the Partnership shall be located at 1000 avenue
Myrand, Sainte-Foy, Quebec, or at such other location in the Province of Quebec
as may be determined by the General Partner from time to time.
2.3 BUSINESS OF THE PARTNERSHIP
The business to be carried on by the Partnership consists of the ownership and
operation of an independently operated regional television station known as
"CKMI" associated with the Global Television television network. The Partnership
shall not carry on any business other than as described in this section 2.3.
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2.4 FILING OF CERTIFICATES
The General Partner shall cause to be executed and filed as soon as practicably
possible such certificates, instruments and documents as may be required under
applicable provisions of Law. In addition, the Partners shall from time to time
execute or cause to be executed all such certificates or other documents and do
or cause to be done all such filings, publishings or other acts as may be
appropriate to comply with all applicable requirements of Law in respect of the
formation and maintenance of the Partnership as a limited partnership in
accordance with the terms hereof. The Limited Partner will, on request by the
General Partner, execute such instruments as may be necessary to comply with any
Law for the continuation and good standing of the Partnership.
2.5 MAINTENANCE OF LICENCES
The Partnership shall hold and maintain in full force and effect all approvals,
licences, permits, consents, and authorizations necessary or useful to permit it
to carry on its business in accordance with section 2.3, including all
Broadcasting Licences, and shall, from time to time, file all applications and
make all submissions to the appropriate authorities, including the CRTC, as are
necessary or useful for such purpose.
3. AGREEMENTS TO ACT
Each of the Partners shall, as a Partner, take, or cause to be taken, all
actions, execute all such documents and do or cause to be done, all things
necessary, proper or advisable under Law and within its power to implement to
their full extent the provisions of this Agreement and to cause the Partnership
to act in the manner contemplated by this Agreement; provided however, that
nothing herein contained shall require the Limited Partner to do anything which
would otherwise affect its status as a special partner under the C.C.Q. or lead
to a loss of its limited liability as a special partner.
4. CAPITAL AND FINANCING ARRANGEMENTS
4.1 AUTHORIZED CAPITAL
The authorized capital of the Partnership consists of an unlimited number of
partnership units of $1.00 each, designated as "Units". The rights attaching to
the Units shall be as set out herein. The Units shall be evidenced by
certificates in the form approved by the General Partner from time to time. All
units previously issued and referred to as "A Units" are hereby redesignated and
renamed as "Units".
4.2 CAPITAL CONTRIBUTIONS
The number of outstanding Units and the holders thereof immediately following
the acquisition referred to in section 2.1(a) are as follows:
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Name of Partner Number of Units
- --------------- ---------------
GCL 204,000 Units
GTNI 196,000 Units
Additional Units, as determined by the General Partner, shall be issued to
either Partner from time to time to represent additional capital contributions
from the Partners made in accordance with the provisions of section 4.5. No
Units shall be issued otherwise than in accordance with the provisions of this
Agreement and no Partner shall make any contribution of capital to the
Partnership except pursuant to and in accordance with the provisions of this
article 4. For greater certainty, no Units shall be issued hereunder until the
contribution to the capital of the Partnership relating thereto shall have been
paid in full.
4.3 CAPITAL ACCOUNT
The Partnership shall maintain separate Capital Accounts in respect of the Units
issued by it hereunder.
All amounts of cash received by the Partnership from or on behalf of a Partner
as a capital contribution pursuant to this article 4 shall be credited by the
General Partner to the appropriate Capital Account maintained for such Partner
in respect of the Units issued.
No Partner shall be entitled to withdraw any part of any of its Capital Account
or receive any distributions from the Partnership, except as otherwise expressly
provided herein.
4.4 THIRD PARTY BORROWINGS
The Partners agree that, to the maximum extent possible, the Partnership may
borrow from its banker the amounts required for the purpose of its business and
grant to its banker such security as may be required on the assets of the
Partnership, the whole as shall be determined and judged appropriate by the
General Partner, in its sole and absolute discretion pursuant to its powers
under article 8. Such borrowing may be on a limited recourse basis, the intent
being that the recourse of the third party lender in respect of any unpaid
liability of the Partnership under such borrowing may be limited to, and
satisfied solely out of, the property of the Partnership. For greater certainty,
the Limited Partner shall not, at any time, be required to guarantee the
obligations of the Partnership in connection with any such borrowings.
4.5 ADDITIONAL CAPITAL CONTRIBUTIONS
If the General Partner determines at any time or from time to time after the
effective date of this Agreement, that further capital ("Additional Funds") is
required from the Partners for carrying on the business of the Partnership, such
Additional Funds shall be advanced by the Partners in accordance with the
following procedure:
The General Partner shall send a notice (the "Funding Notice") to the Limited
Partner specifying the amount required and the Limited Partner shall, within
three (3) business days of receipt of the Funding Notice, give a notice to the
General Partner (the "Funding Response") advising whether
7
it wishes to provide all or part of its Proportionate Share thereof. The
determination by the Limited Partner to contribute any amount of such Additional
Funds, including its determination not to contribute any amount of Additional
Funds pursuant to this section 4.5, shall be at the sole discretion and option
of the Limited Partner and, for greater certainty, the Limited Partner shall
not, in any manner, be required or compelled to contribute any such Additional
Funds.
In addition to its Proportionate Share of such Additional Funds, the General
Partner shall contribute to the capital of the Partnership an amount equal to
the difference, if any, between the Limited Partner's Proportionate Share of
such Additional Funds and the amount of such Additional Funds which the Limited
Partner elects to contribute within the said three (3) business days following
receipt of the Funding Notice, in accordance with the foregoing.
Notwithstanding the foregoing, with the agreement of all Partners, a Partner may
(but, for greater certainty, shall not be required or compelled to) provide
Additional Funds to the Partnership by way of a loan or loans on terms including
an interest rate determined by the General Partner.
Subject to the foregoing, any and all capital the Partnership from time to time
belongs to the Partners in the same proportion as the number of Units owned
beneficially by the Partners.
5. PROFITS AND LOSSES
5.1 DETERMINATION OF PROFITS AND LOSSES
The Profits and Losses of the Partnership shall be determined by either the
accountants or auditors of the Partnership in accordance with GAAP, consistently
applied.
5.2 ALLOCATION OF PROFITS AND LOSSES
From and after the effective date of this Agreement, Profits, Tax Profits,
Losses and Tax Losses, if any, for a fiscal year of the Partnership shall be
allocated, for accounting reporting and income tax purposes; first, to the
extent the Partnership has long-term indebtedness to the General Partner, to the
General Partner and, then, to the Partners holding Units, in proportion to their
respective Proportionate Share.
A negative Capital Account of the Limited Partner shall not in any way
constitute a debt of the Limited Partner to the Partnership or to any third
party.
6. DISTRIBUTIONS TO THE PARTNERS
6.1 MAKING OF DISTRIBUTIONS
Subject to the capital (including working capital) requirements of the
Partnership, as determined by the General Partner, the maximum amount of
available cash flow of the Partnership in respect of a fiscal year, as
determined by the General Partner, may be distributed by the Partnership from
time to time.
All amounts distributed hereunder shall be applied as follows:
8
(a) first, to repay any outstanding loans (long term or otherwise)
due by the Partnership to a Partner;
(b) second, to repay the capital contributions in respect of the
Units held by the Partners, in preference and priority to the
payment of any other amounts to the Partners hereunder; and
(c) then, to pay to the Partners holding Units, all amounts in
excess of the amount distributed pursuant to paragraphs (a)
and (b) above.
Such distributions shall be made to the Partners holding Units in the proportion
that the number of Units, as the case may be, owned by a Partner on the last day
of the preceding fiscal year, is to the number of issued and outstanding Units
on the last day of the preceding fiscal year, and shall be recorded in the
Capital Account maintained in respect of the Units of each Partner.
All amounts distributed to a Partner shall be a distribution of capital to such
Partner. The interest of a Partner in the Partnership will not terminate by
reason of there being a negative or zero balance in its Capital Account.
7. ACCOUNTING AND REPORTING
7.1 FISCAL YEAR
The fiscal year of the Partnership shall end on August 31 or such other date as
may be determined by the General Partner from time to time.
7.2 AUDITORS
The accountants of the Partnership shall be PricewaterhouseCoopers (or any
successor thereto) or such other firm of accountants as may be appointed by the
General Partner from time to time; provided however, that the General Partner
may from time to time appoint an auditor of the Partnership in the place and
stead of accountants.
7.3 ACCOUNTS AND RECORDS
The General Partner will maintain, on behalf of the Partnership, accurate and
complete books, accounts and records of its operations, business and financial
affairs (including Capital Accounts) which fairly present and disclose its
financial position as at the relevant date. Such books, accounts and records
shall be available for inspection during regular business hours by the Limited
Partner or its duly authorized representative upon appointment.
7.4 REGISTER
The General Partner will, on behalf of the Partnership, maintain at the
Partnership's principal establishment, the register of Partners of the
Partnership contemplated by Article 2239 of the C.C.Q. and record issues and
transfers of Units. Such register shall be available for inspection during
regular business hours by the Limited Partner or its duly authorized
representative upon appointment.
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7.5 FINANCIAL REPORTS
The General Partner shall cause to be prepared and delivered to the Limited
Partner the following:
7.5.1 Annual Financial Statements
As soon as practicable and, in any event, within one hundred and twenty
(120) days following the end of each fiscal year of the Partnership,
the annual unaudited, or audited in the case of the General Partner
appointing an auditor, financial statements of the Partnership,
including a balance sheet, a statement of profit and loss, a statement
of Partners' capital and a statement of changes in financial position
and the report thereon of the accountants or auditors, as the case may
be, together with comparative figures for the previous fiscal year and
all notes thereto.
7.5.2 Income Tax Information
As soon as practicable and, in any event, no later than one hundred and
fifty (150) days after the end of each fiscal year of the Partnership,
such other information as is necessary to enable the Limited Partner to
file returns under the Income Tax Act (Canada) and the Taxation Act
(Quebec) as a result of its participation in the Partnership in such
fiscal year.
8. MANAGEMENT OF THE PARTNERSHIP
8.1 ROLE OF THE GENERAL PARTNER
The General Partner alone shall have the sole and exclusive authority to manage
the operations, affairs and business of the Partnership, to take and implement
all decisions and actions regarding the business of the Partnership and to bind
the Partnership. The General Partner shall have all the rights and powers which
may be possessed by a general partner pursuant to the C.C.Q. and those rights
and powers otherwise conferred by Law. No person dealing with the Partnership
shall be required to verify the power of the General Partner to take any measure
or make any decision in the name of the Partnership.
8.2 RESTRICTIONS ON LIMITED PARTNER
The Limited Partner shall not take part in the management or control of the
business of the Partnership, negotiate or transact any business on behalf of the
Partnership, act as the agent or mandatory of the Partnership or have the power
to sign for or to bind the Partnership. Notwithstanding the foregoing, the
Limited Partner may from time to time examine the state and progress of the
Partnership and may give advisory opinions with regard to its management, the
whole in accordance with the rights given to limited partners by the C.C.Q.
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8.3 BANK ACCOUNTS
All monies received by the Partnership shall be deposited to the credit of the
account or accounts of the Partnership at such bank or banks as may be
designated from time to time by the General Partner.
8.4 SIGNING AUTHORITY FOR BANK ACCOUNTS
Any cheque drawn on any bank account of the Partnership and any other withdrawal
therefrom may be signed by such person or persons as shall from time to time be
designated by the General Partner.
8.5 SIGNING AUTHORITY FOR INSTRUMENTS
All contracts, agreements, documents and other instruments may be signed on
behalf of the Partnership by such person or persons as shall from time to time
be designated by the General Partner.
8.6 TITLE TO PROPERTY
Title to property acquired by the Partnership and all contracts, agreements,
documents or other instruments made or executed on behalf of the Partnership
shall be taken, registered, made or entered in the name of the Partnership.
8.7 DEALINGS WITH RELATED PARTIES
Notwithstanding any other provision hereof, it is specifically acknowledged and
agreed that the General Partner, any member of the CGS Group, any other person
who is an Affiliate or an associate of GCL or who does not deal at arm's length
with GCL or any member of the CGS Group may enter into agreements or
arrangements with the General Partner and the Partnership to provide any
products, goods or services, of any nature whatsoever, to the Partnership, on
such terms and conditions as the General Partner shall determine, in its sole
and absolute discretion. The Limited Partner hereby specifically acknowledges
the right, power and authority of the General Partner to enter into all such
agreements or arrangements and agrees that same will not violate or infringe any
obligations which might be imposed upon GCL, in its capacity as general partner
of the Partnership, whether under this Agreement or the C.C.Q., including the
provisions of Articles 1308 and following the C.C.Q. For greater certainty, the
Limited Partner , specifically acknowledges and agrees that the General Partner
is hereby authorized to enter into program supply agreements, sales
representation agreements and any other agreements pursuant to which the General
Partner or any of the persons hereinabove referred to shall supply programming
and effect sales to advertisers of airtime of the station referred to in section
2.3, and shall be entitled to such fees and reimbursement of such expenses,
costs and other charges as the General Partner shall deem appropriate, in its
sole and absolute discretion.
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9. HOLDING AND TRANSFER OF PARTNERSHIP INTERESTS
9.1 ASSIGNMENT
No Partner shall, without the prior consent in writing of the other Partner,
sell, convey, assign or encumber such Partner's share or interest in the
Partnership.
10. LIABILITY OF PARTNERS AND INDEMNIFICATION
10.1 LIABILITY OF LIMITED PARTNER
The Limited Partner is a "special partner" within the meaning of Articles 2236
and following of the C.C.Q. The liability of the Limited Partner for the
liabilities and obligations of the Partnership is limited to the amount of its
contribution to the capital of the Partnership. The Limited Partner shall have
no further personal liability for liabilities and obligations of the
Partnership, except as may be required pursuant to the provisions of Article
2242 of the C.C.Q.
10.2 LIABILITY OF GENERAL PARTNER
In the event that the property of the Partnership is insufficient, the General
Partner shall be liable for the debts of the Partnership in respect of third
persons.
10.3 INDEMNIFICATION OF GENERAL PARTNER
The General Partner shall indemnify and hold harmless the Limited Partner from
and against all loss, liability, expense or damage suffered or incurred by the
Limited Partner as a result of its participation in the Partnership by reason
that the liability of such Limited Partner shall exceed the liability provided
in section 10.1, but only for an amount in excess of the amount for which the
Limited Partner is liable under section 10.1; provided however, that the General
Partner shall have no liability in respect of any obligation or liability of the
Limited Partner or of the Partnership for which the Limited Partner has become
liable and for which the General Partner would not otherwise have been
responsible in its capacity as a general partner but for the actions of the
Limited Partner which caused such obligation or liability.
10.4 INDEMNIFICATION BY LIMITED PARTNER
Subject to the indemnification obligations of the General Partner in section
10.3, the Limited Partner shall indemnify and hold harmless the General Partner
from and against all loss, liability, expense or damage suffered or incurred by
the General. Partner as a result of any breach by the Limited Partner of any of
its obligations and covenants hereunder or any violation of applicable Law,
including anything done by the Limited Partner in violation of Article 2244 of
the C.C.Q.
11. COMPLIANCE WITH APPLICABLE LAWS
11.1 OBSERVANCE OF LAWS
Without limiting the generality of any other provision hereof, the Partners
shall, in exercising their rights and obligations hereunder, observe and comply
with, and the General Partner shall
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cause the Partnership to observe and comply with, all applicable Laws and
Broadcasting Licences.
11.2 SUBJECT TO OBTAINING AUTHORIZATIONS
In the event that a party is required to obtain, from any duly constituted
public or regulatory authority having jurisdiction, a certificate, leave,
consent, order, approval or other authorization (collectively, the "APPROVALS"),
in order to lawfully perform an obligation under this Agreement, other than in
respect of the purchase and sale of a Partnership Interest, then the time period
specified in this Agreement for the performance of such obligation shall be
extended for the period of time required for such party to obtain the necessary
Approvals. Such party shall use its best efforts to obtain such Approvals as
promptly as is practicable and shall be excused from performing such obligation
unless and until such Approvals are so obtained. The other party(ies) and the
Partnership shall use their reasonable best efforts to cooperate in any
application for the Approvals. For greater certainty, pending the rendering of a
decision in respect of any Approval by the appropriate authority, all of the
provisions hereof shall remain in full force and effect and the parties and the
Partnership shall be governed thereby in accordance with all the provisions
hereof.
11.3 QUALIFICATION OF PARTNERS
In addition to all other requirements herein provided, no person shall become a
Partner and no Partner shall transfer or dispose of its Partnership Interest to
any person, without obtaining all necessary Approvals, including the approval of
the CRTC, if required.
12. TERM AND DISSOLUTION
12.1 TERM
This Agreement shall become effective as of the day and year first above written
and the Partnership hereby continued shall have a fixed term, commencing on the
date hereof and continuing until August 31, 2046 (the "TERM"); provided however,
that the Partnership shall be dissolved prior to the expiry of the Term if and
when one Partner holds all of the Partnership Interests, unless another Partner
shall join the Partnership within one hundred and twenty (120) days of the day
on which such event occurs.
For greater certainty, the Partnership shall not be terminated or dissolved upon
the bankruptcy, insolvency, liquidation, winding-up, incapacity or receivership
of a Partner or the admission of a new Partner in accordance with the terms of
this Agreement or the withdrawal of a Partner (and notwithstanding anything to
the contrary provided by law, including Article 2226 of the C.C.Q., none of the
foregoing events or any other events shall result in a Partner ceasing to be a
partner of the Partnership, unless specifically so provided in this Agreement).
12.2 TERMINATION NOT TO AFFECT RIGHTS OR OBLIGATIONS
The termination of this Agreement or the termination or dissolution of the
Partnership shall not affect or prejudice any rights or obligations of a party
under this Agreement with respect to events that have occurred prior to the time
of such termination or dissolution and such rights and
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obligations shall survive the termination of this Agreement, including, for
greater certainty, any obligation of one party to the other to pay or reimburse
any sums to it or any obligation under article 10 or 11.
12.3 PROCESS OF DISSOLUTION
Upon dissolution of the Partnership pursuant to the provisions of this Agreement
(other than pursuant to section 12.1), the General Partner shall continue to
exercise its powers thereafter for the purpose of winding up the Partnership and
liquidating its assets and discharging its liabilities in an orderly manner.
Any assets of the Partnership remaining after the payment or provision for
payment of all the liabilities of the Partnership, shall be distributed to the
Partners as follows:
(a) first, to repay all capital contributions in respect of the
Units held by the Partners, in preference and priority to the
payment of any other amounts to the Partners hereunder;
(b) the excess, if any, after payment of all amounts under (a), to
the Partners who hold Units, in their respective Proportionate
Share.
For greater certainty, a negative Capital Account of the Limited Partner shall
not in any way constitute a debt of the Limited Partner to the Partnership or to
any third party.
12.4 SURVIVAL OF AGREEMENT
Notwithstanding the dissolution of the Partnership, this Agreement shall remain
in force until:
(a) the assets of the Partnership have been distributed in full;
and
(b) the notices prescribed by the C.C.Q. and by applicable Law
have been registered and published.
13. CIVIL CODE OF QUEBEC
The provisions of this Agreement are intended to fully and effectively govern
the relations of the Partners in all respects, to the exclusion of any other
provisions of applicable Law, including any provisions of the C.C.Q., to the
fullest extent permitted. In the event of any conflict between the provisions of
this Agreement and the provisions of the C.C.Q. which are not dealt with
specifically herein, the provisions of this Agreement shall always prevail in
all respects. Without limiting the generality of the foregoing or any other
provision hereof, the parties specifically acknowledge that:
(a) notwithstanding Article 2206 of the C.C.Q., payments by a
person who is separately indebted to the Partnership and to a
Partner shall be applied in such manner as such person may
designate;
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(b) a Partner who has received payment of his full share of a debt
due to the Partnership, as contemplated by Article 2207 of the
C.C.Q., shall not be obliged to return what it has received
from the Partnership unless the other Partner has not received
its full share of such debt due to the Partnership;
(c) the duties and obligations of the General Partner to the
Limited Partner and the Partnership are fully set out herein
and the provisions of this Agreement are exhaustive and are in
lieu of any other provisions governing the duties and
obligations of a general partner under the C.C.Q.;
(d) except as specifically provided for herein, no Partner may
associate a third person with itself in its Partnership
Interest, transfer its Partnership Interest or create any
Encumbrance in its Partnership Interest;
(e) the parties have entered into all such agreement and
arrangements between themselves as they consider appropriate
with respect to their powers in the management of the affairs
of the Partnership, the making of decisions in connection
therewith and the sharing and distribution of profits and
losses, all of which they confirm to be in accordance with the
provisions of the C.C.Q.;
(f) the Limited Partner hereby waives and renounces the
application of Articles 1310 to 1312, inclusive, of the C.C.Q.
with regard to all agreements and arrangements referred to in
section 8.7 herein, the Limited Partner hereby consenting to
such arrangements and acknowledging, in particular, that given
the General Partner's experience and expertise in the area of
broadcasting and broadcasting-related activities, it is
expected that the General Partner will enter into the
arrangements and agreements described therein. The Limited
Partner further relieves the General Partner from the
obligation to render an account of its administration to the
Limited Partner other than the reports and statements referred
to in article 7;
(g) the provisions of Articles 2226, 2227 and 2229 of the C.C.Q.
shall not apply and no Partner shall have any right to
withdraw from the Partnership, other than as specifically
permitted herein.
14. GENERAL PROVISIONS
14.1 ALL UNITS SUBJECT TO THIS AGREEMENT
The provisions of this Agreement shall apply to all Units either held or
acquired by GCL or GTNI, in any manner whatsoever prior to or subsequent to the
date of execution of this Agreement and the Partners agree to do all things and
execute all documents necessary to subject same effectively to the terms hereof.
14.2 NOTICES
Except where otherwise specified herein, all notices, requests, demands or other
communications between the parties hereto shall be given by registered or
certified mail, postage prepaid, or by facsimile or by physical delivery to the
address of such party and to the attention indicated under
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the signature of such party or to any other address which the parties hereto may
subsequently communicate to each other in writing. If normal postal service is
interrupted by strike, work slow-down, fortuitous event or other cause, the
party sending the notice shall use such services which have not been interrupted
or shall deliver such notice by messenger in order to ensure its prompt receipt
by the other Party.
14.3 COUNTERPARTS
This Agreement may be signed in counterparts, each of which shall be deemed to
constitute an original, and all of the separate counterparts shall constitute
one single document.
14.4 APPLICABLE LAW
This Agreement, its interpretation and its application shall be governed by the
Laws of the Province of Quebec.
14.5 CHANGES OF INTERPRETATION OF APPLICATION PROVISIONS OF LAW
If subsequent to the date of this Agreement, any change in or introduction of
any law, regulation, treaty or directive, or any interpretation or application
thereof by any competent authority or any decision of a regulatory authority,
including the CRTC, shall render any provision hereof unenforceable or limit or
affect the enforceability thereof such that it shall no longer apply as stated
herein or on the terms and conditions stated herein, the parties shall make such
amendments to this Agreement and to the provision so affected and take all such
other steps as may reasonably be required in order to give effect to the fullest
extent possible to the intention of the parties as at the date of entering into
this Agreement and to the relevant provision of this Agreement.
14.6 LANGUAGE
The parties acknowledge that they have required that the present Agreement, as
well as all documents, minutes, records, reports, accounts, notices and legal
proceedings given, required or instituted pursuant hereto or relating directly
or indirectly hereto be drawn up in English. Les parties reconnaissent avour
exige la redaction en anglais de la presente convention, ainsi que de tous
documents, proces-verbaux, dossiers, rapports, registres, comptes, avis donnes
ou requis et procedures judiciaires intentees, directement ou indirectement, a
la suite ou relativement a law presente convention.
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IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS
AGREEMENT AS OF THE DATE FIRST HEREINABOVE MENTIONED.
GLOBAL COMMUNICATIONS GLOBAL TELEVISION NETWORK
LIMITED INC./RESEAU DE TELEVISION GLOBAL
INC.
Per: /s/ GERALD R. NOBLE Per: /s/ GERALD R. NOBLE
_____________________________________ _________________________________
Gerald R. Noble Gerald R. Noble
President & Chief Executive Officer President Chief Executive
Officer
Per: /s/ RICHARD M. LEIPSIC Per: /s/ RICHARD M. LEIPSIC
_____________________________________ _________________________________
Richard M. Leipsic Richard M. Leipsic
Vice President Vice President
Address: 81 Barber Greene Road Address: 81 Barber Greene Road
Don Mills, Ontario Don Mills, Ontario
M3C 2A2 M3C 2A2
Attention: President Attention: President
Telephone: (416) 446-5311 Telephone: (416) 446-5311
Telecopier: (416) 446-5449 Telecopier: (416) 446-5449
With a copy to:
CANWEST GLOBAL
COMMUNICATIONS CORP.
Address: 3100-201 Portage Avenue
Winnipeg, Manitoba
R3B 3L7
Attention: General Counsel
Telephone: (204) 956-2025
Telecopier: (204) 947-9841
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