EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of April 3, 2003
by and among
CANWEST MEDIA INC.,
THE GUARANTORS
named herein
and
SALOMON SMITH BARNEY INC.
CIBC WORLD MARKETS CORP.
SCOTIA CAPITAL (USA) INC.
BMO NESBITT BURNS CORP.
RBC DOMINION SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
and
TD SECURITIES (USA) INC.
as Initial Purchasers
--------------------------
U.S.$200,000,000
7 5/8% SENIOR NOTES DUE 2013
TABLE OF CONTENTS
Page
----
1. DEFINITIONS..................................... 1
2. EXCHANGE OFFER.................................. 5
3. SHELF REGISTRATION.............................. 8
4. ADDITIONAL INTEREST............................. 9
5. REGISTRATION PROCEDURES......................... 11
6. REGISTRATION EXPENSES........................... 20
7. INDEMNIFICATION................................. 21
8. RULES 144 AND 144A.............................. 24
9. UNDERWRITTEN REGISTRATIONS...................... 24
10. MISCELLANEOUS................................... 25
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into as of April 3, 2003, by and among CanWest Media Inc., a
corporation organized under the federal laws of Canada (the "Company"), the
Guarantors (as defined) and Salomon Smith Barney Inc., CIBC World Markets Corp.,
Scotia Capital (USA) Inc., BMO Nesbitt Burns Corp., RBC Dominion Securities
Corporation, Banc of America Securities LLC and TD Securities (USA) Inc. (the
"Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated March 31, 2003, by and among the Company, the Guarantors and
the Initial Purchasers (the "Purchase Agreement") relating to, among other
things, the sale by the Company to the Initial Purchasers of U.S.$200,000,000
aggregate principal amount of the Company's 7 5/8% Senior Notes due 2013 (the
"Notes") and the unconditional guarantee thereof by the Guarantors on a joint
and several basis (the "Guarantee"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Issuers (as defined) have agreed to
provide the registration rights set forth in this Agreement for the benefit of
the holders of Registrable Notes (as defined), including, without limitation,
the Initial Purchasers. The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to this
Agreement.
Applicable Period: See Section 2(b).
Business Day: A day that is not a Saturday, a Sunday, or a day
on which banking institutions in New York, New York or Toronto, Canada are
required to be closed.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Commission: The Securities and Exchange Commission.
Company: See the first introductory paragraph to this
Agreement.
Effectiveness Date: The 135th day after the Issue Date, in the
case of the Exchange Registration Statement or the Initial Shelf Registration
Statement if the Exchange Registration Statement has not been declared effective
under the Securities Act and otherwise the 135th day after the delivery of the
Shelf Notice in the case of the Initial Shelf Registration Statement.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 90th day after the Issue Date (regardless of
whether the actual filing precedes such date). For purposes of this Agreement,
the terms "file", "filed" and "filing" shall include any submission to the
Commission for review on a confidential basis pursuant to the procedures
applicable to foreign private issuers.
Guarantee: See the second introductory paragraph to this
Agreement.
Guarantors: The guarantors identified on the signature pages
attached hereto.
Holder: Any registered holder of a Registrable Note or
Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of April 3, 2003, by and
among the Issuers and The Bank of New York, as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: See the first introductory paragraph to
this Agreement.
Initial Shelf Registration: See Section 3(a).
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Inspectors: See Section 5(o).
Issue Date: The date on which the Notes were sold to the
Initial Purchasers pursuant to the Purchase Agreement.
Issuers: The Company and the Guarantors, collectively.
NASD: National Association of Securities Dealers, Inc.
Notes: See the second introductory paragraph to this
Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to
this Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance thereof
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance thereof and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, until, in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than with respect to any Exchange
Note as to which Sec-
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tion 2(c)(iv) hereof is applicable) covering such Note, Exchange Note or Private
Exchange Note, as the case may be, has been declared effective by the Commission
and such Note, Exchange Note or Private Exchange Note, as the case may be, has
been disposed of in accordance with such effective Registration Statement, (ii)
such Note, Exchange Note or Private Exchange Note, as the case may be, is sold
in compliance with Rule 144, (iii) such Note, Exchange Note or Private Exchange
Note is eligible to be sold pursuant to paragraph (k) of Rule 144, (iv) in the
case of any Note, such Note has been exchanged pursuant to the Exchange Offer
for an Exchange Note or Exchange Notes which may be resold without restriction
under federal securities laws, or (v) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Registration Statement,
that covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the Commission providing for offers and sales of
securities made in compliance with the Securities Act resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
Rule 144A: Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the Commission.
Rule 415: Rule 415 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to an
underwriter for reoffering to the public.
2. Exchange Offer
(a) Each of the Issuers agrees to file with the
Commission no later than the Filing Date, an offer to exchange (the
"Exchange Offer") any and all of the Registrable Notes (other than
Private Exchange Notes, if any) for a like aggregate principal amount
of debt securities of the Company which are identical in all material
respects, and representing the same continuing indebtedness as, to the
Notes (the "Exchange Notes") (and which are entitled to the benefits of
the Indenture or a trust indenture which is identical in all material
respects to the Indenture (including, without limitation, the guarantee
provisions thereof) (other than such changes to the Indenture or any
such identical trust indenture as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification
thereof under the TIA or which eliminate the transfer restrictions on
the Notes or provisions for the payment of additional interest in
certain circumstances) and which, in either case, has been qualified
under the TIA), except that the Exchange Notes shall have been
registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon or
provisions for the payment of additional interest under certain
circumstances. The Exchange Offer shall be registered under the
Securities Act on the appropriate form (the "Exchange Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act. Each of the Issuers agrees to use
its reasonable best efforts to (x) cause the Exchange Registration
Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for not
less than 20 Business Days (or longer if required by applicable law)
after the date that notice of the Exchange Offer is first mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 135th
day following the Issue Date. If after such Exchange Registration
Statement is initially declared effective by the Commission, the
Exchange Offer or the issuance of the Exchange Notes thereunder is
interfered with by any stop order, injunction or other order or
requirement of the Commission or any other governmental agency or court
with respect to such Exchange Offer, such Exchange Registration
Statement shall be deemed not to have become effective for purposes of
this Agreement. Each Holder who participates in the Exchange Offer will
be required to represent (i) that any Exchange Notes received by it
will be acquired in the ordinary course of its business, (ii) that at
the time of the consummation of the Exchange Offer such Holder will
have no arrangement or understanding with any Person to participate in
the distribution of the Exchange Notes, (iii) that such Holder is not
an affiliate of any Issuer within the meaning of the Securities Act,
and (iv) any additional representations that in the written opinion of
counsel to the Issuers are
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necessary under then-existing interpretations of the Commission in
order for the Exchange Registration Statement to be declared effective.
Upon consummation of the Exchange Offer in accordance with this Section
2, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Notes that are Private
Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is
applicable and Exchange Notes held by Participating Broker-Dealers, and
the Issuers shall have no further obligation to register Registrable
Notes (other than Private Exchange Notes and other than in respect of
any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant
to Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions
taken or policies made by the Staff of the Commission with respect to
the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the Staff of the Commission or such
positions or policies, in the judgment of the Initial Purchasers,
represent the prevailing views of the Staff of the Commission. Such
"Plan of Distribution" section shall also expressly permit, to the
extent permitted by applicable policies and regulations of the
Commission, the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including, to
the extent so permitted, all Participating Broker-Dealers, and include
a statement describing the manner in which Participating Broker-Dealers
may resell the Exchange Notes.
Each of the Issuers shall use its reasonable best efforts to
keep the Exchange Registration Statement effective and to amend and supplement
the Prospectus contained therein, in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time beginning when the
Exchange Notes are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has been
completed and such Persons are no longer required to comply with the prospectus
delivery requirements in connection with offers and sales of the Exchange Notes
(the "Applicable Period").
If, upon the consummation of the Exchange Offer, any Initial
Purchaser holds any Notes acquired by it that have the status of an unsold
allotment in the initial distribution, the Issuers upon the request of such
Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes
in the Exchange Offer, issue and deliver to such Initial Purchaser, in exchange
(the "Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes except for the existence of restrictions
on transfer thereof under the Securities
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Act and securities laws of the several states of the U.S. (the "Private Exchange
Notes") (and which are issued pursuant to the same indenture as the Exchange
Notes). The Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder a copy
of the Prospectus forming part of the Exchange Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(2) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable
Notes at any time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly
tendered and not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange;
(2) deliver to the Trustee for cancellation in
accordance with the Indenture all Registrable Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder tendering such Registrable Notes, Exchange
Notes or Private Exchange Notes, as the case may be, equal in principal
amount to the Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event will provide that the Exchange
Notes will not be subject to the transfer restrictions set forth in the
Indenture and that the Exchange Notes, the Private Exchange Notes and the Notes,
if any, will vote and consent together on all matters as one class and that none
of the Exchange Notes, the Private Exchange Notes or the Notes, if any, will
have the right to vote or consent as a separate class on any matter. For greater
certainty, the Exchange Notes and the
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Private Exchange Notes, if any, that will be issued in exchange and in
substitution for the Notes will evidence the same continuing indebtedness as the
Notes.
(c) If (i) because of any change in law or in
currently prevailing interpretations of the Staff of the Commission,
the Company is not permitted to effect an Exchange Offer, (ii) the
Exchange Offer is not consummated within 165 days of the Issue Date,
(iii) any holder of Private Exchange Notes so requests in writing to
the Company or (iv) in the case of any Holder that participates in the
Exchange Offer (and tenders its Registrable Notes prior to the
expiration thereof), such Holder does not receive Exchange Notes on the
date of the exchange that may be sold without restriction under federal
securities laws (other than due solely to the status of such Holder as
an affiliate of any Issuer within the meaning of the Securities Act)
and so notifies the Company within 30 days following the consummation
of the Exchange Offer (and providing a reasonable basis for its
conclusions), in the case of each of clauses (i)-(iv), then the Issuers
shall promptly deliver to the Holders and the Trustee written notice
thereof (the "Shelf Notice") and shall file a Shelf Registration
pursuant to Section 3.
(d) Any distribution in Canada of the Exchange Notes
will be effected solely to holders of Registrable Notes who would be
eligible to acquire Exchange Notes pursuant to exemptions from the
requirement under applicable Canadian securities legislation that the
Company prepare and file a prospectus with the relevant Canadian
securities regulatory authorities and, as a condition to the sale of
their Registrable Notes pursuant to the Exchange Offer, holders of
Registrable Notes in Canada will be required to make certain
representations to the Company, including a representation that they
are entitled under applicable provincial securities laws to acquire the
Exchange Notes without the benefit of a prospectus qualified under
applicable provincial securities laws.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section
2(c), then:
(a) Shelf Registration. The Issuers shall as promptly
as reasonably practicable file with the Commission a Registration
Statement for an offering to be made on a continuous basis pursuant to
Rule 415 covering all of the Registrable Notes (the "Initial Shelf
Registration"). If the Issuers shall not have yet filed the Exchange
Registration Statement, each of the Issuers shall file with the
Commission the Initial Shelf Registration on or prior to the Filing
Date and shall use its reasonable best efforts to cause such Initial
Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date. Otherwise, the Issuers shall file
with the Commission the Initial Shelf Registration within 90 days of
the delivery of the Shelf Notice and shall use their best efforts to
cause such Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date. The Initial Shelf
Registration shall be on Form F-1 or
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another appropriate form permitting registration of the Registrable
Notes for resale by Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings).
The Issuers shall not permit any securities other than the Registrable
Notes to be included in any Shelf Registration. The Issuers shall use
their best efforts to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date which is 24 months
from the Issue Date (or, if Rule 144(k) under the Securities Act is
amended to permit unlimited resales by non-affiliates within a lesser
period, such lesser period) (subject to extension pursuant to the last
paragraph of Section 5 hereof) (the "Effectiveness Period") or such
shorter period ending when (i) all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and
as contemplated in the Initial Shelf Registration or (ii) a Subsequent
Shelf Registration covering all of the Registrable Notes has been
declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial
Shelf Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Issuers shall use their best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of
effectiveness amend the Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415
covering all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Issuers shall use their best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after such
filing and to keep such Subsequent Shelf Registration continuously
effective for a period equal to the number of days in the Effectiveness
Period less the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registrations was previously
continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Issuers shall use
their best efforts to promptly supplement and amend any Shelf
Registration if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration,
if required by the Securities Act, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Shelf Registration or by any underwriter of such
Registrable Notes, in each case, with each Issuer's consent, which
consent shall not be unreasonably withheld or delayed.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that
the Holders of Registrable Notes will suffer damages if the Issuers
fail to fulfill their obligations under Sec-
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tion 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, each
of the Issuers agrees to pay, as liquidated damages, additional
interest ("Additional Interest") on the Registrable Notes under the
circumstances and to the extent set forth below:
(i) if (A) neither the Exchange Registration
Statement nor the Initial Shelf Registration has been filed on
or prior to the Filing Date or (B) notwithstanding that the
Issuers have consummated or will consummate an Exchange Offer,
the Issuers are required to file a Shelf Registration and such
Shelf Registration is not filed on or prior to the 90th day
after delivery of the Shelf Notice, then, in the case of
subclause (A), commencing on the day after the Filing Date or,
in the case of subclause (B), commencing on the 91st day
following delivery of the Shelf Notice, Additional Interest
shall accrue on the Registrable Notes over and above the
stated interest at a rate of 0.50% per annum for the first 90
days immediately following the Filing Date or such 90th day,
as the case may be, such Additional Interest rate increasing
by an additional 0.25% per annum at the beginning of each
subsequent 90-day period;
(ii) if (A) neither the Exchange Registration
Statement nor the Initial Shelf Registration is declared
effective on or prior to the Effectiveness Date applicable
thereto or (B) notwithstanding that the Issuers have
consummated or will consummate an Exchange Offer, the Issuers
are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the Commission on or
prior to the applicable Effectiveness Date, then, commencing
on the day after such applicable Effectiveness Date,
Additional Interest shall accrue on the Registrable Notes over
and above the stated interest at a rate of 0.50% per annum for
the first 90 days immediately following the day after the
applicable Effectiveness Date, such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning
of each subsequent 90-day period; and
(iii) if (A) the Issuers have not exchanged
Exchange Notes for all Notes validly tendered in accordance
with the terms of the Exchange Offer on or prior to the 165th
day after the Issue Date, (B) the Exchange Registration
Statement ceases to be effective at any time prior to
consummation of the Exchange Offer or (C) if applicable, a
Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue on
the Registrable Notes over and above the stated interest at a
rate of 0.50% per annum for the first 90 days commencing on
the (x) 165th day after the Issue Date in the case of (A)
above or (y) the day such Exchange Registration Statement or
Shelf Registration ceases to be effective in the case of (B)
and (C) above, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
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provided, however, that the Additional Interest rate on the Registrable Notes
may not exceed in the aggregate 2.0% per annum; provided further that if more
than one of the foregoing subparagraphs is applicable at the same time the
Additional Interest then payable on the Registrable Notes shall be the higher of
the amounts provided by such applicable subparagraphs (and not the sum thereof);
provided further that (1) upon the filing of the Exchange Registration Statement
or each Shelf Registration (in the case of (i) above), (2) upon the
effectiveness of the Exchange Registration Statement or each Shelf Registration,
as the case may be (in the case of (ii) above), or (3) upon the exchange of
Exchange Notes for all Registrable Notes tendered (in the case of (iii)(A)
above) or upon the effectiveness of an Exchange Registration Statement or Shelf
Registration which had ceased to remain effective (in the case of (iii)(B) and
(C) above), Additional Interest on any Registrable Notes then accruing
Additional Interest as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within five
Business Days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event
Date"). Any amounts of Additional Interest due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash on each
regular interest payment date specified in the Indenture (to the
Holders of Registrable Notes of record on the regular record date
therefor (as specified in the Indenture) immediately preceding such
dates), commencing with the first such regular interest payment date
occurring after any such Additional Interest commences to accrue. The
amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the
Notes subject thereto, multiplied by a fraction, the numerator of which
is the number of days such Additional Interest rate was applicable
during such period (determined on the basis of a 360-day year comprised
of twelve 30-day months), and the denominator of which is 360.
(c) Additional Interest pursuant to this Section 4
shall be the sole and exclusive remedy for any failure by the Issuers
to comply with Sections 2, 3 and 5 hereof.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, each Issuer shall effect such registrations
to permit the sale of such securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, the
Issuers shall:
(a) Prepare and file with the Commission prior to the
Filing Date, the Exchange Registration Statement or if the Exchange
Registration Statement is not filed or is unavailable, a Shelf
Registration as prescribed by Section 2 or 3, and use their reasonable
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best efforts in the case of the Exchange Registration Statement and
best efforts in the case of the Shelf Registration Statement to cause
each such Registration Statement to become effective and remain
effective as provided herein; provided that, if (1) a Shelf
Registration is filed pursuant to Section 3, or (2) a Prospectus
contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period and has advised the Company that it is a
Participating Broker-Dealer, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Issuers
shall, if requested, furnish to and afford the Holders of the
Registrable Notes to be registered pursuant to such Shelf Registration
or each such Participating Broker-Dealer, as the case may be, covered
by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in
each case at least five days prior to such filing). The Issuers shall
not file any such Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis.
(b) Prepare and file with the Commission such
amendments and post-effective amendments to each Shelf Registration or
Exchange Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may
be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to
the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus. The Issuers
shall be deemed not to have used their best efforts to keep a
Registration Statement effective during the Applicable Period if they
voluntarily take any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless such action is
required by applicable law, rule or regulation or unless the Issuers
comply with this Agreement, including, without limitation, the
provisions of paragraph 5(k) hereof and the last paragraph of Section
5.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who
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seeks to sell Exchange Notes during the Applicable Period from whom the
Issuers have received written notice that it will be a Participating
Broker-Dealer, notify the selling Holders of Registrable Notes, and
each such Participating Broker-Dealer, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business
Days), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice
a written statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or
the initiation of any proceedings for that purpose, (iii) if at any
time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes the
representations and warranties of any Issuer contained in any agreement
with the selling Holders (including any underwriting agreement
contemplated by Section 5(n) hereof) cease to be true and correct in
any material respect, (iv) of the receipt by any Issuer of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in, or amendments or
supplements to, such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vi) of the Issuers' determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its reasonable best
efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Ex-
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change Notes to be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, to use its best
efforts to obtain the withdrawal of any such order at the earliest
possible date.
(e) If a Shelf Registration is filed pursuant to
Section 3 and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering, (i) as
promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information or revisions to information
therein relating to such underwriters or selling Holders as the
managing underwriters, if any, or such Holders or their counsel
reasonably request to be included or made therein, (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes and to each such Participating
Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, without charge, one conformed copy of the
Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer, deliver to each
selling Holder of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus
or Prospectuses (including each form of preliminary prospectus) and
each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Issuers hereby consent to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes and each Participating
Broker-Dealer, and the underwriters or agents, if any, and dealers (if
any), in connection with the offering and sale of the Registrable Notes
covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
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(h) Prior to any public offering of Registrable Notes
or any delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable best efforts to
register or qualify, and cooperate with the selling Holders of
Registrable Notes and each such Participating Broker-Dealer, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration
or qualification) of such Registrable Notes or Exchange Notes, as the
case may be, for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or
underwriters, if any, reasonably request in writing; provided that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered pursuant to an underwritten offering,
counsel to the underwriters shall, at the cost and expense of the
Issuers, perform the Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided that no Issuer shall be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to
Section 3, cooperate with the selling Holders of Registrable Notes, any
Participating Broker-Dealer and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations and registered in
such names as the managing underwriter or underwriters, if any, or
Holders may reasonably request.
(j) Use its reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be
registered with or approved by such governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such
Registrable Notes, in which case the Issuers will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is re-
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quired to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the Commission, at the
Issuers' sole expense, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Use its reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement to be rated with
the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first
Registration Statement relating to the Registrable Notes, (i) provide
the Trustee with printed certificates for the Registrable Notes or the
Exchange Notes, as the case may be, in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes or the Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes and take all such other actions as
are reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes and, in such connection, (i) make such
representations and warranties to the underwriters, with respect to the
business of the Issuers and their subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities similar to the Notes, and confirm the same in writing if and
when requested; (ii) obtain the opinion of counsel to the Issuers and
updates thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by managing underwriters;
(iii) obtain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the man-
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aging underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any subsidiary of any Issuer or of any
business acquired by any Issuer for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes and such other matters as
reasonably requested by the managing underwriter or underwriters; and
(iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The above shall be
done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold,
and each Participating Broker-Dealer, any underwriter participating in
any such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder, each
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of each Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
each Issuer and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement. Records which an Issuer determines, in good faith, to be
confidential and any Records which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) the information in
such Records has been made generally available to the public other than
as a result of a disclosure or failure to safeguard by such Inspector
or (iv) disclosure of such information is, in the opinion of counsel
for any Inspector, necessary or advisable in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
related to, or involving this Agreement, or any transactions
contemplated hereby or arising hereunder. Each selling Holder of such
Registrable Notes and each Participating Broker-Dealer or other
Inspector will be required
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to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of any Issuer
unless and until such is made generally available to the public. Each
Inspector, each selling Holder of such Registrable Notes and each
Participating Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction pursuant to clauses (ii) or (iv) of the
previous sentence or otherwise, give notice to the Issuers and allow
the Issuers to undertake appropriate action to obtain a protective
order or otherwise prevent disclosure of the Records deemed
confidential at its expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a), as the
case may be, to be qualified under the TIA not later than the effective
date of the Exchange Offer or the first Registration Statement relating
to the Registrable Notes; and in connection therewith, cooperate with
the trustee under any such indenture and the Holders of the Registrable
Notes, to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use its reasonable best efforts to cause such
trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with
the Commission to enable such indenture to be so qualified in a timely
manner.
(q) Comply with all applicable rules and regulations
of the Commission and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 60 days after the end of any
12-month period (or 120 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of the Exchange Offer or a
Private Exchange, obtain an opinion of counsel to the Issuers, in a
form customary for underwritten transactions, addressed to the Trustee
for the benefit of all Holders of Registrable Notes participating in
the Exchange Offer or the Private Exchange, as the case may be, that
the Exchange Notes or the Private Exchange Notes, as the case may be,
the Guarantee and the related indenture constitute legally valid and
binding obligations of the Issuers, enforceable against the Issuers in
accordance with their respective terms.
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(s) If the Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by Holders to
the Issuers (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall mark, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the NASD.
(u) Use its reasonable best efforts to take all other
steps reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Notes of any seller who fails to
furnish such information within a reasonable time after receiving such request.
Each seller as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Issuers all information required to be
disclosed in order to make the information previously furnished to the Issuers
by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Issuers of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi), such Holder will
forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, and, in each case,
dissemination of such Prospectus until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Issuers shall give any such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Participating Broker-Dealer, as
the
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case may be, shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(k) or (y) the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depositary Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or by any
Participating Broker-Dealer, as the case may be, (iii) reasonable messenger,
telephone and delivery expenses incurred in connection with the Exchange
Registration Statement and any Shelf Registration, (iv) reasonable fees and
disbursements of counsel for the Issuers and fees and disbursements of Cahill
Gordon & Reindel, special counsel for the Initial Purchasers and the sellers of
Registrable Notes, or such other counsel as may be appointed by a majority of
the Initial Purchasers or sellers of Registrable Notes, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if any Issuer
desires such insurance, (viii) fees and expenses of all other Persons retained
by the Issuers, (ix) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Issuers
performing legal or accounting duties), (x) the expense of any annual or special
audit, (xi) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, (xii) the fees and
disbursements of underwriters, if any, customarily paid by issuers or sellers of
securities (but not including any underwriting discounts or commissions or
transfer taxes, if any, attributable to the sale of the Registrable Notes which
discounts, commissions or taxes shall be paid by Holders of such Registrable
Notes) and (xiii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
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7. Indemnification
(a) The Issuers jointly and severally agree to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer, the officers, directors, employees and
agents of each such Person, and each Person, if any, who controls any
such Person within the meaning of the Securities Act or the Exchange
Act (each, a "Participant"), from and against any and all losses,
claims, damages and liabilities, joint or several (including, without
limitation, the reasonable legal fees and other reasonable expenses
actually incurred in connection with any suit, action or proceeding or
any claim asserted) to which they or any of them may become subject
under the Securities Act, the Exchange Act or other Federal or state
statutory law or regulation, or pursuant to Canadian securities laws,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities are caused by, arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (as amended or supplemented if
the Issuers shall have furnished any amendments or supplements thereto)
or are caused by, arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Issuers in writing by or
on behalf of such Participant expressly for use therein; provided,
however, that the Issuers shall not be liable if such untrue statement
or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or
any amendment or supplement thereto and the Prospectus does not contain
any other untrue statement or omission or alleged untrue statement or
omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense
suffered or incurred by the Participants resulted from any action,
claim or suit by any Person who purchased Registrable Notes or Exchange
Notes which are the subject thereof from such Participant and it is
established in the related proceeding that such Participant failed to
deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Notes or Exchange Notes sold to such Person if
required by applicable law, unless such failure to deliver or provide a
copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuers with Section 5 of this Agreement.
(b) Each Participant will be required to agree,
severally and not jointly, to indemnify and hold harmless each Issuer,
its directors and officers and each Person who controls each Issuer
within the meaning of the Securities Act or the Exchange Act to the
same extent as the foregoing indemnity from the Issuers to each
Participant, but only with
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reference to information relating to such Participant furnished to the
Issuers in writing by such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. The liability of any
Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or
Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any Person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such
Person (the "Indemnified Person") shall promptly notify the Person
against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Person may reasonably designate in such proceeding and
shall pay the reasonable fees and expenses actually incurred by such
counsel related to such proceeding; provided, however, that the failure
to so notify the Indemnifying Person shall not relieve it of any
obligation or liability which it may have hereunder or otherwise. In
any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and the Indemnified
Person shall have reasonably concluded that (x) there may be one or
more legal defenses available to it and/or (y) other Indemnified
Persons and such Indemnifying Person such that joint representation
would not be appropriate and/or (z) the use of counsel chosen by the
Indemnifying Person to represent the Indemnified Person would present
such counsel with a conflict of interest causing the representation to
be inappropriate under applicable professional standards. It is
understood that, unless there is a conflict among Indemnified Persons,
the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in
interest of Registrable Notes sold by all such Participants and any
such separate firm for the Issuers, their respective directors,
officers and such control Persons of the Issuers shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there is a final non-appealable
judgment for the plaintiff, the Indemnifying Person agrees to indemnify
any Indemnified Person from
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and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for reasonable fees and expenses
actually incurred by counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable
for any settlement of any proceeding effected without its consent if
(i) such settlement is entered into more than 30 days after receipt by
such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement;
provided, however, that the Indemnifying Person shall not be liable for
any settlement effected without its consent pursuant to this sentence
if the Indemnifying Person is contesting, in good faith, the request
for reimbursement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person (which consent shall not be
unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or
could have been a party or indemnity could have been sought hereunder
by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include
any statement as to an admission of fault, culpability or failure to
act by or on behalf of an Indemnified Person.
(d) If the indemnification provided for in the first
and second paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Person or Persons on the one hand
and the Indemnified Person or Persons on the other in connection with
the statements or omissions (or alleged statements or omissions) that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers
on the one hand or by the Participants or such other Indemnified
Person, as the case may be, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations
appropriate under the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Participants
-23-
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred
by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which proceeds
received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements
contained in this Section 7 will be in addition to any liability which
the Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
8. Rules 144 and 144A
Each of the Issuers covenants that it will file the reports,
if any, required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder in a timely
manner and, if at any time it is not required to file such reports, it will,
upon the request of any Holder of Registrable Notes, make publicly available
other information so long as necessary to permit sales pursuant to Rule 144 and
Rule 144A under the Securities Act. Each of the Issuers further covenants, for
so long as any Registrable Notes remain outstanding, to make available to any
Holder or beneficial owner of Registrable Notes in connection with any sale
thereof and any prospective purchaser of such Registrable Notes from such Holder
or beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and reasonably acceptable to the
Issuers.
-24-
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by any Issuer
of any of its obligations under this Agreement, each Holder of
Registrable Notes and each Participating Broker-Dealer holding Exchange
Notes, in addition to being entitled to exercise all rights provided
herein, in the Indenture or, in the case of an Initial Purchaser, in
the Purchase Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under
this Agreement. Each Issuer agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. None of the Issuers
has entered, as of the date hereof, and none of the Issuers shall
enter, after the date of this Agreement, into any agreement with
respect to any of its securities that is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. None of the Issuers has
entered and none of the issuers shall enter into any agreement with
respect to any of its securities which will grant to any Person
piggy-back rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. None of
the Issuers shall, directly or indirectly, take any action with respect
to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable
Notes in a registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of (A) the Holders of not
less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would
adversely affect Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal
amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(d) may not be
amended, modified or supplemented without the prior written consent of
each Holder and each Par-
-25-
ticipating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as
the case may be, disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders of Registrable Notes whose securities are being
tendered pursuant to the Exchange Offer or sold pursuant to a
Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable
Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being tendered or being sold
by such Holders pursuant to such Registration Statement.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
telecopier:
1. if to a Holder of Registrable Notes or any
Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture, with a
copy in like manner to the Initial Purchasers as follows:
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
United States
Facsimile No.: (212) 723-8589
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
United States
Facsimile No.: (212) 269-5420
Attention: Geoffrey E. Liebmann, Esq.
2. if to the Initial Purchasers, at the address
specified in Section 10(e)(1);
-26-
3. if to any Issuer, to such Issuer at the following
address:
CanWest Media Inc.
201 Portage Avenue, 31st Floor
TD Centre
Winnipeg, Manitoba R3B 3LZ
Canada
Facsimile No.: (204) 947-9841
Attention: John Maguire
with a copy (which shall not constitute notice) to:
Osler, Hoskin & Harcourt LLP
Box 50
1 First Canadian Place
Toronto, Ontario M5X 1B8
Canada
Facsimile No.: (416) 862-6666
Attention: Linda Robinson, Esq.
and:
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
United States
Facsimile No.: (212) 836-8211
Attention: Joel I. Greenberg, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns
of each of the parties hereto and the Holders; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor
or assign holds Registrable Notes.
-27-
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THE VALIDITY AND INTERPRETATION OF
THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS
OF LAW. EACH OF THE ISSUERS HEREBY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE
CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS
AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY. SERVICE OF ANY PROCESS,
SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH ISSUER
AT THE ADDRESS SET FORTH ABOVE SHALL BE EFFECTIVE SERVICE OF PROCESS
AGAINST SUCH ISSUER FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT. EACH OF THE ISSUERS IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING HAS BEEN BROUGHT IN ANY SUCH COURT AND ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT MAY BE ENFORCED IN ANY OTHER
COURTS TO WHOSE JURISDICTION SUCH ISSUER IS OR MAY BE SUBJECT, BY SUIT
UPON JUDGMENT.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
-28-
(k) Notes Held by any Issuer or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Registrable Notes is required hereunder, Registrable Notes held by
any Issuer or its affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
(l) Third Party Beneficiaries. Holders of Registrable
Notes and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by
such Persons.
(m) Entire Agreement. This Agreement, together with
the Purchase Agreement and the Indenture, is intended by the parties as
a final and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein
and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda among the Initial
Purchasers on the one hand and the Issuers on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the
subject matter hereof and thereof are merged herein and replaced
hereby.
(n) Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. By the execution and delivery of this Agreement,
each of the Issuers (i) acknowledges that it has, by separate written
instrument, designated and appointed CanWest International
Corp.("CWIC") (and any successor entity) as its authorized agent upon
which process may be served in any suit or proceeding arising out of or
relating to this Agreement that may be instituted in any federal or
state court in The City of New York, Borough of Manhattan, State of New
York or brought under federal or state securities laws, and
acknowledges that CWIC has accepted such designation, (ii) submits to
the jurisdiction of any such court in any such suit or proceeding and
(iii) agrees that service of process upon CWIC and written notice of
said service to such Issuers in accordance with Section 10(e) shall be
deemed in effective service of process upon such Issuers in any such
suit or proceeding. Each of the Issuers further agrees to take any
reasonable action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such
designation and appointment of CWIC in full force and effect so long as
any of the Notes shall be outstanding; provided that the Issuers may,
by written notice to the Initial Purchasers, designate such additional
or alternative agent for service of process under this Section 10(n)
that (i) maintains an office located in the Borough of Manhattan, City
of New York, State of New York and (ii) is either (x) counsel for the
Issuers or (y) a corporate service company which acts as agent for
service of process for other persons in the ordinary course of its
business. Such written notice shall identify the name of such agent for
service of process and the address of the office of such agent for
service of process in the Borough of Manhattan, City of New York, State
of New York.
-29-
(o) Judgment Currency. The Issuers shall, jointly and
severally, indemnify each Purchaser, each Participating Broker-Dealer,
each underwriter who participates in an offering of Registrable Notes,
their respective affiliates, each Person, if any, who controls any of
such parties within the meaning of the Securities Act or the Exchange
Act and each of their respective officers, directors, employees and
agents against any loss incurred by such party as a result of any
judgment or order being given or made in favor of such party for any
amount due under this Agreement and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other than
United States dollars and as a result of any variation as between (i)
the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment
or order and (ii) the spot rate of exchange in The City of New York at
which such party on the date of payment of such judgment or order is
able to purchase United States dollars with the amount of the Judgment
Currency actually received by such party. The foregoing indemnity shall
continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase
of, or conversion into, United States dollars.
(p) Joint and Several Obligations. All of the
obligations of the Issuers hereunder shall be joint and several
obligations of each of them.
[Signature pages follow]
-30-
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
COMPANY:
CANWEST MEDIA INC.
By: /s/ JOHN MAGUIRE
_______________________________________________
Name: John Maguire
Title: Vice-President, Finance and Chief
Financial Officer
GUARANTORS:
2846551 CANADA INC.
3919056 CANADA LIMITED
APPLE BOX PRODUCTIONS SUB
INC.
BCTV HOLDINGS INC.
CALGARY HERALD GROUP INC.
CANWEST - MONTREAL R.P. HOLDINGS INC.
CANWEST - WINDSOR R.P. HOLDINGS INC.
CANWEST FINANCE INC./FINANCIERE CANWEST
INC.
CANWEST GLOBAL BROADCASTING INC./
RADIODIFFUSION CANWEST GLOBAL INC.
CANWEST INTERACTIVE INC.
CANWEST INTERNATIONAL COMMUNICATIONS INC.
CANWEST INTERNATIONAL MANAGEMENT INC.
CANWEST IRISH HOLDINGS (BARBADOS) INC.
CANWEST MEDIA SALES LIMITED
CANWEST NZ RADIO HOLDINGS LIMITED
CANWEST PUBLICATIONS INC.
CGS DEBENTURE HOLDING (NETHERLANDS) B.V.
CGS INTERNATIONAL HOLDINGS (NETHERLANDS)
B.V.
CGS NZ RADIO SHAREHOLDING (NETHERLANDS)
B.V.
S-2
CGS NZ TV SHAREHOLDING (NETHERLANDS) B.V.
CGS SHAREHOLDING (NETHERLANDS) B.V.
CHBC HOLDINGS INC.
CHEK HOLDINGS INC.
CLARINET MUSIC INC.
EDMONTON JOURNAL GROUP INC.
FOX SPORTS WORLD CANADA HOLDCO INC.
GLOBAL CENTRE INC.
GLOBAL COMMUNICATIONS LIMITED
GLOBAL TELEVISION CENTRE LTD.
GLOBAL TELEVISION NETWORK INC.
GLOBAL TELEVISION NETWORK
QUEBEC, LIMITED PARTNERSHIP/
RESEAU DE TELEVISION GLOBAL QUEBEC,
SOCIETE EN COMMANDITE
GLOBAL TELEVISION SPECIALTY
NETWORKS INC.
LONESTAR HOLDCO INC.
LOWER MAINLAND PUBLISHING GROUP INC.
MONTREAL GAZETTE GROUP INC.
MULTISOUND PUBLISHERS LTD.
NANAIMO DAILY NEWS GROUP INC.
ONTV HOLDINGS INC.
OTTAWA CITIZEN GROUP INC.
PACIFIC NEWSPAPER GROUP INC.
PORT ALBERNI TIMES GROUP INC.
REACHCANADA CONTACT CENTRE
LIMITED
REGINA LEADER POST GROUP INC.
RETROVISTA HOLDCO INC.
SASKATOON STARPHOENIX GROUP INC.
SOUTHAM DIGITAL INC.
STUDIO POST & TRANSFER SUB INC.
TV3 NETWORK SERVICES LIMITED
TV4 NETWORK LIMITED
VANCOUVER ISLAND NEWSPAPER GROUP INC.
VICTORIA TIMES COLONIST GROUP INC.
S-3
WESTERN COMMUNICATIONS INC.
WIC MOBILE TV INC.
WIC TELEVISION PRODUCTION SUB INC.
WINDSOR STAR GROUP INC.
XTREME SPORTS HOLDCO INC.
By: /s/ JOHN MAGUIRE
_______________________________________________
Name: John Maguire
Title: Authorized Signing Officer
S-4
SALOMON SMITH BARNEY INC.
By: /s/ BARBARA MATAS
_______________________________________________
Name: Barbara Matas
Title: Managing Director
S-5
CIBC WORLD MARKETS CORP.
By: /s/ BRIAN S. PERMAN
_______________________________________________
Name: Brian S. Perman
Title: Managing Director
S-6
SCOTIA CAPITAL (USA) INC.
By: /s/ GREG WOYNARSKI
_______________________________________________
Name: Greg Woynarski
Title: Managing Director
S-7
BMO NESBITT BURNS CORP.
By: /s/ JAMES J. GOLL
_______________________________________________
Name: James J. Goll
Title: Managing Director
S-8
RBC DOMINION SECURITIES CORPORATION
By: /s/ WILLIAM H. COOK
_______________________________________________
Name: William H. Cook
Title: Managing Director
S-9
BANC OF AMERICA SECURITIES LLC
By: /s/ DANIEL KELLY
_______________________________________________
Name: Daniel Kelly
Title: Managing Director
S-10
TD SECURITIES (USA) INC.
By: /s/ JOHN BRENIZER
_______________________________________________
Name: John Brenizer
Title: Vice President and Director