EXHIBIT 4.7
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC")
TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS
SO REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN THE SUBJECT OF
ANY PROSPECTUS FILED UNDER THE SECURITIES LAWS OF ANY CANADIAN PROVINCE OR
TERRITORY. THE HOLDER OF THE SECURITY BY ITS ACCEPTANCE HEREOF REPRESENTS, IF IT
IS A RESIDENT OF CANADA, THAT IT IS PURCHASING THE SECURITIES IN A TRANSACTION
WHICH IS EXEMPT FROM THE PROSPECTUS REQUIREMENTS OF APPLICABLE CANADIAN
SECURITIES LAWS. THE SALE OF THE SECURITIES TO IT QUALIFIES (BY REASON OF THE
AMOUNT OF THE CONSIDERATION BEING PAID BY THE PURCHASER OF THE SECURITIES OR BY
REASON OF THE STATUS OF THE PURCHASER, AS THE CASE MAY BE) FOR AN EXEMPTION FROM
THE PROSPECTUS FILING AND DELIVERY OBLIGATIONS UNDER APPLICABLE CANADIAN
PROVINCIAL OR TERRITORIAL SECURITIES LAWS (PROVIDED THAT APPLICABLE FILING
OBLIGATIONS ARE SATISFIED AND ANY APPLICABLE FEES ARE PAID), AND IT HAS PROVIDED
SUCH INFORMATION AND MADE SUCH REPRESENTATIONS TO THE SELLER OF THE SECURITIES
AS MAY BE
REASONABLY NECESSARY FOR THE SELLER TO RELY ON SUCH EXEMPTIONS AND
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE DATE ON WHICH RESALE RESTRICTIONS
TERMINATE UNDER APPLICABLE SECURITIES LAWS.
2
CUSIP C21400 AC 7
CANWEST MEDIA INC.
No. 002 U.S.$470,000
7-5/8% SENIOR NOTE DUE 2013
CANWEST MEDIA INC., a corporation organized under the federal
laws of Canada (the "Issuer," which term includes any successor corporation),
for value received, promises to pay to CEDE & CO. or registered assigns the
principal sum of FOUR HUNDRED SEVENTY THOUSAND (U.S.$470,000) U.S. DOLLARS on
April 15, 2013.
Interest Payment Dates: April 15 and October 15, commencing
October 15, 2003.
Record Dates: April 1 and October 1.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
3
IN WITNESS WHEREOF, the Issuer has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
CANWEST MEDIA INC.
By: /s/ JOHN MAGUIRE
-----------------------------------
Name:
Title:
By: /s/ P A HARROD
-----------------------------------
Name:
Title:
Dated: April 3, 2003
Certificate of Authentication:
This is one of the 7-5/8% Senior Notes due 2013 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: /s/ VANESSA MACK
-----------------------------------
Authorized Signatory
4
[REVERSE OF NOTE]
CANWEST MEDIA INC.
7-5/8% SENIOR NOTE DUE 2013
1. Interest. CANWEST MEDIA INC., a corporation organized
under the federal laws of Canada (the "Issuer"), promises to pay, until the
principal hereof is paid or made available for payment, interest on the
principal amount set forth on the face hereof at a rate of 7-5/8% per annum.
Interest hereon will accrue from and including the most recent date to which
interest has been paid or, if no interest has been paid, from and including
April 3, 2003 to but excluding the date on which interest is paid. Interest
shall be payable in arrears on each April 15 and October 15 commencing October
15, 2003. Interest will be computed on the basis of a 360-day year of twelve
30-day months. For purposes of the Interest Act (Canada), the yearly rate of
interest which is equivalent to the rate payable hereunder is the rate
multiplied by the actual number of days in the year and divided by 360. The
Issuer shall pay interest on overdue principal and on overdue interest (to the
full extent permitted by law) at the rate borne by the Notes.
2. Method of Payment. The Issuer will pay interest
hereon (except defaulted interest) to the Persons who are registered Holders at
the close of business on April 1 or October 1 next preceding the Interest
Payment Date (whether or not a Business Day). Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuer will pay principal,
premium, if any, and interest on the Notes in the manner set forth in Article 2
of the Indenture. Interest may be paid by check mailed to the Holder entitled
thereto at the address indicated on the register maintained by the Registrar for
the Notes.
3. Paying Agent and Registrar. Initially, The Bank of
New York, in its capacity as Trustee (the "Trustee"), will act as Paying Agent
and Registrar. The Issuer may change any Paying Agent or Registrar without
notice to any Holder. Neither the Issuer nor any of its Affiliates may act as
Paying Agent or Registrar.
4. Indenture. The Issuer issued the Notes under an
Indenture dated as of April 3, 2003 (the "Indenture") between the Issuer, the
Guarantors and the Trustee. This is one of an issue of Notes of the Issuer
issued, or to be issued, under the Indenture. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as
amended from time to time (the "TIA"). The Notes are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of them.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture. The Issuer shall be entitled to issue
Additional Notes pursuant to Section 2.19 of the Indenture. The Notes include
the Exchange Notes issued in exchange for the Notes pursuant to the Registration
Rights Agreement. All Notes issued under the Indenture are treated as a single
class of securities under the Indenture. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Notes are subject to all such terms,
5
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Note and the terms of the
Indenture, the terms of the Indenture shall control. This is one of the Notes
referred to in the Indenture.
5. Additional Amounts. The Issuer will pay to the
Holders of Notes such Additional Amounts as may become payable under Section
4.25 of the Indenture.
6. Optional Redemption. The Issuer, at its option, may
redeem the Notes, in whole or in part, at any time on or after April 15, 2008
upon not less than 30 nor more than 60 days' prior written notice, at the
redemption prices (expressed as percentages of principal amount), set forth
below, together, in each case, with accrued and unpaid interest to the
Redemption Date, if redeemed during the twelve month period beginning on April
15 of each year listed below:
Year Redemption Price
- ---- ----------------
2008............................................... 103.813%
2009............................................... 102.542%
2010............................................... 101.271%
2011 and thereafter................................ 100.000%
Notwithstanding the foregoing, the Issuer may redeem in the
aggregate up to (i) 35% of the original principal amount of the Notes at any
time and from time to time prior to April 15, 2006 at a redemption price equal
to 107.625% of the aggregate principal amount so redeemed, plus accrued and
unpaid interest, if any, to the Redemption Date, out of the net cash proceeds of
one or more Equity Offerings; provided that at least 65% of the principal amount
of Notes originally issued (including the original principal amount of
Additional Notes) shall remain outstanding immediately after the occurrence of
any such redemption and that any such redemption occurs within 90 days following
the closing of any such Equity Offering.
Notwithstanding the foregoing and notwithstanding any other
term of the Notes or of the Indenture, until the completion of an exchange offer
under the Registration Rights Agreement, the Issuer may not redeem in the
aggregate more than 25% of the original principal amount of the Notes.
In the event of a redemption of fewer than all of the Notes,
of the Trustee shall select the Notes to be redeemed in compliance with the
requirements the principal national securities exchange, if any, on which such
Notes are listed or, if such Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other manner as the Trustee in
its sole discretion shall deem fair and equitable. The Notes will be redeemable
in whole or in part upon not less than 30 nor more than 60 days' prior written
notice, mailed by first class mail to a holder's last address as it shall appear
on the register maintained by the Registrar. On and after any redemption date,
interest will cease to accrue on the Notes or portions thereof called for
6
redemption as long as sufficient funds to effect such redemption are deposited
by or on behalf of the Issuer with the Paying Agent.
7. Tax Redemption. The Notes will be redeemable, in
whole but not in part, at the option of the Issuer, upon not less than 30 nor
more than 60 days' prior written notice mailed by first class mail to each
Holder of Notes at its address appearing on the Register maintained by the
Registrar, at 100% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the redemption date, if the Issuer or any Guarantor
is or would become obligated to pay, on the next date on which any amount would
be payable with respect to the Notes, any Additional Amounts pursuant to Section
4.25 of the Indenture as a result of a change in, or amendment to, the laws (or
any regulation or rulings promulgated thereunder) of any Taxing Jurisdiction, or
any change in, or amendment to, any administrative or other official position
regarding the application or interpretation of such laws, regulations or rulings
(including, without limitation, a ruling by a court of competent jurisdiction),
which change or amendment is announced on or after the Issue Date; provided that
the Issuer or such Guarantor determines, in its business judgment, that the
obligation to pay such Additional Amounts cannot be avoided by the use of
reasonable measures available to the Issuer or such Guarantor (not including
substitution of the obligor under the Notes). No such notice of redemption may
be given later than 180 days after the Issuer first becomes liable to pay any
Additional Amounts as a result of such change or amendment.
8. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Issuer defaults in making the redemption payment,
interest will cease to accrue on Notes or portions thereof called for
redemption.
9. Offers to Purchase. The Indenture provides that upon
the occurrence of a Change of Control or an Asset Sale, and subject to further
limitations contained therein, the Issuer shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
10. Registration Rights. Pursuant to the Registration
Rights Agreement among the Issuer and initial purchasers of the Notes, the
Issuer may be obligated to consummate an exchange offer pursuant to which the
Holder of this Note shall have the right to exchange this Note for notes of a
separate series issued under the Indenture (or a trust indenture substantially
identical to the Indenture in accordance with the terms of a registration rights
agreement) which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes. The
Holders shall be entitled to receive certain additional interest payments in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
11. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may
7
register the transfer or exchange of Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Notes or portion of a Note selected for redemption,
or register the transfer of or exchange any Notes for a period of 15 days before
a mailing of notice of redemption.
12. Persons Deemed Owners. The registered Holder of this
Note may be treated as the owner of this Note for all purposes.
13. Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for two years, the Trustee or a Paying
Agent will pay the money back to the Issuer (or, if appropriate, any Guarantors)
at its written request. After that, Holders entitled to the money must look to
the Issuer and any Guarantors for payment as unsecured general creditors unless
applicable "abandoned property" law designates another Person.
14. Amendment, Supplement, Waiver, Etc. The Issuer, any
Guarantor and the Trustee may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the TIA and making any change that does not adversely affect the rights of any
Holder. Other amendments and modifications of the Indenture or the Notes may be
made by the Issuer, any Guarantor and the Trustee with the written consent of
the Holders of not less than a majority of the aggregate principal amount of
then outstanding Notes, subject to certain exceptions requiring the written
consent of the Holders of the particular Notes to be affected.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Issuer and the Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
their Capital Stock or certain Indebtedness, make certain Investments, create or
incur liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions, issue Preferred Stock of any Restricted Subsidiaries of the
Issuer, enter into sale and leaseback transactions and on the ability of the
Issuer to merge or consolidate with any other Person or transfer all or
substantially all of the Issuer's or any Guarantor's assets. Such limitations
are subject to a number of important qualifications and exceptions. Pursuant to
Section 4.04 of the Indenture, the Issuer must annually report to the Trustee in
writing on compliance with such limitations.
16. Successor Corporation. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article 5 of the Indenture, the
predecessor corporation will, except as provided in Article 5, be released from
those obligations.
17. Defaults and Remedies. Events of Default are set
forth in the Indenture. Subject to certain limitations in the Indenture, if an
Event of Default (other than an Event of
8
Default specified in Section 6.01(7) or (8) of the Indenture with respect to the
Issuer or any Restricted Subsidiary) occurs and is continuing, the Trustee or
the Holders of not less than 25% in aggregate principal amount of then
outstanding Notes may, by written notice to the Trustee and the Issuer, declare
all principal of and accrued interest on all Notes to be immediately due and
payable and such amounts shall become immediately due and payable. If an Event
of Default specified in Section 6.01(7) or (8) of the Indenture occurs with
respect to the Issuer or any Restricted Subsidiary, the principal amount of and
interest on, all Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. The Trustee may require indemnity reasonably satisfactory to it
before it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may, in
writing, direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders notice of any continuing default (except a default in
payment of principal, premium, if any, or interest or a default in the
observance or performance of any of the obligations of the Issuer under Article
5 of the Indenture) if it determines in its sole discretion that withholding
notice is in the Holders' best interests.
18. Trustee Dealings with Issuer. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuer, any Guarantor or their Affiliates, and may
otherwise deal with the Issuer, any Guarantor or their Affiliates, as if it were
not a Trustee.
19. No Recourse Against Others. No director, officer,
employee incorporator or stockholder, of the Issuer or any Guarantor shall have
any liability for any obligations of the Issuer or any Guarantor under the
Notes, the Indenture or the Guarantees or for a claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
20. Discharge. The Issuer's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of all
the Notes or upon the irrevocable deposit with the Trustee of U.S. dollars or
Government Obligations sufficient to pay when due principal of and interest on
the Notes to maturity or redemption, as the case may be.
21. Authentication. This Note shall not be valid until
the Trustee manually signs the certificate of authentication on the other side
of this Note.
22. Defeasance and Covenant Defeasance. The Indenture
contains provisions for defeasance of the entire indebtedness on this Note and
for defeasance of certain covenants in the Indenture upon compliance by the
Issuer and Guarantors with certain conditions set forth in the Indenture.
9
23. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Note Identification Procedures, the
Issuer and Guarantors have caused CUSIP Numbers to be printed on the Notes and
have directed the Trustee in writing to use CUSIP numbers in notices of
redemption as a convenience to Holders of the Notes. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
24. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
25. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
THE ISSUER WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
CANWEST MEDIA INC.
31st Floor, TD Centre
201 Portage Avenue
Winnipeg, Manitoba, R3B 3L7
Canada
Attention: Chief Financial Officer
10
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date: ________________ Your Signature: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _______________________
11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to accept the offer to have all or any part of
this Note purchased by the Issuer pursuant to Section 4.09 or Section 4.20 of
the Indenture, check the appropriate box:
[ ] Section 4.09 [ ] Section 4.20
If you want to have only part of the Note purchased by the
Issuer pursuant to Section 4.09 or Section 4.20 of the Indenture, state the
amount you elect to have purchased:
$____________________
(multiple of $1,000)
Date: _______________
Your Signature: __________________________________
(Sign exactly as your name appears
on the face of this Note)
____________________
Signature Guaranteed
12
[FORM OF ASSIGNMENT FOR RULE 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Issuers. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being furnished
which comply with the conditions of transfer set forth in this
Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date: __________________ Your Signature: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: __________________________
13
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ___________________ ____________________________
NOTICE: To be executed by
an executive officer
14
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
_____________, _____
Attention:
Re: CanWest Media Inc. (the "Issuer")
7-5/8% Senior Notes due 2013 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm
that:
1. We are not a resident of Canada or a corporation or
other entity governed by the laws of Canada or any province or
territory thereof.
2. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in
the Indenture dated as of April 3, 2003 relating to the Notes and we
agree to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act"), and
any applicable Canadian securities laws of any province or territory of
Canada.
3. We understand that the Notes have not been registered
under the Securities Act or any other applicable securities laws, have
not been and will not be qualified for sale under the securities laws
of Canada or any province or territory thereof or any other non-U.S.
jurisdiction and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Notes, we will
do so only (i) to the Issuer or any subsidiary thereof, (ii) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined in Rule 144A), (iii) to an
institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on transfer
of the Notes, (iv) outside the United States to persons other than U.S.
persons in offshore transactions meeting the requirements of Rule 904
of Regulation S under the Securities Act, (v) pursuant to the exemption
form registration provided by Rule 144 under the Securities Act (if
applicable) or (vi) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing any of the Notes from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein.
15
4. We understand that, on any proposed resale of any
Notes, we will be required to furnish to you and the Issuer such
certifications, legal opinions and other information as you and the
Issuer may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(l), (2), (3) or (7) under the Securities Act)
and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting each are able to bear the economic risk of our or their
investment, as the case may be.
6. We are acquiring the Notes purchased by us for our
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
7. We have no intention of transferring the Notes to a
resident of Canada and (a) we acknowledge that transfers of Notes to
residents of Canada may be restricted under certain circumstances and
(b) we agree to comply with any applicable Canadian provincial
securities laws in respect of any transfer of Notes to a resident of
Canada.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ______________________
16
THE OBLIGATIONS OF THE GUARANTORS TO THE HOLDERS OF NOTES
PURSUANT TO THIS GUARANTEE AND THE INDENTURE DATED AS OF APRIL 3, 2003, BY AND
AMONG CANWEST MEDIA INC. (THE "COMPANY"), THE GUARANTORS NAMED THEREIN AND THE
TRUSTEE NAMED THEREIN (THE "INDENTURE") ARE EXPRESSLY SET FORTH IN ARTICLE 11 OF
THE INDENTURE, AND REFERENCE IS HEREBY MADE TO SUCH INDENTURE FOR THE PRECISE
TERMS OF THIS GUARANTEE. THE TERMS OF THE INDENTURE, INCLUDING WITHOUT
LIMITATION ARTICLE 11, ARE INCORPORATED HEREIN BY REFERENCE.
Each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Noteholder, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Company
thereunder, that: (a) the principal of and premium and interest on the Notes
shall be promptly paid in full when due, whether at the Maturity Date, by
acceleration, redemption or otherwise, and interest on the overdue principal of
(and any premium) and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Noteholders thereunder shall be promptly paid
in full or performed, all in accordance with the terms thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at the
Maturity Date, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Noteholder with respect to any provisions thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that, subject to Article 11 of the Indenture, this Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and the Indenture.
If any Noteholder is required by any court or otherwise to
return to the Company or Guarantors, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or Guarantors,
any amount paid to such Noteholder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor agrees
that it shall not be entitled to any right of subrogation in relation to the
Noteholders in respect of any obligations guaranteed hereby until such time as
the Indebtedness of the Company evidenced by the Note shall have been paid in
full. Each Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Noteholders, on the other hand, (a) the Maturity Date of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02 of
the Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations Guaranteed hereby, and (b) in the event of any declaration of
acceleration of such obligations as provided in Section 6.02 of the
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Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Noteholders under the Guarantees.
Each Guarantor, and by its acceptance of Notes, each
Noteholder, hereby confirms that it is the intention of all such parties that
this Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal, state, provincial or territorial
law to the extent applicable to any Guarantee. To effectuate the foregoing
intention, the Noteholders and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under this Guarantee and Article 11 of the
Indenture shall be limited to the maximum amount as will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article 11 of the Indenture, result in the obligations of such
Guarantor under this Guarantee not constituting a fraudulent transfer or
conveyance.
This is a continuing Guarantee and shall remain in full force
and effect and shall be binding upon the undersigned Guarantors and their
respective successors and assigns to the extent set forth in the Indenture until
full and final payment of all of the Company's obligations under the Notes and
the Indenture and shall inure to the benefit of the Noteholders and their
successors and assigns and, in the event of any transfer or assignment of rights
by any Noteholder, the rights and privileges herein conferred upon that party
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof and of Article 11 of the Indenture.
Notwithstanding the foregoing, any Guarantor that satisfies the provisions of
Section 11.05 of the Indenture shall be released of its obligations hereunder.
THIS GUARANTEE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE
OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAWS OF THE STATE OF NEW
YORK THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
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