Exhibit 10.63
SENIOR SECURED CREDIT FACILITIES
CANWEST MEDIA INC.
as Borrower
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CANWEST GLOBAL COMMUNICATIONS CORP.
as Guarantor
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THE FINANCIAL INSTITUTIONS IDENTIFIED
ON THE SIGNATURE PAGES HERETO
as Lenders
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THE BANK OF NOVA SCOTIA
as Co-Lead Arranger, Joint Bookrunner and Administrative Agent
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CANADIAN IMPERIAL BANK OF COMMERCE
as Co-Lead Arranger, Joint Bookrunner and Syndication Agent
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BANK OF AMERICA, N.A.
as Arranger and Documentation Agent
AMENDING AGREEMENT NO. 3
Dated as of March 27, 2003
AMENDING AGREEMENT NO. 3
This amending agreement no. 3 dated as of March 27, 2003 among CanWest
Media Inc. (the "BORROWER"), as borrower, CanWest Global Communications Corp.
(the "GUARANTOR"), as guarantor, the Lenders (as defined below), and The Bank of
Nova Scotia, as administrative agent.
WHEREAS The Bank of Nova Scotia, as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT"), and such other Persons (as that term is
defined in the Credit Agreement hereinafter defined and referred to) as may from
time to time be parties to the Credit Agreement (collectively, together with The
Bank of Nova Scotia in its capacity as a lender, the "LENDERS") agreed to make
certain credit facilities available to the Borrower upon the terms and
conditions contained in a credit agreement among the Borrower, the Guarantor,
the Administrative Agent and the Lenders dated as of November 7, 2000 (as
amended by that certain amending agreement dated as of September 5, 2001, and
that certain amending agreement no. 2 dated as of July 15, 2002, the "CREDIT
AGREEMENT");
AND WHEREAS the Borrower has requested of the Administrative Agent and
the Lenders that the Credit Agreement be amended as hereinafter provided and the
Administrative Agent and the Lenders have agreed to such amendments to the
Credit Agreement on the terms and conditions set forth in this amending
agreement;
NOW THEREFORE in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Borrower, the Guarantor, the Administrative Agent and the
Lenders agree as follows:
1. DEFINED TERMS. Capitalized terms used in this amending agreement no. 3
and not otherwise defined shall have the respective meanings attributed to them
in the Credit Agreement.
2. AMENDMENT TO SECTION 1.01. Section 1.01 of the Credit Agreement is
amended effective as of this date as follows:
(i) by amending the definition of "Permitted Debt" by deleting
clause (xiii) thereof and the word "and" immediately prior
thereto, and inserting the following in their place:
"(xiii) Senior Unsecured Debt, provided that, prior to the
issuance of any Senior Unsecured Debt, the Administrative
Agent shall have received an opinion of legal counsel to the
Borrower that the issuance of such Senior Unsecured Debt does
not breach the provisions of, or
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otherwise cause a default under, any existing Senior
Subordinated Debt, the HCN Notes or any existing Senior
Unsecured Debt, in form and substance reasonably acceptable to
the Administrative Agent and its legal counsel; and (xiv) such
other Debt as agreed to by the Majority Lenders."
(ii) by amending the definition of "Permitted Distributions" by
deleting clauses (vi) through (viii) thereof and inserting the
following in its place:
"(vi) payments on account of the principal amount of the HCN
Notes referred to in clause (i) of the definition of HCN
Notes, and accrued and unpaid interest relating to such HCN
Notes repaid, from (y) amounts made available to the Borrower
in accordance with Section 2.03(1), or (z) provided the HCN
Repayment Conditions and the requirements of Section
2.05(3)(i) or (ii) are satisfied, the net proceeds of the
issuance of Senior Unsecured Debt or Subordinated Debt; (vii)
payments on account of Permitted Debt from the proceeds of any
other Debt which is Refinancing Debt in respect of such
Permitted Debt; (viii) payments on account of the principal
amount of the HCN Notes referred to in clause (i) of the
definition of HCN Notes from the net proceeds of an offering
of equity securities of CanWest; and (ix) any payments or
prepayments required or permitted to be made to the
Administrative Agent or the Lenders under any other provisions
of this Agreement".
(iii) by amending the definition of "Senior Debt" by (a) inserting
immediately after the word "Senior" the word" Secured", (b)
deleting the word "and" immediately prior to clause (iii), and
(c) inserting immediately after clause (iii) the words "; and
(iv) the aggregate principal amount of any outstanding Senior
Unsecured Debt".
(iv) by amending the definition of "Senior Leverage Ratio" by (a)
inserting immediately before the word "Leverage" the word
"Secured", and (b) inserting immediately before the word
"Debt" the word "Secured".
(v) by the addition of the following new definitions:
"HCN REPAYMENT CONDITIONS" means (A) the Borrower shall have
repaid Accommodations Outstanding under the Term Credit
Facilities and shall have permanently reduced the aggregate
Commitment thereunder by an amount equal to or greater than
Cdn.$700,000,000 (not including any amount from the permanent
reduction of Accommodations Outstanding by
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virtue of any repayment made pursuant to Section 2.04(2),
2.04(3) or 2.04(4)), in each case subject to and in accordance
with Section 2.09 hereof, and (B) on a pro forma basis
immediately after giving effect to (a) any Accommodation under
the Revolving Credit Facility intended to be used for such
purpose, if any, and (b) any such repayment or refinancing of
the principal amount of any such HCN Notes and the Mirror
Notes: (i) the unused availability under the Revolving Credit
Facility is not less than $200,000,000; and (ii) the Senior
Secured Leverage Ratio (calculated as at the end of the most
recently completed Financial Quarter for the four Financial
Quarters then ended) shall not exceed 3.5:1; and (iii) the
ratio of EBITDA of the Global Group to Interest Expense of the
Global Group (calculated as at the end of the most recently
completed Financial Quarter for the four Financial Quarters
then ended) shall not be less than (i) 1.75:1, if on or prior
to May 31, 2004, or (ii) 2.0:1, thereafter.
"SENIOR UNSECURED DEBT" means, in respect of any Person, Debt
of such Person which (a) has covenants, events of default and
redemption, repurchase and modification provisions, in the
aggregate, that are less favourable to the holder of such Debt
than the covenants, events of default and redemption,
repurchase and modification provisions of the Credit
Documents, (b) is not guaranteed by any Person which is not a
Global Group Entity, (c) has no required redemption provisions
prior to, and matures, not less than one year after the latest
Relevant Repayment Date, (d) is unsecured, and (e) is not
Subordinated Debt."
3. AMENDMENTS TO SECTION 2.03(1) OF THE CREDIT AGREEMENT. Section 2.03(1)
of the Credit Agreement is amended effective as of this date by deleting the
third sentence thereof and inserting the following in its place:
"Accommodations under the Revolving Credit Facility shall be
available (a) to repay and refinance, or purchase, in whole or
in part, the principal amount of the HCN Notes referred to in
clause (i) of the definition of HCN Notes and the Mirror
Notes, and accrued and unpaid interest relating to such HCN
Notes and Mirror Notes so repaid, refinanced or purchased if
the HCN Repayment Conditions are satisfied and (b) to prepay
Accommodations Outstanding under the Term Credit Facilities."
4. AMENDMENT TO SECTION 2.05 OF THE CREDIT AGREEMENT. Section 2.05 of the
Credit Agreement is amended effective as of this date as follows:
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(i) by amending Section 2.05(3) by inserting at the beginning
thereof the number "(a)", and inserting at the end thereof the
following new clause (b):
"(b) An amount equal to the Net Proceeds of any Debt referred
to in clause (xiii) of the definition of Permitted Debt
created or incurred by CanWest or any other Global Group
Entity, shall be prepaid by the Borrower within ten (10)
Business Days of the date of issuance of such Debt and applied
(i) firstly, rateably to the prepayment of the Accommodations
Outstanding under the Term Credit Facilities; and (ii)
secondly, to the permanent reduction of the Revolving Credit
Commitment (and the Borrower shall repay the amount by which
the Accommodations Outstanding under the Revolving Credit
Facility after giving effect to such reduction exceed the
Revolving Credit Commitment), in each case, subject to and in
accordance with Section 2.09 hereof."
(ii) by amending Section 2.05(7) by deleting the phrase "not less
than 10 days" on or about the tenth line and replacing it with
the phrase "not less than 3 Business Days".
5. AMENDMENT TO SECTION 8.03(1) OF THE CREDIT AGREEMENT. Section 8.03(1)
of the Credit Agreement is amended effective as of this date as follows:
(i) by deleting clause (b) thereof and inserting the following in
its place:
"(b) SENIOR SECURED LEVERAGE RATIO. Maintain, during each
Financial Quarter in each Financial Year commencing with the
Financial Quarter ending November 30, 2000, a ratio of Senior
Secured Debt to EBITDA for the four Financial Quarters then
ended of the Global Group of not more than (i) 5.0:1 for the
Financial Quarters ending November 30, 2000, February 28,
2001, May 31, 2001, August 31, 2001 and November 30, 2001;
(ii) 4.75:1 for the Financial Quarters ending February 28,
2002, May 31, 2002, August 31, 2002 and November 30, 2002;
(iii) 4.50:1 for the Financial Quarter ending February 28,
2003; (iv) 4.25:1 for the Financial Quarters ending May 31,
2003, August 31, 2003 and November 30, 2003; and (v) 4.00:1
for the Financial Quarter ending February 29, 2004 and each
Financial Quarter thereafter."
(ii) by amending clause (c) thereof by inserting the following
words at the end thereof: "; or (iv), provided the Borrower
shall have repaid after March 1, 2003, Accommodations
Outstanding
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under the Term Credit Facilities and shall have permanently
reduced the aggregate Commitment thereunder by an amount equal
to or greater than Cdn. $255,000,000 (not including any amount
from the permanent reduction of Accommodations Outstanding by
virtue of any repayment made pursuant to Section 2.04(2),
2.04(3) or 2.04(4)), in each case subject to and in accordance
with Section 2.09 hereof, 1.75:1 for the Financial Quarters
ending May 31, 2003, August 31, 2003, November 30, 2003,
February 29, 2004 and May 31, 2004, and 2.0:1 for each
Financial Quarter thereafter".
6. CONDITION PRECEDENT. It is a condition precedent to the effectiveness
of this amending agreement that (a) the Borrower shall have paid to the Lenders
an amendment fee equal to 10 bps calculated on Accommodations Outstanding as of
March 13, 2003, and (b) the Borrower and the Guarantors shall have delivered a
confirmation of guarantees and security in form and substance reasonably
satisfactory to the Administrative Agent.
7. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT. On and after this
date, each reference in the Credit Agreement to "this Agreement" and each
reference to the Credit Agreement in the Credit Documents and any and all other
agreements, documents and instruments delivered by any of the Lenders, the
Administrative Agent, the Borrower, the Guarantor or any other Person shall mean
and be a reference to the Credit Agreement as amended by this amending
agreement. Except as specifically amended by this amending agreement, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed. This amending agreement will not result in a novation, substitution,
discharge or extinguishment of any Credit Document.
8. NO WAIVER, ETC. The execution, delivery and effectiveness of this
amending agreement shall not, except as expressly provided, operate as a waiver
of any right, power or remedy of the Administrative Agent or any of the Lenders
under any of the Credit Documents nor constitute a waiver of any provision of
any of the Credit Documents.
9. GOVERNING LAW. This amending agreement shall be governed by and
interpreted and enforced in accordance with the laws of the Province of Ontario
and the laws of Canada applicable therein.
10. COUNTERPARTS. This amending agreement may be executed in any number of
counterparts (including by way of facsimile) and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this amending agreement to
be executed by their respective duly authorized officers as of the date first
above written.
CANWEST MEDIA INC.,
as Borrower
Per: /s/ JOHN MAGUIRE
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Authorized Signing Officer
Per: /s/ RICHARD LEIPSIC
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Authorized Signing Officer
CANWEST GLOBAL
COMMUNICATIONS CORP.,
as Guarantor
Per: /s/ JOHN MAGUIRE
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Authorized Signing Officer
Per: /s/ RICHARD LEIPSIC
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Authorized Signing Officer
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THE BANK OF NOVA SCOTIA,
as Administrative Agent
Per: /s/ KEN LEHNER
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Authorized Signing Officer
Per: ______________________________
Authorized Signing Officer
THE BANK OF NOVA SCOTIA,
as agent for and on behalf of the
Majority Lenders
Per: /s/ ALASTAIR BORTHWICK
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Authorized Signing Officer
Per: ______________________________
Authorized Signing Officer