Exhibit 5.3
[RUSSELL MCVEAGH LETTERHEAD]
3 July 2003
CanWest Media Inc.
31st Floor, TD Centre
201 Portage Avenue
Winnipeg, Manitoba
CANADA R3B 3L7
EXCHANGE OFFER - CANWEST MEDIA INC US$200,000,000 7-5/8% SENIOR NOTES DUE 2013 -
SECURITIES AND EXCHANGE COMMISSION
1. INTRODUCTION
1.1 We have acted as New Zealand solicitors to each of the following
companies:
(a) CanWest NZ Radio Holdings Limited;
(b) TV3 Network Services Limited; and
(c) TV4 Network Limited,
(each a "NZ GUARANTOR" and together the "NZ GUARANTORS").
1.2 This opinion is issued in connection with:
(a) an indenture ("INDENTURE") dated as of 3 April 2003 between CanWest
Media Inc. ("CMI"), the Guarantors and the Trustee; and
(b) a guarantee ("GUARANTEE") dated 3 April 2003 granted by each of the
Guarantors in favour of the Trustee and the Noteholders,
(each a "TRANSACTION DOCUMENT" and together the "TRANSACTION DOCUMENTS").
1.3 This opinion is delivered to you for filing as an exhibit to the
registration statement ("REGISTRATION STATEMENT") on Form F-4 filed by CMI
and the Guarantors with the Securities and Exchange Commission pursuant to
the Securities Act 1933 (U.S.) ("SECURITIES ACT") relating to the
registration of the Exchange Notes under the Securities Act.
1.4 Unless the context otherwise requires expressions defined in the Indenture
have the same meanings in this opinion.
2. JURISDICTION
2.1 This opinion relates only to the laws of New Zealand in force and
effective as at the date of this opinion and is given on the basis that it
will be construed in accordance with those laws. We have made no
investigation of, and express no opinion as to, the laws of any other
jurisdiction.
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3. DOCUMENTATION
3.1 For the purposes of giving this opinion, we have examined the following:
(a) facsimile copies of an executed copy of each Transaction Document;
(b) copies of the following for each NZ Guarantor:
(i) resolutions of directors; and
(ii) resolutions of shareholders;
(c) certificates ("DIRECTOR'S CERTIFICATES") given by a director of each
of the NZ Guarantors;
(d) copies of executed powers of attorney each dated 1 April 2003
pursuant to which each NZ Guarantor appointed John E. Maguire as
attorney of that NZ Guarantor for the purpose of executing the
Transaction Documents (each a "POWER OF ATTORNEY");
(e) a facsimile copy of a certificate of non-revocation of each Power of
Attorney each dated 3 April 2003;
(f) the public records:
(i) on the Companies Office website (www.companies.govt.nz),
carried out on 3 July 2003; and
(ii) of the Registrar of the High Court at Auckland (being the
office of the Court at which a statement of claim for the
liquidation of the NZ Guarantors would be required to be filed
under the High Court Rules), carried out on 3 July 2003.
However, it is possible that a statement of claim for the
liquidation of a NZ Guarantor would be accepted by a High
Court Registrar other than at Auckland;
(g) the originals or copies, certified or otherwise identified to our
satisfaction, of such certificates and other documents as we have
considered necessary or appropriate to enable us to render this
opinion.
4. ASSUMPTIONS
4.1 We have made the following assumptions:
(a) All seals and signatures and any duty stamp or marking on the
Transaction Documents are genuine.
(b) All documents provided to us are:
(i) if originals, authentic and in full force and effect; and
(ii) if copies, true copies of original documents, that are in full
force and effect.
(c) All facts provided to us by or on behalf of any person in connection
with this opinion, including those set out in any document or
certificate, are correct.
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(d) Each Transaction Document has been, or will be, authorised, executed
and delivered by, and is within the capacity and powers of the
parties to it (other than the NZ Guarantors) and constitutes, or
will upon execution constitute, legal, valid and binding obligations
of the parties to it (other than the NZ Guarantors).
(e) The NZ Guarantors have received, or will receive, fair value under
the Transaction Documents for their obligations under the
transactions contemplated by the Transaction Documents and the
execution and performance of the Transaction Documents is in the
best interests and for the benefit of each of them.
(f) The value of the consideration or benefit being received, or to be
received, by the NZ Guarantors, under the transactions contemplated
by the Transaction Documents is not less than the value of the
consideration provided, or to be provided, by each of them under
those transactions.
(g) Insofar as any obligation under any Transaction Document is to be
performed in any jurisdiction other than New Zealand, it will be
legal and enforceable in that jurisdiction.
(h) The directors' and shareholders' resolutions of each of the NZ
Guarantors as referred to in the relevant Director`s Certificate
have been properly passed in accordance with the constitution of the
relevant NZ Guarantor and the Companies Act 1993, and remain in full
force and effect without modification as at the date of this
opinion.
(i) The Transaction Documents constitute legal, valid and binding
obligations of the parties under the laws of New York enforceable in
competent courts of that jurisdiction, that each of them has the
same meaning and effect under New York law as it would do if it was
governed by New Zealand law and that there are no provisions of New
York law which would affect this opinion.
(j) The records on the Companies Office website and of the Registrar of
the High Courts referred to in paragraph 3.1(f) are complete,
accurate and up to date. We note that records disclosed by the
search referred to in paragraph 3.l(f)(i) may not be complete or up
to date and that an application to liquidate a company, or notice of
a liquidation order or resolution for the appointment of a receiver
or for the liquidation of a company, may not be filed with the
Registrar of Companies immediately or, even if filed, may not be
available for public inspection.
5. OPINION
5.1 In our opinion:
(a) Each of the NZ Guarantors is duly incorporated under the Companies
Act 1993 and validly existing under the laws of New Zealand.
(b) Each of the NZ Guarantors has:
(i) the requisite corporate power to enter into and perform its
obligations under the Transaction Documents and to undertake
all matters required to be undertaken by it under, in respect
of, and for the purposes of implementing, the transactions
contemplated by the Transaction Documents; and
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(ii) taken all necessary corporate action to authorise the entry
into, and execution of, the Transaction Documents and the
performance of its obligations thereunder and the undertaking
by it of all matters required to be undertaken by it under, or
in respect of, the transactions contemplated by the
Transaction Documents.
(c) Each Transaction Document has been duly executed by the NZ
Guarantors.
(d) The execution and performance by each of the NZ Guarantors of each
Transaction Document, and the compliance by it with the terms and
provisions thereof, do not and will not violate any law of New
Zealand by which it is bound or public policy.
6. QUALIFICATIONS AND RESERVATIONS
6.1 This opinion is subject to the following qualifications and reservations:
(a) The obligations of the NZ Guarantors are subject to all insolvency,
moratorium, reorganisation or similar laws affecting creditors'
rights generally (and in particular the provisions of the
Corporations (Investigation and Management) Act 1989) and may also
be, or become, subject to limitation of action by the passing of
time or to defences of set-off or counterclaim.
(b) If any director of a company is interested in a transaction then,
unless the company receives fair value under that transaction or all
entitled persons of the company have concurred in the transaction
under section 107 of the Companies Act 1993, the company may avoid
the transaction at any time prior to the expiration of the three
month period after that transaction is disclosed to all the
shareholders of the company. Each Director`s Certificate states that
none of the directors of that NZ Guarantor are interested in the
transactions contemplated by the Transaction Documents.
(c) Under section 129 of the Companies Act 1993, if any transaction
constitutes a "major transaction" (as defined), entry into that
transaction is required to be approved by a special resolution of
the shareholders of the company. Consequently:
(i) if no special resolution has been passed, the relevant
transactions may be set aside or other remedies exercised
under sections 164 or 174 of the Companies Act 1993;
(ii) if a special resolution has been passed but was not assented
to by all the shareholders of the company, the dissenting
shareholders may give notice to the company requiring it to
purchase their shares (or to arrange for some other person to
purchase those shares) in accordance with the provisions of
sections 110 to 113 inclusive of the Companies Act 1993. Those
sections operate to require the company to purchase the
relevant shares unless it obtains an order from the Court
under section 114 or 115 of the Companies Act 1993.
The Director's Certificate for each NZ Guarantor records the
relevant director's opinion that the transactions contemplated by
the Transaction Documents are "major transactions" of that NZ
Guarantor for the purposes of section 129 of the Companies Act 1993
and state that the
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required shareholder`s resolutions have been passed by the
shareholder or shareholders of that NZ Guarantor.
(d) Obligations that are regarded as penalties will not be enforceable.
(e) As used in this opinion the term "enforceable" (and cognate
expressions) means that each obligation or document is of a type and
form enforced by the New Zealand Courts. It is not certain, however,
that each obligation or document will be enforced in accordance with
its terms in every circumstance. Enforcement of the Transaction
Documents may be limited by general principles of equity, by public
policy, or by statutory provisions. In particular:
(i) the remedy of an order for specific performance or the issue
of any injunction by a New Zealand Court is available only at
the discretion of such Court, and is not usually ordered or
granted, where damages would be an adequate alternative;
(ii) a provision which purports to excuse or protect a party for,
or to apply regardless of, that party's negligence, default or
breach of duty, may not be enforceable;
(iii) enforcement of the Transaction Documents and the enforcement
of a foreign judgment in the Courts of New Zealand against a
NZ Guarantor will be subject to the rules of civil procedure
as applied by those Courts;
(iv) a New Zealand Court may not enforce any provision of a
Transaction Document which is or may become illegal or
contrary to public policy under the law of another
jurisdiction in which it is to be performed;
(v) enforcement of any Transaction Document is subject to rights
arising in relation to representations, acts or omissions of a
party which may preclude, limit or affect the ability of that
party to enforce against another party the obligations of that
other party under that Transaction Document. We have made no
investigation as to whether any such representations, acts or
omissions have been made or done;
(vi) under New Zealand law a court may not give effect to any
severability provisions contained in the Transaction
Documents;
(vii) under New Zealand law a court may not give effect to an
indemnity for legal costs incurred by an unsuccessful litigant
or where the Court itself has made an order for costs;
(viii) a provision in a Transaction Document requiring amendments
and waivers to be in writing may not prevent the parties
effectively agreeing that oral or other modifications,
amendments or waivers may be made.
(f) A determination, calculation or certificate may not be conclusive
if, for example, the matter or thing involved could be shown to have
been determined, calculated or certified on an unreasonable,
arbitrary, fraudulent or manifestly incorrect basis.
(g) A New Zealand Court may decline to hear an action or to give effect
to any provision of a Transaction Document if it is contrary to
public policy
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to do so, or would involve or result in the Court making a fresh
contract between the parties, or if it is not the proper forum to
hear such action, and may stay an action if concurrent proceedings
are being brought elsewhere.
(h) A provision in a Transaction Document that any amount is payable
upon demand may be construed as requiring reasonable notice.
(i) Discretions may be required to be exercised reasonably and opinions
are required to be based on proper grounds.
(j) Admissibility of documents may be limited by general rules of
evidence.
7. BENEFIT
7.1 This opinion is addressed to you and may not, without our prior written
consent, be:
(a) relied upon by, or disclosed to, any other person, other than Kaye
Scholer LLP, who may rely on this opinion with respect to matters
governed by New York law for the purposes of its opinion to you of
even date; or
(b) filed with a governmental or other agency, other than as set out in
paragraph 7.2, or quoted or referred to in a public document, except
as may otherwise be required by applicable law or regulation.
7.2 We consent to the filing of this opinion with the Securities and Exchange
Commission pursuant to the Securities Act as an exhibit to the
Registration Statement.
7.3 This opinion is strictly limited to the matters stated herein and does not
apply by implication to any other matter or matters.
Yours faithfully
RUSSELL MCVEAGH
/s/ RUSSELL MCVEAGH
LAURIE MAYNE/NICK LODDER
Partner/Solicitor
Direct phone: 64 9 367 8227 / 8112
Direct fax: 64 9 367 8595
Email: laurie.mayne@russellmcveagh.com
nick.lodder@russellmcveagh.com