Exhibit 5.4
[LETTERHEAD OF NAUTA DUTILH]
Rotterdam, July 3,2003
CanWest Media Inc.
31st Floor, TD Centre
201 Portage Avenue
Winnipeg, Manitoba
Canada R3B 3L7
The Parties identified on Schedule A hereto
Ladies and Gentlemen,
We have acted as Netherlands counsel to CanWest Media Inc., a Canadian
corporation (the "Company"), and the parties identified on Schedule A hereto
(the "Dutch Guarantors") in connection with the Company's offer to exchange (the
"Exchange Offer") its U.S. $200.0 million 7 5/8% Series A Senior Notes due 2013
(the "Initial Notes") for U.S.$ 200.0 million in registered 7 5/8% Series B
Senior Notes due 2013 (the "Exchange Notes"). This opinion is being delivered to
you for filing as an exhibit to the Registration Statement on Form F-4 (the
"Registration Statement") to be filed by the Company, the Dutch Guarantors and
the other guarantors identified therein (collectively, the "Guarantors") with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration of the Exchange Notes (and the related Guarantee of the Guarantors
(the "Guarantee")) under the Securities Act. The Initial Notes were issued, and
the Exchange Notes will be issued, pursuant to an Indenture, dated as of April
3, 2003 (the "Indenture"), among the Company, the Guarantors and The Bank of New
York, as Trustee.
In this capacity, we have examined the Registration Statement, the prospectus
contained therein and originals or copies certified or otherwise identified to
our satisfaction of such corporate records of the Dutch Guarantors, certificates
of public officials, officers of the Dutch Guarantors and other persons, and
such other documents, agreements and instruments, as we deemed necessary as a
basis for the opinion hereinafter expressed. In rendering the opinion expressed
below, we have assumed and have not verified the accuracy as to factual matters
of each document we have reviewed and have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies. In
addition, we have made such further examination of law and fact as we have
deemed appropriate in connection with the opinions hereinafter set forth.
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Based upon, and subject to the foregoing, we are of the opinion that:
1. Each of the Dutch Guarantors is a corporation duly incorporated and
validly existing under the laws of the Netherlands, and has all
requisite corporate power and authority to execute, deliver and perform
its obligations under the Indenture and the Guarantee.
2. The Indenture has been duly authorized by each of the Dutch Guarantors
and has been duly executed by each of the Dutch Guarantors in
accordance with the laws of the Netherlands.
3. The Guarantee has been duly authorized by each of the Dutch Guarantors
in accordance with the laws of the Netherlands and has been duly
executed by each of the Dutch Guarantors in accordance with the laws of
the Netherlands.
4. The execution of the Indenture and the Guarantee by each of the Dutch
Guarantors, the performance by each of the Dutch Guarantors of their
obligations thereunder and the enforcement of such obligations do not
violate any applicable law or public policy of the Netherlands.
The opinions expressed above are subject to the following qualifications:
(A) This opinion is limited by any applicable bankruptcy, insolvency and
other similar laws affecting the rights of creditors in general,
including, but not limited to, the Tax Collection Act, and by statutory
provisions with regard to fraudulent preference.
(B) The enforcement of the obligations under the Indenture and the
Guarantee is limited by rules of "force majeure", reasonableness and
fairness, unforeseen circumstances, set-off, prescription and other
defences afforded by Netherlands law to obligors generally.
(C) The term "enforceable" used above does not mean that the relevant
obligations will be specifically enforceable or that injunctive
relief will be available as a remedy for the enforcement of such
obligations under all circumstances.
(D) With respect to the giving of the Guarantee by the Dutch Guarantors, it
should be noted that, under Article 2:7 of the Netherlands Civil Code
("NCC") a transaction entered into by a legal entity can be annulled if
the
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objects of that entity are thereby exceeded and the other party was or
should, without making its own enquiries, have been aware thereof. Only
the legal entity can invoke this ground for annulment.
There is uncertainty as to the question of when the objects of a legal
entity are exceeded (i.e., when a transaction is ultra vires). The
Netherlands Court of Cassation has ruled that in determining whether a
certain transaction is ultra vires all circumstances must be taken into
account and that the manner in which the objects have been defined in
the company's articles of association is not the only decisive
factor. The fact that the company forms part of a group of companies
may be another relevant factor.
Several legal writers take the view that the acts of the company should
be in the actual interest of that company in the sense that they are
conducive to the realisation of the objects of the company as laid down
in its articles of association. A number of those writers are of the
opinion that the giving of guarantees and granting of security for the
debt of a third party is in principle - in the absence of circumstances
which indicate the contrary - ultra vires. According to most writers
referred to above, circumstances which indicate the contrary may exist
in a situation where a company forming part of a group of companies
directly or indirectly benefits from the fact that another company
forming part of the same group incurs a debt for which the former
company gives a guarantee.
Case-law and literature do not offer much guidance in determining to
what extent group companies must have benefited to qualify for having
acted within the scope of their objects clause.
In Netherlands financing transactions, financial institutions accept
the risks described above in cases where the security provided by
parties such as the Dutch Guarantors does not represent an essential
element of the security package.
(E) Article 3:45 NCC provides that, where a debtor who enters into a
transaction without being legally obliged to do so, knew or should
have known that the possibilities for one or more of its creditors to
seek recourse against its assets would be negatively affected thereby,
any creditor whose opportunity to recover his claim has been
prejudiced, has the right to nullify such transaction if certain
conditions are met ("Actio Pauliana"). In Netherlands financing
transactions, financial institutions accept the risks described above
in cases where the security provided by parties such as the Dutch
Guarantors does not represent an essential element of the security
package. Pursuant to certain provisions of the Netherlands Bankruptcy
Act
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a trustee in bankruptcy can exercise the right of nullification on
behalf of the bankruptcy estate in similar situations.
(F) It is uncertain under the laws of The Netherlands whether, upon the
enforcement of a judgment for a sum of money expressed in foreign
currency against assets of the debtor situated in The Netherlands,
proceeds can be obtained in such foreign currency or whether proceeds
can only be obtained in Netherlands' currency which subsequently has to
be converted into such foreign currency.
(G) The president of a competent district court
("arrondissementsrechtbank") of The Netherlands, in any matter in which
the plaintiff seeks provisional measures in summary proceedings ("kort
geding"), may assume jurisdiction, notwithstanding a contractual
provision to the contrary.
(H) It should be noted that it is uncertain whether service of process at
the address of a process agent referred to in the Indenture and the
Guarantee for legal proceedings in The Netherlands will be valid.
Therefore, it is recommendable that, in the event of initiating legal
proceedings in The Netherlands, service of process is also effected
upon the defendants at their domicile or residence in The Netherlands,
if any.
This opinion is limited solely to the laws of the Netherlands.
This opinion is being delivered to you in connection with the Registration
Statement and is not to be used, circulated, quoted or otherwise referred to for
any other purpose without our prior written authorization. Kaye Scholer LLP may
rely on this opinion with respect to matters governed by Netherlands law for
purposes of its opinion to you of even date herewith. We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement. In giving
such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act, or
under the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ BART TH. DEROGEE
For and on behalf of
Nauta Dutilh
Bart Th. Derogee
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Nauta Dutilh N.V. has its seat at Rotterdam, The Netherlands and is registered
in the Commercial Register in Rotterdam under number 24338323. All services and
other work are carried out under a contract for professional services
("overeenkomst van opdracht") with NautaDutilh N.V., subject to the general
conditions of NautaDutilh N.V. These general conditions include, among other
provisions, a limitation of liability clause and have been filed with the
Rotterdam Court of First Instance. They can be consulted at www.nautadutilh.com
and will be provided free of charge upon request.
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SCHEDULE "A"
- - CGS International Holdings (Netherlands) B.V.
- - CGS Shareholding (Netherlands) B.V.
- - CGS Debenture Holding (Netherlands) B.V.
- - CGS NZ TV Shareholding (Netherlands) B.V.
CGS NZ Radio Shareholding (Netherlands) B.V.