Exhibit 5.3
RUSSELL McVEAGH
[RUSSELL McVEAGH LETTERHEAD]
26 February 2004
CanWest Media Inc.
31st Floor, TD Centre
201 Portage Avenue
Winnipeg, Manitoba
CANADA R3B 3L7
CANWEST MEDIA INC US$41,880,457 10 5/8% SENIOR SUBORDINATED NOTES DUE 2011
("Notes") - 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 (previously named "Canwest Television NZ
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 17 May 2001 between CanWest Media
Inc. ("CMI"), the Guarantors and the Trustee, as amended and
supplemented from time to time; and
(b) a guarantee ("Guarantee") dated 17 May 2001 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 Unless the context otherwise requires expressions defined in the Indenture
have the same meanings in this opinion.
1.4 This opinion is delivered to you for filing as an exhibit to the
registration statement ("Registration Statement") on Form F-3 filed by CMI
and the Guarantors with the Securities and Exchange Commission pursuant to
the Securities Act of 1933 (U.S.) ("Securities Act") relating to the
registration of the Notes and the Guarantee under the Securities Act.
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
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accordance with those laws. We have made no investigation of, and express
no opinion as to, the laws of any other jurisdiction.
3. DOCUMENTATION
3.1 For the purposes of giving this opinion, we have examined the following:
(a) a facsimile copy of an executed copy of the Indenture and a copy of
the executed copy of the Guarantee;
(b) facsimile copies of certificates ("Director's Certificates") given by
a director of each of the NZ Guarantors;
(c) the public records:
(i) on the Companies Office website (www.companies.govt.nz),
carried out on 26 February 2004; 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 26 February 2004.
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;
(d) 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.
(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.
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(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 deed of appointment entered into by each NZ Guarantor pursuant to
which John E. Maguire was appointed as attorney for that NZ Guarantor
to execute the Transaction Documents, as referred to in the Director's
Certificate given by a director of that NZ Guarantor, had not been
revoked and was in full force and effect at the time John E. Maguire
executed the Transaction Documents on behalf of that NZ Guarantor.
(j) 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.
(k) The records on the Companies Office website and of the Registrar of
the High Courts referred to in paragraph 3.1(c) are complete, accurate
and up to date. We note that records disclosed by the search referred
to in paragraph 3.1(c)(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
(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
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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 required shareholder's resolutions have been passed by the
shareholder or shareholders of that NZ Guarantor.
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(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 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,
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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.
(k) Written authorisation from the Prime Minister or the Minister of
Finance (as the case may be) is required prior to making property, or
financial or related services, available to terrorist entities and
associated entities designated as such under the Terrorism Suppression
Act 2002, or other parties to whom financial sanctions apply.
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 dated
on or about the date hereof; 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 and to the use of our name under the caption "Legal Matters" in
the prospectus included therein.
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/ DAVE WETHERELL
Dave Wetherell/Nick Lodder
Partner/Senior Solicitor
Direct phone: 64 9 367 8715/64 9 367 8112
Direct fax: 64 9 367 8097
Email: dave.wetherell/nick.lodder@russellmcveagh.com