EXHIBIT 10.64
June 17, 2003
FORM OF EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
CanWest Media Inc., a Canadian corporation (the "Company"),
and the guarantors (the "Guarantors") identified in the Company's Registration
Statement on Form F-4 initially filed with the Securities and Exchange
Commission on June 17, 2003 (the "Registration Statement") propose to make an
offer (the "Exchange Offer") to exchange all of the Company's outstanding 7 5/8%
Series A Senior Notes due 2013 (the "Old Securities") for its 7 5/8% Series B
Senior Notes due 2013 (the "New Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus included
in the Registration Statement (the "Prospectus"), proposed to be distributed to
all record holders of the Old Securities. The Old Securities and the New
Securities are collectively referred to herein as the "Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about June 17, 2003. The Letter of Transmittal accompanying the Prospectus (or
in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 11:59 p.m., New York City time, on
June 17, 2003 or on such subsequent date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Conditions of the Exchange Offer." The Company will give oral
(promptly confirmed in writing) or written notice of any amendment,
termination, extension or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the Letter of Transmittal or as specifically set forth
herein; provided, however, that in no way will your general duty to act in good
faith and without gross negligence or willful misconduct be discharged or
limited by the foregoing.
2. You will establish a book-entry account with respect to the Old
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Securities by causing the Book-Entry Transfer Facility to transfer such Old
Securities into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer of Old
Securities into your account at the Book-Entry Transfer Facility) and any other
documents delivered or mailed to you by or for holders of the Old Securities to
ascertain whether: (i) the Letters of Transmittal and any such other documents
are duly executed and properly completed in accordance with instructions set
forth therein and that such book-entry confirmations are in due and proper form
and contain the information required to be set forth therein; and (ii) the Old
Securities have otherwise been properly tendered. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or where book-entry confirmations are not in due and proper form or omit certain
information, or any of the certificates for Old Securities are not in proper
form for transfer or some other irregularity in connection with the acceptance
of the Exchange Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other action as may be
reasonably necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, Senior Vice President, Executive
Vice President or any Vice President of the Company (such approval, if given
orally, to be promptly confirmed in writing) or any other party designated in
writing, by such an officer, you are authorized to waive any irregularities in
connection with any tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Initial Notes", and Old Securities
shall be considered properly tendered to you only when tendered in accordance
with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old
Securities which the President, Senior Vice President, Executive Vice President
or any Vice President of the
Company shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be promptly confirmed
in writing).
6. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Securities, provided that customary transfer requirements, including payment of
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the registrar for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Securities properly tendered and you, on behalf of the Company, will
exchange such Old Securities for New Securities and cause such Old Securities to
be cancelled. Delivery of New Securities will be made on behalf of the Company
by you at the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered promptly
after notice (such notice if given orally, to be promptly confirmed in writing)
of acceptance of said Old Securities by the Company; provided, however, that in
all cases, Old Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old
Securities (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Unless otherwise instructed by the Company in
writing, you shall issue New Securities only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time prior
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to 11:59 p.m., New York City time, on the Expiration Date.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Conditions of the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Old Securities
(or effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such book-entry
transfer).
12. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities (other than those effected by book-entry
transfer) shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank, trust company,
other nominee or other persons or to engage or utilize any person to solicit
tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act
unless the same constitutes your own gross negligence, willful misconduct or bad
faith, and in no event shall you be liable to a securityholder, the Company or
any third party for special, indirect or consequential damages, or lost profits,
arising in connection with this Agreement.
(b) shall have no duties or obligations other than those
specifically set forth in the Letter of Transmittal or herein or as may be
subsequently agreed to in writing between you and the Company;
(c) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability, unless you shall
have been furnished with indemnity reasonably satisfactory to you;
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(e) may conclusively rely on and shall be fully protected in
acting or refraining from acting upon any certificate, instrument, opinion,
notice, letter, telegram or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed or presented by
the proper person or persons;
(f) may reasonably act upon any tender, statement, request,
document, agreement, certificate or other instrument whatsoever not only as to
its due execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which you shall
in good faith believe to be genuine or to have been signed or presented by the
proper person or persons;
(g) may conclusively rely on and shall be protected in acting
upon written or oral instructions from any authorized officer of the Company and
in the event that a material discrepancy exists between an oral instruction and
a written confirmation thereof, the oral instruction shall be deemed the
controlling and proper instruction;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Old Securities
pursuant to the Exchange Offer as to whether to tender or refrain from tendering
all or any portion of Old Securities or as to the market value or decline or
appreciation in market value of any Old Securities or New Securities.
15. You shall take such action as may from time to time be requested by
the Company (and such other action as you may reasonably deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery (as described in the Prospectus) or such other forms as may
be approved from time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for information
relating to the Exchange Offer, provided that such information shall relate only
to the procedures for accepting (or withdrawing from) the Exchange Offer. The
Company will furnish you with copies of such documents on your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Xxxx Xxxxxxx, Chief Financial Officer and Vice
President, Finance.
16. You shall advise by facsimile transmission Xxxx Xxxxxxx, the Chief
Financial Officer and Vice President, Finance of the Company (at the facsimile
number (000) 000-0000), and such other person or persons as the Company may
request, daily (and more frequently during the week immediately preceding the
Expiration Date and if otherwise requested) up to and including the Expiration
Date, as to the aggregate principal amount of Old Securities which have been
duly tendered pursuant to the Exchange Offer and the items received by you
pursuant to the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition,
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you will also inform, and cooperate in making available to, the Company or any
such other person or persons upon oral request made from time to time prior to
the Expiration Date of such other information as they may reasonably request.
Such cooperation shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities tendered, the
aggregate principal amount of Old Securities accepted and the identity of any
broker-dealer if you have actual knowledge (implying no duty of investigation)
that such person is a broker-dealer who will receive New Securities for its own
account in exchange for Old Securities and the aggregate principal amount of New
Securities delivered to each, and deliver said list to the Company.
17. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by you as to the date and, after the
expiration of the Exchange Offer, the time, of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities, and shall
thereafter be delivered by you to the Company. You shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to the
Company.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
20. The Company covenants and agrees to fully indemnify, defend and
hold you harmless, in your capacity as Exchange Agent hereunder, from and
against any and all loss, liability, cost or expense, including reasonable
attorneys' fees and expenses, incurred without gross negligence or willful
misconduct on your part, arising out of or in connection with any act, omission,
delay or refusal made by you in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Securities believed by
you in good faith to be authorized, and in delaying or refusing in good faith to
accept any tenders or effect any transfer of Old Securities; provided, however,
that anything in this Agreement to the contrary notwithstanding, the Company
shall not be liable for indemnification or otherwise for any loss, liability,
cost or expense to the extent arising out of your gross negligence or willful
misconduct. Promptly after receipt by you of notice of the commencement of any
claim or other action against you, you shall give notice to the Company of the
commencement of such claim or other action; provided, however, failure to give
such notice shall not relieve the Company of its obligations hereunder. The
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Company shall be entitled to participate at its own expense in the defense of
any such claim or other action and, if the Company so elects, the Company may
assume the defense of any suit brought to enforce any such claim. In the event
that the Company shall assume the defense of any such suit, the Company shall
not be liable for the fees and expenses of any additional counsel thereafter
retained by you, so long as the Company shall retain counsel reasonably
satisfactory to you to defend such suit, and so long as you have not determined,
in your reasonable judgment and in good faith, that joint representation would
be inappropriate. You understand and agree that the Company shall not be liable
for the fees and expenses of more than one legal counsel or firm for you, unless
it becomes reasonably necessary for you to retain local counsel in any
jurisdiction in connection with any such suit. The provisions of this section
shall survive the termination of this Agreement.
21. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Securities, and you shall deliver or
cause to be delivered, in a timely manner to each governmental authority to
which any transfer taxes are payable in respect of the exchange of Old
Securities, the Company's check in the amount of all transfer taxes so payable;
provided, however, that you shall reimburse the Company for amounts refunded to
you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar
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writing) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company:
CanWest Media Inc.
31st Floor, TD Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxx X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx, Chief Financial Officer and
Vice President, Finance
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee Administration
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 17, 18, 20, 22 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Securities, funds or property then held by you
as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
30. Nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy or any nature
whatsoever under or by reason of this Agreement. Without limitation of the
foregoing, the parties hereto expressly agree that no holder of Old Notes shall
have any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
CANWEST MEDIA INC.
By:
------------------------------
Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
-----------------------------------------
Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
$5,000 PLUS $500 PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES, INCLUDING WITHOUT
LIMITATION, REASONABLE LEGAL FEES AND EXPENSES.
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