Exhibit 4.50
RETIREMENT COMPENSATION ARRANGEMENT TRUST AGREEMENT
THIS TRUST AGREEMENT made as of the 7th day of February, 2002.
BETWEEN:
CANWEST GLOBAL COMMUNICATIONS CORP., a company duly
incorporated under the laws of Canada,
(hereinafter referred to as the "Company")
OF THE FIRST PART,
- and -
ROYAL TRUST CORPORATION OF CANADA, a trust company duly
incorporated under the laws of Canada,
(such trustee and any successor trustee being hereinafter
referred to as the "Trustee")
OF THE SECOND PART.
WHEREAS the Company has adopted the CanWest Global
Communications Corp. and Related Companies Retirement Compensation Arrangement
Plan (January 1, 2002) (hereinafter referred to as the "Plan") to provide
benefits to certain participants (hereinafter referred to individually as a
"Participant" and collectively as the "Participants"), on or after retirement in
recognition of the long service of such Participants with the Company or a
Designated Affiliate (or on or after the termination of a Participant's
employment with the Company or a Designated Affiliate);
AND WHEREAS in conjunction with the Plan, the Company has
established a trust fund known as the Retirement Compensation Plan Trust Fund
(hereinafter referred to as the "Trust Fund");
AND WHEREAS CanWest Media Inc. is the agent of the Company and
all of the other Designated Affiliates for the purposes of making Contributions
and making associated payments of Refundable Tax on their behalf in respect of
their employees or former employees;
AND WHEREAS the Company represents and warrants that the Plan
is a retirement compensation arrangement, as that term is defined in the Income
Tax Act (Canada), and is not subject to pension benefits standards legislation
in Canada;
AND WHEREAS the parties hereto desire to set out in this Trust
Agreement the terms and conditions under which the Trustee is to hold, maintain,
administer, invest and reinvest the Trust Fund.
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NOW THEREFORE IN CONSIDERATION of the premises and mutual
covenants herein contained, the parties hereto do hereby covenant and agree as
follows:
ARTICLE 1.
DEFINITIONS, GENDER AND NUMBER
1.1 DEFINITIONS - The following terms when used in this
Trust Agreement shall have the meanings set out below:
"ACTUARY" means Buck Consultants Limited or such other person
or firm retained by the Company (or, following a Confirmed Event of Default if
it is necessary, the Trustee) to provide actuarial services as may be required
from time to time for the purposes of the Trust Fund or the Plan, who is (or, in
the case of a firm, one of whose employees or members is) a Fellow of the
Canadian Institute of Actuaries.
"BUSINESS DAY" is any day on which the Trustee and the bank or
banks that have currently issued a Letter of Credit to the Trustee are open for
business in Toronto;
"COMPANY" means CanWest Global Communications Corp.
"CONFIRMED EVENT OF DEFAULT" has the meaning assigned in
section 2.3A(b) and section 2.3A(c) as applicable.
"CONTRIBUTION" means the amount or amounts, net of refundable
tax, which are from time to time required to be remitted to the Trustee in
accordance with sections 2.2 and 2.3. For greater certainty, the making of
Contributions shall not relieve the Company of its obligations under the Plan.
"DESIGNATED AFFILIATES" means such affiliated companies of the
Company as are designated by the Company from time to time on Schedule C.
"EVENT OF DEFAULT" has the meaning assigned in section
2.3A(a).
"EXPIRY DATE" means the date on which the Letter of Credit is
due to expire;
"INCOME TAX ACT (CANADA)" means the Income Tax Act (Canada)
and regulations thereunder, as the same may be amended from time to time.
"LETTER OF CREDIT" means an irrevocable, standby, unsecured
letter of credit obtained from a Schedule 1 Bank with a term of one year which
names the Trustee as beneficiary permitted to draw down (an amount up to the
face amount) on the Letter of Credit on the occurrence of a Confirmed Event of
Default and which shall have a face amount equal to the Required Face Amount and
which shall require the issuing bank to withhold and remit to the Receiver
General the appropriate amount of Refundable Tax. Notwithstanding the foregoing,
the initial Letter of Credit may have a term of less than one year and shall
have the face amount provided in section 2.2.
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"LIABILITIES" means the actuarial liabilities of the Plan
determined on the basis that the Plan is terminated as a result of the payment
to the Trustee in accordance with section 2.4(a) using the methods and
assumptions selected by the Actuary projected to the thirteenth (13th) month
following the Renewal Date of the then existing Letter of Credit.
"PARTICIPANT" means an employee of the Company or Designated
Affiliate who participates in the Plan and, following each such person's death,
if a payment is due from the Plan as a result of such person's death, each such
person's spouse, designated beneficiary or other person eligible for payments
from the Plan.
"PLAN" means the CanWest Global Communications Corp. and
Related Companies Retirement Compensation Arrangement Plan, as amended from time
to time.
"REFUNDABLE TAX" means the refundable tax payable under the
Income Tax Act (Canada) with respect to retirement compensation arrangements.
"RENEWAL DATE" means the date that is thirty (30) days before
the Expiry Date.
"REPRESENTATIVE PARTICIPANT" has the meaning assigned in
section 4.9.
"REQUIRED FACE AMOUNT" means in respect of the periods ending
after the first Expiry Date, an amount equal to A + B - C where A equals the
Liabilities, B is the anticipated administration expenses in relation to the
Trust Fund (including the Trustee's compensation) together with the estimated
expenses relating to a wind-up of the Trust Fund and C is the aggregate amount
of the Refundable Tax previously paid to the Canada Customs Revenue Agency.
"STANDARD OF CARE" has the meaning assigned in section 4.1.
"TRUST" has the meaning assigned in section 2.1.
"TRUST AGREEMENT" means this agreement, as amended from time
to time.
"TRUSTEE" means Royal Trust Corporation of Canada or any
successor trustee thereto appointed in accordance with this Trust Agreement.
"TRUST FUND" means the trust fund created under and in
accordance with this Trust Agreement and shall include (i) the Letter of Credit
from time to time held hereunder, (ii) any funds paid to the Trustee, in
accordance with section 2.2, 2.3 or 2.4, (iii) the earnings, profits, and
increments thereon, net of refundable tax eligible and (iv) the right to the
refundable tax held by the Canada Customs and Revenue Agency less (v) all
distributions and authorized payments therefrom and shall be held, maintained,
administered, invested and re-invested by the Trustee in the manner and for the
purposes provided in this Trust Agreement.
1.2 GENDER AND NUMBER - Words importing the singular
shall include the plural and vice versa and words importing the masculine gender
shall extend to and include the feminine gender and/or body corporate unless the
context in which a particular word is used clearly requires otherwise.
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ARTICLE 2.
CREATION AND PURPOSE OF THE TRUST FUND
2.1 ACCEPTANCE OF TRUST - The Trustee hereby accepts the
trust constituted by this Trust Agreement (hereinafter referred to as the
"Trust").
2.2 LETTER OF CREDIT - As soon as practicable after the
execution and delivery of this Trust Agreement, the Company shall make, or cause
to be made, an initial Contribution to the Trustee of $324,693.70 and shall make
arrangements enabling the Trustee to obtain, as soon as possible, a Letter of
Credit with a face amount of $14,200,000. In respect of each replacement or
amended Letter of Credit or renewal thereof the Company shall make arrangements
enabling the Trustee to obtain, prior to the Renewal Date, a Letter of Credit
with a face amount at least equal to the Required Face Amount. The Letter of
Credit and each replacement or renewal thereof may be amended from time to time
with the written agreement of the Company, the Trustee and the issuer provided
that such amendment is not inconsistent with any requirement of this Agreement.
The Company shall cause to be delivered to the Trustee an updated Schedule "A"
identifying each Participant (and setting out the current address of each
Participant and his or her social insurance number) as Participants are added or
deleted. In the event that in any calendar year no updated Schedule "A" has been
delivered to the Trustee, the Trustee shall continue to rely on the most recent
Schedule "A" in its possession as containing the list of Participants and, on or
before March 1 of the following calendar year the Company shall either (i)
deliver or cause to be delivered to the Trustee a new Schedule "A" updated to
reflect current information or (ii) provide written notice to the Trustee
confirming that the information on the most recently updated Schedule "A" is
unchanged.
2.3 RENEWAL AND AMOUNT - Before the Renewal Date of any
current Letter of Credit, the Company shall either
(a) make, or cause to be made, a Contribution to the
Trustee in an amount sufficient to obtain and shall arrange for the renewal of
the Letter of Credit or any replacement thereof in an amount at least equal to
the Required Face Amount, as determined in a written report issued by the
Actuary and delivered to the Trustee fifteen (15) days prior to the Renewal
Date, or
(b) provide a written notice to the Trustee of its
intention to commence making annual Contributions to the RCA Trust Fund in such
amounts, if any, as are certified by the Actuary as being necessary to satisfy
the Liabilities.
2.3A EVENTS OF DEFAULT AND CONFIRMED EVENTS OF DEFAULT
(a) Each and every one of the following events shall
constitute an independent event of default for purposes of this Agreement;
(i) the failure of the Company to cause the
Actuary to prepare and deliver to the Trustee a report at least fifteen (15)
days prior to the Renewal Date setting out the Required Face Amount;
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(ii) the failure of the Company, on or before the
Renewal Date, either (i) to make arrangements enabling the Trustee to renew or
replace the Letter of Credit in accordance with section 2.3 herein or (ii) to
deposit with the Trustee a Contribution in an amount certified by the Actuary as
sufficient, when considered with the Refundable Tax paid to the Canada Customs
and Revenue Agency and payable in respect of such Contribution to satisfy the
Liabilities;
(iii) the failure of the Company to contribute to
the Trust Fund prior to the Renewal Date an amount sufficient, after the payment
of applicable taxes, to permit the Trustee to replace the then current Letter of
Credit with a Letter of Credit with a face amount equal to the Required Face
Amount;
(iv) the receipt by the Trustee of a written
notice from a Participant, certifying that (A) the Participant has not received
payment of benefits due to him or her in accordance with the Plan for a period
of thirty (30) days following its due date together with a statement of the
current amount payable past due and (B) the Participant, has provided a notice
to the Company of such default and attaches a photocopy or a true copy of the
notice given thereunder;
(v) the failure of the Company to make a payment
to the Trustee of all expenses, fees and compensation incurred or payable under
the Trust Agreement after thirty (30) days following delivery to the Company by
the Trustee of a written notice from the Trustee that such payment is overdue;
and
(vi) the receipt by the Trustee of a written
notice from the Company or a Participant stating that a legal proceeding has
been instituted by or against the Company or a Designated Affiliate (each a
"Participating Employer") and the date such proceeding was commenced:
(A) seeking to adjudicate such Participating
Employer bankrupt or insolvent, or
(B) seeking liquidation, dissolution, winding
up, reorganization, arrangement, protection,
relief or compromise of the Participating
Employer or any of the Participating
Employer's property or debt under any
bankruptcy law or any other applicable law
relating to insolvency, or compromise of
debts or making a proposal with respect to
the Participating Employer under any law
relating to bankruptcy, insolvency or
compromise of debts or other similar laws
(including, without limitation, any
application under the Companies' Creditors
Arrangement Act (Canada) or any arrangement
or compromise of debt under the laws of the
Participating Employer's jurisdiction of
incorporation).
(b) Subject to section 2.3A(c), an Event of Default shall
become a "Confirmed Event of Default" on the fifth (5th) Business Day after the
Event of Default first occurs unless:
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(i) in relation to the Event of Default
described in section 2.3A(a)(i) the Actuary delivers to the Trustee a report
setting out the Required Face Amount;
(ii) in relation to the Event of Default
described in section 2.3A(a)(ii) the Company has either (A) made arrangements
enabling the Trustee to renew or replace the Letter of Credit in accordance with
section 2.3 or (B) has deposited with the Trustee a Contribution in an amount
certified by the Actuary as being sufficient, when considered with the
Refundable Tax already paid to the Canada Customs and Revenue Agency and payable
in respect of such Contribution, to satisfy the Liabilities;
(iii) in relation to the Event of Default
described in section 2.3A(a)(iii) the Company has contributed to the Trust Fund
an amount sufficient after the payment of applicable taxes to permit the Trustee
to replace the then current Letter of Credit with a Letter of Credit with a face
amount equal to the Required Face Amount;
(iv) in relation to the Event of Default
described in section 2.3A(a)(v), the Company makes a payment to the Trustee of
all expenses, fees and compensation as outlined in the notice from the Trustee
to the Company given in accordance with section 2.3A(a)(v).
(c) An Event of Default described in section 2.3A(a)(iv)
and (vi) shall become a Confirmed Event of Default as follows:
(i) The Event of Default described in section
2.3A(a)(iv) shall become a Confirmed Event of Default on the twentieth (20th)
Business Day after the Event of Default first occurs, unless the Company
provides the Trustee with a written certification within eighteen (18) Business
Days following the receipt of the notice provided pursuant to section 4.7A that
the required payment has been made to the Participant or Participants.
(ii) Where the legal proceeding described in
section 2.3A(a)(vi) is instituted by the Company or a Designated Affiliate, the
Event of Default described in section 2.3A(a)(vi) shall become a Confirmed Event
of Default on the day the Trustee receives the notice under section 2.3A(a)(vi).
(iii) Where the legal proceeding described in
section 2.3A(a)(vi) is instituted against the Company or a Designated Affiliate,
the Event of Default described in section 2.3A(a)(vi) shall become a Confirmed
Event of Default, on the fiftieth (50th) day after the legal proceeding
described in section 2.3A(a)(vi) is commenced unless within forty five (45) days
of the date such legal proceeding is instituted, the Company provides the
Trustee with written certification that such legal proceeding has been dismissed
or stayed, together with a copy of the applicable court document evidencing such
dismissal or stay.
2.4 DEMAND ON LETTER OF CREDIT
(a) Unless the Trustee has received a written notice in
accordance with section 2.3(b), and a contribution of an amount certified by the
Actuary as sufficient to satisfy the Liabilities, the Trustee shall forthwith
demand payment under the Letter of Credit if a Confirmed Event of Default (other
than a Confirmed Event of Default as described in section 2.3A(b)(iv)) has
occurred. Notwithstanding the foregoing, if the Confirmed Event of
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Default is, or Confirmed Events of Default are, described in section 2.3A(c)(i)
and such Confirmed Event or Events of Default, in the aggregate apply to fewer
than four (4) Participants entitled at that time to receive payment of benefits
under the Plan, section 2.4(b) shall apply in place of this provision which
shall not apply.
(b) In the event that there has been a Confirmed Event of
Default or several Confirmed Events of Default as described in section
2.3A(c)(i) which apply to, in the aggregate, fewer than four (4) Participants
entitled at that time to receive payment of benefits under the Plan, the Trustee
shall make a partial demand on the Letter of Credit in an amount equal to the
accrued liability in respect of the relevant Participant as determined by the
Actuary pursuant to section 2.6 together with the associated cost of the Actuary
in calculating such accrued liabilities.
(c) In addition, in the event that a Confirmed Event of
Default as described in section 2.3A(b)(iv) has occurred, the Trustee may make a
partial demand on the Letter of Credit in an amount equal to any unpaid fees and
expenses.
2.5 FISCAL YEAR END OF THE TRUST FUND - The fiscal year
of the Trust Fund shall end on the 31st day of December in each year.
2.6 PAYMENTS OUT OF THE TRUST FUND - The Trustee, in
accordance with this Trust Agreement shall pay to the bank which has agreed to
issue the original Letter of Credit or any renewal or replacement thereof, on or
before the date such payment is due, the Contribution made by the Company as
fees for the applicable Letter of Credit.
The Trustee shall, on the written directions of the Company,
from time to time make payments out of the Trust Fund to such persons (including
the Company) in such manner and in such amounts as is required under the terms
of the Plan and this Trust Agreement. In the event that the Trustee has made
demand and received payment under the Letter of Credit pursuant to section
2.4(a) or (b), the Trustee shall act on the written direction of the Actuary as
to the amounts to be paid out, to whom such amounts are to be paid and the dates
of such payment, all in accordance with the Actuary's interpretation of the Plan
and the Trustee shall pay for the services of the Actuary in this regard from
the Trust Fund.
Upon payment being made, as contemplated in this section 2.6
or section 5.4, the amount thereof shall no longer constitute a part of the
Trust Fund. In each instance, the written direction authorizing payment to be
made shall include a certification to the Trustee that such direction is in
accordance with the terms of the Plan and this Trust Agreement.
If any person to whom payments are to be made is legally
incompetent to receive them, the Trustee may make such payments to such person's
legal representative, and the receipt by such person's legal representative
shall be a complete release and discharge to the Trustee.
2.7 TRUST FUND HELD FOR PLAN PURPOSES - No part of the
corpus or income of the Trust Fund shall be used for or diverted to purposes
other than those provided for under the terms of this Trust Agreement; provided
the Trustee shall pay, or cause to be paid, out of the Trust Fund all expenses
and fees pursuant to section 4.6, all taxes and other assessments levied or
assessed under existing or future laws against the Trust Fund or any money,
property or securities from time to time forming a part thereof, and shall
withhold from payments out of the
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Trust Fund all taxes and other amounts required by any law to be so withheld,
provided further that the Trustee shall review all tax levies and assessments
with a view to determining the correctness thereof and, in cases where there is
any doubt, shall forthwith notify the Company and the relevant Participants, so
that there will be sufficient time for discussion and, where appropriate, appeal
of any questionable levy or assessment.
2.8 SUFFICIENCY OF TRUST FUND - Where benefits under the
Plan are paid from the Trust Fund, they shall only be payable to the extent that
the Trust Fund shall suffice for such purpose. It shall be the responsibility of
the Company to ensure that sufficient funds shall be provided to the Trustee to
purchase a Letter of Credit with a face amount at least equal to the Required
Face Amount. In the event that the Trustee has made demand and received payment
under the Letter of Credit pursuant to section 2.4(a) or (b), and the Actuary
advises the Trustee that the Trust Fund is not sufficient to fully discharge all
benefit and other obligations under the Plan, the Actuary shall advise the
Trustee as to the reduced amounts to pay to the Participants.
ARTICLE 3.
INVESTMENTS
3.1 INVESTMENTS - In the event that there has been a
payment to the Trustee in accordance with section 2.4 or 4.3, the Trustee shall
invest the Trust Fund in Government of Canada Treasury Bills or high quality
money market instruments.
ARTICLE 4.
CONCERNING THE TRUSTEE
4.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE - The
duties and responsibilities of the Trustee hereunder shall be limited to
carrying out the terms of this Trust Agreement in all matters arising hereunder.
The Trustee shall have no responsibilities in respect of the administration of
the Plan. When exercising its powers and fulfilling its duties under the
Agreement, the Trustee shall act honestly and in good faith and with the care,
diligence and skill that a reasonably prudent professional corporate trustee
would exercise in comparable circumstances (the "Standard of Care").
4.2 GENERAL POWERS - The Trustee shall have, and is
hereby vested with all and every power, right and authority necessary or
desirable to enable the Trustee to administer the Trust Fund and carry out its
obligations and rights under this Trust Agreement but subject to section 3.1,
including, without restricting the generality of the foregoing, full power and
authority:
(A) with any cash at any time held by it to
purchase or otherwise acquire any securities
or other investments of a kind permitted as
aforesaid and to hold and retain the same in
trust hereunder;
(B) to sell for cash or on credit, or partly for
cash and partly on credit, convey, exchange
for other securities or other investments,
convert, transfer, or otherwise dispose of
any securities or other
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investments held by it at any time, by any
means considered reasonable by the Trustee,
and to receive the consideration price and
grant discharges therefor;
(C) to commence, defend, adjust or settle suits
or legal proceedings in connection with the
Trust Fund and to represent the Trust Fund
in any such suits or legal proceedings and
to keep the Participants and the Company
fully informed thereof; and the Company
hereby agrees to fully indemnify the Trustee
to its satisfaction against all expenses and
liabilities sustained or anticipated by it
by reason thereof to the extent the Trust
Fund is not adequate therefor;
(D) to exercise any conversion privileges,
subscription rights, warrants and/or other
rights or options available in connection
with any investments at any time held by it,
and to make any payments incidental thereto;
to consent to, or otherwise participate in
or dissent from, the reorganization,
consolidation, merger or readjustment of the
finances of any corporation, company or
association, or to the sale, mortgage,
pledge or lease of the property of any
corporation, company or association, any of
the securities of which may at any time be
held by it, and to do any act with reference
thereto, including the delegation of
discretionary powers, the exercise of
options, making of agreements or
subscriptions and the payment of expenses,
assessments or subscriptions which it may
deem necessary or advisable in connection
therewith; to hold and retain any securities
or other property which it may so acquire
and generally to exercise any of the powers
of an owner with respect to securities or
other property held in the Trust Fund;
(E) to vote personally, or by general or by
limited proxy, any securities or other
property which may be held by it at any
time, and similarly to exercise personally
or by general or by limited power of
attorney any right appurtenant to any
securities or other property held by it at
any time;
(F) to renew or extend or participate in the
renewal or extension of any security, upon
such terms as it may deem advisable, and to
agree to a reduction in the rate of interest
on any security or of any guarantee
pertaining thereto, in any manner and to any
extent that it may deem advisable; to waive
any default whether in the performance of
any covenant or condition of any security,
or in the performance of any guarantee, or
to enforce rights in respect of any such
default in such manner and to such extent as
it may deem advisable; to exercise and
enforce any and all rights of foreclosure,
to bid on property on sale or foreclosure,
to take a conveyance in lieu of foreclosure
with or without paying a consideration
therefor
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and in connection therewith to release the
obligation on the covenant secured by such
security and to exercise and enforce in any
action, suit or proceeding at law or in
equity any rights or remedies in respect of
any such security or guarantee;
(G) to register any securities or other property
held by it hereunder in its own name or in
the name of a nominee with or without the
addition of words indicating that the same
are held in a fiduciary capacity; and to
hold securities or other property in bearer
form; provided, however, that the books and
records of the Trustee shall at all times
show that all such securities or other
property are part of the Trust Fund;
(H) to make, execute, acknowledge and deliver
any and all deeds, leases, mortgages,
conveyances, contracts, waivers, releases or
other documents of transfer and any and all
other instruments in writing necessary or
proper for the accomplishment of any of the
powers herein granted;
(I) to hold any part of the Trust Fund
uninvested if such action appears to be
necessary or desirable in the administration
of the Trust.
The exercise of any one or more of the foregoing powers or any
combination thereof from time to time shall not be deemed to exhaust the rights
of the Trustee to exercise such power or powers or combination of them
thereafter from time to time.
The Trust Fund shall be responsible for and the Trustee may
pay out of the Trust Fund (with or without any instructions from the Company),
all taxes, including Refundable Tax and financial obligations for any liability
imposed by a government or a governmental body which are levied or assessed and
are legally enforceable against the Trustee in respect of the Trust Fund or any
part thereof, or directly against the Trust Fund or any part thereof, and shall
withhold from payments out of the Trust Fund all taxes required by law or by the
administration thereof to be so withheld.
4.3 DISTRIBUTION PERIOD BORROWING - In the event there is
at any time insufficient assets in the Trust Fund to effect as and when due, any
periodic or lump sum payment of benefits then payable under the Plan in
accordance with the directions given to the Trustee under section 2.6 pending
receipt from the Canada Customs and Revenue Agency of the Refundable Tax
applicable to the Plan, the Trustee may, forthwith, borrow funds on terms
acceptable to the Trustee acting reasonably from a lender acceptable to the
Trustee, which may for certainty, include the Royal Bank Financial Group up to
an amount of such Refundable Tax from any lender in an amount or amounts
sufficient to enable it to effect such payment, and the Company shall bear the
cost of such borrowing. The Company shall, if requested, reasonably co-operate
with the Trustee to the extent required to effect any such borrowing and, in
this regard the Company shall ensure the co-operation of its own bank. Following
a Confirmed Event of Default, no further borrowing shall occur.
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4.4 LIMITATION OF LIABILITY - The Trustee shall not be
liable for any loss as a result of the making, retention, or sale of any
investment or reinvestment or loan made by it as herein provided nor for any
loss to or diminution of the Trust Fund except when such loss or diminution is
due to its own negligence, willful misconduct, lack of good faith, or breach of
this Agreement including the Standard of Care. The Company shall indemnify and
save harmless the Trustee on its own behalf and in trust for the Trust Fund and
the officers, directors and employees of the Trustee against any loss resulting
from a claim asserted by any person or persons where the Trustee has acted on
the direction of the Company, or has not acted in the absence of any such
direction.
4.5 COUNSEL, AUDITORS, ADVISORS AND AGENTS - The Trustee
may, after prior consultation with the Company prior to a Confirmed Event of
Default and after prior consultation with the Representative Participant after a
Confirmed Event of Default, employ such counsel (who may be counsel to the
Company), auditors, advisors, agents or other persons as the Trustee may
reasonably require for the purpose of discharging its duties hereunder and,
provided reasonable care was exercised in the selection of them, and in the
supervision of them, shall be protected in acting in good faith on the opinion
or advice of or information obtained from any counsel, auditors, advisors,
agents or other persons whether retained or employed by the Company or by the
Trustee, in relation to any matter arising in the administration of the Trust.
4.6 COMPENSATION AND EXPENSES - The Trustee shall be
entitled to such compensation as may from time to time be mutually agreed upon
in writing prior to a Confirmed Event of Default, by the Trustee and the Company
and, following a Confirmed Event of Default, by the Trustee and the
Representative Participant. Such compensation and all other disbursements made
and expenses incurred in the creation of the Trust shall be paid out of, and
shall constitute a charge against, the Trust Fund unless first paid by the
Company. All compensation, disbursements and expenses incurred in the management
and maintenance of the Trust Fund shall be paid out of, and shall constitute a
charge against, the Trust Fund unless first paid by the Company.
4.7 ACCOUNTS AND RECORDS - The Trustee shall keep and
maintain accurate and detailed accounts and records to record all transactions
with respect to its administration of the Trust Fund. The Company, or any duly
authorized representative, may at any time during usual business hours make an
inspection and audit of the books and records of the Trustee relating to the
Trust and an inspection of the assets held in the Trust Fund.
Within ninety (90) days following the end of the fiscal year
of the Trust Fund, or following the last day of such other accounting period as
may be agreed upon by the Company and the Trustee, and within ninety (90) days
following the resignation or removal of the Trustee, the Trustee shall mail to
the Company a statement of account showing all transactions with respect to its
administration of the Trust Fund during the accounting period.
In the absence of specific written objections filed by the
Company with the Trustee within six (6) months after the Company's receipt of
such statements of account, the same shall be deemed to have been approved,
provided that such deemed approval shall not constitute an approval of any
breach by the Trustee of the Agreement, including the Standard of
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Care; and in such case, or upon the written approval of the Company of any such
statements of account, the Trustee shall be released, relieved and discharged
with respect to all matters and things set forth therein as though the same had
been settled by the decree of a court of competent jurisdiction; provided,
however, that such release and discharge shall not apply to relieve the Trustee
from liability for any matter or thing which arises as a result of the Trustee's
own negligence, willful misconduct, lack of good faith or breach of this
Agreement, including the Standard of Care.
The Trustee may require the Company, the Participants, any
surviving spouses, the Participants' designated beneficiaries under the Plan or
any legal representative of such persons to submit to it any information, data,
reports or documents reasonably relevant to and suitable for the purposes of
administering the Trust Fund.
4.7A NOTICE OBLIGATION - If an Event of Default or a
Confirmed Event of Default occurs, the Trustee shall forthwith give written
notice, as the case may be, to the Company in accordance with section 6.1, that
an Event of Default or Confirmed Event of Default has occurred and shall specify
the nature of the Event of Default or Confirmed Event of Default, as the case
may be.
4.8 INCOME TAX AND CERTAIN OTHER OBLIGATIONS - The
Trustee shall file, or cause to be filed, in prescribed form and within
prescribed time, such annual income tax returns and information returns on
behalf of the Trust Fund as are required by the Income Tax Act (Canada) or other
applicable federal or provincial legislation and shall furnish the Participants
and the Company with all requisite statements for income tax purposes. In
connection with the Trustee's obligations under the Income Tax Act (Canada) in
particular, the Trustee shall calculate the Refundable Tax of the Trust Fund at
the end of each taxation year and shall remit to the Receiver General out of the
Trust Fund the amount of tax, if any, payable by it for the year or claim a
refund of Refundable Tax owing to the Trust Fund, if applicable. The Trustee
shall further perform all required withholding and reporting under the Income
Tax Act (Canada), or other applicable federal or provincial legislation, in
respect of distributions under the Plan.
The Company shall file, or cause to be filed, any and all
returns and forms required to be filed by it with respect to the Plan by
applicable law. The Company shall forthwith establish its own retirement
compensation arrangement remittance account with the Canada Customs and Revenue
Agency. Thereafter, it shall remit to the Receiver General of Canada, within the
prescribed time, the Refundable Tax payable with respect to the initial
Contribution and each subsequent Contribution and shall inform the Trustee in
writing that such remittance has been made within the prescribed time.
4.9 REPRESENTATIVE PARTICIPANT - If there has been a
payment to the Trustee in accordance with section 2.4(a), the Trustee shall, as
soon as is reasonably possible, provide to all Participants a notice requiring
them to appoint a person to represent them in matters relating to the Trust Fund
(hereinafter referred to as the "Representative Participant") who will be such
person as is elected by a majority of them in a manner satisfactory to the
Trustee within sixty (60) days of the issuance of such notice and failing that
will be the Participant who the Actuary advises the Trustee has at such time the
greatest present value of benefits payable hereunder determined on a solvency
basis. The Trustee will forthwith after learning of the identity of the
12
Representative Participant provide notice to all of the Participants as to the
identity of the Representative Participant who shall remain in such capacity
until the earlier of the date of (a) the termination of the Trust, (b) his or
her death, (c) the date the Trustee receives a written certification, statement,
letter or affidavit of a physician that the Representative Participant is
incapable of managing his or her affairs or (d) the election of his or her
replacement by a majority of the Participants in a manner satisfactory to the
Trustee. If the position of Representative Participant remains vacant for a
period of three (3) months following the appointment of the first (or any
subsequent) Representative Participant, the replacement Representative
Participant will be the Participant (other than a prior Representative
Participant) who the Actuary advises has at such time the greatest present value
of benefits payable hereunder determined on a solvency basis.
4.10 RESIGNATION AND REMOVAL OF TRUSTEE - A Trustee at the
time acting hereunder may resign and be discharged from the Trust by filing
written notice with the Company or, following a payment to the Trustee in
accordance with section 2.4(a), the Representative Participant. Any Trustee
hereunder may be removed at any time with or without cause by an instrument
executed by the Company or, following an Event of Default, the Representative
Participant and filed with the Trustee. Such resignation or removal, as the case
may be, shall take effect ninety (90) days after the instrument of resignation
or removal has been filed as provided herein, unless the party with whom such
instrument is filed waives such requirement.
4.11 APPOINTMENT OF SUCCESSOR TRUSTEE - In case of the
resignation or removal of a Trustee or in case a vacancy shall arise for any
reason in the trusteeship of the Trust Fund, a successor Trustee, which shall be
a duly licensed and qualified trust company, or one or more individuals
(provided that no single Participant may be appointed) shall be appointed by an
instrument executed by the Company or, following payment to the Trustee in
accordance with section 2.4(a), the Representative Participant. Acceptance of
the appointment shall be evidenced in writing delivered by such Trustee to the
Company or the Representative Participant, as the case may be. Any successor
Trustee who accepts such appointment shall have the same powers and duties as
those conferred upon the Trustee hereunder and, upon acceptance of such
appointment by the successor Trustee, the Trustee shall assign, transfer and pay
over to such successor Trustee the funds and properties then constituting the
Trust Fund, together with any and all records, books and documents in the
Trustee's possession pertaining to the Trust Fund. Upon such transfer the
Trustee shall be discharged from any liability, obligations and responsibility
under the Trust Fund or in connection with the Plan in relation to matters
arising after the effective date of the appointment of the successor Trustee.
The Trustee is authorized, however, to reserve such compensation and other
expenses reasonably incurred in connection with the administration of the Trust
to the date of the resignation or removal of the Trustee and any balance of such
reserve remaining after the payment of such compensation and expenses shall be
paid over to the successor Trustee.
In the event the Company or the Representative Participant, as
the case may be, fails to appoint a successor Trustee within sixty (60) days of
the resignation or removal, the Trustee, at the expense of the Trust Fund, shall
have the right to seek appointment of a successor Trustee from a court of
competent jurisdiction.
13
ARTICLE 5.
AMENDMENT AND TERMINATION
5.1 AMENDMENT - Subject to section 5.2, the Company may,
so long as there has not been a payment to the Trustee in accordance with
section 2.4(a), at any time and from time to time amend in whole or in part any
or all of the provisions of this Trust Agreement including any Schedule to this
Agreement by thirty (30) days' prior notice thereof in writing delivered to the
Trustee or such shorter period as agreed to by the Trustee and the Company,
provided that no such amendment which affects the rights, duties or
responsibilities of the Trustee shall be made without its consent, and provided
further that no amendment shall be made to the definition of Liabilities, the
definition of Required Face Amount, section 2.3A, section 4.9 or Article 5
without the written consent of a majority of the Participants at the date such
amendment is made, and provided further that no such amendment shall authorize
or permit any part of the Trust Fund to be used for or diverted to purposes
other than those provided for under the terms of this Trust Agreement, including
without limitation, the payment of taxes and other assessments pursuant to
sections 2.7 and 4.8. In the event that there has been a payment to the Trustee
in accordance with section 2.4(a), the Trustee may at any time and from time to
time amend in whole or in part any or all of the provisions of this Trust
Agreement by notice thereof in writing delivered to the Representative
Participant, provided that no such amendment shall authorize or permit any part
of the Trust Fund to be used for or diverted to purposes other than those
provided for under the terms of this Trust Agreement, including without
limitation, the payment of taxes and other assessments pursuant to sections 2.7
and 4.8.
5.2 TERMINATION - So long as there has not been a payment
to the Trustee in accordance with section 2.4(a), subject to section 5.3, this
Trust Agreement may be terminated by mutual written agreement of the parties
hereto and wound up in accordance with section 5.4; provided that, if this Trust
Agreement is terminated prior to the date all payments required by the Plan to
be made to the Participants are made, it may only be terminated with the prior
written consent of the Participants.
In the event that there has been a payment to the Trustee in
accordance with section 2.4(a), this Trust Agreement shall be terminated and the
Trustee will wind-up and terminate the Trust Fund in accordance with section
5.4.
5.3 TERMINATION TO OBTAIN REFUND OF REFUNDABLE TAX -
Where the Company determines that it is appropriate for the Trustee to apply for
a full refund of any accumulated Refundable Tax in accordance with the Income
Tax Act (Canada), the Company may terminate this Agreement and the Trust Fund
upon giving not less than thirty (30) Business Days prior written notice to the
Trustee provided that the Company has made arrangements satisfactory to a
majority of the Participants at the date such notice is given to replace this
Agreement and the Trust Fund by a new trust agreement and trust fund which
provide substantially the same benefits and rights to the Participants as under
this Agreement, and the notice contains (i) a certificate from the Actuary that
the new trust agreement and trust fund will provide substantially the same
benefits and rights to the Participants as under this Agreement and (ii)
documentary evidence satisfactory to the Trustee that the majority of
Participants are satisfied with the arrangements.
14
5.4 WIND-UP OF TRUST - Where the Trust Fund is terminated
in accordance with sections 5.2 or 5.3 the Trustee shall wind-up and disburse
the Trust Fund as follows:
(a) firstly, to pay any amount owing to the Trustee in
respect of expenses, fees or compensation;
(b) secondly, to pay at the prescribed time(s) any proper
charges or taxes applicable to, or levied against, the Trust Fund, including
Refundable Tax payable in respect of the payment received under the Letter of
Credit;
(c) thirdly, to pay each Participant, as directed by the
Company or, if there has been a payment to the Trustee in accordance with
section 2.4(a), as directed by the Actuary, an amount equal to the
Participant's entitlement under the Plan as at the date of the Confirmed Event
of Default subject to reduction, without adjustment for interest, by the
amounts, if any, paid to the Participant since the date of the Confirmed Event
of Default and termination of the Plan; and, if the Trust Fund is not sufficient
to pay the amount to which each Participant is entitled in accordance with the
foregoing, pro rata based on the amount of their entitlements; and
(d) fourthly, to pay the balance, if any, to, or to the
order of, the Company.
The Trustee shall then:
(e) provide for final accounting for the purposes of the
termination of the Trust Fund;
(f) file final trust, information and tax returns under
applicable federal and provincial law and obtain the necessary clearance
certificates; and
(g) take the proper steps (including, for greater
certainty, any required borrowing under section 4.3) to distribute the balance,
if any, of the Trust Fund in lump sum amounts in accordance with directions
received under section 2.6, as applicable.
ARTICLE 6.
MISCELLANEOUS PROVISIONS
6.1 NOTICE - Any communication, notice or direction
between any of the Company, a Participant, the Actuary or the Trustee pursuant
to any of the provisions of this Trust Agreement shall be given in writing by
such person or persons as are designated for such purpose and the Trustee shall
be fully protected in acting in accordance with such communication, notice or
direction. The Company shall from time to time in the form set out in Schedule
"B" provide the Trustee with the names, title and specimen signatures of the
persons which are from time to time so designated by it. Communications, notices
or directions from the Company must be given in writing by two (2) of the
persons listed in Schedule "B" in order to be effective.
Communications, notices and directions shall be deemed
sufficiently made if delivered personally or sent by telecopier or by prepaid
first class mail addressed:
15
If to the Trustee to:
Royal Trust Corporation of Canada
4th Floor
Royal Trust Tower
P. O. Xxx 0000, Xxxxxxx "X"
Xxxxxxx XX X0X 0X0
Attention: RBC Investments, Personal Trust
Facsimile: (000) 000-0000
If to a Participant to the address provided in Schedule "A".
If to the Company to:
CanWest Global Communications Corp.
31st Floor, TD Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxx XXX X0X 0X0
Attention: Vice President, Finance and CFO
Facsimile: (000) 000-0000
If to the Actuary to:
Buck Consultants Limited
Suite 1500
00 Xxxxxxxxxx Xxxxxx Xxxx
X.X. Xxx 00
Xxxxxxx XX X0X 0X0
Attention: Account Executive for CanWest Global Communications
Corp.
Facsimile: (000) 000-0000
Any communication, notice or direction so given shall be
deemed to have been given and received when delivered personally or when sent by
telecopier, or, subject to disruptions in the postal service, on the fifth (5th)
Business Day following the day on which it was so mailed. The Company, a
Participant, the Actuary and the Trustee may from time to time by notice
aforesaid change their respective addresses for notice hereunder, however, any
communication, notice or direction shall be deemed to have been given and
received as aforesaid if delivered, telecopied or mailed to the last address of
the recipient on file with the sender.
In the event of a postal disruption, all communications,
notices and directions hereunder shall be delivered personally or sent by
telecopier.
6.2 NOTICE OF ALIENATION, ASSIGNMENT AND EXECUTION - The
Trustee will notify the Company upon the receipt by the Trustee of any
assignment or attempt of assignment
16
or notice thereof or of any involuntary assignment, seizure, garnishment or any
process of law or execution or notice thereof in respect of any benefit payable
out of the Trust Fund.
6.3 ASSESSMENT OF TRUST AGREEMENT - This Trust Agreement
may not be assigned by the Trustee, except as provided herein, without the
consent in writing of the Company but may be assigned by the Company to a
successor in the business of the Company or to a corporation with which the
Company may amalgamate or merge or a corporation resulting from any
reconstruction or reorganization of the Company. Any corporation into which the
Trustee may merge or with which it may be amalgamated, or any corporation
resulting from any merger or amalgamation to which the Trustee may be a party,
or any corporation to which all or substantially all the trust business of the
Trustee may be transferred, shall be the successor of the Trustee hereunder,
without the execution or filing of any instrument or the performance of any
further act.
6.4 REPRESENTATIONS AND WARRANTIES - The Company confirms
that the recitals to this Trust Agreement are true and correct.
6.5 GOVERNING LAW AND ATTORNMENT - This Trust Agreement
and all amendments thereto will be construed and enforced in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein.
For the purposes of all legal proceedings this Trust Agreement
will be deemed to have been performed in the Province of Ontario and the courts
of the Province of Ontario will have jurisdiction to entertain any action
arising under this Trust Agreement. The Company and the Trustee each hereby
attorns to the jurisdiction of the courts of the Province of Ontario.
6.6 BINDING EFFECT - This Trust Agreement shall ensure to
the benefit of and be binding upon the Company, the Trustee and their respective
successors and assigns.
17
IN WITNESS WHEREOF the parties hereto have hereunto executed
this Trust Agreement with effect as of the date first above written.
CANWEST GLOBAL COMMUNICATIONS CORP.
/s/ XXXX X. XXXXXXX
-------------------------------------------
Xxxx X. Xxxxxxx
Chief Financial Officer and Vice President,
Finance
/s/ XXXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President & General Counsel
ROYAL TRUST CORPORATION OF
CANADA
--------------------------------------------
/s/ XXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxx
Manager, Estates and Trust
18
SCHEDULE "A" TO THE TRUST AGREEMENT MADE AS OF THE 7th DAY OF FEBRUARY, 2002.
PARTICIPANT'S
NAME OF SOCIAL INSURANCE
PARTICIPANT ADDRESS OF PARTICIPANT NUMBER
----------- ---------------------- ----------------
Xxxxx, Xxxx 000 Xxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 624 649 018
Xxxxx, Xxxxxx 0000 Xxxxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 612 845 131
Xxxxx, Xxxxxxx 0000 Xxxxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 624 741 757
Xxxxxx, Xxxx 00 Xxxxxx Xxx., Xxxx, XX - X0X 0X0 400 938 700
Xxxxxx, Xxxx 00 Xxxxxxxx Xx., Xxxxxxxxxx, XX - X0X 0X0 706 713 468
Xxxxxxx, Xxxx 000 Xxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 621 819 408
Xxxxx, Xxxxx 00 Xxxx Xxxxxx Xxxx, Xxxxxx, XX - X0X 0X0 455 994 475
Strike, Xxx 00 Xxxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 620 954 008
Xxxxx, Xxxx 0000 - 000xx Xxxxxx, Xxxxxxx, XX - X0X 0X0 618 685 770
Xxxxx, Xxxx 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX - X0X 0X0 000 000 000
Xxxxxxx, Xxxxx 00 Xxxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 000 000 000
Xxxxxxxxx, Xxx 000 Xxxxxxx Xxx., Xxxxxxxx, XX - X0X 0X0 422 675 033
Xxxxxxxxxxxx, Xxxx 00 Xxxxxxxxx Xxxxx, Xxxxxx 0, Xxxxxxx 703 047 167
Xxxxxxx, Xxx 00 Xxxxxxxx Xx., Xxxxxxx, XX - X0X 0X0 434 674 271
Xxxxxxx, Cam 000 Xxxxxx Xx., Xxxxxxxxxxx, XX - X0X 0X0 427 177 399
Xxxxxxx, Xxxxxxx 000 Xxxxx Xx., Xxxxxxxx, XX - X0X 0X0 616 878 567
Xxxxxx, Xxx Xxxx 000 - 0000 Xxxxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 714 126 919
Xxxx, Xxxxxxxxx 00 Xxxxxxxxx Xxx., #00 Xxxxxxx, XX - X0X 0X0 000-000-000
Xxxxxxxx, Xxxx 000 Xxxxxxxxxx Xxxxx X., Xxxxxxxx, XX - X0X 0X0 629 902 248
Xxxxxxxxxx, Xxx 00 Xxxxxx Xxxxxx Xxxx., Xxxx Xx. Xxxx, XX - X0X 0X0 627 828 171
1
PARTICIPANT'S
NAME OF SOCIAL INSURANCE
PARTICIPANT ADDRESS OF PARTICIPANT NUMBER
----------- ---------------------- ----------------
Xxxxxxxx, Xxxxxx 00 Xxxx Xxx Xxx, Xxxx Xx. Xxxx, XX - X0X 0X0 466 945 417
Xxxx, Xxxx 000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX - X0X 0X0 628 262 289
Xxxxxx, Xxxxxx 0 Xxxxxxxxxx Xxxx, Xxxxxxxx, XX - X0X 0X0 451 158 844
Xxxxxxxxxxx, Xxxxx 000 Xxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 000 000 000
Xxxxx, Xxxx 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX - X0X 0X0 000 000 000
Xxxx, Xxxxxx 000 Xxxxxx Xx., Xxxxxxx, XX - X0X 0X0 457 060 945
Xxxxxx, Xxxxx 000 Xxxxx Xx., Xxxxxxxx, XX - X0X 0X0 631 265 535
Lock, Xxxxxxx 00 - 000 Xxxxxxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 635 283 922
Xxxxxxx, Xxxx 00 Xxxxxxx Xxxx., Xxxxxxxx Xxxx, XX - X0X 0X0 240 113 209
XxxXxxxxxx, Xxxxx 000 Xxxxxx Xxxx., Xxxxxxxx, XX - X0X 0X0 245 751 730
XxxXxxxxx, Xxx 00 Xxxxxxxxx Xxxxx, Xxxxxxx, XX - X0X 0X0 450 936 042
Xxxxxxxxx, Xxxxx 000 Xxxxxxxxx Xxx., Xxxxxxx XX - X0X 0X0 455 772 335
Xxxxx, Xxxxxxx Xxx 0, Xxxxx 000, X.X.0, Xxxxxxxxxx, XX - X0X 0X0 451 436 901
Xxxxx, Xxx 00 Xxxxxxxxx Xx., Xxxxxxxx, XX - X0X 0X0 460 395 320
2
SCHEDULE "B" TO THE TRUST AGREEMENT (the "Trust Agreement") MADE AS OF THE 7th
DAY OF FEBRUARY, 2002.
CERTIFICATE OF AUTHORIZED SIGNING OFFICERS
The following are specimen signatures of persons, duly authorized to give all
communications, notices and directions from CANWEST GLOBAL COMMUNICATIONS CORP.
(the "Company") to the ROYAL TRUST CORPORATION OF CANADA pursuant to the Trust
Agreement. Such communications, notices or directions from the Company must be
given in writing by two (2) of the persons listed below in order to be
effective. The Company assumes responsibility for amending this list from time
to time.
By: /S/ XXXXXXX X. XXXXX
___________________________________
Xxxxxxx X. Xxxxx
President & Chief Executive Officer
By: /S/ XXXXXX X. STRIKE
___________________________________
Xxxxxx X. Strike
Chief Operating Officer
By: /S/ XXXX X. XXXXXXX
___________________________________
Xxxx X. Xxxxxxx
Chief Financial Officer and
Vice President, Finance
By: /S/ XXXXXXX X. XXXXXXX
___________________________________
Xxxxxxx X. Xxxxxxx
Vice President & General Counsel
By: /S/ XXX XXXXXX
___________________________________
Xxx Xxxxxx
Vice President, Human Resources
SCHEDULE "C" TO THE TRUST AGREEMENT MADE AS OF THE 7th DAY OF FEBRUARY, 2002.
DESIGNATED AFFILIATES
The following are the Designated Affiliates:
CanWest Media Inc.
Global Television Network Inc.
CanWest Global Broadcasting Inc.
CanWest Media Sales Limited
Canwest Direction Ltd.
2846551 Canada Inc.
Global Communications Limited
