AMENDMENT NO. 2 TO ARRANGEMENT AGREEMENT dated July 30, 2007, BETWEEN:
BETWEEN:
AA
ACQUISITION CORP., a corporation existing under the laws of Canada
(hereinafter referred to as “Acquireco”),
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and
-
ALLIANCE
ATLANTIS COMMUNICATIONS INC., a corporation existing under the laws of
Canada (hereinafter referred to as the
“Corporation”),
WHEREAS
Acquireco (formerly 6681859 Canada Inc.) and the Corporation are parties to
an
Arrangement Agreement dated January 10, 2007 as amended on February 26, 2007
(the “Arrangement Agreement”);
AND
WHEREAS the parties wish to further amend the Arrangement Agreement in
the manner set out in this amendment (the “Amendment No.2”) in
accordance with Section 7.5 of the Arrangement Agreement;
THIS
AGREEMENT WITNESSES THAT, in consideration of the respective covenants
and agreements herein contained and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), and intending to
be
legally bound hereby, Acquireco and the Corporation hereby agree as
follows:
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1.1
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Interpretation
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All
capitalized terms used in this Amendment No.2 that are not otherwise defined
herein shall have the meaning given to them in the Arrangement
Agreement.
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1.2
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Amendments
to the Arrangement
Agreement
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(a)
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Section
1.1 of the Arrangement Agreement is hereby amended by deleting the
existing definitions of "Closing Date", "Effective Time"
and “Outside Date” and substituting therefor the
following:
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"Closing
Date" means August 15, 2007 unless otherwise agreed in writing by
Acquireco and the Corporation, provided that each of the conditions set forth
in
Article 6 shall have been satisfied or waived on or by the Closing
Date;";
"Effective
Time" means the time of issue on the Effective Date of the certificate
of arrangement issued by the Director under the CBCA;" and
“Outside
Date” means August 15, 2007 unless otherwise agreed in writing by
Acquireco and the Corporation;”.
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(b)
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Section
5.2(a)(vii)(C) of the Arrangement Agreement is hereby amended by
deleting
the second paragraph of section 5.2(a)(vii)(C) and substituting therefor
the following:
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1
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“For
purposes of this Agreement, "Marketing Period" shall mean
the period terminating on August 15, 2007.”.
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(c)
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Section
1.1 of the Plan of Arrangement is hereby amended by deleting the
existing
definition of "Effective Time" and substituting therefor the
following:
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"Effective
Time" means the time of issue on the Effective Date of the certificate
of arrangement issued by the Director under the CBCA;".
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1.3
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Financial
Information
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Acquireco
hereby acknowledges and agrees that no further financial statements or Offering
Documents are required to be provided by the Corporation. At the
request of Acquireco, the Corporation will correct any inaccurate information
previously provided by it. The Corporation will provide any
supplemental financial information (other than financial statements or Offering
Documents) reasonably requested by Acquireco provided that the Corporation
will
not be required to provide any additional financial information due to "stale
dating" of information previously provided.
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1.4
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Amending
Order
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The
Corporation shall use all commercially reasonable efforts to obtain an order
of
the Court prior to the Closing Date amending the Final Order and the Plan of
Arrangement in a manner satisfactory to Acquireco and the Corporation, each
acting reasonably, and reflecting the intention of this Amendment No.2 (the
“Amending Order”).
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1.5
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Representations
and Warranties of the
Corporation
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The
Corporation represents and warrants to and in favour of Acquireco as follows
and
acknowledges that Acquireco is relying upon such representations and warranties
in connection with entering into this Amendment and completing the
Arrangement:
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(a)
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Authority
and No Violation.
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(i)
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The
Corporation has the requisite corporate power and capacity to execute
and
deliver this Amendment No.2 and to perform its obligations
hereunder. The execution, delivery and performance of this
Amendment No.2 by the Corporation has been duly authorized by its
Board of
Directors and no other corporate proceedings on its part are necessary
to
authorize the execution, delivery and performance of this Amendment
No.2.
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(ii)
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This
Amendment No.2 has been duly executed and delivered by the Corporation
and
constitutes its legal, valid and binding obligation, enforceable
against
it in accordance with its terms, subject to bankruptcy, insolvency
and
other Laws affecting creditors’ rights generally and to general principles
of equity.
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2
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(iii)
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The
execution and delivery of this Amendment No.2 by the Corporation
does not,
and the performance of this Amendment No.2 by the Corporation will
not:
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A.
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conflict
with or violate the Articles of Incorporation or Bylaws or equivalent
organizational documents of the Corporation or any of its
subsidiaries;
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B.
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assuming
that all consents, approvals, authorizations and other actions described
in section 3.1(d)(v) of the Arrangement Agreement have been obtained
and
all filings and obligations described in section 3.1(d)(v) have been
made,
conflict with or violate any Law applicable to the Corporation or
any of
its subsidiaries or by which any property or asset of the Corporation
or
any of its subsidiaries is bound;
or
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C.
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except
as set forth in section 3.1(d)(iv) of the Disclosure Letter, result
in any
breach of, or constitute a default (or an event which, with notice
or
lapse of time or both, would become a default) under, or give to
others
any right of termination, amendment, acceleration or cancellation
of, or
create, give rise to or change any rights or obligations of any Person
under, or result in the creation of a Lien on any property or asset
of the
Corporation or any of its subsidiaries pursuant to any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Corporation
or
any of its Material Subsidiaries is a party or by which the Corporation
or
any of its Material Subsidiaries or any property or asset of the
Corporation or any of its Material Subsidiaries is
bound;
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except,
with respect to clauses (B) and (C), for any such events or occurrences that
could not reasonably be expected to have, individually or in the aggregate,
a
Material Adverse Effect.
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(iv)
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Except
for the Amending Order, no consent, approval, license, permit, order
or
authorization of, or registration, declaration or filing with, or
permit
from, any Governmental Entity is required to be obtained or made
by or
with respect to the Corporation or any of its subsidiaries in connection
with the execution, delivery and performance of this Amendment
No.2.
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1.6
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Representations
and Warranties of
Acquireco
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Acquireco
represents and warrants to and in favour of the Corporation as follows and
acknowledges that the Corporation is relying upon such representations and
warranties in connection with entering into this Amendment No.2 and completing
the Arrangement:
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(a) Authority
and No Violation.
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(i)
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It
has the requisite power and capacity to execute, deliver and perform
its
obligations hereunder. The execution, delivery and performance of
this
Amendment No.2 by it has been duly authorized and no other proceedings
on
its part are necessary to authorize the execution, delivery and
performance of this Amendment No.2.
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(ii)
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This
Amendment No.2 has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency and
other
similar laws affecting creditors’ rights generally and to general
principles of equity.
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(iii)
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The
execution, delivery and performance by it of this Amendment No.2
will
not:
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A.
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result
in a violation or breach of, require any consent to be obtained under
or
give rise to any termination rights or payment obligation under any
provision of:
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1.
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its
Articles or Bylaws (or other constating
documents);
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2.
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any
resolution of its board of directors (or any committee thereof) or
of its
shareholders;
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3.
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any
applicable Laws; or
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4.
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any
material Contract to which it or its subsidiaries is a party or by
which
any of them is bound or their respective properties or assets are
bound;
or
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B.
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give
rise to any right of termination or acceleration of indebtedness,
or cause
any of its third party indebtedness to come due before its stated
maturity
or cause any available credit to cease to be available where such
event
would materially impair its ability to complete or materially prevent
it
from completing the Arrangement.
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(iv)
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Except
for the Amending Order, no consent, approval, order or authorization
of,
or declaration or filing with, any Governmental Entity or other Person
is
required to be obtained by it in connection with the execution, delivery
or performance of this Amendment
No.2.
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1.7
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Survival
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For
greater certainty, the representations and warranties of each of the Corporation
and Acquireco contained herein shall survive the execution and delivery of
this
Amendment No.2 and shall terminate on the earlier of the termination of the
Arrangement Agreement, as amended by this Amendment No.2, in accordance with
the
provisions thereof and the Effective Time.
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1.8
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Governing
Law
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This
Amendment No.2 shall be governed by and construed in accordance with the Laws
of
the Province of Ontario and the Laws of Canada applicable
therein. Each of the parties hereby irrevocably attorns and submits
to the non-exclusive jurisdiction of the courts of the Province of Ontario
with
respect to any matter arising under this Amendment No.2.
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1.9
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Counterparts
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This
Amendment No.2 may be executed in two or more counterparts, each of which shall
be deemed to be an original but all of which together shall constitute one
and
the same instrument.
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1.10
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Continued
Effect of Arrangement
Agreement
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The
Arrangement Agreement, as amended by this Amendment No.2, shall continue in
full
force and effect.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN
WITNESS WHEREOF, Acquireco and the Corporation have caused this
Amendment No.2 to be executed as of the date first written above by their
respective officers thereunto duly authorized.
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AA
ACQUISITION CORP.
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By:
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"▇▇▇▇▇▇▇
▇▇▇▇▇▇▇"
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Title: Vice-President
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By:
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"▇▇▇▇
▇▇▇▇▇▇▇"
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Name: ▇▇▇▇
▇▇▇▇▇▇▇
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Title: Secretary
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ALLIANCE
ATLANTIS COMMUNICATIONS INC.
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By:
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"▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇"
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Executive
Chairman
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By:
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"▇▇▇▇▇▇▇
▇▇▇▇▇"
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇
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Title: Chief
Executive Officer
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