EXHIBIT 10.7
TERMS OF AGREEMENT BETWEEN ▇▇▇▇▇▇▇▇▇
INTERNATIONAL INC. AND THE RECEIVER
1. ▇▇▇▇▇▇▇▇▇ International Inc. ("International") agrees to waive the
application of its shareholder rights plan or otherwise take steps to permit RSM
▇▇▇▇▇▇▇ Inc. ("RSM ▇▇▇▇▇▇▇"), as court appointed receiver and monitor (the
"Receiver") of The Ravelston Corporation Limited ("Ravelston") and Ravelston
Management Inc. ("Management"), to take possession and control of the shares
(collectively, the "Shares") of ▇▇▇▇▇▇▇▇▇ Inc. ("Inc.") held directly by
Ravelston and held indirectly by Ravelston through its subsidiaries Argus
Corporation Limited ("Argus"), 509643 N.B. Inc., 509644 N.B. Inc., 509645 N.B.
Inc., 509646 N.B. Inc., 509647 N.B. Inc. (collectively, the "NB Subs").
International confirms to RSM ▇▇▇▇▇▇▇ that in and of itself a sale, pledge,
conveyance or other realization on Inc. shares as contemplated in paragraph 4
below by RSM ▇▇▇▇▇▇▇, in its capacity as Receiver, will not trigger
International's shareholder rights plan so long as any such transaction does not
result in Inc. ceasing to be a Subsidiary (as defined in the shareholder rights
plan) of Ravelston.
2. The Receiver acknowledges that it is restricted by the Ontario Securities
Commission's (the "Commission") International and Inc. Management Cease Trade
Orders (and any other applicable Management Cease Trade Orders) (collectively,
the "MCTOs") in the same manner as Ravelston and the subsidiaries of Ravelston
identified in paragraph 1, above.
3. International will not object to RSM ▇▇▇▇▇▇▇ being appointed by the Ontario
Superior Court of Justice (Commercial List) (the "Court") as the receiver of
Argus and the NB Subs should RSM ▇▇▇▇▇▇▇ determine that it is necessary or
appropriate to be appointed as the receiver of any or all such entities. If an
order of the Court is made appointing RSM ▇▇▇▇▇▇▇ as receiver of Argus and/or
some or all of the N.B. Subs, this agreement also will bind RSM ▇▇▇▇▇▇▇ in its
capacity as receiver and monitor of those entities and will apply to those
entities to the extent not already bound, mutatis mutandis.
4. RSM ▇▇▇▇▇▇▇ has advised International that the Receiver requires funding to
carry out its responsibilities. The Receiver has advised International that the
Receiver is exploring a variety of methods to obtain funding for the
receivership, including the possible sale, pledge, conveyance or other
realization of Shares currently subject to the MCTOs. International will not
object to the Receiver's efforts to obtain necessary orders or exemptions from
the Commission or other relevant securities regulatory authorities if the
Receiver determines that it is necessary or appropriate to seek relief from the
Commission or other relevant securities regulatory authorities in respect of one
or more of the MCTOs to sell, pledge, convey or otherwise realize on sufficient
Shares to realize net proceeds of up to $10 million from the commercially
reasonable sale, pledge, conveyance or other realization of the Shares (the
"Share Transaction"). The Receiver
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shall use its best efforts to effect the Share Transaction in a commercially
reasonable manner. It is acknowledged that the Receiver may wish to sell,
pledge, convey or otherwise realize on further Shares than herein provided and,
if so, will seek the consent of International to any such sale, pledge,
conveyance or other realization.
5. The funding obtained by the Receiver to carry out its responsibilities (the
"Funding"), including without limitation (i) any proceeds received on the sale,
pledge, conveyance or other realization of the Shares, (ii) any proceeds
received on sale, pledge, conveyance or other realization of other assets of the
Ravelston or Management estates (which includes the assets and estates of any
subsidiary of Ravelston made subject to the receivership order made on April 20,
2005, as contemplated by paragraph 29 of that order), will be used to the extent
required to fund the costs of the receivership, including the costs of the
Receiver and the Receiver's counsel and other advisors engaged by the Receiver,
with any surplus to be distributed to holders of proven claims as finally
determined in a claims process approved by order of the Court or as otherwise
approved by the Court on reasonable prior notice to International (the "Claims
Process").
6. For greater certainty, and provided that nothing in this agreement shall
prohibit the Receiver from making payments on account of claims finally
determined in the Claims Process, the Receiver will not use any of the Funding:
(a) subject to paragraph 7, below, to pay salaries, bonuses or any other
compensation or make any shareholder distributions directly or
indirectly to or for the benefit of ▇▇▇▇▇▇ ▇▇▇▇▇ ("Black"), ▇▇▇▇▇▇▇
▇▇▇▇▇ Black ("▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Boultbee"), ▇▇▇▇▇▇ ▇▇▇▇▇▇
("▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") or ▇▇▇▇▇ ▇▇▇▇▇ ("White") or any
other persons known by the Receiver to be direct or indirect
shareholders of Ravelston (collectively, the "Other Known
Shareholders");
(b) except for or on account of the cost sharing arrangement pursuant to a
joint defence agreement among defendants to the action commenced by
International against Inc., Ravelston, Management, Black, ▇▇▇▇▇ ▇▇▇▇▇,
Boultbee, Colson, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ in the U.S. District Court
for the Northern District of Illinois, Case No. 04C-0698 (the "Special
Committee Action") to which agreement Ravelston and Management are
parties, to pay the litigation costs of Black, ▇▇▇▇▇ ▇▇▇▇▇, Boultbee,
Colson, Radler, White or any Other Known Shareholder in any civil,
criminal, insolvency or regulatory proceedings arising out of or
relating to their conduct as directors or officers of Ravelston or
otherwise (including advancement of fees and disbursements or
reimbursement of fees and disbursements);
(c) to make any payments on account of or pursuant to indemnities granted
by Ravelston to Black, ▇▇▇▇▇ ▇▇▇▇▇, Boultbee, Colson, Radler, White or
any Other Known Shareholder;
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(d) subject to paragraphs 7 and 8 below to, (i) pay the costs of one or
more of Black, ▇▇▇▇▇ ▇▇▇▇▇, Boultbee, Colson, ▇▇▇▇▇▇ or White in any
current and future civil, criminal, insolvency or regulatory
proceedings relating to International, Inc., Argus or Ravelston, or
(ii) retain the services of any lawyer or law firm that also
represents or since January 1, 2002 has represented, one or more of
Black, ▇▇▇▇▇ ▇▇▇▇▇, Boultbee, Colson, ▇▇▇▇▇▇ or White in any civil,
criminal, insolvency or regulatory proceedings relating to
International, Inc., Argus or Ravelston (provided however that
International, upon the request in writing of the Receiver, may in its
unfettered discretion agree to waive the application of this
subparagraph 6(d)(ii) in whole or in part); or
(e) subject to further order of the Court sought on reasonable prior
notice to International, to make any payments that may be due on or to
purchase or otherwise acquire directly or indirectly debentures issued
by Inc.
7. In recognition of the Receiver's assertion that certain persons may have
knowledge and information that will assist the Receiver, the Receiver may engage
Boultbee, White and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") to provide information and/or
services to the Receiver as the Receiver may request as follows:
(a) Boultbee through to June 17, 2005 at a rate not to exceed $250 per
hour and thereafter, at negotiated rates according to the needs of the
Receiver and with the consent of International or in accordance with
further order of the Court sought on reasonable prior notice to
International;
(b) White and any other person who the Receiver determines may be an Other
Known Shareholder, at negotiated rates according to the needs of the
Receiver and with the consent of International or in accordance with
further order of the Court sought on reasonable prior notice to
International; and
(c) ▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇'▇ standard hourly rate for providing legal services
of the same kind previously provided to Argus and the N.B. Subs.
Any engagement of Boultbee for the period through to June 17, 2005 shall be
memorialized in an engagement letter that will be filed by the Receiver with the
Court in the first report that the Receiver files with the Court after that
engagement is made. Any engagement of Boultbee for the period following June 17,
2005 or any engagement of White or an Other Known Shareholder will be
memorialized in a proposed engagement letter that will be furnished to
International for its consent and, if consent is not forthcoming, filed with the
Court on the motion seeking consent to any such engagement.
8. The Receiver may pay for the services of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection with
the initial filing of Ravelston and Management in the receivership and the CCAA
proceedings, which includes insolvency and securities services, and background
information concerning the litigation involving Ravelston and the ▇▇▇▇▇▇▇▇▇
group of
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companies and related parties. Until 60 days after the date of this agreement,
the Receiver may use and pay for the services of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the areas of
insolvency and securities only. Until the end of the same 60-day period, the
Receiver also may use and pay for the litigation services of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in
connection with proceedings in the Ontario Superior Court of Justice in relation
to insurance policies under which Ravelston is a named insured and in relation
to the transition of litigation matters to the Receiver's counsel. Thereafter,
the Receiver may not engage ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to provide professional services, but
the Receiver may make factual inquiries of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and pay for ▇▇▇▇▇▇
▇▇▇▇▇▇▇'▇ costs of responding to these factual inquiries, at a cost not to
exceed $20,000 per month, exclusive of GST and reasonable out-of-pocket
disbursements.
9. Without prejudice to any other claims that International may have against
Ravelston or Management, and without prejudice to International's position that
the Special Committee Action is not stayed as to Ravelston and Management and
that a stay of that action would not be appropriate, the Receiver will not
oppose any orders that may be necessary in Canada, the United States of America
or otherwise to permit the Special Committee Action to continue against
Ravelston and Management. Any final money judgment or final money order made
against Ravelston or Management in that proceeding, subject to further order of
the Court, shall be enforced in and shall constitute a proven claim for the
purpose of Ravelston's and Management's insolvency proceeding in the Court and
International shall not initiate or pursue any enforcement in Ontario or
elsewhere without the prior approval of the Court. Until the earliest of (i) 21
days after the Receiver obtaining one or more orders or exemptions from the
Commission or other relevant securities regulatory authorities contemplated by
paragraph 4, above, (ii) the Receiver electing not to seek orders or exemptions
from the Commission or other relevant securities regulatory authorities
contemplated by paragraph 4, above (in the event that International is not
advised in writing by the Receiver within two months of the date of this
agreement that it has applied to the Commission or other relevant securities
regulatory authorities for an order or exemptions to allow a Share Transaction,
the Receiver shall be deemed to have elected not to seek such order or
exemptions), (iii) 75 days from the date of this agreement, or (iv) further
order of the Court, International will withhold efforts to compel Ravelston's
and Management's compliance, and Ravelston and Management will not be obliged to
comply with their discovery and pleading obligations in the Special Committee
Action. The Receiver will not argue and will not support any argument by
Ravelston or Management that International should be stayed in any way from
pursuing any and all discovery and claims in the Special Committee Action from
or against any and all of the other defendants to that action.
10. Each of the initial receivership and CCAA orders will be amended to include
the following paragraph:
THIS COURT ORDERS THAT the Collateral (as such term is defined in the
Cash Collateral and Pledge Agreement (the "Pledge Agreement") dated as
of March 27, 2003 between The Ravelston Corporation and ▇▇▇▇▇▇▇▇▇
International Inc.) pledged by The
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Ravelston Corporation Limited to ▇▇▇▇▇▇▇▇▇ International Inc. pursuant
to the Pledge Agreement, including funds held in any account created
pursuant to the Pledge Agreement, and the Receivables (as such term is
defined in the Assignment of Receivables Arising Under the CanWest
Management Services Agreement (the "CanWest Assignment Agreement")
dated as of March 10, 2003 between The Ravelston Corporation and
▇▇▇▇▇▇▇▇▇ International Inc.) assigned by The Ravelston Corporation
Limited to ▇▇▇▇▇▇▇▇▇ International Inc. pursuant to the CanWest
Assignment Agreement, or any property received by Ravelston or the
[Receiver/Monitor] in substitution therefor or, in compromise
therefore or in respect thereof, shall be segregated and shall not be
utilized by the [Receiver/Monitor] for payment of its fees or costs or
the costs of the estate or be otherwise used, paid or distributed to
any person without the consent of ▇▇▇▇▇▇▇▇▇ International Inc. or
further order of this court on a motion brought on at least five days'
notice to ▇▇▇▇▇▇▇▇▇ International Inc. Notwithstanding the forgoing,
nothing herein contained shall constitute an acknowledgement as to the
validity and enforceability of the Pledge Agreement and the CanWest
Assignment Agreement.
11. These terms are subject to and will be embodied in a court order of the
Court in a form acceptable to International and to the Receiver, acting
reasonably.
May 12, 2005
RSM ▇▇▇▇▇▇▇ Inc. in its capacity as court-appointed
Receiver and Monitor of The Ravelston Corporation
Limited and Ravelston Management Inc. per:
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▇▇▇▇▇▇▇▇▇ International Inc.
By its solicitors ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP per:
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