ROGERS WIRELESS INC., Issuer And JPMORGAN CHASE BANK, Trustee INDENTURE Dated as of February 20, 2004 6.375% Senior (Secured) Notes due 2014
Exhibit
99.19
EXECUTION
COPY
XXXXXX
WIRELESS INC.,
Issuer
And
JPMORGAN
CHASE BANK,
Trustee
___________________
Dated
as
of February 20, 2004
___________________
6.375%
Senior (Secured) Notes due 2014
RECONCILIATION
AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND
INDENTURE, DATED AS OF FEBRUARY 20, 2004*
|
TRUST
INDENTURE
ACT
SECTION
|
INDENTURE
SECTION
|
||
|
Section
310
|
(a)(1)
|
609
|
|
|
(a)(2)
|
609
|
||
|
(b)
|
608,
610
|
||
|
Section
312
|
(c)
|
701
|
|
|
Section
314
|
(a)
|
703
|
|
|
(a)(4)
|
1013
|
||
|
(b)
|
1202
|
||
|
(c)(1)
|
103
|
||
|
(c)(2)
|
103
|
||
|
(e)
|
103
|
||
|
Section
315
|
(b)
|
602
|
|
|
Section
316
|
(a)
|
||
|
(last
sentence)
|
101
(“Outstanding”)
|
||
|
(a)(1)(A)
|
502,
512
|
||
|
(a)(1)(B)
|
513
|
||
|
(b)
|
508
|
||
|
0
|
(c)
|
105
|
|
|
Section
317
|
(a)(1)
|
503
|
|
|
(a)(2)
|
504
|
||
|
(b)
|
1003
|
||
|
Section
318
|
(a)
|
108
|
|
_____________
* This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
TABLE
OF
CONTENTS
|
PAGE
|
||
|
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
||
|
SECTION
101. Definitions
|
||
|
“Acquired
Debt”
|
2
|
|
|
“Additional
Securities”
|
2
|
|
|
“Adjusted
Treasury Rate”
|
2
|
|
|
“Affiliate”
|
||
|
“Agent
Member”
|
2
|
|
|
“Applicable
Procedures”
|
2
|
|
|
“Attributable
Debt”
|
2
|
|
|
“bank
credit facility”
|
3
|
|
|
“Board
of Directors”
|
3
|
|
|
“Board
Resolution”
|
3
|
|
|
“Business
Day”
|
3
|
|
|
“Canadian
Dollars”, “Cdn Dollars” or “Cdn$”
|
3
|
|
|
“Capital
Lease Obligation”
|
3
|
|
|
“Capital
Stock”
|
3
|
|
|
“cash
equivalents”
|
3
|
|
|
“Collateral
Documents”
|
4
|
|
|
“Commission”
|
4
|
|
|
“Common
Stock”
|
4
|
|
|
“company”
|
4
|
|
|
“Company
Request” or “Company Order”
|
4
|
|
|
“Comparable
Treasury Issue”
|
4
|
|
|
“Comparable
Treasury Price”
|
4
|
|
|
“Consolidated
Net Tangible Assets”
|
4
|
|
|
“Consolidated
Tangible Assets”
|
4
|
|
|
“Consolidation”
|
4
|
|
|
“Corporate
Trust Office”
|
5
|
|
|
“Debt”
|
5
|
|
|
“Deed
of Trust”
|
6
|
|
|
“Deed
of Trust Bondholders”
|
6
|
|
|
“Deed
of Trust Bonds”
|
6
|
|
|
“Deed
of Trust Collateral”
|
6
|
|
|
“Deed
Trustee”
|
6
|
|
|
“Default”
|
6
|
|
|
“Depositary”
|
6
|
|
|
“Disqualified
Stock”
|
6
|
|
|
“Event
of Default”
|
6
|
|
|
“Exchange
Act”
|
6
|
|
i
|
PAGE
|
||
|
“Exchange
Offer”
|
6
|
|
|
“Exchange
Offer Registration Statement”
|
7
|
|
|
“Exchange
Securities”
|
7
|
|
|
“Excluded
Assets”
|
7
|
|
|
“Excluded
Securities”
|
7
|
|
|
“Existing
Secured Securities”
|
7
|
|
|
“Existing
Subordinated Notes”
|
8
|
|
|
“Fitch
IBCA”
|
8
|
|
|
“Generally
Accepted Accounting Principles” or “GAAP”
|
8
|
|
|
“Holder”
|
8
|
|
|
8
|
||
|
“Indenture
Obligations”
|
10
|
|
|
“Initial
Securities”
|
8
|
|
|
“Inter-Company
Deeply Subordinated Debt”
|
8
|
|
|
“Inter-Company
Subordinated Debt”
|
8
|
|
|
“Interest
Payment Date”
|
9
|
|
|
“Investment”
|
9
|
|
|
“Investment
Grade Rating”
|
9
|
|
|
“Lien”
|
9
|
|
|
“Maturity”
|
9
|
|
|
“Xxxxx’x”
|
9
|
|
|
“Officers’
Certificate”
|
9
|
|
|
“Opinion
of Counsel”
|
9
|
|
|
“Outstanding”
|
9
|
|
|
“Paying
Agent”
|
10
|
|
|
“Person”
|
10
|
|
|
“Pledge
Agreement
|
10
|
|
|
“Predecessor
Security”
|
10
|
|
|
“Preferred
Stock”
|
11
|
|
|
“Principal
Property”
|
11
|
|
|
“Purchase
Money Obligations”
|
11
|
|
|
“QIB”
|
11
|
|
|
“Quotation
Agent”
|
11
|
|
|
“Rating
Agencies”
|
11
|
|
|
“Rating
Date”
|
11
|
|
|
“Rating
Decline
|
11
|
|
|
“RCI”
|
11
|
|
|
“Redemption
Date”
|
12
|
|
|
“Redemption
Price”
|
12
|
|
|
“Reference
Treasury Dealer”
|
12
|
|
|
“Reference
Treasury Dealer Quotations”
|
12
|
|
|
“Registration
Rights Agreement”
|
12
|
|
|
“Registration
Statement”
|
12
|
|
|
“Regular
Record Date”
|
12
|
|
|
“Regulation
S”
|
12
|
|
|
“Responsible
Officer”
|
12
|
ii
|
PAGE
|
||
|
“Restricted
Subsidiary”
|
12
|
|
|
“Rogers
Entities”
|
13
|
|
|
“Rule
144A”
|
13
|
|
|
“Sale
and Leaseback Transaction”
|
13
|
|
|
“Secured
Debt”
|
13
|
|
|
“Securities
Act”
|
13
|
|
|
“Security”
and “Securities”
|
13
|
|
|
“Senior
Debt”
|
14
|
|
|
“Shelf
Registration Statement”
|
14
|
|
|
“Special
Record Date”
|
14
|
|
|
“S&P”
|
14
|
|
|
“Stated
Maturity”
|
14
|
|
|
“Subsidiary”
|
14
|
|
|
“Supplier
Obligations
|
14
|
|
|
“Tangible
Assets”
|
14
|
|
|
“Trust
Bond”
|
15
|
|
|
“Trust
Estate
|
15
|
|
|
“Trust
Indenture Act”
|
15
|
|
|
“Trustee”
|
15
|
|
|
“U.S.
Dollars”, “United States Dollars”, “U.S.$” and the symbol
“$”
|
15
|
|
|
“Unrestricted
Subsidiary
|
15
|
|
|
“Voting
Shares”
|
15
|
| SECTION 102. |
Other
Definitions
|
15
|
| SECTION 103. |
Compliance
Certificates and Opinions
|
16
|
| SECTION 104. |
Form
of Documents Delivered to the Trustee
|
17
|
| SECTION 105. |
Acts
of Holders
|
17
|
| SECTION 106. |
Notices,
Etc., to Trustee and Company
|
18
|
| SECTION 107. |
Notice
to Holders; Waiver
|
19
|
| SECTION 108. |
Conflict
of Any Provision of Indenture with the Trust Indenture Act
|
19
|
| SECTION 109. |
Effect
of headings and Table of Contents
|
20
|
| SECTION 110. |
Successors
and Assigns
|
20
|
| SECTION 111. |
Separability
Clause
|
20
|
| SECTION 112. |
Benefits
of Indenture
|
20
|
| SECTION 113. |
Governing
Law
|
20
|
| SECTION 114. |
Legal
Holidays
|
20
|
| SECTION 115. |
Agent
for Service; Submission to Jurisdiction; Waiver of
Immunities
|
21
|
| SECTION 116. |
Conversion
of Currency
|
21
|
| SECTION 117. |
Currency
Equivalent
|
22
|
| SECTION 118. |
No
Recourse Against Others
|
23
|
| SECTION 119. |
Reliance
on Financial Data
|
23
|
| SECTION 120. |
Documents
in English
|
23
|
iii
|
PAGE
|
||
|
ARTICLE
TWO
SECURITY
FORMS
|
||
| SECTION 201. |
Forms
Generally
|
23
|
| SECTION 202. |
Restrictive
Legends
|
24
|
| SECTION 203. |
Form
of Face of Security
|
26
|
| SECTION 204. |
Form
of Reverse of Security
|
29
|
| SECTION 205. |
Form
of Trustee’s Certificate of Authentication
|
32
|
|
ARTICLE
THREE
THE
SECURITIES
|
||
| SECTION 301. |
Title
and Terms
|
33
|
| SECTION 302. |
Denominations
|
33
|
| SECTION 303. |
Execution,
Authentication, Delivery and Dating
|
34
|
| SECTION 304. |
Temporary
Securities
|
35
|
| SECTION 305. |
Registration,
Registration of Transfer and Exchange
|
35
|
| SECTION 306. |
Book-Entry
Provisions for Global Securities
|
36
|
| SECTION 307. |
Special
Transfer Provisions
|
38
|
| SECTION 308. |
Mutilated,
Destroyed, Lost and Stolen Securities
|
40
|
| SECTION 309. |
Payment
of Interest; Interest Rights Preserved
|
41
|
| SECTION 310. |
Persons
Deemed Owners
|
42
|
| SECTION 311. |
Cancellation
|
42
|
| SECTION 312. |
Computation
of Interest
|
42
|
|
ARTICLE
FOUR
DEFEASANCE
AND COVENANT DEFEASANCE
|
||
| SECTION 401. |
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
42
|
| SECTION 402. |
Defeasance
and Discharge
|
43
|
| SECTION 403. |
Covenant
Defeasance
|
43
|
| SECTION 404. |
Condition
to Defeasance or Covenant Defeasance
|
44
|
| SECTION 405. |
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions
|
46
|
| SECTION 406. |
Reinstatement
|
47
|
iv
|
PAGE
|
||
|
ARTICLE
FIVE
REMEDIES
|
||
| SECTION 501. |
Events
of Default
|
47
|
| SECTION 502. |
Acceleration
of Maturity; Rescission and Annulment
|
51
|
| SECTION 503. |
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
52
|
| SECTION 504. |
Trustee
May File Proofs of Claim
|
53
|
| SECTION 505. |
Trustee
May Enforce Claims Without Possession of Securities
|
54
|
| SECTION 506. |
Application
of Money Collected
|
54
|
| SECTION 507. |
Limitation
on Suits
|
54
|
| SECTION 508. |
Unconditional
Right of Holders to Receive Principal, Premium and
Interest
|
55
|
| SECTION 509. |
Restoration
of Rights and Remedies
|
55
|
| SECTION 510. |
Rights
and Remedies Cumulative
|
55
|
| SECTION 511. |
Delay
or Omission Not Waiver
|
56
|
| SECTION 512. |
Control
by Holders
|
56
|
| SECTION 513. |
Waiver
of Past Defaults
|
56
|
| SECTION 514. |
Undertaking
for Costs
|
57
|
| SECTION 515. |
Waiver
of Stay, Extension or Usury Laws
|
57
|
| SECTION 516. |
Change
in Control Offer
|
57
|
|
ARTICLE
SIX
THE
TRUSTEE
|
||
| SECTION 601. |
Certain
Duties and Responsibilities
|
60
|
| SECTION 602. |
Notice
of Defaults
|
61
|
| SECTION 603. |
Certain
Rights of Trustee
|
61
|
| SECTION 604. |
Not
Responsible for Recitals or Issuance of Securities
|
62
|
| SECTION 605. |
May
Hold Securities
|
62
|
| SECTION 606. |
Money
Held in Trust
|
62
|
| SECTION 607. |
Compensation,
Reimbursement and Indemnity
|
63
|
| SECTION 608. |
Conflicting
Interests
|
63
|
| SECTION 609. |
Corporate
Trustee Required; Eligibility
|
63
|
| SECTION 610. |
Resignation
and Removal; Appointment of Successor
|
64
|
| SECTION 611. |
Acceptance
of Appointment by Successor
|
65
|
| SECTION 612. |
Merger,
Conversion, Consolidation or Succession to Business
|
65
|
| SECTION 613. |
Trustee
Not to Be Appointed Receiver
|
65
|
| SECTION 614. |
Acceptance
of Trusts
|
54
|
v
|
PAGE
|
||
|
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
||
| SECTION 701. |
Disclosure
of names and Addresses of Holders
|
66
|
| SECTION 702. |
Reports
by Trustee
|
66
|
| SECTION 703. |
Reports
by Company
|
66
|
|
ARTICLE
EIGHT
AMALGAMATION,
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER
OR LEASE
|
||
| SECTION 801. |
Company
May Amalgamate, Etc., Only on Certain Terms
|
67
|
| SECTION 802. |
Successor
Substituted
|
68
|
| SECTION 803. |
Securities
to be Secured in Certain Events
|
68
|
|
ARTICLE
NINE
SUPPLEMENTS
AND AMENDMENTS TO INDENTURE AND
COLLATERAL
DOCUMENTS
|
||
| SECTION 901. |
Supplemental
Indentures and Amendments Without consent of Holders
|
69
|
| SECTION 902. |
Actions
by the Trustee under the Deed of Trust
|
69
|
| SECTION 903. |
Supplemental
Indentures and Certain Amendments with Consent of Holders
|
71
|
| SECTION 904. |
Amendments
to Collateral Documents
|
72
|
| SECTION 905. |
Execution
of Supplemental Indentures
|
72
|
| SECTION 906. |
Effect
of Supplemental Indentures
|
72
|
| SECTION 907. |
Conformity
with the Trust Indenture Act
|
72
|
| SECTION 908. |
Reference
in Securities to Supplemental Indentures
|
73
|
| SECTION 909. |
Execution
of Subordination Agreements
|
73
|
|
ARTICLE
TEN
COVENANTS
|
||
| SECTION 1001. |
Payment
of Principal, Premium and Interest
|
73
|
| SECTION 1002. |
Maintenance
of Offices or Agencies
|
73
|
| SECTION 1003. |
Money
for Security Payments to Be Held in Trust
|
74
|
| SECTION 1004. |
Corporate
Existence
|
75
|
| SECTION 1005. |
Payment
of Taxes and Other Claims
|
75
|
| SECTION 1006. |
Maintenance
of Properties
|
75
|
| SECTION 1007. |
Limitation
on Liens
|
76
|
vi
| PAGE | ||
| SECTION 1008. |
Restricted
Subsidiaries
|
78
|
| SECTION 1009. |
Limitation
on Secured Debt
|
79
|
| SECTION 1010. |
Limitation
on Sale and leaseback Transactions
|
80
|
| SECTION 1011. |
Provision
of Financial Information
|
80
|
| SECTION 1012. |
Payment
of Additional Amounts
|
80
|
| SECTION 1013. |
Statement
as to Compliance
|
82
|
| SECTION 1014. |
Waiver
of Certain Covenants
|
82
|
| SECTION 1015. |
Release
of Security
|
82
|
|
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
|
||
| SECTION 1101. |
Right
of Redemption
|
83
|
| SECTION 1102. |
Applicability
of Article
|
84
|
| SECTION 1103. |
Election
to Redeem; Notice to Trustee
|
84
|
| SECTION 1104. |
Selection
by Trustee of Securities to Be Redeemed
|
84
|
| SECTION 1105. |
Notice
of Redemption
|
84
|
| SECTION 1106. |
Deposit
of Redemption Price
|
85
|
| SECTION 1107. |
Securities
Payable on Redemption
|
85
|
| SECTION 1108. |
Securities
Redeemed in Part
|
85
|
| SECTION 1109. |
Effect
of Change in Control Purchase Notice
|
86
|
| SECTION 1110. |
Deposit
of Change in Control Purchase Price
|
87
|
| SECTION 1111. |
Securities
Purchased in Part
|
87
|
| SECTION 1112. |
Repayment
to the Company
|
87
|
|
ARTICLE
TWELVE
SECURITY
DOCUMENTS
|
||
| SECTION 1201. |
Pledge
Agreement
|
87
|
| SECTION 1202. |
Recording
|
88
|
| SECTION 1203. |
Custody
of Trust Estate
|
89
|
| SECTION 1204. |
Suits
to Protect the Trust Estate
|
89
|
| SECTION 1205. |
Release
upon termination of the Company’s Obligations
|
89
|
| TESTIMONIUM |
100
|
|
| SIGNATURES AND SEALS |
100
|
|
| ACKNOWLEDGMENTS |
101
|
|
vii
EXHIBITS
|
A
|
-
|
Provisions
for Inter-Company Deeply Subordinated Debt
|
|
B
|
-
|
Provisions
for Inter-Company Subordinated Debt
|
|
C
|
-
|
Form
of Pledge Agreement
|
|
D
|
-
|
Form
of Certificate to be delivered in connection with Transfers from
Restricted Global Security to Regulation S Global
Security
|
|
E
|
-
|
Form
of Certificate to be delivered in connection with Transfers from
Regulation S Global Security to Restricted Global
Security
|
|
F
|
-
|
Form
of Certificate for Transfer or Exchange after two years
|
viii
INDENTURE
dated as of February 20, 2004 between Xxxxxx Wireless Inc., a corporation
organized under the Canada Business Corporations Act (hereinafter called the
“Company”), and JPMorgan Chase Bank, a New York banking corporation, as trustee
(hereinafter called the “Trustee”).
RECITALS
OF THE COMPANY
WHEREAS,
the Company has duly authorized the creation of and issue of its 6.375% Senior
(Secured) Notes due 2014 (hereinafter called the “Initial Securities”) and
6.375% Exchange Senior (Secured) Notes due 2014 (hereinafter called the
“Exchange Securities” and, together with the Initial Securities, the
“Securities”), of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture;
WHEREAS,
the Company’s obligations under the Securities are secured as provided in this
Indenture (subject to the release of such security in accordance with this
Indenture);
WHEREAS,
upon the effectiveness of the Exchange Offer Registration Statement or the
Shelf
Registration Statement, as the case may be, this Indenture will be subject
to,
and shall be governed by, applicable provisions of the Trust Indenture Act;
and
WHEREAS,
all things necessary have been done to make the Securities, when executed and
duly issued by the Company and authenticated and delivered hereunder by the
Trustee, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, each in accordance with their respective terms,
and to secure the Securities as contemplated in the Pledge
Agreement.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION
101. DEFINITIONS.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
1
(c) all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with generally accepted accounting principles in
Canada;
(d) the
words “herein”, “hereof” and “hereunder” and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other
subdivision;
(e) the
words “include”, “includes” and “including” as used herein shall be deemed in
each case to be followed by the phrase “without limitation”; and
(f) the
words “amendment or refinancing” as used herein shall be deemed in each case to
refer to any amendment, renewal, extension, substitution, refinancing,
restructuring, restatement, replacement, supplement or other modification of
any
instrument or agreement; the words “amended or refinanced” shall have a
correlative meaning.
Certain
terms, used principally in Articles Five and Ten, are defined in those
Articles.
“Acquired
Debt” means Debt of a Person (including an Unrestricted Subsidiary) existing at
the time such Person becomes a Restricted Subsidiary or assumed in connection
with the acquisition of assets from such Person.
“Additional
Securities” means up to an unlimited additional aggregate principal amount of
Securities that may be issued under a supplemental indenture after the date
that
the Securities are first issued by the Company and authenticated by the Trustee
under this Indenture, which shall rank pari passu with the Securities initially
issued in all respects.
“Adjusted
Treasury Rate” means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for
the Redemption Date.
“Affiliate”
means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
“control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Agent
Member” means any members of, or participants in, the Depositary. “Applicable
Procedures” means applicable procedures of the Depositary, Euroclear System or
Clearstream Banking, societe anonyme, as the case may be.
“Attributable
Debt” means, as of the date of its determination, the present value (discounted
semiannually at an interest rate implicit in the terms of the lease) of the
obligation of a lessee for rental payments pursuant to any Sale and Leaseback
Transaction (reduced by the amount of the rental obligations of any sublessee
of
all or part of the same property) during the remaining term of such Sale and
Leaseback Transaction (including any period for which the lease relating thereto
has been extended), such rental payments not to include amounts payable by
the
lessee for maintenance and repairs, insurance, taxes, assessments and similar
charges and for contingent rates (such as those based on sales), provided,
however, that in the case of any Sale and Leaseback Transaction in which the
lease is terminable by the lessee upon the payment of a penalty, Attributable
Debt shall mean the lesser of the present value of (i) the rental payments
to be
paid under such Sale and Leaseback Transaction until the first date (after
the
date of such determination) upon which it may be so terminated plus the then
applicable penalty upon such termination and (ii) the rental payments required
to be paid during the remaining term of such Sale and Leaseback Transaction
(assuming such termination provision is not exercised).
2
“bank
credit facility” means any credit agreement or working capital facility among
the Company and/or its Subsidiaries and one or more lenders, as such credit
agreement or working capital facility may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise
modified (including with other lenders) from time to time, regardless of whether
any other credit agreement or working capital facility or any portion thereof
was outstanding or in effect at the time of such amendment, renewal, extension,
substitution, refinancing, restructuring, replacement, supplement or
modification.
“Board
of
Directors” means the board of directors of the Company or any duly authorized
committee of such board.
“Board
Resolution” means a copy of a resolution certified by the General Counsel,
Secretary or an Assistant Secretary of the Company to have been duly adopted
by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions and trust companies in The City of New York
or
the City of Toronto are authorized or obligated by law, regulation or executive
order to be closed.
“Canadian
Dollars”, “Cdn Dollars” and “Cdn$” each mean lawful currency of
Canada.
“Capital
Lease Obligation” means, with respect to any Person, an obligation incurred or
assumed in the ordinary course of business under or in connection with any
capital lease of real or personal property which, in accordance with GAAP,
has
been recorded as a capitalized lease.
“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or equivalents (however designated) of such Person’s capital
stock whether now outstanding or issued after the date of this Indenture,
including, without limitation, all Common Stock and Preferred
Stock.
“cash
equivalents” means money, certified cheques, demand deposit accounts held by the
Deed Trustee or other instruments or investments of equivalent liquidity and
safety.
3
“Collateral
Documents” means, collectively, the Trust Bond, the Deed of Trust and the Pledge
Agreement and each other agreement or instrument executed and delivered pursuant
to or in connection with any thereof or which otherwise contains a guarantee
of,
or grants a Lien to secure, the Trust Bond or any guarantee
thereof.
“Commission”
means the United States Securities and Exchange Commission, as from time to
time
constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing
the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
“Common
Stock” means, with respect to any Person, any and all shares, interests and
participations (however designated and whether voting or non-voting) in such
Person’s common equity, whether now outstanding or issued after the date of this
Indenture, and includes, without limitation, all series and classes of such
common stock. “Company” means the Person named as the
“Company”
in the first paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean such successor Person. To the extent necessary
to comply with the requirements of the provisions of Trust Indenture Act
Sections 310 through 317 as they are applicable to the Company, the term
“Company” shall include any other obligor with respect to the Securities for the
purposes of complying with such provisions.
“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by any two of the following officers: its Chairman of the Board
of Directors, any Vice Chairman, its President, any Executive Vice President,
any Senior Vice President, any Vice President, its Treasurer, its Secretary
or
its General Counsel, and delivered to the Trustee.
“Comparable
Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the
Securities that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
of
comparable maturity to the remaining term of the Securities.
“Comparable
Treasury Price” means, with respect to any Redemption Date, the average of the
Reference Treasury Dealer Quotations for the Redemption Date.
“Consolidated
Net Tangible Assets” means the Consolidated Tangible Assets of any Person, less
such Person’s current liabilities.
“Consolidated
Tangible Assets” means the sum of the Tangible Assets of any Person after
eliminating inter-company items, determined on a Consolidated basis in
accordance with GAAP including appropriate deductions for any minority interest
in Tangible Assets of such Person’s Restricted Subsidiaries.
“Consolidation”
means the consolidation of the accounts of the Restricted Subsidiaries with
those of the Company, if and to the extent the accounts of each such Restricted
Subsidiary would normally be consolidated with those of the Company, all in
accordance with GAAP; provided, however, that “Consolidation” will not include
consolidation of the accounts of any Unrestricted Subsidiary. For purposes
of
clarification, it is understood that, subject to the immediately preceding
sentence, the accounts of the Company or any Restricted Subsidiary include
the
accounts of any Person, the beneficial interests in which are controlled (in
accordance with GAAP) by the Company or any such Restricted Subsidiary. The
term
“Consolidated” shall have a correlative meaning.
4
“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered. At the date
of
execution of this Indenture, the Corporate Trust Office of the Trustee is
located at 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
“Debt”
means, with respect to any Person, without duplication and (except as provided
in clause (ii) below) without regard to any interest component thereof (whether
actual or imputed) that is not due and payable:
(i) money
borrowed (including, without limitation, by way of overdraft) or indebtedness
represented by notes payable and drafts accepted representing extensions of
credit;
(ii) the
face amount of any drafts of a corporation in Canadian Dollars and accepted
by a
Canadian lender for discount in Canada;
(iii) all
obligations (whether or not with respect to the borrowing of money) which are
evidenced by bonds, debentures, notes or similar instruments or not so evidenced
but which would be considered to be indebtedness for borrowed money in
accordance with GAAP;
(iv) all
liabilities upon which interest charges are customarily paid by such
Person;
(v) shares
of Disqualified Stock not held by the Company or a wholly owned Restricted
Subsidiary;
(vi) Capital
Lease Obligations, Purchase Money Obligations and Supplier Obligations,
determined in each case in accordance with GAAP;
(vii) Acquired
Debt; and
(viii) any
guarantee (other than by endorsement of negotiable instruments for collection
or
deposit in the ordinary course of business) in any manner of any part or all
of
an obligation included in clauses (i) through (vii) above;
provided
that “Debt” shall not include (A) trade payables and accrued liabilities which
are current liabilities incurred in the ordinary course of business, (B)
Inter-Company Deeply Subordinated Debt, and (C) except as otherwise expressly
provided herein, Inter-Company Subordinated Debt.
5
“Deed
of
Trust” means the Amended and Restated Deed of Trust and Mortgage dated as of
March 15, 1997, between the Company and the Deed Trustee, as amended by the
First Supplemental Deed of Trust and Mortgage dated March 19, 1997, as in effect
on the date hereof and as such agreement may be amended, restated, supplemented
or otherwise modified from time to time.
“Deed
of
Trust Bondholders” means, collectively, the holders of the Deed of Trust Bonds
from time to time.
“Deed
of
Trust Bonds” means, collectively, the Trust Bond and any other bonds from time
to time issued and outstanding under the Deed of Trust.
“Deed
of
Trust Collateral” means, collectively, all of the property and assets that are
intended from time to time to secure the Deed of Trust Bonds or any guarantee
thereof pursuant to the Collateral Documents.
“Deed
Trustee” means National Trust Company, a trust company subsisting under the laws
of the Province of Ontario, Canada and its successors and assigns, as trustee
under the Deed of Trust.
“Default”
means any event which is, or after notice or passage of time or both would
be,
an Event of Default.
“Depositary”
means The Depository Trust Company, its nominees and their respective
successors.
“Disqualified
Stock” means any Capital Stock of the Company or any Restricted Subsidiary
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or
upon
the happening of any event, matures or is mandatorily redeemable, pursuant
to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the maturity date of the
Securities, for cash or securities constituting Debt; provided that shares
of
Preferred Stock of the Company or any Restricted Subsidiary that are issued
with
the benefit of provisions requiring a change in control offer to be made for
such shares in the event of a change in control of the Company or such
Restricted Subsidiary, which provisions have substantially the same effect
as
the relevant provisions of Sections 501 and 516 hereof, shall not be deemed
to
be “Disqualified Stock” solely by virtue of such provisions. For purposes of
this definition, the term “Debt” includes Inter-Company Subordinated
Debt.
“Event
of
Default” has the meaning specified in Article Five. “Exchange Act” means the
United States Securities Exchange Act of 1934, as amended, and as in force
at
the date as of which this instrument was executed.
“Exchange
Offer” means the exchange offer that may be effected pursuant to the
Registration Rights Agreement.
6
“Exchange
Offer Registration Statement” means the Exchange Offer Registration Statement as
defined in the Registration Rights Agreement.
“Exchange
Securities” has the meaning stated in the first recital of this Indenture and
refers to any Exchange Securities containing terms substantially identical
to,
and evidencing the same indebtedness as, the Initial Securities (except that
such Exchange Securities shall not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided for in the Registration Rights
Agreement and this Indenture.
“Excluded
Assets” means (i) all assets of any Person other than the Company or a
Restricted Subsidiary; (ii) Investments in the Capital Stock of an Unrestricted
Subsidiary held by the Company or a Restricted Subsidiary; (iii) any Investment
by the Company or a Restricted Subsidiary to the extent paid for with cash
or
other property that constitutes Excluded Assets or Excluded Securities, so
long
as at the time of acquisition thereof and after giving effect thereto there
exists no Default or Event of Default; and (iv) proceeds of the sale of any
Excluded Assets or Excluded Securities received by the Company or any Restricted
Subsidiary from a Person other than the Company or a Restricted
Subsidiary.
“Excluded
Securities” means any Debt, Preferred Stock or Common Stock issued by the
Company, or any Debt or Preferred Stock issued by any Restricted Subsidiary,
in
either case to an Affiliate thereof other than the Company or a Restricted
Subsidiary; provided that, at all times, such Excluded Securities
shall:
(i) in
the case of Debt not owed to the Company or a Restricted Subsidiary, constitute
Inter-Company Deeply Subordinated Debt;
(ii) in
the case of Debt, not be guaranteed by the Company or any Restricted Subsidiary
unless such guarantee shall constitute Inter-Company Deeply Subordinated
Debt;
(iii) in
the case of Debt, not be secured by any assets or property of the Company or
any
Restricted Subsidiary;
(iv) provide
by its terms that interest or dividends thereon shall be payable only to the
extent that, after giving effect to any such payment, no Default or Event of
Default shall have occurred and be continuing; and
(v) provide
by its terms that no payment (other than payments in the form of Excluded
Securities) on account of principal (at maturity, by operation of sinking fund
or mandatory redemption or otherwise) or other payment on account of redemption,
repurchase, retirement or acquisition of such Excluded Security shall be
permitted until the earlier of (x) the final Stated Maturity of the Securities
or (y) the date on which all principal of, premium, if any, and interest on
the
Securities shall have been duly paid or provided for in full.
“Existing
Secured Securities” means securities evidencing indebtedness under the Company’s
10 1/2% Senior Secured Notes due 2006, 8.30% Senior Secured Notes due 2007,
9
3/8% Senior Secured Debentures due 2008, 9 5/8% Senior (Secured) Notes due
2011
and 9 3/4% Senior Secured Debentures due 2016.
7
“Existing
Subordinated Notes” means securities evidencing indebtedness under the Company’s
8.80% Senior Subordinated Notes due 2007.
“Fitch
IBCA” means Fitch IBCA or any successor to such rating agency business
thereof.
“Fifth
Anniversary” shall mean the fifth anniversary of the date of original issuance
of the Initial Securities. “Generally Accepted Accounting Principles”
or
“GAAP”
means generally accepted accounting principles, in effect in Canada, as applied
from time to time, by the Company in the preparation of its consolidated
financial statements.
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
“Indenture”
means this instrument as originally executed (including all exhibits and
schedules hereto) and as it may from time to time be supplemented or amended
by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
“Indenture
Obligations” means the obligations of the Company and any other obligor
hereunder or under the Securities to pay principal of (and premium, if any)
and
interest on the Securities when due and payable at Maturity and any Additional
Amounts, and all other amounts due or to become due under or in connection
with
this Indenture, the Securities and the performance of all other obligations
to
the Trustee (including all amounts due to the Trustee under Section 607 hereof)
and the Holders under this Indenture and the Securities, according to the terms
hereof and thereof.
“Initial
Securities” has the meaning stated in the first recital of this
Indenture.
“Inter-Company
Deeply Subordinated Debt” means all indebtedness of the Company or any of the
Restricted Subsidiaries (except from one to the other) for money borrowed from
Rogers Entities under which payments by the Company or such Restricted
Subsidiary, as the case may be, with respect thereto are subordinated to the
Securities in the manner and to the extent set forth in Exhibit A hereto and
in
respect of which the agreement or instrument evidencing such indebtedness
contains or incorporates by reference the provisions of Exhibit A hereto for
the
benefit of the Trustee and the Holders.
“Inter-Company
Subordinated Debt” means all indebtedness of the Company or any of the
Restricted Subsidiaries (except from one to the other) for money borrowed from
Rogers Entities and under which payments by the Company or such Restricted
Subsidiary, as the case may be, with respect thereto are subordinated to the
Securities in the manner and to the extent set forth in Exhibit B hereto and
in
respect of which the agreement or instrument evidencing such indebtedness
contains or incorporates by reference the provisions of Exhibit B for the
benefit of the Trustee and the Holders.
8
“Interest
Payment Date” means the Stated Maturity of an installment of interest on the
Securities.
“Investment”
means (i) directly or indirectly, any advance, loan or capital contribution
to,
the purchase of any stock, bonds, notes, debentures or other securities of,
the
acquisition, by purchase or otherwise, of all or substantially all of the
business or assets or stock or other evidence of beneficial ownership of, any
Person or making of any investment in any Person, (ii) the designation of any
Restricted Subsidiary as an Unrestricted Subsidiary and (iii) the transfer
of
any assets or properties from the Company or a Restricted Subsidiary to any
Unrestricted Subsidiary, other than the transfer of assets or properties made
in
the ordinary course of business. Investments shall exclude extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices.
“Investment
Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by
S&P, Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by
Fitch IBCA.
“Lien”
means any mortgage, charge, pledge, lien, privilege, security interest,
hypothecation and transfer, lease of real property or other encumbrance upon
or
with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
“Maturity”
when used with respect to any Security means the date on which the principal
of
(and premium, if any) and interest on such Security becomes due and payable
as
therein or herein provided, whether at the Stated Maturity or by declaration
of
acceleration, call for redemption or otherwise.
“Moody’s”
means Xxxxx’x Investors Service, Inc. or any successor to such rating agency
business thereof.
“Officers’
Certificate” means a certificate signed by any two of the following officers of
the Company: its Chairman, any Vice Chairman, its President, any Executive
Vice
President, any Senior Vice President, any Vice President, its Treasurer, its
Secretary or its General Xxxxxxx, and delivered to the Trustee. Each such
certificate shall include the statements provided for in applicable provisions
of the Trust Indenture Act and shall comply with Section 103.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company, and who shall be acceptable to the Trustee. Each such opinion shall
include the statements provided for in applicable provisions of the Trust
Indenture Act and shall comply with Section 103.
“Outstanding”
when used with respect to Securities means, as of the date of determination,
all
Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
9
(b) Securities,
or portions thereof, for whose payment, redemption or purchase money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust
by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) Securities,
except to the extent provided in Sections 402 and 403, with respect to which
the
Company has effected defeasance or covenant defeasance as provided in Article
Four; and
(d) Securities
in exchange for or in lieu of which other Securities have been authenticated
and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory
to
them that such Securities are held by a bona fide purchaser in whose hands
the
Securities are valid obligations of the Company;
provided,
however, that in determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, direction,
consent or waiver hereunder, Securities owned by the Company, or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in relying upon any such
request, demand, direction, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or
any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of (or
premium, if any) or interest on any Securities on behalf of the
Company.
“Person”
means any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof, or any other
entity.
“Pledge
Agreement” means the agreement between the Company and the Trustee dated as of
February 20, 2004 substantially in the form attached as Exhibit C hereto,
pursuant to which the Company has pledged the Trust Bond to and in favor of
the
Trustee for and on behalf of the Trustee and each of the Holders.
“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 308 in exchange for a mutilated security or in lieu
of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt
as
the mutilated, lost, destroyed or stolen Security.
10
“Preferred
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s
preferred or preference stock whether now outstanding or issued after the date
of this Indenture, and includes, without limitation, all classes and series
of
preferred or preference stock.
“Principal
Property” means land, land improvements, buildings and associated factory,
laboratory, office and switching equipment (excluding all products marketed
by
the Company or any of its Subsidiaries) constituting a manufacturing,
development, warehouse, service, office or operating facility owned by or leased
to the Company or a Restricted Subsidiary, located within Canada and having
an
acquisition cost plus capitalized improvements in excess of 0.25% of
Consolidated Net Tangible Assets as of the date of such determination, other
than any such property (i) which the Board of Directors determines is not of
material importance to the Company and its Restricted Subsidiaries taken as
a
whole or (ii) in which the interest of the Company and all its Subsidiaries
does
not exceed 50%.
“Purchase
Money Obligations” means, with respect to any Person, obligations, other than
Capital Lease Obligations and Supplier Obligations, incurred or assumed in
the
ordinary course of business in connection with the purchase of property to
be
used in the business of such Person.
“QIB”
means a Qualified Institutional Buyer pursuant to Rule 144A.
“Quotation
Agent” means Citigroup Global Markets Inc. or such other Reference Treasury
Dealer appointed by the Company.
“Rating
Agencies” means S&P, Fitch IBCA and Moody’s, and each of such Rating
Agencies is referred to individually as a “Rating Agency”.
“Rating
Date” means the date which is 90 days prior to the earlier of (i) a Change in
Control and (ii) public notice of the occurrence of a Change in Control or
of
the intention of the Company to effect a Change in Control.
“Rating
Decline” means the occurrence of the following on, or within 90 days after, the
date of public notice of the occurrence of a Change in Control or of the
intention by the Company to effect a Change in Control (which period may be
extended so long as the rating of the Securities is under publicly announced
consideration for possible downgrade by any of the Rating Agencies): (a) in
the
event the Securities are assigned an Investment Grade Rating by at least two
of
the three Rating Agencies on the Rating Date, the rating of such Securities
by
at least two of the three Rating Agencies shall be below an Investment Grade
Rating; or (b) in the event the Securities are rated below an Investment Grade
Rating by at least two of the three Rating Agencies on the Rating Date, the
rating of such Securities by at least two of the three Rating Agencies shall
be
decreased by one or more gradations (including gradations within rating
categories as well as between rating categories).
“RCI”
means Xxxxxx Communications Inc., a corporation organized under the laws of
the
Province of British Columbia, and its successors and assigns.
11
“Redemption
Date”, when used with respect to any Securities to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.
“Reference
Treasury Dealer” means (1) Citigroup Global Markets Inc. or its successors;
provided, however, that if it shall cease to be a primary U.S. Government
securities dealer in New York City (a “Primary Treasury Dealer”), the Company
shall substitute for it another Primary Treasury Dealer; and (2) any other
Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Reference
Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted by
the
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding
the
Redemption Date.
“Registration
Rights Agreement” means the Registration Rights Agreement among the Company and
the Initial Purchasers named therein, dated as of February 20, 2004, relating
to
the Securities.
“Registration
Statement” means the Registration Statement as defined in the Registration
Rights Agreement.
“Regular
Record Date” for the interest payable on any Interest Payment Date means the
February 15 or August 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date.
“Regulation
S” means Regulation S under the Securities Act.
“Release
Date” shall have the meaning ascribed thereto in Section 1015.
“Responsible
Officer”, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or vice-chairman of the
executive committee of the board of directors, the president, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, the cashier, any assistant cashier,
any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
“Restricted
Subsidiary” means (a) prior to the Release Date, any Subsidiary that is a
Restricted Subsidiary under the Deed of Trust, and includes any Unrestricted
Subsidiary or other Person, in either case, that becomes a Restricted Subsidiary
in accordance with Section 1008 of this Indenture and excludes any Person
(including any of the foregoing), that ceases to be a Restricted Subsidiary
in
accordance with Section 1008 of this Indenture or (b) on or after the Release
Date, any Subsidiary of the Company other than an Unrestricted Subsidiary.
As of
the date hereof, the only Restricted Subsidiary of the Company is Xxxxxx
Wireless Alberta Inc.
12
“Rogers
Entities” means RCI and its Affiliates.
“Rule
144A” means Rule 144A under the Securities Act.
“Sale
and
Leaseback Transaction” means any arrangement with any Person providing for the
leasing by the Company or any Restricted Subsidiary of any Principal Property
(whether such Principal Property is now owned or hereafter acquired) that has
been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person, other than (i) temporary leases for a term, including
renewals at the option of the lessee, of not more than three years; (ii) leases
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries; and (iii) leases of Principal Property executed by the time of,
or
within 180 days after the latest of, the acquisition, the completion of
construction or improvement (including any improvements on property which will
result in such property becoming Principal Property), or the commencement of
commercial operation of such Principal Property.
“Secured
Debt” means:
(a) Debt
of the Company or any Restricted Subsidiary secured by any Lien upon any
Principal Property or the stock or Debt of a Restricted Subsidiary;
or
(b) any
conditional sale or other title retention agreement covering any Principal
Property or Restricted Subsidiary;
but
does
not include any Debt secured by any Lien or any conditional sale or other title
retention agreement:
(1) incurred
or entered into on or after the Release Date to finance the acquisition,
improvement or construction of such property and either secured by Purchase
Money Obligations or Liens placed on such property within 180 days of
acquisition, improvement or construction and securing Debt not to exceed
Cdn$50,000,000 at any time outstanding;
(2) on
Principal Property or the stock or Debt of Restricted Subsidiaries and existing
at the time of acquisition of the property, stock or Debt;
(3) owing
to the Company or any other Restricted Subsidiary; and
(4) existing
at the time a corporation becomes a Restricted Subsidiary.
“Securities
Act” means the United States Securities Act of 1933, as amended, and as in force
at the date as of which this instrument was executed.
“Security”
and “Securities” have the meaning set forth in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term “Securities”
shall include any Additional Securities that may be issued under a supplemental
indenture and any Exchange Securities to be issued and exchanged for any Initial
Securities in accordance with the Exchange Offer provided for in the
Registration Rights Agreement and this Indenture and, for purposes of this
Indenture, all Initial Securities, Additional Securities and Exchange Securities
shall vote together as one series of Securities under this
Indenture.
13
“Senior
Debt” means any Debt of the Company or any Restricted Subsidiary other than Debt
the repayment of which or any security for which has been expressly subordinated
to the obligations under the Securities or to the senior indebtedness of such
Restricted Subsidiary, as the case may be.
“Shelf
Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
“Special
Record Date” means a date fixed by the Trustee for the payment of any Defaulted
Interest pursuant to Section 309. “S&P” means Standard & Poor’s Ratings
Group, a division of McGraw Hill, Inc., or any successor to such rating agency
business thereof.
“Stated
Maturity”, when used with respect to any Security or any installment of interest
thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of interest is due and
payable.
“Subsidiary”
means any firm, corporation or other legal entity in which the Company, the
Company and one or more Subsidiaries or one or more Subsidiaries owns, directly
or indirectly, a majority of the Voting Shares or has, directly or indirectly,
the right to elect a majority of the board of directors, if it is a corporation,
or the right to make or control its management decisions, if it is some other
Person.
“Supplier
Obligations” means any obligation of the Company on a Consolidated basis
incurred or assumed in the ordinary course of business and in favor of a
supplier or other Person for the deferred purchase price of goods supplied
to
the Company or any other Restricted Subsidiary in respect of which goods the
Deed Trustee has postponed its prior security interest in favor of such supplier
or other Person and in respect of which the Company shall have delivered a
notice to the Deed Trustee which notice sets forth (i) the name of such supplier
or other Person, (ii) a brief description of the supply agreement governing
such
Supplier Obligations and (iii) the amount of the Supplier Obligations that
may
be incurred or assumed under such agreement.
“Tangible
Assets” means, at any date, the gross book value as shown by the accounting
books and records of any Person of all its property both real and personal,
less
(i) the net book value of all its licenses, patents, patent applications,
copyrights, trademarks, trade names, goodwill, non-compete agreements or
organizational expenses and other like intangibles, (ii) unamortized Debt
discount and expenses, (iii) all reserves for depreciation, obsolescence,
depletion and amortization of its properties and (iv) all other proper reserves
which in accordance with GAAP should be provided in connection with the business
conducted by such Person.
14
“Trust
Bond” means a bond in the principal amount of U.S.$3,000,000,000 issued by the
Company under the Deed of Trust and pledged to and in favor of the Trustee
for
and on behalf of the Trustee and each of the Holders pursuant to the Pledge
Agreement.
“Trust
Estate” means the property which is covered or intended to be covered by the
Lien of the Pledge Agreement as collateral security for the
Securities.
“Trust
Indenture Act” means the United States Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this instrument was executed, except
as
provided in Section 907.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
Indenture, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such successor
Trustee.
“U.S.
Dollars”, “United States Dollars”, “U.S.$” and the symbol “$” each mean lawful
currency of the United States of America.
“Unrestricted
Subsidiary” means
(a) prior
to the Release Date, any Subsidiary that is not a Restricted Subsidiary and
includes any Restricted Subsidiary that becomes an Unrestricted Subsidiary
in
accordance with Section 1008 of this Indenture; or
(b) on
or after the Release Date, (i) any Subsidiary of the Company that at the time
of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors in accordance with Section 1008 and (ii) any Subsidiary of an
Unrestricted Subsidiary.
“Voting
Shares” means any Capital Stock having voting power under ordinary circumstances
to vote in the election of a majority of the directors of a corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
SECTION
102. OTHER DEFINITIONS.
|
DEFINED
TERM
|
IN
SECTION
|
|
Act
|
105
|
|
Additional
Amounts
|
1012
|
|
Amended
Deed of
Trust
|
902
|
|
Bankruptcy
Law
|
501
|
|
Bankruptcy
Order
|
501
|
|
Base
Currency
|
116
|
|
Change
in
Control
|
501
|
|
Change
in Control
Offer
|
516
|
|
Change
in Control Purchase
Date
|
516
|
|
Change
in Control Purchase
Notice
|
516
|
|
Change
in Control Purchase
Price
|
516
|
15
|
Change
in Control Triggering
Event
|
501
|
|
Covenant
Defeasance
|
403
|
|
Custodian
|
501
|
|
Defaulted
Interest
|
309
|
|
Defeasance
|
402
|
|
Xxxxxx
X.
Xxxxxx
|
501
|
|
Excluded
Holder
|
1012
|
|
Family
Percentage
Holding
|
501
|
|
First
Currency
|
117
|
|
Global
Securities
|
201
|
|
incorporated
provision
|
108
|
|
judgment
currency
|
116
|
|
Member
of the Rogers
Family
|
501
|
|
Notice
of
Default
|
501
|
|
Other
Currency
|
117
|
|
Parent
Company
|
801
|
|
Permitted
Residuary
Beneficiary
|
501
|
|
Perpetuity
Date
|
501
|
|
Private
Placement
Legend
|
201
|
|
Qualified
Persons
|
501
|
|
Qualifying
Trust
|
501
|
|
rate(s)
of
exchange
|
116
|
|
Regulation
S Global
Securities
|
201
|
|
Relevant
Person
|
119
|
|
Restricted
Global
Securities
|
201
|
|
Security
Register
|
305
|
|
Security
Registrar
|
305
|
|
Taxes
|
1012
|
|
U.S.
Government
Obligations
|
404
|
In
addition, the terms “Bondholders' Direction”, “Bondholders' Resolution”,
“Mortgaged Property”, “Senior Secured Bondholders” and “Unanimous Bondholders'
Resolution” shall have the respective meanings ascribed thereto in the Deed of
Trust as in effect on the date hereof.
SECTION
103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the
case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be
furnished.
16
Every
certificate or opinion (other than the certificates required by Section 1013)
with respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(c) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with or satisfied; and
(d) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with or satisfied.
SECTION
104. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE.
In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect
to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION
105. ACTS OF HOLDERS.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by their agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of
a writing appointing any such agent shall be sufficient for any purpose of
this
Indenture and (subject to Trust Indenture Act Section 315) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section.
17
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any reasonable manner which the Trustee deems
sufficient.
(c) The
ownership of Securities shall be proved by the Security Register.
(d) If
the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding Trust Indenture Act Section
316(c), any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior
to
the first solicitation of Holders generally in connection therewith and no
later
than the date such solicitation is completed.
If
such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date,
but
only the Holders of record at the close of business on such record date shall
be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Securities then Outstanding have authorized or agreed
or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Securities then Outstanding shall
be computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders
on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
by the Holder of any Security shall bind every future Holder of the same
Security or the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action
is
made upon such Security.
(f) For
all purposes of this Indenture, all Initial Securities, Exchange Securities
and
any Additional Securities shall vote together as one series of Securities under
this Indenture.
SECTION
106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
18
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the
Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or delivered, in writing, to or with the
Trustee at its Corporate Trust Office, Attention: Institutional Trust Services;
and
(b) the
Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished
or delivered in writing to the Company in care of Xxxxxx Communications Inc.,
10th Floor, 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, Attention:
Senior Vice President, Finance and Chief Financial Officer, with a copy to
Xxxxxxxx Xxxx, Vice President, Treasurer of the Company, One Mt. Pleasant Road,
6th Floor, Toronto, Ontario, Canada, M4Y 2Y5, or, in either case, at any other
address previously furnished in writing to the Trustee.
SECTION
107. NOTICE TO HOLDERS; WAIVER.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at its address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect
to
other Holders. Any notice mailed to a Holder in the aforesaid manner shall
be
conclusively deemed to have been received by such Holder when mailed whether
or
not actually received by such Xxxxxx. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled
to
receive such notice, either before or after the event, and such waiver shall
be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause, it shall be impracticable to mail notice of any event as required by
any
provision of this Indenture, then any method of giving such notice as shall
be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION
108. CONFLICT OF ANY PROVISION OF INDENTURE WITH THE TRUST
INDENTURE ACT.
Each
of
the Trustee and the Company agrees to comply with all provisions of the Trust
Indenture Act applicable to or binding upon it in connection with this Indenture
and any action to be taken hereunder. If and to the extent that any provision
of
this Indenture limits, qualifies or conflicts with any mandatory requirement
of
the Trust Indenture Act, such mandatory requirement shall prevail. For greater
certainty, if and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
“incorporated provision”) required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
19
SECTION
109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION
110. SUCCESSORS AND ASSIGNS.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION
111. SEPARABILITY CLAUSE.
In
case
any provision in this Indenture or in the Securities 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.
SECTION
112. BENEFITS OF INDENTURE.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person (other than the parties hereto and their successors hereunder, any Paying
Agent and the Holders) any benefit or any legal or equitable right, remedy
or
claim under this Indenture.
SECTION
113. GOVERNING LAW.
This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York. Upon the issuance of the Exchange
Securities or the effectiveness of the Shelf Registration Statement, this
Indenture shall be subject to the provisions of the Trust Indenture Act that
are
required or deemed to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION
114. LEGAL HOLIDAYS.
In
any
case where any Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity, Change
in Control Purchase Date or the Fifth Anniversary with respect to any Security
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date, date established for payment of Defaulted Interest
pursuant to Section 309, Stated Maturity or Change in Control Purchase Date
and
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date, Redemption Date, date established for payment
of Defaulted Interest pursuant to Section 309, Stated Maturity or Change in
Control Purchase Date, as the case may be, to the next succeeding Business
Day.
20
SECTION
115. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By
the
execution and delivery of this Indenture, the Company (i) acknowledges that
it
has, by separate written instrument, irrevocably designated and appointed CT
Corporation System (and any successor entity) (“CT Corporation”), 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent upon
which
process may be served in any suit, action or proceeding arising out of or
relating to the Securities or this Indenture that may be instituted in any
federal or state court in the State of New York, Borough of Manhattan, or
brought under federal or state securities laws or brought by the Trustee
(whether in its individual capacity or in its capacity as Trustee hereunder),
and acknowledges that CT Corporation has accepted such designation, (ii) submits
to the non-exclusive jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon CT Corporation and
written notice of said service to it (mailed or delivered to its Senior Vice
President, Finance and Chief Financial Officer at its principal office in
Toronto, Canada, with copies to Xxxxxx Communications Inc., in each case as
specified in Section 106(b) hereof) shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any
and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as this Indenture shall be in full force and effect.
To
the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
SECTION
116. CONVERSION OF CURRENCY.
The
Company covenants and agrees that the following provisions shall apply to
conversion of currency in the case of the Securities and this
Indenture:
(a) (i) If,
for the purpose of obtaining judgment in, or enforcing the judgment of, any
court in any country, it becomes necessary to convert into a currency (the
“judgment currency”) an amount due in any other currency (the “Base Currency”),
then the conversion shall be made at the rate of exchange prevailing on the
Business Day before the day on which the judgment is given or the order of
enforcement is made, as the case may be (unless a court shall otherwise
determine).
(ii) If
there is a change in the rate of exchange prevailing between the Business Day
before the day on which the judgment is given or an order of enforcement is
made, as the case may be (or such other date as a court shall determine), and
the date of receipt of the amount due, the Company will pay such additional
(or,
as the case may be, such lesser) amount, if any, as may be necessary so that
the
amount paid in the judgment currency when converted at the rate of exchange
prevailing on the date of receipt will produce the amount in the Base Currency
originally due.
21
(b) In
the event of the winding-up of the Company at any time while any amount or
damages owing under the Securities and this Indenture, or any judgment or order
rendered in respect thereof, shall remain outstanding, the Company shall
indemnify and hold the Holders and the Trustee harmless against any deficiency
arising or resulting from any variation in rates of exchange between (1) the
date as of which the equivalent of the amount in U.S. Dollars or Canadian
Dollars, as the case may be, due or contingently due under the Securities and
this Indenture (other than under this Subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs
of
claim in such winding-up. For the purpose of this Subsection (b), the final
date
for the filing of proofs of claim in the winding-up of the Company shall be
the
date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The
obligations contained in Subsections (a)(ii) and (b) of this Section 116
shall constitute obligations of the Company separate and independent from its
other respective obligations under the Securities and this Indenture, shall
give
rise to separate and independent causes of action against the Company, shall
apply irrespective of any waiver or extension granted by any Holder or the
Trustee or any of them from time to time and shall continue in full force and
effect notwithstanding any judgment or order or the filing of any proof of
claim
in the winding-up of the Company for a liquidated sum in respect of amounts
due
hereunder (other than under Subsection (b) above) or under any such judgment
or
order. Any such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or the liquidator
or otherwise or any of them. In the case of Subsection (b) above, the amount
of
such deficiency shall not be deemed to be reduced by any variation in rates
of
exchange occurring between the said final date and the date of any liquidating
distribution.
(d) The
term “rate(s) of exchange” shall mean the rate of exchange quoted by The
Toronto-Dominion Bank at its central foreign exchange desk in its head office
in
Toronto at 12:00 noon (Toronto, Ontario time) for purchases of the Base Currency
with the judgment currency other than the Base Currency referred to in
Subsections (a) and (b) above and includes any premiums and costs of exchange
payable.
(e) The
Trustee shall have no duty or liability with respect to monitoring or enforcing
this Section 116.
SECTION
117. CURRENCY EQUIVALENT.
Except
as
provided in Section 116, for purposes of the construction of the terms of this
Indenture or of the Securities, in the event that any amount is stated herein
in
the currency of one nation (the “First Currency”), as of any date such amount
shall also be deemed to represent the amount in the currency of any other
relevant nation (the “Other Currency”) which is required to purchase such amount
in the First Currency at the rate of exchange quoted by The Toronto-Dominion
Bank at its central foreign exchange desk in its head office in Toronto at
12:00
noon (Toronto, Ontario time) on the date of determination.
22
SECTION
118. NO RECOURSE AGAINST OTHERS.
A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities
or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting any of the Securities
waives and releases all such liability.
SECTION
119. RELIANCE ON FINANCIAL DATA.
In
computing any amounts under this Indenture,
(i) to
the extent relevant in computing any amounts under this Indenture, the Company
shall use audited financial statements of the Company, its Subsidiaries, any
Person that would become a Subsidiary in connection with the transaction that
requires the computation and any Person from which the Company or a Subsidiary
has acquired an operating business, or is acquiring an operating business in
connection with the transaction that requires the computation (each such Person
whose financial statements are relevant in computing any particular amount,
a
“Relevant Person”) for the period or portions of the period to which the
computation relates for which audited financial statements are available on
the
date of computation and unaudited financial statements and other current
financial data based on the books and records of the Relevant Person or Relevant
Persons, as the case may be, to the extent audited financial statements for
the
period or any portion of the period to which the computation relates are not
available on the date of computation, and
(ii) the
Company shall be permitted to rely in good faith on the financial statements
and
other financial data derived from the books and records of any Relevant Person
that are available on the date of the computation.
SECTION
120. DOCUMENTS IN ENGLISH.
By
common
accord, this Indenture, the Securities and all documents related thereto have
been or will be drawn up in the English language solely.
ARTICLE
TWO
SECURITY
FORMS
SECTION
201. FORMS GENERALLY.
The
Initial Securities shall be known as the “6.375% Senior (Secured) Notes due
2014” and the Exchange Securities shall be known as the “6.375% Exchange Senior
(Secured) Notes due 2014”, in each case, of the Company. The Securities and the
Trustee's certificate of authentication shall be in substantially the forms
set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith,
be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities (but which shall not affect the rights or duties
of
the Trustee). Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
23
The
definitive Securities shall be printed, lithographed or engraved or produced
by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Initial
Securities offered and sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global securities substantially in the
form
set forth in this Article (the “Restricted Global Securities”) deposited with
the Trustee, as custodian for the Depositary, duly executed by the Company
and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Restricted Global Securities may from time to time be increased
or
decreased by adjustments made on the records of the Depositary or its nominee,
or of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial
Securities offered and sold in reliance on Regulation S shall be issued in
the
form of one or more permanent global securities in registered form substantially
in the form set forth in this Article (the “Regulation S Global Securities” and
together with the Restricted Global Securities the “Global Securities”). The
Regulation S Global Securities will be registered in the name of a nominee
of
the Depositary and deposited with the Trustee, as custodian of the Depositary,
for credit to Euroclear Bank S.A./N.V., as operator of the Euroclear System
(“Euroclear”) and Clearstream Banking, societe anonyme (“Clearstream,
Luxembourg”) for the benefit of the Holders. The aggregate principal amount of
the Regulation S Global Security may from time to time be increased or decreased
by adjustments made on the records of the Depositary or its nominee, or of
the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
SECTION
202. RESTRICTIVE LEGENDS.
Unless
and until (i) an Initial Security is sold under an effective Registration
Statement or (ii) an Initial Security is exchanged for an Exchange Security
in
connection with an effective Registration Statement, in each case as provided
for in the Registration Rights Agreement, each such Restricted Global Security
shall bear the following legend (the “Private Placement Legend”) on the face
thereof:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF XXXXXX WIRELESS INC. THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS
AN AFFILIATE OF XXXXXX WIRELESS INC. AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN
24
(1) TO
XXXXXX WIRELESS INC.,
(2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(3) IN
AN OFFSHORE TRANSACTION TO NON-U.S. PERSONS THAT OCCURS OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED
BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY), PROVIDED THAT SUCH NON-U.S. PERSONS AGREE NOT TO RESELL
OR
OTHERWISE TRANSFER THE SECURITIES IN CANADA OR TO OR FOR THE BENEFIT OF A
CANADIAN RESIDENT, EXCEPT IN ACCORDANCE WITH APPLICABLE CANADIAN SECURITIES
LAWS,
(4) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
(INCLUDING, WITHOUT LIMITATION, TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR
OR THE EXEMPTION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT),
OR
(5) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN
EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER JURISDICTION AND SUBJECT TO THE RIGHT OF XXXXXX
WIRELESS INC. AND THE TRUSTEE PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER
PURSUANT TO CLAUSE (4) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATES AND OTHER INFORMATION THEY MAY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS AND THE RIGHT OF XXXXXX WIRELESS INC.
AND THE TRUSTEE PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO
CLAUSES (1) THROUGH (5) TO REQUIRE ANY TRANSFER CERTIFICATIONS REQUIRED PURSUANT
TO THE INDENTURE GOVERNING THIS SECURITY.
25
Each
Security sold pursuant to Regulation S (and all certificates issued in exchange
therefor or in substitution thereof) will bear the following legend until such
legend shall no longer be necessary or advisable because such Security is no
longer subject to the restrictions on transfer described therein:
UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITY
SHALL NOT TRADE THE SECURITY IN OR TO A PERSON IN ANY PROVINCE OR TERRITORY
OF
CANADA BEFORE WHICH DATE IS 12 MONTHS AND A DAY AFTER THE DATE OF ISSUANCE
OF
THE SECURITY.
Each
Global Security, whether or not an Initial Security, shall also bear the
following legend on the face thereof:
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306
AND
307 OF THE INDENTURE GOVERNING THIS SECURITY.
SECTION
203. FORM OF FACE OF SECURITY.
XXXXXX
WIRELESS INC.
26
6.375%
[EXCHANGE]* SENIOR (SECURED) NOTES
DUE
2014
|
No.
|
U.S.
$
|
CUSIP
|
Xxxxxx
Wireless Inc., a corporation organized under the Canada Business Corporations
Act (herein called the “Company”, which term includes any successor entity under
the Indenture hereinafter referred to), for value received, hereby promises
to
pay to _______ or registered assigns, the principal sum of _________ United
States Dollars (or such other amount that may from time to time be indicated
on
the records of the Trustee as the result of increases or decreases by
adjustments made on the records of the Trustee, as the custodian for DTC, in
accordance with the rules and procedures of DTC) on March 1, 2014, at the office
or agency of the Company referred to below, and to pay interest thereon on
September 1, 2004 and semiannually thereafter, on March 1 and September 1 in
each year, from February 20, 2004 or from the most recent Interest Payment
Date
to which interest has been paid or duly provided for, at the rate of 6.375%
per
annum [subject to adjustment as provided below]**, until
the
principal hereof is paid or duly provided for, and (to the extent lawful) to
pay
on demand interest on any overdue interest at the rate borne by the Securities
from the date of the Interest Payment Date on which such overdue interest
becomes payable to the date payment of such interest has been made or duly
provided for. The interest so payable, and punctually paid or duly provided
for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
the
Person in whose name this Security (or one or more Predecessor Securities)
is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for, and interest on such
Defaulted Interest at the interest rate borne by the Securities, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name this Security (or one or
more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than
10
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[The
Holder of this Security is entitled to the benefits of the Registration Rights
Agreement, dated as of February 20, 2004, between the Company and the Initial
Purchasers named therein (the “Registration Rights Agreement”). In the event
that (a) neither the Exchange Offer Registration Statement (as such term is
defined in the Registration Rights Agreement) nor a Shelf Registration Statement
(as such term is defined in the Registration Rights Agreement) is filed with
the
Securities and Exchange Commission on or prior to the 120th day folllowing
the
date of original issue of the Securities, (b) neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement has been declared
effective
------------------------
* Include only for Exchange Securities.
**
Include only for Initial Securities.
27
on
or
prior to the 180th calendar day following the date of original issue of the
Securities or (c) neither the Exchange Offer (as such term is defined in the
Registration Rights Agreement) is consummated nor a Shelf Registration Statement
is declared effective on or prior to the 210th day following the date of
original issue of the Securities, the interest rate borne by this Security
shall
be increased by 0.25% per annum following such 120-day period in the case of
clause (a) above, following such 180-day period in the case of clause (b) above
or following such 210-day period in the case of clause (c) above. The aggregate
amount of such increase from the original interest rate pursuant to these
provisions shall in no event exceed 0.25% per annum. Upon (x) the filing of
either the Exchange Offer Registration Statement or a Shelf Registration
Statement after the 120-day period described in clause (a) above, (y) the
effectiveness of either the Exchange Offer Registration Statement or a Shelf
Registration Statement after the 180-day period described in clause (b) above
or
(z) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 210-day period described
in clause (c) above, the interest rate borne by this Security from the date
of
such filing, effectiveness or consummation, as the case may be, will be reduced
to the interest rate set forth above. The Company shall promptly provide the
Trustee with notice of any change in the interest rate borne by this
Security.*
PAYMENT
OF THE PRINCIPAL OF (AND PREMIUM, IF ANY) AND INTEREST ON THIS SECURITY WILL
BE
MADE AT THE OFFICES OR AGENCIES OF THE COMPANY MAINTAINED FOR THAT PURPOSE
IN
THE CITY OF NEW YORK (WHICH SHALL BE THE CORPORATE TRUST OFFICE OF THE TRUSTEE,
UNLESS THE COMPANY SHALL DESIGNATE AND MAINTAIN SOME OTHER OFFICE OR AGENCY
FOR
SUCH PURPOSE), OR AT SUCH OTHER OFFICE OR AGENCY OF THE COMPANY AS MAY BE
MAINTAINED FOR SUCH PURPOSE, IN U.S. DOLLARS; PROVIDED, HOWEVER, THAT PAYMENT
OF
INTEREST MAY BE MADE AT THE OPTION OF THE COMPANY BY CHECK MAILED TO THE ADDRESS
OF THE PERSON ENTITLED THERETO AS SUCH ADDRESS SHALL APPEAR ON THE SECURITY
REGISTER; PROVIDED FURTHER THAT ALL PAYMENTS OF THE PRINCIPAL OF (AND PREMIUM,
IF ANY) AND INTEREST ON SECURITIES, THE HOLDERS OF WHICH HAVE GIVEN WIRE
TRANSFER INSTRUCTIONS TO THE COMPANY OR THE PAYING AGENT AT LEAST 10 BUSINESS
DAYS PRIOR TO THE APPLICABLE PAYMENT DATE AND HOLD AT LEAST U.S.$1,000,000
IN
PRINCIPAL AMOUNT OF SECURITIES, WILL BE REQUIRED TO BE MADE BY WIRE TRANSFER
OF
IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNTS SPECIFIED BY SUCH HOLDERS IN SUCH
INSTRUCTIONS. ANY SUCH WIRE TRANSFER INSTRUCTIONS RECEIVED BY THE COMPANY OR
THE
PAYING AGENT SHALL REMAIN IN EFFECT UNTIL REVOKED BY SUCH HOLDER.
NOTWITHSTANDING THE FOREGOING, THE FINAL PAYMENT OF PRINCIPAL SHALL BE PAYABLE
ONLY UPON SURRENDER OF THIS SECURITY TO THE PAYING AGENT.
INTEREST
ON THIS SECURITY SHALL BE COMPUTED ON THE BASIS OF A YEAR OF TWELVE 30-DAY
MONTHS. FOR THE PURPOSES OF THE INTEREST ACT (CANADA), THE YEARLY RATE OF
INTEREST WHICH IS EQUIVALENT TO THE RATE PAYABLE HEREUNDER IS THE RATE PAYABLE
MULTIPLIED BY THE ACTUAL NUMBER OF DAYS IN THE YEAR AND DIVIDED BY
360.
REFERENCE
IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE
REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS IF SET FORTH AT THIS PLACE.
------------------------
*
Include only for Initial Securities.
28
UNLESS
THE CERTIFICATE OF AUTHENTICATION HEREON HAS BEEN DULY EXECUTED BY THE TRUSTEE
REFERRED TO ON THE REVERSE HEREOF BY MANUAL SIGNATURE, THIS SECURITY SHALL
NOT
BE ENTITLED TO ANY BENEFIT UNDER THE INDENTURE, OR BE VALID OR OBLIGATORY FOR
ANY PURPOSE.
IN
WITNESS WHEREOF, THE COMPANY HAS CAUSED THIS INSTRUMENT TO BE DULY EXECUTED
UNDER ITS CORPORATE SEAL.
|
Dated:
|
XXXXXX
CABLE INC.
|
|
|
By:
|
||
|
|
||
|
|
||
|
By:
|
||
|
|
||
|
|
||
SECTION
204. FORM OF REVERSE OF SECURITY.
This
Security is one of a duly authorized issue of securities of the Company
designated as its 6.375% [Exchange]*
Senior (Secured) Notes due 2014 (herein called the “Securities”), which may be
issued under an indenture (herein called the “Indenture”) dated as of February
20, 2004 between the Company and JPMorgan Chase Bank, as trustee (herein called
the “Trustee”, which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are,
and
are to be, authenticated and delivered.
As
provided for in the Indenture, the Company may, subject to certain limitations,
from time to time, without notice to or the consent of the Holders, create
and
issue Additional Securities so that such Additional Securities shall be
consolidated and form a single series with the Securities initially issued
by
the Company and shall have the same terms as to status, redemption or otherwise
as Securities originally issued. Any Additional Securities shall be issued
with
the benefit of any indenture supplemental to the Indenture.
THE
COMPANY WILL PAY TO THE HOLDERS SUCH ADDITIONAL AMOUNTS AS MAY BECOME PAYABLE
UNDER SECTION 1012 OF THE INDENTURE.
AS
PROVIDED IN THE INDENTURE, THE SECURITIES WILL INITIALLY BE SECURED BY THE
PLEDGE TO THE TRUSTEE PURSUANT TO THE PLEDGE AGREEMENT OF THE TRUST BOND ISSUED
BY THE COMPANY UNDER THE DEED OF TRUST. EACH HOLDER BY ACCEPTING A SECURITY
SHALL BE BOUND BY AND BE ENTITLED TO THE BENEFITS OF THE DEED OF TRUST AND
THE
OTHER COLLATERAL DOCUMENTS, AS THE SAME MAY BE AMENDED FROM TIME TO TIME
PURSUANT TO THE RESPECTIVE PROVISIONS THEREOF AND OF THE INDENTURE.
------------------------
*
Include only for Initial Securities.
29
IN
THE
EVENT THAT (i) ON A PRO FORMA BASIS GIVING EFFECT TO THE RELEASE OF THE SECURITY
FOR THE SECURITIES AND ANY OTHER DEBT OF THE COMPANY WITH SIMILAR RELEASE
PROVISIONS, (A) NO DEBT OF THE COMPANY WOULD BE OUTSTANDING AND (B) THERE WOULD
BE NO AVAILABILITY TO THE COMPANY UNDER ANY BANK CREDIT FACILITIES, OPERATING
CREDIT FACILITIES OR SWAP AGREEMENTS, IN THE CASE OF EACH OF (A) AND (B) THAT
IS
OR ARE SECURED BY A LIEN OF THE PLEDGE AGREEMENT OR ANY COLLATERAL DOCUMENT
OR
ANY OTHER LIEN ON THE DEED OF TRUST COLLATERAL, (ii) THE RATINGS ASSIGNED TO
THE
SECURITIES BY AT LEAST TWO OF THE THREE RATING AGENCIES ARE INVESTMENT GRADE
RATINGS AND (iii) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING
UNDER THE INDENTURE, THEN, WITHOUT THE CONSENT OF THE HOLDERS, THE COMPANY
MAY
PERMANENTLY TERMINATE THE LIEN OF THE PLEDGE AGREEMENT OR ANY COLLATERAL
DOCUMENT AND ANY OTHER LIEN ON THE DEED OF TRUST COLLATERAL IN ACCORDANCE WITH
THE PROVISIONS OF THE INDENTURE.
ON
OR
BEFORE EACH PAYMENT DATE, THE COMPANY SHALL DELIVER OR CAUSE TO BE DELIVERED
TO
THE TRUSTEE OR THE PAYING AGENT AN AMOUNT IN U.S. DOLLARS SUFFICIENT TO PAY
THE
AMOUNT DUE ON SUCH PAYMENT DATE.
THE
SECURITIES WILL BE SUBJECT TO REDEMPTION UPON NOT LESS THAN 30 NOR MORE THAN
60
DAYS' PRIOR NOTICE BY FIRST-CLASS MAIL, AT ANY TIME, AS A WHOLE OR IN PART,
IN
AMOUNTS OF U.S.$1,000 OR AN INTEGRAL MULTIPLE OF U.S.$1,000, AT THE OPTION
OF
THE COMPANY, AT A REDEMPTION PRICE EQUAL TO THE GREATER OF: (1) 100% OF THE
PRINCIPAL AMOUNT OF THE SECURITIES, AND (2) AS DETERMINED BY THE QUOTATION
AGENT, THE SUM OF THE PRESENT VALUES OF THE REMAINING SCHEDULED PAYMENTS OF
PRINCIPAL AND INTEREST ON THE SECURITIES (NOT INCLUDING ANY PORTION OF THE
PAYMENTS OF INTEREST ACCRUED AS OF THE REDEMPTION DATE) DISCOUNTED TO THE
REDEMPTION DATE ON A SEMI-ANNUAL BASIS (ASSUMING A 360-DAY YEAR CONSISTING
OF
TWELVE 30-DAY MONTHS) AT THE ADJUSTED TREASURY RATE PLUS 50 BASIS POINTS, IN
EACH CASE PLUS ACCRUED INTEREST THEREON TO THE REDEMPTION DATE, ALL AS PROVIDED
IN THE INDENTURE.
The
Securities will also be subject to redemption as a whole, but not in part,
at
the option of the Company at any time, on not less than 30 nor more than 60
days' prior written notice, at 100% of the principal amount plus accrued
interest to the Redemption Date, in the event the Company has become or would
become obligated to pay, on the next date on which any amount would be payable
in respect of the Securities, any Additional Amounts as a result of certain
changes affecting Canadian withholding taxes.
In
the
case of any redemption of Securities, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders
of
record of such Securities, or one or more Predecessor Securities, at the close
of business on the relevant Record Date referred to on the face hereof.
Securities (or portions thereof) for whose redemption and payment provision
is
made in accordance with the Indenture shall cease to bear interest from and
after the Redemption Date.
In
the
event of redemption of this Security in part only, a replacement Security or
Securities for the unredeemed portion hereof shall be issued in the name of
the
Holder hereof upon the cancellation hereof.
30
If
an
Event of Default (other than an Event of Default resulting from a Change in
Control Triggering Event which is cured by the making and consummation of a
Change in Control Offer) shall occur and be continuing, the principal amount
of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
In
addition, it shall be an Event of Default under the Indenture if a Change in
Control Triggering Event occurs on or prior to the Maturity of the Securities.
The Securities may be accelerated following such an Event of Default as provided
in the Indenture unless the Company (or a third party) offers, within 20
Business Days after the occurrence of such Event of Default, to purchase the
Securities and purchases the Securities for the Change in Control Purchase
Price
in cash on the date that is 40 Business Days after the occurrence of the Change
in Control Triggering Event from a Holder who delivers and does not withdraw
a
Change in Control Purchase Notice. Holders have the right to withdraw any Change
in Control Purchase Notice by delivering to the Paying Agent a written notice
of
withdrawal in accordance with the terms and provisions of the
Indenture.
The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by
the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders under the Indenture at any time by the Company and
the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder
of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable on the Security Register of the
Company, upon surrender of this Security for registration of transfer at the
offices or agencies of the Company maintained for such purpose in The City
of
New York duly endorsed by, or accompanied by a written instrument of transfer
in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or its attorney duly authorized in writing, and thereupon
one
or more replacement Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
31
The
Securities are issuable only in registered form without coupons in denominations
of U.S.$1,000 and any integral multiple thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the
same.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes
or
other governmental charges payable in connection with any registration of
transfer or exchange.
Prior
to
the time of due presentment of this Security for registration of transfer,
the
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company,
the
Trustee nor any agent shall be affected by notice to the contrary.
All
terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION
205. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
TRUSTEE'S
CERTIFICATE OF AUTHENTICATION
JPMorgan
Chase Bank, as Trustee, certifies that this is one of the Securities referred
to
in the within-mentioned Indenture.
|
JPMORGAN
CHASE BANK
|
|
|
By:
|
|
|
Authorized
Officer
|
|
32
ARTICLE
THREE
THE
SECURITIES
SECTION
301. TITLE AND TERMS.
An
unlimited aggregate principal amount of Securities may be authenticated and
delivered under this Indenture (of which U.S.$750,000,000 is being issued,
authenticated and delivered the date hereof), including Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Sections 303, 304, 305, 306, 516, 908, 1108
or
1111.
The
Initial Securities shall be known and designated as the “6.375% Senior (Secured)
Notes due 2014” and the Exchange Securities shall be known and designated as the
“6.375% Exchange Senior (Secured) Notes due 2014”, in each case, of the Company.
The Stated Maturity of the Securities shall be March 1, 2014 and they shall
bear
interest at the rate of 6.375% per annum from February 20, 2004, or the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable on September 1, 2004, and semi-annually thereafter on March 1
and
September 1 in each year and at said Stated Maturity, until the principal
thereof is paid or duly provided for.
The
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose
in
The City of New York, or at such other office or agency of the Company as may
be
maintained for such purpose; provided, however, that, at the option of the
Company, interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Register;
provided further that all payments of the principal of (and premium, if any)
and
interest on Securities, the Holders of which have given wire transfer
instructions to the Company or the Paying Agent at least 10 Business Days prior
to the applicable payment date and hold at least U.S.$1,000,000 in principal
amount of Securities, will be required to be made by wire transfer of
immediately available funds to the accounts specified by such Holders in such
instructions. Any such wire transfer instructions received by the Company or
the
Paying Agent shall remain in effect until revoked by such Holder.
Notwithstanding the foregoing, the final payment of principal shall be payable
only upon surrender of the Security to the Paying Agent.
The
Securities shall be redeemable as provided in Article Eleven.
Additional
Securities ranking pari passu with the Securities issued on the date hereof
may
be created and issued from time to time by the Company without notice to or
consent of the Holders and shall be consolidated with and form a single series
with the Securities initially issued and shall have the same terms as to status,
redemption or otherwise as the Securities originally issued. Any Additional
Securities shall be issued with the benefit of an indenture supplemental to
this
Indenture.
SECTION
302. DENOMINATIONS.
The
Securities shall be issuable only in registered form without coupons and only
in
denominations of U.S.$1,000 and any integral multiple thereof.
33
SECTION
303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The
Securities shall be executed on behalf of the Company by any two of the
following officers: its Chairman, its Vice Chairman, its President, any Vice
Presidents or its Treasurer, under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature
of
any of these officers on the Securities may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding
that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at
the date of such Securities.
The
Trustee shall (upon Company Order) authenticate and deliver Securities for
original issue in an aggregate principal amount of up to U.S.$750,000,000,
provided that, if the Company shall issue any Additional Securities pursuant
to
Section 301, the Trustee shall authenticate and deliver such Additional
Securities upon delivery to the Trustee of a Company Order accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the original issue of
such
Additional Securities have been complied with.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed
by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such
Security has been duly authenticated and delivered hereunder.
In
case
the Company, pursuant to Article Eight, shall be amalgamated, consolidated
or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of substantially all of its properties and assets to any
Person, and the successor Person resulting from such amalgamation,
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any
of
the Securities authenticated or delivered prior to such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate (but which shall not affect the
rights or duties of the Trustee), but otherwise in substance of like tenor
as
the Securities surrendered for such exchange and of like principal amount;
and
the Trustee, upon Company Order of the successor Person, shall authenticate
and
deliver replacement Securities as specified in such request for the purpose
of
such exchange. If replacement Securities shall at any time be authenticated
and
delivered in any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of any Securities,
such successor Person, at the option of any Holder but without expense to such
Holder, shall provide for the exchange of all Securities at the time Outstanding
held by such Holder for Securities authenticated and delivered in such new
name.
34
SECTION
304. TEMPORARY SECURITIES.
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine (but which shall not affect the rights
or duties of the Trustee), as conclusively evidenced by their execution of
such
Securities.
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for such purpose pursuant to Section 1002, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and, upon Company Order, the Trustee
shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations evidencing the same
indebtedness as the temporary Securities so exchanged. Until so exchanged,
the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION
305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The
Company shall cause to be kept at one of its offices or agencies maintained
pursuant to Section 1002 a register (the register maintained in such office
and
in any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Said office or agency
is xxxxxx initially appointed “Security Registrar” for the purpose of
registering Securities and transfers of Securities as herein
provided.
Upon
surrender for registration of transfer of any Security at the office or agency
of the Company designated pursuant to Section 1002, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more replacement Securities of any authorized
denomination or denominations of a like aggregate principal amount.
Furthermore,
any Holder of a Global Security shall, by acceptance of such Global Security,
agree that transfers of beneficial interests in such Global Security may be
effected only through a book-entry system maintained by the Holder of such
Global Security (or its agent), and that ownership of a beneficial interest
in
the Security shall be required to be reflected in a book entry.
At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations of a like aggregate principal amount
upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange (including an exchange of Initial
Securities for Exchange Securities), the Company shall execute, and the Trustee
shall authenticate and deliver, the replacement Securities which the Holder
making the exchange is entitled to receive; provided that no exchange of Initial
Securities for Exchange Securities shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission
and
the Initial Securities to be exchanged for the Exchange Securities shall be
cancelled by the Trustee.
35
All
Securities issued upon any registration of transfer or exchange of Securities
under the Indenture shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or
exchange.
Every
Security presented or surrendered for registration of transfer, or for exchange
or redemption, shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in
form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or its attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes
or
other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Sections 303, 304, 516, 908, 1108 or 1111 not involving any transfer
or pursuant to an Exchange Offer.
The
Company shall not be required (a) to issue replacement Securities or register
the transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
the
Securities under Section 1105 and ending at the close of business on the day
of
such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of
Securities being redeemed in part.
SECTION
306. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The
Global Securities initially shall (i) be registered in the name of the
Depositary for such Global Securities or the nominee of such Depositary, (ii)
be
deposited with the Trustee, as custodian for such Depositary and (iii) bear
legends as set forth in Section 202.
The
Depositary or its nominee shall be the Holder of the Global Securities, and
owners of beneficial interests in the Securities represented by the Global
Securities shall hold such interests pursuant to the procedures and practices
of
the Depositary. Any such owner's beneficial ownership of any such Securities
will be shown only on, and the transfer of such ownership interest shall be
effected only through, records maintained by the Depositary or its nominee.
Investors in the Regulation S Global Security may hold their interests in the
Regulation S Global Security through Euroclear or Clearstream, Luxembourg,
if
they are participants in such systems, or indirectly through organizations
which
are participants in such systems. After the expiration of the Restricted Period
(but not earlier), investors in the Regulation S Global Security may also hold
such interests through organizations other than Euroclear or Clearstream,
Luxembourg that are participants in the Depositary's system. Euroclear and
Clearstream, Luxembourg will hold interests in the Regulation S Global Security
on behalf of their participants through customers' securities accounts in their
respective names on the books of their respective depositories, which, in turn,
will hold such interests in the Regulation S Global Security in customer's
securities accounts in the depositories' names on the books of the Depositary.
All interests in a Global Security, including those held through Euroclear
or
Clearstream, Luxembourg, may be subject to the procedures and requirements
of
the Depositary. Those interests held through Euroclear and Clearstream,
Luxembourg will be subject to the procedures and requirements of such systems.
As used herein, the term “Restricted Period” means the period of 40 consecutive
days beginning on and including the first day after the later of (i) the day
that Citigroup Global Markets Inc. advises the Company and the Trustee in
writing of the day on which the Securities are first offered to persons other
than distributors (as defined in Regulation S) and (ii) the original issue
date
of the Securities.
36
(b) Transfers
of any Global Security shall be limited to transfers of such Global Security
in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in any Global Security may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 307. Unless (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Securities or ceases to be a clearing agency registered under the Exchange
Act
or announces an intention permanently to cease business or does in fact do
so
and a successor depositary is not appointed by the Company within 90 days of
such notice, (ii) the Company, at its option, notifies the Trustee that it
elects to cause the exchange of the Global Securities for Securities in
certificated form, (iii) an Event of Default has occurred and is continuing
with
respect to a Global Security or (iv) in the case of a Global Security held
for
the account of Euroclear or Clearstream, Luxembourg, Euroclear or Clearstream,
Luxembourg, as the case may be, is closed for business for 14 continuous
Business Days or announces an intention to cease or permanently ceases business,
owners of beneficial interests in a Regulation S Global Security will not be
entitled to have any portions of such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of Securities
in
definitive form and will not be considered the owners or holders of the Global
Security.
(c) Securities
issued in exchange for a Global Security or any portion thereof pursuant to
the
last sentence of subsection (b) of this Section shall be issued in definitive,
fully registered form, without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security or portion thereof to
be
so exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear any legends
required hereunder. Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Security Registrar. With regard
to any Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the Trustee,
upon
Company Order, shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an authorized representative
thereof. In the event of the occurrence of any of the events specified in the
last sentence of subsection (b) of this Section 306, the Company will promptly
make available to the Trustee a reasonable supply of certificated Securities
in
definitive form.
37
(d) Except
as otherwise set forth in this Indenture or a Global Security, owners of
beneficial interests in the Securities evidenced by a Global Security will
not
be entitled to any rights under this Indenture with respect to such Global
Security, and the Depositary or its nominee may be treated by the Company,
the
Trustee and any agent of the Company or the Trustee as the owner and Holder
of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any such agent from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or its nominee or impair, as between the Depositary
or its nominee and such owners of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Depositary
or
its nominee as Holder of any Security.
SECTION
307. SPECIAL TRANSFER PROVISIONS.
Unless
and until (i) an Initial Security is sold under an effective Registration
Statement, or (ii) an Initial Security is exchanged for an Exchange Security
in
connection with an effective Registration Statement, pursuant to the
Registration Rights Agreement, the following provisions shall
apply:
(a) Restricted
Global Security to Regulation S Global Security. If, at any time, an owner
of a
beneficial interest in a Restricted Global Security deposited with the Trustee,
as custodian for the Depositary, wishes to transfer its interest in such
Restricted Global Security to a Person who is required or permitted to take
delivery thereof in the form of an interest in a Regulation S Global Security,
such owner shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a Regulation
S Global Security as provided in this Section 307(a). Upon receipt by the
Trustee of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or cause to
be
credited a beneficial interest in the Regulation S Global Security in an amount
equal to the beneficial interest in the applicable Restricted Global Security
to
be exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary and the Euroclear or Clearstream, Luxembourg account (if applicable)
to be credited with such increase, and (3) a certificate substantially in the
form of Exhibit D hereto given by the owner of such beneficial interest, the
Trustee, as Security Registrar, shall instruct the Depositary to reduce or
cause
to be reduced the aggregate principal amount of the applicable Restricted Global
Security and to increase or cause to be increased the aggregate principal amount
of the applicable Regulation S Global Security by the principal amount of the
beneficial interest in the Restricted Global Security to be exchanged, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security equal
to
the reduction in the aggregate principal amount of the applicable Restricted
Global Security, and to debit, or cause to be debited, from the account of
the
Person making such exchange or transfer the beneficial interest in the
Restricted Global Security that is being exchanged or transferred.
38
(b) Regulation
S Global Security to Restricted Global Security. If, at any time, an owner
of a
beneficial interest in a Regulation S Global Security deposited with the Trustee
as custodian for the Depositary wishes to transfer its interest in such
Regulation S Global Security to a Person who is required or permitted to take
delivery thereof in the form of an interest in a Restricted Global Security,
such owner shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a Restricted
Global Security, as provided in this Section 307(b). Upon receipt by the Trustee
of (1) written instructions given in accordance with the Applicable Procedures
from an Agent Member, directing the Trustee, as Security Registrar, to credit
or
cause to be credited a beneficial interest in the Restricted Global Security
equal to the beneficial interest in the Regulation S Global Security to be
exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary to be credited with such increase and (3) if such transfer is
requested prior to the expiration of the Restricted Period, a certificate in
the
form of Exhibit E attached hereto given by the owner of such beneficial
interest, the Trustee, as Security Registrar, shall instruct the Depositary
to
reduce or cause to be reduced the aggregate principal amount of such Regulation
S Global Security and to increase or cause to be increased the aggregate
principal amount of the applicable Restricted Global Security by the principal
amount of the beneficial interest in the Regulation S Global Security to be
exchanged, and the Trustee, as Security Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the applicable Restricted Global Security equal to the reduction
in
the aggregate principal amount of such Regulation S Global Security and to
debit
or cause to be debited from the account of the Person making such transfer
the
beneficial interest in the Regulation S Global Security that is being
transferred. After the expiration of the Restricted Period, the certificate
described in clause (3) above shall no longer be required to effect transfers
pursuant to this Section 307(b).
(c) Restricted
Global Security to Regulation S Global Security After Two Years. If the holder
of a beneficial interest in a Restricted Global Security wishes at any time
after February 20, 2006 to (A) transfer such interest to a Person who wishes
to
take delivery thereof in the form of a beneficial interest in the Regulation
S
Global Security or (B) to exchange such interest for a beneficial interest
in a
Regulation S Global Security, such transfer or exchange may be effected, subject
to the Applicable Procedures, only in accordance with this Section 307(c).
Upon
receipt by the Trustee of (1) in the case of a transfer or exchange of an
interest in the Restricted Global Security, written instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest
in
the Restricted Global Security to be so transferred or exchanged, (2) a written
order given in accordance with the Applicable Procedures containing information
regarding the participant account of the Depositary (and, if applicable, the
Euroclear or Clearstream, Luxembourg account, as the case may be) to be credited
with such beneficial interest and (3) a certificate substantially in the form
of
Exhibit F hereto given by the holder of such beneficial interest, the Trustee,
as Security Registrar, shall instruct the Depositary to reduce the principal
amount of the Restricted Global Security, and to increase the principal amount
of the Regulation S Global Security, by the principal amount of the beneficial
interest in the Restricted Global Security to be so transferred or exchanged,
and to credit or cause to be credited to the account of the Person specified
in
such instructions a beneficial interest in the Regulation S Global Security
having a principal amount equal to the amount by which the principal amount
of
the Restricted Global Security was reduced upon such transfer or
exchange.
39
(d) Private
Placement Legend. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The
Security Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 306 or this Section 307. The Company
shall have the right to inspect and make copies of all such letters, notices
or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Security Registrar.
SECTION
308. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If
(a)
any mutilated Security is surrendered to the Trustee, or (b) the Company and
the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft
of any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a replacement Security of like tenor and principal amount, bearing
a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is
about to become due and payable, the Company in its discretion may, instead
of
issuing a replacement Security, pay such Security.
Upon
the
issuance of any replacement Securities under this Section, the Company may
require the payment of a sum sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental charges that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
the
Trustee) connected therewith.
40
Every
replacement Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute a contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at
any
time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION
309. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of
business on the Regular Record Date for such interest.
Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date and interest on such defaulted
interest at the interest rate borne by the Securities, to the extent lawful
(such defaulted interest and interest thereon herein collectively called
“Defaulted Interest”), shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Subsection (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment
of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment,
and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as
in this Subsection provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15
days and not less than 10 days prior to the date of the proposed payment and
not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder at
its
address as it appears in the Security Register, not less than 10 days prior
to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following Subsection
(b).
41
(b) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Subsection, such payment shall be deemed practicable
by
the Trustee.
Subject
to the foregoing provisions of this Section, each Security delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu of
any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION
310. PERSONS DEEMED OWNERS.
Prior
to
the time of due presentment for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 309) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to
the
contrary.
SECTION
311. CANCELLATION.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by the Trustee. The
Company shall deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be destroyed and certification of their destruction delivered to the Company
unless by a Company Order the Company shall direct that cancelled Securities
be
returned to it.
SECTION
312. COMPUTATION OF INTEREST.
Interest
on the Securities shall be computed on the basis of a year of twelve 30-day
months.
ARTICLE
FOUR
DEFEASANCE
AND COVENANT DEFEASANCE
SECTION
401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
42
The
Company may, at its option by Board Resolution, at any time, with respect to
the
Securities, elect to have either Section 402 or Section 403 be applied to all
Outstanding Securities upon compliance with the conditions set forth below
in
this Article Four.
SECTION
402. DEFEASANCE AND DISCHARGE.
Upon
the
Company's exercise under Section 401 of the option applicable to this Section
402, the Company shall be deemed to have been discharged from its obligations
with respect to all Outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, “defeasance”). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 405
and the other Sections of this Indenture referred to in (A), (B), and (C) below,
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights
of
Holders of Outstanding Securities to receive solely from the trust fund
described in Section 404 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003, 1012 (for
purposes of applying Section 1012, if the Trustee (or any other qualifying
trustee referred to in Section 404(1)) is required by law or by the
interpretation or administration thereof to withhold or deduct any amount for
or
on account of Taxes (as defined in Section 1012) from any payment made from
the
trust fund described in Section 404 under or with respect to the Securities,
such payment shall be deemed to have been made by the Company and the Company
shall be deemed to have been so required to withhold or deduct) and 1013, (C)
the Company's right of redemption pursuant to Section 1101(b), provided that
either (i) the change or amendment referred to therein occurs after defeasance
is exercised by the Company in accordance with Section 404 or (ii) the Company
is, immediately before the defeasance, entitled to redeem the Securities
pursuant to Section 1101(b), in which case the Company may redeem the Securities
in accordance with Article Eleven by complying with such Article and depositing
with the Trustee, in accordance with Section 1106, an amount of money
sufficient, together with all amounts held in trust pursuant to Section 404(1),
to pay the Redemption Price of all the Securities to be redeemed, (D) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the
Company's obligations in connection therewith, including the Company's
obligations under Section 607 and (E) this Article Four. Subject to compliance
with this Article Four, the Company may exercise its option under this Section
402 notwithstanding the prior exercise of its option under Section 403 with
respect to the Securities.
SECTION
403. COVENANT DEFEASANCE.
Upon
the
Company's exercise under Section 401 of the option applicable to this Section
403, the Company shall be released from its obligations under any covenant
contained in Articles Eight and Twelve and in Sections 1004 through 1011 with
respect to the Outstanding Securities on and after the date the conditions
set
forth below are satisfied (hereinafter, “covenant defeasance”), and the
Securities shall thereafter be deemed to be not “Outstanding” for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “Outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed Outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities, the Company may omit to comply
with
and shall have no liability in respect of any term, condition or limitation
set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501(c), but, except as specified above, the remainder of this
Indenture (including Section 607 hereof) and such Securities shall be unaffected
thereby. In addition, upon the Company's exercise under Section 401 of the
option applicable to Section 403, Section 501(c) through (e) and Section 501(i)
through (l) shall not constitute Events of Default.
43
SECTION
404. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The
following shall be the conditions to application of either Section 402 or
Section 403 to the Outstanding Securities:
(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609 who
shall
agree to comply with the provisions of this Article Four applicable to it)
as
trust funds, in trust, for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of
the Holders of such Securities, (A) cash in U.S. Dollars in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of principal
and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in U.S. Dollars
in
an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and
discharge, the principal of (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of interest;
provided that the Trustee (or other qualifying trustee) shall have been
irrevocably instructed by the Company to apply such money or the proceeds of
such U.S. Government Obligations to said payments with respect to the
Securities. Before such a deposit, the Company may give the Trustee, in
accordance with Section 1103 hereof, a notice of its election to redeem all
of
the Outstanding Securities at a future date in accordance with Article Eleven
hereof, which notice shall be irrevocable. For this purpose, “U.S. Government
Obligations” means securities that are (x) direct obligations of the United
States of America for the timely payment of which its full faith and credit
is
pledged or (y) obligations of a Person controlled or supervised by and acting
as
an agency or instrumentality of the United States of America the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation
by
the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder
of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the
holder of such depository receipt from any amount received by the custodian
in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
44
(2) No
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit or, insofar as Subsection 501(f), (g) or (h) is concerned, at
any
time during the period ending on the 91st day after the date of such deposit
(it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Neither
the Company nor any Restricted Subsidiary is an “insolvent person” within the
meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such
deposit or at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(4) Such
defeasance or covenant defeasance shall not result in a breach or violation
of,
or constitute a default under, this Indenture or any other material agreement
or
instrument to which the Company is a party or by which it is bound.
(5) In
the case of an election under Section 402, the Company shall have delivered
to
the Trustee an Opinion of Counsel in the United States stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since February 17, 2004, there has been a change in
the applicable United States federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders
of
the Outstanding Securities will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance and will
be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had
not occurred.
(6) In
the case of an election under Section 403, the Company shall have delivered
to
the Trustee an Opinion of Counsel in the United States to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or loss
for United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if
such covenant defeasance had not occurred.
45
(7) The
Company shall have delivered to the Trustee an Opinion of Counsel in Canada
to
the effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for Canadian federal or provincial income tax or other
tax
(including withholding tax) purposes as a result of such defeasance or covenant
defeasance, as applicable, and will be subject to Canadian federal and
provincial income tax and other tax (including withholding tax) on the same
amounts, in the same manner and at the same times as would have been the case
if
such defeasance or covenant defeasance, as applicable, had not occurred. This
condition may not be waived by any Holder or the Trustee.
(8) The
Company shall have delivered to the Trustee an Officers' Certificate stating
that the deposit made by the Company pursuant to its election under Section
402
or Section 403 was not made by the Company with the intent of preferring the
Holders over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or
others.
(9) The
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel in the United States, each stating that all conditions
precedent relating to either the defeasance under Section 402 or the covenant
defeasance under Section 403 (as the case may be) have been complied
with.
SECTION
405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject
to the provisions of the last paragraph of Section 1003, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
405, the “Trustee”) pursuant to Section 404 in respect of the Outstanding
Securities shall be held in trust and applied by the Trustee, in accordance
with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of
all sums due and to become due thereon in respect of principal (and premium,
if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law.
The
Company shall pay and indemnify the Trustee on an after-tax basis against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 404 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities.
Anything
in this Article Four to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may
be the opinion delivered under Section 404(1)), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance.
46
SECTION
406. REINSTATEMENT.
If
the
Trustee or any Paying Agent is unable to apply any money in accordance with
Section 405, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section
402
or 403, as the case may be, until such time as the Trustee or Paying Agent
is
permitted to apply all such money in accordance with Section 405; provided,
however, that, if the Company makes any payment of principal of (or premium,
if
any) or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE
FIVE
REMEDIES
SECTION
501. EVENTS OF DEFAULT.
“Event
of
Default”, wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default
in the payment of the principal of (or premium, if any, on) any Security at
its
Maturity; or
(b) default
in the payment of any interest or any Additional Amounts on any Security when
it
becomes due and payable, and continuance of such default for a period of 30
days; or
(c) default
in the performance, or breach, of any covenant or warranty of the Company or
of
any Restricted Subsidiary in this Indenture or, prior to the Release Date,
any
Collateral Document (other than a default in the performance, or breach, of
a
covenant or warranty which is specifically dealt with elsewhere in this
Section), and continuance of such default or breach for a period of 60 days
after there has been given to the Company by the Trustee or to the Company
and
the Trustee by the Holders of at least 25% in aggregate principal amount of
the
Outstanding Securities a written notice specifying such default or breach and
stating that such notice is a “Notice of Default” hereunder; or
(d) (i)
there shall have occurred one or more defaults of the Company or any Restricted
Subsidiary in the payment of the principal of or premium on any Debt aggregating
Cdn$25,000,000 or more, when the same becomes due and payable at the stated
maturity thereof, and such default or defaults shall continue after any
applicable grace period and have not been cured or waived or (ii) there shall
occur and be continuing any acceleration of the maturity of any Debt aggregating
Cdn$25,000,000 or more and, in any case referred to in the foregoing clause
(i)
or clause (ii), the Debt that is the subject of such non-payment has not been
discharged, or such non-payment or acceleration has not been rescinded or
annulled, within 10 days of such non-payment or acceleration; or
47
(e) any
judgments or orders aggregating Cdn$25,000,000 or more rendered against the
Company or any Restricted Subsidiary remain unsatisfied and unstayed for 60
consecutive days; or
(f) the
Company or any Restricted Subsidiary pursuant to or under or within the meaning
of any Bankruptcy Law:
(1) commences
a voluntary case or proceeding;
(2) consents
to the entry of a Bankruptcy Order in an involuntary case or proceeding or
the
commencement of any case against it;
(3) consents
to the appointment of a Custodian of it or for any substantial part of its
property;
(4) makes
a general assignment for the benefit of its creditors or files a proposal or
other scheme of arrangement involving the rescheduling or composition of its
indebtedness;
(5) files
a petition in bankruptcy or an answer or consent seeking reorganization or
relief; or
(6) consents
to the filing of such petition in bankruptcy or the appointment of or taking
possession by a Custodian; or
(g) a
court of competent jurisdiction in any involuntary case or proceeding enters
a
Bankruptcy Order against the Company or any Restricted Subsidiary, and such
Bankruptcy Order remains unstayed and in effect for 15 consecutive days;
or
(h) a
Custodian shall be appointed out of court with respect to the Company or any
Restricted Subsidiary, or with respect to all or any substantial part of the
property of the Company or any Restricted Subsidiary, or any encumbrancer shall
take possession of all or any substantial part of the property of the Company
or
any Restricted Subsidiary; or
(i) prior
to the Release Date, any Collateral Document shall, at any time, cease to be
in
full force and effect for any reason (other than pursuant to this Indenture
or
upon the satisfaction in full of all Indenture Obligations and discharge of
this
Indenture) or shall be declared invalid or unenforceable; or if the Company
or
any Restricted Subsidiary shall assert, in any pleading filed in a court of
competent jurisdiction, that any Collateral Document is invalid or
unenforceable; or
48
(j) prior
to the Release Date, the Deed Trustee shall commence proceedings or take any
action, or shall have been directed by one or more holders of Deed of Trust
Bonds to commence proceedings or take any action, to realize upon the Lien
Hereof (as defined in the Deed of Trust as in effect on the date hereof);
or
(k) a
Change in Control Triggering Event shall occur; or
(l) prior
to the Release Date, the whole or substantially the whole of the Specifically
Mortgaged Property or of the Mortgaged Property (as such terms are defined
in
the Deed of Trust) shall be taken by exercise of any power referred to in
Section 4.4 of the Deed of Trust or shall be sold or otherwise disposed of
in
anticipation thereof within the meaning of subsection 4.10(2) of the Deed of
Trust.
“Bankruptcy
Law” means the Bankruptcy and Insolvency Act (Canada) or any other Canadian
federal or provincial law or the law of any other jurisdiction relating to
bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors. “Custodian” means any receiver, interim receiver, receiver and manager,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law or any other person with like powers. “Bankruptcy Order” means
any court order made in a proceeding pursuant to or within the meaning of any
Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or
providing for liquidation, winding up, dissolution or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
Under
this Indenture, a “Change in Control Triggering Event” is deemed to occur upon
both a Change in Control and a Rating Decline with respect to the
Securities.
A
“Change
in Control” means (i) any transaction (including an amalgamation, merger or
consolidation or the sale of Capital Stock of the Company) the result of which
is that any Person or Group (as defined in Rule 13d-5 of the Exchange Act),
other than Members of the Rogers Family or RCI or a Person or Group controlled
by one or more of the Members of the Rogers Family or RCI, acquires, directly
or
indirectly, more than 50% of the total voting power of all classes of Voting
Shares of the Company or (ii) any transaction (including an amalgamation, merger
or consolidation or the sale of Capital Stock of the Company) the result of
which is that any Person or Group (as defined in Rule 13d-5 of the Exchange
Act), other than (A) Members of the Rogers Family or RCI or a Person or Group
controlled by Members of the Rogers Family or RCI or (B) for so long as the
only
primary beneficiaries of a Qualifying Trust established under the last will
and
testament of Xxxxxx X. Xxxxxx are one or more persons referred to in clause
(ii)
of the definition of “Member of the Rogers Family” or the spouse, widow or
widower, for the time being and from time to time, of any person described
in
subclause (ii)(c), (d) or (e) of the definition of “Member of the Rogers
Family”, any Person designated by the trustees of such Qualifying Trust to
exercise voting rights attaching to the shares held by such trustees, has
elected to the Board of Directors such number of its or their nominees so that
such nominees so elected shall constitute a majority of the number of the
directors comprising the Board of Directors; provided that to the extent that
one or more regulatory approvals are required for any of the transactions or
circumstances described in clause (i) or (ii) above to become effective under
applicable law, such transactions or circumstances shall be deemed to have
occurred at the time such approvals have been obtained and become effective
under applicable law.
49
“Member
of the Rogers Family” means (i) Xxxxxx X. Xxxxxx (who was born on May 27, 1933,
such individual being hereinafter referred to as “Xxxxxx X. Xxxxxx”); (ii) such
of the following persons as are living at the date of this Indenture or are
born
after the date of this Indenture and before the Perpetuity Date: (a) the spouse,
for the time being and from time to time, of Xxxxxx X. Xxxxxx; (b) after the
death of Xxxxxx X. Xxxxxx, the widow, if any, of Xxxxxx X. Xxxxxx; (c) the
issue
of Xxxxxx X. Xxxxxx; (d) any half-sister of Xxxxxx X. Xxxxxx and the issue
of
any such half-sister; (e) individuals adopted by Xxxxxx X. Xxxxxx or any of
the
issue of Xxxxxx X. Xxxxxx, provided that such individuals have not attained
the
age of majority at the date of such adoption, together with the issue of any
such adopted individuals; provided that if any person is born out of wedlock
he
shall be deemed not to be the issue of another person for the purposes hereof
unless and until he is proven or acknowledged to be the issue of such person
and; (iii) a Qualifying Trust, but only to the extent of its Family Percentage
Holding of voting securities or rights to control or direct the voting
securities of the Company at the time of the determination.
“Qualifying
Trust” means a trust (whether testamentary or inter vivos) any beneficiary of
which is a person referred to in clause (i) or (ii) of the definition of “Member
of the Rogers Family” or the spouse, widow or widower, for the time being and
from time to time, of any person described in subclause (ii)(c), (d) or (e)
of
the definition of “Member of the Rogers Family” (provided that such spouse,
widow or widower is living at the date of this Indenture or is born after the
date of this Indenture and before the Perpetuity Date) (all such persons being
hereafter referred to as “Qualified Persons”).
“Family
Percentage Holding” means the aggregate percentage of the securities held by a
Qualifying Trust representing, directly or indirectly, an interest in voting
securities or rights to control or direct the voting securities of the Company,
that it is reasonable, under all the circumstances, to regard as being held
beneficially for Qualified Persons (or any class consisting of two or more
Qualified Persons); provided always that in calculating the Family Percentage
Holding (A) in respect of any power of appointment or discretionary trust
capable of being exercised in favor of any of the Qualified Persons such trust
or power shall be deemed to have been exercised in favor of Qualified Persons
until such trust or power has been otherwise exercised; (B) where any
beneficiary of a Qualifying Trust has assigned, transferred or conveyed, in
any
manner whatsoever, his or her beneficial interest to another person, then,
for
the purpose of determining the Family Percentage Holding in respect of such
Qualifying Trust, the person to whom such interest has been assigned,
transferred or conveyed shall be regarded as the only person beneficially
interested in the Qualifying Trust in respect of such interest but in the case
where the interest is so assigned, transferred or conveyed is an interest in
a
discretionary trust or is an interest which may arise as a result of the
exercise in favor of the assignor of a discretionary power of appointment and
such discretionary trust or power of appointment is also capable of being
exercised in favor of persons described in clause (i) or (ii) of the definition
of “Member of the Rogers Family”, such discretionary trust or power shall be
deemed to have been so exercised in favor of Qualified Persons until it has
in
fact been exercised; and (C) the interest of any Permitted Residuary Beneficiary
shall be ignored until its interest has indefeasibly vested.
50
“Permitted
Residuary Beneficiary” means any person who is a beneficiary of a Qualifying
Trust and, under the terms of the Qualifying Trust, is entitled to distributions
out of the capital of such Qualifying Trust only after the death of all of
the
Qualified Persons who are beneficiaries of such Qualifying Trust.
“Perpetuity
Date” means the date that is 21 years, less one day, from the date of the death
of the last survivor of the individuals described in clause (i) or subclause
(ii)(a), (b), (c), (d) or (e) of the definition of “Member of the Rogers
Family”, who are living at the date of this Indenture.
SECTION
502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If
(i) an
Event of Default (other than an Event of Default specified in Section 501(f),
501(g), 501(h) or 501(k)) occurs and is continuing, or (ii) an Event of Default
specified in Section 501(k) occurs and is continuing and the Company (or a
third
party) fails in any material respect to comply with any of the provisions of
Section 516, then and in every such case the Trustee or the Holders of not
less
than 25% in principal amount of the Outstanding Securities may declare the
principal of all the Securities to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any
such declaration such principal shall become immediately due and payable. If
an
Event of Default specified in Section 501(f), 501(g) or 501(h) occurs and is
continuing, then the principal of all the Securities shall ipso facto become
and
be immediately due and payable without any declaration or other act on the
part
of the Trustee or any Holder. The Company will deliver to the Trustee, within
10
days after the occurrence thereof, notice of any acceleration or default in
payment at maturity of Debt referred to in Section 501(d).
At
any
time after a declaration of acceleration has been made and before a judgment
or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities, by written notice to the Company and
the
Trustee, may rescind and annul such declaration and its consequences
if:
(a) the
Company has paid or deposited, or caused to be paid or deposited, with the
Trustee a sum sufficient to pay
(1) all
overdue interest on all Securities,
(2) the
principal of (and premium, if any, on) any Securities that have become due
otherwise than by such declaration of acceleration and interest thereon at
the
rate borne by the Securities,
(3) to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities, and
(4) all
sums paid or advanced by the Trustee hereunder, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and
any other amounts due to the Trustee pursuant to Section 607; and
51
(b) all
Events of Default, other than the non-payment of principal of, premium, if
any,
or interest on the Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section
513.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Notwithstanding
the preceding paragraph, in the event of a declaration of acceleration in
respect of the Securities because an Event of Default specified in Section
501(d) shall have occurred and be continuing, such declaration of acceleration
shall be automatically annulled if the Debt that is the subject of such Event
of
Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Debt, and written notice of
such
discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such Debt or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Securities, and no other Event
of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
SECTION
503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The
Company covenants that if:
(a) default
is made in the payment of any interest or Additional Amounts on any Security
when such interest or Additional Amounts becomes due and payable and such
default continues for a period of 30 days, or
(b) default
is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest
upon
the overdue principal (and premium, if any) and, to the extent that payment
of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Trustee, its agents and counsel.
If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
52
If
an
Event of Default occurs and is continuing, the Trustee may in its discretion
(i)
proceed to protect and enforce its rights and the rights of the Holders under
this Indenture and the Pledge Agreement by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
such
rights, including, without limitation, demanding payment of the Trust Bond
and
exercising any rights or powers conferred on the Trustee, as the holder of
the
Trust Bond, under the Pledge Agreement and the Deed of Trust, or (ii) make
requests of, give directions to, or make demands of, the Deed Trustee (whether
by the giving of a Bondholders' Direction, participation in the giving or
adoption of a Bondholders' Resolution or otherwise pursuant to the Collateral
Documents) to proceed to protect and enforce the rights of the Deed Trustee,
the
Trustee and the Deed of Trust Bondholders under the Collateral Documents by
such
appropriate private or judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in the Collateral Documents or in
aid
of the exercise of any power granted therein, or to enforce any other proper
remedy, including appointment of a receiver for the Deed of Trust Collateral
and
foreclosure, realization and sale of Deed of Trust Collateral pursuant to the
terms of the Collateral Documents. The Trustee shall be entitled to sue and
recover judgment as aforesaid or make request as aforesaid to the Deed Trustee
to sue to enforce any Lien of the Collateral Documents, in either case, either
before, after or during the pendency of any other proceeding for the enforcement
of any Lien of the Collateral Documents, and the right of the Trustee or the
Deed Trustee to recover such judgment shall not be affected by any sale under
any of the Collateral Documents or by the exercise of any right, power or remedy
for the enforcement of the provisions of any of the Collateral Documents, or
the
foreclosure or enforcement of any Lien of the Collateral Documents. No recovery
of any such judgment upon any property of the Company shall affect or impair
the
Lien on the Deed of Trust Collateral or any rights, powers or remedies of the
Trustee or the Holders.
SECTION
504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then
be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due to the Trustee pursuant to Section 607) and of the Holders
allowed in such judicial proceeding, and
(b) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for
the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
607.
53
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any proposal, plan of
reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or
to
authorize the Trustee to vote in respect of the claim of any Holder in any
such
proceeding.
SECTION
505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee shall be brought in its own name
and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due to the Trustee pursuant to Section 607, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION
506. APPLICATION OF MONEY COLLECTED.
Any
money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
FIRST:
To
the payment of all amounts due the Trustee under Section 607;
SECOND:
To the payment of the amounts then due and unpaid upon the Securities for
principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest; and
THIRD: The
balance, if any, to the Company.
SECTION
507. LIMITATION ON SUITS.
No
Holder
of any Securities shall have any right to institute any proceeding, judicial
or
otherwise, with respect to this Indenture, any Collateral Document or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
54
(b) the
Holders of not less than 25% in principal amount of the Outstanding Securities
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount
of
the Outstanding Securities;
it
being
understood and intended that no one or more Holders shall have any right in
any
manner whatever by virtue of, or by availing of, any provision of this Indenture
or any Collateral Document to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any
other Holders or to enforce any right under this Indenture or the Pledge
Agreement except in the manner provided in this Indenture or the Pledge
Agreement and for the equal and ratable benefit of all the Holders.
SECTION
508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding
any other provision in this Indenture and any Collateral Document, the Holder
of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 309) interest and any Additional Amounts on such Security on the
respective due dates expressed in such Security (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION
509. RESTORATION OF RIGHTS AND REMEDIES.
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION
510. RIGHTS AND REMEDIES CUMULATIVE.
Except
as
provided in Section 308, no right or remedy herein conferred upon or reserved
to
the Trustee or to the Holders is intended to be exclusive of any other right
or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or
now or hereafter existing at law
or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
55
SECTION
511. DELAY OR OMISSION NOT WAIVER.
No
delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION
512. CONTROL BY HOLDERS.
The
Holders of a majority in principal amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, including, without limitation, powers conferred on
it
by the Pledge Agreement or the Deed of Trust, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture
or expose the Trustee to personal liability, and
(b) subject
to the provisions of the Trust Indenture Act, the Trustee may take any other
action deemed proper by it which is not inconsistent with such
direction.
SECTION
513. WAIVER OF PAST DEFAULTS.
The
Holders of a majority in principal amount of the Outstanding Securities may
on
behalf of the Holders of all the Securities waive any past default hereunder
and
its consequences, except a default
(a) in
the payment of the principal of (or premium, if any) or interest on any
Security, or
(b) arising
from a Change in Control Triggering Event, or
(c) in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon
any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or
impair any right consequent thereon.
56
SECTION
514. UNDERTAKING FOR COSTS.
All
parties to this Indenture agree, and each Holder of any Security by its
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment
of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case
of
redemption, on or after the Redemption Date).
SECTION
515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
SECTION
516. CHANGE IN CONTROL OFFER.
(a) The
Securities may not be accelerated pursuant to Section 502 following an Event
of
Default under Section 501(k) and such Event of Default shall be cured if the
Company complies with the provisions of this Section 516. If the Company elects
to cure such Event of Default, within 20 Business Days of the occurrence of
an
Event of Default under Section 501(k), (i) the Company shall notify the Trustee
in writing of the occurrence of the Change in Control Triggering Event and
shall
make an offer to purchase (the “Change in Control Offer”) the Securities at a
purchase price equal to 101% of the principal amount thereof plus any accrued
and unpaid interest thereon to the Change in Control Purchase Date (as
hereinafter defined) (the “Change in Control Purchase Price”) on the date that
is 40 Business Days after the occurrence of the Change in Control Triggering
Event (the “Change in Control Purchase Date”), (ii) the Trustee shall mail a
copy of the Change in Control Offer to each Holder and (iii) the Company shall
cause a notice of the Change in Control Offer to be sent at least once to the
Dow Xxxxx News Service or similar business news service in the United States
and
Canada News Wire Ltd. service or similar news service in Canada. The Change
in
Control Offer shall remain open from the time such offer is made until the
Change in Control Purchase Date. The Trustee shall be under no obligation to
ascertain the occurrence of a Change in Control Triggering Event or to give
notice with respect thereto other than as provided above upon receipt of a
Change in Control Offer from the Company. The Trustee may conclusively assume,
in the absence of receipt of a Change in Control Offer from the Company, that
no
Change in Control Triggering Event has occurred. The Change in Control Offer
shall include a form of Change in Control Purchase Notice to be completed by
the
Holder and shall state:
57
(1) the
events causing a Change in Control Triggering Event and the date such Change
in
Control Triggering Event is deemed to have occurred;
(2) that
the Change in Control Offer is being made pursuant to this Section 516(a) and
that all Securities properly tendered pursuant to the Change in Control Offer
will be accepted for payment;
(3) the
date by which the Change in Control Purchase Notice pursuant to this Section
516
must be given;
(4) the
Change in Control Purchase Date;
(5) the
Change in Control Purchase Price;
(6) the
names and addresses of the Paying Agent and the offices or agencies referred
to
in Section 1002;
(7) that
Securities must be surrendered to the Paying Agent at the office of the Paying
Agent or to an office or agency referred to in Section 1002 to collect
payment;
(8) that
the Change in Control Purchase Price for any Security as to which a Change
in
Control Purchase Notice has been duly given and not withdrawn will be paid
promptly upon the later of the first Business Day following the Change in
Control Purchase Date and the time of surrender of such Security as described
in
clause (7) above;
(9) the
procedures the Holder must follow to accept the Change in Control Offer;
and
(10) the
procedures for withdrawing a Change in Control Purchase Notice.
(b) A
Holder may accept a Change in Control Offer by delivering to the Paying Agent
at
the office of the Paying Agent or to an office or agency referred to in Section
1002 a written notice (a “Change in Control Purchase Notice”) at any time prior
to the close of business on the Change in Control Purchase Date,
stating:
(1) that
such Holder elects to have a Security purchased pursuant to the Change in
Control Offer;
58
(2) the
principal amount of the Security that the Holder elects to have purchased by
the
Company, which amount must be U.S.$1,000 or an integral multiple thereof, and
the certificate numbers of the Securities to be delivered by such Holder for
purchase by the Company; and
(3) that
such Security shall be purchased on the Change in Control Purchase Date pursuant
to the terms and conditions specified in this Indenture.
The
delivery of such Security (together with all necessary endorsements) to the
Paying Agent at the office of the Paying Agent or to an office or agency
referred to in Section 1002 prior to, on or after the Change in Control Purchase
Date shall be a condition to the receipt by the Holder of the Change in Control
Purchase Price therefor; provided that such Change in Control Purchase Price
shall be so paid pursuant to this Section 516 only if the Security so delivered
to the Paying Agent or to an office or agency referred to in Section 1002 shall
conform in all respects to the description thereof set forth in the related
Change in Control Purchase Notice.
The
Company shall purchase from the Holder thereof, pursuant to this Section 516,
a
portion of a Security if the principal amount of such portion is U.S.$1,000
or
an integral multiple of U.S.$1,000. Provisions of this Indenture that apply
to
the purchase of all of a Security also apply to the purchase of a portion of
such Security.
Any
purchase by the Company contemplated pursuant to the provisions of this Section
516 shall be consummated by the delivery by the Company of the consideration
to
be received by the Holder promptly upon the later of (a) the first Business
Day
following the Change in Control Purchase Date and (b) the time of delivery
of
the Security by the Holder to the Paying Agent or to an office or agency
referred to in Section 1002 in the manner required by this Section
516.
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent,
at
the office of the Paying Agent or an office or agency referred to in Section
1002, the Change in Control Purchase Notice contemplated by this Section 516(b)
shall have the right to withdraw such Change in Control Purchase Notice at
any
time prior to the close of business on the Change in Control Purchase Date
by
delivery of a written notice of withdrawal to the Paying Agent or to an office
or agency referred to in Section 1002 in accordance with Section
1109.
The
Paying Agent or the office or agency referred to in Section 1002 shall promptly
notify the Company of the receipt by the former of any Change in Control
Purchase Notice or written notice of withdrawal thereof.
(c)
The
Securities may also not be accelerated pursuant to Section 502 following an
Event of Default under Section 501(k) and such Event of Default shall also
be
cured if a third party makes and consummates a Change in Control Offer in the
manner and at the times and otherwise in compliance with this Section 516;
provided, however, that any such third party shall be subject to Section 1012
in
respect of any amounts paid by such third party hereunder (for this purpose,
Section 1012 is modified by replacing “Company” with the name of the third
party) and such Event of Default shall be cured only if such third party
complies with Section 1012 (as modified) or if the Company satisfies the third
party's obligations under such Section.
59
ARTICLE
SIX
THE
TRUSTEE
SECTION
601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except
during the continuance of an Event of Default,
(1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as
to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its
own willful misconduct, except that:
(1) this
Subsection shall not be construed to limit the effect of Subsection (a) of
this
Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it shall be proved that the Trustee was negligent
in
ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
a
majority in principal amount of the Outstanding Securities relating to the
time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this
Indenture; and
60
(4) no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION
602. NOTICE OF DEFAULTS.
The
Trustee shall, within a reasonable time but not exceeding 60 days after the
occurrence of any Default, transmit by mail to all Holders, as their names
and
addresses appear in the Security Register, notice of such Default or Event
of
Default hereunder known to the Trustee, unless such Default is not an Event
of
Default and shall have been cured or waived; provided, however, that, except
in
the case of a Default in the payment of the principal of (or premium, if any)
or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
a
trust committee of directors and/or Responsible Officers of the Trustee in
good
faith determines that the withholding of such notice is in the best interests
of
the Holders and the Trustee so advises the Company in writing.
Where
notice of the occurrence of any Default is given by the Trustee under the
preceding paragraph and the Default is thereafter cured, the Trustee shall,
within a reasonable time but not exceeding 60 days after the Trustee becomes
aware of the curing of the Default, transmit by mail to all Holders, as their
names and addresses appear in the Security Register, notice that the Default
is
no longer continuing.
SECTION
603. CERTAIN RIGHTS OF TRUSTEE.
Except
as
otherwise provided in Section 601:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting
upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have
been signed or presented by the proper party or parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
61
(d) the
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION
604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture
or
the Pledge Agreement, the Collateral Documents or the Securities or the security
created hereunder or thereunder. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION
605. MAY HOLD SECURITIES.
The
Trustee, any Paying Agent, Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities, and, subject to the Trust Indenture Act, may otherwise deal with
the
Company with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION
606. MONEY HELD IN TRUST.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
62
SECTION
607. COMPENSATION, REIMBURSEMENT AND INDEMNITY.
The
Company agrees:
(a) to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made
by the Trustee in accordance with any provision of this Indenture (including
the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out
of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim and lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of Holders of particular Securities.
The
Company's payment of indemnity obligations pursuant to this Section 607 shall
survive the discharge of this Indenture and the expiry of any trusts created
hereby and the resignation or removal of the Trustee. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 501(f), (g)
or
(h), the expenses are intended to constitute expenses of administration under
any Bankruptcy Law.
SECTION
608. CONFLICTING INTERESTS.
The
Trustee shall comply with the terms of Trust Indenture Act Section
310(b).
SECTION
609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under Trust Indenture Act Section 310(a)(1) and which shall have a
combined capital and surplus of at least U.S.$50,000,000 and have its Corporate
Trust Office in The City of New York to the extent there is such an institution
eligible and willing to serve. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
63
SECTION
610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The
Trustee may resign at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the resigning Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction (at the Company's expense) for the appointment of a successor
Trustee.
(c) The
Trustee may be removed at any time by an Act of the Holders of a majority in
principal amount of the Outstanding Securities, delivered to the Trustee and
to
the Company.
(d) If
at any time:
(1) the
Trustee shall fail to comply with the provisions of Section 608, or
(2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any Holder who has been
a
bona fide Holder of a Security for at least six months, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed
or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any case, (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 514, in the case of clause (1) above,
the Holder of any Security and any other interested party, and in the case
of
clauses (2) and (3) above, the Holder of any Security who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and
all
others similarly situated, petition any court of competent jurisdiction for
the
removal of the Trustee and the appointment of a successor Trustee.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by
a
Board Resolution, shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of
such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with Section
611, become the successor Trustee and supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders of the Securities and so accepted appointment, the
retiring Trustee or the Holder of any Security who has been a bona fide Holder
for at least six months may on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a
successor Trustee.
64
(f) The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust
Office.
SECTION
611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all amounts due it under
Section 607, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject to the claim and lien
provided for in Section 607. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and
trusts.
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION
612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of such Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to the authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
SECTION
613. TRUSTEE NOT TO BE APPOINTED RECEIVER.
Neither
the Trustee nor any related Person, as defined in the Business Corporations
Act
(Ontario), to the Trustee, shall be appointed a receiver or receiver and manager
or liquidator of all or any part of the assets or undertaking of the
Company.
65
SECTION
614. ACCEPTANCE OF TRUSTS.
The
Trustee hereby accepts the trusts imposed upon it by this Indenture and
covenants and agrees to perform the same as herein expressed.
ARTICLE
SEVEN
HOLDERS'
LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION
701. DISCLOSURE OF NAMES AND ADDRESSES OF
HOLDERS.
(a) Upon
application to the Trustee in accordance with the Trust Indenture Act, Holders
may communicate pursuant to the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Securities.
(b) In
addition, a Holder may, upon payment to the Trustee of a reasonable fee and
subject to compliance with any applicable requirement of the Trust Indenture
Act, require the Trustee to furnish within 10 days after receiving the affidavit
or statutory declaration referred to below, a list setting out (i) the name
and address of every registered Holder, (ii) the aggregate principal amount
of Securities owned by each registered Holder and (iii) the aggregate
principal amount of Outstanding Securities, each as shown on the records of
the
Trustee on the day that the affidavit or statutory declaration is delivered
to
the Trustee. The affidavit or statutory declaration, as the case may be, shall
contain (x) the name, address and occupation of the Holder, (y) where
the Holder is a corporation, its name and address for service and (z) a
statement that the list will not be used except in connection with an effort
to
influence the voting of the Holders, an offer to acquire Securities, or any
other matter relating to the Securities or the affairs of the Company. Where
the
Holder is a corporation, the affidavit or statutory declaration shall be made
by
a director or officer of the corporation.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of such list of the names and addresses
of the Holders, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under the Trust Indenture
Act.
(d) The
Company shall comply with the terms of Trust Indenture Act Section
312(a).
SECTION
702. REPORTS BY TRUSTEE.
Within
60
days after May 15 of each year commencing with the first May 15 after
the first issuance of Securities, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of
such May 15 if required by Trust Indenture Act
Section 313(a).
SECTION
703. REPORTS BY COMPANY.
The
Company shall:
66
(a) file
with the Trustee, within 30 days after the Company is required to file the
same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is
not required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as
may be prescribed from time to time in such rules and regulations;
(b) file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company, as the case
may
be, with the conditions and covenants of this Indenture as may be required
from
time to time by such rules and regulations; and
(c) transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in Trust Indenture Act Section 313(c),
such summaries of any information, documents and reports required to be filed
by
the Company pursuant to Subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE
EIGHT
AMALGAMATION,
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER
OR LEASE
SECTION
801. COMPANY MAY AMALGAMATE, ETC., ONLY ON CERTAIN
TERMS.
The
Company shall not amalgamate or consolidate with or merge with or into any
other
Person or convey, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person by liquidation, winding-up
or
otherwise (in one transaction or a series of related transactions)
unless:
(a) either
(1) the Company shall be the continuing corporation or (2) the Person
(if other than the Company) formed by such amalgamation or consolidation or
into
which the Company is merged or the Person which acquires by conveyance,
transfer, lease or other disposition the properties and assets of the Company
substantially as an entirety (i) shall be a corporation, partnership or
trust organized and validly existing under (A) the laws of the United
States of America or any State thereof or the District of Columbia or
(B) the federal laws of Canada or any Province thereof and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to
the Trustee, in form satisfactory to the Trustee, all of the obligations of
the
Company under the Securities, this Indenture and, prior to the Release Date,
the
Collateral Documents;
67
(b) immediately
after giving effect to such transaction (and treating any Debt which becomes
an
obligation of the Company or a Subsidiary in connection with or as a result
of
such transaction as having been incurred at the time of such transaction),
no
Default or Event of Default shall have occurred and be continuing;
and
(c) the
Company or such Person shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition and,
if
a supplemental indenture is required in connection with such transaction (or
series of transactions), such supplemental indenture, comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION
802. SUCCESSOR SUBSTITUTED.
Upon
any
amalgamation, consolidation or merger, or any conveyance, transfer, lease or
other disposition of the properties and assets of the Company substantially
as
an entirety in accordance with Section 801, the successor Person formed by
such amalgamation or consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer, lease or other disposition
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease, the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities.
SECTION
803. SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If,
upon
any such consolidation or amalgamation of the Company with or merger of the
Company into any other Person, or upon any conveyance, transfer, lease or
disposition of the properties and assets of the Company substantially as an
entirety to any Person by liquidation, winding-up or otherwise (in one
transaction or a series of related transactions), any property or asset of
the
Company or of any Subsidiary, would thereupon become subject to any Lien, then,
unless such Lien could be created, prior to the Release Date pursuant to
Section 1007 and on or after the Release Date pursuant to Section 1009
without equally and ratably securing the Securities, the Company, prior to
or
simultaneously with such consolidation, amalgamation, merger, conveyance,
transfer, lease or disposition, will, as to such property or asset, secure
the
Securities Outstanding hereunder (together with, if the Company shall so
determine, any other Debt of the Company now existing or hereafter created
which
is not subordinate to the Securities) equally and ratably with (or prior to)
the
Debt which upon such consolidation, amalgamation, merger, conveyance, transfer,
lease or disposition is to become secured as to such property or asset by such
Lien, or will cause such Securities to be so secured.
68
ARTICLE
NINE
SUPPLEMENTS
AND AMENDMENTS TO INDENTURE AND
COLLATERAL
DOCUMENTS
SECTION
901. SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF
HOLDERS.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto or one or more amendments to the Collateral
Documents, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to
evidence the succession of another Person to the Company and the assumption
by
any such successor of the covenants of the Company, herein and in the Securities
or the Collateral Documents, as the case may be;
(b) To
add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein or in the Securities or the Collateral
Documents conferred upon the Company;
(c) to
cure any ambiguity, to correct or supplement any provision herein or in any
Collateral Document which may be defective or inconsistent with any other
provision herein or therein, or to make any other provisions with respect to
matters or questions arising under this Indenture or under any Collateral
Document; provided that, in each case, such provisions shall not adversely
affect the interests of the Holders in any material respect;
(d) to
issue Additional Securities as provided in Section 301;
(e) notwithstanding
Section 904, to effect the release of security as provided in
Section 1015;
(f) on
or after the Release Date, if (i) the ratings assigned to the Securities by
at least two of the three Rating Agencies are Investment Grade Ratings and
(ii) other than under a bank credit facility, there is no Debt of the
Company outstanding with events of default comparable to the Events of Default
specified in Section 501(d) and Section 501(e), to amend the Indenture
without the consent of the Holders to eliminate the Events of Default specified
under Section 501(d) and Section 501(e); or
(g) to
make any other change that does not adversely affect the rights of any Holder
or
to further secure the Securities.
SECTION
902. ACTIONS BY THE TRUSTEE UNDER THE DEED OF
TRUST
(a) In
the event that (i) an Event of Default shall have occurred and the Trustee
shall have demanded payment of the Trust Bond pursuant to Section 6.01 of
the Deed of Trust, and (ii) thereafter all existing Events of Default shall
have been waived, rescinded, cured or annulled in accordance with the provisions
of Article Five and the Company shall have furnished to the Trustee an
Officers' Certificate to the foregoing effect and requesting that the Trustee
waive its demand for payment of the Trust Bond, then the Trustee shall, without
the consent of any Holders, waive such demand pursuant to Section 6.08 of
the Deed of Trust.
69
(b) In
the event that the Trustee shall receive an Officers' Certificate (i) to
the effect that the Company proposes to issue specified additional Debt to
be
secured by the pledge of a new Deed of Trust Bond having the same or lower
priority under the Deed of Trust with respect to the collateral under the Deed
of Trust as the Trust Bond and that the issuance of such new secured Debt is
in
compliance with the terms of this Indenture and with the terms of (including
all
waivers and consents granted pursuant to) all other agreements and instruments
pursuant to which any other existing Debt secured by Deed of Trust Bonds has
been issued, and (ii) requesting that the Trustee executes a Bondholders'
Resolution authorizing the issuance, certification and delivery of such
additional Deed of Trust Bond (or cast its votes in favor of such request in
person or by proxy at a meeting of Senior Secured Bondholders held for such
purpose), then the Trustee shall, without consent of any Holder, execute such
Bondholders' Resolution (or so cast its votes in person or by
proxy).
(c) In
the event that the Trustee shall receive an Officers' Certificate (i) to
the effect that the Company proposes to incur a Lien under clause (viii) of
Section 1007 and that the incurrence of such Lien is in compliance with the
terms of this Indenture and with the terms of (including all waivers and
consents granted pursuant to) all other agreements and instruments pursuant
to
which any other existing Debt secured by Deed of Trust Bonds has been issued,
and (ii) requesting that the Trustee execute a Bondholders' Resolution or
acceptance or take other action authorizing the incurrence of such Lien (or
cast
its votes in favor of such request in person or by proxy at a meeting of Senior
Secured Bondholders held for such purpose), then the Trustee, without consent
of
any Holder, shall execute such Bondholders' Resolution (or so cast its votes
in
person or by proxy).
(d) In
the event that the Trustee shall receive an Officers' Certificate (i) to
the effect that the Board of Directors proposes to designate a Restricted
Subsidiary as an Unrestricted Subsidiary (as defined in the Deed of Trust)
under
the Deed of Trust, that pursuant to the Deed of Trust such designation may
only
be effected when authorized by a Unanimous Bondholders' Resolution (as defined
in the Deed of Trust) and that such change in designation is in compliance
with
the terms of clause (i) of Section 1008(a) of this Indenture and with
the terms of (including all waivers and consents granted pursuant to) all other
agreements and instruments pursuant to which any other existing Debt secured
by
Deed of Trust Bonds has been issued and (ii) requesting that the Trustee
execute a Unanimous Bondholders' Resolution authorizing such change in
designation (or cast its votes in favor of such request in person or by proxy
at
a meeting of Senior Secured Bondholders held for such purpose), then the Trustee
shall, without consent of any Holder, execute such Unanimous Bondholders'
Resolution (or so cast its votes in person or by proxy).
(e) In
the event that the Trustee shall receive an Officer's Certificate (i) to
the effect that the Company proposes to take an action under the Deed of Trust
(other than any action referred to in clauses (a) through (d) above) and
(ii) requesting that the Trustee execute a Bondholders' Resolution or
acceptance or take such other action authorizing the specified action (or cast
its vote in favor of such request in person or by proxy at a meeting of Senior
Secured Bondholders held for such purposes), then the Trustee shall, without
consent of any Holder, execute such Bondholders’ Resolution or acceptance or
take such other action (or so cast its votes in person or by proxy); provided
that such action shall not adversely affect the rights of any Holder or the
rights of the Trustee as the holder of the Trust Bond, and the Trustee shall
have received an Opinion of Counsel in Canada, and, if the Trustee so requires,
an Opinion of Counsel in the United States, to such effect.
70
SECTION
903. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH
CONSENT OF HOLDERS.
With
the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of such Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into one or more indentures supplemental hereto or one or
more
amendments or supplements to the Pledge Agreement for the purpose of adding
any
provisions to or changing in any manner or eliminating any of the provisions
of
this Indenture or of waiving or modifying in any manner the rights of the
Holders under this Indenture; provided, however, that no such supplemental
indenture, amendment or waiver shall, without the consent of the Holder of
each
Outstanding Security affected thereby:
(a) change
the Stated Maturity of the principal of, or any installment of interest on,
any
Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or change the coin or
currency in which the principal of any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of
any such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(b) reduce
the amount of, or change the coin or currency of, or impair the right to
institute suit for the enforcement of, the Change in Control Purchase Price;
or
(c) reduce
the percentage in principal amount of the Outstanding Securities, the consent
of
whose Holders is required for any such supplemental indenture, or the consent
of
whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture; or
(d) modify
any of the provisions of this Section or Sections 513 and 1014, except to
increase any such percentage or to provide that certain other provisions of
this
Indenture cannot be modified or waived without the consent of the Holder of
each
Security affected thereby; or
71
(e) permit
the creation of any Lien on the Trust Estate or any part thereof (other than
the
Lien of the Pledge Agreement) or, subject to Section 1015, terminate the
Lien of the Pledge Agreement as to any part of the Trust Estate.
It
shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION
904. AMENDMENTS TO COLLATERAL DOCUMENTS.
With
the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of such Holders delivered to the Company and
the
Trustee, the Trustee may authorize one or more amendments or supplements to
any
Collateral Document (other than the Pledge Agreement), grant one or more
consents or waivers thereunder, or execute one or more instructions or other
documents pursuant thereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
waiving or modifying in any manner the rights or obligations of the parties
thereunder or taking any actions pursuant thereto; provided, however, that
no
such amendment, supplement, consent, waiver or instruction or other document
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) modify
any of the provisions of the Deed of Trust referred to in Section 9.09 thereof;
or
(b) except
as permitted hereby and by the Deed of Trust, permit the creation of any Lien
ranking prior to or on a parity with the Lien securing the Trust Bond or any
guarantee thereof or terminate the Lien securing the Trust Bond or any guarantee
thereof as to any part of the Deed of Trust Collateral.
SECTION
905. EXECUTION OF SUPPLEMENTAL INDENTURES.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to the Trust Indenture Act and Section 603 hereof) shall be fully
protected in acting and relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION
906. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon
the
execution of any supplemental indenture under this Article, this Indenture
shall
be modified in accordance therewith, and such supplemental indenture shall
form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
72
SECTION
907. CONFORMITY WITH THE TRUST INDENTURE ACT.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION
908. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed
by
the Company and, upon Company Order, authenticated and delivered by the Trustee
in exchange for Outstanding Securities.
SECTION
909. EXECUTION OF SUBORDINATION AGREEMENTS.
In
the
event that the Trustee receives an Officers' Certificate (i) to the effect
that the Company or a Restricted Subsidiary proposes to issue Debt subordinated
in right of payment to the Securities or the senior indebtedness of such
Restricted Subsidiary, as the case may be, and that the issuance of such new
subordinated Debt is in compliance with the terms of this Indenture and
(ii) requesting that the Trustee execute a subordination agreement (or
instrument of like effect) with the holders of such subordinated Debt or their
representative, then, upon Company Order, the Trustee shall, without the consent
of any Holder, execute such subordination agreement (or instrument of like
effect).
ARTICLE
TEN
COVENANTS
SECTION
1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The
Company will duly and punctually pay the principal of (and premium, if any)
and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION
1002. MAINTENANCE OF OFFICES OR AGENCIES.
The
Company will maintain in The City of New York an office or agency where
Securities may be presented or surrendered for payment, where Securities may
be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such office
or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
addresses thereof, such presentations, surrenders, notices and demands may
be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
73
The
Company may from time to time designate one or more other offices or agencies
(in or outside of The City of New York) where the Securities may be presented
or
surrendered for any or all such purposes, and may from time to time rescind
such
designation; provided, however, that no such designation or rescission shall
in
any manner relieve the Company of its obligation to maintain an office or agency
in The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change
in
the location of any such office or agency.
SECTION
1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN
TRUST.
If
the
Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on any
of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents for the Securities, it will,
on
or before each due date of the principal of (and premium, if any) or interest
on
any Securities, deposit with a Paying Agent a sum in same day funds (or New
York
Clearing House funds if such deposit is made prior to the date on which such
deposit is required to be made) sufficient to pay the principal (and premium,
if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless
such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
The
Company will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold
all sums held by it for the payment of the principal of (and premium, if any)
or
interest on Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give
the Trustee notice of any default by the Company (or any other obligor upon
the
Securities) in the making of any payment of principal (and premium, if any)
or
interest; and
(c) at
any time during the continuance of any such default, upon the written request
of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
74
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the payment of the principal of (and premium, if any) or interest
on
any Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
SECTION
1004. CORPORATE EXISTENCE.
Subject
to Article Eight, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect the corporate existence and
corporate power and authority of the Company and each Restricted Subsidiary;
provided, however, that the Company shall not be required to preserve any such
corporate existence and corporate power and authority if the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of
the business of the Company and its Restricted Subsidiaries taken as a
whole.
SECTION
1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The
Company will pay or discharge or cause to be paid or discharged, before the
same
shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (b) all material lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a Lien upon the
property of the Company or any Restricted Subsidiary that could produce a
material adverse effect on the Consolidated financial condition of the Company;
provided, however, that the Company shall not be required to pay or discharge
or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION
1006. MAINTENANCE OF PROPERTIES.
The
Company will cause all properties owned by the Company or any Restricted
Subsidiary or used or held for use in the conduct of its business or the
business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company
may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in every case,
as
and to the extent that the Company may be prevented by fire, strikes, lockouts,
acts of God, inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable casualty or similar causes beyond
the control of the Company; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary
and
not disadvantageous in any material respect to the Holders.
75
SECTION
1007. LIMITATION ON LIENS.
Prior
to
the Release Date, the Company will not, and will not permit any Restricted
Subsidiary to, create, affirm, incur, or suffer to exist any Lien of any kind
upon any of its property or assets, now owned or hereafter acquired, other
than:
(i) Liens
on Excluded Assets;
(ii) Liens
securing Debt under (A) Capital Lease Obligations and/or Purchase Money
Obligations not exceeding at any time an aggregate amount equal to 10% of the
Company's Consolidated Tangible Assets and (B) Supplier Obligations not
exceeding at any time an aggregate principal amount of Cdn$100,000,000; provided
that no assets or property of the Company or any Restricted Subsidiary (other
than the property acquired in connection with such Capital Lease Obligation,
Purchase Money Obligation or Supplier Obligation) are subject to any Lien
securing such Debt;
(iii) Liens
securing Debt of a Person outstanding on the date such Person becomes a
Restricted Subsidiary; provided that such Liens (A) were not incurred in
contemplation of such Person becoming a Restricted Subsidiary and (B) are
not applicable to the Company or any other Restricted Subsidiary, or the
properties or assets of the Company or any other Restricted
Subsidiary;
(iv) Liens
on property or assets acquired by the Company or any Restricted Subsidiary
from
another Person which are existing at the time of such acquisition, provided
that
such Liens (A) were not incurred in contemplation of the acquisition of
such property or assets and (B) are applicable only to such property or
assets;
(v) Liens
on the property and assets of the Company or any Restricted Subsidiary provided
or granted to the Deed Trustee pursuant to the Deed of Trust;
(vi) Liens
securing Debt (and other related obligations) under (A) one or more bank
credit facilities in an aggregate principal amount not to exceed Cdn$800,000,000
in the aggregate at any time outstanding or (B) one or more operating
credit facilities in an aggregate principal amount not to exceed Cdn$20,000,000
at any time; provided that such Debt was incurred in compliance with the
provisions of this Indenture and that such Liens are limited to a pledge of
Deed
of Trust Bonds;
(vii) Liens
securing Debt (and other related obligations); provided that such Liens are
limited to Liens securing Deed of Trust Bonds;
(viii) the
contractual right of holders of Deed of Trust Bonds who provide funds to the
Deed Trustee to make payments relating to Supplier Obligations to be paid out
of
the proceeds received by the Deed Trustee from the enforcement of any remedy
provided for in the Deed of Trust prior to the payment of such proceeds to
holders of Senior Debt to the extent and in the manner prescribed in the Deed
of
Trust;
76
(ix) Liens
which, together with the Debt secured thereby, by their respective terms and
by
contract with the Deed Trustee, provide that:
(1) they
are subordinated and postponed to all Senior Debt and all Liens therefor, now
or
hereafter existing or granted, with the result that (x) upon any failure to
make any payment on account of the Senior Debt when due which has not been
cured
or waived, or (y) upon any dividend or other payment to, or any issuance of
debt or equity securities to, or any distribution of the assets of, the Company
or any other Restricted Subsidiary among, the creditors of the Company or any
other Restricted Subsidiary upon a dissolution, liquidation, reorganization,
insolvency or bankruptcy of, or arrangement, compromise or restructuring of
debts or assets of, the Company or any other Restricted Subsidiary, or
(z) upon the occurrence of any other event specified in the instrument
creating such subordinated Debt or Lien, the holders of Senior Debt shall be
entitled to receive payment in full before the holders of such subordinated
Debt
are entitled to receive any payment on such subordinated Debt; and
(2) The
holders of any such subordinated Lien or Debt will not be entitled to
(x) contest the validity, priority, perfection or enforceability of any
Lien granted in respect of Senior Debt, or (y) take any steps whatsoever
including, without limitation, registration of such subordinated Lien, that
result in such subordinated Lien (A) ranking prior to or pari passu with
the Liens granted in respect of the Senior Debt or (B) charging any
property or assets of the Company or any other Restricted Subsidiary that are
intended to be subject to any Lien granted in respect of the Senior Debt but
are
not at the time so charged for the benefit of the Senior Debt;
(x) Liens
for taxes, rates and assessments not yet due or, if due, the validity of which
is being contested diligently and in good faith by appropriate proceedings
by
the Company or any of the Restricted Subsidiaries (as applicable); and Liens
for
the excess of the amount of any past due taxes for which a final assessment
has
not been received over the amount of such taxes as estimated and
paid;
(xi) the
Lien of any judgment rendered which is being contested diligently and in good
faith by appropriate proceedings by the Company, or any of the Restricted
Subsidiaries, as the case may be, and which does not have a material adverse
effect on the ability of the Company and the Restricted Subsidiaries to operate
the business or operations of the Company;
(xii) any
Lien arising under the Construction Lien Act (Ontario), as amended or replaced,
or similar legislation dealing with mechanics Liens or the privileged claims
of
builders and suppliers of materials in any other province of Canada in which
the
relevant part of the applicable property is located (each, a “Lien Act”),
provided that the aggregate amount of all such Liens is less than Cdn$1,000,000,
the Lien is being contested diligently if permitted by any such applicable
Lien
Act and any applicable holdback (as defined by the applicable Lien Act) is
being
maintained in accordance with such Lien Act;
77
(xiii) any
mortgage, charge, pledge, Lien or security interest howsoever ranking for which
provision has been made by the deposit with the Deed Trustee of cash, a bank
draft or letter of credit, surety bond or other security in an amount sufficient
to pay the same and all interest and costs in connection therewith at
maturity;
(xiv) reservations,
limitations, provisos and conditions expressed in any original grants from
the
Crown which do not materially adversely impair the use of the subject
property;
(xv) licenses,
easements, rights-of-way and rights in the nature of easements (including,
without in any way limiting the generality of the foregoing, licenses,
easements, rights-of-way and rights in the nature of easements for sidewalks,
public ways, sewers, drains, gas, steam and water mains or electric light and
power, or telephone and telegraph conduits, poles, wires and cable) which will
not in the aggregate materially and adversely impair the use of the subject
property or in respect to which the Company or any of the Restricted
Subsidiaries, as the case may be, has made satisfactory arrangements for
relocation so that such use will not in the aggregate be materially and
adversely impaired;
(xvi) zoning
and building by-laws and ordinances, municipal by-laws and regulations, and
restrictive covenants which do not materially interfere with the use of the
subject property;
(xvii) title
defects or irregularities which are of a minor nature and which in the aggregate
will not materially affect the Deed of Trust Collateral granted to the Deed
Trustee pursuant to the Deed of Trust or materially impair the use of the
subject property for the purpose for which it is held by the Company or any
of
the Restricted Subsidiaries, as the case may be;
(xviii) any
other Lien existing on the date of this Indenture; and
(xix) Liens,
other than Liens incurred pursuant to the foregoing clauses (i) to (xviii),
securing or otherwise in respect of up to Cdn$20,000,000 aggregate amount of
obligations of the Company or any Restricted Subsidiary at any time
outstanding.
To
the
extent that any Lien qualifies or may be considered under more than one of
the
foregoing clauses (i) through (xviii) (or any subclause therein), it shall
be deemed to constitute a Lien permitted under this Section 1007 pursuant
to the clause (or subclause) designated from time to time by the Company, which
designation need not be in writing.
SECTION
1008. RESTRICTED SUBSIDIARIES.
(a) The
Board of Directors may designate any Restricted Subsidiary or any Person that
is
to become a Subsidiary as an Unrestricted Subsidiary, or the Company or any
Restricted Subsidiary may transfer any assets or properties to an Unrestricted
Subsidiary, if (i) prior to and immediately after such designation, no
Default or Event of Default shall have occurred and be continuing;
(ii) such subsidiary or Person, together with all other Unrestricted
Subsidiaries, shall not in the aggregate have Net Tangible Assets greater than
15% of the Company's Consolidated Net Tangible Assets, and (iii) prior to
the Release Date, such Restricted Subsidiary becomes an Unrestricted Subsidiary
(as defined in the Deed of Trust) under the Deed of Trust; provided, however,
that for the purposes of this Section 1008, (1) the Company's
Consolidated Net Tangible Assets shall also include the aggregate Net Tangible
Assets of such Subsidiary or Person and all other Unrestricted Subsidiaries
and
(2) Excluded Assets shall be excluded from the calculation of Net Tangible
Assets and Consolidated Net Tangible Assets.
78
(b) The
Board of Directors may not designate (i) any Unrestricted Subsidiary as a
Restricted Subsidiary or (ii) prior to the Release Date, any Person that is
to
become a Subsidiary as a Restricted Subsidiary, unless:
(i) such
Unrestricted Subsidiary or such Person is incorporated or organized in Canada
or
a province or territory thereof, or in the United States or any state thereof
or
the District of Columbia;
(ii) immediately
before and after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing; and
(iii) prior
to the Release Date, such Unrestricted Subsidiary or such Person becomes a
Restricted Subsidiary (as defined in the Deed of Trust) under the Deed of
Trust.
(c) Nothing
is this Section 1008 shall restrict or limit the Company or any Restricted
Subsidiary from transferring any asset that is an Excluded Asset to any
Unrestricted Subsidiary or any Person that is to become an Unrestricted
Subsidiary.
SECTION
1009. LIMITATION ON SECURED DEBT.
On
or
after the Release Date, the Company shall not, and the Company shall not permit
any of its Restricted Subsidiaries to, create, assume, incur or guarantee any
Secured Debt unless and for so long as the Company secures the Securities
equally and ratably with (or prior to) such Secured Debt. However, the Company
may incur Secured Debt without securing the Securities if, immediately after
incurring the Secured Debt, the aggregate amount of all Secured Debt and the
aggregate amount of Attributable Debt then outstanding pursuant to Sale and
Leaseback Transactions would not exceed 15% of Consolidated Net Tangible Assets.
The aggregate amount of all Secured Debt in the preceding sentence excludes
Secured Debt which is secured equally and ratably with the Securities and
Secured Debt that is being repaid concurrently. Any Lien which is granted to
secure the Securities under this Section 1009 shall be discharged at the same
time as the discharge of the Lien securing the Secured Debt that gave rise
to
the obligation to secure the Securities under this Section 1009.
79
SECTION
1010. LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS.
On
or
after the Release Date, the Company shall not permit, and shall not permit
any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless
either (a) immediately thereafter, the sum of (1) the Attributable
Debt to be outstanding pursuant to such Sale and Leaseback Transaction and
all
other Sale and Leaseback Transactions entered into by the Company or a
Restricted Subsidiary on or after the Release Date (or, in the case of a
Restricted Subsidiary, the date on which it became a Restricted Subsidiary,
if
on or after the Release Date) and (2) the aggregate amount of all Debt
secured by a Lien, excluding Debt which is secured to the same extent as the
Securities, does not exceed 15% of the Company's Consolidated Net Tangible
Assets, or (b) an amount equal to the greater of the net proceeds to the
Company or a Restricted Subsidiary from such sale and the Attributable Debt
to
be outstanding pursuant to such Sale and Leaseback Transaction is used within
180 days to retire long-term debt of the Company or a Restricted Subsidiary,
provided that in no event shall the Company be required on or prior to the
Fifth
Anniversary to retire Securities pursuant to this Section 1010 that have an
aggregate principal amount in excess of 25% of the original aggregate principal
amount of the Securities, and provided further that, promptly after the Fifth
Anniversary, the Company will retire any Securities that would have been retired
under this Section 1010 but for the foregoing proviso. However, Debt which
is subordinate to the Securities or which is owed to the Company or a Restricted
Subsidiary may not be retired.
SECTION
1011. PROVISION OF FINANCIAL INFORMATION.
(a) The
Company shall supply without cost to each Holder of the Securities, and file
with the Trustee within 30 days after the Company is required to file the same
with the Commission, copies of the annual reports and quarterly reports and
of
the information, documents and other reports which the Company may be required
to file with the Commission pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act.
(b) If
the Company is not required to file with the Commission such reports and other
information referred to in Section 1011(a), the Company shall furnish
without cost to each Holder of the Securities and file with the Trustee
(i) within 110 days after the end of each fiscal year, audited year-end
financial statements prepared in accordance with GAAP and substantially in
the
form prescribed by applicable Canadian regulatory authorities for Canadian
public reporting companies (whether or not the Company is a public reporting
company at the time), (ii) within 60 days after the end of each of the
first three fiscal quarters of each fiscal year, unaudited quarterly financial
statements prepared in accordance with GAAP and substantially in the form
prescribed by applicable Canadian regulatory authorities for Canadian public
reporting companies (whether or not the Company is a public reporting company
at
the time). The Company shall also make such reports available to prospective
purchasers of the Securities, securities analysts and broker-dealers upon their
request.
SECTION
1012. PAYMENT OF ADDITIONAL AMOUNTS.
All
payments made by the Company under or with respect to the Securities will be
made free and clear of and without withholding or deduction for or on account
of
any present or future tax, duty, levy, impost, assessment or other governmental
charge imposed or levied by or on behalf of the Government of Canada or of
any
province or territory thereof or by any authority or agency therein or thereof
having power to tax (hereinafter “Taxes”), unless the Company is required to
withhold or deduct Taxes by law or by the interpretation or administration
thereof. If the Company is so required to withhold or deduct any amount for
or
on account of Taxes from any payment made under or with respect to the
Securities, the Company will pay as interest such additional amounts
(“Additional Amounts”) as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if such Taxes
had not been withheld or deducted; provided that no Additional Amounts will
be
payable with respect to a payment made to a Holder (an “Excluded Holder”)
(i) with which the Company does not deal at arm's length (within the
meaning of the Income Tax Act (Canada)) at the time of making such payment
or
(ii) which is subject to such Taxes by reason of its being connected with
Canada or any province or territory thereof otherwise than by the acquisition
or
mere holding of Securities or the receipt of payments thereunder or the
enforcement of rights with respect to the Collateral Documents, (iii) if
the Securities are presented for payment more than 15 days after the date on
which such payment or such Securities became due and payable or the date on
which such payment thereof is duly provided for, whichever is later (except
to
the extent that the Holder would have been entitled to Additional Amounts had
the Securities been presented on the last day of such 15-day period) or
(iv) to the extent that such withholding is imposed on a payment to a
Holder who is an individual pursuant to European Union Directive 2004/48/EC
on
the taxation of savings or any law implementing or complying with, or introduced
in order to conform to, such Directive. The Company will also (i) make such
withholding or deduction and (ii) remit the full amount deducted or
withheld to the relevant authority in accordance with applicable law. Upon
the
written request of a Holder of Securities, the Company will furnish, as soon
as
reasonably practicable, to such Holder of Securities certified copies of tax
receipts evidencing such payment by the Company. The Company will indemnify
and
hold harmless each Holder (other than to the extent the Holder is an Excluded
Holder) and upon written request of any Holder of Securities (other than to
the
extent the Holder is an Excluded Holder) reimburse such Holder for the amount
of
(i) any such Taxes so levied or imposed and paid by such Holder as a result
of any failure of the Company to withhold, deduct or remit to the relevant
tax
authority, on a timely basis, the full amounts required under applicable law;
and (ii) any such Taxes so levied or imposed with respect to any
reimbursement under the foregoing clause (i), so that the net amount
received by such Xxxxxx after such reimbursement would not be less than the
net
amount such Holder would have received if such Taxes on such reimbursement
had
not been imposed.
80
At
least
30 days prior to each date on which any payment under or with respect to the
Securities is due and payable, if the Company will be obligated to pay
Additional Amounts with respect to such payment, the Company will deliver to
the
Trustee an Officers' Certificate stating the fact that such Additional Amounts
will be payable, the amounts so payable and will set forth such other
information necessary to enable the Trustee, on behalf of the Company, to pay
such Additional Amounts to Holders on the payment date. Whenever in this
Indenture there is mentioned, in any context, the payment of principal (and
premium, if any), Redemption Price, Change in Control Purchase Price, interest
or any other amount payable under or with respect to any Security such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in this Section to the extent that, in such context, Additional Amounts
are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made (if
applicable).
81
The
obligations of the Company under this Section 1012 shall survive the
termination of this Indenture and the payment of all amounts under or with
respect to the Securities.
SECTION
1013. STATEMENT AS TO COMPLIANCE.
The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year ending after the date hereof (or within such shorter time period
as
may be required by the Trust Indenture Act) and otherwise upon the demand of
the
Trustee, a brief certificate of its principal executive officer, principal
financial officer or principal accounting officer stating whether, to such
officer's knowledge, the Company is in compliance with all covenants and
conditions to be complied with by it under this Indenture and the Collateral
Documents. For purposes of this Section 1013, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture or the Collateral Documents.
When
a
Default has occurred and is continuing or if the Trustee, any Holder or the
trustee for or the holder of any other evidence of Debt of the Company or any
Restricted Subsidiary gives any notice or takes any other action with respect
to
a claimed default (other than with respect to Debt in the principal amount
of
less than Cdn$10,000,000), the Company shall deliver to the Trustee an Officers'
Certificate specifying such Default, notice or other action within 10 Business
Days of its occurrence.
The
Company shall furnish to the Trustee, upon the demand of the Trustee, evidence,
in the form required by the Trustee, of any action required or permitted to
be
taken by the Company under this Indenture.
SECTION
1014. WAIVER OF CERTAIN COVENANTS.
The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Sections 1005 through 1011 if, before or after the
time for such compliance, the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding shall, by Act of such Holders,
waive such compliance in such instance with such covenant or condition, but
no
such waiver shall extend to or affect such covenant or condition except to
the
extent so expressly waived, and, until such waiver shall become effective,
the
obligations of the Company and the duties of the Trustee in respect of any
such
covenant or condition shall remain in full force and effect.
SECTION
1015. RELEASE OF SECURITY.
(a) In
the event that (i) on a pro forma basis giving effect to the release of the
security for the Securities and any other Debt of the Company with similar
release provisions, (A) no Debt of the Company would be outstanding and
(B) there would be no availability to the Company under any bank credit
facilities, operating credit facilities or swap agreements,
in the case of each of (A) and (B) that is or are secured by a Lien of the
Pledge Agreement or any Collateral Document or any other Lien on the Deed of
Trust Collateral, (ii) the ratings assigned to the Securities by at least
two of the three Rating Agencies are Investment Grade Ratings and (iii) no
Default or Event of Default has occurred and is continuing under this Indenture,
then, without the consent of the Holders, the Company may permanently terminate
the Lien of the Pledge Agreement or any Collateral Document and any other Lien
on the Deed of Trust Collateral. On the Release Date, the provisions of Article
Twelve of this Indenture shall terminate and have no further force or
effect.
82
(b) The
Company shall notify the Rating Agencies and the Trustee of its intention to
exercise its option to release the collateral at least 45 days prior to the
proposed date of such release (the “Release Date”). In order to effect the
release of the security, on the proposed Release Date the Company shall deliver
to the Trustee an Officers' Certificate stating that (A) each of the
conditions specified above has been satisfied and (B) the Company has not
been notified by the Rating Agencies that the ratings assigned to the Securities
will be downgraded as a result of the release of the security such that the
ratings assigned to the Securities by at least two of the three Rating Agencies
will be below Investment Grade. Such Officers' Certificate shall be dated on,
or
not more than one day prior to, the Release Date.
(c) As
soon as practicable after the occurrence of the Release Date, the Trustee will,
upon Company Order and at the Company's expense, (i) return to the Company
all Collateral in the Trustee's possession as shall not have been sold or
otherwise applied pursuant to the terms of the Lien of the Pledge Agreement
and
any Collateral Document and any other Lien on the Deed of Trust Collateral
and
(ii) promptly execute and deliver further instruments and documents, and
take all further actions, that may be necessary or desirable, or that the
Company may reasonably request, in order to evidence the termination of the
Lien
of the Pledge Agreement and any Collateral Document and any other Lien on the
Deed of Trust Collateral.
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
SECTION
1101. RIGHT OF REDEMPTION.
(a) The
Securities may be redeemed, at the election of the Company, as a whole or from
time to time in part, at any time, subject to the conditions and at the
Redemption Price specified in the form of Security set forth in Article Two
herein, together with accrued interest to the Redemption Date.
(b) If,
as a result of any change in, or amendment to, the laws (or any regulations
promulgated thereunder) of Canada (or any political subdivision or taxing
authority thereof or therein), or any change in, or amendment to, any official
position regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on
or
after February 17, 2004, the Company has become or would become obligated
to pay, on the next date on which any amount would be payable under or with
respect to the Securities, any Additional Amounts in accordance with
Section 1012 hereof, then the Company may, at its option, redeem the
Securities, as a whole but not in part, at a redemption price equal to 100%
of
their principal amount, together with interest accrued thereon to the Redemption
Date; provided that the Company determines, in its business judgment, that
the
obligation to pay such Additional Amounts cannot be avoided by the use of
reasonable measures available to the Company not including substitution of
the
obligor under the Securities.
83
SECTION
1102. APPLICABILITY OF ARTICLE.
Redemption
of Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION
1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The
election of the Company to redeem the Securities pursuant to Section 1101
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by it (unless a shorter notice period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of
the principal amount of Securities to be redeemed.
SECTION
1104. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If
less
than all the Securities are to be redeemed, the particular Securities or
portions thereof to be redeemed shall be selected not more than 60 days and
not
less than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by lot or such
other method as the Trustee in its sole discretion shall deem appropriate and
just, and the amounts to be redeemed may be equal to U.S.$1,000 or any integral
multiple thereof.
The
Trustee shall promptly notify the Company and the Security Registrar in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For
all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Securities shall relate, in the case of
any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be
redeemed.
SECTION
1105. NOTICE OF REDEMPTION.
Notice
of
redemption shall be given by first-class mail, postage prepaid, mailed not
less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of
Securities to be redeemed, at its address appearing in the Security
Register.
All
notices of redemption shall state:
84
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) if
less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of a Security to be redeemed in part, the principal amount)
of
the particular Securities to be redeemed;
(d) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security, and that interest thereon shall cease to accrue on and
after
said date; and
(e) the
place or places where such Securities are to be surrendered for payment of
the
Redemption Price.
Notice
of
redemption of Securities to be redeemed at the election of the Company shall
be
given by the Company or, at its request, by the Trustee in the name and at
the
expense of the Company.
SECTION
1106. DEPOSIT OF REDEMPTION PRICE.
On
or
prior to any Redemption Date, the Company shall deposit or cause to be deposited
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the applicable Redemption Date) sufficient to pay
the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION
1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice
of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company
at
the Redemption Price together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on
or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such on the relevant
Regular Record Dates according to the terms and the provisions of
Section 309.
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal thereof (and premium, if any, thereon) shall, until
paid, bear interest from the Redemption Date at the rate borne by such
Security.
85
SECTION
1108. SECURITIES REDEEMED IN PART.
Any
Security which is to be redeemed only in part shall be surrendered at the office
or agency of the Company maintained for such purpose pursuant to Section 1002
(with, if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company, the Security Registrar or the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and, upon Company Order, the Trustee shall authenticate and deliver
to
the Holder of such Security without service charge, a replacement Security
or
Securities, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION
1109. EFFECT OF CHANGE IN CONTROL PURCHASE
NOTICE.
Upon
receipt by the Company of the Change in Control Purchase Notice specified in
Section 516(b), the Holder of the Security in respect of which such Change
in Control Purchase Notice was given shall (unless such Change in Control
Purchase Notice is withdrawn as specified in the following two paragraphs of
this Section) thereafter be entitled to receive solely the Change in Control
Purchase Price with respect to such Security. Such Change in Control Purchase
Price shall be paid to such Holder upon the later of (a) the first Business
Day following the Change in Control Purchase Date (provided the conditions
in
Section 516(b) have been satisfied) and (b) the time of delivery of
the Security to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 1002 by the Holder thereof in the
manner required by Section 516(b).
A
Change
in Control Purchase Notice may be withdrawn before or after delivery by the
Holder to the Paying Agent at the office of the Paying Agent of the Security
to
which such Change in Control Purchase Notice relates, by means of a written
notice of withdrawal delivered by the Holder to the Paying Agent at the office
of the Paying Agent or to the office or agency referred to in Section 1002
to which the related Change in Control Purchase Notice was delivered at any
time
prior to the close of business on the Change in Control Purchase Date
specifying, as applicable:
(1) the
certificate number of the Security in respect of which such notice of withdrawal
is being submitted,
(2) the
principal amount of the Security (which shall be U.S.$1,000 or an integral
multiple thereof) with respect to which such notice of withdrawal is being
submitted, and
(3) the
principal amount, if any, of such Security (which shall be U.S.$1,000 or an
integral multiple thereof) that remains subject to the original Change in
Control Purchase Notice and that has been or will be delivered for purchase
by
the Company.
The
Paying Agent will promptly return to the respective Holders thereof any
Securities with respect to which a Change in Control Purchase Notice has been
withdrawn in compliance with this Indenture.
86
SECTION
1110. DEPOSIT OF CHANGE IN CONTROL PURCHASE
PRICE.
No
later
than 11:00 a.m. (New York time) on the Business Day following the Change in
Control Purchase Date the Company shall deposit or cause to be deposited with
the Paying Agent (or, if the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 1003) an amount of cash
sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof that are to be purchased as of the Change in
Control Purchase Date.
SECTION
1111. SECURITIES PURCHASED IN PART.
Any
Security that is to be purchased only in part shall be surrendered to the Paying
Agent at the office of the Paying Agent or to the office or agency referred
to
in Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company and the Trustee duly executed by, the Holder thereof or such Xxxxxx's
attorney duly authorized in writing) and the Company shall execute and, upon
Company Order, the Trustee shall authenticate and deliver to the Holder of
such
Security, without service charge, a replacement Security or Securities, of
any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the principal amount of the Security
so
surrendered that is not purchased.
SECTION
1112. REPAYMENT TO THE COMPANY.
As
provided in the Securities, the Trustee and the Paying Agent shall return to
the
Company any cash that remains unclaimed, together with interest or dividends,
if
any, thereon (subject to the provisions of Section 607), held by them for
the payment of the Change in Control Purchase Price; provided, however, that,
to
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 1110 exceeds the aggregate Change in Control Purchase Price of the
Securities or portions thereof to be purchased, then the Trustee shall hold
such
excess for the Company and promptly after the Business Day following the Change
in Control Purchase Date the Trustee shall upon demand return any such excess
to
the Company together with interest or dividends, if any, thereon (subject to
the
provisions of Section 607).
ARTICLE
TWELVE
SECURITY
DOCUMENTS
The
provisions of this Article Twelve shall continue in effect until the occurrence
of the Release Date, at which time they shall terminate and have no further
force or effect.
SECTION
1201. PLEDGE AGREEMENT.
As
general and continuing collateral security for the due repayment and
satisfaction of all present and future indebtedness, liabilities and obligations
of any kind whatsoever, under, in connection with or relating to this Indenture,
including without limitation, the Securities and any ultimate unpaid balance
thereof and to secure the due performance of all of the other present and future
obligations of the Company to the Trustee (including obligations under
Section 607 of this Indenture) and the Holders of the Securities under this
Indenture and the Securities, the Company has assigned, deposited with and
pledged the Trust Bond to the Trustee pursuant to the Pledge Agreement. The
Company covenants and agrees that it has full right, power and lawful authority
to grant, bargain, sell, release, convey, hypothecate, assign, mortgage, pledge,
transfer and confirm the property constituting the Trust Estate, in the manner
and form done in the Pledge Agreement or intended to be done, free and clear
of
all liens, pledges, charges and encumbrances whatsoever, and that (a) it
will forever warrant and defend the title to the same against the claims of
all
persons whatsoever, (b) it will execute, acknowledge and deliver to the
Trustee such further assignments, transfers, assurances or other instruments
as
the Trustee may require or request, and (c) it will do or cause to be done
all such acts and things as may be necessary or proper, or as may be required
by
the Trustee, to assume and confirm to the Trustee the Trust Estate, or any
part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Securities. The
Company further covenants and agrees that the Pledge Agreement creates the
direct and valid first lien on the Trust Bond which it purports to
create.
87
SECTION
1202. RECORDING.
The
Company will cause, at its own expense, this Indenture, the Pledge Agreement,
the Deed of Trust and any other Collateral Document, and all amendments or
supplements thereto, to be registered, recorded and filed and/or re-recorded
and/or re-filed and/or renewed in such manner and in such place or places,
if
any, as may be required by law in order fully to preserve and protect the Liens
of the Collateral Documents and all parts of the Trust Estate and to effectuate
and preserve the security of the Holders and all rights of the
Trustee.
The
Company shall furnish to the Trustee:
(i) promptly
after the execution and delivery of this Indenture or other instrument of
further assurance, an Opinion of Counsel stating that, in the opinion of such
counsel, this Indenture, the Pledge Agreement and all other instruments of
further assurance have been properly recorded, registered and filed to the
extent necessary to make effective the Lien intended to be created by the Pledge
Agreement, and reciting the details of such action or referring to prior
Opinions of Counsel in which such details are given, and stating that all
statements have been executed and filed that are necessary fully to preserve
and
protect the rights of the Holders and the Trustee hereunder and under the Pledge
Agreement, or stating that, in the opinion of such counsel, no such action
is
necessary to make such lien effective; and
(ii) by
March 1 in each year beginning with the year 2005, an Opinion of Counsel,
dated as of such date, either stating that, in the opinion of such Counsel,
such
action has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Indenture, the Pledge
Agreement and of all supplemental indentures, financing statements, continuation
statements or other instruments of further assurances as is necessary to
maintain the Lien of the Pledge Agreement and reciting the details of such
action or referring to prior Opinions of Counsel in which such details are
given, and stating that all financing statements and continuation statements
have been executed and filed that are necessary fully to preserve and protect
the rights of the Holders and the Trustee hereunder and under the Pledge
Agreement, or stating that, in the opinion of such counsel, no such action
is
necessary to maintain such Lien.
88
SECTION
1203. CUSTODY OF TRUST ESTATE.
The
Trustee shall hold in its possession the Trust Bond constituting the Trust
Estate, except as from time to time any documents or instruments may be required
for recordation or re-recordation or other actions, suits or proceedings
relating to the Trust Estate, or for the purpose of enforcing or realizing
upon
any right or value thereby represented. The Trustee may, from time to time,
in
its sole discretion, for the purpose of convenient location of the Trust Bond,
appoint one or more agents to hold physical custody, for the account of the
Trustee, of the Trust Bond.
SECTION
1204. SUITS TO PROTECT THE TRUST ESTATE.
The
Trustee shall have power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Trust Estate by any
acts which may be unlawful or in violation of the Pledge Agreement or this
Indenture, and such suits and proceedings as the Trustee may deem expedient
to
preserve or protect its interests and the interests of the Holders in the Trust
Estate and in the principal, interest, issues, profits, rents, revenues and
other income arising therefrom, including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional
or
otherwise invalid, if the enforcement of, or compliance with, such enactment,
rule or order would impair the security hereunder or be prejudicial to the
interests of the Holders or the Trustee. The Trustee shall also have authority
to exercise any rights or powers conferred on the Trustee, as the holder of
the
Trust Bond, under the Deed of Trust.
SECTION
1205. RELEASE UPON TERMINATION OF THE COMPANY'S
OBLIGATIONS.
(a) In
the event that the Company delivers a Company Order and an Officers' Certificate
certifying that all Indenture Obligations have been satisfied and discharged
by
complying with the provisions of Article Four, the Trustee shall deliver to
the
Deed Trustee a notice stating that the Trustee, on behalf of the Holders,
disclaims and gives up any and all rights it has in or to the Trust Bond and
the
Deed of Trust Collateral, and any rights it has under the Collateral Documents,
and, upon and after the receipt by the Deed Trustee of such notice, the Trustee
shall return the Trust Bond to the Deed Trustee for cancellation, and the Deed
Trustee shall not be deemed to hold any Deed of Trust Collateral on behalf
of
the Trustee for the benefit of the Holders.
(b) Any
release of any portion of the Trust Bond or the Deed of Trust Collateral made
strictly in compliance with the provisions of this Section 1205 shall not be
deemed to impair the Liens on the Trust Bond or the Deed of Trust Collateral
created by the Collateral Documents in contravention of the provisions of this
Indenture.
*
*
*
89
This
Indenture may be signed in any number of counterparts with the same effect
as if
the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
Indenture.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
|
XXXXXX
WIRELESS INC.
|
||
|
By:
|
/s/ Xxxx
X. Xxxx
|
|
|
Title:
|
Vice-President
|
|
|
By:
|
/s/ M.
Xxxxxxxx Xxxx
|
|
|
Title:
|
Vice-President,
Treasurer
|
|
| Attest: | /s/ Xxxxx X. Xxxxxx | |
|
Title:
|
Vice-President,
General
Counsel and
Secretary
|
|
|
JPMORGAN
CHASE BANK
|
||
|
By:
|
/s/ Xxxx Xxxxxxx | |
| Title: |
Trust
Officer
|
|
| Attest: | /s/ Xxxxxxxx Xxxxxxxx | |
|
Title:
|
Trust
Officer
|
|
90
|
PROVINCE
OF ONTARIO
|
) |
|
|
)ss.: |
|
CITY
OF TORONTO
|
) |
On
the
20th day of February, 2004, before me personally came X. Xxxxxxxx Xxxx, to
me known, who, being by me duly sworn, did depose and say that s/he resides
at
Toronto, Ontario; that s/he is Vice President, Treasurer of XXXXXX WIRELESS
INC., one of the corporations described in and which executed the above
instrument; that s/he knows the corporate seal of such corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
pursuant to authority of the Board of Directors of such corporation; and that
s/he signed her/his name thereto pursuant to like authority.
|
(NOTARIAL
SEAL)
|
|
/s/
Xxxxxx X. XxXxxxx
|
91
|
STATE
OF NEW YORK
|
) |
|
|
)ss.: |
|
CITY
OF NEW YORK
|
) |
On
the
20th day of February, 2004, before me personally came Xxxx Xxxxxxx, to me known,
who, being by me duly sworn, did depose and say that s/he resides at New York
City; that s/he is Trust Officer of JPMORGAN CHASE BANK, one of the corporations
described in and which executed the above instrument; that s/he knows the
corporate seal of such corporation; that the seal affixed to said instrument
is
such corporate seal; that it was so affixed pursuant to authority of the Board
of Directors of such corporation; and that s/he signed her/his name xxxxxxx
pursuant to like authority.
|
(NOTARIAL
SEAL)
|
|
/s/
Xxxxx Xxxxx
|
92
EXHIBIT
A
PROVISIONS
FOR INTER-COMPANY DEEPLY SUBORDINATED DEBT
1.1 Terms
defined in the Indenture in respect of the 6.375% Senior (Secured) Notes due
2014 dated as of February 20, 2004 (the “Indenture”) between Xxxxxx
Wireless Inc. (the “Company”) and JPMorgan Chase Bank, as trustee (the
“Trustee”) and used herein have the meanings attributed to such terms in the
Indenture. As used herein, the term “Relevant Obligor” means the obligor
creating, incurring, assuming or suffering to exist any Inter-Company Deeply
Subordinated Debt. The term “Obligor” means any of the Company and any
Restricted Subsidiary.
2.1 DEFINITION
OF SENIOR INDEBTEDNESS. “Senior Indebtedness” means at any date all indebtedness
under the Securities and the Indenture (including, without limitation, all
amounts payable pursuant to Section 607 of the Indenture, principal, interest,
Additional Amounts, premium, fees, penalties, indemnities and “post-petition
interest” in bankruptcy).
2.2 AGREEMENT
TO SUBORDINATE. The indebtedness evidenced by this agreement shall constitute
Inter-Company Deeply Subordinated Debt and the Relevant Obligor and the relevant
creditor who is owed such indebtedness (the “Relevant Creditor”) agree that such
indebtedness (including, without limitation, principal, interest, premium,
fees,
penalties, indemnities and “post-petition interest” in bankruptcy) is
subordinate and junior in right of payment, to the extent and in the manner
provided in this Section 2, to the prior payment in full of all Senior
Indebtedness.
The
Relevant Obligor agrees to hold the benefit of these provisions as incorporated
in this agreement or this instrument as trustee for and on behalf of the Trustee
and the Holders of the Securities and the Relevant Obligor shall be a party
to
the agreement or instrument in such capacity and shall give the Relevant
Creditor (and the Relevant Obligor on its own behalf) one dollar as valuable
consideration in respect of the agreements given to it in such capacity as
trustee.
The
provisions of this Section 2 are for the benefit of the holders from time
to time of Senior Indebtedness, and such holders are hereby made obligees
hereunder to the same extent as if their names were written herein as such,
and
they (collectively or singly) may proceed to enforce such
provisions.
2.3 LIQUIDATION;
DISSOLUTION; BANKRUPTCY. (a) Upon any distribution of assets of the
Relevant Obligor to creditors or upon a liquidation or dissolution or winding-up
of the Relevant Obligor or in a bankruptcy, arrangement, liquidation,
reorganization, insolvency, receivership or similar case or proceeding relating
to the Relevant Obligor or its property or other marshalling of assets of the
Relevant Obligor:
(i) the
holders of Senior
Indebtedness shall be entitled to receive payment in full of all Senior
Indebtedness before the Relevant Creditor shall be entitled to receive any
payment of principal of or interest on, or any other amount owing in respect
of,
the indebtedness evidenced by this agreement or instrument;
93
(ii) until
payment in full of all Senior Indebtedness, any distribution of assets of
any
kind or character to which the Relevant Creditor would be entitled but for
this
Section 2 shall be paid by the Relevant Obligor or by any receiver, trustee
in bankruptcy, liquidating trustee, agents or other Persons making such payment
or distribution to, or if received by the Relevant Creditor shall be held
for
the benefit of and shall be forthwith paid or delivered to, the holders of
Senior Indebtedness, as their interests may appear; and
(iii) in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Relevant Obligor of any kind or character, whether in cash,
property or securities, shall be received by the Relevant Creditor before
all
Senior Indebtedness is paid in full, such payment or distribution shall be
held
in trust for the benefit of and shall be paid over to the holders of Senior
Indebtedness, as their interests may appear, for application to the payment
of
all Senior Indebtedness until all Senior Indebtedness shall have been paid
in
full after giving effect to any concurrent payment or distribution to the
holders of Senior Indebtedness in respect of such Senior
Indebtedness.
For
purposes hereof, the words “cash, property or securities” shall be deemed not to
include securities of the Relevant Obligor or any other Person provided for
by a
plan of reorganization or readjustment, the payment of which is subordinated
at
least to the extent provided herein with respect to the indebtedness evidenced
by this agreement or instrument, to the payment of all Senior Indebtedness
which
may at the time be outstanding; provided, however, that (i) all Senior
Indebtedness is assumed by the new Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment.
(b) If
the Relevant Creditor does not file proper claims or proofs of claim in the
form
required in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Relevant Obligor or its property prior to 45 days
before the expiration of the time to file such claims, then (i) upon the
request of the Trustee, the Relevant Creditor shall file such claims and proofs
of claim in respect of the indebtedness evidenced by this agreement or
instrument and execute and deliver such powers of attorney, assignments and
proofs of claim as may be directed by the Trustee to enable it to enforce any
and all claims upon or in respect of the indebtedness evidenced by this
agreement or instrument and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or in respect
of the indebtedness evidenced by this agreement or instrument, and
(ii) whether or not the Trustee shall take the action described in
clause (i) above, the Trustee shall nevertheless be deemed to have such
powers of attorney as may be necessary to file appropriate claims and proofs
of
claim and otherwise exercise the powers described above.
For
purpose of this Section 2, “payment in full”, with respect to Senior
Indebtedness, means the receipt on an irrevocable basis of cash in an amount
equal to the unpaid principal amount of the Senior Indebtedness and premium,
if
any, and interest thereon to the date of such payment, together with all other
amounts owing with respect to such Senior Indebtedness.
94
2.4 SENIOR
INDEBTEDNESS. (a) The Relevant Obligor shall not pay any principal,
interest or premium on the indebtedness evidenced by this agreement or
instrument, acquire the indebtedness evidenced by this agreement or instrument
for cash or property other than capital stock of the Relevant Obligor, or make
any loans, advances or extensions of credit to the Relevant Creditor with
respect to the indebtedness evidenced by this agreement or instrument, or pay
or
acquire any obligation or liability upon which the Relevant Creditor is the
obligor, and the Relevant Creditor shall not demand, accept or receive any
payment of any principal, interest or premium on the indebtedness evidenced
by
this agreement or instrument or any such cash, property other than capital
stock
of the Relevant Obligor, loans, advances or extensions of credit at any time
when:
(i) a
default in the payment of any Senior Indebtedness has occurred, whether at
maturity or at a date fixed for prepayment or by declaration of an acceleration
or otherwise, and such default either (A) shall be continuing or
(B) shall not have been cured and shall have been waived by the holders of
such Senior Indebtedness on the express condition that payments on and
acquisitions of the indebtedness evidenced by this agreement or instrument
by
the Relevant Obligor be prohibited pursuant to this clause (i);
or
(ii) any
default (other than as described in clause (i) of this Section 2.4(a))
under any agreement or instrument evidencing Senior Indebtedness shall have
occurred and either (x) shall be continuing or (y) shall not have been
cured and shall have been waived by the holders of such Senior Indebtedness
on
the express condition that payments on or acquisition of the indebtedness
evidenced by this agreement or instrument be prohibited pursuant to this
clause (ii); or
(iii) such
payment of principal, interest or premium on the indebtedness evidenced
by this
agreement or instrument, or acquisition of the indebtedness evidenced by
this
agreement or instrument for cash or property other than capital stock of
the
Relevant Obligor would cause a Default or Event of Default under the
Indenture.
(b) If at any time when a payment on the indebtedness evidenced by this agreement or instrument is due, the Relevant Obligor would (but for this subsection (b)) be prohibited by Section 2.4(a) from making such payment, the Relevant Obligor shall nonetheless be obligated to make such payment if all of the holders of Senior Indebtedness with respect to which any default shall have occurred shall have consented thereto in writing.
(c) If,
notwithstanding the foregoing, any payment of any kind or character, whether
in
cash, property or otherwise, shall be received by the Relevant Creditor before
all Senior Indebtedness is paid in full, such payment shall be held in trust
for
the benefit of and shall be paid over to the holders of Senior Indebtedness,
as
their interests may appear, for application to the payment of all Senior
Indebtedness until all Senior Indebtedness shall have been paid in full after
giving effect to any concurrent payment to the holders of Senior Indebtedness
in
respect of such Senior Indebtedness.
2.5 SUBROGATION.
After all Senior Indebtedness is paid in full and until the indebtedness
evidenced by this agreement or instrument is paid in full, the Relevant Creditor
shall be subrogated to the rights of the holders of Senior Indebtedness. For
purposes of this Section 2.5, a distribution made under this Section 2
to holders of Senior Indebtedness which otherwise would have been made to the
Relevant Creditor, or a payment made by the Relevant Creditor to holders of
Senior Indebtedness in respect of a turnover obligation under this
Section 2, is not, as between the Relevant Obligor and such holder, a
payment by the Relevant Obligor on Senior Indebtedness.
95
2.6 RELATIVE
RIGHTS. This Section 2 defines the relative rights of the Relevant Creditor
and the holders of Senior Indebtedness. Nothing in this Section 2
shall:
(a) impair,
as between the Relevant Obligor and the Relevant Creditor, the obligation
of the
Relevant Obligor, which is absolute and unconditional, to pay the principal
of
and interest on the indebtedness evidenced by this agreement or instrument
in
accordance with its terms; or
(b) affect
the relative rights of the Relevant Creditor and creditors of the Relevant
Obligor other than the holders of Senior Indebtedness; or
(c) affect
the relative rights of the holders of Senior Indebtedness among themselves;
or
(d) prevent
the Relevant Creditor from exercising its available remedies upon a default,
subject to Section 2.4 hereof and the rights of the holders of Senior
Indebtedness to receive cash, property or other assets otherwise payable
to the
Relevant Creditor.
2.7 SUBORDINATION
MAY NOT BE IMPAIRED. (a) No right of any holder of Senior Indebtedness to
enforce the subordination of indebtedness evidenced by this agreement or
instrument shall in any way be prejudiced or impaired by any act or failure
to
act by the Relevant Obligor or by any act or failure to act in good faith,
by
any such holder or the Trustee, or by any non-compliance by the Relevant Obligor
with the terms, provisions or covenants herein, regardless of any knowledge
thereof which any such holder or the Trustee may have or be otherwise charged
with. Neither the subordination of the indebtedness represented by this
agreement or instrument as herein provided nor the rights of the holders of
Senior Indebtedness with respect hereto shall be affected by any extension,
renewal or modification of the terms, or the granting of any security in respect
of, any Senior Indebtedness or any exercise or non-exercise of any right, power
or remedy with respect thereto.
(b) The
Relevant Creditor agrees that all indebtedness evidenced by this agreement
or
instrument will be unsecured by any Lien upon or with respect to any property
of
the Relevant Obligor, and that the Relevant Creditor will not permit to subsist
any Liens upon its claim in respect of or upon the proceeds of the indebtedness
represented by this agreement or instrument.
(c) The
Relevant Creditor agrees not to exercise any offset or counterclaim or similar
right in respect of the indebtedness evidenced by this agreement or instrument
except to the extent payment of such indebtedness is permitted and will not
assign or otherwise dispose of this agreement or instrument or the indebtedness
which it evidences unless the assignee or acquiror, as the case may be, agrees
to be bound by the terms of this Section 2.
96
2.8 RELEVANT
CREDITOR ENTITLED TO RELY. Upon any payment or distribution pursuant to this
Section 2, the Relevant Creditor shall be entitled to rely (i) upon
any order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 2.3 are pending,
(ii) upon a certificate of the liquidating trustee or agent or other person
in such proceedings making such payment or distribution to the Relevant Creditor
or its representative, if any, or (iii) upon a certificate of the Trustee
or any representative (if any) of the holders of Senior Indebtedness for the
purpose of ascertaining the persons entitled to participate in such payment
or
distribution, the holders of the Senior Indebtedness and other indebtedness
of
the Relevant Obligor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or
to
this Section 2.
3. MISCELLANEOUS.
(a) The provisions contained herein may not be amended or modified in any
respect, nor may any of the terms or provisions hereof be waived, except by
an
instrument signed by the Relevant Obligor, the Relevant Creditor and the
Trustee.
(b) The
provisions contained herein shall be binding upon each of the parties to this
agreement or instrument and their respective successors and assigns and shall
inure to the benefit of the Trustee and each and every holder of Senior
Indebtedness and their respective successors and assigns.
(c) The
provisions contained herein shall be governed by and construed in accordance
with the laws of the State of New York.
(d) The
Relevant Creditor and the Relevant Obligor each hereby irrevocably agrees that
any suits, actions or proceedings arising out of or in connection with the
provisions contained herein may be brought in any state or federal court sitting
in The City of New York or any court in the Province of Ontario and submits
and
attorns to the non-exclusive jurisdiction of each such court.
97
EXHIBIT
B
PROVISIONS
FOR INTER-COMPANY SUBORDINATED DEBT
1. Terms
defined in the Indenture in respect of the 6.375% Senior (Secured) Notes due
2014 dated as of February 20, 2004 (the “Indenture”) between Xxxxxx
Wireless Inc. (the “Company”) and JPMorgan Chase Bank, as trustee (the
“Trustee”) and used herein have the meanings attributed to such terms in the
Indenture. As used herein, the term “Relevant Obligor” means the obligor
creating, incurring, assuming or suffering to exist any Inter-Company
Subordinated Debt. The term “Obligor” means any of the Company and any
Restricted Subsidiary.
2. The
indebtedness evidenced by this agreement shall constitute Inter-Company
Subordinated Debt and the Relevant Obligor and the relevant creditor who is
owed
such indebtedness (the “Relevant Creditor”) agree that the payment of the
principal of (and premium, if any), and interest on such indebtedness is
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all amounts from time to
time owing to the Holders of the Securities (which amounts are hereinafter
called “Senior Secured Debt”). The Relevant Obligor agrees to hold the benefit
of these provisions as incorporated in this agreement or this instrument as
trustee for and on behalf of the Trustee and the Holders of the Securities
and
the Relevant Obligor shall be a party to the agreement or instrument in such
capacity and shall give the Relevant Creditor (and the Relevant Obligor on
its
own behalf) one dollar as valuable consideration in respect of the agreements
given to it in such capacity as trustee.
3. For
purposes hereof, the words “cash, property or securities” shall not be deemed to
include securities of the Relevant Obligor or any other Person provided for
by a
plan of reorganization or readjustment, the payment of which is subordinated,
at
least to the extent provided herein with respect to the indebtedness owing
to
the Relevant Creditor, to the payment of all Senior Secured Debt which may
at
the time be outstanding; provided, however, that (i) all Senior Secured
Debt is assumed by the new Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the Holders of the
Securities are not, without the consent of the Holders of the Securities,
altered by such reorganization or readjustment.
4. Upon
any distribution of assets of the Relevant Obligor or upon any dissolution,
winding up, arrangement, liquidation, reorganization, bankruptcy, insolvency
or
receivership or similar proceeding relating to the Relevant Obligor or its
property or other marshalling of assets of the Relevant Obligor:
(a) the
Holders of the Securities shall first be entitled to receive payment in full
of
all Senior Secured Debt including, without limitation, the principal thereof
and
premium, if any, and the interest due thereon, before the Relevant Creditor
is
entitled to receive any payment of the principal of and premium, if any,
and
interest on any Indebtedness owing to it; and
98
(b) any
payment or distribution of assets of the Relevant Obligor of any kind or
character, whether in cash, property or securities, to which the Relevant
Creditor would be entitled except for the provisions hereof shall be paid
by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee
or otherwise, directly to the Holders of the Securities to the extent necessary
to pay in full all Senior Secured Debt remaining unpaid after giving effect
to
any concurrent payment or distribution to the Holders of the Securities
in
respect of such Senior Secured Debt; and
(c) in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Relevant Obligor of any kind or character, whether in cash,
property or securities, shall be received by the Relevant Creditor before
all
Senior Secured Debt is paid in full, such payment or distribution shall
be held
in trust for the benefit of and shall be paid over to the Holders of the
Securities for application to the payment of all Senior Secured Debt remaining
unpaid until all Senior Secured Debt shall have been paid in full after
giving
effect to any concurrent payment or distribution to the Holders of the
Securities in respect of such Senior Secured Debt.
5. Upon
any payment or distribution of assets of the Relevant Obligor referred to in
this agreement or instrument, the Relevant Creditor shall be entitled to rely
(i) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 4 are pending,
(ii) upon a certificate of the liquidating trustee or agent or other person
in such proceedings making such payment or distribution to the Relevant Creditor
or its representative, if any, or (iii) upon a certificate of the Trustee
or any representative (if any) of the Holders of the Securities for the purpose
of ascertaining the identity of the Holders of the Securities and the Trustee,
the holders of other Senior Debt of the Relevant Obligor, the amount thereof
or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to the subordination contemplated by this agreement
or instrument.
6. Nothing
contained herein is intended to or shall impair, as between the Relevant Obligor
and its creditors (other than the Holders of the Securities as regards the
Senior Secured Debt and the Relevant Creditor) the obligation of the Relevant
Obligor, which is unconditional and absolute, to pay to the Relevant Creditor
the principal of and premium, if any, and interest on the Debt owing to the
Relevant Creditor as and when the same shall become due and payable in
accordance with its terms or affect the relative rights of the Relevant Creditor
and creditors of the Relevant Obligor other than the Holders of the Securities
as regards the Senior Secured Debt, nor shall anything herein or therein prevent
the Relevant Creditor from exercising all remedies otherwise permitted by
applicable law upon default with respect to the Debt owing to the Relevant
Creditor subject to the rights, if any, herein of the Holders of the Securities
as regards the Senior Secured Debt in respect of cash, property or securities
of
the Relevant Obligor received upon the exercise of any such remedy.
7. Upon
the maturity of any Senior Secured Debt by lapse of time, acceleration or
otherwise, then, except as hereinafter provided, all principal of and premium,
if any, and interest on all such matured Senior Secured Debt shall first be
paid
in full or shall have first been duly provided for before any payment on account
of principal of or premium, if any, or interest owing to the Relevant Creditor
is made.
99
8. Upon
the happening of an Event of Default with respect to any Senior Secured Debt
permitting the Holders of the Securities (or any of them) to accelerate the
maturity of the Senior Secured Debt then, unless and until such Event of Default
shall have been cured or waived or shall have ceased to exist, no payment
(including, without limitation, by purchase of the Debt owing to the Relevant
Creditor or otherwise) shall be made by the Relevant Obligor with respect to
the
principal of or premium, if any, or interest on the Indebtedness owing to the
Relevant Creditor. In the event that, notwithstanding the foregoing, the
Relevant Obligor shall make any payment of principal of or premium, if any,
or
interest on the Debt owing to the Relevant Creditor after the happening of
such
an Event of Default, then, except as hereinafter otherwise provided, unless
and
until such Event of Default shall have been cured or waived or have ceased
to
exist, such payment shall be held in trust for the benefit of and, if and when
such Senior Secured Debt shall have become due and payable, shall be paid over
to the Holders of the Securities and applied to the payment of all Senior
Secured Debt remaining unpaid until all such Senior Secured Debt shall have
been
paid in full.
9. The
fact that any payment to the Relevant Creditor is prohibited hereby shall not
prevent the failure to make such payment from being an event of default as
regards such Relevant Creditor.
10. Nothing
contained herein or in any agreement, indenture or other instrument in respect
of the Debt owing to the Relevant Creditor shall, subject to
Section 7:
(a) prevent
the Relevant Obligor at any time from making payments at any time of the
principal of and premium, if any, or interest to the Relevant Creditor on
account of Inter-Company Subordinated Debt unless:
(i) Such
payment is proposed to be made on or after the date upon which any Event of
Default or any of the events described in Section 4 has occurred in
circumstances where notice of such proposed payment shall have been given by
the
Relevant Creditor or the Company to the Trustee prior to the happening of such
Event of Default or other event; or
(ii) such
payment would otherwise occur while any proceedings in respect of the
dissolution, arrangement, winding up, liquidation, reorganization, bankruptcy,
insolvency or receivership of the Relevant Obligor are pending; or
(b) prevent
the Relevant Obligor from applying to the retirement of any Inter-Company
Subordinated Debt the proceeds of a substantially concurrent issue of other
Inter-Company Subordinated Debt or of shares of any class of the Relevant
Obligor; or
(c) except
in circumstances to which clauses (a)(i) or (ii) are applicable, require the
Relevant Creditor to pay to the Trustee or the Holders of the Securities, or
to
repay to the Relevant Obligor, any amount so paid.
11. Unless
and until written notice shall be given to the Relevant Creditor by or on behalf
of any Holder or any representative or representatives of any Holder, including
the Trustee (it being understood that nothing herein shall create any obligation
on the part of the Trustee to give any such notice), notifying the Relevant
Creditor of the happening of an Event of Default with respect to the Senior
Secured Debt or of the existence of any other facts which would result in the
making of any payment with respect to the Debt owing to the Relevant Creditor
in
contravention of the provisions hereof, the Relevant Creditor shall be entitled
to assume that no such Event of Default has occurred or that no such facts
exist; and, with respect to any monies which may at any time be received by
the
Relevant Creditor in trust pursuant to any provisions hereof prior to the
receipt by it of such written notice, nothing herein shall prevent the Relevant
Creditor from applying such monies to the purposes for which the same were
so
received, notwithstanding the occurrence or continuance of an Event of Default
with respect to, or the existence of such facts with respect to, the Senior
Secured Debt unless the Relevant Creditor has actual knowledge to the
contrary.
100
12. (a) No
right of the Trustee or any Holder as regards the Senior Secured Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced
or
impaired by any act or failure to act on the part of the Relevant Obligor or
by
any act or failure to act, in good faith, by any such Holder or the Trustee,
or
by any non-compliance by the Relevant Obligor with the terms, provisions or
covenants herein, regardless of any knowledge thereof which any Holder or the
Trustee may have or be otherwise charged with.
(b) The
rights of the Trustee and the Holders of Securities with respect hereto shall
not be affected by any extension, renewal or modification of the terms, or
the
granting of any security in respect of, any Senior Indebtedness or any exercise
or non-exercise of any right, power or remedy with respect thereto.
(c) The
Relevant Creditor agrees not to exercise any offset or counterclaim or similar
right in respect of the Inter-Company Subordinated Debt except to the extent
payment of such Inter-Company Subordinated Debt is permitted and will not assign
or otherwise dispose of any Inter-Company Subordinated Debt unless the assignee
or acquiror, as the case may be, agrees to be bound by the terms
hereof.
13. The
provisions contained herein
(a) may
not be amended or modified in any respect, nor may any of the terms or
provisions hereof be waived, except by an instrument signed by the Relevant
Obligor, the Relevant Creditor and the Trustee,
(b) shall
be binding upon each of the parties hereto and their respective successors
and
assigns and shall enure to the benefit of the Trustee, each and every Holder
of
the Securities and their respective successors and assigns,
(c) shall
be governed by and construed in accordance with the laws of the State of New
York.
The
Relevant Creditor and the Relevant Obligor each irrevocably agree that any
suits, actions or proceedings arising out of or in connection with the
provisions contained herein may be brought in any state or federal court sitting
in The City of New York or any court in the Province of Ontario and submits
and
attorns to the non-exclusive jurisdiction of each such court.
101
EXHIBIT
C
FORM
OF
PLEDGE AGREEMENT
THIS
PLEDGE AGREEMENT made as of the 20th day of February, 2004.
BETWEEN:
|
XXXXXX
WIRELESS INC., a corporation
organized
under the Canada Business
Corporations
Act
|
| (the “Company”) |
| and |
| JPMORGAN
CHASE BANK, a New York banking
corporation,
as trustee
|
| (the “Trustee”) |
In
consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
it
is hereby covenanted, agreed and acknowledged by and between the parties hereto
as follows:
|
1.
|
In
this Pledge Agreement unless something in the subject matter or context
is
inconsistent therewith, capitalized terms used but not defined herein
have
the respective meanings attributed to them in the Indenture (as defined
below) as in effect on the date hereof and:
|
||
|
(i)
|
“Indenture”
means that certain indenture, of even date herewith, between the
Company,
as issuer, and the Trustee, as trustee, providing for the issuance
of the
Securities (as defined below), as the same may be amended, supplemented,
restated or replaced from time to time; and
|
||
|
(ii)
|
“Securities”
means the U.S.$750,000,000 aggregate principal amount of 6.375% Senior
(Secured) Notes due 2014 of the Company and the Exchange Securities
issued
under the Indenture
|
||
|
2.
|
The
Company hereby deposits with and assigns and pledges to the Trustee
the
Trust Bond to be held by the Trustee pursuant to the provisions hereof,
as
trustee for and on behalf of each of the holders of Securities under
the
Indenture, as general and continuing collateral security for the
due
repayment and satisfaction of all present and future indebtedness,
liabilities and obligations of any kind whatsoever under, in connection
with or relating to the Indenture, including, without limitation,
the
Securities and any ultimate unpaid balance thereof, and to secure
the due
performance of all of the other present and future obligations of
the
Company to the Trustee (including obligations under section 607 of
the
Indenture) and the holders of the Securities under the Indenture
and the
Securities (collectively, the
“Obligations”).
|
||
102
|
3.
|
If,
at any time, an Event of Default shall have occurred and be continuing,
the Trustee may, at any time, realize upon the Trust Bond, in the
manner
and to the extent permitted by law, by sale, transfer or delivery,
and may
exercise and enforce all rights and remedies of a holder of the Trust
Bond
(including, without limitation, making demand thereunder as if the
Trustee
was the absolute owner thereof), without notice to, consent of or
control
by the Company, and, except to the extent required by law, any such
right
or remedy may be exercised separately or in combination with any
other
right or remedy and shall be in addition to and not in substitution
for
any other rights of the Trustee however created; provided that the
Trustee
shall not be bound to exercise any such right or remedy and shall
not be
liable for any loss which may be occasioned by any failure to do
so; and
provided further that any such sale, transfer or delivery shall be
on
terms whereby the Person acquiring the Trust Bond shall hold the
Trust
Bond subject to the provisions hereof.
|
||
|
4.
|
If
any moneys received by the Trustee as payment under the Trust Bond
or by
way of realization of the security hereby constituted are in a currency
(the “Realization Currency”) which is different from the currency of any
of the Obligations secured hereby (the “Agreed Currency”), then, in such
event, the Trustee shall be entitled to convert all or a portion
of such
moneys as are in the Realization Currency into the Agreed Currency
at the
rate of exchange quoted by The Toronto-Dominion Bank at its central
foreign exchange desk in its head office in Toronto at 12:00 noon
(Toronto
time) on the date of receipt and to apply the new amount of moneys
received on such conversion on account of the Obligations hereby
secured,
and, in any such case, the amount of the Obligations hereby secured
will
be reduced by the amount of the Agreed Currency so applied, and,
for
greater certainty, the Company shall remain fully liable for the
balance
of such Obligations.
|
||
|
5.
|
The
proceeds of the Trust Bond, including, without limitation, any
distributions in respect thereof by the Trustee, shall be applied
by the
Trustee on account of such part of the Obligations as it chooses
without
prejudice to the Trustee's claim upon the Company for any
deficiency.
|
||
|
6.
|
The
Trustee may, from time to time, grant extensions of time or other
indulgences, take and give up securities, accept compositions, grant
releases and discharges and otherwise deal with the Company and other
parties, sureties or securities as the Trustee may see fit in accordance
with the terms of the Indenture and the Securities without prejudice
to,
or in any way limiting or lessening the liability of the Company
under, or
the Trustee's right in respect of, the Trust Bond.
|
||
|
7.
|
Upon
full, final and irrevocable satisfaction of the Obligations, the
Trust
Bond, upon Company Order, shall be delivered to the Deed Trustee
for
cancellation.
|
||
|
8.
|
The
Trust Bond shall not operate by way of merger of any of the Obligations,
and no judgment recovered by or on behalf of the Trustee shall operate
by
way of merger of, or in any way affect, the security of the Trust
Bond
which is in addition to and not in substitution for any other security
now
or hereafter held by the Trustee.
|
||
|
9.
|
Notwithstanding
the provisions of any other section of this Pledge Agreement or any
provisions of the Indenture, the Deed of Trust or any security provided
for thereunder, under no circumstances, other than if an Event of
Default
shall have occurred and be continuing, may the Trustee collect or
claim a
right to collect any amounts on or in respect of the Trust Bond or
pursuant to any provisions of the Deed of Trust or the security provided
for thereunder or under the Indenture. If any such amount is, for
any
reason, received by the Trustee, the Trustee shall pay over the amount
to
the Company or to the Restricted Subsidiary providing security in
respect
of the Obligations (the “Payee”) unless (i) an Event of Default shall have
occurred and be continuing or (ii) a Default shall have occurred
and be
continuing, in which case the Trustee shall retain such amount in
trust
for the benefit of the Payee until (a) the Default has been cured
or (b)
any applicable grace period in respect of such Default has expired,
at
which time the Trustee shall pay over such amount to the Payee unless
an
Event of Default shall have occurred and be continuing. Any such
amount
received by the Trustee which the Trustee is required to pay to the
Payee
pursuant to this Section 9 shall, in no circumstances, be deemed
to be a
payment on account of the
Obligations.
|
||
103
|
10.
|
Notwithstanding
that the Trust Bond is expressed to be payable on demand, the Trustee
shall have no right to, and shall not, demand payment unless or until
an
Event of Default shall have occurred and be continuing. Notwithstanding
any provisions of the Trust Bond, payment to the Trustee or the holders
of
the Securities of interest for any period in respect of the Obligations
shall be deemed to be payment in satisfaction of the interest payment
for
the same period under the Trust Bond. No payment of principal on
account
of any of the Obligations shall be treated as a payment on account
of any
of the principal amount of the Trust Bond. The Trustee, in realizing
on
the Trust Bond or the security constituted thereby, shall not claim
under
the Trust Bond any greater amount in the aggregate for principal
and
interest than the aggregate of the Obligations then owing by the
Company.
|
||
|
11.
|
The
Company shall not amend, modify or supplement, or waive or consent
to
departures from, the provisions of the Trust Bond or any other pledge
agreement relating to any other senior secured bond issued pursuant
to the
Deed of Trust except as provided in the Deed of Trust.
|
||
|
12.
|
(a) Upon
the deposit of the Trust Bond pursuant to section 2 hereof, the Trust
Bond
shall have a legend conspicuously noted thereon substantially in
the form
of the legend below:
|
||
|
“This
Bond is subject to the terms and conditions of a pledge agreement,
of even
date herewith, between Xxxxxx Wireless Inc. and JPMorgan Chase Bank,
as
trustee.”
|
|||
|
(b) Any
bond issued under the Deed of Trust in substitution for, or on replacement
of, the Trust Bond shall have conspicuously noted thereon the legend
referred to in section 12(a) hereof.
|
|||
|
13.
|
The
provisions hereof shall be binding upon and shall inure to the benefit
of
the Company, the Trustee and the holders of the Securities under
the
Indenture and their respective successors and
assigns.
|
||
104
|
14.
|
Nothing
contained herein, in the Trust Bond or in the Deed of Trust shall
amend,
modify, vary or otherwise change the rights of the Trustee or any
of the
holders of Securities or the obligations of the Company under the
Indenture or in respect of the Securities or shall limit the rights
of the
Trustee or any of the holders of the Securities under, or in respect
of,
the Obligations.
|
||
|
15.
|
This
Agreement shall be governed by and construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
|
||
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
105
IN
WITNESS WHEREOF, the parties hereto have duly executed this instrument as of
the
day and year first above written.
|
XXXXXX
WIRELESS INC.
|
|
|
By:
|
|
|
X.
Xxxxxxxx Xxxx
|
|
|
Vice-President,
Treasurer
|
|
|
By
|
|
|
Xxxx
X. Xxxx
|
|
|
Vice-President
|
|
|
JPMORGAN
CHASE BANK, as trustee
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
106
EXHIBIT
D
FORM
OF
CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
FROM
RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
[date]
JPMorgan
Chase Bank
0
Xxx
Xxxx Xxxxx, 00xx Floor
New
York,
New York 10004
|
Re: Xxxxxx
Wireless Inc.
(the
“Company”) 6.375% Senior (Secured) Notes
due
2014 (the
“Securities”)
|
Ladies and Gentlemen:
This
letter relates to $_______ principal amount of Securities which are evidenced
by
the Restricted Global Security (CUSIP No. 77531Q AC2) and held with the
Depositary in the name of Cede & Co. and held for the benefit of __________
(the beneficial owner) (the “Transferor”). The Transferor has requested a
transfer of such beneficial interest in the Securities to a Person who will
take
delivery thereof in the form of an equal principal amount of Securities
evidenced by the Regulation S Global Security (CUSIP No. C7925H
AB2).
In
connection with such request and in respect of such Securities, we hereby
certify that such transfer has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the “Securities Act”), and accordingly we
hereby further certify that:
(A) if
the transfer has been effected pursuant to Rule 903 or Rule
904:
(1) the
offer of the Securities was not made to a person in the United
States;
(2) either
(a) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States or (b) the transaction
was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows
that
the transaction has been pre-arranged with a buyer in the United
States;
107
(3) no
directed selling efforts have been made in the United States in contravention
of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
(B) If
the transfer has been effected pursuant to Rule 144, the Securities have been
transferred in a transaction permitted by Rule 144 under the Securities
Act.
Upon
giving effect to this request to exchange a beneficial interest in such
Restricted Global Security for a beneficial interest in a Regulation S Global
Security, the resulting beneficial interest shall be subject to the restrictions
on transfer applicable to Regulation S Global Security pursuant to the Indenture
and the Securities.
You
and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
|
Very
truly yours,
|
|
|
[Name
of Transferor]
|
|
|
By:
|
|
|
Authorized
Signature
|
|
108
EXHIBIT
E
FORM
OF
CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS
FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED
GLOBAL SECURITY
JPMorgan
Chase Bank
0
Xxx
Xxxx Xxxxx, 00xx Floor
New
York,
New York 10004
|
Re: Xxxxxx
Wireless Inc.
(the
“Company”) 6.375% Senior (Secured) Notes
due
2014 (the
“Securities”)
|
Ladies and Gentlemen:
This
letter relates to $_______ principal amount of the Securities which are
evidenced by the Regulation S Global Security (CUSIP No. C7925H AB2) and
held with the Depositary in the name of Cede & Co. and held for the benefit
of __________ (the beneficial owner) (the “Transferor”). The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal principal amount of
Securities evidenced by the Restricted Global Security (CUSIP No. 77531Q AC2),
to be held with the Depositary.
In
connection with such request and in respect of such Securities, the Transferor
hereby certifies that such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933,
as amended (the “Securities Act”), and, accordingly, the Transferor hereby
further certifies that the Securities are being transferred to a Person that
the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Securities are being
transferred in compliance with any applicable blue sky securities laws of any
state of the United States.
Upon
giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the U.S Global Securities pursuant to
the
Indenture and the Securities Act.
109
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under
the
Securities Act.
|
Very
truly your,
|
|
|
[Name
of Transferor]
|
|
|
By:
|
|
110
EXHIBIT
F
FORM
OF
CERTIFICATE FOR TRANSFER OR
EXCHANGE
AFTER TWO YEARS
JPMorgan
Chase Bank
0
Xxx
Xxxx Xxxxx, 00xx Floor
New
York,
New York 10004
|
Re: Xxxxxx
Wireless Inc.
(the
“Company”) 6.375% Senior (Secured) Notes
due
2014 (the
“Securities”)
|
Ladies and Gentlemen:
[For
transfers: This letter relates to $____________ principal amount of Securities
which are evidenced by a Restricted Global Security (CUSIP No. 77531Q AC2)
and
held with the Depositary in the name of Cede & Co. [and held for the
benefit of _________________] (the “Beneficial Owner”). The Beneficial Owner has
requested that its beneficial interest in such Securities be transferred to
a
Person that will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the Regulation S Global Security (CUSIP No.
C7925H AB2).
In
connection with such request and in respect of such Securities, the Beneficial
Owner does hereby certify that upon such transfer, (a) a period of at least
two years will have elapsed since _____, 2004, (b) the Beneficial Owner
during the three months preceding the date of such transfer was not an
“affiliate” of the Company (as defined in Rule 144 under the Securities
Act), and it was not acting on behalf of such an affiliate and (c)such Person
to
whom such transfer is being made is not an “affiliate” of the
Company.]
[For
exchanges: This letter relates to $_______________ principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No. 77531Q
AC2) and held with the Depositary in the name of Cede & Co. [and held for
the benefit of ]___________] (the “Beneficial Owner”). The Beneficial Owner has
requested that its beneficial interest in such Securities be exchanged for
a
beneficial interest in an equal principal amount of Securities evidenced by
the
Regulation S Global Security (CUSIP No. C7925H AB2).
In
connection with such request and in respect of such Securities, the Beneficial
Owner does hereby certify that, upon such exchange, (a) it will be the
beneficial owner of such Securities, (b) a period of at least two years
will have elapsed since February 20, 2004 and (c) the Beneficial Owner
will not be, and during the three months preceding the date of such exchange
will not have been, an “affiliate” of the Company (as defined in Rule 144 under
the Securities Act), and it is not acting on behalf of such an
affiliate.]
111
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
|
DATED:
|
[Insert
Name of Beneficial Owner]
|
|
| By: | ||
|
Name:
Title:
|
||
112
