Contract
Exhibit
99.11
THIS
FIRST SUPPLEMENTAL INDENTURE,
dated as of June 29, 2007 (this “Supplemental Indenture”), is by and
among Xxxxxx Cable Inc., a corporation organized under the laws of Province
of
British Columbia, Canada (hereinafter called “Rogers Cable”), Xxxxxx
Cable Communications Inc., a corporation organized under the laws of the
Province of Ontario and a wholly-owned subsidiary of Rogers Cable (hereinafter
called “RCCI”) and The Bank of New York, a New York banking corporation,
as trustee (successor to JPMorgan Chase Bank, N.A.) (hereinafter called the
“Trustee”).
WITNESSETH
WHEREAS,
Rogers Cable and the Trustee
are parties to an indenture dated as of March 11, 2004, as heretofore
supplemented (the “Indenture”), pursuant to which Rogers Cable’s 5.500%
Senior (Secured) Second Priority Notes due 2014 (the “Notes”) were
issued, which Notes constitute “Securities” as that term is defined in the
Indenture;
WHEREAS,
in accordance with Section
1201 of the Indenture, Xxxxxx Cable has entered into a Pledge Agreement and
assigned, deposited with and pledged the Trust Bond to the Trustee pursuant
to
the Pledge Agreement;
WHEREAS,
Rogers Cable desires to
permanently terminate the Lien of the Pledge Agreement and other Collateral
Documents and any other Lien on the Deed of Trust Collateral (the “Release of
Security”) without the consent of the Holders effective as of June 29,
2007;
WHEREAS,
Section 1018(a) of the
Indenture provides that Rogers Cable may permanently effect the Release of
Security without the consent of the Holders 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 Rogers Cable with similar release provisions, (A) no Debt of
Rogers Cable would be outstanding and (B) there would be no availability
to
Rogers Cable 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, (iii)
no
Default or Event of Default has occurred and is continuing under the Indenture
and (iv) RCCI assumes as co-obligor, by supplemental indenture, all of the
obligations of Rogers Cable under the Securities and the Indenture.
WHEREAS,
on a pro forma basis giving
effect to the Release of Security for the Securities and any other Debt of
Rogers Cable with similar release provisions, (A) no Debt of Xxxxxx Cable
will
be outstanding and (B) there will be no availability to Rogers Cable 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;
WHEREAS,
each of Standards & Poor’s
Ratings Group and Fitch IBCA has assigned a rating of Investment Grade to
the
Securities;
WHEREAS,
no Default or Event of Default
has occurred and is continuing under the Indenture;
WHEREAS,
pursuant to Section
1018(a)(iv) of the Indenture, in connection with the Release of Security,
RCCI
is required to execute and deliver to the Trustee a supplemental indenture
assuming all of the obligations of Rogers Cable under the Securities and
the
Indenture;
WHEREAS,
Rogers Cable, RCCI and the
Trustee desire that, concurrently with the Release of Security, RCCI shall
assume, as a co-obligor, on a joint and several basis with Rogers Cable,
all of
Xxxxxx Cable’s obligations under the Securities and the Indenture;
WHEREAS,
Section 901 of the Indenture
provides that without the consent of any Holders, Xxxxxx Cable, 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 to the Indenture, to among
other
things, make any change that does not adversely affect the rights of any
Holder;
and
WHEREAS,
Xxxxxx Cable has complied with
all conditions precedent provided for in the Indenture relating to this
Supplemental Indenture.
NOW,
THEREFORE, and for and in
consideration of the foregoing premises, Rogers Cable, RCCI and the Trustee
hereby agree for the equal and ratable benefit of the Holders as
follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. Assumption
by RCCI. RCCI hereby assumes, as a co-obligor on a joint and
several basis with Xxxxxx Cable, all obligations and covenants of Rogers
Cable
under the Indenture and the Securities, including for the due and punctual
payment of the principal of, premium, if any, and interest on all Securities
issued or to be issued pursuant to the Indenture and the performance or
observance of each other obligation and covenant set forth in the Indenture
to
be performed or observed on the part of Rogers Cable.
3. References
to the “Company” in the Indenture. All references to the
“Company” in the Indenture shall be deemed to be references to each of Rogers
Cable and RCCI, as co-obligors on a joint and several basis; provided that
(i) with respect to any matter to be determined on a consolidated basis for
the Company and its Restricted Subsidiaries, such matter shall be determined
for
Rogers Cable and its Restricted Subsidiaries, treating RCCI for such purposes
as
a Restricted Subsidiary; (ii) where the context requires that a reference
to the “Company” refer to a single entity only, such reference shall be deemed
to be to Rogers Cable only; and (iii) all references to the board of
directors or any officer of the “Company” shall be deemed to be references to
the board of directors or such officer of Rogers Cable.
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4. Notices. Section
106(b) of the Indenture is hereby amended and restated in its entirety as
follows:
“(b) Xxxxxx
Cable Inc. or
Xxxxxx Cable Communications Inc. 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 Xxxxxx Cable
Inc.
or Xxxxxx Cable Communications Inc., as the case may be, to 333 Bloor Street
East, 10th Floor, Toronto, Ontario, Canada, M4W 1G9, Attention: Vice-president,
Treasurer, fax: 000-000-0000, with a copy to the Vice-President, General
Counsel
and Secretary, fax: 000-000-0000, or, in either case, at any other address
previously furnished in writing to the Trustee by Xxxxxx Cable Inc. or Xxxxxx
Cable Communications Inc.”
5. Deletion
of Certain Provisions. Each of clauses (i), (j) and (l) of
Section 501 (Events of Default), Section 902 (Actions by the Trustee under
the
Deed of Trust and Certain Amendments to the Inter-Creditor Agreement without
the
Consent of Holders), clause (e) of Section 903 (Supplemental Indentures and
Certain Amendments with the Consent of Holders), Section 904 (Amendments
to
Collateral Documents), Section 1007 (Insurance), Section 1008 (Limitation
on
Liens), Section 1018 (Release of Security), Article Twelve (Security Documents)
and Exhibit C of the Indenture is hereby deleted in its entirety and, in
the
case of each such section, clause and exhibit, replaced with the phrase
“[Intentionally Omitted]”. All references to such sections or clauses
shall also be deleted throughout the Indenture, and such sections, clauses
and
references thereto shall be of no further force or effect.
6. Other
Amendments to the Indenture. All definitions in the Indenture
which are used exclusively in the sections and clauses deleted pursuant to
Sections 5 of this Supplemental Indenture or whose sole use or uses in the
Indenture were eliminated in the revisions set forth in Section 5 of this
Supplemental Indenture are hereby deleted. All references, including
references in Article Five (Remedies), Section 1009 (Restricted Subsidiaries)
and the second paragraph of Section 801 (The Company May Amalgamate, etc.,
only
on Certain Terms), in the Indenture to sections and clauses deleted by Section
5
of this Supplemental Indenture, including all references to Bondholders’
Resolution, Collateral Documents, Deed of Trust, Deed of Trust Bondholders,
Deed
of Trust Bonds, Deed of Trust Collateral, Deed Trustee, Designated Subsidiary,
Inter-Creditor Agreement, Mortgaged Property, Pledge Agreement, Release Date,
Senior Secured Bondholders, Specifically Mortgaged Property, Trust Bond,
Trust
Estate, Unanimous Bondholders’ Resolution and similar references relating to the
Deed of Trust or Release of Security, shall also be deleted in their
entirety.
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7. Amendment
to the Securities. The Securities include or refer to certain of
the foregoing provisions from the Indenture to be deleted or amended pursuant
to
Sections 3, 4, 5 or 6 hereof. Such provisions or references in the Securities
shall be deemed deleted or amended, as applicable, notwithstanding the form
of
any certificates representing the Securities. The Exchange Securities
shall be known as the “5.500% Senior Second Priority Notes due
2014”.
8. Trustee’s
Acceptance. The Trustee hereby accepts this Supplemental
Indenture and agrees to perform the same under the terms and conditions set
forth in the Indenture.
9. Responsibility
of Trustee. The recitals contained herein shall be taken as the
statements of Rogers Cable and RCCI, and the Trustee assumes no responsibility
for the correctness of such recitals. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
10. Effect
of Supplemental Indenture. Upon the execution and delivery of
this Supplemental Indenture by Rogers Cable, RCCI and the Trustee, the Indenture
shall be supplemented and amended in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every
Holder
of a Security heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby; provided that the assumption and amendments
effected pursuant to Sections 2, 3 and 4 hereof shall be deemed effective
concurrently with the Release of Security; provided further that the amendments
effected pursuant to Sections 5, 6 and 7 hereof shall be deemed effective
immediately after the Release of Security (except for those amendments to
the
Securities effected pursuant to Section 7 hereof relating to Sections 3 and
4 hereof, which shall be deemed effective concurrently with the Release of
Security); provided further that the deletion of Section 1018(c) of the
Indenture pursuant to Section 5 hereof shall not be deemed effective until
the
Trustee has complied with that Company Order dated June 29, 2007 delivered
pursuant to Section 1018(c) of the Indenture.
11. Indenture
Remains in Full Force and Effect. Except as supplemented or
amended hereby, all other provisions in the Indenture and the Securities,
to the
extent not inconsistent with the terms and provisions of this Supplemental
Indenture, shall remain in full force and effect.
12. Incorporation
of Indenture. All the provisions of this Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture;
and
the Indenture, as supplemented and amended by this Supplemental Indenture,
shall
be read, taken and construed as one and the same instrument.
13. Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, each
of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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14. Effect
of Headings. The headings of this Supplemental Indenture are
inserted for convenience of reference and shall not be deemed to be a part
thereof.
15. Conflict
with Trust Indenture Act. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust
Indenture Act that is required or deemed under the Trust Indenture Act to
be
part of and govern any provision of this Supplemental Indenture, the provision
of the Trust Indenture Act shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the provision of the Trust Indenture
Act shall be deemed to apply to the Indenture as so modified or to be excluded
by this Supplemental Indenture, as the case may be.
16. Successors. All
covenants and agreements in this Supplemental Indenture by Rogers Cable and
RCCI
shall be binding upon and accrue to the benefit of their respective
successors. All covenants and agreements in this Supplemental
Indenture by the Trustee shall be binding upon and accrue to the benefit
of its
successors.
17. Benefits
of Supplemental Indenture. Nothing in this Supplemental
Indenture, the Indenture or the Securities, express or implied, shall give
to
any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture, the Indenture or
the
Securities.
18. GOVERNING
LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN
WITNESS WHEREOF, the parties hereto
have caused this Supplemental Indenture to be duly executed, all as of the
date
first above written.
| XXXXXX CABLE INC., | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
|
|
By:
|
/s/ M. Xxxxxxxx Xxxx | |
| Name: M. Xxxxxxxx Xxxx | |||
| Title: Vice President, Treasurer |
|
XXXXXX
CABLE
COMMUNICATIONS,
INC.,
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
|
|
By:
|
/s/ M. Xxxxxxxx Xxxx | |
| Name: M. Xxxxxxxx Xxxx | |||
| Title: Vice President, Treasurer |
