Contract
Exhibit
99.18
THIS
SECOND SUPPLEMENTAL INDENTURE, dated as of June 29, 2007 (this “Supplemental
Indenture”), is by and among Xxxxxx Wireless Inc., a corporation organized
under the laws of the Province of British Columbia, Canada (hereinafter called
“Rogers Wireless”), Xxxxxx Wireless Partnership, a general partnership
organized under the laws of the Province of Ontario and a wholly-owned
subsidiary of Rogers Wireless (hereinafter called “RWP”) and The Bank of
New York, a New York banking corporation (successor to The Chase Manhattan
Bank), as trustee (hereinafter called the “Trustee”).
WITNESSETH
WHEREAS,
Xxxxxx Wireless, RWP and the Trustee are parties to an indenture dated as of
May
2, 2001, as heretofore supplemented (the “Indenture”), pursuant to which
Xxxxxx Wireless’s 9.625% Senior (Secured) Notes due 2011 (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 Wireless has entered
into a Pledge Agreement and assigned, deposited with and pledged the Trust
Bond
to the Trustee pursuant to the Pledge Agreement;
WHEREAS,
Xxxxxx Wireless 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 1023(a) of the Indenture provides that Xxxxxx Wireless 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 Xxxxxx Wireless with similar release
provisions, (A) no Debt of Xxxxxx Wireless would be outstanding and (B) there
would be no availability to Xxxxxx Wireless 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.
WHEREAS,
on a pro forma basis giving effect to the Release of Security for the Securities
and any other Debt of Xxxxxx Wireless with similar release provisions, (A)
no
Debt of Xxxxxx Wireless will be outstanding and (B) there will be no
availability to Xxxxxx Wireless 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,
Section 901 of the Indenture provides that without the consent of any Holders,
Xxxxxx Wireless and RWP, 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, effect the release of
security as provided in Section 1023 of the Indenture and make any change that
does not adversely affect the rights of any Holder; and
WHEREAS,
Xxxxxx Wireless and RWP have 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, Xxxxxx
Wireless, RWP 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. 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), clause (e) of Section 903 (Supplemental Indentures and Certain
Amendments with the Consent of Holders), Section 904 (Amendments to Collateral
Documents), Section 1011 (Limitation on Liens), Section 1023 (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.
3. Other
Amendments to the Indenture. All definitions in the Indenture
which are used exclusively in the sections and clauses deleted pursuant to
Section 2 of this Supplemental Indenture or whose sole use or uses in the
Indenture were eliminated in the revisions set forth in Section 2 of this
Supplemental Indenture are hereby deleted. All references, including
references in Article Five (Remedies) and Section 1014 (Restricted
Subsidiaries), in the Indenture to sections and clauses deleted by Section
2 of
this Supplemental Indenture, including all references to Amended Deed of Trust,
Bondholders’ Direction, Bondholders’ Resolution, Collateral Documents, Deed of
Trust, Deed of Trust Bondholders, Deed of Trust Bonds, Deed of Trust Collateral,
Deed Trustee, Mortgaged Property, Specifically Mortgaged Property, Pledge
Agreement, Release Date, Senior Secured Bondholders, Trust Bond, Trust Estate
and similar references relating to the Deed of Trust or Release of Security,
shall also be deleted in their entirety.
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4. 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 2 or 3 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 “9.625% Exchange Senior Notes due 2011”.
5. 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.
6. Responsibility
of Trustee. The recitals contained herein shall be taken as the
statements of Xxxxxx Wireless and RWP, 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.
7. Effect
of Supplemental Indenture. Upon the execution and delivery of
this Supplemental Indenture by Xxxxxx Wireless, RWP 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 amendments
effected pursuant to Section 2, 3 and 4 hereof shall be deemed effective
immediately after the Release of Security; provided further that the deletion
of
Section 1023(c) of the Indenture pursuant to Section 2 hereof shall not be
deemed effective until the Trustee has complied with that Company Order dated
June 29, 2007 delivered pursuant to Section 1023(c) of the
Indenture.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
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13. Successors. All
covenants and agreements in this Supplemental Indenture by Xxxxxx Wireless
and
RWP 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.
14. 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.
15. 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 WIRELESS 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
WIRELESS PARTNERSHIP,
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|||
|
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By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
|
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By:
|
/s/ M. Xxxxxxxx Xxxx | |
| Name: M. Xxxxxxxx Xxxx | |||
| Title: Vice President, Treasurer | |||
|
THE
BANK OF NEW YORK,
as
Trustee,
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By:
|
/s/ Van X. Xxxxx | |
| Name: Van X. Xxxxx | |||
| Title: Vice President | |||
