ROGERS COMMUNICATIONS INC., as issuer of the Notes, ROGERS WIRELESS PARTNERSHIP and ROGERS CABLE COMMUNICATIONS INC., as the Guarantors and CIBC MELLON TRUST COMPANY, as Trustee
Exhibit
99.3
XXXXXX
COMMUNICATIONS INC.,
as issuer
of the Notes,
XXXXXX
WIRELESS PARTNERSHIP
and
XXXXXX CABLE COMMUNICATIONS
INC.,
as the
Guarantors
and
CIBC
MELLON TRUST COMPANY,
as
Trustee
FIRST
SUPPLEMENTAL INDENTURE
Dated as
of May 26, 2009
to
INDENTURE
Dated as
of May 26, 2009
5.80% Senior Notes due 2016
PAGE
FIRST
SUPPLEMENTAL INDENTURE dated as of May 26, 2009 (this “Supplemental Indenture”),
among Xxxxxx Communications Inc., a corporation organized under the laws of the
Province of British Columbia (hereinafter called the “Company”), Xxxxxx Wireless
Partnership, an Ontario partnership (hereinafter called “RWP”), Xxxxxx Cable
Communications Inc., a corporation organized under the laws of Ontario
(hereinafter called “RCCI” and, together with RWP, the “Guarantors”), and CIBC
Mellon Trust Company, a trust company existing and licensed under the federal
laws of Canada, as trustee (hereinafter called the “Trustee”).
WHEREAS,
the Company and the Trustee are parties to an indenture dated as of May 26, 2009
(as the same may from time to time be supplemented or amended (other than by a
Series Supplement), the “Indenture”);
WHEREAS,
Article Two and Section 801 of the Indenture provide, among other things, that,
without the consent of any Holders, the Company and the Trustee may enter into a
supplement to the Indenture for the purposes of establishing the form, terms and
conditions applicable to the Securities of any Series which the Company wishes
to issue under the Indenture;
WHEREAS,
the Company desires to establish the form, terms and conditions of a Series of
Securities and has requested the Trustee to enter into this Supplemental
Indenture for such purpose;
WHEREAS,
the Trustee has received an Officers’ Certificate and an Opinion of Counsel of
the Company, in each case complying with Section 103 of the Indenture;
and
WHEREAS,
pursuant to the Indenture, the Board of Directors has duly authorized the
establishment of the 5.80% Senior Notes due 2016 of the Company (the “Notes”)
with the form, terms and conditions as hereinafter set forth;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties hereto, the parties hereto agree, for the
equal and proportionate benefit of all Holders of the Notes, as
follows:
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Capitalized
terms used herein without definition shall have the meanings assigned to them in
the Indenture.
“Attributable
Debt” means, as of the date of its determination, the present value (discounted
semi-annually at the 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).
“Canada
Yield Price” means in respect of any redemption of the Notes, a price, as
determined by the Independent Investment Bankers, equal to the sum of the
present values of the remaining scheduled payments of principal and interest on
the Notes (not including any portion of the payments of interest accrued as of
the date of redemption) discounted to the Redemption Date on a semi-annual basis
(assuming a 365-day year) at the Government of Canada Yield, plus 77 basis
points.
“Company”
means the Person named as the “Company” in the first paragraph of this
Supplemental Indenture, until a successor Person shall have become such pursuant
to the applicable provisions of the Indenture, and thereafter “Company” shall
mean such successor Person. To the extent necessary to comply with
the requirements of the provisions of the Trust Indenture Legislation as they
are applicable to the Company, the term “Company” shall include any other
obligor with respect to the Notes for the purposes of complying with such
provisions.
“Consolidated
Net Tangible Assets” means the Consolidated Tangible Assets of any Person, less
such Person’s current liabilities.
“Consolidated
Tangible Assets” means 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.
“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
Notes 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 of such
Restricted Subsidiary, which provisions have substantially the same effect as
the relevant provisions of Sections 401 and 404 herein, 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.
“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 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 Subordinated
Debt;
(iii) in
the case of Debt, not be secured by any assets or property of the Company or any
Restricted Subsidiary;
(iv) in
the case of Debt or Preferred Stock, 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) in
the case of Debt or Preferred Stock, 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
Maturity Date of the Notes or (y) the date on which all principal of,
premium, if any, and interest on the Notes shall have been duly paid or provided
for in full.
“Existing
Notes” means any of the Existing Senior Notes or the Existing Senior
Subordinated Notes.
“Existing
Senior Notes” means any of the 9.625% Senior Notes Due 2011, 7.625% Senior Notes
Due 2011, 7.25% Senior Notes Due 2011, 7.25% Senior Notes Due 2012, 7.875%
Senior Notes Due 2012, 6.25% Senior Notes Due 2013, 6.375% Senior Notes Due
2014, 5.50% Senior Notes Due 2014, 7.50% Senior Notes Due 2015, 6.75% Senior
Notes Due 2015, 6.80% Senior Notes Due 2018, 8.75% Senior Debentures Due 2032 or
7.50% Senior Notes Due 2038, in each case for which the Company is a co-obligor
or obligor, as applicable.
“Existing
Senior Subordinated Notes” means the 8.00% Senior Subordinated Notes Due 2012
for which the Company and RWP are co-obligors and RCCI is a
guarantor.
“Fitch”
means Fitch Ratings Ltd. or any successor to the rating agency business
thereof.
“Government
of Canada Yield” means, with respect to any Redemption Date, the arithmetic
average of the respective yields determined by the Independent Investment
Bankers to be the bid-side yield to maturity on the third Business Day preceding
the Redemption Date, compounded semi-annually, which a non-callable Government
of Canada Bond would carry if issued in Canadian dollars in Canada, at 100% of
its principal amount on such date with a term to maturity which most closely
approximates the remaining term to maturity of the Notes to be redeemed from
such day as quoted by the Independent Investment Bankers at 10:00 a.m. on such
day.
“Guarantors”
has the meaning set forth in the first paragraph of this Supplemental
Indenture.
“Indenture”
has the meaning set forth in the recitals of this Supplemental
Indenture.
“Independent
Investment Bankers” means RBC Dominion Securities Inc. and TD Securities Inc. or
their successors; provided,
however, that if one or both of the Independent Investment Bankers shall
cease to be a primary Canadian Government securities dealer in Xxxxxxx, Xxxxxxx,
the Company shall substitute for it one or more other primary Canadian
Government securities dealers in Xxxxxxx, Xxxxxxx.
“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.
“Issue
Date” means May 26, 2009, the initial issue date of the Notes.
“Moody’s”
means Xxxxx’x Investors Service, Inc. or any successor to the rating agency
business thereof.
“Net
Tangible Assets” means the Tangible Assets of any Person, less such Person’s
current liabilities.
“Notes”
has the meaning set forth in the recitals of this Supplemental
Indenture.
“Permitted
Liens” means any of the following Liens
(i) 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;
(ii) 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;
(iii)
Liens on Excluded Assets;
(iv)
pledges or deposits under worker’s compensation laws, unemployment insurance
laws or similar legislation or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Debt) or leases or deposits of
cash or bonds or other direct obligations of the United States, Canada or any
Canadian province to secure surety or appeal bonds or deposits as security for
contested taxes or import duties or for the payment of rents;
(v) Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ liens, or other
liens arising out of judgments or awards with respect to which an appeal or
other proceeding for review is being prosecuted (and as to which any foreclosure
or other enforcement proceeding shall have been effectively
stayed);
(vi)
Liens for property taxes not yet subject to penalties for non-payment or which
are being contested in good faith and by appropriate proceedings (and as to
which foreclosure or other enforcement proceedings shall have been effectively
stayed);
(vii)
Liens in favor of issuers of surety bonds issued in the ordinary course of
business;
(viii)
minor survey exceptions, minor encumbrances, easements or reservations of or
rights of others for rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens incidental to the conduct of the business
of the Person incurring them or the ownership of its properties which were not
incurred in connection with Debt or other extensions of credit and which do not
in the aggregate materially detract from the value of such properties or
materially impair their use in the operation of the business of such
Person;
(ix)
Liens in favor of Xxxx Canada (or any successor) under any partial system
agreement or related agreement providing for the construction and installation
by Xxxx Canada of cables, attachments, connectors, support structures, closures
and other equipment in accordance with the plans and specifications of the
Company or any Restricted Subsidiary and the lease by Xxxx Canada of such
equipment to the Company or any Restricted Subsidiary in accordance with tariffs
published by Xxxx Canada from time to time as approved by regulatory
authorities, the absence of which would materially and adversely affect the
Company and its Restricted Subsidiaries considered as a whole; and
(x) any
other Lien existing on the Issue Date.
“Principal
Property” means, as of any date of determination, any land, land improvements or
building (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 of the
Company as of such date of 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, (ii) which
is not used in the ordinary course of business or (iii) in which the
interest of the Company and all its Subsidiaries does not exceed
50%.
“Rating
Agencies” means S&P, Xxxxx’x and Fitch, 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 shall be
extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by any of the Rating Agencies): (i) in the
event the Notes are assigned an Investment Grade Rating by at least two of the
three Rating Agencies on the Rating Date, the rating of the Notes by at least
two of the three Rating Agencies shall be below an Investment Grade Rating; or
(ii) in the event the Notes are rated below an Investment Grade Rating by at
least two of the three Rating Agencies on the Rating Date, the rating of the
Notes 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).
“RCCI”
has the meaning set forth in the first paragraph of this Supplemental
Indenture.
“RWP” has
the meaning set forth in the first paragraph of this Supplemental
Indenture.
“S&P”
means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor to the rating agency business
thereof.
“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 (other than a
Restricted Subsidiary that guarantees the payment obligations of the Company
under the Notes); 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 Issue 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 2.5% of
the Company’s Consolidated Net Tangible Assets 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; or
(4)
existing at the time a corporation or other Person becomes a Restricted
Subsidiary;
each of
the foregoing being referred to as “Exempted Secured Debt”.
“Subordination
Agreement” means the subordination agreement among the Company, the Guarantors,
the Trustee, and The Bank of New York Mellon (f/k/a JPMorgan Chase Bank, N.A.
and subsequently f/k/a The Bank of New York), as trustee for the holders of the
Existing Senior Subordinated Notes (the “Subordinated Note Trustee”), in the
form of Annex A attached hereto.
“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.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
Supplemental Indenture, until a successor shall have become such pursuant to the
applicable provisions of the Indenture, and thereafter “Trustee” shall mean such
successor Trustee.
|
DEFINED
TERM
|
DEFINED
IN
SECTION
|
|
Change
in
Control
|
401
|
|
Change
in Control
Offer
|
404(a)
|
|
Change
in Control Purchase
Date
|
404(a)
|
|
Change
in Control Purchase
Notice
|
404(b)
|
|
Change
in Control Purchase
Price
|
404(a)
|
|
Change
in Control Triggering
Event
|
401
|
|
Xxxxxx
X.
Xxxxxx
|
401
|
|
Family
Percentage
Holding
|
401
|
|
Guarantee
|
701(a)
|
|
Guaranteed
Obligations
|
701(a)
|
|
Maturity
Date
|
301
|
|
Member
of the Rogers
Family
|
401
|
|
Permitted
Residuary
Beneficiary
|
401
|
|
Perpetuity
Date
|
401
|
|
Qualifying
Trust
|
401
|
|
DEFINED
TERM
|
DEFINED
IN
SECTION
|
|
Spouse
|
401
|
|
Successor
Guarantor
|
703
|
Upon
the execution and delivery of this Supplemental Indenture by the Company, the
Guarantors 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; provided,
however,
that except as otherwise provided herein, the provisions of this Supplemental
Indenture shall be applicable, and the Indenture is hereby supplemented and
amended as specified herein, solely with respect to the Notes and not with
respect to any other Securities previously issued or to be issued under the
Indenture. In the event of a conflict between any provisions of the
Indenture and this Supplemental Indenture, the relevant provision or provisions
of this Supplemental Indenture shall govern.
Except
as supplemented or amended hereby, all other provisions in the Indenture, to the
extent not inconsistent with the terms and provisions of this Supplemental
Indenture, shall remain in full force and effect.
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; provided,
however,
that the provisions of this Supplemental Indenture are expressly and solely for
the benefit of the Holders of the Notes.
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.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof. Unless
otherwise expressly specified, references in this Supplemental Indenture to
specific Article numbers or Section numbers refer to Articles and Sections
contained in this Supplemental Indenture, and not the Indenture or any other
document.
All
covenants and agreements in this Supplemental Indenture by the Company and the
Guarantors shall bind their respective successors and permitted assigns (if
any), whether so expressed or not. All covenants and agreements of
the Trustee in this Supplemental Indenture shall bind its successors and
permitted assigns (if any), whether so expressed or not.
In
case any provision in this Supplemental Indenture or in the Notes 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.
Nothing
in this Supplemental Indenture or in the Notes, express or implied, shall give
to any Person (other than the parties hereto, any Paying Agent and any Security
Registrar, and their successors hereunder, and the Holders) any benefit or any
legal or equitable right, remedy or claim under this Supplemental Indenture or
in respect of the Notes.
This
Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein. This Supplemental Indenture shall be subject to
the provisions of Trust Indenture Legislation that are required or deemed to be
part of this Supplemental Indenture and shall, to the extent applicable, be
governed by such provisions.
The
Notes 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 Supplemental Indenture, or as may reasonably be required by the Depositary
and are not prejudicial to the beneficial holders of the Notes, 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 Notes, as evidenced by their execution of the Notes (but
which shall not affect the rights or duties of the Trustee). Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The
definitive Notes 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 the Depositary or any securities exchange on which the Notes may be
listed, all as determined by the officers executing such Notes, as evidenced by
their execution of such Notes.
The Notes
shall be in registered form and shall initially be registered in the name of the
Depositary or its nominee. The Notes shall be issued initially as
Book-Entry Securities in the form of one or
more Global Securities substantially in the form set forth in this Article
delivered to the Depositary or a nominee thereof as custodian therefor and held
by the Depositary or a nominee thereof for the applicable Clearing Agency
Participants, and duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The Depositary for such Global Securities
shall be CDS. The aggregate principal amount of the 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.
The
Notes and the Trustee’s certificate of authentication to be endorsed thereon are
to be substantially in the form provided for in this Section 202 and Sections
203 and 204:
[Note: Insert if CDS is Depositary –
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO THE COMPANY (HEREINAFTER
REFERRED TO) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS &
CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED HOLDER HEREOF, CDS & CO., HAS AN INTEREST IN THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER
PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE. THIS CERTIFICATE IS
ISSUED PURSUANT TO A BOOK ENTRY ONLY SECURITIES SERVICES AGREEMENT BETWEEN THE
COMPANY AND CDS, AS SUCH AGREEMENT MAY BE REPLACED OR AMENDED FROM TIME TO
TIME.]
[Note: Insert if a Global Security –
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE INDENTURE
(HEREINAFTER REFERRED TO). THIS NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE BASE INDENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 207(B) OF THE BASE INDENTURE,
(III) THIS NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 211 OF THE BASE INDENTURE AND (IV) EXCEPT AS OTHERWISE PROVIDED IN
SECTION 207(B) OF THE BASE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE
BUT NOT IN PART, ONLY (X) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
(Y) BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR (Z) BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR
DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
XXXXXX
COMMUNICATIONS INC.
5.80%
SENIOR NOTES DUE 2016
|
No.
■
|
CUSIP:
000000XX0
|
|
ISIN:
CA 775109AM37
|
Xxxxxx
Communications Inc., a corporation organized under the laws of the Province of
British Columbia (herein called the “Company”, which term includes any successor
entity under the Indenture hereinafter referred to), for value received, hereby
promises to pay to [CDS & CO.][■] or registered
assigns, the principal sum of ____________ Canadian dollars (or such other
amount that may from time to time be indicated on the records of the Depositary
as the result of increases or decreases by adjustments made on the records of
the Depositary, in accordance with the rules and procedures of the Depositary)
on May 26, 2016 at the office or agency of the Company referred to below, and to
pay interest thereon in arrears, semi-annually in equal installments, on May 26
and November 26 in each year (each herein called an “Interest Payment Date”),
commencing on November 26, 2009, which interest shall accrue from and including
May 26, 2009 or, if interest has already been paid or duly provided for, from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of 5.80% per annum, until the principal hereof is paid
or duly provided for, and (to the extent lawful) to pay interest on any overdue
interest at the rate borne by the Notes 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 Note (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 May 11 or November
11 (whether or not a Business Day), as the case may be, immediately preceding
such Interest Payment Date. Any such interest not so punctually paid
or duly provided for, and interest on such Default Interest, at the interest
rate borne by the Notes, 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 Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Default
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes 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 Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment
of the principal of (and premium, if any) and interest on this Note will be made
at the office or agency of the Company maintained for that purpose in the City
of Toronto (which initially shall be the Corporate Trust Office of the Trustee),
and if the Company shall designate and maintain an additional office or agency
for such purpose, also at such additional office or agency, in Canadian 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 Notes, 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
Cdn$1,000,000 in principal amount of Notes, 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 Note to the Paying Agent.
For any
interim period, interest on this Note shall be computed on the basis of a
365-day year, based on the number of days elapsed in the period.
Reference
is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless
the certificate of authentication hereon has been duly executed by the Trustee
referred to on the reverse hereof by manual signature, this Note 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.
Dated:
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XXXXXX
COMMUNICATIONS INC.
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By
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Title:
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By
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Name:
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Title:
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This
Note is one of a duly authorized issue of securities of the Company designated
as its 5.80% Senior Notes due 2016 (herein called the “Notes”), which may be
issued under an indenture (as the same may from time to time be supplemented or
amended (other than by a Series Supplement), herein called the “Base Indenture”)
dated as of May 26, 2009 between the Company and CIBC Mellon Trust Company, as
trustee (herein called the “Trustee”, which term includes any successor trustee
thereunder), as supplemented and amended by the First Supplemental Indenture
dated as of May 26, 2009 among the Company, Xxxxxx Wireless Partnership, an
Ontario partnership, Xxxxxx Cable Communications Inc., a corporation organized
under the laws of Ontario (together with Xxxxxx Wireless Partnership, the
“Guarantors”), and the Trustee (herein called the “Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”), to which the Indenture
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Guarantors, the Trustee and the Holders of the Notes, and of the terms upon
which the Notes are, and are to be, authenticated and delivered.
On or
before each Interest Payment Date, the Company shall deliver or cause to be
delivered to the Trustee or the Paying Agent an amount in Canadian dollars
sufficient to pay the amount due on such payment date.
To
guarantee the due and punctual payment of the principal and interest on the
Notes and all other amounts payable by the Company under the Indenture and the
Notes when and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Notes and the
Indenture, the Guarantors have, jointly and severally, fully and unconditionally
guaranteed the Guaranteed Obligations on an unsecured, unsubordinated basis
pursuant to the terms of the Indenture.
The Notes
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
Cdn$1,000 or any integral multiple thereof, at the option of the Company, at a
Redemption Price equal to the greater of: (1) 100% of the principal amount of
the Notes to be redeemed, and (2) the Canada Yield Price, in each case plus
accrued interest thereon to the Redemption Date.
In the
case of any redemption of Notes, interest installments whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of record of
such Notes, or one or more Predecessor Securities, at the close of business on
the relevant Regular Record Date referred to on the face hereof. Notes (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 Note in part
only, a replacement Note or Notes for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the cancellation
hereof.
If an
Event of Default (other than an Event of Default resulting from a Change in
Control Triggering Event which is cured in accordance with Section 404 of the
Supplemental Indenture by the making and consummation of a Change in Control
Offer) shall occur and be continuing, the principal amount of all the Notes 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 Notes.
Following such an Event of Default the principal amount of all the Notes may be
declared due and payable in the manner and with the effect 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 Notes and
purchases the Notes 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 Note 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 Note.
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 not less than a majority in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, 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
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note 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 Note.
No
reference herein to the Indenture and no provision of this Note 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 Note 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 Note is registrable on the Security Register, upon
surrender of this Note for registration of transfer at the Corporate Trust
Office of the Trustee or any other office or agency of the Company designated
pursuant to the Indenture 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 Notes of any authorized
denomination or denominations, of a like aggregate principal amount and
containing identical terms and provisions, will be issued to the designated
transferee or transferees.
The Notes
are issuable only in registered form without coupons in denominations of
Cdn$1,000 or any integral multiple thereof.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Notes, 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 Note 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 Note is registered as the owner hereof for all
purposes except as otherwise provided, whether or not this Note be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
All terms
used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION CIBC Mellon Trust Company, as Trustee, certifies
that this is one of the Notes referred to in the within-mentioned
Indenture.
CIBC
Mellon Trust Company
By
_________________________________
Authorized Signing
Officer
The
Notes shall be known and designated as the “5.80% Senior Notes due 2016” of the
Company. The entire unpaid principal amount of each Note shall be
become due and payable to the Holder thereof on May 26, 2016 (the “Maturity
Date”). Interest shall accrue on the aggregate unpaid principal
amount of each Note at a rate of interest equal to 5.80% per annum from May 26,
2009 or, if interest has been paid or duly provided for, the most recent
Interest Payment Date to which interest has been paid or duly provided
for. Such interest shall be payable semi-annually in equal
installments on May 26 and November 26 in each year (each an Interest Payment
Date for purposes of this Supplemental Indenture), commencing on November 26,
2009, until the principal thereof is paid or duly provided
for. Interest on the Notes shall be payable in
arrears. The Regular Record Date for the interest payable on any
Interest Payment Date shall be the May 11 or November 11 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date. To the extent lawful, interest shall accrue on any overdue
interest at the rate borne by the Notes 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 and such Default Interest shall be
payable at the times and on the terms provided for in the
Indenture.
An
unlimited aggregate principal amount of the Notes may be authenticated and
delivered under this Supplemental Indenture (of which Cdn$1,000,000,000 is being
issued, authenticated and delivered on the date hereof), including Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 204, 205, 206, 207, 208,
806, 1008 or 1009 of the Indenture and Section 404
hereof. Additional Notes ranking pari passu with the
Securities issued on the date hereof may be created and issued under the
Indenture from time to time by the Company without notice to or consent of the
Holders, subject to the Company complying with any applicable provision of the
Indenture. Any additional Notes created and issued shall have the
same terms and conditions as the Notes initially issued, except for their date
of issue, issue price and first Interest Payment Date, and shall be consolidated
with and form a single Series with the Notes initially issued.
The Notes
shall be unsecured, unsubordinated obligations of the Company ranking pari passu with any other
present or future unsecured, unsubordinated obligations of the
Company.
The Notes
shall be denominated in, and all principal of, and interest and premium (if any)
on, the Notes shall be payable in Canadian dollars.
The Notes
may be redeemed at the option of the Company at the prices, at the times and on
such other terms and conditions as are specified in the form of the Note in
Article Two hereof. The Company shall not be obligated to redeem,
purchase or repay the Notes pursuant to any sinking fund or analogous provisions
or at the option of a Holder of the Notes except as provided in Article Six
hereof.
The Notes
shall be subject to the covenants (and the related definitions) set forth in
Articles Seven and Nine of the Indenture and, except as otherwise provided
herein, to any other covenant in the Indenture, and to the defeasance and
discharge provisions set forth in Article Three thereof.
Certain
obligations of the Company under the Notes shall be fully and unconditionally
guaranteed on a joint and several basis by each of the Guarantors to the extent
set forth in Article Seven hereof.
The
Notes shall be issuable only in fully registered form without coupons and in
denominations of Cdn$1,000 or an integral multiple thereof.
If,
upon any consolidation or amalgamation of the Company or a Guarantor, as
applicable, with or merger of the Company or a Guarantor, as applicable, into
any other Person, or upon any conveyance, transfer, lease or disposition of the
properties and assets of the Company or a Guarantor, as applicable,
substantially as an entirety to any Person by liquidation, winding-up or
otherwise (in one transaction or a series of related transactions), in each case
in accordance with Section 701 of the Indenture, in the case of the Company, or
Section 703 of this Supplemental Indenture, in the case of a Guarantor, 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 pursuant to Section
502 without equally and ratably securing the Notes, the Company or the
Guarantor, as applicable, prior to or simultaneously with such consolidation,
amalgamation, merger, conveyance, transfer, lease or disposition, will, as to
such property or asset, secure the Notes Outstanding hereunder (together with,
if the Company or such Guarantor shall so determine, any other Debt of the
Company or such Guarantor now existing or hereafter created which is not
subordinate to the Notes) 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 Notes to be so secured.
In
addition to the Events of Default set forth in Section 401 of the Indenture,
“Event of Default”, wherever used herein and in the Indenture with respect to
the Notes, includes the occurrence of a Change in Control Triggering Event
(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).
Under
this Supplemental 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
Notes.
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 of Persons (as the term “group” is used in Rule
13d-5 of the United States Securities Exchange Act of 1934, as amended and as in
force at the date hereof), other than Members of the Rogers Family or a Person
or group of Persons consisting of or controlled, directly or indirectly, by one
or more Members of the Rogers Family, 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 of Persons, other than (A) Members of the
Rogers Family or a Person or group of Persons consisting of or controlled,
directly or indirectly, by one or more Members of the Rogers Family 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 (i) of the definition of “Member of the
Rogers Family” or the Spouse, for the time being and from time to time, of the
issue (including individuals adopted by such Persons, provided that such adopted
individuals have not attained the age of majority at the date of such adoption,
together with the issue of any such adopted individuals) of any person described
in subclause (i)(b) or (c) 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 any 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.
“Member
of the Rogers Family” means (i) such of the following persons as are living at
the date of this Supplemental Indenture or are born after the date of this
Indenture and before the Perpetuity Date: (a) the widow, if any, of
Xxxxxx X. Xxxxxx (who was born on May 27, 1933, such individual being
hereinafter referred to as “Xxxxxx X. Xxxxxx”); (b) the issue of
Xxxxxx X. Xxxxxx; (c) Xxx Xxxxxx Xxxxxx Xxxxxxxxx, the half-sister of
Xxxxxx X. Xxxxxx, and the issue of Xxx Xxxxxx Xxxxxx Xxxxxxxxx; (d) individuals
adopted by Xxxxxx X. Xxxxxx or any of the persons described in subclauses (a) or
(b) of this clause (i), provided that such adopted
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; (ii) the trustees of any Qualifying Trust, but
only to the extent of such Qualifying Trust’s Family Percentage Holding of
voting securities or rights to control or direct the voting securities of the
Company at the time of the determination.
“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) 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.
“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 subclause (i)(a), (b), (c)
or (d) of the definition of “Member of the Rogers Family”, who are living at the
date of this Indenture.
“Qualifying
Trust” means a trust (whether testamentary or inter vivos) any beneficiary of
which is a person referred to in clause (i) of the definition of “Member of the
Rogers Family” or the Spouse, for the time being and from time to time, of the
issue (including individuals adopted by such Persons, provided that such adopted
individuals have not attained the age of majority at the date of such adoption,
together with the issue of any such adopted individuals) of any person described
in subclause (i)(b) or (c) of the definition of “Member of the Rogers Family”,
provided that such
Spouse 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”).
“Spouse”
means, in relation to any person, a person who is legally married to that person
and includes a widow or widower of that person, notwithstanding
remarriage.
If
a Change in Control Triggering Event 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 404 hereof, then and in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Notes
then Outstanding may declare the principal of all such Notes 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.
Notwithstanding
Section 413 of the Indenture, the Holders of Notes may not waive any past
Default or Event of Default arising from a Change in Control Triggering Event by
providing a written notice of a Holder Direction to the Trustee. Any
such Default or Event of Default may be waived only with the consent of the
Holder of each Outstanding Note.
(a)
The Notes may not be accelerated pursuant to Section 402 hereof following an
Event of Default arising from a Change in Control Triggering Event and such
Event of Default shall be cured if the Company complies with the provisions of
this Section 404. If the Company elects to cure such Event of
Default, within 20 Business Days of the occurrence of an Event of Default
arising from a Change in Control Triggering Event, (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”) all outstanding Notes properly tendered 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 CNW Group Ltd. (Canada
News Wire) or a 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:
(i)
the events causing a Change in Control Triggering Event and the date such Change
in Control Triggering Event is deemed to have occurred;
(ii)
that the Change in Control Offer is being made pursuant to this Section 404 and
that all Notes properly tendered pursuant to the Change in Control Offer will be
accepted for payment;
(iii)
the date by which the Change in Control Purchase Notice pursuant to this Section
404 must be given;
(iv)
the Change in Control Purchase Date;
(v)
the Change in Control Purchase Price;
(vi) the
names and addresses of the Paying Agent and the offices or agencies referred to
in Section 902 of the Indenture;
(vii)
that Notes must be surrendered to the Paying Agent at the office of the Paying
Agent or to an office or agency referred to in Section 902 of the Indenture to
collect payment;
(viii)
that the Change in Control Purchase Price for any Note 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 Note as described in
clause (vii) above;
(ix)
the procedures the Holder must follow to accept the Change in Control Offer;
and
(x)
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
902 of the Indenture 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:
(i) that
such Holder elects to have a Note purchased pursuant to the Change in Control
Offer;
(ii) the
principal amount of the Note that the Holder elects to have purchased by the
Company, which amount must be Cdn$1,000 or an integral multiple thereof, and the
certificate numbers of the Notes to be delivered by such Holder for purchase by
the Company; and
(iii)
that such Note shall be purchased on the Change in Control Purchase Date
pursuant to the terms and conditions specified in this Supplemental
Indenture.
The
delivery of such Note (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 902 of the Indenture 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 404 only if the
Note so delivered to the Paying Agent or to an office or agency referred to in
Section 902 of the Indenture 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 404, a
portion of a Note if the principal amount of such portion is Cdn$1,000 or an
integral multiple of Cdn$1,000. Provisions of the Indenture that
apply to the purchase of all of a Note also apply to the purchase of a portion
of such Note.
Any
purchase by the Company contemplated pursuant to the provisions of this Section
404 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 Note by the Holder to the Paying Agent or to an office or agency
referred to in Section 902 of the Indenture in the manner required by this
Section 404.
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 902 of the Indenture, the Change in Control Purchase Notice
contemplated by this Section 404(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
902 of the Indenture in accordance with Section 601 hereof.
The
Paying Agent or the office or agency referred to in Section 902 of the Indenture
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
Notes may also not be accelerated pursuant to Section 402 hereof following an
Event of Default arising from a Change in Control Triggering Event 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 404.
ADDITIONAL
COVENANTS
(a)
The Board of Directors of the Company 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 and (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; provided,
however,
that for the purposes of this Section 501, (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.
(b) The
Board of Directors of the Company may not designate any Unrestricted Subsidiary
as a Restricted Subsidiary unless immediately before and after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing.
(c)
Nothing in this Section 501 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.
The
Company will not, and will 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, or causes such Restricted Subsidiary to secure, the Notes
equally and ratably with (or prior to) such Secured Debt. However,
any of the Company or its Restricted Subsidiaries may incur Secured Debt without
securing the Notes if, immediately after incurring the Secured Debt, the
aggregate principal amount of all Secured Debt then outstanding plus the
aggregate amount of the Attributable Debt then outstanding pursuant to Sale and
Leaseback Transactions would not exceed 15% of the Company’s 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 Notes and Secured Debt that is being repaid
concurrently. Any Lien which is granted to secure the Notes under
this Section 502 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 Notes under this Section 502.
The
Company will not, and will 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 Issue Date (or, in the
case of a Restricted Subsidiary, the date on which it became a Restricted
Subsidiary, if on or after the Issue Date) and (2) the aggregate amount of all
Secured Debt, excluding Secured Debt which is secured equally and ratably with
the Notes, would 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 Debt of the Company or a Restricted
Subsidiary. However, Debt which is subordinate to the Notes or which
is owed to the Company or a Restricted Subsidiary may not be retired in
satisfaction of clause (b) above.
The
Company will not permit any Restricted Subsidiary to, directly or indirectly,
create, incur, assume or suffer to exist any Debt (other than Debt to the extent
that the Notes are secured equally and ratably with (or prior to) such Debt),
unless (1) the obligations of the Company under the Notes are guaranteed (which
guarantee may be on an unsecured basis) by such Restricted Subsidiary such that
the claim of the Holders of the Notes under such guarantee ranks prior to or
pari
passu with such Debt or (2) after giving effect to the incurrence of such
Debt and the application of the proceeds therefrom, the sum of (without
duplication) (x) the then outstanding aggregate principal amount of Debt (other
than Exempted Secured Debt) of all Restricted Subsidiaries, (y) the then
outstanding aggregate principal amount of Secured Debt of the Company (not on a
Consolidated basis) and (z) Attributable Debt relating to then outstanding
Sale and Leaseback Transactions, would not exceed 15% of Consolidated Net
Tangible Assets; provided,
however,
that this restriction will not apply to, and there will be excluded from any
calculation hereunder, (A) Debt owing by a Restricted Subsidiary to the Company
or to another Restricted Subsidiary and (B) Debt secured by Permitted Liens;
provided,
further,
that this restriction will not prohibit the incurrence of Debt in connection
with any extension, renewal or replacement (including successive extensions,
renewals or replacements), in whole or in part, of any Debt of the Restricted
Subsidiaries (provided that the principal amount of such Debt immediately prior
to such extension, renewal or replacement is not increased).
At
the time this Indenture is entered into, each of the Company, the Guarantors,
the Trustee and the Subordinated Note Trustee shall have entered into the
Subordination Agreement.
Pursuant
to Section 910 of the Indenture, the Company may omit in any particular instance
to comply with any covenant or condition in Sections 905 or 906 thereof and any
covenant or condition in Sections 501, 502, 503, 504 or 505 of this Supplemental
Indenture if, before or after the time for such compliance, the Holders of all
of the Notes at the time Outstanding shall, by Holder Direction, 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.
CHANGE
IN CONTROL PROVISIONS
Upon
receipt by the Company of the Change in Control Purchase Notice specified in
Section 404(b) hereof, the Holder of the Note 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 Note. 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 404(b) hereof have been satisfied) and (b) the time of delivery of the
Note to the Paying Agent at the office of the Paying Agent or to the office or
agency referred to in Section 902 of the Indenture by the Holder thereof in the
manner required by Section 404(b) hereof.
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 Note 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 902 of the
Indenture 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:
(a) the
certificate number of the Note in respect of which such notice of withdrawal is
being submitted,
(b) the
principal amount of the Note (which shall be Cdn$1,000 or an integral multiple
thereof) with respect to which such notice of withdrawal is being submitted,
and
(c) the
principal amount, if any, of such Note (which shall be Cdn$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 Notes
with respect to which a Change in Control Purchase Notice has been withdrawn in
compliance with this Supplemental Indenture.
No
later than 11:00 a.m. (Toronto, Ontario 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 903 of the
Indenture) an amount of cash sufficient to pay the aggregate Change in Control
Purchase Price of all the Notes or portions thereof that are to be purchased as
of the Change in Control Purchase Date.
As
provided in the Notes, the Trustee and the Paying Agent shall return to the
Company any cash that remains unclaimed, together with interest and dividends,
if any, thereon (subject to the provisions of Section 507 of the Indenture),
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 602 hereof exceeds the aggregate Change in Control Purchase
Price of the Notes 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 and dividends, if any, thereon
(subject to the provisions of Section 507 of the Indenture).
GUARANTEES
(a)
Each Guarantor hereby jointly and severally and fully and unconditionally
guarantees (each, a “Guarantee”) due payment and performance to the Trustee, for
and on behalf of the Holders, forthwith after demand, of all the obligations of
the Company under this Supplemental Indenture or under the Notes to pay the
principal of (and premium, if any) and interest on the Notes when due and
payable at Maturity, and all other amounts due or to become due under or in
connection with this Supplemental Indenture, the Notes and the performance of
all other obligations to the Trustee (including all amounts due to the Trustee
under Section 507 of the Indenture) and the Holders of the Notes which
obligations arise under this Supplemental Indenture and the Notes, according to
the terms hereof and thereof, including any applicable grace periods (the
“Guaranteed Obligations”). Each Guarantee shall be an unsecured,
unsubordinated obligation of the applicable Guarantor ranking pari
passu with other present and future unsecured, unsubordinated obligations
of such Guarantor.
(b) Each
Guarantor agrees that, without obtaining the consent of or giving notice to such
Guarantor, the Trustee may vary this Supplemental Indenture or the Indenture, as
provided herein and therein, grant extensions of time or other indulgences, take
and give up securities, grant releases and discharges and otherwise deal with
the Company and other parties as the Trustee may see fit and may apply all
monies received from the Company or others or from securities upon such part of
the Company’s liability as the Trustee may think best without prejudice to or in
any way limiting or lessening the liability of the Guarantor under this
Supplemental Indenture.
(c) Each
Guarantee shall be a continuing guarantee of all the Guaranteed Obligations and
shall apply to any ultimate balance due or remaining unpaid to the Holders of
the Notes. No Guarantee shall be considered as wholly or partially
satisfied by the payment or liquidation at any time of any sum of money which
may at any time be or become owing or due or remain unpaid to the Holders of the
Notes.
(d) No
Guarantee shall be discharged or otherwise affected by any change in the name,
objects, businesses, assets, capital structure or constitution of the Company or
any Guarantor, or by any merger or amalgamation of the Company or any Guarantor
with any Person or Persons, except as otherwise provided in this Supplemental
Indenture or the applicable provisions of the Indenture. In the case
of the Company being amalgamated with another corporation, the Guarantees shall
apply to the liabilities of the resulting corporation, and the term “Company”
shall include each such resulting corporation.
(e) All
monies, advances, renewals and credits in fact borrowed or obtained by the
Company under this Supplemental Indenture shall be deemed to form part of the
liabilities hereby guaranteed notwithstanding any limitation of status or of
power of the Company or of the directors or agents thereof or that the Company
may not be a legal entity or any irregularity, defect or informality in the
borrowing or obtaining of such monies, advances, renewals or
credits.
(f) The
obligations of each Guarantor hereunder are and shall be absolute and
unconditional and any moneys or amounts expressed to be owing or payable by each
Guarantor hereunder which may not be recoverable from each Guarantor on the
basis of a guarantee or as surety shall be recoverable from each Guarantor as a
primary obligor and principal debtor in respect thereof.
(g) The
Trustee shall not be bound to exhaust its recourse against the Company or other
parties before being entitled to demand payment from or performance by any
Guarantor and enforce its rights under this Supplemental Indenture.
(h) Any
account settled or stated by or between the Trustee and the Company in relation
to this Supplemental Indenture shall be accepted by the Guarantor as conclusive
evidence that the balance or amount thereby appearing due by the Company to the
Trustee is so due.
(i) Each
Guarantor shall make payment to the Trustee of the amount of the liability of
such Guarantor forthwith after demand therefor is made in writing during the
continuance of any Event of Default and such demand shall be conclusively deemed
to have been effectually made when delivered in accordance with the notice
provisions set forth herein and the liability of such Guarantor shall bear
interest from the date of such demand at the rate borne by the Notes, such
interest to be calculated monthly based on the number of days elapsed and to be
deemed payable on the first Business Day of a month in respect of the
immediately preceding month or upon demand, whichever is earlier.
(j) All
amounts payable by any Guarantor under this Supplemental Indenture shall be paid
without set-off or counterclaim and without any deduction or withholding
whatsoever unless and to the extent that a Guarantor shall be prohibited by law
from doing so, in which case such Guarantor shall, only to the extent such a
similar requirement is imposed on the Company pursuant to this Supplemental
Indenture, pay to the Trustee such additional amount as shall be necessary to
ensure that the Trustee receives the full amount it would have received if no
such deduction or withholding had been made.
(k) Each
Guarantor acknowledges that, in any suit, action or proceeding arising out of or
relating to the Notes, the Guarantees or this Supplemental Indenture, it
irrevocably submits and attorns to the non-exclusive jurisdiction of the courts
of the Province of Ontario. In addition, to the extent that any
Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
(a)
In addition to the release provisions set forth in the Indenture, subject to
Section 702(d), a Guarantor shall be released and relieved from all of its
obligations under this Article Seven, and such Guarantor’s Guarantee shall be
terminated and be of no further force or effect, upon the request of the Company
(without the consent of the Trustee) if, immediately after giving effect to such
release and termination (and, if applicable, any transaction in connection
therewith, including any other concurrent release, termination, repayment or
discharge of any other guarantee or other Debt of such Guarantor), the Company
would be in compliance with Section 504 hereof, including in the event of a sale
or other disposition as a result of which such Guarantor would cease to be a
Subsidiary.
(b) In
order to effect the release and termination provided for in Section 702(a), the
Company shall furnish to the Trustee an Officers’ Certificate stating that,
immediately after giving effect to such release and termination (as well as any
concurrent release, termination, repayment or discharge of any other guarantee
or other Debt of such Guarantor), the Company will be in compliance with Section
504 hereof. In the event that the release and termination is in
connection with a sale or other disposition as a result of which a Guarantor
would cease to be a Subsidiary, pro forma effect shall be
given to such disposition (including the application of any proceeds therefrom)
in determining the Company’s compliance with Section 504 and, accordingly, the
amount of Debt subject to the Guarantee of such Guarantor and any other Debt of
such Guarantor shall be excluded from any calculation
thereunder. Notwithstanding any provision to the contrary in the
Indenture or this Supplemental Indenture, no opinion, report or certificate,
other than the Officers’ Certificate provided for in this Section 702(b), need
be furnished to the Trustee for such release and termination. After
its receipt of the aforementioned Officers’ Certificate, the Trustee shall
execute any documents reasonably requested by either the Company or the
applicable Guarantor in order to evidence the release of such Guarantor from its
obligations under its Guarantee under this Article Seven.
(c) No
supplemental indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Note, release a Guarantor from any of its obligations
under Section 701, other than in accordance with the provisions of this Section
702 or the other release provisions set forth in the Indenture, or amend or
modify the release provisions of this Section 702.
(d)
Notwithstanding the release provisions of Section 702(a), no Guarantor shall be
released from its obligations under this Article Seven and its Guarantee will
not be terminated if, immediately after such release and termination (and, if
applicable, after giving effect to any transaction to occur concurrently
therewith), such Guarantor remains a co-obligor with or a guarantor for, as
applicable, the obligations of the Company under any Existing Note.
(a)
Unless a Guarantor has been released, or in connection with such transaction
will be released, from its obligations under its Guarantee in accordance with
the provisions of Section 702 hereof or any other release provision set forth in
the Indenture, such Guarantor 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:
(i)
immediately after giving effect to such transaction (and treating any Debt which
becomes an obligation of the Guarantor or a Subsidiary of the Guarantor 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;
(ii)
either (x) the Guarantor shall be the continuing Person or (y) the Person (if
other than the Guarantor) formed by such amalgamation or consolidation or into
which the Guarantor is merged or the Person which acquires by conveyance,
transfer, lease or other disposition the properties and assets of the Guarantor
substantially as an entirety (the “Successor Guarantor”) shall, unless the
Successor Guarantor is the Company, (A) be a corporation, company, partnership
or trust organized and validly existing under the federal laws of Canada or any
Province thereof or the laws of the United States of America or any State
thereof or the District of Columbia and (B) 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 Guarantor under its Guarantee
(provided, however,
that the Successor Guarantor shall not be required to execute and deliver such a
supplemental indenture in the event of an amalgamation of the Guarantor with one
or more other Persons, in which the amalgamation is governed by the laws of
Canada or any province thereof, the Successor Guarantor and the Guarantor are,
immediately prior to such amalgamation, organized and existing under the laws of
Canada or any province thereof and upon the effectiveness of such amalgamation,
the Successor Guarantor shall have become or shall continue to be (as the case
may be), by operation of law, liable for the observance of all obligations of
the Guarantor under its Guarantee); and
(iii) the
Guarantor, the Company or the Successor Guarantor, as applicable, 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 Section 703(a) and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
(b) Upon
any amalgamation, consolidation or merger, or any conveyance, transfer, lease or
other disposition of the properties and assets of a Guarantor substantially as
an entirety in accordance with Section 703(a), the Successor Guarantor shall
succeed to, and be substituted for, and may exercise every right and power of,
such Guarantor under this Supplemental Indenture and the Indenture with the same
effect as if such Successor Guarantor had been named as such Guarantor herein;
and thereafter, except in the case of a lease, such Guarantor shall be released
and relieved from all of its obligations under this Article Seven, and such
Guarantor’s Guarantee shall be terminated and be of no further force or
effect.
31
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed all as of the day and year first above written.
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XXXXXX
COMMUNICATIONS INC.,
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By
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(signed)
M. Xxxxxxxx
Xxxx
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Name: M.
Xxxxxxxx Xxxx
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Title: Vice
President, Treasurer
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By
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(signed)
Xxxxxxx X.
Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President, Finance and Chief
Financial Officer |
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XXXXXX
WIRELESS PARTNERSHIP,
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By
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(signed)
M. Xxxxxxxx
Xxxx
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Name: M.
Xxxxxxxx Xxxx
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Title: Vice
President, Treasurer
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By
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(signed)
Xxxxxxx X.
Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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Title: Senior
Vice President
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XXXXXX
CABLE COMMUNICATIONS INC.,
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By
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(signed)
M. Xxxxxxxx
Xxxx
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Name: M.
Xxxxxxxx Xxxx
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Title: Vice
President
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By
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(signed)
Xxxxxxx X.
Xxxxxx
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Name: Xxxxxxx
X. Xxxxxx
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|
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Title: Senior
Vice President
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CIBC
MELLON TRUST COMPANY,
as
Trustee
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By
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(signed)
Xxxxxxx
Xxxxxxx
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Name: Xxxxxxx
Xxxxxxx
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Title: Authorized
Signatory
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By
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(signed)
Xxxxxx
Xxxxx
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Name: Xxxxxx
Xxxxx
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Title: Associate
Manager
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ANNEX
A:
FORM
OF SUBORDINATION AGREEMENT
This
Agreement made as of May 26, 2009 between Xxxxxx Communications Inc. (the
“Company”), Xxxxxx Wireless Partnership (“RWP”), Xxxxxx Cable Communications
Inc. (“RCCI” and, together with the Company and RWP, the “Obligors”), The Bank
of New York Mellon (f/k/a JPMorgan Chase Bank, N.A. and subsequently f/k/a The
Bank of New York), as trustee (the “Trustee”) under the Indenture (as defined
below) and CIBC Mellon Trust Company, a trust company existing and licensed
under the federal laws of Canada, as trustee (the “Senior Debt Trustee”) under
an indenture (the “Senior Note Indenture”) dated as of the date hereof among the
Company, as issuer, and the Senior Debt Trustee, as trustee, as supplemented by
a supplemental indenture dated as of the date hereof, among the Company, as
issuer, RWP and RCCI, as guarantors, and the Senior Debt Trustee, as trustee for
the holders of 5.80% Senior Notes due 2016 of the Company issued as of the date
hereof under such supplemental indenture and outstanding from time to time and
constituting Senior Indebtedness (such holders being hereinafter called “holders
of Senior Indebtedness”).
WITNESSES
THAT WHEREAS:
X. Xxxxxx
Wireless Inc. (“Wireless”) and the Trustee entered into an indenture (the
“Original Indenture”) dated as of November 30, 2004 providing for the issuance
of 8.00% Senior Subordinated Notes due 2012 of Wireless (the
“Securities”);
B. The
Original Indenture was amended pursuant to the First Supplemental Indenture
thereto, dated as of August 1, 2005, among Wireless, RWP and the Trustee (the
Original Indenture, as so amended, the “Indenture”), and pursuant to such First
Supplemental Indenture RWP became a co-obligor with Wireless in respect of the
Securities;
C. On
July 1, 2007, Wireless amalgamated with the Company and, according to the terms
of the Indenture, the Company succeeded to the obligations of Wireless under the
Indenture and, immediately prior thereto, RCCI entered into a Guarantee
Agreement as of the same date pursuant to which it guaranteed the payment
obligations of the Company under the Indenture; and
D. As
set forth in Section 1208 of the Indenture and in the Securities, the Holders
have authorized the execution and delivery by the Trustees of this Agreement on
their behalf;
NOW
THEREFORE for value received the parties agree as follows:
1. DEFINITIONS.
A
capitalized term not defined in this Agreement has the meaning ascribed to such
term in the Indenture.
2. SUBORDINATION.
The
Trustee and the Obligors hereby covenant with the Senior Debt Trustee, in its
capacity as trustee on behalf of the holders of Senior Indebtedness, that the
indebtedness represented by the Securities and the payment of the principal of
(and premium, if any) and interest on each and all of the Securities delivered
from time to time under the Indenture thereunder are subordinate and subject in
right of payment to the prior payment in full of Senior Indebtedness to holders
of Senior Indebtedness, in the manner, to the extent and with the same effect as
if the terms and provisions of the Indenture were set forth herein.
3. PAYMENT
TO THE COMPANY IN CERTAIN CIRCUMSTANCES.
Pursuant
to Section 1207 of the Indenture, if a holder of Senior Indebtedness or the
Senior Debt Trustee shall receive in such capacity any amount under this
Agreement and at the time of receipt such holder or the Senior Debt Trustee is
not entitled to (whether by reason of maturity, acceleration or otherwise) such
amount under the terms of such Senior Indebtedness, then such holder or the
Senior Debt Trustee shall turn over such amount to the applicable
Obligor.
Any such
amount so received by any holder of Senior Indebtedness or the Senior Debt
Trustee which such holder or the Senior Debt Trustee is so required to turn over
to an Obligor shall in no circumstances be considered to be a payment on account
of such Senior Indebtedness.
4. BINDING
EFFECT AND INUREMENT.
This
Agreement shall be binding upon the successors of the Company, RWP, RCCI and the
Trustee, and enure to the benefit of the successors of the Senior Debt Trustee
in their capacity as trustees.
5. NO
WAIVER OR AMENDMENT.
No
provision of this Agreement may be waived or amended except by an instrument in
writing signed by the party against whom the enforcement of any waiver or
amendment is sought.
6. NO
PERSONAL LIABILITY.
The
Trustee and the Senior Debt Trustee make no representation or warranty as to the
validity, sufficiency or effect of this Agreement, or as to the authority of the
Trustee or the Senior Debt Trustee, as the case may be, to execute or deliver
this Agreement. The Trustee and the Senior Debt Trustee shall have no
personal responsibility or liability with respect to the covenant contained in
Section 2 hereof.
7. INDEMNITY.
Without
derogation to any other indemnity afforded to the Trustee or the Senior Debt
Trustee, the Obligors shall, jointly and severally, indemnify the Trustee and
the Senior Debt Trustee for any loss, liability or expense incurred without
negligence, willful misconduct or bad faith on its part, arising out of or in
connection with its entry into this Agreement. The indemnity provided
in this Section 7 shall survive termination of this Agreement or the removal of
The Bank of New York Mellon or CIBC Mellon Trust Company as trustee under the
Indenture or the Senior Note Indenture, respectively.
8. COUNTERPARTS
This
Agreement may be executed on any number of separate counterparts and all said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
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XXXXXX
COMMUNICATIONS INC.,
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By
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Name:
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Title:
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By
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Name:
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Title:
|
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XXXXXX
WIRELESS PARTNERSHIP,
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By
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Name:
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Title:
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By
|
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Name:
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|
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Title:
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XXXXXX
CABLE COMMUNICATIONS INC.,
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By
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Name:
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Title:
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By
|
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON,
as
Trustee
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By
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Name:
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Title:
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CIBC
MELLON TRUST COMPANY,
as
Senior Debt Trustee
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By
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Name:
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Title:
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By
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Name:
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Title:
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