Contract
Exhibit 99.32
EXECUTION
COPY
THIS
FIRST SUPPLEMENTAL INDENTURE, dated as of August 1, 2005 (this
“Supplemental Indenture”), is by and among Xxxxxx Wireless Inc., a
corporation organized under the Canada Business Corporations Act (hereinafter
called “Rogers Wireless”), Xxxxxx Wireless Partnership, a general
partnership organized under the laws of the Province of Ontario and a
wholly-owned Subsidiary of Rogers Wireless (hereinafter called “RWP”),
and JPMorgan Chase Bank, N.A., a national banking association organized under
the laws of the United States, as trustee (hereinafter called the
“Trustee”).
W
I T N E
S S E T H
WHEREAS,
Xxxxxx Wireless and the Trustee are parties to an indenture dated as of
November 30, 2004 (the “Indenture”), pursuant to which Xxxxxx
Wireless’ outstanding 8.00% Senior Subordinated Notes due 2012 (the
“Notes”) are issued, which Notes constitute “Securities” as that term is
defined in the Indenture;
WHEREAS,
in connection with a corporate restructuring, Xxxxxx Wireless intends to
transfer certain of its properties, assets and liabilities constituting its
assets substantially as an entirety to RWP (the “Transfer”);
WHEREAS,
pursuant to Section 801(a) of the Indenture, in connection with the Transfer,
RWP is required to execute and deliver to the Trustee a supplemental indenture
assuming all of the obligations of the Company under the Securities and the
Indenture;
WHEREAS,
Section 802 of the Indenture provides that upon the transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801 of the Indenture, (i) the successor Person shall
succeed to, and be substituted for, and may exercise every right and power
of,
the Company under the Indenture with the same effect as if such successor Person
had been named as the Company in the Indenture and (ii) except in the case
of a lease, the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities;
WHEREAS,
Xxxxxx Wireless, RWP and the Trustee desire that, following the Transfer,
(i) Xxxxxx Wireless shall not be discharged from its obligations and
covenants under the Indenture and the Securities, but shall continue as the
Company for all purposes of the Indenture and the Securities; (ii) RWP
shall assume, as a co-obligor on a joint and several basis with Xxxxxx Wireless,
all of the Company’s obligations under the Securities and the Indenture; and
(iii) to the extent provided herein, each of Xxxxxx Wireless and RWP shall
be the Company for purposes of the Indenture as if each of them had been named
as the Company therein;
WHEREAS,
Section 901 of the Indenture provides that without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee,
at
any time and from time to time, may enter into one or more indentures
supplemental to the Indenture, to, among other things, evidence the assumption
by any successor Person of the covenants of the Company in the Indenture and
the
Securities, as the case may be, or, to make any other change that does not
adversely affect the rights of any Holder; and
WHEREAS,
Xxxxxx Wireless and RWP have complied with all conditions precedent provided
for
in the Indenture relating to this Supplemental Indenture.
NOW,
THEREFORE, for and in consideration of the foregoing premises, Xxxxxx Wireless,
RWP and the Trustee hereby agree for the equal and ratable benefit of the
Holders as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Assumption
by RWP. RWP hereby assumes, as a co-obligor on a joint and several basis
with Xxxxxx Wireless, all obligations and covenants of the Company under the
Indenture and the Securities, including without limitation obligations for
the
due and punctual payment of the principal of, premium, if any, and interest
on
all Securities issued or to be issued pursuant to the Indenture and the
performance or observance of each other obligation and covenant set forth in
the
Indenture to be performed or observed on the part of the Company.
3. Xxxxxx
Wireless not Discharged. Notwithstanding Section 802 of the Indenture,
following the Transfer, Xxxxxx Wireless shall not be discharged from its
obligations and covenants under the Indenture and the Securities.
4. References
to the “Company” in the Indenture. Following the Transfer, all references to
the “Company” in the Indenture shall be deemed to be references to each of
Xxxxxx Wireless and RWP, as co-obligors on a joint and several basis;
provided, that (i) with respect to any matter to be determined on a
Consolidated basis for the Company and its Restricted Subsidiaries, such matter
shall be determined for Xxxxxx Wireless and its Restricted Subsidiaries,
treating RWP for such purposes as a Restricted Subsidiary; (ii) where the
context requires that a reference to the “Company” refer to a single entity
only, such reference shall be deemed to be to Xxxxxx Wireless only; and
(iii) all references to the board of directors or any officer of the
“Company” shall be deemed to be references to the board of directors or such
officer of Xxxxxx Wireless.
5. Notices.
(a) Section 106(b) of the Indenture is hereby amended and restated in
its entirety as follows:
(b)
Xxxxxx Wireless Inc. or Xxxxxx Wireless Partnership by the Trustee or any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or delivered in writing to Xxxxxx
Wireless Inc. or Xxxxxx Wireless Partnership, as the case may be, to 333 Bloor
Street East, 10th Floor, Toronto, Ontario, Canada, M4W 1G9, Attention:
Vice-President, Treasurer, fax: 000-000-0000, with a copy to the Vice-President,
General Counsel and Secretary, fax: 000-000-0000, or, in either case, at any
other address previously furnished in writing to the Trustee by Xxxxxx Wireless
Inc. or Xxxxxx Wireless Partnership.
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(b) At
the date of execution of this Supplemental Indenture, the Corporate Trust Office
is located at 0 Xxx Xxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, Attention: Worldwide Securities Services.
6. Trustee’s
Acceptance. The Trustee hereby accepts this Supplemental Indenture and
agrees to perform the same under the terms and conditions set forth in the
Indenture.
7. Responsibility
of Trustee. The recitals contained herein shall be taken as the statements
of Xxxxxx Wireless and RWP, and the Trustee assumes no responsibility for the
correctness of such recitals. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
8. Effect
of Supplemental Indenture. Upon the execution and delivery of this
Supplemental Indenture by Xxxxxx Wireless, RWP and the Trustee, the Indenture
shall be supplemented and amended in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of a Security heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby.
9. Indenture
Remains in Full Force and Effect. Except as supplemented or amended hereby,
all other provisions in the Indenture and the Securities, to the extent not
inconsistent with the terms and provisions of this Supplemental Indenture,
shall
remain in full force and effect.
10. Incorporation
of Indenture. All the provisions of this Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented and amended by this Supplemental Indenture, shall
be
read, taken and construed as one and the same instrument.
11. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts,
each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
12. Effect
of Headings. The headings of this Supplemental Indenture are inserted for
convenience of reference and shall not be deemed to be a part
thereof.
13. Conflict
with Trust Indenture Act. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with any provision of the Trust Indenture Act
that is required or deemed under the Trust Indenture Act to be part of and
govern any provision of this Supplemental Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Supplemental Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the provision of the Trust Indenture Act shall be deemed
to apply to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
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14. Successors.
All covenants and agreements in this Supplemental Indenture by RWP and Xxxxxx
Wireless shall be binding upon and accrue to the benefit of their respective
successors. All covenants and agreements in this Supplemental Indenture by
the
Trustee shall be binding upon and accrue to the benefit of its
successors.
15. Benefits
of Supplemental Indenture. Nothing in this Supplemental Indenture, the
Indenture or the Securities, express or implied, shall give to any Person,
other
than the parties hereto and thereto and their successors hereunder and
thereunder and the Holders, any benefit of any legal or equitable right, remedy
or claim under this Supplemental Indenture, the Indenture or the
Securities.
16. GOVERNING
LAW. THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW, SHALL GOVERN THIS SUPPLEMENTAL INDENTURE.
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the date first above written.
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XXXXXX
WIRELESS INC.,
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By
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/s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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By
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/s/
M. Xxxxxxxx Xxxx
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Name:
M. Xxxxxxxx Xxxx
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Title:
Vice President, Treasurer
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XXXXXX
WIRELESS PARTNERSHIP,
by
its partners,
Xxxxxx
Wireless Inc.
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By
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/s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title:
Vice President
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By
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/s/
M. Xxxxxxxx Xxxx
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Name:
M. Xxxxxxxx Xxxx
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Title:
Vice President, Treasurer
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Fido
Solutions Inc.
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By
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/s/
Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title:
Vice President
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By
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/s/
M. Xxxxxxxx Xxxx
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Name:
M. Xxxxxxxx Xxxx
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Title:
Vice President, Treasurer
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JPMORGAN
CHASE BANK, N.A.,
As
Trustee,
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By
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/s/
X. X’Xxxxx
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Name:
X. X’Xxxxx
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Title:
Vice President
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