Contract
Exhibit
99.9
THIS
SECOND SUPPLEMENTAL INDENTURE,
dated as of June 29, 2007 (this “Supplemental Indenture”), is by and
among Xxxxxx Cable Inc., a corporation organized under the laws of Province
of
British Columbia, Canada (hereinafter called “Rogers Cable”), Xxxxxx
Cable Communications Inc., a corporation organized under the laws of the
Province of Ontario and a wholly-owned subsidiary of Rogers Cable (hereinafter
called “RCCI”) and The Bank of New York, a New York banking corporation,
as trustee (successor to JPMorgan Chase Bank, N.A.) (hereinafter called the
“Trustee”).
WITNESSETH
WHEREAS,
Rogers Cable, RCCI and the
Trustee are parties to an indenture dated as of June 19, 2003, as heretofore
supplemented (the “Indenture”), pursuant to which Xxxxxx Cable’s 6.25%
Senior (Secured) Second Priority Notes due 2013 (the “Notes”) were
issued, which Notes constitute “Securities” as that term is defined in the
Indenture;
WHEREAS,
in accordance with Section
1201 of the Indenture, Xxxxxx Cable has entered into a Pledge Agreement and
assigned, deposited with and pledged the Trust Bond to the Trustee pursuant
to
the Pledge Agreement;
WHEREAS,
Xxxxxx Cable desires to
permanently terminate the Lien of the Pledge Agreement and other Collateral
Documents and any other Lien on the Deed of Trust Collateral (the “Release of
Security”) without the consent of the Holders effective as of June 29,
2007;
WHEREAS,
Section 1026(a) of the
Indenture provides that Xxxxxx Cable may permanently effect the Release of
Security without the consent of the Holders in the event that (i) on a pro
forma
basis giving effect to the release of the security for the Securities and any
other Debt of Xxxxxx Cable with similar release provisions, (A) no Debt of
Xxxxxx Cable would be outstanding and (B) there would be no availability to
Xxxxxx Cable under any bank credit facilities, operating credit facilities
or
swap agreements, in the case of each of (A) and (B) that is or are secured
by a
Lien of the Pledge Agreement or any Collateral Document or any other Lien on
the
Deed of Trust Collateral, (ii) the ratings assigned to the Securities by at
least two of the three Rating Agencies are Investment Grade Ratings and (iii)
no
Default or Event of Default has occurred and is continuing under the
Indenture.
WHEREAS,
on a pro forma basis giving
effect to the Release of Security for the Securities and any other Debt of
Xxxxxx Cable with similar release provisions, (A) no Debt of Xxxxxx Cable will
be outstanding and (B) there will be no availability to Xxxxxx Cable under
any
bank credit facilities, operating credit facilities or swap agreements, in
the
case of each of (A) and (B) that is or are secured by a Lien of the Pledge
Agreement or any Collateral Document or any other Lien on the Deed of Trust
Collateral;
WHEREAS,
each of Standards & Poor’s
Ratings Group and Fitch IBCA has assigned a rating of Investment Grade to the
Securities;
WHEREAS,
no Default or Event of Default
has occurred and is continuing under the Indenture;
WHEREAS,
Section 901 of the Indenture
provides that without the consent of any Holders, Rogers Cable and RCCI, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to
time, may enter into one or more indentures supplemental to the Indenture,
to
among other things, make any change that does not adversely affect the rights
of
any Holder; and
WHEREAS,
Rogers Cable and RCCI have
complied with all conditions precedent provided for in the Indenture relating
to
this Supplemental Indenture.
NOW,
THEREFORE, and for and in
consideration of the foregoing premises, Xxxxxx Cable, RCCI and the Trustee
hereby agree for the equal and ratable benefit of the Holders as
follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. Deletion
of Certain Provisions. Each of clauses (i), (j) and (l) of
Section 501 (Events of Default), Section 902 (Actions by the Trustee under
the
Deed of Trust and Certain Amendments to the Inter-Creditor Agreement without
the
Consent of Holders), clause (e) of Section 903 (Supplemental Indentures and
Certain Amendments with the Consent of Holders), Section 904 (Amendments to
Collateral Documents), Section 1007 (Insurance), Section 1012 (Limitation on
Liens), Section 1026 (Release of Security), Article Twelve (Security Documents)
and Exhibit C of the Indenture is hereby deleted in its entirety and, in the
case of each such section, clause and exhibit, replaced with the phrase
“[Intentionally Omitted]”. All references to such sections or clauses
shall also be deleted throughout the Indenture, and such sections, clauses
and
references thereto shall be of no further force or effect.
3. Other
Amendments to the Indenture. All definitions in the Indenture
which are used exclusively in the sections and clauses deleted pursuant to
Section 2 of this Supplemental Indenture or whose sole use or uses in the
Indenture were eliminated in the revisions set forth in Section 2 of this
Supplemental Indenture are hereby deleted. All references, including
references in Article Five (Remedies) and Section 1015 (Restricted
Subsidiaries), in the Indenture to sections and clauses deleted by Section
2 of
this Supplemental Indenture, including all references to Bondholders’
Resolution, Collateral Documents, Deed of Trust, Deed of Trust Bondholders,
Deed
of Trust Bonds, Deed of Trust Collateral, Deed Trustee, Designated Subsidiary,
Inter-Creditor Agreement, Mortgaged Property, Pledge Agreement, Release Date,
Senior Secured Bondholders, Specifically Mortgaged Property, Trust Bond, Trust
Estate, Unanimous Bondholders’ Resolution and similar references relating to the
Deed of Trust or Release of Security, shall also be deleted in their
entirety.
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4. Amendment
to the Securities. The Securities include or refer to certain of
the foregoing provisions from the Indenture to be deleted or amended pursuant
to
Section 2 or 3 hereof. Such provisions or references in the Securities shall
be
deemed deleted or amended, as applicable, notwithstanding the form of any
certificates representing the Securities. The Exchange Securities
shall be known as the “6.25% Senior Second Priority Notes due
2013”.
5. Trustee’s
Acceptance. The Trustee hereby accepts this Supplemental
Indenture and agrees to perform the same under the terms and conditions set
forth in the Indenture.
6. Responsibility
of Trustee. The recitals contained herein shall be taken as the
statements of Rogers Cable and RCCI, and the Trustee assumes no responsibility
for the correctness of such recitals. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
7. Effect
of Supplemental Indenture. Upon the execution and delivery of
this Supplemental Indenture by Xxxxxx Cable, RCCI and the Trustee, the Indenture
shall be supplemented and amended in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of a Security heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby; provided that the amendments effected pursuant
to Sections 2, 3 and 4 hereof shall be deemed effective immediately after
the Release of Security; provided further that the deletion of Section 1026(c)
of the Indenture pursuant to Section 2 hereof shall not be deemed effective
until the Trustee has complied with that Company Order dated June 29, 2007
delivered pursuant to Section 1026(c) of the Indenture.
8. Indenture
Remains in Full Force and Effect. Except as supplemented or
amended hereby, all other provisions in the Indenture and the Securities, to
the
extent not inconsistent with the terms and provisions of this Supplemental
Indenture, shall remain in full force and effect.
9. Incorporation
of Indenture. All the provisions of this Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture; and
the Indenture, as supplemented and amended by this Supplemental Indenture,
shall
be read, taken and construed as one and the same instrument.
10. Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, each
of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
11. Effect
of Headings. The headings of this Supplemental Indenture are
inserted for convenience of reference and shall not be deemed to be a part
thereof.
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12. Conflict
with Trust Indenture Act. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust
Indenture Act that is required or deemed under the Trust Indenture Act to
be
part of and govern any provision of this Supplemental Indenture, the provision
of the Trust Indenture Act shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the provision of the Trust Indenture
Act shall be deemed to apply to the Indenture as so modified or to be excluded
by this Supplemental Indenture, as the case may be.
13. Successors. All
covenants and agreements in this Supplemental Indenture by Rogers Cable and
RCCI
shall be binding upon and accrue to the benefit of their respective
successors. All covenants and agreements in this Supplemental
Indenture by the Trustee shall be binding upon and accrue to the benefit of
its
successors.
14. Benefits
of Supplemental Indenture. Nothing in this Supplemental
Indenture, the Indenture or the Securities, express or implied, shall give
to
any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture, the Indenture or
the
Securities.
15. GOVERNING
LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN
WITNESS WHEREOF, the parties hereto
have caused this Supplemental Indenture to be duly executed, all as of the
date
first above written.
| XXXXXX CABLE INC., | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
|
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By:
|
/s/ M. Xxxxxxxx Xxxx | |
| Name: M. Xxxxxxxx Xxxx | |||
| Title: Vice President, Treasurer |
|
XXXXXX CABLE
COMMUNICATIONS,
INC.,
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Senior Vice President | |||
|
|
By:
|
/s/ M. Xxxxxxxx Xxxx | |
| Name: M. Xxxxxxxx Xxxx | |||
| Title: Vice President, Treasurer |
