Exhibit 10.3
EXECUTION COPY
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of December 31,
2003 (this "Supplemental Indenture"), is by and among Xxxxxx Cable Inc.,
formerly known as Rogers Cablesystems Limited, a corporation organized under the
laws of the Province of Ontario (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"), Xxxxxx Cablesystems Ontario Limited, a corporation organized
under the laws of the Province of Ontario (hereinafter called "Rogers Ontario"),
Rogers Ottawa Limited/Limitee, a corporation organized under the laws of the
Province of Ontario (hereinafter called "Rogers Ottawa"), Rogers Cablesystems
Georgian Bay Limited, a corporation organized under the laws of the Province of
Ontario (hereinafter called "Rogers Georgian Bay" and, together with Rogers
Ontario and Rogers Ottawa, the "Guarantors") and JPMorgan Chase Bank, formerly
known as Chemical Bank, a New York banking corporation, as trustee (hereinafter
called the "Trustee").
W I T N E S S E T H
WHEREAS, Rogers Cable and the Trustee, as well as the
Guarantors, are parties to an indenture dated as of March 20, 1995, as
supplemented by a first supplemental indenture dated May 29, 1996 (as so
supplemented, the "Indenture"), pursuant to which the Company's outstanding 10%
Senior Secured Second Priority Notes due March 15, 2005 (the "Notes") are
issued, which Notes constitute "Securities" as that term is defined in the
Indenture;
WHEREAS, in connection with a corporate restructuring, Xxxxxx
Cable intends to transfer certain of its properties, assets and liabilities
constituting its assets substantially as an entirety to RCCI (the "Transfer");
WHEREAS, pursuant to Section 801(a) of the Indenture, in
connection with the Transfer, RCCI is required to execute and deliver to the
Trustee a supplemental indenture assuming all of the obligations of the Company
under the Securities, the Indenture and the Collateral Documents of the Company;
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, Rogers Cable, RCCI, the Guarantors and the Trustee
desire that, following the Transfer, (i) Xxxxxx Cable 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) RCCI shall assume, as a co-obligor on a joint and several basis
with Rogers Cable, all of the Company's obligations under the Securities and the
Indenture; and (iii) to the extent provided herein each of Rogers Cable and RCCI
shall be the
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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 and the Guarantors, each 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, the Securities, or the Collateral Documents as the
case may be, or, to make any other change that does not adversely affect the
rights of any Holder; and
WHEREAS, Xxxxxx Cable, each of the Guarantors and RCCI 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, Rogers Cable, RCCI, each of the Guarantors and the Trustee hereby
agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.
2. Assumption by RCCI. RCCI hereby assumes, as a
co-obligor on a joint and several basis with Rogers Cable, all obligations and
covenants of the Company under the Indenture, the Securities and the Collateral
Documents of the Company, 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. Rogers Cable not Discharged. Notwithstanding Section
802 of the Indenture, following the Transfer, Rogers Cable 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 Rogers Cable and RCCI, as co-obligors on a
joint and several basis; provided, that (i) with respect to any matter to be
determined on a Consolidated basis for the Company and its Restricted
Subsidiaries, such matter shall be determined for Xxxxxx Cable and its
Restricted Subsidiaries, treating RCCI for such purposes as a Restricted
Subsidiary; (ii) where the context requires that a reference to the "Company"
refer to a single entity only, such reference shall be deemed to be to Rogers
Cable only; and (iii) all references to the board of directors or any officer of
the "Company" shall be deemed to be references to the board of directors or such
officer of Rogers Cable.
5. Notices. (a) Section 106(b) of the Indenture is
hereby amended and restated in its entirety as follows:
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(b) Xxxxxx Cable Inc. or Xxxxxx Cable Communications
Inc. by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered in writing to
Xxxxxx Cable Inc. or Xxxxxx Cable Communications Inc., as the
case may be, to 333 Bloor Street East, 10th Floor, Toronto,
Ontario, Canada, M4W 1G9, Attention: Vice-President,
Treasurer, fax: 000-000-0000, with a copy to the
Vice-President, General Counsel and Secretary, fax:
000-000-0000, or, in either case, at any other address
previously furnished in writing to the Trustee by Xxxxxx Cable
Inc. or Xxxxxx Cable Communications Inc.
(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: Institutional Trust 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. Guarantors' Acceptance. Each of the Guarantors hereby
accepts this Supplemental Indenture and agrees to perform the same under the
terms and conditions set forth in the Indenture.
8. Responsibility of Trustee. The recitals contained
herein shall be taken as the statements of Xxxxxx Cable, RCCI and the
Guarantors, 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.
9. Effect of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by Rogers Cable, RCCI, 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, and every Holder of a Security heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby.
10. 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.
11. 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.
12. Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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13. 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.
14. 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 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.
15. Successors. All covenants and agreements in this
Supplemental Indenture by RCCI, the Guarantors and Rogers Cable 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.
16. 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.
17. 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.
XXXXXX CABLE INC.,
By: /s/ X. X. Xxxx
_____________________________________
Name:
Title:
By: /s/ Xxxx X. Xxxx
_____________________________________
Name:
Title:
XXXXXX CABLE COMMUNICATIONS INC.,
By: /s/ X. X. Xxxx
_____________________________________
Name:
Title:
By: /s/ Xxxx X. Xxxx
_____________________________________
Name:
Title:
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XXXXXX CABLESYSTEMS ONTARIO LIMITED,
By: /s/ X. X. Xxxx
_____________________________________
Name:
Title:
By: /s/ Xxxx X. Xxxx
_____________________________________
Name:
Title:
ROGERS OTTAWA LIMITED/LIMITEE,
By: /s/ X. X. Xxxx
_____________________________________
Name:
Title:
By: /s/ Xxxx X. Xxxx
_____________________________________
Name:
Title:
ROGERS CABLESYSTEMS GEORGIAN BAY LIMITED,
By: /s/ X. X. Xxxx
_____________________________________
Name:
Title:
By: /s/ Xxxx X. Xxxx
_____________________________________
Name:
Title:
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JPMORGAN CHASE BANK,
as Trustee
By: /s/ Xxxx Xxxxxxx
_____________________________________
Name: Xxxx Xxxxxxx
Title: Trust Officer
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