Contract
Exhibit
99.5
EXECUTION
COPY
THIS
FIRST SUPPLEMENTAL INDENTURE, dated as of December 31, 2003 (this “Supplemental
Indenture”), is by and among Xxxxxx Cable Inc., a corporation organized under
the laws of the Province of Ontario (hereinafter called “Xxxxxx Cable”), Xxxxxx
Cable Communications Inc., a corporation organized under the laws of the
Province of Ontario and a wholly-owned subsidiary of Xxxxxx Cable (hereinafter
called “RCCI”), and JPMorgan Chase 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 are parties to an indenture dated as of April
30,
2002 (the “Indenture”), pursuant to which Rogers Cable’s outstanding 7.875%
Senior (Secured) Second Priority Notes due May 1, 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 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, prior to the Release Date, the Collateral Documents;
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 and the Trustee desire that, following the Transfer, (i)
Rogers 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, the Indenture and, prior to the Release Date,
the Collateral Documents; and (iii) to the extent provided herein each of Rogers
Cable and RCCI 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 Holder
of
the Securities, 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, the Securities and 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
1
WHEREAS,
Rogers Cable 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, the Company,
RCCI
and the Trustee hereby agree for the equal and ratable benefit of the Holders
of
the Securities 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, prior to the Release Date, the Collateral
Documents, 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 Xxxxxx 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 Rogers 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:
(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.
2
(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. 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.
8. Effect
of Supplemental Indenture. Upon the execution and delivery of this
Supplemental Indenture by Rogers 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.
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 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.
14. Successors. All
covenants and agreements in this Supplemental Indenture by RCCI 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.
3
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.
4
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 Xxxx | |
| Name: | |||
| Title: | |||
| XXXXXX CABLE COMMUNICATIONS INC., | |||
|
|
By:
|
/s/ X. X. Xxxx | |
| Name: | |||
| Title: | |||
|
|
By:
|
/s/ Xxxx Xxxx | |
| Name: | |||
| Title: | |||
|
JPMORGAN
CHASE
BANK,
as Trustee
|
|||
|
|
By:
|
/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | |||
| Title: Trust Officer | |||
5
