ROGERS CABLE INC., Issuer And JPMORGAN CHASE BANK, Trustee Indenture Dated as of April 30, 2002 8.750% Senior (Secured) Second Priority Debentures due 2032
Exhibit
99.1
EXECUTION
COPY
XXXXXX
CABLE INC.,
Issuer
And
JPMORGAN
CHASE BANK,
Trustee
________________
Dated
as
of April 30, 2002
________________
8.750%
Senior (Secured) Second Priority Debentures due 2032
Reconciliation
and tie between Trust Indenture Act of 1939
and
Indenture, dated as of April 30, 2002*
|
Trust
Indenture
Act
Section
|
Indenture
Section
|
||
|
§
310
|
(a)(1)
|
609
|
|
|
(a)(2)
|
609
|
||
|
(b)
|
608,
610
|
||
|
§
312
|
(c)
|
701
|
|
|
§
314
|
(a)
|
703
|
|
|
(a)(4)
|
1022
|
||
|
(b)
|
1202
|
||
|
(c)(1)
|
103
|
||
|
(c)(2)
|
103
|
||
|
(e)
|
103
|
||
|
§315
|
(b)
|
602
|
|
|
§
316
|
(a)
|
||
|
(last
sentence)
|
101
(“Outstanding”)
|
||
|
(a)(1)(A)
|
502,
512
|
||
|
(a)(1)(B)
|
513
|
||
|
(b)
|
508
|
||
|
(c)
|
105
|
||
|
§
317
|
(a)(1)
|
503
|
|
|
(a)(2)
|
504
|
||
|
(b)
|
1003
|
||
|
§
318
|
(a)
|
108
|
|
_____________________
* This
reconciliation and tie shall not, for any purpose, be deemed to be part of
the
Indenture.
i
Table
of Contents
|
Page
|
||
|
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
||
|
Section
101.
|
Definitions
|
l
|
|
“Acquired
Debt”
|
2
|
|
|
“Additional
Securities”
|
2
|
|
|
“Adjusted
Treasury Rate”
|
2
|
|
|
“Affiliate”
|
2
|
|
|
“Agent
Member”
|
3
|
|
|
“Annualized
Operating Cash Flow”
|
3
|
|
|
“Applicable
Procedures”
|
3
|
|
|
“Asset
Sale”
|
3
|
|
|
“Attributable
Debt”
|
3
|
|
|
“bank
credit facility”
|
4
|
|
|
“Board
Of Directors”
|
4
|
|
|
“Board
Resolution”
|
4
|
|
|
“Business
Day”
|
4
|
|
|
“Canadian
Dollars”, “Cdn Dollars” and “Cdn$”
|
4
|
|
|
“Capital
Lease Obligation”
|
4
|
|
|
“Capital
Stock”
|
4
|
|
|
“cash
equivalents”
|
4
|
|
|
“Collateral
Documents”
|
4
|
|
|
“Commission”
|
4
|
|
|
“Common
Stock”
|
5
|
|
|
“Company”
|
5
|
|
|
“Company
Request” or “Company Order”
|
5
|
|
|
“Comparable
Treasury Issue”
|
5
|
|
|
“Comparable
Treasury Price”
|
5
|
|
|
“Consolidated
Debt to Annualized Operating Cash Flow Ratio”
|
5
|
|
|
“Consolidated
Net Tangible Assets”
|
5
|
|
|
“Consolidated
Senior Debt to Annualized Operating Cash Flow Ratio”
|
5
|
|
|
“Consolidated
Tangible Assets”
|
6
|
|
|
“Consolidation”
|
6
|
|
|
“Corporate
Trust Office”
|
6
|
|
|
“Debt”
|
6
|
|
|
“Deed
of Trust”
|
7
|
|
|
“Deed
of Trust Bondholders”
|
7
|
|
|
“Deed
of Trust Bonds”
|
7
|
|
|
“Deed
of Trust Collateral”
|
7
|
|
|
“Deed
Trustee”
|
7
|
|
|
“Default”
|
7
|
|
|
“Deferred
Management Fees”
|
7
|
|
|
“Depositary”
|
7
|
|
ii
|
“Disqualified
Stock”
|
7
|
|
|
“Event
of Default”
|
8
|
|
|
“Exchange
Act”
|
8
|
|
|
“Exchange
Offer”
|
8
|
|
|
“Exchange
Offer Registration Statement”
|
8
|
|
|
“Exchange
Securities”
|
8
|
|
|
“Excluded
Assets”
|
8
|
|
|
“Excluded
Securities”
|
8
|
|
|
“Existing
Excluded Assets”
|
9
|
|
|
“Existing
Senior Secured Second Priority Securities”
|
9
|
|
|
“Existing
Senior Subordinated Guaranteed Debentures”
|
9
|
|
|
“Fitch
IBCA”
|
9
|
|
|
“Generally
Accepted Accounting Principles” or “GAAP”
|
9
|
|
|
“Holder”
|
9
|
|
|
“Income
Taxes”
|
9
|
|
|
10
|
||
|
“Indenture
Obligations”
|
10
|
|
|
“Independent
Director”
|
10
|
|
|
“Initial
Securities”
|
10
|
|
|
“Inter-Company
Deeply Subordinated Debt”
|
10
|
|
|
“Inter-Company
Subordinated Debt”
|
10
|
|
|
“Inter-Creditor
Agreement”
|
10
|
|
|
“Interest
Payment Date”
|
11
|
|
|
“Investment”
|
11
|
|
|
“Investment
Grade Rating”
|
11
|
|
|
“Lien”
|
11
|
|
|
“Management
Fees”
|
11
|
|
|
“Maturity”
|
11
|
|
|
“Xxxxx’x”
|
11
|
|
|
“Net
Cash Proceeds”
|
11
|
|
|
“969056
Ontario”
|
12
|
|
|
“Officers’
Certificate”
|
12
|
|
|
“1093216
Ontario”
|
12
|
|
|
“1443358
Ontario”
|
12
|
|
|
“Operating
Cash Flow”
|
12
|
|
|
“Opinion
of Counsel”
|
13
|
|
|
“Outstanding”
|
13
|
|
|
“Paying
Agent”
|
14
|
|
|
“Permitted
Debt”
|
14
|
|
|
“Permitted
Distributions”
|
15
|
|
|
“Permitted
Investment”
|
16
|
|
|
“Permitted
Restricted Payment”
|
17
|
|
|
“Person”
|
17
|
|
|
“Pledge
Agreement”
|
17
|
|
|
“Predecessor
Security”
|
17
|
|
|
“Preferred
Stock”
|
17
|
iii
|
“Principal
Property”
|
17
|
|
|
“Purchase
Agreement”
|
18
|
|
|
“Purchase
Money Obligations”
|
18
|
|
|
“QIB”
|
18
|
|
|
“Quotation
Agent”
|
18
|
|
|
“Rating
Agencies”
|
18
|
|
|
“Rating
Date”
|
18
|
|
|
“Rating
Decline”
|
18
|
|
|
“RCI”
|
18
|
|
|
“Redemption
Date”
|
18
|
|
|
“Redemption
Price”
|
18
|
|
|
“Reference
Treasury Dealer”
|
19
|
|
|
“Reference
Treasury Dealer Quotations”
|
19
|
|
|
“Registration
Rights Agreement”
|
19
|
|
|
“Registration
Statement”
|
19
|
|
|
“Regular
Record Date”
|
19
|
|
|
“Regulation
S”
|
19
|
|
|
“Responsible
Officer”
|
19
|
|
|
“Restricted
Subsidiary”
|
19
|
|
|
“Rogers
Investments”
|
20
|
|
|
“Rogers
Entities”
|
20
|
|
|
“Rule
144A”
|
20
|
|
|
“S&P”
|
20
|
|
|
“Sale
and Leaseback Transaction”
|
20
|
|
|
“Secured
Debt”
|
20
|
|
|
“Securities
Act”
|
21
|
|
|
“Security”
and “Securities”
|
21
|
|
|
“Senior
Debt”
|
21
|
|
|
“Shelf
Registration Statement”
|
21
|
|
|
“Solv”
|
21
|
|
|
“Special
Record Date”
|
21
|
|
|
“Stated
Maturity”
|
21
|
|
|
“Subordination
Agreement”
|
21
|
|
|
“Subsidiary„
|
21
|
|
|
“2012
Notes„
|
22
|
|
|
“Tangible
Assets”
|
22
|
|
|
“Temporary
Cash Investments”
|
22
|
|
|
“3782
Investments”
|
22
|
|
|
“Tranche
A Credit Facility”
|
22
|
|
|
“Tranche
A-Type Debt”
|
22
|
|
|
“Trust
Bond”
|
22
|
|
|
“Trust
Estate”
|
23
|
|
|
“Trust
Indenture Act”
|
23
|
|
|
“Trustee”
|
23
|
|
|
“U.S. Dollars”,
“United States Dollars”, “U.S. $” and the symbol “$”
|
23
|
|
|
“Unrestricted
Subsidiary”
|
23
|
iv
|
“Voting
Shares”
|
23
|
|
|
Section
102.
|
Other
Definitions
|
23
|
|
Section
103.
|
Compliance
Certificates and Opinions
|
25
|
|
Section
104.
|
Form
of Documents Delivered to the Trustee
|
25
|
|
Section
105.
|
Acts
of Holders
|
26
|
|
Section
106.
|
Notices,
Etc., to Trustee and Company
|
27
|
|
Section
107.
|
Notice
to Holders; Waiver
|
28
|
|
Section
108.
|
Conflict
of Any Provision of Indenture with the Trust Indenture Act
|
28
|
|
Section
109.
|
Effect
of Headings and Table of Contents
|
28
|
|
Section
110.
|
Successors
and Assigns
|
28
|
|
Section
111.
|
Separability
Clause
|
29
|
|
Section
112.
|
Benefits
of Indenture
|
29
|
|
Section
113.
|
Governing
Law
|
29
|
|
Section
114.
|
Legal
Holidays
|
29
|
|
Section
115.
|
Agent
for Service; Submission to Jurisdiction; Waiver of
Immunities
|
29
|
|
Section
116.
|
Conversion
of Currency
|
30
|
|
Section
117.
|
Currency
Equivalent
|
31
|
|
Section
118.
|
No
Recourse Against Others
|
32
|
|
Section
119.
|
Reliance
on Financial Data
|
32
|
|
Section
120.
|
Documents
in English
|
32
|
|
ARTICLE
TWO
SECURITY
FORMS
|
||
|
Section
201.
|
Forms
Generally
|
32
|
|
Section
202.
|
Restrictive
Legends
|
33
|
|
Section
203.
|
Form
of Face of Security
|
36
|
|
Section
204.
|
Form
of Reverse of Security
|
38
|
|
Section
205.
|
Form
of Trustee’s Certificate of Authentication
|
42
|
|
ARTICLE
THREE
THE
SECURITIES
|
||
|
Section
301.
|
Title
and Terms
|
42
|
|
Section
302.
|
Denominations
|
43
|
|
Section
303.
|
Execution,
Authentication, Delivery and Dating
|
43
|
|
Section
304.
|
Temporary
Securities
|
44
|
|
Section
305.
|
Registration,
Registration of Transfer and Exchange
|
45
|
|
Section
306.
|
Book-Entry
Provisions for Global Securities
|
46
|
|
Section
307.
|
Special
Transfer Provisions
|
48
|
|
Section
308.
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
50
|
|
Section
309.
|
Payment
of Interest; Interest Rights Preserved
|
51
|
|
Section
310.
|
Persons
Deemed Owners
|
52
|
|
Section
311.
|
Cancellation
|
52
|
|
Section
312.
|
Computation
of Interest
|
52
|
v
|
ARTICLE
FOUR
DEFEASANCE
AND COVENANT DEFEASANCE
|
||
|
Section
401.
|
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
52
|
|
Section
402.
|
Defeasance
and Discharge
|
53
|
|
Section
403.
|
Covenant
Defeasance
|
53
|
|
Section
404.
|
Conditions
to Defeasance or Covenant Defeasance
|
54
|
|
Section
405.
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions
|
56
|
|
Section
406.
|
Reinstatement
|
57
|
|
ARTICLE
FIVE
REMEDIES
|
||
|
Section
501.
|
Events
of Default
|
57
|
|
Section
502.
|
Acceleration
of Maturity; Rescission and Annulment
|
61
|
|
Section
503.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
63
|
|
Section
504.
|
Trustee
May File Proofs of Claim
|
64
|
|
Section
505.
|
Trustee
May Enforce Claims Without Possession of Securities
|
65
|
|
Section
506.
|
Application
of Money Collected
|
65
|
|
Section
507.
|
Limitation
on Suits
|
65
|
|
Section
508.
|
Unconditional
Right of Holders to Receive Principal, Premium and
Interest
|
66
|
|
Section
509.
|
Restoration
of Rights and Remedies
|
66
|
|
Section
510.
|
Rights
and Remedies Cumulative
|
66
|
|
Section
511.
|
Delay
or Omission Not Waiver
|
67
|
|
Section
512.
|
Control
by Holders
|
67
|
|
Section
513.
|
Waiver
of Past Defaults
|
67
|
|
Section
514.
|
Undertaking
for Costs
|
68
|
|
Section
515.
|
Waiver
of Stay, Extension or Usury Laws
|
68
|
|
Section
516.
|
Change
in Control Offer
|
68
|
|
ARTICLE
SIX
THE
TRUSTEE
|
||
|
Section
601.
|
Certain
Duties and Responsibilities
|
71
|
|
Section
602.
|
Notice
of Defaults
|
72
|
|
Section
603.
|
Certain
Rights of Trustee
|
72
|
|
Section
604.
|
Not
Responsible for Recitals or Issuance of Securities
|
73
|
|
Section
605.
|
May
Hold Securities
|
74
|
|
Section
606.
|
Money
Held in Trust
|
74
|
|
Section
607.
|
Compensation,
Reimbursement and Indemnity
|
74
|
|
Section
608.
|
Conflicting
Interests
|
75
|
|
Section
609.
|
Corporate
Trustee Required; Eligibility
|
75
|
vi
|
Section
610.
|
Resignation
and Removal; Appointment of Successor
|
75
|
|
Section
611.
|
Acceptance
of Appointment by Successor
|
76
|
|
Section
612.
|
Merger,
Conversion, Consolidation or Succession to Business
Business
|
77
|
|
Section
613.
|
Trustee
Not to Be Appointed Receiver
|
77
|
|
Section
614.
|
Acceptance
of Trusts
|
77
|
|
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
||
|
Section
701.
|
Disclosure
of Names and Addresses of Holders
|
77
|
|
Section
702.
|
Reports
by Trustee
|
78
|
|
Section
703.
|
Reports
by Company
|
78
|
|
ARTICLE
EIGHT
AMALGAMATION,
CONSOLIDATION, MERGER,
CONVEYANCE,
TRANSFER OR LEASE
|
||
|
Section
801.
|
Company
May Amalgamate, Etc., Only on Certain Terms
|
79
|
|
Section
802.
|
Successor
Substituted
|
80
|
|
ARTICLE
NINE
SUPPLEMENTS
AND AMENDMENTS TO INDENTURE
AND
COLLATERAL DOCUMENTS
|
||
|
Section
901.
|
Supplemental
Indentures and Amendments Without Consent of Holders
|
81
|
|
Section
902.
|
Actions
by the Trustee under the Deed of Trust and Certain Amendments to
the
Inter-Creditor Agreement Without Consent of Holders
|
81
|
|
Section
903.
|
Supplemental
Indentures and Certain Amendments with Consent of Holders
|
83
|
|
Section
904.
|
Amendments
to Collateral Documents
|
84
|
|
Section
905.
|
Execution
of Supplemental Indentures
|
85
|
|
Section
906.
|
Effect
of Supplemental Indentures
|
85
|
|
Section
907.
|
Conformity
with the Trust Indenture Act
|
85
|
|
Section
908.
|
Reference
in Securities to Supplemental Indentures
|
85
|
|
Section
909.
|
Execution
of Subordination Agreements
|
85
|
|
ARTICLE
TEN
COVENANTS
|
||
|
Section
1001.
|
Payment
of Principal, Premium and Interest
|
86
|
|
Section
1002.
|
Maintenance
of Office or Agency
|
86
|
|
Section
1003.
|
Money
for Security Payments to Be Held in Trust
|
86
|
|
Section
1004.
|
Corporate
Existence
|
87
|
|
Section
1005.
|
Payment
of Taxes and Other Claims
|
88
|
|
Section
1006.
|
Maintenance
of Properties
|
88
|
vii
|
Section
1007.
|
Insurance
|
88
|
|
Section
1008.
|
Limitation
on Debt
|
88
|
|
Section
1009.
|
Limitation
on Senior Debt
|
89
|
|
Section
1010.
|
Limitation
on Restricted Payments
|
89
|
|
Section
1011.
|
Limitation
on Investments
|
92
|
|
Section
1012.
|
Limitation
on Liens
|
92
|
|
Section
1013.
|
Limitation
on Management Fees
|
94
|
|
Section
1014.
|
Transactions
with Affiliates
|
95
|
|
Section
1015.
|
Restricted
Subsidiaries
|
95
|
|
Section
1016.
|
Disposition
of Proceeds of Asset Sale
|
96
|
|
Section
1017.
|
Limitation
on Secured Debt
|
99
|
|
Section
1018.
|
Limitation
on Sale and Leaseback Transactions
|
100
|
|
Section
1019.
|
Limitation
on Restricted Subsidiary Debt
|
100
|
|
Section
1020.
|
Provision
of Financial Statements
|
101
|
|
Section
1021.
|
Payment
of Additional Amounts
|
101
|
|
Section
1022.
|
Statement
as to Compliance
|
102
|
|
Section
1023.
|
Subordination
Arrangements
|
103
|
|
Section
1024.
|
Waiver
of Certain Covenants
|
104
|
|
Section
1025.
|
Suspension
of Covenants
|
104
|
|
Section
1026.
|
Release
of Security
|
105
|
|
Section
1027.
|
Registration
of Security Interest Created by Pledge Agreement
|
106
|
|
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
|
||
|
Section
1101.
|
Right
of Redemption
|
107
|
|
Section
1102.
|
Applicability
of Article
|
107
|
|
Section
1103.
|
Election
to Redeem; Notice to Trustee
|
107
|
|
Section
1104.
|
Selection
by Trustee of Securities to Be Redeemed
|
107
|
|
Section
1105.
|
Notice
of Redemption
|
108
|
|
Section
1106.
|
Deposit
of Redemption Price
|
108
|
|
Section
1107.
|
Securities
Payable on Redemption Date
|
109
|
|
Section
1108.
|
Securities
Redeemed in Part
|
109
|
|
Section
1109.
|
Effect
of Change in Control Purchase Notice
|
109
|
|
Section
1110.
|
Deposit
of Change in Control Purchase Price
|
110
|
|
Section
1111.
|
Securities
Purchased in Part
|
110
|
|
Section
1112.
|
Repayment
to the Company
|
110
|
|
ARTICLE
TWELVE
SECURITY
DOCUMENTS
|
||
|
Section
1201.
|
Pledge
Agreement
|
111
|
|
Section
1202.
|
Recording
|
111
|
|
Section
1203.
|
Custody
of Trust Estate
|
112
|
|
Section
1204.
|
Suits
to Protect the Trust Estate
|
112
|
|
Section
1205.
|
Release
upon Termination of the Company’s Obligations
|
113
|
viii
|
TESTIMONIUM
|
114
|
||
|
SIGNATURES
|
114
|
||
|
EXHIBITS
|
|||
|
A
|
- |
Provisions
for Inter-Company Deeply Subordinated Debt
|
|
|
B
|
- |
Provisions
for Inter-Company Subordinated Debt
|
|
|
C
|
- |
Form
of Pledge Agreement
|
|
|
D
|
- |
Form
of Certificate to be delivered in connection with Transfers from
Restricted Global Security to Regulation S Global
Security
|
|
|
E
|
- |
Form
of Certificate to be delivered in connection with Transfers from
Regulation S Global Security to Restricted Global
Security
|
|
|
F
|
- |
Form
of Certificate for Transfer or Exchange after two years
|
|
|
G
|
- |
Form
of Subordination Agreement
|
|
ix
INDENTURE
dated as of April 30, 2002 between Xxxxxx Cable Inc., a corporation organized
under the laws of the Province of Ontario (hereinafter called the “Company”),
and JPMorgan Chase Bank, a New York banking corporation, as trustee (hereinafter
called the “Trustee”).
RECITALS
OF THE COMPANY
WHEREAS,
the Company has duly authorized the creation of and issue of its 8.750% Senior
(Secured) Second Priority Debentures due 2032 (hereinafter called the “Initial
Securities”) and 8.750% Exchange Senior (Secured) Second Priority Debentures due
2032 (hereinafter called the “Exchange Securities” and, together with the
Initial Securities, the “Securities”), of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture;
WHEREAS,
the Company’s obligations under the Securities are secured as provided in this
Indenture (subject to the release of such security in accordance with this
Indenture);
WHEREAS,
upon the effectiveness of the Exchange Offer Registration Statement or the
Shelf
Registration Statement, as the case may be, this Indenture will be subject
to,
and shall be governed by, applicable provisions of the Trust Indenture Act;
and
WHEREAS,
all things necessary have been done to make the Securities, when executed
and
duly issued by the Company and authenticated and delivered hereunder by the
Trustee, the valid obligations of the Company, and to make this Indenture
a
valid agreement of the Company, each in accordance with their respective
terms,
and to secure the Securities as contemplated in the Pledge
Agreement.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
101. Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b) all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(c) all
accounting terms not otherwise defined herein have the meanings assigned
to them
in accordance with generally accepted accounting principles in
Canada;
(d) the
words “herein”, “hereof” and “hereunder” and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other
subdivision;
(e) the
words “include”, “includes” and “including” as used herein shall be deemed in
each case to be followed by the phrase “without limitation”; and
(f) the
words “amendment or refinancing” as used herein shall be deemed in each case to
refer to any amendment, renewal, extension, substitution, refinancing,
restructuring, restatement, replacement, supplement or other modification
of any
instrument or agreement; the words “amended or refinanced” shall have a
correlative meaning.
Certain
terms, used principally in Articles Five and Ten, are defined in those
Articles.
“Acquired
Debt” means Debt of a Person (including an Unrestricted Subsidiary) existing at
the time such Person becomes a Restricted Subsidiary or assumed in connection
with the acquisition of assets from such Person.
“Additional
Securities” means up to an unlimited additional aggregate principal amount of
Securities that may be issued under a supplemental indenture after the date
that
the Securities are first issued by the Company and authenticated by the Trustee
under this Indenture, which shall rank pari passu with the Securities
initially issued in all respects.
“Adjusted
Treasury Rate” means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for
the Redemption Date.
“Affiliate”
means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
2
“Agent
Member” means any members of, or participants in, the Depositary.
“Annualized
Operating Cash Flow” means, for any fiscal quarter, the Operating Cash Flow for
such fiscal quarter multiplied by four.
“Applicable
Procedures” means applicable procedures of the Depositary, Euroclear System or
Clearstream Banking, société
anonyme, as the case may be.
“Asset
Sale” means any sale, issuance, conveyance, transfer or lease, directly or
indirectly, in one or a series of related transactions, of (i) any Common
Stock
of any Restricted Subsidiary; (ii) all or substantially all of the properties
and assets of any division or line of business of the Company and its Restricted
Subsidiaries taken as a whole; or (iii) any other properties or assets (other
than Excluded Assets) of the Company or any Restricted Subsidiary, other
than in
the ordinary course of business. For the purposes of this definition,
the term “Asset Sale” shall not include (a) any sale, issuance, conveyance,
transfer or lease of properties and assets that is governed by Article Eight,
(b) any sale, issuance, conveyance, transfer or lease in any one transaction
or
series of related transactions between the Company and any Restricted
Subsidiaries or between any Restricted Subsidiaries, (c) any sale, conveyance,
transfer or lease in the ordinary course of business of not more than five
Rogers Video stores in any one transaction or series of related transactions
or
(d) in the event of any substantially contemporaneous exchange (including
by way
of a substantially contemporaneous purchase and sale) of operating properties
or
assets of, or investments held by, the Company or any of its Restricted
Subsidiaries for one or more properties, assets or investments used for similar
purposes or of a substantially similar nature, or any combination thereof,
that
portion of the properties, assets or investments so exchanged by the Company
or
such Restricted Subsidiary in respect of which properties, assets or investments
used for similar purposes or of a substantially similar nature, or any
combination thereof, were received in the exchange.
“Attributable
Debt” means, as of the date of its determination, the present value (discounted
semiannually 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).
3
“bank
credit facility” means any credit agreement or working capital facility among
the Company and/or its Subsidiaries and one or more lenders, as such credit
agreement or working capital facility may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise
modified (including with other lenders) from time to time, regardless of
whether
any other credit agreement or working capital facility or any portion thereof
was outstanding or in effect at the time of such amendment, renewal, extension,
substitution, refinancing, restructuring, replacement, supplement or
modification.
“Board
of
Directors” means the board of directors of the Company or any duly authorized
committee of such board.
“Board
Resolution” means a copy of a resolution certified by the General Counsel,
Secretary or an Assistant Secretary of the Company to have been duly adopted
by
the Board of Directors and to be in full force and effect on the date of
such
certification, and delivered to the Trustee.
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions and trust companies in The City of New
York or
the City of Toronto are authorized or obligated by law, regulation or executive
order to be closed.
“Canadian
Dollars”, “Cdn Dollars” and “Cdn$” each mean lawful currency of
Canada.
“Capital
Lease Obligation” means, with respect to any Person, an obligation incurred or
assumed in the ordinary course of business under or in connection with any
capital lease of real or personal property which, in accordance with GAAP,
has
been recorded as a capitalized lease.
“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or equivalents (however designated) of such Person’s capital
stock whether now outstanding or issued after the date of this Indenture,
including, without limitation, all Common Stock and Preferred
Stock.
“cash
equivalents” means money, certified cheques, demand deposit accounts held by the
Deed Trustee or other instruments or investments of equivalent liquidity
and
safety.
“Collateral
Documents” means, collectively, the Trust Bond, the Deed of Trust, the Pledge
Agreement, the Inter-Creditor Agreement and each other agreement or instrument
executed and delivered pursuant to or in connection with any thereof or which
otherwise contains a guarantee of, or grants a Lien to secure, the Trust
Bond or
any guarantee thereof.
“Commission”
means the United States Securities and Exchange Commission, as from time
to time
constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
4
“Common
Stock” means, with respect to any Person, any and all shares, interests and
participations (however designated and whether voting or non-voting) in such
Person’s common equity, whether now outstanding or issued after the date of this
Indenture, and includes, without limitation, all series and classes of such
common stock.
“Company”
means the Person named as the “Company” in the first paragraph of this
Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310 through
317
as they are applicable to the Company, the term “Company” shall include any
other obligor with respect to the Securities for the purposes of complying
with
such provisions.
“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by any two of the following officers: its Chairman of
the Board of Directors, any Vice-Chairman, its President, any Executive
Vice-President, any Senior Vice-President, any Vice-President, its Treasurer,
its Secretary or its General Counsel, and delivered to the Trustee.
“Comparable
Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of
the
Securities that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
of
comparable maturity to the remaining term of the Securities.
“Comparable
Treasury Price” means, with respect to any Redemption Date, the average of the
Reference Treasury Dealer Quotations for the Redemption Date.
“Consolidated
Debt to Annualized Operating Cash Flow Ratio” means, at any date of
determination, the ratio of (i) the aggregate amount of the Debt of the Company
and the Restricted Subsidiaries on a Consolidated basis outstanding at the
date
of determination to (ii) the Annualized Operating Cash Flow for the most
recently completed fiscal quarter of the Company. For purposes of
this definition, the term “Debt” includes Inter-Company Subordinated
Debt.
“Consolidated
Net Tangible Assets” means the Consolidated Tangible Assets of any Person, less
such Person’s current liabilities.
“Consolidated
Senior Debt to Annualized Operating Cash Flow Ratio” means, at any date of
determination, the ratio of (i) the aggregate amount of Senior Debt of the
Company and the Restricted Subsidiaries on a Consolidated basis outstanding
at
the date of determination to (ii) the Annualized Operating Cash Flow for
the
most recently completed fiscal quarter of the Company.
5
“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.
“Consolidation”
means the consolidation of the accounts of the Restricted Subsidiaries with
those of the Company, if and to the extent the accounts of each such Restricted
Subsidiary would normally be consolidated with those of the Company, all
in
accordance with GAAP; provided, however, that “Consolidation” will not
include consolidation of the accounts of any Unrestricted
Subsidiary. For purposes of clarification, it is understood that the
accounts of the Company or any Restricted Subsidiary include the accounts
of any
partnership, the beneficial interests in which are controlled (in accordance
with GAAP) by the Company or any such Restricted Subsidiary. The term
“Consolidated” shall have a correlative meaning.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered. At
the date of execution of this Indenture, the Corporate Trust Office of the
Trustee is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
“Debt”
means, with respect to any Person, without duplication and (except as provided
in clause (i) below) without regard to any interest component thereof (whether
actual or imputed) that is not due and payable:
(i) money
borrowed (including, without limitation, by way of overdraft) or indebtedness
represented by notes payable and drafts accepted representing extensions
of
credit;
(ii) the
face amount of any drafts of a corporation in Canadian Dollars and accepted
by a
Canadian lender for discount in Canada;
(iii) all
obligations (whether or not with respect to the borrowing of money) which
are
evidenced by bonds, debentures, notes or other similar instruments or not
so
evidenced but which would be considered to be indebtedness for borrowed money
in
accordance with GAAP;
(iv) all
liabilities upon which interest charges are customarily paid by such
Person;
(v) shares
of Disqualified Stock not held by the Company or a wholly-owned Restricted
Subsidiary;
(vi) Capital
Lease Obligations and Purchase Money Obligations, determined in each case
in
accordance with GAAP; and
(vii) any
guarantee (other than by endorsement of negotiable instruments for collection
or
deposit in the ordinary course of business) in any manner of any part or
all of
an obligation included in clauses (i) through (vi) above;
6
provided
that “Debt” shall not include (A) trade payables and accrued liabilities
which are current liabilities incurred in the ordinary course of business,
(B)
Inter-Company Deeply Subordinated Debt and (C) except as otherwise expressly
provided herein, Inter-Company Subordinated Debt.
“Deed
of
Trust” means the Restated Deed of Trust and Mortgage dated as of January 31,
1995, between the Company and the Deed Trustee as in effect on the date hereof
and as such agreement may be amended, restated, supplemented or otherwise
modified from time to time.
“Deed
of
Trust Bondholders” means, collectively, the holders of the Deed of Trust Bonds
from time to time.
“Deed
of
Trust Bonds” means, collectively, the Trust Bond and any other bonds from time
to time issued and outstanding under the Deed of Trust.
“Deed
of
Trust Collateral” means, collectively, all of the property and assets that are
intended from time to time to secure the Deed of Trust Bonds or any guarantee
thereof pursuant to the Collateral Documents.
“Deed
Trustee” means National Trust Company, a trust company subsisting under the laws
of the Province of Ontario, Canada and its successors and assigns, as trustee
under the Deed of Trust.
“Default”
means any event which is, or after notice or passage of time or both would
be,
an Event of Default.
“Deferred
Management Fees” means, for any period, any Management Fees that were payable
during any prior period, the payment of which was not effected when
due.
“Depositary”
means The Depository Trust Company, its nominees and their respective
successors.
“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
Securities 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
such
Restricted Subsidiary, which provisions have substantially the same effect
as
the relevant provisions of Sections 501 and 516 hereof, 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.
7
“Event
of
Default” has the meaning specified in Article Five.
“Exchange
Act” means the United States Securities Exchange Act of 1934, as amended, and
as
in force at the date as of which this instrument was executed.
“Exchange
Offer” means the exchange offer that may be effected pursuant to the
Registration Rights Agreement.
“Exchange
Offer Registration Statement” means the Exchange Offer Registration Statement as
defined in the Registration Rights Agreement.
“Exchange
Securities” has the meaning stated in the first recital of this Indenture and
refers to any Exchange Securities containing terms substantially identical
to,
and evidencing the same indebtedness as, the Initial Securities (except that
such Exchange Securities shall not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided for in the Registration Rights
Agreement and this Indenture.
“Excluded
Assets” means (i) all Existing Excluded Assets; (ii) all assets of any Person
other than the Company or a Restricted Subsidiary; (iii) Investments in the
Capital Stock of an Unrestricted Subsidiary held by the Company or a Restricted
Subsidiary; (iv) 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 (v)
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 Deeply 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 Deeply Subordinated
Debt;
(iii) in
the case of Debt, not be secured by any assets or property of the Company
or any
Restricted Subsidiary;
8
(iv) 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) provide
by its terms that, except and to the extent otherwise permitted as a Restricted
Payment, 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 final Stated Maturity of the Securities or (y) the date
on
which all principal of, premium, if any, and interest on the Securities shall
have been duly paid or provided for in full.
“Existing
Excluded Assets” means (i) all assets of 1093216 Ontario, Solv, 969056 Ontario,
Xxxxxx Investments, 3782 Investments and 1443358 Ontario, (ii) the shares
of
Capital Stock of 1093216 Ontario, Solv, 969056 Ontario, Xxxxxx Investments,
3782
Investments and 1443358 Ontario owned directly or indirectly by the Company
and
in each case as such shares may be subdivided, consolidated or reclassified,
and
including any additional shares of any such issues received as a stock dividend
on such shares and (iii) the proceeds of the sale of any assets or shares
referred to in the foregoing clause (i) or (ii) received by the Company or
any
Restricted Subsidiary from a Person other than the Company or a Restricted
Subsidiary.
“Existing
Senior Secured Second Priority Securities” means securities evidencing
indebtedness under the Company’s 9 5/8% senior secured second priority
notes due 2002, 10 1/8% senior secured second priority debentures due 2012,
9.65% senior secured second priority debentures due 2014, 10% senior secured
second priority notes due 2005, 10% senior secured second priority debentures
due 2007 and 7.60% senior (secured) second priority notes due 2007.
“Existing
Senior Subordinated Guaranteed Debentures” means securities evidencing
indebtedness under the Company’s 11% senior subordinated guaranteed debentures
due 2015.
“Fitch
IBCA” means Fitch IBCA or any successor to the rating agency business
thereof.
“Generally
Accepted Accounting Principles” or “GAAP” means generally accepted accounting
principles, in effect in Canada, as applied from time to time by the Company
in
the preparation of its consolidated financial statements.
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
“Income
Taxes” means, for any period, the aggregate amount of income tax expense,
including any large corporations tax incurred pursuant to Part I.3 under
the
Income Tax Act (Canada), of the Company and the Restricted Subsidiaries for
such
period, determined on a Consolidated basis in accordance with GAAP, together
with any capital
tax incurred by the Company and the Restricted Subsidiaries pursuant to any
Canadian provincial tax legislation for such period, determined on a
Consolidated basis.
9
“Indenture”
means this instrument as originally executed (including all exhibits and
schedules hereto) and as it may from time to time be supplemented or amended
by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
“Indenture
Obligations” means the obligations of the Company and any other obligor
hereunder or under the Securities to pay principal of (and premium, if any)
and
interest on the Securities when due and payable at Maturity, and all other
amounts due or to become due under or in connection with this Indenture,
the
Securities and the performance of all other obligations to the Trustee
(including all amounts due to the Trustee under Section 607 hereof) and the
Holders under this Indenture and the Securities, according to the terms hereof
and thereof.
“Independent
Director” means a director of the Company other than (i) a director who (apart
from being a director of the Company or any of its subsidiaries) is an employee,
insider, associate (as the terms insider and associate are defined in the
Securities Act (Ontario) as in force on the date of this Indenture) or Affiliate
of RCI or one of its subsidiaries, or has held any such position during the
previous five years and (ii) a director who is an employee, insider, associate
(as the terms insider and associate are defined in the Securities Act (Ontario)
as in force on the date of this Indenture) or Affiliate of another party
to the
transaction in question.
“Initial
Securities” has the meaning stated in the first recital of this
Indenture.
“Inter-Company
Deeply Subordinated Debt” means all indebtedness of the Company or any of the
Restricted Subsidiaries (except from one to the other) for money borrowed
from
Xxxxxx Entities under which payments by the Company or such Restricted
Subsidiary, as the case may be, with respect thereto are subordinated to
the
Securities in the manner and to the extent set forth in Exhibit A hereto
and in
respect of which the agreement or instrument evidencing such indebtedness
contains or incorporates by reference the provisions of Exhibit A hereto
for the
benefit of the Trustee and the Holders.
“Inter-Company
Subordinated Debt” means all indebtedness of the Company or any of the
Restricted Subsidiaries (except from one to the other) for money borrowed
from
Xxxxxx Entities and under which payments by the Company or such Restricted
Subsidiary, as the case may be, with respect thereto are subordinated to
the
Securities in the manner and to the extent set forth in Exhibit B hereto
and in
respect of which the agreement or instrument evidencing such indebtedness
contains or incorporates by reference the provisions of Exhibit B for the
benefit of the Trustee and the Holders.
“Inter-Creditor
Agreement” means the amended and restated inter-creditor agreement dated as of
August 1, 1992, among the Company, certain of its subsidiaries and the lender
parties thereto, as the same may be amended or supplemented from time to
time in
accordance with this Indenture.
10
“Interest
Payment Date” means the Stated Maturity of an installment of interest on the
Securities.
“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 IBCA.
“Lien”
means any mortgage, charge, pledge, lien, privilege, security interest,
hypothecation and transfer, lease of real property or other encumbrance upon
or
with respect to any property of any kind of the Company or any of the Restricted
Subsidiaries, real or personal, movable or immovable, now owned or hereafter
acquired.
“Management
Fees” means any amounts payable by the Company or any Restricted Subsidiary in
respect of management or similar services.
“Maturity”
when used with respect to any Security means the date on which the principal
of
(and premium, if any) and interest on such Security becomes due and payable
as
therein or herein provided, whether at the Stated Maturity thereof or by
declaration of acceleration, call for redemption or otherwise.
“Moody’s”
means Xxxxx’x Investors Service, Inc. or any successor to the rating
agency business thereof.
“Net
Cash
Proceeds” means, with respect to any Asset Sale, the proceeds thereof in the
form of cash or cash equivalents, including payments in respect of deferred
payment obligations when received in the form of cash or cash equivalents
(except to the extent that such obligations are financed or sold with recourse
to the Company or any Restricted Subsidiary), net of (i) brokerage commissions
and other reasonable fees and expenses (including fees and expenses of counsel,
appraisers, auditors and investment bankers) related to such Asset Sale,
(ii)
provisions for all taxes payable as a result of such Asset Sale, (iii) payments
made to retire indebtedness (other than Debt secured by a pledge of a Deed
of
Trust Bond) where payment of such indebtedness is required in connection
with
such Asset Sale and (iv) appropriate amounts to be provided by the Company
or
any Restricted Subsidiary, as the case may be, as a reserve in accordance
with
GAAP, against any liabilities associated with such Asset Sale and retained
by
the Company or any Restricted Subsidiary, as the case may be, after such
Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under
any indemnification obligations associated with such Asset Sale.
11
“969056
Ontario” means 969056 Ontario Limited, a corporation organized under the laws of
the Province of Ontario, and its successors and assigns.
“Officers’
Certificate” means a certificate signed by any two of the following officers of
the Company: its Chairman, any Vice Chairman, its President, any
Executive Vice President, any Senior Vice President, any Vice President,
its
Treasurer, its Secretary or its General Xxxxxxx, and delivered to the
Trustee. Each such certificate shall include the statements provided
for in applicable provisions of the Trust Indenture Act and shall comply
with
Section 103.
“1093216
Ontario” means 1093216 Ontario Ltd., a corporation organized under the laws of
the Province of Ontario, and its successors and assigns.
“1443358
Ontario” means 1443358 Ontario Inc., a corporation organized under the laws of
the Province of Ontario, and its successors and assigns.
“Operating
Cash Flow” means, for any period, all as determined on a Consolidated basis in
accordance with GAAP (i) the net income or loss of the Company and its
Restricted Subsidiaries for such period, adjusted, to the extent included
in
calculating such net income or loss, by excluding (a) any gain or loss
attributable to the sale, conversion or other disposition of assets other
than
in the ordinary course of business, (b) any gains resulting from the write-up
of
assets and any loss resulting from the write-down of assets, (c) any gain
or
loss on the repurchase or redemption of any securities (including in connection
with the early retirement or defeasance of any Debt), (d) any foreign exchange
gain or loss, (e) any other extraordinary, non-recurring or unusual items
incurred by the Company or any Restricted Subsidiary and (f) all income or
losses of Unrestricted Subsidiaries and Persons (other than Subsidiaries)
accounted for by the Company using the equity method of accounting, except
to
the extent of cash dividends, cash interest or other cash distributions received
directly or indirectly from any such Unrestricted Subsidiary or Person, plus
(ii) all amounts deducted in making the calculation pursuant to
clause (i)
for interest expense and other financing costs, depreciation and amortization,
all Management Fees and all Income Taxes, whether or not deferred, applicable
to
such period, less (iii) the aggregate amount of Management Fees
(including Deferred Management Fees) actually paid in such period; provided
that such deduction shall not be required to the extent that such
Management Fees (including Deferred Management Fees) are designated by the
Company to be a Restricted Payment. For purposes of clarification,
the components of “Operating Cash Flow” listed above shall be determined by
including the accounts of the Company, any Restricted Subsidiary and any
partnership, the beneficial interests in which are controlled (in accordance
with GAAP) by the Company or any such Restricted Subsidiary.
12
For
purposes of calculating Operating Cash Flow for the fiscal quarter most recently
completed prior to any date on which an action is taken that requires a
calculation of the Consolidated Debt to Annualized Operating Cash Flow Ratio
or
Consolidated Senior Debt to Annualized Operating Cash Flow Ratio, (1) any
Person
that is a Restricted Subsidiary on such date (or would become a Restricted
Subsidiary in connection with the transaction that requires the determination
of
such ratio) shall be deemed to have been a Restricted Subsidiary at all times
during such fiscal quarter, (2) any Person that is not a Restricted Subsidiary
on such date (or would cease to be a Restricted Subsidiary in connection
with
the transaction that requires the determination of such ratio) shall be deemed
not to have been a Restricted Subsidiary at any time during such fiscal quarter
and (3) if the Company or any Restricted Subsidiary shall have in any manner
acquired or disposed of any operating business during or subsequent to the
most
recently completed fiscal quarter, such calculation shall be made on a pro
forma basis on the assumption that such acquisition or disposition had been
completed on the first day of such completed fiscal quarter.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in applicable provisions
of
the Trust Indenture Act and shall comply with Section 103.
“Outstanding”
when used with respect to Securities means, as of the date of determination,
all
Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities,
or portions thereof, for whose payment, redemption or purchase money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust
by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(c) Securities,
except to the extent provided in Sections 402 and 403, with respect to which
the
Company has effected defeasance or covenant defeasance as provided in Article
Four; and
(d) Securities
in exchange for or in lieu of which other Securities have been authenticated
and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory
to it
that such Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
13
provided,
however, that in determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, direction,
consent or waiver hereunder, Securities owned by the Company, or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in relying upon any such
request, demand, direction, consent or waiver, only Securities which the
Trustee
knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to
act with respect to such Securities and that the pledgee is not the Company
or
any other obligor upon the Securities or any Affiliate of the Company or
such
other obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of (or
premium, if any) or interest on any Securities on behalf of the
Company.
“Permitted
Debt” means:
(i) Debt
under any bank credit facility in an aggregate principal amount not to exceed
Cdn$1,200,000,000 at any time outstanding;
(ii) Debt
under one or more operating credit facilities in an aggregate principal amount
not to exceed Cdn$10,000,000 in the aggregate at any time
outstanding;
(iii) Debt,
not covered by any other clause of this definition, outstanding on the date
of
this Indenture, including (but not limited to) Debt under the Existing Senior
Secured Second Priority Securities and the Existing Senior Subordinated
Guaranteed Debentures;
(iv) Debt
under the Securities;
(v) Debt
under the 2012 Notes;
(vi) any
amendment or refinancing of any Permitted Debt referred to in clauses (i)
through (v) above or any successive amendment or refinancing thereof, including
any such amendment or refinancing (x) extending the maturity of all or any
portion of the Debt thereunder and (y) adding additional borrowers or guarantors
thereunder or changing the borrowers or guarantors thereunder; provided
that such amendment or refinancing (or successive amendment or
refinancing)
shall constitute Permitted Debt only (A) to the extent that it does not result
in an increase in the aggregate principal amount of such Permitted Debt,
(B) if
it does not have the effect of shortening the then aggregate average weighted
maturity of all Permitted Debt outstanding or committed to be outstanding
(taking into account the effect of substantially contemporaneous amendments
or
refinancings of other Permitted Debt) and (C) if the Debt to be amended or
refinanced is Debt of the Company or any Restricted Subsidiary that is
subordinated in right of payment to the Securities or the senior indebtedness
of
such Restricted Subsidiary, the new Debt is subordinated in right of payment
to
the Securities or the senior indebtedness of such Restricted Subsidiary at
least
to the same extent as the Debt to be amended or refinanced; and
14
(vii) Debt not
covered by any of the foregoing clauses of this definition not to exceed
an
aggregate principal amount at any time outstanding of
Cdn$100,000,000.
“Permitted Distributions” means:
(i) so long as
no Default or Event of Default has occurred and is continuing or would thereby
result:
(A) payments
on Inter-Company Subordinated Debt;
(B) payments
of any kind from the Company or any of the Restricted Subsidiaries to any
one of
the other of them;
(C) payments
of dividends and other distributions on shares of the Company’s Capital Stock in
the form of Inter-Company Deeply Subordinated Debt, Excluded Securities or
Existing Excluded Assets;
(D) the
payment of any dividend or other distribution within 60 days after the date
of
declaration thereof, if at such declaration date such dividend would not
have
been prohibited by Section 1010;
(E) the
redemption, repurchase, defeasance or other acquisition or retirement for
value
of Debt of the Company or any Restricted Subsidiary, that is subordinated
in
right of payment to the Securities or the senior indebtedness of such Restricted
Subsidiary, as the case may be, provided that such Debt (a) has a final
maturity before the final Stated Maturity of the Securities and (b) such
Debt is
not Debt that was issued on or before April 30, 2002, or Debt constituting
an
amendment or refinancing (including any successive amendment or refinancing)
of
Debt that was issued on or before April 30, 2002 (other than, in each case,
with
respect to clauses (a) and (b), the Existing Senior Subordinated Guaranteed
Debentures);
(F) the
redemption, repurchase, defeasance or other acquisition or retirement for
value
of Debt of the Company or any Restricted Subsidiary that is subordinated
in
right of payment to the Securities or the senior indebtedness of such Restricted
Subsidiary, as the case may be (other than any such Debt covered by the
preceding clause (E), which may be redeemed, repurchased, defeased or otherwise
acquired or retired for value in any manner, as provided in the preceding
clause
(E)), in exchange for (including any such exchange pursuant to the exercise
of a
conversion right or privilege in connection with which cash is paid in lieu
of
the issuance of fractional shares or scrip), or out of the proceeds of a
substantially concurrent issue and sale (other than to a Restricted Subsidiary)
of, either (a) Capital Stock of the Company (other than Disqualified Stock)
or
Inter-Company Deeply Subordinated Debt of the Company or Excluded Securities
of
the Company or (b) Debt of the Company or such Restricted Subsidiary that
is
subordinated in right of payment to the Securities or the senior indebtedness
of
such Restricted Subsidiary, as the case may be, at least to the same extent
as
the Debt that is redeemed, repurchased, defeased or otherwise acquired or
retired for value; provided that, in the case of this clause (b), such
transaction shall not have the effect of shortening the then aggregate average
weighted maturity of all Debt of the Company or such Restricted Subsidiary
that
is subordinated in right of payment to the Securities or the senior indebtedness
of such Restricted Subsidiary, as the case may be (taking into account the
effect of substantially contemporaneous amendments or refinancings of other
Debt
subordinated in right of payment to the Securities or the senior indebtedness
of
such Restricted Subsidiary, as the case may be); and
15
(G) the
payment of any amount of Management Fees (including Deferred Management Fees)
that has not been designated as a Restricted Payment and is therefore deducted
when determining Operating Cash Flow; and
(ii) payments
made in the ordinary course of business and on commercially reasonable terms
in
regard to fixed assets and/or operating expenses and operating and capital
leases pursuant to sharing and/or service agreements with Affiliates of the
Company.
For
the
purposes of this Indenture, the fact that a transaction is listed in the
foregoing definition of Permitted Distributions shall not be deemed to indicate
that such transaction constitutes a Restricted Payment.
“Permitted
Investment” means:
(i) Investments
by the Company or any of the Restricted Subsidiaries in any one of the other
of
them;
(ii) Investments
in the Securities;
(iii) Investments
in assets owned or used in the ordinary course of business;
(iv) Temporary
Cash Investments;
(v) Investments
for which the payment is made using Excluded Assets, Excluded Securities,
Capital Stock of the Company (other than Disqualified Stock) or Inter-Company
Deeply Subordinated Debt;
16
(vi) direct
or indirect loans to employees, or to a trustee for the benefit of such
employees, of the Company or any Restricted Subsidiary in an aggregate amount
outstanding at any time not exceeding Cdn$25,000,000;
(vii) Investments
by the Company or any Restricted Subsidiary in a Person, if as a result of
such
Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person
is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated or wound-up into, the
Company or a Restricted Subsidiary; and
(viii) other
Investments that do not exceed Cdn$25,000,000 at any time
outstanding.
“Permitted
Restricted Payment” means payments in cash in an amount equal to the compound
portion of interest on any Inter-Company Deeply Subordinated Debt.
“Person”
means any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof, or any other
entity.
“Pledge
Agreement” means the agreement between the Company and the Trustee dated as of
April 30, 2002 substantially in the form attached as Exhibit C hereto, pursuant
to which the Company has pledged the Trust Bond to and in favor of the Trustee
for and on behalf of the Trustee and each of the Holders.
“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 308 in exchange for a mutilated security or in lieu
of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt
as
the mutilated, lost, destroyed or stolen Security.
“Preferred
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s
preferred or preference stock whether now outstanding or issued after the
date
of this Indenture, and includes, without limitation, all classes and series
of
preferred or preference stock.
“Principal
Property” means, as of any date of determination, any cable system and equipment
related to operating and monitoring any cable system and any equipment related
to distributing and offering any of the products and services offered by
the
Company and its Restricted Subsidiaries and any land, land improvements,
building and associated laboratory and office 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 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%.
17
“Purchase
Agreement” means the Purchase Agreement among the Company and the Initial
Purchasers named therein, dated as of April 25, 2002, relating to the sale
of
the Securities and the 2012 Notes to the Initial Purchasers.
“Purchase
Money Obligations” means, with respect to any Person, obligations, other than
Capital Lease Obligations, incurred or assumed in the ordinary course of
business in connection with the purchase of property to be used in the business
of such Person.
“QIB”
means a Qualified Institutional Buyer pursuant to Rule 144A.
“Quotation
Agent” means Xxxxxxx Xxxxx Xxxxxx Inc. or such other Reference
Treasury Dealer appointed by the Company.
“Rating
Agencies” means S&P, Xxxxx’x and Xxxxx IBCA, 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 Securities is under publicly announced
consideration for possible downgrade by any of the Rating
Agencies): (a) in the event the Securities are assigned an Investment
Grade Rating by at least two of the three Rating Agencies on the Rating Date,
the rating of the Securities by at least two of the three Rating Agencies
shall
be below an Investment Grade Rating; or (b) in the event the Securities are
rated below an Investment Grade Rating by at least two of the three Rating
Agencies on the Rating Date, the rating of the Securities by at least two
of the
three Rating Agencies shall be decreased by one or more gradations (including
gradation within rating categories as well as between rating
categories).
“RCI”
means Xxxxxx Communications Inc., a corporation continued under the laws
of the
Province of British Columbia, and its successors and assigns.
“Redemption
Date”, when used with respect to any Securities to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.
18
“Reference
Treasury Dealer” means (1) Xxxxxxx Xxxxx Xxxxxx Inc. or its
successor; provided, however, that if it shall cease to be a primary
U.S. Government securities dealer in New York City (a “Primary
Treasury Dealer”), the Company shall substitute for it another Primary Treasury
Dealer; and (2) any other Primary Treasury Dealer selected by the
Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Reference
Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted by
the
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding the Redemption Date.
“Registration
Rights Agreement means the Registration Rights Agreement among the Company
and
the Initial Purchasers named therein, dated as of April 30, 2002, relating
to
the Securities.
“Registration
Statement” means the Registration Statement as defined in the Registration
Rights Agreement.
“Regular
Record Date” for the interest payable on any Interest Payment Date means the
April 15 or October 15 (whether or not a Business Day), as the case may be,
next
preceding such Interest Payment Date.
“Regulation
S” means Regulation S under the Securities Act.
“Responsible
Officer”, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or vice-chairman of
the
executive committee of the board of directors, the president, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, the cashier, any assistant cashier,
any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to
whom such matter is referred because of his knowledge of and familiarity
with
the particular subject.
“Restricted
Subsidiary” means (a) prior to the Release Date, any Subsidiary that is a
“Designated Subsidiary” under the Deed of Trust, and includes any Unrestricted
Subsidiary or other Person, in either case, that becomes a Restricted Subsidiary
in accordance with Section 1015 and excludes any Person (including any of
the
foregoing), that ceases to be a Restricted Subsidiary in accordance with
Section
1015 or (b) on or after the Release Date, any Subsidiary of the Company other
than an Unrestricted Subsidiary. As of the date hereof, the
Restricted Subsidiaries of the Company are: Rogers Cablesystems
Ontario Limited, Rogers Ottawa Limited/Limitée, Rogers
Cable
Atlantic Inc. and Rogers Cablesystems Georgian Bay
Limited.
19
“Rogers
Investments” means Rogers Cablesystems Investments Inc., a corporation organized
under the laws of Ontario, and its successors and assigns.
“Rogers
Entities” means RCI and its Affiliates.
“Rule
144A” means Rule 144A under the Securities Act.
“S&P”
means Standard & Poor’s Ratings Group, a division of McGraw Hill, 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;
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 Release 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
Cdn$50,000,000 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; and
20
(4) existing
at the time a corporation becomes a Restricted Subsidiary;
each
of
(1) through (4) above being referred to as “Exempted Secured Debt”.
“Securities
Act” means the United States Securities Act of 1933, as amended, and as in force
at the date as of which this instrument was executed.
“Security”
and “Securities” have the meaning set forth in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term
“Securities” shall include any Additional Securities that may be issued under a
supplemental indenture and any Exchange Securities to be issued and exchanged
for any Initial Securities in accordance with the Exchange Offer provided
for in
the Registration Rights Agreement and this Indenture and, for purposes of
this
Indenture, all Initial Securities, Additional Securities and Exchange Securities
shall vote together as one series of Securities under this
Indenture.
“Senior
Debt” means any Debt of the Company or any Restricted Subsidiary other than Debt
the repayment of which or any security for which has been expressly subordinated
to the obligations under the Securities or to the senior indebtedness of
such
Restricted Subsidiary, as the case may be.
“Shelf
Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
“Solv”
means Solv Signals Limited, a corporation organised under the laws of Ontario,
and its successors and assigns.
“Special
Record Date” means a date fixed by the Trustee for the payment of any Defaulted
Interest pursuant to Section 309.
“Stated
Maturity”, when used with respect to any Security or any installment of interest
thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of interest is due and
payable.
“Subordination
Agreement” means the subordination agreement among the Company, the Restricted
Subsidiaries, the Trustee, JPMorgan Chase Bank, as trustee (the “2012 Note
Trustee”) under the indenture dated as of the date hereof pursuant to which the
Company issued the 2012 Notes, and JPMorgan Chase Bank, as trustee for the
holders of the Existing Senior Subordinated Guaranteed Debentures (the
“Subordinated Debenture Trustee”), in the form of Exhibit G attached
hereto.
“Subsidiary”
means any firm, partnership, corporation or other legal entity in which the
Company, the Company and one or more Subsidiaries or one or more Subsidiaries
owns, directly or indirectly, a majority of the Voting Shares or has, directly
or indirectly, the right to elect a majority of the board of directors, if
it is
a corporation, or the right to make or control its management decisions,
if it
is some other Person.
21
“2012
Notes” means the Company’s 7.875% Senior (Secured) Second Priority Notes due
2012.
“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.
“Temporary
Cash Investments” means any of the following:
(i) Investments
in marketable, direct obligations issued or guaranteed by Canada or the United
States, or of any governmental entity or agency or political subdivision
thereof, maturing within 365 days of the date of purchase;
(ii) Investments
in commercial paper issued by corporations, each of which shall have a
consolidated net worth of at least Cdn$100,000,000 or the equivalent amount
in
United States Dollars, maturing within 180 days from the date of the original
issue thereof, and rated “R-1 low” or better by the Dominion Bond Rating Service
Limited, “P-2” or better by Xxxxx’x, or “A-2” or better by S&P or an
equivalent rating by any other recognized rating agency; or
(iii) Investments
in certificates of deposit issued or acceptances accepted by or guaranteed
by a
bank to which the Bank Act (Canada) applies or by any company licensed to
carry
on the business of a trust company in one or more provinces of Canada or
by any
bank or trust company organized under the laws of the United States or any
state
thereof or the District of Columbia, in each case having capital, surplus
and
undivided profits totaling more than Cdn$100,000,000 or the equivalent amount
in
United States Dollars, maturing within 365 days of the date of
purchase.
“3782
Investments” means 3782 Investments Limited, a corporation organized under the
laws of British Columbia, and its successors and assigns.
“Tranche
A Credit Facility” means any tranche A credit facility under a bank credit
facility.
“Tranche
A-Type Debt” means any Debt of the Company secured by the pledge of a Deed of
Trust Bond which ranks in right of payment, as among Senior Secured Bondholders
(as defined in the Deed of Trust), prior to or pari passu with Debt
under any Tranche A Credit Facility, whether or not any Debt under any Tranche
A
Credit Facility exists at the time of creation of such Tranche A-Type
Debt.
“Trust
Bond” means a senior secured bond in the principal amount of US$400,000,000
issued by the Company under the Deed of Trust and pledged to and in favor
of the
Trustee for and on behalf of the Trustee and each of the Holders pursuant
to the
Pledge Agreement.
22
“Trust
Estate” means the property which is covered or intended to be covered by the
Lien of the Pledge Agreement as collateral security for the
Securities.
“Trust
Indenture Act” means the United States Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this instrument was executed, except
as
provided in Section 907.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
Indenture, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean
such successor Trustee.
“U.S. Dollars”,
“United States Dollars”, “U.S.$” and the symbol “$” each mean lawful currency of
the United States of America.
“Unrestricted
Subsidiary” means
(a) prior
to the Release Date, any Subsidiary that is not a Restricted Subsidiary and
includes any Restricted Subsidiary that becomes an Unrestricted Subsidiary
in
accordance with Section 1015; or
(b) on
or after the Release Date, (i) any Subsidiary of the Company that at the
time of
determination shall be designated an Unrestricted Subsidiary in accordance
with
Section 1015 and (ii) any Subsidiary of an Unrestricted Subsidiary.
“Voting
Shares” means any Capital Stock having voting power under ordinary circumstances
to vote in the election of a majority of the directors of a corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
Section
102. Other Definitions.
|
Defined
Term
|
Defined
in
Section
|
|
Act
|
105
|
|
Additional
Amounts
|
1021
|
|
Bankruptcy
Law
|
501
|
|
Bankruptcy
Order
|
501
|
|
Base
Currency
|
116
|
|
Change
in Control
|
501
|
|
Change
in Control Offer
|
516
|
|
Change
in Control Purchase Date
|
516
|
|
Change
in Control Purchase Notice
|
516
|
23
|
Change
in Control Purchase Price
|
516
|
|
Change
in Control Triggering Event
|
501
|
|
Computation
Period
|
1010
|
|
Consolidated
Gross Revenues
|
1013
|
|
Covenant
Defeasance
|
403
|
|
Covered
Net Cash Proceeds
|
1016
|
|
Custodian
|
501
|
|
Defaulted
Interest
|
309
|
|
defeasance
|
402
|
|
Deficiency
|
1016
|
|
Xxxxxx
X. Xxxxxx
|
501
|
|
Excess
Proceeds
|
1016
|
|
Excluded
Holder
|
1021
|
|
Family
Percentage Holding
|
501
|
|
Fifth
Anniversary
|
1016
|
|
First
Currency
|
117
|
|
Global
Securities
|
201
|
|
incorporated
provision
|
108
|
|
judgment
currency
|
116
|
|
Member
of the Xxxxxx Family
|
501
|
|
Notice
of Default
|
501
|
|
Offer
|
1016
|
|
Offer
Date
|
1016
|
|
Offered
Price
|
1016
|
|
OPSEU
Strike
|
1027
|
|
Other
Currency
|
117
|
|
Parent
Company
|
801
|
|
Permitted
Residuary Beneficiary
|
501
|
|
Perpetuity
Date
|
501
|
|
PPSA
|
1027
|
|
Private
Placement Legend
|
202
|
|
Qualified
Persons
|
501
|
|
Qualifying
Trust
|
501
|
|
rate(s)
of exchange
|
116
|
|
Registry
Availability Time
|
1027
|
|
Regulation
S Global Securities
|
201
|
|
Release
Date
|
1026
|
|
Relevant
Person
|
119
|
|
Restricted
Global Securities
|
201
|
|
Restricted
Payment
|
1010
|
|
Search
Availability Time
|
1027
|
|
Security
Factor
|
1016
|
|
Security
Register
|
305
|
|
Security
Registrar
|
305
|
|
Suspended
Covenants
|
1025
|
|
Suspension
Period
|
1025
|
24
|
Taxes
|
1021
|
|
25%
Excess Proceeds
|
1016
|
|
Updated
Searches
|
1027
|
|
U.S. Government
Obligations
|
404
|
In
addition, the terms “Bondholders’ Resolution”, “Designated Subsidiary”,
“Mortgaged Property”, “Senior Secured Bondholders”, “Specifically Mortgaged
Property” and “Unanimous Bondholders’ Resolution” shall have the respective
meanings ascribed thereto in the Deed of Trust as in effect on the date
hereof.
Section
103. Compliance Certificates and Opinions.
Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee
an
Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied
with
and an Opinion of Counsel stating that in the opinion of such counsel all
such
conditions precedent, if any, have been complied with, except that, in the
case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be
furnished.
Every
certificate or opinion (other than the certificates required by Section 1022)
with respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a) a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(c) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with or satisfied; and
(d) a
statement as to whether, in the opinion of each such individual, such covenant
or condition has been complied with or satisfied.
Section
104. Form
of Documents Delivered to the Trustee.
In
any
case where several matters are required to be certified by, or covered by
an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that
they
be so certified or covered by only one document, but one such Person may
certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
25
Any
certificate or opinion of an officer of the Company may be based, insofar
as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable
care
should know, that the certificate or opinion or representations with respect
to
the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of
the
Company, unless such counsel knows, or in the exercise of reasonable care
should
know, that the certificate or opinion or representations with respect to
such
matters are erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Section
105. Acts of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by their agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action
shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall
be sufficient for any purpose of this Indenture and (subject to Trust Indenture
Act Section 315) conclusive in favor of the Trustee and the Company, if made
in
the manner provided in this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any reasonable manner which the Trustee deems
sufficient.
(c) The
ownership of Securities shall be proved by the Security Register.
(d) If
the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its
option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of the Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding Trust Indenture
Act Section 316(c), any such record date shall be the record date specified
in
or pursuant to such Board Resolution, which shall be a date not more than
30
days prior to the first solicitation of Holders generally in connection
therewith and no later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of
business on such record date shall be deemed to be Holders for the purposes
of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; provided that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall
be
deemed effective unless it shall become effective pursuant to the provisions
of
this Indenture not later than eleven months after the record date.
26
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
by the Holder of any Security shall bind every future Holder of the same
Security or the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying
Agent
or the Company in reliance thereon, whether or not notation of such action
is
made upon such Security.
(f) For
all purposes of this Indenture, all Initial Securities, Exchange Securities
and
any Additional Securities shall vote together as one series of Securities
under
this Indenture.
Section
106. Notices, Etc., to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act
of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the
Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or delivered, in writing, to or with
the
Trustee at its Corporate Trust Office, Attention: Institutional Trust
Services; and
(b) the
Company 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 the Company to 000 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxx, Xxxxxx, X0X 0X0, 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 the
Company.
27
Section
107. Notice to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such
event,
at its address as it appears in the Security Register, not later than the
latest
date, and not earlier than the earliest date, prescribed for the giving of
such
notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed,
to any
particular Holder shall affect the sufficiency of such notice with respect
to
other Holders. Any notice mailed to a Holder in the aforesaid manner
shall be conclusively deemed to have been received by such Holder when mailed
whether or not actually received by such Xxxxxx. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the
Person entitled to receive such notice, either before or after the event,
and
such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not be
a
condition precedent to the validity of any action taken in reliance upon
such
waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause, it shall be impracticable to mail notice of any event as required
by any
provision of this Indenture, then any method of giving such notice as shall
be
satisfactory to the Trustee shall be deemed to be a sufficient giving of
such
notice.
Section
108. Conflict of Any Provision of Indenture with the Trust Indenture
Act.
Each
of
the Trustee and the Company agrees to comply with all provisions of the Trust
Indenture Act applicable to or binding upon it in connection with this Indenture
and any action to be taken hereunder. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with any mandatory
requirement of the Trust Indenture Act, such mandatory requirement shall
prevail. For greater certainty, if and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Sections 310 to 318, inclusive, of the Trust Indenture Act, or
conflicts with any provision (an “incorporated provision”) required by or deemed
to be included in this Indenture by operation of such Trust Indenture Act
sections, such imposed duties or incorporated provision shall
control.
Section
109. Effect of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof
Section
110. Successors and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
28
Section
111. Separability Clause.
In
case
any provision in this Indenture or in the Securities 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.
Section
112. Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to
any
Person (other than the parties hereto and their successors hereunder, any
Paying
Agent and the Holders) any benefit or any legal or equitable right, remedy
or
claim under this Indenture.
Section
113. Governing Law.
This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York. Upon the issuance of the
Exchange Securities or the effectiveness of the Shelf Registration Statement,
this Indenture shall be subject to the provisions of the Trust Indenture
Act
that are required or deemed to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
Section
114. Legal Holidays.
In
any
case where any Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity, Change
in Control Purchase Date or Offer Date with respect to any Security shall
not be
a Business Day, then (notwithstanding any other provision of this Indenture
or
of the Securities) payment of interest or principal (and premium, if any)
need
not be made on such date, but may be made on the next succeeding Business
Day
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, date established for payment of Defaulted Interest pursuant
to
Section 309, Stated Maturity, Change in Control Purchase Date or Offer Date
and
no interest shall accrue with respect to such payment for the period from
and
after such Interest Payment Date, Redemption Date, date established for payment
of Defaulted Interest pursuant to Section 309, Stated Maturity, Change in
Control Purchase Date or Offer Date, as the case may be, to the next succeeding
Business Day.
Section
115. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By
the
execution and delivery of this Indenture, the Company (i) acknowledges that
it
has, by separate written instrument, irrevocably designated and appointed
CT
Corporation System (and any successor entity) (“CT Corporation”), 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent upon
which
process may be served in any suit, action or proceeding arising out of or
relating to the Securities or this Indenture that may be instituted in any
federal or state court in the State of New York, Borough of Manhattan, or
brought under federal or state securities laws or brought by the Trustee
(whether in its individual capacity or in its capacity as Trustee hereunder),
and acknowledges that CT Corporation has accepted such designation, (ii)
submits
to the non-exclusive jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon CT Corporation
and
written notice of said service to it (mailed or delivered to its Vice-President,
Treasurer, with a copy to its Vice-President, General Counsel and Secretary,
in
each case as specified in Section 106(b) hereof) shall be deemed in every
respect effective service of process upon it in any such suit or
proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment
of
CT Corporation in full force and effect so long as this Indenture shall be
in
full force and effect.
29
To
the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
Section
116. Conversion of Currency.
The
Company covenants and agrees that the following provisions shall apply to
conversion of currency in the case of the Securities and this
Indenture:
(a) (i)
If, for the purpose of obtaining judgment in, or enforcing the judgment of,
any
court in any country, it becomes necessary to convert into a currency (the
“judgment currency”) an amount due in any other currency (the “Base Currency”),
then the conversion shall be made at the rate of exchange prevailing on the
Business Day before the day on which the judgment is given or the order of
enforcement is made, as the case may be (unless a court shall otherwise
determine).
(ii) If
there is a change in the rate of exchange prevailing between the Business
Day
before the day on which the judgment is given or an order of enforcement
is
made, as the case may be (or such other date as a court shall determine),
and
the date of receipt of the amount due, the Company will pay such additional
(or,
as the case may be, such lesser) amount, if any, as may be necessary so that
the
amount paid in the judgment currency when converted at the rate of exchange
prevailing on the date of receipt will produce the amount in the Base Currency
originally due.
(b) In
the event of the winding-up of the Company at any time while any amount or
damages owing under the Securities and this Indenture, or any judgment or
order
rendered in respect thereof, shall remain outstanding, the Company shall
indemnify and hold the Holders and the Trustee harmless against any deficiency
arising or resulting from any variation in rates of exchange between (1)
the
date as of which the equivalent of the amount in U.S. Dollars or
Canadian Dollars, as the case may be, due or contingently due under the
Securities and this Indenture (other than under this Subsection (b)) is
calculated for the purposes of such winding-up and (2) the final date for
the
filing of proofs of claim in such winding-up. For the purpose of this
Subsection (b), the final date for the filing of proofs of claim in the
winding-up of the Company shall be the date fixed by the liquidator or otherwise
in accordance with the relevant provisions of applicable law as being the
latest
practicable date as at which liabilities of the Company may be ascertained
for
such winding-up prior to payment by the liquidator or otherwise in respect
thereto.
30
(c) The
obligations contained in Subsections (a)(ii) and (b) of this Section 116
shall
constitute obligations of the Company separate and independent from its other
respective obligations under the Securities and this Indenture, shall give
rise
to separate and independent causes of action against the Company, shall apply
irrespective of any waiver or extension granted by any Holder or the Trustee
or
any of them from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim
in the
winding-up of the Company for a liquidated sum in respect of amounts due
hereunder (other than under Subsection (b) above) or under any such judgment
or
order. Any such deficiency as aforesaid shall be deemed to constitute
a loss suffered by the Holders or the Trustee, as the case may be, and no
proof
or evidence of any actual loss shall be required by the Company or the
liquidator or otherwise or any of them. In the case of Subsection (b)
above, the amount of such deficiency shall not be deemed to be reduced by
any
variation in rates of exchange occurring between the said final date and
the
date of any liquidating distribution.
(d) The
term “rate(s) of exchange” shall mean the rate of exchange quoted by The
Toronto-Dominion Bank at its central foreign exchange desk in its head office
in
Toronto at 12:00 noon (Toronto, Ontario time) for purchases of the Base Currency
with the judgment currency other than the Base Currency referred to in
Subsections (a) and (b) above and includes any premiums and costs of exchange
payable.
(e) The
Trustee shall have no duty or liability with respect to monitoring or enforcing
this Section 116.
Section
117. Currency Equivalent.
Except
as
provided in Section 116, for purposes of the construction of the terms of
this
Indenture or of the Securities, in the event that any amount is stated herein
in
the currency of one nation (the “First Currency”), as of any date such amount
shall also be deemed to represent the amount in the currency of any other
relevant nation (the “Other Currency”) which is required to purchase such amount
in the First Currency at the rate of exchange quoted by The Toronto-Dominion
Bank at its central foreign exchange desk
in
its head office in Toronto at 12:00 noon (Toronto, Ontario time) on the date
of
determination.
31
Section
118. No Recourse Against Others.
A
director, officer, employee or stockholder, as such, of the Company shall
not
have any liability for any obligations of the Company under the Securities
or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting any of the
Securities waives and releases all such liability.
Section
119. Reliance on Financial Data.
In
computing any amounts under this Indenture,
(i) to
the extent relevant in computing any amounts under this Indenture, the Company
shall use audited financial statements of the Company, its Subsidiaries,
any
Person that would become a Subsidiary in connection with the transaction
that
requires the computation and any Person from which the Company or a Subsidiary
has acquired an operating business, or is acquiring an operating business
in
connection with the transaction that requires the computation (each such
Person
whose financial statements are relevant in computing any particular amount,
a
“Relevant Person”) for the period or portions of the period to which the
computation relates for which audited financial statements are available
on the
date of computation and unaudited financial statements and other current
financial data based on the books and records of the Relevant Person or Relevant
Persons, as the case may be, to the extent audited financial statements for
the
period or any portion of the period to which the computation relates are
not
available on the date of computation, and
(ii) the
Company shall be permitted to rely in good faith on the financial statements
and
other financial data derived from the books and records of any Relevant Person
that are available on the date of the computation.
Section
120. Documents in English.
By
common
accord, this Indenture, the Securities and all documents related thereto
have
been or will be drawn up in the English language solely.
ARTICLE
TWO
SECURITY
FORMS
Section
201. Forms Generally.
The
Securities 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 Indenture 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 Securities,
as evidenced by their execution of the Securities (but which shall not affect
the rights or duties of the Trustee). Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security.
32
The
definitive Securities 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 any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities,
as
evidenced by their execution of such Securities.
Initial
Securities offered and sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global securities substantially in the
form
set forth in this Article (the “Restricted Global Securities”) deposited with
the Trustee, as custodian for the Depositary, duly executed by the Company
and
authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Restricted 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.
Initial
Securities offered and sold in reliance on Regulation S shall be issued in
the
form of one or more permanent global securities in registered form substantially
in the form set forth in this Article (the “Regulation S Global Securities” and
together with the Restricted Global Securities the “Global
Securities”). The Regulation S Global Securities will be registered
in the name of a nominee of the Depositary and deposited with the Trustee,
as
custodian of the Depositary, for credit to Xxxxxx Guaranty Trust Company
of New
York, Brussels Office, as operator of the Euroclear System (“Euroclear”) and
Clearstream Banking, société
anonyme
(“Clearstream, Luxembourg”) for the benefit of the Holders. The
aggregate principal amount of the Regulation S Global Security 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.
Section
202. Restrictive Legends.
Unless
and until (i) an Initial Security is sold under an effective Registration
Statement or (ii) an Initial Security is exchanged for an Exchange Security
in
connection with an effective Registration Statement, in each case as provided
for in the Registration Rights Agreement, each such Restricted Global Security
shall bear the following legend (the “Private Placement Legend”) on the face
thereof:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF XXXXXX CABLE INC. THAT THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO
THE
SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO)
OR
(Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF XXXXXX CABLE INC. AT ANY TIME
DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE
OTHER THAN
33
(1) TO
XXXXXX CABLE INC.,
(2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE
SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR
ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(3) IN
AN OFFSHORE TRANSACTION TO NON-U.S. PERSONS THAT OCCURS OUTSIDE THE
UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER
ON
THE REVERSE OF THIS SECURITY), PROVIDED THAT SUCH NON-U.S. PERSONS
AGREE NOT TO RESELL OR OTHERWISE TRANSFER THE SECURITIES IN CANADA OR TO
OR FOR
THE BENEFIT OF A CANADIAN RESIDENT, EXCEPT IN ACCORDANCE WITH APPLICABLE
CANADIAN SECURITIES LAWS,
(4) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
(INCLUDING, WITHOUT LIMITATION, TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR
OR THE EXEMPTION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES
ACT),
OR
(5) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT,
IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE
UNITED STATES OR ANY OTHER JURISDICTION AND SUBJECT TO THE RIGHT OF XXXXXX
CABLE
INC. AND THE TRUSTEE PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER
PURSUANT TO CLAUSE (4) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATES AND OTHER INFORMATION THEY MAY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS AND THE RIGHT OF XXXXXX CABLE
INC. AND THE TRUSTEE PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER
PURSUANT TO CLAUSES (1) THROUGH (5) TO REQUIRE ANY TRANSFER CERTIFICATIONS
REQUIRED PURSUANT TO THE INDENTURE GOVERNING THIS
SECURITY.
34
Each
Global Security, whether or not an Initial Security, shall also bear the
following legend on the face thereof:
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 306 AND 307 OF THE INDENTURE GOVERNING THIS
SECURITY.
35
Section
203. Form of Face of Security.
XXXXXX
CABLE INC.
8.750%
[Exchange]* Senior (Secured) Second Priority
Debentures
due
2032
CUSIP_______
U.S.$
________
No.
Xxxxxx
Cable Inc., a corporation organized under the laws of the Province of Ontario
(herein called the “Company”, which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to
pay
to ___________ or registered assigns, the principal sum of _________ United
States Dollars (or such other amount that may from time to time be indicated
on
the records of the Trustee as the result of increases or decreases by
adjustments made on the records of the Trustee, as the custodian for DTC,
in
accordance with the rules and procedures of DTC) on May 1, 2032, at the office
or agency of the Company referred to below, and to pay interest thereon on
November 1, 2002 and semiannually thereafter, on May 1 and November 1 in
each
year, from and including April 30, 2002 or from the most recent Interest
Payment
Date to which interest has been paid or duly provided for, at the rate of
8.750%
per annum [subject to adjustment as provided below]**,
until the
principal hereof is paid or duly provided for, and (to the extent lawful)
to pay
on demand interest on any overdue interest at the rate borne by the Securities
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 Security (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 April 15 or October 15 (whether or
not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and interest on such Defaulted Interest at the interest rate borne by the
Securities, 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 Security (or one or more Predecessor Securities) is registered
at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of
Securities 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 Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
* Include
only for Exchange Securities
**
Include only for Initial Securities
36
[The
Holder of this Security is entitled to the benefits of the Registration Rights
Agreement, dated as of April 30, 2002, between the Company and the Initial
Purchasers named therein (the “Registration Rights Agreement”). In
the event that (a) neither the Exchange Offer Registration Statement (as
such
term is defined in the Registration Rights Agreement) nor a Shelf Registration
Statement (as such term is defined in the Registration Rights Agreement)
is
filed with the Securities and Exchange Commission on or prior to the 120th
day
following the date of original issue of the Securities, (b) neither the Exchange
Offer Registration Statement nor a Shelf Registration Statement has been
declared effective on or prior to the 180th calendar day following the date
of
original issue of the Securities or (c) neither the Exchange Offer (as such
term
is defined in the Registration Rights Agreement) is consummated nor a Shelf
Registration Statement is declared effective on or prior to the 210th day
following the date of original issue of the Securities, the interest rate
borne
by this Security shall be increased by 0.25% per annum following such 120-day
period in the case of clause (a) above, following such 180-day period in
the
case of clause (b) above or following such 210-day period in the case of
clause
(c) above. The aggregate amount of such increase from the original
interest rate pursuant to these provisions shall in no event exceed 0.25%
per
annum. Upon (x) the filing of either the Exchange Offer Registration
Statement or a Shelf Registration Statement after the 120-day period described
in clause (a) above, (y) the effectiveness of either the Exchange Offer
Registration Statement or a Shelf Registration Statement after the 180-day
period described in clause (b) above or (z) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case
may
be, after the 210-day period described in clause (c) above, the interest
rate
borne by this Security from the date of such filing, effectiveness or
consummation, as the case may be, will be reduced to the interest rate set
forth
above. The Company shall promptly provide the Trustee with notice of
any change in the interest rate borne by this
Security.]*
Payment
of the principal of (and premium, if any) and interest on this Security will
be
made at the office or agency of the Company maintained for that purpose in
The
City of New York (which shall be the Corporate Trust Office of the Trustee,
unless the Company shall designate and maintain some other office or agency
for
such purpose), or at such other office or agency of the Company as may be
maintained for such purpose, in lawful money of the United States of America;
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
Securities, 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 U.S.$1,000,000 in principal amount of Securities,
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 Security to the Paying Agent.
* Include
only for Initial Securities
37
Interest
on this Security shall be computed on the basis of a year of twelve 30-day
months. For the purposes of the Interest Act (Canada), the yearly
rate of interest which is equivalent to the rate payable hereunder is the
rate
payable multiplied by the actual number of days in the year and divided by
360.
Reference
is hereby made to the further provisions of this Security 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 Security 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
CABLE INC.,
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By
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Name:
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By
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Name:
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Title:
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Section
204. Form of Reverse of Security.
This
Security is one of a duly authorized issue of securities of the Company
designated as its 8.750% [Exchange]* Senior (Secured) Second Priority
Debentures due 2032 (herein called the “Securities”), which may be issued under
an indenture (herein called the “Indenture”) dated as of April 30, 2002 between
the Company and JPMorgan Chase Bank, as trustee (herein called the “Trustee”,
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
* Include
only for Exchange Securities.
38
As
provided for in the Indenture, the Company may, subject to certain limitations,
from time to time, without notice to or the consent of the Holders, create
and
issue Additional Securities so that such Additional Securities shall be
consolidated and form a single series with the Securities initially issued
by
the Company and shall have the same terms as to status, redemption or otherwise
as Securities originally issued. Any Additional Securities shall be
issued with the benefit of any indenture supplemental to the
Indenture.
The
Company will pay to the Holders such Additional Amounts as may become payable
under Section 1021 of the Indenture.
As
provided in the Indenture, the Securities will initially be secured by the
pledge to the Trustee pursuant to the Pledge Agreement of the Trust Bond issued
by the Company under the Deed of Trust. Each Holder by accepting a
Security shall be bound by and be entitled to the benefits of the Deed of Trust
and the other Collateral Documents, as the same may be amended from time to
time
pursuant to the respective provisions thereof and of the
Indenture.
All
amounts received by the Deed Trustee for the benefit of holders of Deed of
Trust
Bonds in connection with any realization or enforcement proceedings with respect
to the Deed of Trust Collateral or in connection with the liquidation,
dissolution or winding up of any obligor under the Deed of Trust Bonds shall
first be applied to pay in full all Debt under any Tranche A Credit Facility
and
any other Debt that, in accordance with the terms of the Indenture and the
Collateral Documents, ranks prior to or pari passu with any such
Tranche A Credit Facility.
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 the Company with similar
release provisions, (A) no Debt of the Company would be outstanding and (B)
there would be no availability to the Company 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, then, without the consent of the Holders,
the Company may permanently terminate the Lien of the Pledge Agreement or any
Collateral Document and any other Lien on the Deed of Trust Collateral in
accordance with the provisions of the Indenture.
On
or before each payment date, the Company shall deliver or cause to be delivered
to the Trustee or the Paying Agent an amount in U.S. Dollars
sufficient to pay the amount due on such payment date.
The
Securities 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 U.S.$1,000 or an integral multiple of U.S.$1,000, at the option
of
the Company, at a Redemption Price equal to the greater of: (1) 100%
of the principal amount of the Securities, and (2) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities (not including any portion
of the payments of interest accrued as of the Redemption Date) discounted to
the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of
twelve 30-day months) at the Adjusted Treasury Rate plus 50 basis points, in
each case plus accrued interest thereon to the Redemption Date, all as provided
in the Indenture.
39
The
Securities will also be subject to redemption as a whole, but not in part,
at
the option of the Company at any time, on not less than 30 nor more than 60
days’ prior written notice, at 100% of the principal amount plus accrued
interest to the Redemption Date, in the event the Company has become or would
become obligated to pay, on the next date on which any amount would be payable
in respect of the Securities, any Additional Amounts as a result of certain
changes affecting Canadian withholding taxes.
In
the
case of any redemption of Securities, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders
of
record of such Securities, or one or more Predecessor Securities, at the close
of business on the relevant Record Date referred to on the face
hereof. Securities (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 Security in part only, a replacement Security or
Securities 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 by the making and consummation of a
Change in Control Offer) shall occur and be continuing, the principal amount
of
all the Securities 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
Securities. The Securities may be accelerated following such an Event
of Default as 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 Securities and purchases the Securities 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 Security 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 Security.
40
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 a majority in principal amount of
the
Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, 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 Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security 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
Security.
No
reference herein to the Indenture and no provision of this Security 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 Security 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 Security is registrable on the Security Register of the
Company, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained for such purpose in The City of
New
York 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 Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The
Securities are issuable only in registered form without coupons in denominations
of U.S.$1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering
the
same.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Securities, 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 Security 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 Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company,
the
Trustee nor any agent shall be affected by notice to the contrary.
41
All
terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section
205. Form of Trustee’s Certificate of
Authentication.
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
JPMorgan
Chase Bank, as Trustee, certifies that this is one of the Securities referred
to
in the within-mentioned Indenture.
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JPMORGAN
CHASE BANK
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By
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Authorized
Officer
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ARTICLE
THREE
THE
SECURITIES
Section
301. Title and Terms.
An
unlimited aggregate principal amount of Securities may be authenticated and
delivered under this Indenture (of which U.S.$200,000,000 is being issued,
authenticated and delivered the date hereof), including Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 303, 304, 305, 308, 516, 908, 1016,
1108 or 1111.
The
Initial Securities shall be known and designated as the “8.750% Senior (Secured)
Second Priority Debentures due 2032” and the Exchange Securities shall be known
and designated as the “8.750% Exchange Senior (Secured) Second Priority
Debentures due 2032”, in each case, of the Company. The Stated
Maturity of the Securities shall be May 1, 2032 and they shall bear interest
at
the rate of 8.750% per annum from and including April 30, 2002, or the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable on November 1, 2002 and semi-annually thereafter on May 1 and
November 1 in each year and at said Stated Maturity, until the principal thereof
is paid or duly provided for.
The
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose
in
The City of New York, or at such other office or agency of the Company as may
be
maintained for such purpose; provided, however, that, at the option of
the Company, interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Register;
provided further that all payments of the principal of (and premium, if
any) and interest on Securities, 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 U.S.$1,000,000 in principal
amount of Securities, 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 the Security to the Paying
Agent.
42
The
Securities shall be redeemable as provided in Article Eleven.
Additional
Securities ranking pari passu with the Securities issued on the date
hereof may be created and issued from time to time by the Company without notice
to or consent of the Holders and shall be consolidated with and form a single
series with the Securities initially issued and shall have the same terms as
to
status, redemption or otherwise as the Securities originally issued,
provided that the Company’s ability to issue Additional Securities
shall be subject to the Company’s compliance with Sections 1008 and
1009. Any Additional Securities shall be issued with the benefit of
an indenture supplemental to this Indenture.
Section
302. Denominations.
The
Securities shall be issuable only in registered form without coupons and only
in
denominations of U.S.$1,000 and any integral multiple thereof.
Section
303. Execution, Authentication, Delivery and
Dating.
The
Securities shall be executed on behalf of the Company by any two of the
following officers: its Chairman, any Vice-Chairman, its President,
any Vice-President or its Treasurer. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding
that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at
the date of such Securities.
The
Trustee shall (upon Company Order) authenticate and deliver Securities for
original issue in an aggregate principal amount of up to U.S.$200,000,000,
provided that, if the Company shall issue any Additional Securities
pursuant to Section 301, the Trustee shall authenticate and deliver such
Additional Securities upon delivery to the Trustee of a Company Order
accompanied by an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for herein relating to the original
issue
of such Additional Securities have been complied with.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed
by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such
Security has been duly authenticated and delivered hereunder.
43
In
case
the Company, pursuant to Article Eight, shall be amalgamated, consolidated
or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of substantially all of its properties and assets to any
Person, and the successor Person resulting from such amalgamation,
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any
of
the Securities authenticated or delivered prior to such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate (but which shall not affect the
rights or duties of the Trustee), but otherwise in substance of like tenor
as
the Securities surrendered for such exchange and of like principal amount;
and
the Trustee, upon Company Order of the successor Person, shall authenticate
and
deliver replacement Securities as specified in such request for the purpose
of
such exchange. If replacement Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant
to
this Section in exchange or substitution for or upon registration of transfer
of
any Securities, such successor Person, at the option of any Holder but without
expense to such Holder, shall provide for the exchange of all Securities at
the
time Outstanding held by such Holder for Securities authenticated and delivered
in such new name.
Section
304. Temporary Securities.
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine (but which shall not affect the rights
or duties of the Trustee), as conclusively evidenced by their execution of
such
Securities.
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and, upon Company
Order, the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations evidencing
the same indebtedness as the temporary Securities so exchanged. Until
so exchanged, the temporary Securities shall in all respects be entitled to
the
same benefits under this Indenture as definitive Securities.
44
Section
305. Registration, Registration of Transfer and
Exchange.
The
Company shall cause to be kept at one of its offices or agencies maintained
pursuant to Section 1002 a register (the register maintained in such office
and
in any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Said
office or agency is xxxxxx initially appointed “Security Registrar” for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon
surrender for registration of transfer of any Security at the office or agency
of the Company designated pursuant to Section 1002, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more replacement Securities of any authorized
denomination or denominations of a like aggregate principal amount.
Furthermore,
any Holder of a Global Security shall, by acceptance of such Global Security,
agree that transfers of beneficial interests in such Global Security may be
effected only through a book-entry system maintained by the Holder of such
Global Security (or its agent), and that ownership of a beneficial interest
in
the Security shall be required to be reflected in a book entry.
At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations of a like aggregate principal amount
upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange
(including an exchange of Initial Securities for Exchange Securities), the
Company shall execute, and the Trustee shall authenticate and deliver, the
replacement Securities which the Holder making the exchange is entitled to
receive; provided that no exchange of Initial Securities for Exchange
Securities shall occur until an Exchange Offer Registration Statement shall
have
been declared effective by the Commission and the Initial Securities to be
exchanged for the Exchange Securities shall be cancelled by the
Trustee.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer, or for exchange
or redemption, shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in
form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or its attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Securities, 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 that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 303, 304, 516, 908, 1016, 1108 or 1111 not involving any
transfer or pursuant to an Exchange Offer.
45
The
Company shall not be required (a) to issue replacement Securities or register
the transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
the
Securities under Section 1105 and ending at the close of business on the day
of
such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of
Securities being redeemed in part.
Section
306. Book-Entry Provisions for Global
Securities.
(a)
The
Global Securities initially shall (i) be registered in the name of the
Depositary for such Global Securities or the nominee of such Depositary, (ii)
be
deposited with the Trustee, as custodian for such Depositary and (iii) bear
legends as set forth in Section 202.
The
Depositary or its nominee shall be the Holder of the Global Securities, and
owners of beneficial interests in the Securities represented by the Global
Securities shall hold such interests pursuant to the procedures and practices
of
the Depositary. Any such owner’s beneficial ownership of any such
Securities will be shown only on, and the transfer of such ownership interest
shall be effected only through, records maintained by the Depositary or its
nominee. Investors in the Regulation S Global Security may hold their
interests in the Regulation S Global Security through Euroclear or Clearstream,
Luxembourg, if they are participants in such systems, or indirectly through
organizations which are participants in such systems. After the
expiration of the Restricted Period (but not earlier), investors in the
Regulation S Global Security may also hold such interests through organizations
other than Euroclear or Clearstream, Luxembourg that are participants in the
Depositary’s system. Euroclear and Clearstream, Luxembourg will hold
interests in the Regulation S Global Security on behalf of their participants
through customers’ securities accounts in their respective names on the books of
their respective depositories, which, in turn, will hold such interests in
the
Regulation S Global Security in customer’s securities accounts in the
depositories’ names on the books of the Depositary. All interests in
a Global Security, including those held through Euroclear or Clearstream,
Luxembourg, may be subject to the procedures and requirements of the
Depositary. Those interests held through Euroclear and Clearstream,
Luxembourg will be subject to the procedures and requirements of such
systems. As used herein, the term “Restricted Period” means the
period of 40 consecutive days beginning on and including the first day after
the
later of (i) the day that Xxxxxxx Xxxxx Xxxxxx Inc. advises the
Company and the Trustee in writing of the day on which the Securities are first
offered to persons other than distributors (as defined in Regulation S) and
(ii)
the original issue date of the Securities.
46
(b) Transfers
of any Global Security shall be limited to transfers of such Global Security
in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in any Global Security may
be transferred in accordance with the rules and procedures of the Depositary
and
the provisions of Section 307. Unless (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Securities or ceases to be a clearing agency registered under the Exchange
Act
or announces an intention permanently to cease business or does in fact do
so
and a successor depositary is not appointed by the Company within 90 days of
such notice, (ii) the Company, at its option, notifies the Trustee that it
elects to cause the exchange of the Global Securities for Securities in
certificated form, (iii) an Event of Default has occurred and is continuing
with
respect to a Global Security or (iv) in the case of a Global Security held
for
the account of Euroclear or Clearstream, Luxembourg, Euroclear or Clearstream,
Luxembourg, as the case may be, is closed for business for 14 continuous
Business Days or announces an intention to cease or permanently ceases business,
owners of beneficial interests in a Regulation S Global Security will not be
entitled to have any portions of such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of Securities
in
definitive form and will not be considered the owners or Holders of the Global
Security.
(c) Securities
issued in exchange for a Global Security or any portion thereof pursuant to
the
last sentence of Subsection (b) of this Section shall be issued in definitive,
fully registered form, without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security or portion thereof to
be
so exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear any legends
required hereunder. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Security
Registrar. With regard to any Global Security to be exchanged in
part, either such Global Security shall be so surrendered for exchange or,
if
the Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee, upon Company Order, shall
authenticate and deliver the Security issuable on such exchange to or upon
the
order of the Depositary or an authorized representative thereof. In
the event of the occurrence of any of the events specified in the last sentence
of Subsection (b) of this Section 306, the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities in definitive
form.
(d) Except
as otherwise set forth in this Indenture or a Global Security, owners of
beneficial interests in the Securities evidenced by a Global Security will
not
be entitled to any rights under this Indenture with respect to such Global
Security, and the Depositary or its nominee may be treated by the Company,
the
Trustee and any agent of the Company or the Trustee as the owner and Holder
of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any such
agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between
the Depositary or its nominee and such owners of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary or its nominee as Holder of any Security.
47
Section
307. Special Transfer Provisions.
Unless
and until (i) an Initial Security is sold under an effective Registration
Statement, or (ii) an Initial Security is exchanged for an Exchange Security
in
connection with an effective Registration Statement, pursuant to the
Registration Rights Agreement, the following provisions shall
apply:
(a) Restricted
Global Security to Regulation S Global Security. If, at any time,
an owner of a beneficial interest in a Restricted Global Security deposited
with
the Trustee, as custodian for the Depositary, wishes to transfer its interest
in
such Restricted Global Security to a Person who is required or permitted to
take
delivery thereof in the form of an interest in a Regulation S Global Security,
such owner shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a Regulation
S Global Security as provided in this Section 307(a). Upon receipt by
the Trustee of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or cause to
be
credited a beneficial interest in the Regulation S Global Security in an amount
equal to the beneficial interest in the applicable Restricted Global Security
to
be exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary and the Euroclear or Clearstream, Luxembourg account (if applicable)
to be credited with such increase, and (3) a certificate substantially in the
form of Exhibit D hereto given by the owner of such beneficial interest, the
Trustee, as Security Registrar, shall instruct the Depositary to reduce or
cause
to be reduced the aggregate principal amount of the applicable Restricted Global
Security and to increase or cause to be increased the aggregate principal amount
of the applicable Regulation S Global Security by the principal amount of the
beneficial interest in the Restricted Global Security to be exchanged, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security equal
to
the reduction in the aggregate principal amount of the applicable Restricted
Global Security, and to debit, or cause to be debited, from the account of
the
Person making such exchange or transfer the beneficial interest in the
Restricted Global Security that is being exchanged or transferred.
48
(b) Regulation
S Global Security to Restricted Global Security. If, at any time,
an owner of a beneficial interest in a Regulation S Global Security deposited
with the Trustee as custodian for the Depositary wishes to transfer its interest
in such Regulation S Global Security to a Person who is required or permitted
to
take delivery thereof in the form of an interest in a Restricted Global
Security, such owner shall, subject to the Applicable Procedures, exchange
or
cause the exchange of such interest for an equivalent beneficial interest in
a
Restricted Global Security, as provided in this Section 307(b). Upon
receipt by the Trustee of (1) written instructions given in accordance with
the
Applicable Procedures from an Agent Member, directing the Trustee, as Security
Registrar, to credit or cause to be credited a beneficial interest in the
Restricted Global Security equal to the beneficial interest in the Regulation
S
Global Security to be exchanged, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the participant
account of the Depositary to be credited with such increase and (3) if such
transfer is requested prior to the expiration of the Restricted Period, a
certificate in the form of Exhibit E attached hereto given by the owner of
such beneficial interest, the Trustee, as Security Registrar, shall instruct
the
Depositary to reduce or cause to be reduced the aggregate principal amount
of
such Regulation S Global Security and to increase or cause to be increased
the
aggregate principal amount of the applicable Restricted Global Security by
the
principal amount of the beneficial interest in the Regulation S Global Security
to be exchanged, and the Trustee, as Security Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the applicable Restricted Global Security equal to the reduction
in
the aggregate principal amount of such Regulation S Global Security and to
debit
or cause to be debited from the account of the Person making such transfer
the
beneficial interest in the Regulation S Global Security that is being
transferred. After the expiration of the Restricted Period, the
certificate described in clause (3) above shall no longer be required to effect
transfers pursuant to this Section 307(b).
(c) Restricted
Global Security to Regulation S Global Security After Two
Years. If the holder of a beneficial interest in a Restricted
Global Security wishes at any time after April 30, 2004 to (A) transfer such
interest to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Regulation S Global Security or (B) to exchange
such
interest for a beneficial interest in a Regulation S Global Security, such
transfer or exchange may be effected, subject to the Applicable Procedures,
only
in accordance with this Section 307(c). Upon receipt by the Trustee
of (1) in the case of a transfer or exchange of an interest in the Restricted
Global Security, written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or cause to
be
credited a beneficial interest in the Regulation S Global Security in an amount
equal to the beneficial interest in the Restricted Global Security to be so
transferred or exchanged, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the participant account
of the Depositary (and, if applicable, the Euroclear or Clearstream, Luxembourg
account, as the case may be) to be credited with such beneficial interest and
(3) a certificate substantially in the form of Exhibit F hereto given by the
holder of such beneficial interest, the Trustee, as Security Registrar, shall
instruct the Depositary to reduce the principal amount of the Restricted Global
Security, and to increase the principal amount of the Regulation S Global
Security, by the principal amount of the beneficial interest in the Restricted
Global Security to be so transferred or exchanged, and to credit or cause to
be
credited to the account of the Person specified in such instructions a
beneficial interest in the Regulation S Global Security having a principal
amount equal to the amount by which the principal amount of the Restricted
Global Security was reduced upon such transfer or exchange.
49
(d) Private
Placement Legend. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the
Private Placement Legend and agrees that it will transfer such Security only
as
provided in this Indenture.
The
Security Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 306 or this Section
307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time
upon the giving of reasonable written notice to the Security
Registrar.
Section
308. Mutilated, Destroyed, Lost and Stolen
Securities.
If
(a)
any mutilated Security is surrendered to the Trustee, or (b) the Company and
the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft
of any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a replacement Security of like tenor and principal amount, bearing
a
number not contemporaneously outstanding.
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, the Company in its discretion may, instead of issuing
a
replacement Security, pay such Security.
Upon
the
issuance of any replacement Securities under this Section, the Company may
require the payment of a sum sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental charges that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
the
Trustee) connected therewith.
Every
replacement Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute a contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at
any
time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
50
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
Section
309. Payment of Interest; Interest Rights
Preserved.
Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of
business on the Regular Record Date for such interest.
Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date and interest on such defaulted
interest at the interest rate borne by the Securities, to the extent lawful
(such defaulted interest and interest thereon herein collectively called
“Defaulted Interest”), shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Subsection (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment
of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security and the date of
the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in
respect of such Defaulted Interest or shall make arrangements satisfactory
to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Subsection provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to
the date of the proposed payment and not less than 10 days after the receipt
by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date. In the name
and at the expense of the Company, the Trustee shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder at its address as
it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following Subsection
(b).
(b) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Subsection, such payment shall be deemed
practicable by the Trustee.
51
Subject
to the foregoing provisions of this Section, each Security delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu of
any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section
310. Persons Deemed Owners.
Prior
to
the time of due presentment for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 309) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to
the
contrary.
Section
311. Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by the
Trustee. The Company shall deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled
as
provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be
destroyed and certification of their destruction delivered to the Company unless
by a Company Order the Company shall direct that cancelled Securities be
returned to it.
Section
312. Computation of Interest.
Interest
on the Securities shall be computed on the basis of a year of twelve 30-day
months.
ARTICLE
FOUR
DEFEASANCE
AND COVENANT DEFEASANCE
Section
401. Company’s Option to Effect Defeasance or Covenant
Defeasance.
The
Company may, at its option by Board Resolution, at any time, with respect to
the
Securities, elect to have either Section 402 or Section 403 be applied to all
Outstanding Securities upon compliance with the conditions set forth below
in
this Article Four.
52
Section
402. Defeasance and Discharge.
Upon
the
Company’s exercise under Section 401 of the option applicable to this Section
402, the Company shall be deemed to have been discharged from its obligations
with respect to all Outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, “defeasance”). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities,
which shall thereafter be deemed to be “Outstanding” only for the purposes of
Section 405 and the other Sections of this Indenture referred to in (A), (B),
and (C) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and
the
Trustee, upon Company Request and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall
survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of Outstanding Securities to receive solely from the trust
fund described in Section 404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest
on
such Securities when such payments are due, (B) the Company’s obligations with
respect to such Securities under Sections 304, 305, 308, 1002, 1003, 1021 (for
purposes of applying Section 1021, if the Trustee (or any other qualifying
trustee referred to in Section 404(1)) is required by law or by the
interpretation or administration thereof to withhold or deduct any amount for
or
on account of Taxes (as defined in Section 1021) from any payment made from
the
trust fund described in Section 404 under or with respect to the Securities,
such payment shall be deemed to have been made by the Company and the Company
shall be deemed to have been so required to withhold or deduct) and 1022, (C)
the Company’s right of redemption pursuant to Section 1101(b), provided that
either (i) the change or amendment referred to therein occurs after defeasance
is exercised by the Company in accordance with Section 404 or (ii) the Company
was, immediately before the defeasance, entitled to redeem the Securities
pursuant to Section 1101(b), in which case the Company may redeem the Securities
in accordance with Article Eleven by complying with such Article and depositing
with the Trustee, in accordance with Section 1106, an amount of money
sufficient, together with all amounts held in trust pursuant to Section 404(1),
to pay the Redemption Price of all the Securities to be redeemed, (D) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the
Company’s obligations in connection therewith, including the Company’s
obligations under Section 607 and (E) this Article Four. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 402 notwithstanding the prior exercise of its option under Section
403 with respect to the Securities.
53
Section
403. Covenant Defeasance.
Upon
the
Company’s exercise under Section 401 of the option applicable to this Section
403, the Company shall be released from its obligations under any covenant
contained in Articles Eight and Twelve and in Sections 1004 through 1020 with
respect to the Outstanding Securities on and after the date the conditions
set
forth below are satisfied (hereinafter, “covenant defeasance”), and the
Securities shall thereafter be deemed to be not “Outstanding” for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “Outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed Outstanding for financial
accounting purposes). For this purpose, such covenant defeasance
means that, with respect to the Outstanding Securities, the Company may omit
to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly,
by
reason of any reference elsewhere herein to any such covenant or by reason
of
any reference in any such covenant to any other provision herein or in any
other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(c), but, except as specified above, the remainder
of this Indenture (including Section 607 hereof) and such Securities shall
be
unaffected thereby. In addition, upon the Company’s exercise under
Section 401 of the option applicable to Section 403, Section 501(c) through
(e)
and Section 501(i) through (1) shall not constitute Events of
Default.
Section
404. Conditions to Defeasance or Covenant
Defeasance.
The
following shall be the conditions to application of either Section 402 or
Section 403 to the Outstanding Securities:
(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609 who
shall
agree to comply with the provisions of this Article Four applicable to it)
as
trust funds, in trust, for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of
the Holders of such Securities, (A) cash in U.S. Dollars in an
amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any
payment, cash in U.S. Dollars in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied by
the
Trustee (or other qualifying trustee) to pay and discharge, the principal of
(and premium, if any) and interest on the Outstanding Securities on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and premium,
if
any) or installment of interest; provided that the Trustee (or other
qualifying trustee) shall have been irrevocably instructed by the Company to
apply such money or the proceeds of such U.S. Government Obligations
to said payments with respect to the Securities. Before such a
deposit, the Company may give the Trustee, in accordance with Section 1103
hereof, a notice of its election to redeem all of the Outstanding Securities
at
a future date in accordance with Article Eleven hereof, which notice shall
be
irrevocable. For this purpose, “U.S. Government
Obligations” means securities that are (x) direct obligations of the United
States of America for the timely payment of which its full faith and credit
is
pledged or (y) obligations of a Person controlled or supervised by and acting
as
an agency or instrumentality of the United States of America the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation
by
the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized
to make
any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such
depository receipt.
54
(2) No
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit or, insofar as Subsection 501(f), (g) or (h) is concerned, at
any
time during the period ending on the 91st day after the date of such deposit
(it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Neither
the Company nor any Restricted Subsidiary is an “insolvent person” within the
meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such
deposit or at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(4) Such
defeasance or covenant defeasance shall not result in a breach or violation
of,
or constitute a default under, this Indenture or any other material agreement
or
instrument to which the Company is a party or by which it is bound.
(5) In
the case of an election under Section 402, the Company shall have delivered
to
the Trustee an Opinion of Counsel in the United States stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since April 30, 2002, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance and will be subject
to United States federal income tax on the same amounts, in the same manner
and
at the same times as would have been the case if such defeasance had not
occurred.
55
(6) In
the case of an election under Section 403, the Company shall have delivered
to
the Trustee an Opinion of Counsel in the United States to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or loss
for United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if
such covenant defeasance had not occurred.
(7) The
Company shall have delivered to the Trustee an Opinion of Counsel in Canada
to
the effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for Canadian federal or provincial income tax or other
tax
purposes as a result of such defeasance or covenant defeasance, as applicable,
and will be subject to Canadian federal and provincial income tax and other
tax
on the same amounts, in the same manner and at the same times as would have
been
the case if such defeasance or covenant defeasance, as applicable, had not
occurred. This condition may not be waived by any Holder or the
Trustee.
(8) The
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit made by the Company pursuant to its election under Section
402
or Section 403 was not made by the Company with the intent of preferring the
Holders over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or
others.
(9) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel in the United States, each stating that all conditions
precedent relating to either the defeasance under Section 402 or the covenant
defeasance under Section 403 (as the case may be) have been complied
with.
Section
405. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 405, the “Trustee”) pursuant to Section 404 in respect
of the Outstanding Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to
the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders
of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
56
The
Company shall pay and indemnify the Trustee on an after-tax basis against any
tax, fee or other charge imposed on or assessed against the cash or
U.S. Government Obligations deposited pursuant to Section 404 or the
principal and interest received in respect thereof other than any such tax,
fee
or other charge which by law is for the account of the Holders of the
Outstanding Securities.
Anything
in this Article Four to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or
U.S. Government Obligations held by it as provided in Section 404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 404(1)), are in excess
of the amount thereof which would then be required to be deposited to effect
an
equivalent defeasance or covenant defeasance.
Section
406. Reinstatement.
If
the
Trustee or any Paying Agent is unable to apply any money in accordance with
Section 405, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Company’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section
402
or 403, as the case may be, until such time as the Trustee or Paying Agent
is
permitted to apply all such money in accordance with Section 405; provided,
however, that, if the Company makes any payment of principal of (or
premium, if any) or interest on any Security following the reinstatement of
its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee
or
Paying Agent.
ARTICLE
FIVE
REMEDIES
Section
501. Events of Default.
“Event
of
Default”, wherever used herein, means any one of the following events (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):
(a) default
in the payment of the principal of (or premium, if any, on) any Security at
its
Maturity; or
(b) default
in the payment of any interest or any Additional Amounts on any Security when
it
becomes due and payable, and continuance of such default for a period of 30
days; or
57
(c) default
in the performance, or breach, of any covenant or warranty of the Company or
of
any Restricted Subsidiary in this Indenture or any Collateral Document (other
than a default in the performance, or breach, of a covenant or warranty which
is
specifically dealt with elsewhere in this Section), and continuance of such
default or breach for a period of 60 days after there has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at
least 25% in aggregate principal amount of the Outstanding Securities a written
notice specifying such default or breach and stating that such notice is a
“Notice of Default” hereunder; or
(d) (i)
there shall have occurred one or more defaults of the Company or any Restricted
Subsidiary in the payment of the principal of or premium on any Debt aggregating
Cdn$25,000,000 or more, when the same becomes due and payable at the stated
maturity thereof, and such default or defaults shall continue after any
applicable grace period and have not been cured or waived or (ii) there shall
occur and be continuing any acceleration of the maturity of any Debt aggregating
Cdn$25,000,000 or more and, in any case referred to in the foregoing clause
(i),
the Debt has not been paid or in any case referred to in the foregoing clause
(ii), such acceleration has not been rescinded or annulled, in each case within
10 days of such non-payment or acceleration; or
(e) any
judgments or orders aggregating Cdn$25,000,000 or more rendered against the
Company or any Restricted Subsidiary remain unsatisfied and unstayed for 60
consecutive days; or
(f) the
Company or any Restricted Subsidiary pursuant to or under or within the meaning
of any Bankruptcy Law:
(1) commences
a voluntary case or proceeding;
(2) consents
to the entry of a Bankruptcy Order in an involuntary case or proceeding or
the
commencement of any case against it;
(3) consents
to the appointment of a Custodian of it or for any substantial part of its
property;
(4) makes
a general assignment for the benefit of its creditors or files a proposal or
other scheme of arrangement involving the rescheduling or composition of its
indebtedness;
(5) files
a petition in bankruptcy or an answer or consent seeking reorganization or
relief; or
(6) consents
to the filing of such petition in bankruptcy or the appointment of or taking
possession by a Custodian; or
58
(g) a
court of competent jurisdiction in any involuntary case or proceeding enters
a
Bankruptcy Order against the Company or any Restricted Subsidiary, and such
Bankruptcy Order remains unstayed and in effect for 15 consecutive days;
or
(h) a
Custodian shall be appointed out of court with respect to the Company or any
Restricted Subsidiary, or with respect to all or any substantial part of the
property of the Company or any Restricted Subsidiary, or any encumbrances shall
take possession of all or any substantial part of the property of the Company
or
any Restricted Subsidiary; or
(i) prior
to the Release Date, any Collateral Document shall, at any time, cease to be
in
full force and effect for any reason (other than the termination thereof
pursuant to this Indenture or upon the satisfaction in full of all Indenture
Obligations and discharge of this Indenture) or shall be declared invalid or
unenforceable; or if the Company or any Restricted Subsidiary shall assert,
in
any pleading filed in a court of competent jurisdiction, that any Collateral
Document is invalid or unenforceable; or
(j) prior
to the Release Date, there shall have occurred one or more defaults of the
Company in payment on demand of any principal or interest owing under or secured
by any Deed of Trust Bonds; or
(k) a
Change in Control Triggering Event shall occur; or
(1) prior
to the Release Date, the whole or substantially the whole of the Specifically
Mortgaged Property or of the Mortgaged Property (as such terms are defined
in
the Deed of Trust) shall be taken by exercise of any power referred to in
Section 4.04 of the Deed of Trust or shall be sold or otherwise disposed of
in
anticipation thereof within the meaning of Subsection 4.10(2) of the Deed of
Trust.
“Bankruptcy
Law” means the Bankruptcy and Insolvency Act (Canada) or any other Canadian
federal or provincial law or the law of any other jurisdiction relating to
bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors. “Custodian” means any receiver, interim receiver, receiver
and manager, trustee, assignee, liquidator, sequestrator or similar official
under any Bankruptcy Law or any other person with like
powers. “Bankruptcy Order” means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation, winding
up, dissolution or reorganization, or appointing a Custodian of a debtor or
of
all or any substantial part of a debtor’s property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
Under
this 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
Securities.
59
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 Exchange Act), other than Members of the Rogers Family or RCI
or a
Person or group controlled by one or more of the Members of the Rogers Family
or
RCI, 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, other than
(A)
Members of the Rogers Family or RCI or a Person or group controlled by one
or
more Members of the Rogers Family or RCI 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
(ii) of the definition of “Member of the Rogers Family” or the spouse, widow or
widower, for the time being and from time to time, of any person described
in
subclause (ii)(c), (d) or (e) 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 the 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. Notwithstanding anything contained in
this Indenture to the contrary, a “Change in Control” will not occur so long as
either Members of the Rogers Family or RCI control the Voting Shares of, or
elect directors to the Board of Directors of, the Company as and to the extent
provided in the previous sentence.
“Member
of the Rogers Family” means (i) Xxxxxx X. Xxxxxx (who was born on May 27,
1933, such individual being hereinafter referred to as “Xxxxxx X. Xxxxxx”);
(ii) such of the following persons as are living at the date of this Indenture
or are born after the date of this Indenture and before the Perpetuity
Date: (a) the spouse, for the time being and from time to time, of
Xxxxxx X. Xxxxxx; (b) after the death of Xxxxxx X. Xxxxxx, the widow,
if any, of Xxxxxx X. Xxxxxx; (c) the issue of Xxxxxx X. Xxxxxx; (d)
any half-sister of Xxxxxx X. Xxxxxx and the issue of any such half-sister;
(e) individuals adopted by Xxxxxx X. Xxxxxx or any of the issue of Xxxxxx
X. Xxxxxx, provided that such 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; (iii) a Qualifying Trust, but only to the extent of its Family
Percentage Holding of voting securities or rights to control or direct the
voting securities of the Company at the time of the determination.
“Qualifying
Trust” means a trust (whether testamentary or inter vivos) any beneficiary of
which is a person referred to in clause (i) or (ii) of the definition of “Member
of the Xxxxxx Family” or the spouse, widow or widower, for the time being and
from time to time, of any person described in subclause (ii)(c), (d) or (e)
of
the definition of “Member of the Xxxxxx Family” (provided that such
spouse, widow or widower 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”).
60
“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) or (ii) of the definition
of “Member of the Xxxxxx 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 clause (i) or subclause
(ii)(a), (b), (c), (d) or (e) of the definition of “Member of the Xxxxxx
Family”, who are living at the date of this Indenture.
Section
502. Acceleration of Maturity; Rescission and
Annulment.
If
(i) an
Event of Default (other than an Event of Default specified in Section 501(f),
501(g), 501(h) or 501(k)) occurs and is continuing, or (ii) an Event of Default
specified in Section 501(k) 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 516, then and in every such case the Trustee or the Holders of not
less
than 25% in principal amount of the Outstanding Securities may declare the
principal of all the Securities 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. If an Event of Default specified in Section 501(f), 501(g)
or 501(h) occurs and is continuing, then the principal of all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any
Holder. The Company will deliver to the Trustee, within 10 days after
the occurrence thereof, notice of any acceleration or default in payment at
maturity of Debt referred to in Section 501(d).
61
At
any
time after a declaration of acceleration has been made and before a judgment
or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities, by written notice to the Company and
the
Trustee, may rescind and annul such declaration and its consequences
if:
(a) the
Company has paid or deposited, or caused to be paid or deposited, with the
Trustee a sum sufficient to pay
(1) all
overdue interest on all Securities,
(2) the
principal of (and premium, if any, on) any Securities that have become due
otherwise than by such declaration of acceleration and interest thereon at
the
rate borne by the Securities,
(3) to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities, and
(4) all
sums paid or advanced by the Trustee hereunder, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and
any other amounts due to the Trustee pursuant to Section 607; and
(b)
all
Events of Default, other than the non-payment of principal of Securities which
have become due solely by such declaration of acceleration, have been cured
or
waived as provided in Section 513.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Notwithstanding
the preceding paragraph, in the event of a declaration of acceleration in
respect of the Securities because an Event of Default specified in Section
501(d) shall have occurred and be continuing, such declaration of acceleration
shall be automatically annulled if the Debt that is the subject of such Event
of
Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Debt, and written notice of
such
discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such Debt or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Securities, and no other Event
of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
62
Section
503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The
Company covenants that if:
(a) default
is made in the payment of any interest or Additional Amounts on any Security
when such interest or Additional Amounts becomes due and payable and such
default continues for a period of 30 days, or
(b) default
is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest
upon
the overdue principal (and premium, if any) and, to the extent that payment
of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Trustee, its agents and counsel.
If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
If
an
Event of Default occurs and is continuing, the Trustee may in its discretion
(i)
proceed to protect and enforce its rights and the rights of the Holders under
this Indenture and the Pledge Agreement by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
such
rights, including, without limitation, demanding payment of the Trust Bond
and
exercising any rights or powers conferred on the Trustee, as the holder of
the
Trust Bond, under the Pledge Agreement and the Deed of Trust or (ii) make
requests of, give directions to, or make demands of, the Deed Trustee (whether
by participation in the giving or adoption of a Bondholders’ Resolution or
otherwise pursuant to the Collateral Documents) to proceed to protect and
enforce the rights of the Deed Trustee, the Trustee and the Deed of Trust
Bondholders under the Collateral Documents by such appropriate private or
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or
agreement in the Collateral Documents or in aid of the exercise of any power
granted therein, or to enforce any other proper remedy, including appointment
of
a receiver for the Deed of Trust Collateral and foreclosure, realization and
sale of Deed of Trust Collateral pursuant to the terms of the Collateral
Documents. The Trustee shall be entitled to sue and recover judgment
as aforesaid or make request as aforesaid to the Deed Trustee to sue to enforce
any Lien of the Collateral Documents, in either case, either before, after
or
during the pendency of any other proceeding for the enforcement of any Lien
of
the Collateral Documents, and the right of the Trustee or the Deed Trustee
to
recover such judgment shall not be affected by any sale under any of the
Collateral Documents or by the exercise of any right, power or remedy for the
enforcement of the provisions of any of the Collateral Documents, or the
foreclosure or enforcement of any Lien of the Collateral
Documents. No recovery of any such judgment upon any property of the
Company shall affect or impair the Lien on the Deed of Trust Collateral or
any
rights, powers or remedies of the Trustee or the Holders.
63
Section
504. Trustee May File Proofs of Claim.
In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then
be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due to the Trustee pursuant to Section 607) and of the Holders
allowed in such judicial proceeding, and
(b) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for
the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
607.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any proposal, plan of
reorganization, arrangement, adjustment or composition or other similar
arrangement affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
64
Section
505. Trustee May Enforce Claims Without Possession of
Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee shall be brought in its own name
and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due to the Trustee pursuant to Section 607, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
Section
506. Application of Money Collected.
Subject
to the Inter-Creditor Agreement, any money collected by the Trustee pursuant
to
this Article shall be applied in the following order, at the date or dates
fixed
by the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To
the payment of all amounts due the Trustee under Section 607;
SECOND: To
the payment of the amounts then due and unpaid upon the Securities for principal
(and premium, if any) and interest, in respect of which or for the benefit
of
which such money has been collected, ratably, without preference or priority
of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest; and
THIRD: The
balance, if any, to the Company.
Section
507. Limitation on Suits.
No
Holder
of any Securities shall have any right to institute any proceeding, judicial
or
otherwise, with respect to this Indenture, any Collateral Document or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(b) the
Holders of not less than 25% in principal amount of the Outstanding Securities
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
65
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount
of
the Outstanding Securities;
it
being
understood and intended that no one or more Holders shall have any right in
any
manner whatever by virtue of, or by availing of, any provision of this Indenture
or any Collateral Document to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any
other Holders or to enforce any right under this Indenture or the Pledge
Agreement except in the manner provided in this Indenture or the Pledge
Agreement and for the equal and ratable benefit of all the Holders.
Section
508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding
any other provision in this Indenture and any Collateral Document, the Holder
of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 309) interest and any Additional Amounts on such Security on the
respective due dates expressed in such Security (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section
509. Restoration of Rights and Remedies.
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section
510. Rights and Remedies Cumulative.
Except
as
provided in Section 308, no right or remedy herein conferred upon or reserved
to
the Trustee or to the Holders is intended to be exclusive of any other right
or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
66
Section
511. Delay or Omission Not Waiver.
No
delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
512. Control by Holders.
The
Holders of a majority in principal amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, including, without limitation, powers conferred on
it
by the Pledge Agreement or the Deed of Trust, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture
or expose the Trustee to personal liability, and
(b) subject
to the provisions of the Trust Indenture Act, the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
Section
513. Waiver of Past Defaults.
The
Holders of a majority in principal amount of the Outstanding Securities may
on
behalf of the Holders of all the Securities waive any past default hereunder
and
its consequences, except a default
(a) in
the payment of the principal of (or premium, if any) or interest on any
Security, or
(b) arising
from a Change in Control Triggering Event, or
(c) in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon
any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or
impair any right consequent thereon.
67
Section
514. Undertaking for Costs.
All
parties to this Indenture agree, and each Holder of any Security by its
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in
its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment
of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case
of
redemption, on or after the Redemption Date).
Section
515. Waiver of Stay, Extension or Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
Section
516. Change in Control Offer.
(a) The
Securities may not be accelerated pursuant to Section 502 following an Event
of
Default under Section 501(k) and such Event of Default shall be cured if the
Company complies with the provisions of this Section 516. If the
Company elects to cure such Event of Default, within 20 Business Days of the
occurrence of an Event of Default under Section 501(k), (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”) the Securities 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 Canada NewsWire Ltd. service or 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:
68
(1) the
events causing a Change in Control Triggering Event and the date such Change
in
Control Triggering Event is deemed to have occurred;
(2) that
the Change in Control Offer is being made pursuant to this Section 516(a) and
that all Securities properly tendered pursuant to the Change in Control Offer
will be accepted for payment;
(3) the
date by which the Change in Control Purchase Notice pursuant to this Section
516
must be given;
(4) the
Change in Control Purchase Date;
(5) the
Change in Control Purchase Price;
(6) the
names and addresses of the Paying Agent and the offices or agencies referred
to
in Section 1002;
(7) that
Securities must be surrendered to the Paying Agent at the office of the Paying
Agent or to an office or agency referred to in Section 1002 to collect
payment;
(8) that
the Change in Control Purchase Price for any Security 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 Security as described
in
clause (7) above;
(9) the
procedures the Holder must follow to accept the Change in Control Offer;
and
(10) 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
1002 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:
69
(1) that
such Holder elects to have a Security purchased pursuant to the Change in
Control Offer;
(2) the
principal amount of the Security that the Holder elects to have purchased by
the
Company, which amount must be U.S.$1,000 or an integral multiple thereof, and
the certificate numbers of the Securities to be delivered by such Holder for
purchase by the Company; and
(3) that
such Security shall be purchased on the Change in Control Purchase Date pursuant
to the terms and conditions specified in this Indenture.
The
delivery of such Security (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 1002 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 516 only if the Security so
delivered to the Paying Agent or to an office or agency referred to in Section
1002 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 516,
a
portion of a Security if the principal amount of such portion is U.S.$1,000
or
an integral multiple of U.S.$1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of a
portion of such Security.
Any
purchase by the Company contemplated pursuant to the provisions of this Section
516 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 Security by the Holder to the Paying Agent or to an office or agency
referred to in Section 1002 in the mariner required by this Section
516.
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
1002, the Change in Control Purchase Notice contemplated by this Section 516(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 1002 in accordance with Section
1109.
The
Paying Agent or the office or agency referred to in Section 1002 shall promptly
notify the Company of the receipt by the former of any Change in Control
Purchase Notice or written notice of withdrawal thereof.
70
(c)
The
Securities may also not be accelerated pursuant to Section 502 following an
Event of Default under Section 501(k) 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 516;
provided, however, that any such third party shall be subject to
Section 1021 in respect of any amounts paid by such third party hereunder (for
this purpose, Section 1021 is modified by replacing “Company” with the name of
the third party) and such Event of Default shall be cured only if such third
party complies with Section 1021 (as modified) or if the Company satisfies
the
third party’s obligations under such Section.
ARTICLE
SIX
THE
TRUSTEE
Section
601. Certain Duties and Responsibilities.
(a) Except
during the continuance of an Event of Default,
(1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as
to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its
own willful misconduct, except that:
(1) this
Subsection shall not be construed to limit the effect of Subsection (a) of
this
Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it shall be proved that the Trustee was negligent
in
ascertaining the pertinent facts;
71
(3) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
a
majority in principal amount of the Outstanding Securities relating to the
time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this
Indenture; and
(4) no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section
602. Notice of Defaults.
The
Trustee shall, within a reasonable time but not exceeding 60 days after the
occurrence of any Default, transmit by mail to all Holders, as their names
and
addresses appear in the Security Register, notice of such Default hereunder
known to the Trustee, unless such Default is not an Event of Default and shall
have been cured or waived; provided, however, that, except in the case
of a Default in the payment of the principal of (or premium, if any) or interest
on any Security, the Trustee shall be protected in withholding such notice
if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the best interests of
the
Holders and the Trustee so advises the Company in writing.
Where
notice of the occurrence of any Default is given by the Trustee under the
preceding paragraph and the Default is thereafter cured, the Trustee shall,
within a reasonable time but not exceeding 60 days after the Trustee becomes
aware of the curing of the Default, transmit by mail to all Holders, as their
names and addresses appear in the Security Register, notice that the Default
is
no longer continuing.
Section
603. Certain Rights of Trustee.
Except
as
otherwise provided in Section 601:
(a) the
Trustee may rely and shall be protected in acting or refraining from acting
upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have
been signed or presented by the proper party or parties;
72
(b) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;
(d) the
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section
604. Not Responsible for Recitals or Issuance of
Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture, the Pledge Agreement, the Collateral Documents or the Securities
or
the security created hereunder or thereunder. The Trustee shall not
be accountable for the use or application by the Company of Securities or the
proceeds thereof.
73
Section
605. May Hold Securities.
The
Trustee, any Paying Agent, Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities, and, subject to the Trust Indenture Act, may otherwise deal with
the
Company with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
Section
606. Money Held in Trust.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
Section
607. Compensation, Reimbursement and Indemnity.
The
Company agrees:
(a) to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except
as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture (including
the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out
of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim and lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of Holders of particular Securities.
The
Company’s payment of indemnity obligations pursuant to this Section 607 shall
survive the discharge of this Indenture and the expiry of any trusts created
hereby and the resignation or removal of the Trustee. When the
Trustee incurs expenses after the occurrence of a Default specified in Section
501(f), (g) or (h), the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
74
Section
608. Conflicting Interests.
The
Trustee shall comply with the terms of Trust Indenture Act Section
310(b).
Section
609. Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under Trust Indenture Act Section 310(a)(1) and which shall have a
combined capital and surplus of at least U.S.$50,000,000 and have its Corporate
Trust Office in The City of New York to the extent there is such an institution
eligible and willing to serve. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in
the manner and with the effect hereinafter specified in this
Article.
Section
610. Resignation and Removal; Appointment of
Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The
Trustee may resign at any time by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the resigning Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court
of
competent jurisdiction (at the Company’s expense) for the appointment of a
successor Trustee.
(c) The
Trustee may be removed at any time by an Act of the Holders of a majority in
principal amount of the Outstanding Securities, delivered to the Trustee and
to
the Company.
(d) If
at any time:
(1) the
Trustee shall fail to comply with the provisions of Section 608 and shall fail
to resign after written request therefor by the Company or by any Holder who
has
been a bona fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed
or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then,
in
any such case, (i) the Company, by a Board Resolution, may remove the Trustee,
or (ii) subject to Section 514, in the case of clause (1) above, the Holder
of
any Security who has been a bona fide Holder of a Security for at least six
months, and in the case of clauses (2) and (3) above, the Holder of any Security
and any other interested party may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
75
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by
a
Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with Section 611, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders of the Securities and so
accepted appointment, the retiring Trustee or the Holder of any Security who
has
been a bona fide Holder for at least six months may on behalf of itself and
all
others similarly situated, petition any court of competent jurisdiction for
the
appointment of a successor Trustee.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities as
their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section
611. Acceptance of Appointment by Successor.
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all amounts due it under
Section 607, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject to the claim and lien
provided for in Section 607. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
76
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section
612. Merger, Conversion, Consolidation or Succession to
Business.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of such Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under
this
Article, without the execution or filing of any paper or any further act on
the
part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to the authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
Section
613. Trustee Not to Be Appointed Receiver.
Neither
the Trustee nor any related Person, as defined in the Business Corporations
Act
(Ontario), to the Trustee, shall be appointed a receiver or receiver and manager
or liquidator of all or any part of the assets or undertaking of the
Company.
Section
614. Acceptance of Trusts.
The
Trustee hereby accepts the trusts imposed upon it by this Indenture and
covenants and agrees to perform the same as herein expressed.
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
701. Disclosure of Names and Addresses of
Holders.
(a) Upon
application to the Trustee in accordance with the Trust Indenture Act, Holders
may communicate pursuant to the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Securities.
(b) In
addition, a Holder may, upon payment to the Trustee of a reasonable fee and
subject to compliance with any applicable requirement of the Trust Indenture
Act, require the Trustee to furnish within 10 days after receiving the affidavit
or statutory declaration referred to below, a list setting out (i) the name
and
address of every registered Holder, (ii) the aggregate principal amount of
Securities owned by each registered Holder and (iii) the aggregate principal
amount of Outstanding Securities, each as shown on the records of the Trustee
on
the day that the affidavit or statutory declaration is delivered to the
Trustee. The affidavit or statutory declaration, as the case may be,
shall contain (x) the name, address and occupation of the Holder, (y) where
the
Holder is a corporation, its name and address for service and (z) a statement
that the list will not be used except in connection with an effort to influence
the voting of the Holders, an offer to acquire Securities, or any other matter
relating to the Securities or the affairs of the Company. Where the
Holder is a corporation, the affidavit or statutory declaration shall be made
by
a director or officer of the corporation.
77
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of such list of the names and addresses
of the Holders, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under the Trust Indenture
Act.
(d) The
Company shall comply with the terms of Trust Indenture Act Section
312(a).
Section
702. Reports by Trustee.
Within
60
days after May 15 of each year commencing with the first May 15 after the first
issuance of Securities, the Trustee shall transmit by mail to all Holders,
as
their names and addresses appear in the Security Register, as provided in Trust
Indenture Act Section 313(c), a brief report dated as of such May 15 if required
by Trust Indenture Act Section 313(a).
Section
703. Reports by Company.
The
Company shall:
(a) file
with the Trustee, within 30 days after the Company is required to file the
same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such
of the supplementary and periodic information, documents and reports which
may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
78
(b) file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company, as the case
may
be, with the conditions and covenants of this Indenture as may be required
from
time to time by such rules and regulations; and
(c) transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), such
summaries of any information, documents and reports required to be filed by
the
Company pursuant to Subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
ARTICLE
EIGHT
AMALGAMATION,
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER
OR LEASE
Section
801. Company May Amalgamate, Etc., Only on Certain
Terms.
The
Company 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:
(a) either
(1) the Company shall be the continuing corporation or (2) the Person (if other
than the Company) formed by such amalgamation or consolidation or into which
the
Company is merged or the Person which acquires by conveyance, transfer, lease
or
other disposition the properties and assets of the Company substantially as
an
entirety (i) shall be a corporation, partnership or trust organized and validly
existing under (A) the laws of the United States of America or any State thereof
or the District of Columbia or (B) the federal laws of Canada or any Province
thereof and (ii) shall 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 Company under the Securities, this Indenture and,
prior to the Release Date, the Collateral Documents;
(b) immediately
after giving effect to such transaction (and treating any Debt which becomes
an
obligation of the Company or a Subsidiary 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;
(c) immediately
after giving effect to such transaction (and treating any Debt which becomes
an
obligation of the Company or a Subsidiary in connection with or as a result
of
such transaction as having been incurred at the time of such transaction),
the
Company (in the case of clause (1) of Subsection (a) above) or such Person
(in
the case of clause (2) of Subsection (a) above) could incur at least Cdn$1.00
of
additional Debt pursuant to Section 1008 hereof (determined in either case
on a
Consolidated basis); and
79
(d) the
Company or such Person 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 Article
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
Notwithstanding
the foregoing, without complying with Subsection 801(c), (i) the Company may
amalgamate or consolidate with or merge with or into any Restricted Subsidiary
or convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Restricted Subsidiary and (ii) the Company
may amalgamate or consolidate with or merge with or into a corporation that
directly or indirectly owns all the outstanding Capital Stock of the Company
(a
“Parent Company”) or convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to a Parent Company if,
at
the time of such transaction (or series of transactions), such Parent Company
and any other Parent Company that is a subsidiary of such Parent Company
together have (A) assets that in the aggregate have a fair value (as determined
by the Board of Directors, whose good faith determination shall be conclusive)
of less than Cdn$1,000,000 (other than Capital Stock or Debt of the Company
or
any Parent Company that is a subsidiary of such Parent Company) and (B) an
aggregate principal amount of Debt and other liabilities of less than
Cdn$1,000,000 (other than Debt and other liabilities of the Company, any
Restricted Subsidiary or any Parent Company that is a subsidiary of such Parent
Company). For purposes of this Section 801, the term “Debt” shall
include Inter-Company Subordinated Debt.
Section
802. Successor Substituted.
Upon
any
amalgamation, consolidation or merger, or any conveyance, transfer, lease or
other disposition of the properties and assets of the Company substantially
as
an entirety in accordance with Section 801, the successor Person formed by
such
amalgamation or consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer, lease or other disposition
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease, the Company shall be discharged from all obligations and
covenants under this Indenture and the Securities.
80
ARTICLE
NINE
SUPPLEMENTS
AND AMENDMENTS TO INDENTURE AND COLLATERAL
DOCUMENTS
Section
901. Supplemental Indentures and Amendments Without Consent of
Holders.
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 hereto or one or more amendments to the Collateral
Documents, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to
evidence the succession of another Person to the Company and the assumption
by
any such successor of the covenants of the Company herein and in the Securities
or the Collateral Documents, as the case may be;
(b) to
add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein or in the Securities or the Collateral
Documents conferred upon the Company;
(c) to
cure any ambiguity, to correct or supplement any provision herein or in any
Collateral Document which may be defective or inconsistent with any other
provision herein or therein, or to make any other provisions with respect to
matters or questions arising under this Indenture or under any Collateral
Document; provided that, in each case, such provisions shall not
adversely affect the interests of the Holders in any material
respect;
(d) to
issue Additional Securities as provided in Section 301;
(e) to
further secure the Securities; or
(f) to
make any other change that does not adversely affect the rights of any
Holder.
Section
902. Actions by the Trustee under the Deed of Trust and Certain
Amendments to the Inter-Creditor Agreement Without Consent of
Holders
(a) In
the event that (i) an Event of Default shall have occurred and the Trustee
shall
have demanded payment of the Trust Bond pursuant to Section 6.01 of the Deed
of
Trust, and (ii) thereafter all existing Events of Default shall have been
waived, rescinded, cured or annulled in accordance with the provisions of
Article Five and the Company shall have furnished to the Trustee an Officers’
Certificate to the foregoing effect and requesting that the Trustee waive its
demand for payment of the Trust Bond, then the Trustee shall, without the
consent of any Holders, waive such demand pursuant to Section 6.08 of the Deed
of Trust.
81
(b) In
the event that the Trustee shall receive an Officers’ Certificate (i) to the
effect that the Company proposes to issue specified additional Debt to be
secured by the pledge of a new Deed of Trust Bond having the same priority
under
the Deed of Trust and the Inter-Creditor Agreement with respect to the
collateral under the Deed of Trust as the Trust Bond and that the issuance
of
such new secured Debt is in compliance with the terms of this Indenture and
with
the terms of (including all waivers and consents granted pursuant to) all other
agreements and instruments pursuant to which any other existing Debt secured
by
Deed of Trust Bonds has been issued, and (ii) requesting that the Trustee
execute a Bondholders’ Resolution (as defined in the Deed of Trust) authorizing
the issuance, certification and delivery of such additional Deed of Trust Bond
(or cast its votes in favor of such request in person or by proxy at a meeting
of Senior Secured Bondholders held for such purpose), then the Trustee shall,
without consent of any Holder, execute such Bondholders’ Resolution (or so cast
its votes in person or by proxy).
(c) In
the event that the Trustee shall receive an Officers’ Certificate (i) to the
effect that the Company proposes to issue specified additional Debt to be
secured by the pledge of a new Deed of Trust Bond, that such new Debt will
rank
prior to or pari passu with the Tranche A Credit Facility and that the
issuance of such new secured Debt is in compliance with the terms of this
Indenture (including Section 1012(vi)) and with the terms of (including all
waivers and consents granted pursuant to) all other agreements and instruments
pursuant to which any other existing Debt secured by Deed of Trust Bonds has
been issued, and (ii) requesting the Trustee to execute a Bondholders’
Resolution (as defined in the Deed of Trust) authorizing the issuance,
certification and delivery of such additional Deed of Trust Bond (or cast its
votes in favor of such request in person or by proxy at a meeting of Senior
Secured Bondholders held for such purposes) and requesting the Trustee to
execute an amendment, supplement, replacement or restatement to the
Inter-Creditor Agreement to effectuate the relative ranking of such new Debt,
then the Trustee, without consent of any Holder, shall execute such Bondholders’
Resolution (or so cast its votes in person or by proxy) and shall execute such
amendment, supplement, replacement or restatement to the Inter-Creditor
Agreement.
(d) In
the event that the Trustee shall receive an Officers’ Certificate (i) to the
effect that the Board of Directors proposes to designate a Designated Subsidiary
under the Deed of Trust as an Unrestricted Subsidiary (as defined in the Deed
of
Trust), that pursuant to the Deed of Trust such designation may only be effected
when authorized by a Unanimous Bondholders’ Resolution (as defined in the Deed
of Trust) and that either (x) such change in designation is in compliance with
the terms of clause (i) of Section 1015(a) of this Indenture and with the terms
of (including all waivers and consents granted pursuant to) all other agreements
and instruments pursuant to which any other existing Debt secured by Deed of
Trust Bonds has been issued or (y) such designation is being made in connection
with a sale, conveyance, transfer or other disposition of all the Capital Stock
of such Designated Subsidiary pursuant to Section 1016 of this Indenture and
that such designation is in compliance with the terms of (including all waivers
and consents granted pursuant to) all other agreements and instruments pursuant
to which any other existing Debt secured by Deed of Trust Bonds has been issued,
and (ii) requesting that the Trustee execute a Unanimous Bondholders’ Resolution
authorizing such change in designation (or cast its votes in favor of such
request in person or by proxy at a meeting of Senior Secured Bondholders held
for such purpose), then the Trustee shall, without consent of any Holder,
execute such Unanimous Bondholders’ Resolution (or so cast its votes in person
or by proxy).
82
(e) In the
event that the Trustee shall receive an Officer’s Certificate (i) to the
effect that the Company proposes to take an action under the Deed of Trust
(other than any action referred to in clause (a), (b), (c) or (d) above) and
(ii) requesting that the Trustee execute a Bondholders’ Resolution or
acceptance or take such other action authorizing the specified action (or cast
its vote in favor of such request in person or by proxy at a meeting of Senior
Secured Bondholders held for such purposes), then the Trustee shall, without
consent of any Holder, execute such Bondholders’ Resolution or acceptance or
take such other action (or so cast its votes in person or by proxy);
provided that such action shall neither adversely affect the rights of
any Holder nor the rights of the Trustee as the holder of the Trust Bond or
the
interest thereof as a secured creditor under the Deed of Trust and the Trustee
shall have received an Opinion of Counsel in Canada, and, if the Trustee so
requires, an Opinion of Counsel in the United States, to such
effect.
(f) In the
event that the Trustee shall be required to execute a Unanimous Bondholders’
Resolution under the terms of the Inter-Creditor Agreement in order to give
effect to the priority created thereby, then the Trustee shall, without consent
of any Holder, execute such Unanimous Bondholders’ Resolution in accordance with
the terms of the Inter-Creditor Agreement (or so cast its votes in person or
by
proxy).
Section
903. Supplemental Indentures and Certain Amendments with Consent of
Holders.
With
the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of such Holders delivered to the Company and
the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may
enter into one or more indentures supplemental hereto or one or more amendments
or supplements to the Pledge Agreement for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of waiving or modifying in any manner the rights of the Holders
under this Indenture; provided, however, that no such supplemental
indenture, amendment or waiver shall, without the consent of the Holder of
each
Outstanding Security affected thereby:
(a) change
the Stated Maturity of the principal of, or any installment of interest on,
any
Security, or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or change the coin or
currency in which the principal of any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the enforcement
of
any such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
83
(b) reduce
the amount of, or change the coin or currency of, or impair the right to
institute suit for the enforcement of, the Change in Control Purchase Price
or
the Offered Price; or
(c) reduce
the percentage in principal amount of the Outstanding Securities, the consent
of
whose Holders is required for any such supplemental indenture, or the consent
of
whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture; or
(d) modify
any of the provisions of this Section or Sections 513 and 1024, except to
increase any such percentage or to provide that certain other provisions of
this
Indenture cannot be modified or waived without the consent of the Holder of
each
Security affected thereby; or
(e) permit
the creation of any Lien on the Trust Estate or any part thereof (other than
the
Lien of the Pledge Agreement) or terminate the Lien of the Pledge Agreement
as
to any part of the Trust Estate.
It
shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section
904. Amendments to Collateral Documents.
With
the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of such Holders delivered to the Company and
the
Trustee, the Trustee may authorize one or more amendments or supplements to
any
Collateral Document (other than the Pledge Agreement), grant one or more
consents or waivers thereunder, or execute one or more instructions or other
documents pursuant thereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions thereof or of
waiving or modifying in any manner the rights or obligations of the parties
thereunder or taking any actions pursuant thereto; provided, however,
that no such amendment, supplement, consent, waiver or instruction
or other
document shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) modify
any of the provisions of the Deed of Trust referred to in Section 9.09 thereof;
or
(b) modify
any of the provisions of the Inter-Creditor Agreement (except as provided in
Section 902(c) hereof); or
84
(c) except
as permitted hereby and by the Deed of Trust, permit the creation of any Lien
ranking prior to or on a parity with the Lien securing the Trust Bond or any
guarantee thereof or terminate the Lien securing the Trust Bond or any guarantee
thereof as to any part of the Deed of Trust Collateral.
Section
905. Execution of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to the Trust Indenture Act and Section 603 hereof) shall be fully
protected in acting and relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section
906. Effect of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article, this Indenture
shall
be modified in accordance therewith, and such supplemental indenture shall
form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section
907. Conformity with the Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section
908. Reference in Securities to Supplemental
Indentures.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and, upon Company Order, authenticated and delivered
by
the Trustee in exchange for Outstanding Securities.
Section
909. Execution of Subordination Agreements.
In
the
event that the Trustee receives an Officers’ Certificate (i) to the effect that
the Company or a Restricted Subsidiary proposes to issue Debt subordinated
in
right of payment to the Securities or the senior indebtedness of such Restricted
Subsidiary, as the case may be, and that the issuance of such new subordinated
Debt is in compliance with the terms of this Indenture and (ii) requesting
that
the Trustee execute a subordination agreement (or instrument of like effect)
with the holders of such subordinated Debt or their representative, then, upon
Company Order, the Trustee shall, without the consent of any Holder, execute
such subordination agreement (or instrument of like effect).
85
ARTICLE
TEN
COVENANTS
Section
1001. Payment of Principal, Premium and
Interest.
The
Company will duly and punctually pay the principal of (and premium, if any)
and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
Section
1002. Maintenance of Office or Agency.
The
Company will maintain in The City of New York an office or agency where
Securities may be presented or surrendered for payment, where Securities may
be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be
such office or agency of the Company, unless the Company shall designate and
maintain, some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee
of any change in the location of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency
or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The
Company may from time to time designate one or more other offices or agencies
(in or outside of The City of New York) where the Securities may be presented
or
surrendered for any or all such purposes, and may from time to time rescind
such
designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
Section
1003. Money for Security Payments to Be Held in
Trust.
If
the
Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on any
of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents for the Securities, it will,
on
or before each due date of the principal of (and premium, if any) or interest
on
any Securities, deposit with a Paying Agent a sum in same day funds (or New
York
Clearing House funds if such deposit is made prior to the date on which such
deposit is required to be made) sufficient to pay the principal (and premium,
if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless
such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
86
The
Company will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold
all sums held by it for the payment of the principal of (and premium, if any)
or
interest on Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give
the Trustee notice of any default by the Company (or any other obligor upon the
Securities) in the making of any payment of principal (and premium, if any)
or
interest; and
(c) at
any time during the continuance of any such default, upon the written request
of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the payment of the principal of (and premium, if any) or interest
on
any Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
Section
1004. Corporate Existence.
Subject
to Article Eight, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect the corporate existence and
corporate power and authority of the Company and each Restricted Subsidiary;
provided, however, that the Company shall not be required to preserve
any such corporate existence
and
corporate power and authority if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of
the Company and its Restricted Subsidiaries taken as a whole.
87
Section
1005. Payment of Taxes and Other Claims.
The
Company will pay or discharge or cause to be paid or discharged, before the
same
shall become delinquent, (a) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Restricted Subsidiary or
upon
the income, profits or property of the Company or any Restricted Subsidiary
and
(b) all material lawful claims for labor, materials and supplies, which, if
unpaid, might by law become a Lien upon the property of the Company or any
Restricted Subsidiary that could produce a material adverse effect on the
Consolidated financial condition of the Company; provided, however,
that the Company shall not be required to pay or discharge or cause
to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section
1006. Maintenance of Properties.
The
Company will cause all properties owned by the Company or any Restricted
Subsidiary or used or held for use in the conduct of its business or the
business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company
may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in every case,
as
and to the extent that the Company may be prevented by fire, strikes, lockouts,
acts of God, inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable casualty or similar causes beyond
the control of the Company; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any
of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Restricted
Subsidiary and not disadvantageous in any material respect to the
Holders.
Section
1007. Insurance.
The
Company will, and will cause each Restricted Subsidiary to, at all times
maintain insurance in accordance with the provisions of the Deed of
Trust.
Section
1008. Limitation on Debt.
The
Company will not, and will not permit any Restricted Subsidiary to, create,
incur or assume, or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for the payment of, any Debt (including
Acquired Debt), other than Permitted Debt, if, on the date of such incurrence
and after giving effect to the incurrence of such Debt or Acquired Debt and
the
receipt and application of the proceeds thereof (and, if the proceeds of such
new Debt are used to acquire a Person that becomes a Restricted Subsidiary
or an
operating business, after giving effect to all terms of such acquisition,
including all reorganizations of indebtedness effected prior to or at the time
of completion of such acquisition), the Consolidated Debt to Annualized
Operating Cash Flow Ratio would be greater than 7.0 to 1.0.
88
For
purposes of this Section 1008, the transfer of Debt of the Company or a
Restricted Subsidiary held by the Company or a Restricted Subsidiary to any
Person (other than the Company or a Restricted Subsidiary) shall be deemed
to be
an incurrence of Debt.
For
purposes of this Section 1008, the term “Debt” shall include Inter-Company
Subordinated Debt.
Section
1009. Limitation on Senior Debt.
The
Company will not, and will not permit any Restricted Subsidiary to, create,
incur or assume, or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for the payment of, any Senior Debt
(including Acquired Debt constituting Senior Debt), other than Permitted Debt,
if, on the date of such incurrence and after giving effect to the incurrence
of
such Senior Debt or Acquired Debt constituting Senior Debt and the receipt
and
application of the proceeds thereof (and, if the proceeds of such new Senior
Debt are used to acquire a Person that becomes a Restricted Subsidiary or an
operating business, after giving effect to all terms of such acquisition,
including all reorganizations of indebtedness effected prior to or at the time
of completion of such acquisition), the Consolidated Senior Debt to Annualized
Operating Cash Flow Ratio would be greater than 6.0 to 1.0.
For
purposes of this Section 1009, the transfer of Senior Debt of the Company or
a
Restricted Subsidiary held by the Company or a Restricted Subsidiary to any
Person (other than the Company or a Restricted Subsidiary) shall be deemed
to be
an incurrence of Senior Debt.
Section
1010. Limitation on Restricted Payments.
The
Company will not:
(i) declare
or pay any dividend on, or make any distribution to the holders of, any shares
of the Company’s Capital Stock (other than dividends or distributions payable in
its Capital Stock (other than Disqualified Stock) or in options, warrants or
other rights to purchase its Capital Stock (other than Disqualified Stock)),
or
permit any Restricted Subsidiary to declare or pay any dividend on, or make
any
distribution to the holders of, any shares of such Restricted Subsidiary’s
Capital Stock, or
(ii) directly
or indirectly purchase, redeem or otherwise acquire or retire for value, or
permit any Subsidiary to, directly or indirectly, purchase, redeem or otherwise
acquire or retire for value, any Capital Stock of the Company or any Restricted
Subsidiary (including options, warrants or other rights to acquire such Capital
Stock), or
89
(iii) pay,
or permit any Subsidiary to pay, any interest, principal, penalty or other
amount in respect of any Inter-Company Deeply Subordinated Debt or Excluded
Securities of the Company or any Restricted Subsidiary (other than any such
payment made in additional Inter-Company Deeply Subordinated Debt or Excluded
Securities), or
(iv) redeem,
repurchase, defease or otherwise acquire or retire for value, or permit any
Subsidiary to, directly or indirectly, redeem, repurchase, defease or otherwise
acquire or retire for value, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Debt of the Company or any
Restricted Subsidiary that is subordinated (whether pursuant to its terms or
by
operation of law) in right of payment to the Securities or the senior
indebtedness of such Restricted Subsidiary, as the case may be, or
(v) pay
or permit any Restricted Subsidiary to pay any amount of Management Fees
(including Deferred Management Fees) designated as a Restricted
Payment
(each
of
the foregoing actions set forth in clauses (i) through (v), other than any
such
action that is a Permitted Distribution, being referred to as a “Restricted
Payment”) unless:
(a) at
the time of such Restricted Payment, no Default or Event of Default shall have
occurred and be continuing, or shall occur as a consequence of such Restricted
Payment,
(b) after
giving effect to such Restricted Payment, the aggregate amount of all Restricted
Payments made after the date of this Indenture shall not exceed the sum (without
duplication) of:
(1) Cdn$200,000,000,
plus
(2) if
greater than zero, the amount determined by subtracting (x)1.2 times the
aggregate interest expense (excluding interest on Inter-Company Deeply
Subordinated Debt) of the Company and its Restricted Subsidiaries (determined
on
a Consolidated basis in accordance with GAAP) for the period (taken as one
accounting period) from October 1, 1995 to the last day of the fiscal quarter
preceding the date of the proposed Restricted Payment (the “Computation Period”)
from (y) Operating Cash Flow for the Computation Period,
plus
(3) the
aggregate net proceeds, including the fair market value of property other than
cash (as determined by the Board of Directors, whose good faith determination
shall be conclusive), received by the Company from the issuance and sale (other
than to a Restricted Subsidiary) on or after the date of this Indenture of
shares of its Capital Stock (other than Disqualified Stock), of any options,
warrants or other rights to purchase its Capital Stock (other than Disqualified
Stock) or of Inter-Company Deeply Subordinated Debt of the Company,
plus
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(4) the
aggregate net proceeds received by the Company from the issuance or sale (other
than to a Restricted Subsidiary) on or after the date of this Indenture of
any
Capital Stock (other than Disqualified Stock) of the Company or of Inter-Company
Deeply Subordinated Debt of the Company upon the conversion of, or exchange
for,
Debt of the Company or a Restricted Subsidiary or from the exercise after the
date of this Indenture of any options, warrants or other rights to acquire
Capital Stock (other than Disqualified Stock) of the Company; and
(c) after
giving effect to such Restricted Payment, the Company could have incurred at
least Cdn$1.00 of additional Debt in accordance with the provisions of Section
1008.
For
purposes of subclause (4) above, the net proceeds received by the Company from
any such issuance or sale of its Capital Stock (other than Disqualified Stock)
or Inter-Company Deeply Subordinated Debt of the Company upon the conversion
of,
or exchange for, Debt of the Company or any Restricted Subsidiary shall be
deemed to be in an amount equal to (A) the sum of (i) the accreted value of
such
Debt on the date of such conversion or exchange and (ii) the additional cash
consideration, if any, received by the Company upon such conversion or exchange,
less any payment on account of fractional shares minus (B) all expenses incurred
in connection with such issuance or sale.
For
purposes of this Section 1010, if a particular Restricted Payment involves
a
non-cash payment, including a distribution of assets, then such Restricted
Payment shall be deemed to be in an amount equal to the cash portion of such
Restricted Payment, if any, plus an amount equal to the fair market value of
the
non-cash portion of such Restricted Payment as determined by the Board of
Directors, whose good faith determination shall be conclusive.
Notwithstanding
the foregoing, and so long as no Default or Event of Default shall have occurred
and be continuing, the Company may (1) make any Permitted Distribution, and
a
Permitted Distribution shall not thereafter be counted as a Restricted Payment
and (2) make any Permitted Restricted Payment; provided, however, that
such Permitted Restricted Payment shall thereafter be counted as a Restricted
Payment.
For
the
purposes of this Section 1010, if the Company or any Restricted Subsidiary
ceases to be the obligor under any Inter-Company Deeply Subordinated Debt or
any
Excluded Security (other than any Excluded Security constituting Common Stock)
and a Person other than the Company or a Restricted Subsidiary becomes the
obligor thereunder (or the issuer of any Excluded Security constituting
Preferred Stock), the Company or such Restricted Subsidiary shall be deemed
to
have made a Restricted Payment in an amount equal to the accreted value of
such
Inter-Company Deeply Subordinated Debt or Excluded Security constituting
indebtedness (or the redemption price of any Excluded Security constituting
Preferred Stock) at the time of the assumption thereof by such other
Person.
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Section
1011. Limitation on Investments.
The
Company will not, and will not permit any Restricted Subsidiary to, make any
Investment (other than a Permitted Investment) unless, immediately before and
after giving effect thereto:
(a) no
Default or Event of Default shall have occurred and be continuing;
and
(b) the
Company could have incurred at least Cdn$1.00 of additional Debt in accordance
with the provisions of Section 1008.
Section
1012. Limitation on Liens.
Prior
to
the Release Date, the Company will not, and will not permit any Restricted
Subsidiary to, create, affirm, incur, or suffer to exist any Lien of any kind
upon any of its property or assets, now owned or hereafter acquired, other
than:
(i) Liens
on Excluded Assets;
(ii) Liens
securing Debt under Capital Lease Obligations and/or Purchase Money Obligations
not exceeding at any time an aggregate amount equal to 10% of the Company’s
Consolidated Tangible Assets; provided that no assets or property of
the Company or any Restricted Subsidiary (other than the property acquired
in
connection with such Capital Lease Obligation or Purchase Money Obligation)
are
subject to any Lien securing such Debt;
(iii) Liens
securing Debt of a Person outstanding on the date such Person becomes a
Restricted Subsidiary, provided that such Liens (A) were not incurred
in contemplation of such Person becoming a Restricted Subsidiary and (B) are
not
applicable to the Company or any other Restricted Subsidiary, or the properties
or assets of the Company or any other Restricted Subsidiary;
(iv) Liens
on property or assets acquired by the Company or any Restricted Subsidiary
from
another Person which are existing at the time of such acquisition, provided
that such Liens (1) were not incurred in contemplation of the acquisition
of such property or assets and (2) are applicable only to such property or
assets;
(v) Liens
on the property and assets of the Company or any Restricted Subsidiary provided
or granted to the Deed Trustee pursuant to the Deed of Trust, including, for
greater certainty, Liens securing Debt (and other related obligations) under
any
bank credit facility, provided that (1) such Debt was incurred in
compliance with the provisions of this Indenture, (2) such Liens are limited
to
a pledge of Deed of Trust Bonds and (3) the aggregate amount of Debt committed
under any Tranche A Credit Facility plus the aggregate amount of all outstanding
or committed Tranche A-Type Debt (collectively “Superior Debt”) does not exceed
Cdn$600,000,000;
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(vi) Liens
securing Debt (and other related obligations) if (A) such Debt was incurred
in
compliance with the provisions of this Indenture, (B) such Liens are limited
to
a pledge of a Deed of Trust Bond and (C) if such Debt is Tranche A-Type Debt
then immediately prior thereto, and immediately thereafter and after giving
effect thereto, (x) no Default or Event of Default shall exist, (y) the
aggregate amount of Superior Debt does not exceed Cdn$600,000,000 and (z) the
ratio of Superior Debt to the Company’s Annualized Operating Cash Flow for the
most recently completed fiscal quarter of the Company does not exceed 3.0 to
1;
(vii) 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;
(viii) Xxxxx
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);
(ix) 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);
(x) Liens
in favor of issuers of surety bonds issued in the ordinary course of
business;
(xi) 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;
(xii) Liens
in favor of Bell Canada under any partial system agreement or related agreement
providing for the construction and installation by Bell 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 Bell Canada of such equipment
to the Company or any Restricted Subsidiary in accordance with tariffs published
by Bell 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;
(xiii) any
other Lien existing on the date of this Indenture; and
93
(xiv) Liens,
other than Liens incurred pursuant to the foregoing clauses (i) to (xiii),
securing or otherwise in respect of up to Cdn$20.0 million aggregate amount
of
obligations of the Company or any Restricted Subsidiary at any time
outstanding.
Section
1013. Limitation on Management Fees.
The
Company will not, and will not permit any Restricted Subsidiary to, directly
or
indirectly, make any payment in respect of Management Fees (including Deferred
Management Fees but excluding Management Fees treated as Restricted Payments
in
compliance with Section 1010) unless, immediately before and after giving effect
thereto:
(a) no
Default or Event of Default shall have occurred and be continuing;
(b) the
Company could have incurred at least Cdn$1.00 of additional Debt in accordance
with the provisions of Section 1008; and
(c) the
sum of the amount of such payment and the amount of all other payments made
in
respect of Management Fees (including Deferred Management Fees) on or after
October 1, 1995 would not exceed an amount equal to 5% of Consolidated Gross
Revenues for the period (taken as one accounting period) from October 1, 1995
to
the date of such proposed payment.
For
the
purpose of this Section 1013, “Consolidated Gross Revenues” means the gross
revenues of the Company and its Restricted Subsidiaries determined on a
Consolidated basis in accordance with GAAP; provided that (i) any
portion of gross revenues derived directly or indirectly from Excluded Assets
or
from Unrestricted Subsidiaries, including dividends or distributions from
Unrestricted Subsidiaries, shall be excluded from such calculation and (ii)
any
portion of gross revenues derived directly or indirectly from a Person (other
than a Subsidiary) accounted for by the equity method of accounting shall be
included in such calculation only to the extent of the amount of dividends
or
distributions actually paid to the Company or a Restricted Subsidiary by such
Person.
94
Section
1014. Transactions with Affiliates.
The
Company will not, and will not permit any Restricted Subsidiary to, directly
or
indirectly, enter into any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) or series of related transactions with any Affiliate of the Company
on
terms that are less favorable to the Company or such Restricted Subsidiary,
as
the case may be, than those which might be obtained at the time of such
transaction or series of related transactions from a Person who is not such
an
Affiliate; provided, however, that this Section 1014 shall not limit,
or be applicable to, (i) any transaction or series of related transactions
between the Company and any Restricted Subsidiary or between Restricted
Subsidiaries, (ii) any transaction or series of related transactions involving
an aggregate consideration of less than Cdn$5,000,000, (iii) any Permitted
Distribution or Permitted Restricted Payment, (iv) any payment in respect of
Management Fees made in compliance with Section 1013 hereof or (v) certain
existing inter-company agreements and cost sharing arrangements listed in an
Officers’ Certificate to be delivered by the Company to the Trustee concurrently
with the execution of this Indenture. In addition, any transaction or
series of related transactions between the Company or any Restricted Subsidiary
and any Affiliate of the Company involving an aggregate consideration of
Cdn$10,000,000 or more must be approved by the Board of
Directors. For purposes of this Section 1014, any transaction or
series of related transactions between the Company or any Restricted Subsidiary
and an Affiliate of the Company that is approved by a majority of the
Independent Directors shall be deemed to be on terms as favorable as those
that
might be obtained at the time of such transaction (or series of related
transactions) from a Person who is not such an Affiliate and thus shall be
permitted under this Section 1014.
Section
1015. Restricted Subsidiaries.
(a) The
Board of Directors may designate any Restricted Subsidiary or any Person that
is
to become a Subsidiary as an Unrestricted Subsidiary if (i) such action is
in
compliance with Section 1011 of this Indenture and (ii) prior to the Release
Date, such Restricted Subsidiary becomes an Unrestricted Subsidiary (as defined
in the Deed of Trust) under the Deed of Trust.
(b) The
Board of Directors may not designate (1) any Unrestricted Subsidiary as a
Restricted Subsidiary or (2) prior to the Release Date, any Person that is
to
become a Subsidiary as a Restricted Subsidiary, unless:
(A) such
Unrestricted Subsidiary or such Person is incorporated or organized in Canada
or
a Province or territory thereof, or in the United States or any State thereof
or
the District of Columbia;
(B) immediately
before and after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing;
95
(C) immediately
after giving effect to such designation on a pro forma basis (and if
such designation is made in connection with the acquisition of a Person or
an
operating business that is about to become a Subsidiary, after giving effect
to
all terms of such acquisition, including all reorganizations of indebtedness
effected prior to or at the time of the completion of such acquisition), the
Company could have incurred at least Cdn$1.00 of additional Debt in accordance
with the provisions of Section 1008 of this Indenture; and
(D) prior
to the Release Date, such Unrestricted Subsidiary or such Person becomes a
“Designated Subsidiary” under the Deed of Trust.
Section
1016. Disposition of Proceeds of Asset Sale.
(a) The
Company will not, and will not permit any Restricted Subsidiary to, engage
in
any Asset Sale if the Net Cash Proceeds of such Asset Sale, together with the
Net Cash Proceeds of any other Asset Sales that have occurred since the date
of
this Indenture, exceed 15% of the book value (determined in accordance with
GAAP) of the total Consolidated assets of the Company as of the end of the
Company’s fiscal quarter next preceding such Asset Sale (all Net Cash Proceeds
other than Net Cash Proceeds in an aggregate amount up to such 15% amount being
referred to as “Covered Net Cash Proceeds”), unless:
(i) such
Asset Sale is for not less than the fair market value of the assets sold (as
determined by the Board of Directors);
(ii) at
least 75% of the proceeds from such Asset Sale consist of cash or cash
equivalents;
(iii) immediately
before and after giving effect to such transaction on a pro forma
basis, no Default or Event of Default shall have occurred or be continuing;
and
(iv) the
Company could have incurred at least Cdn$1.00 of additional Debt in accordance
with the provisions of Section 1008.
(b) Within
12 months of any Asset Sale, the Company may (i) use the Covered Net Cash
Proceeds of such Asset Sale, or a portion thereof, as working capital in the
ordinary course of business or (ii) invest, or enter into a legally binding
agreement to invest, such Covered Net Cash Proceeds, or a portion thereof,
in
properties and assets to replace the properties and assets that were the subject
of the Asset Sale or in properties and assets that (as determined by the Board
of Directors, whose good faith determination shall be conclusive and evidenced
by a Board Resolution) will be used in businesses of the Company and its
Restricted Subsidiaries existing on the date of this Indenture or in businesses
reasonably related thereto. If any such legally binding agreement to
invest any Covered Net Cash Proceeds is terminated, then the Company may invest
such Covered Net Cash Proceeds, prior to the end of such 12-month period or
within 60 days from such termination, whichever is later, in the business of
the
Company and its Restricted Subsidiaries as provided in clauses (i) and (ii)
of
the preceding sentence. The amount of such Covered Net Cash Proceeds
not applied, used or invested as set forth in the foregoing two sentences
multiplied by the Security Factor constitutes “Excess Proceeds”. The
“Security Factor” is a fraction, the numerator of which is the aggregate
principal amount of Securities outstanding on the date of such Asset Sale and
the denominator of which is (i) prior to the Release Date, the aggregate
principal amount of Debt of the Company, including the Securities, that is
outstanding on the date of such Asset Sale and that is secured by a pledge
of
Deed of Trust Bonds and (ii) on or after the Release Date, the sum of (A) the
aggregate principal amount of Securities outstanding on the date of such Asset
Sale and (B) the aggregate principal amount of other Debt of the Company that
is
pari passu with the Securities, to the extent the terms of such Debt
require the Company to make an offer to purchase such Debt upon the occurrence
of such Asset Sale.
96
For
the
purposes of the preceding paragraph, the assumption of Senior Debt of the
Company or any Restricted Subsidiary and the release of the Company and the
Restricted Subsidiaries from all liability on such Senior Debt in connection
with such Asset Sale shall be deemed to constitute cash in an amount equal
to
the principal amount outstanding or accreted value of such Senior
Debt.
(c) When
the aggregate amount of Excess Proceeds equals Cdn$10,000,000 or more, the
Company shall make an offer to purchase (an “Offer”) from all Holders of the
Securities, in accordance with the procedures set forth in this Section 1016,
the maximum principal amount (expressed as a multiple of U.S.$1,000) of
Securities that may be purchased using such amount of Excess Proceeds (subject
to proration in the event that such amount is less than the aggregate Offered
Price of all Securities tendered). The offer price (the “Offered
Price”) shall be payable in cash in an amount equal to 100% of the principal
amount of each Security plus accrued and unpaid interest, if any, to the date
of
purchase. To the extent that the aggregate Offered Price of all
Securities tendered pursuant to an Offer is less than the Excess Proceeds
relating thereto (such shortfall constituting a “Deficiency”), the Company may
use such Deficiency for general corporate purposes. Upon the
completion of the purchase of all Securities tendered pursuant to an Offer,
the
amount of Excess Proceeds shall be reset at zero; provided that the
amount of 25% Excess Proceeds (as defined below) shall constitute Excess
Proceeds for purposes of the first Offer that is made after the fifth
anniversary of the date of the original issuance of the Securities (the “Fifth
Anniversary”).
(d) Notwithstanding
any provision of this Section 1016, in no event shall the Company be required
on
or prior to the Fifth Anniversary under this Section 1016 to use Excess Proceeds
to purchase Securities that, together with amounts used or required to be used
to retire Securities pursuant to Section 1018, would result in the purchase
of
Securities with an aggregate principal amount in excess of 25% of the original
aggregate principal amount of the Securities. If the aggregate Excess
Proceeds (disregarding any resetting to zero pursuant to Subsection (c) hereof)
resulting from Asset Sales occurring on or prior to the Fifth Anniversary,
plus
any amounts used, or required to be used, to retire Securities pursuant to
Section 1018, less any Deficiencies resulting from any Offers made by the
Company on or prior to such date, exceeds 25% of the original aggregate
principal amount of the Securities (such excess being the “25% Excess
Proceeds”), then the Company shall make an Offer at the Offered Price in
accordance with Subsection (b) above (i) promptly after the Fifth Anniversary,
in the event the amount of the 25% Excess Proceeds exceeds Cdn$10,000,000 or
(ii) at such time as the amount of the 25% Excess Proceeds together with the
Excess Proceeds received after the Fifth Anniversary exceeds Cdn$10,000,000,
in
the event the amount of the 25% Excess Proceeds is less than
Cdn$10,000,000.
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(e) Within
20 Business Days after the date on which the aggregate amount of Excess Proceeds
exceeds Cdn$10,000,000, the Company shall send by first-class mail, postage
prepaid, to each Holder of the Securities, at its address appearing in the
Security Register, and to the Trustee a notice stating:
(i) that
the Holder has the right to require the Company to repurchase such Xxxxxx’s
Securities at the Offered Price, subject to proration in the event the Excess
Proceeds are less than the aggregate Offered Price of all Securities
tendered;
(ii) the
date of purchase of Securities pursuant to the Offer (the “Offer Date”), which
shall be no earlier than 20 days nor later than 40 days from the date such
notice is mailed; and
(iii) the
instructions a Xxxxxx must follow in order to have his Securities purchased
in
accordance with paragraph (c) of this Section.
(f) Holders
electing to have Securities purchased will be required to surrender such
Securities to the Paying Agent at the address specified in the notice at least
five. Business Days prior to the Offer Date. Holders will
be entitled to withdraw their election if the Company receives, not later than
three Business Days prior to the Offer Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities
delivered for purchase by the Holder as to which its election is to be withdrawn
and a statement that such Xxxxxx is withdrawing its election to have such
Securities purchased. If the aggregate principal amount of Securities
surrendered by Holders exceeds the amount of Excess Proceeds that are required
to be used to purchase Securities, the Company shall select the Securities
to be
purchased on a pro rata basis, with such adjustments as may be deemed
appropriate by the Company, so that only Securities in denominations of
U.S.$1,000, or integral multiples thereof, shall be
purchased. Holders of Securities whose Securities are purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered.
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(g) If
and for as long as the Company shall be prohibited from purchasing any Security
from a Holder in an Offer because of provisions of applicable law, the Company
need not make such Offer with respect to such Security. If such
prohibition shall continue for a period of 180 days after such Offer should
have
been commenced in accordance with Section 1016(e), the Company shall then be
obligated to utilize the Excess Proceeds in the business of the Company and
its
Restricted Subsidiaries.
(h) Whenever
Excess Proceeds (other than 25% Excess Proceeds) received by the Company exceed
Cdn$20,000,000, such Excess Proceeds shall, prior to the purchase of Securities,
be set aside by the Company in a separate account pending (i) deposit with
the
Depositary of the amount required to repay the Securities tendered in an Offer
or (ii) delivery by the Company of the Offered Price to the Holders of the
Securities tendered in an Offer. Such Excess Proceeds may be invested
in Temporary Cash Investments the maturity date of which is not later than
the
Offer Date. The Company shall be entitled to any interest or
dividends accrued, earned or paid on such Temporary Cash
Investments. Such Excess Proceeds, or any portion thereof, need not
be set aside in a separate account but may instead be used to repay Debt if
(i)
the Trustee shall have received a Board Resolution to the effect that, based
on
cash and cash equivalents on hand and existing revolving credit facilities,
the
Board of Directors believes that there is no reasonable circumstance under
which
the Company will not have access to sufficient funds in order to consummate
the
Offer and (ii) such repayment of Debt complies with all other conditions of
this
Indenture.
(i) Upon
any sale, conveyance, transfer or other disposition to any Person that is not
an
Affiliate of the Company of all of the Capital Stock of a Restricted Subsidiary
held by the Company or another Restricted Subsidiary, such Restricted Subsidiary
shall cease to be a Restricted Subsidiary, provided that (A) such
Restricted Subsidiary is or becomes an Unrestricted Subsidiary (as defined
in
the Deed of Trust) under the Deed of Trust, and (B) immediately before and
after
giving effect to such transaction on a pro forma basis, no Default or
Event of Default shall have occurred and be continuing under this Indenture
as
evidenced by the delivery by the Company to the Trustee of an Officers’
Certificate to such effect.
Section
1017. Limitation on Secured Debt.
On
or
after the Release Date, the Company will not, and the Company 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 the Securities
equally and ratably with (or prior to) such Secured Debt. However,
the Company may incur Secured Debt without securing the Securities if,
immediately after incurring the Secured Debt, the aggregate amount of all
Secured Debt plus the aggregate amount of 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 Securities and Secured Debt that is being
repaid concurrently. Any Lien which is granted to secure the
Securities under this Section 1017 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 Securities under this Section 1017.
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Section
1018. Limitation on Sale and Leaseback
Transactions.
On
or
after the Release Date, the Company will not permit, 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 Release Date (or, in the case of a Restricted
Subsidiary, the date on which it became a Restricted Subsidiary, if on or after
the Release Date) and (2) the aggregate amount of all Secured Debt, excluding
Secured Debt which is secured equally and ratably with the Securities, 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, provided that such retirement
of Debt complies with all other conditions of this Indenture and, provided
further that in no event shall the Company be required on or prior to the
Fifth Anniversary to retire Securities pursuant to this Section 1018 that,
together with Securities that have been or are required to be repaid pursuant
to
Section 1016, have an aggregate principal amount in excess of 25% of the
original aggregate principal amount of the Securities, and provided further
that, promptly after the Fifth Anniversary, the Company will retire
any
Securities that would have been retired under this Section 1018 but for the
foregoing proviso. However, Debt which is subordinate to the
Securities or which is owed to the Company or a Restricted Subsidiary may not
be
retired.
Section
1019. Limitation on Restricted Subsidiary
Debt.
On
or
after the Release Date, 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 Securities are secured equally and
ratably with (or prior to) such Debt), unless (1) the obligations of the Company
under the Securities are guaranteed (which guarantee may be on an unsecured
basis) by such Restricted Subsidiary such that the claim of the Trustee on
behalf of the Holders of the Securities 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 aggregate principal amount of Debt (other than Exempted
Secured Debt) of all Restricted Subsidiaries, (y) the then outstanding 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 of the Company;
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 Liens that would otherwise be permitted under clauses (i) and (vii)
to (xiii) of Section 1012, 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).
100
Section
1020. Provision of Financial Statements.
(a) The
Company shall supply without cost to each Holder of the Securities, and file
with the Trustee within 30 days after the Company is required to file the same
with the Commission, copies of the annual reports and quarterly reports and
of
the information, documents and other reports which the Company may be required
to file with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act.
(b) If
the Company is not required to file with the Commission such reports and other
information referred to in Section 1020(a), the Company shall furnish without
cost to each Holder of the Securities and file with the Trustee (i) within
140
days after the end of each fiscal year, audited year-end financial statements
prepared in accordance with GAAP and substantially in the form prescribed by
applicable Canadian regulatory authorities for Canadian public reporting
companies (whether or not the Company is a public reporting company at the
time), (ii) within 75 days after the end of each of the first three fiscal
quarters of each fiscal year, unaudited quarterly financial statements prepared
in accordance with GAAP and substantially in the form prescribed by applicable
Canadian regulatory authorities for Canadian public reporting companies (whether
or not the Company is a public reporting company at the time). The
Company shall also make such reports available to prospective purchasers of
the
Securities, securities analysts and broker-dealers upon their
request.
Section
1021. Payment of Additional Amounts.
All
payments made by the Company under or with respect to the Securities will be
made free and clear of and without withholding or deduction for or on account
of
any present or future tax, duty, levy, impost, assessment or other governmental
charge imposed or levied by or on behalf of the Government of Canada or of
any
province or territory thereof or by any authority or agency therein or thereof
having power to tax (hereinafter “Taxes”), unless the Company is required to
withhold or deduct Taxes by law or by the interpretation or administration
thereof. If the Company is so required to withhold or deduct any
amount for or on account of Taxes from any payment made under or with respect
to
the Securities, the Company will pay as interest such additional amounts
(“Additional Amounts”) as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if such Taxes
had not been withheld or deducted; provided that no Additional Amounts
will be payable with respect to a payment made to a Holder (an “Excluded
Holder”) (i) with which the Company does not deal at arm’s length (within the
meaning of the Income Tax Act (Canada)) at the time of making such payment
or
(ii) which is subject to such Taxes by reason of its being connected with Canada
or any province or territory thereof otherwise than by the mere holding of
Securities or the receipt of payments thereunder. The Company will
also (i) make such withholding or deduction and (ii) remit the full amount
deducted or withheld to the relevant authority in accordance with applicable
law. The Company will furnish to the Holders of the Securities,
within 30 days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by
the
Company. The Company will indemnify and hold harmless each Holder
(other than an Excluded Holder) and upon written request reimburse each such
Holder for the amount of (i) any Taxes so levied or imposed and paid by such
Holder as a result of payments made under or with respect to the Securities,
(ii) any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, and (iii) any Taxes imposed with respect
to
any reimbursement under clause (i) or (ii), but excluding any such Taxes on
such
Holder’s net income.
101
At
least
30 days prior to each date on which any payment under or with respect to the
Securities is due and payable, if the Company will be obligated to pay
Additional Amounts with respect to such payment, the Company will deliver to
the
Trustee an Officers’ Certificate stating the fact that such Additional Amounts
will be payable, the amounts so payable and will set forth such other
information necessary to enable the Trustee, on behalf of the Company, to pay
such Additional Amounts to Holders on the payment date. Whenever in
this Indenture there is mentioned, in any context, the payment of principal
(and
premium, if any), Redemption Price, Change in Control Purchase Price, Offered
Price, interest or any other amount payable under or with respect to any
Security such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment
of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such
express mention is not made (if applicable).
The
obligations of the Company under this Section 1021 shall survive the termination
of this Indenture and the payment of all amounts under or with respect to the
Securities.
Section
1022. Statement as to Compliance.
The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year ending after the date hereof (or within such shorter time period
as
may be required by the Trust Indenture Act) and otherwise upon the demand of
the
Trustee, a brief certificate of its principal executive officer, principal
financial officer or principal accounting officer stating whether, to such
officer’s knowledge, the Company is in compliance with all covenants and
conditions to be complied with by it under this Indenture and, prior to the
Release Date, the Collateral Documents. For purposes of this Section
1022, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture or the Collateral
Documents.
102
When
a
Default has occurred and is continuing or if the Trustee, any Holder or the
trustee for or the holder of any other evidence of Debt of the Company or any
Restricted Subsidiary gives any notice or takes any other action with respect
to
a claimed default (other than with respect to Debt in the principal amount
of
less than Cdn$10,000,000), the Company shall deliver to the Trustee an Officers’
Certificate specifying such Default, notice or other action within 10 Business
Days of its occurrence.
The
Company shall furnish to the Trustee, upon the demand of the Trustee, evidence,
in the form required by the Trustee, of any action required or permitted to
be
taken by the Company under this Indenture.
Section
1023. Subordination Arrangements
(i) At
the time this Indenture is entered into, each of the Company, the Restricted
Subsidiaries, the Trustee, the 2012 Note Trustee and the Subordinated Debenture
Trustee shall have entered into the Subordination Agreement.
(ii) The
Company and any Restricted Subsidiaries, to the extent any of them is an obligor
under Inter-Company Deeply Subordinated Debt or Inter-Company Subordinated
Debt
from time to time, will hold in trust for the benefit of the Trustee and the
Holders the rights and benefits of the provisions substantially in the form
of
Exhibits A and B hereto, which provisions shall be incorporated into agreements
or instruments evidencing Inter-Company Deeply Subordinated Debt and
Inter-Company Subordinated Debt, respectively.
(iii) For
greater certainty, notwithstanding the provisions of any Inter-Company Deeply
Subordinated Debt, any Inter-Company Subordinated Debt, any provisions thereof
as may be incorporated in any document, the Subordination Agreement or any
other
agreement pursuant to which the Trustee or the Holders are or may become
entitled to receive from holders of subordinated indebtedness of the Company
payments by way of turn-over (“subordination documents”), neither the Trustee
nor the Holders shall collect, claim any right to collect, accept or receive
any
amounts (the “turnover amounts”), whether in cash, property or otherwise,
pursuant to any subordination document unless a Default or Event of Default
shall have occurred and be continuing. In the event that
notwithstanding the provisions of this Section 1023(iii), the Holders or the
Trustee shall receive or collect any turnover amounts, such turnover amounts
shall be received and held in trust for and shall be paid over to such holders
of subordinated indebtedness or the liquidating agent or other Person who shall
have made such payment on their behalf under the subordination
documents. Any such turnover amounts received by the Trustee or any
Holder which the Trustee or such Holder is required to pay over to such holders
of subordinated indebtedness or the liquidating agent or other Person who shall
have made such payment on their behalf shall in no circumstances be deemed
to be
a payment on account of the Securities.
103
Section
1024. Waiver of Certain Covenants.
The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Sections 1005 through 1020 if, before or after the time
for such compliance, the Holders of a majority in principal amount of the
Securities at the time Outstanding shall, by Act of such Holders, 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.
Section
1025. Suspension of Covenants.
(a) During
any period of time (a “Suspension Period”) that (i) the ratings assigned to the
Securities by at least two of the three Rating Agencies are Investment Grade
Ratings and (ii) no Default or Event of Default has occurred and is continuing
under this Indenture, the Company and its Restricted Subsidiaries will not
be
subject to Sections 1008 (except to the extent applicable under Section 1015),
1009, 1010, 1011 (except to the extent applicable under Section 1015), 1013,
1014, 1016 and 801(c) (collectively, the “Suspended Covenants”).
(b) In
the event that the Company and the Restricted Subsidiaries are not subject
to
the Suspended Covenants with respect to the Securities, for any period of time
as a result of paragraph (a) of this Section and subsequently, at least two
of
the three Ratings Agencies withdraw their ratings on the Securities or assign
the Securities a rating below the required Investment Grade Ratings, then the
Suspension Period shall immediately terminate and the Company and the Restricted
Subsidiaries will thereafter again be subject to the Suspended Covenants for
the
benefit of the Securities and the Company shall notify the Trustee in writing
thereof. Compliance with the Suspended Covenants following their
reinstatement with respect to Restricted Payments made after the time of such
withdrawal or assignment will be calculated in accordance with the terms of
Section 1010 as if such Section had been in effect during the entire period
of
time from the date of this Indenture.
(c) Notwithstanding
the foregoing, neither (i) the continued existence following the termination
of
the Suspension Period of facts and circumstances or obligations that were
incurred or otherwise came into existence during a Suspension Period nor (ii)
the performance of any such obligations, including the consummation of any
transaction pursuant to, and on materially the same terms as, a contractual
agreement in existence prior to the termination of the Suspension Period, shall
constitute a breach of any covenant set forth in this Indenture or cause a
Default or Event of Default thereunder; provided that (1) the Company
and its Restricted Subsidiaries did not incur or otherwise cause such facts
and
circumstances or obligations to exist in anticipation of a withdrawal or
downgrade below an Investment Grade Rating and (2) the Company did not
reasonably believe that such incurrence or actions would result in such
withdrawal or downgrade. For purposes of clause (ii) above, any
increase in the consideration to be paid by the Company or any Restricted
Subsidiary pursuant to an amendment or modification to the terms of an existing
obligation following the termination of the Suspension Period that does not
exceed 10% of the consideration that was to be paid prior to such amendment
or
modification shall not be deemed to be a “material” amendment or
modification. For purposes of clauses (1) and (2) above, anticipation
and reasonable belief may be determined by the Company and shall be conclusively
evidenced by a Board Resolution to such effect adopted by the Board of
Directors. The Board of Directors in making its determination may,
but need not, consult with the Rating Agencies.
104
Section
1026. Release of Security.
(a) 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 the Company with similar
release provisions, (A) no Debt of the Company would be outstanding and (B)
there would be no availability to the Company 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 this Indenture, then, without the consent of the
Holders, the Company may permanently terminate the Lien of the Pledge Agreement
or any Collateral Document and any other Lien on the Deed of Trust
Collateral. On the Release Date, the provisions of Article Twelve of
this Indenture shall terminate and have no further force or effect.
(b) The
Company shall notify the Rating Agencies and the Trustee in writing of its
intention to exercise its option to release the collateral at least 45 days
prior to the proposed date of such release (the “Release Date”). In
order to effect the release of the security, on the proposed Release Date the
Company shall deliver to the Trustee an Officers’ Certificate stating that (A)
each of the conditions specified above has been satisfied and (B) the Company
has not been notified by the Rating Agencies that the ratings assigned to the
Securities will be downgraded as a result of the release of the security such
that the ratings assigned to the Securities by at least two of the three Rating
Agencies will be below Investment Grade. Such Officers’ Certificate
shall be dated on, or not more than one day prior to, the Release
Date.
(c) As
soon as practicable after the occurrence of the Release Date, the Trustee will,
upon Company Order and at the Company’s expense, (i) return to the Company all
Collateral in the Trustee’s possession as shall not have been sold or otherwise
applied pursuant to the terms of the Lien of the Pledge Agreement and any
Collateral Document and any other Lien on the Deed of Trust Collateral and
(ii)
promptly execute and deliver further instruments and documents, and take all
further actions, that may be necessary or desirable, or that the Company may
reasonably request, in order to evidence the termination of the Lien of the
Pledge Agreement and any Collateral Document and any other Lien on the Deed
of
Trust Collateral. As soon as practicable after the Release Date, but
in no event later than five days after such Release Date, the Company shall
cause a notice of the occurrence of such Release Date to be sent to (i) the
Dow
Xxxxx News Service or similar business news service in the United States and
(ii) the Canada News Wire Ltd. service or similar business news wire
service in Canada.
105
Section
1027. Registration of Security Interest Created by Pledge
Agreement.
The
Company shall:
(i) register,
or cause to have registered, the security interests created by the Pledge
Agreement under the Personal Property Security Act (Ontario) (the
“PPSA”) immediately upon the registry for the PPSA becoming available for
registration following the conclusion of the strike (the “OPSEU Strike”) by
members of the Ontario Public Service Employees’ Union and the processing
of, the backlog
of registrations that the OPSEU Strike has created (the “Registry Availability
Time”);
(ii) conduct,
or cause to have conducted, the searches (the “Updated Searches”) against the
Company and its Restricted Subsidiaries that it was not able to conduct because
of the OPSEU Strike immediately upon the registry for the PPSA becoming
available for searches following the conclusion of the OPSEU Strike and the
processing of the backlog of search requests that the OPSEU Strike has created
(the “Search Availability Time”); and
(iii) on
or prior to the date that is the tenth day following the later to occur of
the
Registry Availability Time and the Search Availability Time, deliver to the
Trustee a signed opinion of Torys LLP, Canadian counsel to the Company (A)
reporting on the Updated Searches substantially in the form of item (xx) of
Exhibit A to the Purchase Agreement and (B) opining that the Pledge Agreement
or
notice thereof has been registered in all places in the Province of Ontario
where such registration is necessary or desirable to preserve, protect or
perfect the security interests created thereby, in favor of the Trustee, in
the
collateral described therein (the details of all such registrations, filings
or
recordings to be set forth in an appendix to such counsel’s
opinion).
106
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
Section
1101. Right of Redemption.
(a) The
Securities may be redeemed, at the election of the Company, as a whole or from
time to time in part, at any time, subject to the conditions and at the
Redemption Price specified in the form of Security set forth in Article Two
herein, together with accrued interest to the Redemption Date.
(b) If,
as a result of any change in, or amendment to, the laws (or any regulations
promulgated thereunder) of Canada (or any political subdivision or taxing
authority thereof or therein), or any change in, or amendment to, any official
position regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on
or
after April 25, 2002, the Company has become or would become obligated to pay,
on the next date on which any amount would be payable under or with respect
to
the Securities, any Additional Amounts in accordance with Section 1021 hereof,
then the Company may, at its option, redeem the Securities, as a whole but
not
in part, at a redemption price equal to 100% of their principal amount, together
with interest accrued thereon to the Redemption Date; provided that the
Company determines, in its business judgment, that the obligation to pay such
Additional Amounts cannot be avoided by the use of reasonable measures available
to the Company not including substitution of the obligor under the
Securities.
Section
1102. Applicability of Article.
Redemption
of Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
Section
1103. Election to Redeem; Notice to Trustee.
The
election of the Company to redeem the Securities pursuant to Section 1101 shall
be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by it (unless a shorter notice period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of
the principal amount of Securities to be redeemed.
Section
1104. Selection by Trustee of Securities to Be
Redeemed.
If
less
than all the Securities are to be redeemed, the particular Securities or
portions thereof to be redeemed shall be selected not more than 60 days and
not
less than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, on a pro rata
basis, and the amounts to be redeemed may be equal to U.S.$1,000 or any integral
multiple thereof.
107
The
Trustee shall promptly notify the Company and the Security Registrar in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For
all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Securities shall relate, in the case of
any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be
redeemed.
Section
1105. Notice of Redemption.
Notice
of
redemption shall be given by first-class mail, postage prepaid, mailed not
less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of
Securities to be redeemed, at its address appearing in the Security
Register.
All
notices of redemption shall state:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) if
less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of a Security to be redeemed in part, the principal amount)
of
the particular Securities to be redeemed;
(d) that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security, and that interest thereon shall cease to accrue on and
after
said date; and
(e) the
place or places where such Securities are to be surrendered for payment of
the
Redemption Price.
Notice
of
redemption of Securities to be redeemed at the election of the Company shall
be
given by the Company or, at its request, by the Trustee in the name and at
the
expense of the Company.
Section
1106. Deposit of Redemption Price.
On
or
prior to any Redemption Date, the Company shall deposit or cause to be deposited
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in same day funds (or New York Clearing House funds if such deposit
is
made prior to the applicable Redemption Date) sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date.
108
Section
1107. Securities Payable on Redemption Date.
Notice
of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price together with accrued interest to the Redemption
Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
on
the relevant Regular Record Dates according to the terms and the provisions
of
Section 309.
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal thereof (and premium, if any, thereon) shall, until
paid, bear interest from the Redemption Date at the rate borne by such
Security.
Section
1108. Securities Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered at the office
or agency of the Company maintained for such purpose pursuant to Section 1002
(with, if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company, the Security Registrar or the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and, upon Company Order, the Trustee shall authenticate and deliver
to
the Holder of such Security, without service charge, a replacement Security
or
Securities, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
Section
1109. Effect of Change in Control Purchase
Notice.
Upon
receipt by the Company of the Change in Control Purchase Notice specified in
Section 516(b), the Holder of the Security 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 Security. 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 516(b) have been satisfied) and (b) the time of delivery of the Security
to the Paying Agent at the office of the Paying Agent or to the office or agency
referred to in Section 1002 by the Holder thereof in the manner required by
Section 516(b).
109
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 Security
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 1002
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:
(1) the
certificate number of the Security in respect of which such notice of withdrawal
is being submitted,
(2) the
principal amount of the Security (which shall be U.S.$1,000 or an integral
multiple thereof) with respect to which such notice of withdrawal is being
submitted, and
(3) the
principal amount, if any, of such Security (which shall be U.S.$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
Securities with respect to which a Change in Control Purchase Notice has been
withdrawn in compliance with this Indenture.
Section
1110. Deposit of Change in Control Purchase
Price.
No
later
than 11:00 a.m. (New York 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 1003) an amount
of cash sufficient to pay the aggregate Change in Control Purchase Price of
all
the Securities or portions thereof that are to be purchased as of the Change
in
Control Purchase Date.
Section
1111. Securities Purchased in Part.
Any
Security that is to be purchased only in part shall be surrendered to the Paying
Agent at the office of the Paying Agent or to the office or agency referred
to
in Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and, upon
Company Order, the Trustee shall authenticate and deliver to the Holder of
such
Security, without service charge, a replacement Security or Securities, of
any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the principal amount of the Security
so
surrendered that is not purchased.
Section
1112. Repayment to the Company.
As
provided in Section 1003, the Trustee and the Paying Agent shall return to
the
Company any cash that remains unclaimed, together with interest or dividends,
if
any, thereon (subject to the provisions of Section 607), 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 1110 exceeds the aggregate Change in Control
Purchase Price of the Securities 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 or dividends,
if
any, thereon (subject to the provisions of Section 607).
110
ARTICLE
TWELVE
SECURITY
DOCUMENTS
The
provisions of this Article Twelve shall continue in effect until the occurrence
of the Release Date, at which time they shall terminate and have no further
force or effect.
Section
1201. Pledge Agreement.
As
general and continuing collateral security for the due repayment and
satisfaction of all present and future indebtedness, liabilities and obligations
of any kind whatsoever, under, in connection with or relating to this Indenture,
including without limitation, the Securities and any ultimate unpaid balance
thereof and to secure the due performance of all of the other present and future
obligations of the Company to the Trustee (including obligations under Section
607 of this Indenture) and the Holders of the Securities under this Indenture
and the Securities, the Company has assigned, deposited with and pledged the
Trust Bond to the Trustee pursuant to the Pledge Agreement. The
Company covenants and agrees that it has full right, power and lawful authority
to grant, bargain, sell, release, convey, hypothecate, assign, mortgage, pledge,
transfer and confirm the property constituting the Trust Estate, in the manner
and form done in the Pledge Agreement or intended to be done, free and clear
of
all liens, pledges, charges and encumbrances whatsoever, and that (a) it will
forever warrant and defend the title to the same against the claims of all
persons whatsoever, (b) it will execute, acknowledge and deliver to the Trustee
such further assignments, transfers, assurances or other instruments as the
Trustee may require or request, and (c) it will do or cause to be done all
such
acts and things as may be necessary or proper, or as may be required by the
Trustee, to assign and confirm to the Trustee the Trust Estate, or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the
Securities. The Company further covenants and agrees that the Pledge
Agreement creates the direct and valid first lien on the Trust Bond which it
purports to create.
Section
1202. Recording.
The
Company will cause, at its own expense, this Indenture, the Pledge Agreement,
the Deed of Trust and any other Collateral Document, and all amendments or
supplements thereto, to be registered, recorded and filed and/or re-recorded
and/or re-filed and/or renewed in such manner and in such place or places,
if
any, as may be required
by law in order fully to preserve and protect the Liens of the Collateral
Documents and all parts of the Trust Estate and to effectuate and preserve
the
security of the Holders and all rights of the Trustee.
111
The
Company shall furnish to the Trustee:
(i) promptly
after the execution and delivery of this Indenture or other instrument of
further assurance, an Opinion of Counsel stating that, in the opinion of such
counsel, this Indenture, the Pledge Agreement and all other instruments of
further assurance have been properly recorded, registered and filed to the
extent necessary to make effective the Lien intended to be created by the Pledge
Agreement, and reciting the details of such action or referring to prior
Opinions of Counsel in which such details are given, and stating that all
statements have been executed and filed that are necessary fully to preserve
and
protect the rights of the Holders and the Trustee hereunder and under the Pledge
Agreement, or stating that, in the opinion of such counsel, no such action
is
necessary to make such Lien effective; and
(ii) by
November 15 in each year beginning with the year 2002, an Opinion of Counsel,
dated as of such date, either stating that, in the opinion of such Counsel,
such
action has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Indenture, the Pledge
Agreement and of all supplemental indentures, financing statements, continuation
statements or other instruments of further assurances as is necessary to
maintain the Lien of the Pledge Agreement and reciting the details of such
action or referring to prior Opinions of Counsel in which such details are
given, and stating that all financing statements and continuation statements
have been executed and filed that are necessary fully to preserve and protect
the rights of the Holders and the Trustee hereunder and under the Pledge
Agreement, or stating that, in the opinion of such counsel, no such action
is
necessary to maintain such Lien.
Section
1203. Custody of Trust Estate.
The
Trustee shall hold in its possession the Trust Bond constituting the Trust
Estate, except as from time to time any documents or instruments may be required
for recordation or re-recordation or other actions, suits or proceedings
relating to the Trust Estate, or for the purpose of enforcing or realizing
upon
any right or value thereby represented. The Trustee may, from time to
time, in its sole discretion, for the purpose of convenient location of the
Trust Bond, appoint one or more agents to hold physical custody, for the account
of the Trustee, of the Trust Bond.
Section
1204. Suits to Protect the Trust Estate.
The
Trustee shall have power to institute and to maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Trust Estate by any
acts which may be unlawful or in violation of the Pledge Agreement or this
Indenture, and such suits and proceedings as the Trustee may deem expedient
to
preserve or protect its interests and the interests of the Holders in the Trust
Estate and in the principal, interest, issues, profits, rents, revenues and
other income arising therefrom, including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional
or
otherwise invalid, if the enforcement of, or compliance with, such enactment,
rule or order would impair the security hereunder or be prejudicial to the
interests of the Holders or the Trustee. The Trustee shall also have
authority to exercise any rights or powers conferred on the Trustee, as the
holder of the Trust Bond, under the Deed of Trust.
112
Section
1205. Release upon Termination of the Company’s
Obligations.
(a) In
the event that the Company delivers an Officers’ Certificate certifying that all
Indenture Obligations have been satisfied and discharged by complying with
the
provisions of Article Four, the Trustee shall deliver to the Deed Trustee a
notice stating that the Trustee, on behalf of the Holders, disclaims and gives
up any and all rights it has in or to the Trust Bond and the Deed of Trust
Collateral, and any rights it has under the Collateral Documents, and, upon
and
after the receipt by the Deed Trustee of such notice, the Trustee shall return
the Trust Bond to the Deed Trustee for cancellation, and the Deed Trustee shall
not be deemed to hold any Deed of Trust Collateral on behalf of the Trustee
for
the benefit of the Holders.
(b) Any
release of any portion of the Trust Bond or the Deed of Trust Collateral made
strictly in compliance with the provisions of this Section 1205 shall not be
deemed to impair the Liens on the Trust Bond or the Deed of Trust Collateral
created by the Collateral Documents in contravention of the provisions of this
Indenture.
*
*
*
113
This
Indenture may be signed in any number of counterparts with the same effect
as if
the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
Indenture.
IN’
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed all as of the day and year first above written.
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XXXXXX
CABLE INC.,
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By
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Name:
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By
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Name:
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Title:
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JPMORGAN
CHASE BANK.,
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By
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Name:
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Title:
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114
EXHIBIT
A
PROVISIONS
FOR INTER-COMPANY DEEPLY SUBORDINATED DEBT
1.1 Terms
defined in the Indenture in respect of the 8.750% Senior (Secured) Second
Priority Debentures due 2032 dated as of April 30, 2002 (the “Indenture”)
between Xxxxxx Cable Inc. (the “Company”) and JPMorgan Chase Bank, as trustee
(the “Trustee”) and used herein have the meanings attributed to such terms in
the Indenture. As used herein, the term “Relevant Obligor” means the obligor
creating, incurring, assuming or suffering to exist any Inter-Company Deeply
Subordinated Debt. The term “Obligor” means any of the Company and
any Restricted Subsidiary.
2.1 Definition
of Senior Indebtedness. “Senior Indebtedness” means at any date all
indebtedness under the Securities and the Indenture (including, without
limitation, all amounts payable pursuant to Section 607 of the Indenture,
principal, interest, Additional Amounts, premium, fees, penalties, indemnities
and “post-petition interest” in bankruptcy).
2.2 Agreement
to Subordinate. The indebtedness evidenced by this agreement shall
constitute Inter-Company Deeply Subordinated Debt and the Relevant Obligor
and
the relevant creditor who is owed such indebtedness (the “Relevant Creditor”)
agree that such indebtedness (including, without limitation, principal,
interest, premium, fees, penalties, indemnities and “post-petition interest” in
bankruptcy) is subordinate and junior in right of payment, to the extent and
in
the manner provided in this Section 2, to the prior payment in full of all
Senior Indebtedness.
The
Relevant Obligor agrees to hold the benefit of these provisions as incorporated
in this agreement or this instrument as trustee for and on behalf of the Trustee
and the Holders of the Securities and the Relevant Obligor shall be a party
to
the agreement or instrument in such capacity and shall give the Relevant
Creditor (and the Relevant Obligor on its own behalf) one dollar as valuable
consideration in respect of the agreements given to it in such capacity as
trustee.
The
provisions of this Section 2 are for the benefit of the holders from time
to time of Senior Indebtedness, and such holders are hereby made obligees
hereunder to the same extent as if their names were written herein as such,
and
they (collectively or singly) may proceed to enforce such
provisions.
2.3 Liquidation;
Dissolution; Bankruptcy. (a) Upon any distribution of assets of the
Relevant Obligor to creditors or upon a liquidation or dissolution or winding-up
of the Relevant Obligor or in a bankruptcy, arrangement, liquidation,
reorganization, insolvency, receivership or similar case or proceeding relating
to the Relevant Obligor or its property or other marshalling of assets of the
Relevant Obligor:
(i) the
holders of Senior Indebtedness shall be entitled to receive payment in full
of
all Senior Indebtedness before the Relevant Creditor shall be entitled to
receive any payment of principal of or interest on, or any other amount owing
in
respect of, the indebtedness evidenced by this agreement or
instrument;
(ii) until
payment in full of all Senior Indebtedness, any distribution of assets of any
kind or character to which the Relevant Creditor would be entitled but for
this
Section 2 shall be paid by the Relevant Obligor or by any receiver, trustee
in bankruptcy, liquidating trustee, agents or other Persons making such payment
or distribution to, or if received by the Relevant Creditor shall be held for
the benefit of and shall be forthwith paid or delivered to, the holders of
Senior Indebtedness, as their interests may appear; and
(iii) in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Relevant Obligor of any kind or character, whether in cash,
property or securities, shall be received by the Relevant Creditor before all
Senior Indebtedness is paid in full, such payment or distribution shall be
held
in trust for the benefit of and shall be paid over to the holders of Senior
Indebtedness, as their interests may appear, for application to the payment
of
all Senior Indebtedness until all Senior Indebtedness shall have been paid
in
full after giving effect to any concurrent payment or distribution to the
holders of Senior Indebtedness in respect of such Senior
Indebtedness.
For
purposes hereof, the words “cash, property or securities” shall be deemed not to
include securities of the Relevant Obligor or any other Person provided for
by a
plan of reorganization or readjustment, the payment of which is subordinated
at
least to the extent provided herein with respect to the indebtedness evidenced
by this agreement or instrument, to the payment of all Senior Indebtedness
which
may at the time be outstanding; provided, however, that (i) all
Senior Indebtedness is assumed by the new Person, if any, resulting from any
such reorganization or readjustment, and (ii) the rights of the holders of
the Senior Indebtedness are not, without the consent of such holders, altered
by
such reorganization or readjustment.
(b) If
the Relevant Creditor does not file proper claims or proofs of claim in the
form
required in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Relevant Obligor or its property prior to
45 days before the expiration of the time to file such claims, then
(i) upon the request of the Trustee, the Relevant Creditor shall file such
claims and proofs of claim in respect of the indebtedness evidenced by this
agreement or instrument and execute and deliver such powers of attorney,
assignments and proofs of claim as may be directed by the Trustee to enable
it
to enforce any and all claims upon or in respect of the indebtedness evidenced
by this agreement or instrument and to collect and receive any and all payments
or distributions which may be payable or deliverable at any time upon or in
respect of the indebtedness evidenced by this agreement or instrument, and
(ii) whether or not the Trustee shall take the action described in
clause (i) above, the Trustee shall nevertheless be deemed to have such
powers of attorney as may be necessary to file appropriate claims and proofs
of
claim and otherwise exercise the powers described above.
For
purpose of this Section 2, “payment in full”, with respect to Senior
Indebtedness, means the receipt on an irrevocable basis of cash in an amount
equal to the unpaid principal amount of the Senior Indebtedness and premium,
if
any, and interest thereon to the date of such payment, together with all other
amounts owing with respect to such Senior Indebtedness.
2
2.4 Senior
Indebtedness. (a) The Relevant Obligor shall not pay any principal,
interest or premium on the indebtedness evidenced by this agreement or
instrument, acquire the indebtedness evidenced by this agreement or instrument
for cash or property other than capital stock of the Relevant Obligor, or make
any loans, advances or extensions of credit to the Relevant Creditor with
respect to the indebtedness evidenced by this agreement or instrument, or pay
or
acquire any obligation or liability upon which the Relevant Creditor is the
obligor, and the Relevant Creditor shall not demand, accept or receive any
payment of any principal, interest or premium on the indebtedness evidenced
by
this agreement or instrument or any such cash, property other than capital
stock
of the Relevant Obligor, loans, advances or extensions of credit at any time
when:
(i) a
default in the payment of any Senior Indebtedness has occurred, whether at
maturity or at a date fixed for prepayment or by declaration of an acceleration
or otherwise, and such default either (A) shall be continuing or
(B) shall not have been cured and shall have been waived by the holders of
such Senior Indebtedness on the express condition that payments on and
acquisitions of the indebtedness evidenced by this agreement or instrument
by
the Relevant Obligor be prohibited pursuant to this clause (i);
or
(ii) any
default (other than as described in clause (i) of this Section 2.4(a))
under any agreement or instrument evidencing Senior Indebtedness shall have
occurred and either (x) shall be continuing or (y) shall not have been
cured and shall have been waived by the holders of such Senior Indebtedness
on
the express condition that payments on or acquisition of the indebtedness
evidenced by this agreement or instrument be prohibited pursuant to this
clause (ii); or
(iii) such
payment of principal, interest or premium on the indebtedness evidenced by
this
agreement or instrument, or acquisition of the indebtedness evidenced by this
agreement or instrument for cash or property other than capital stock of the
Relevant Obligor would cause a Default or Event of Default under the
Indenture.
(b) If
at any time when a payment on the indebtedness evidenced by this agreement
or
instrument is due, the Relevant Obligor would (but for this subsection (b))
be
prohibited by Section 2.4(a) from making such payment, the Relevant Obligor
shall nonetheless be obligated to make such payment if all of the holders of
Senior Indebtedness with respect to which any default shall have occurred shall
have consented thereto in writing.
(c) If,
notwithstanding the foregoing, any payment of any kind or character, whether
in
cash, property or otherwise, shall be received by the Relevant Creditor before
all Senior Indebtedness is paid in full, such payment shall be held in trust
for
the benefit of and shall be paid over to the holders of Senior Indebtedness,
as
their interests may appear, for application to the payment of all Senior
Indebtedness until all Senior Indebtedness shall have been paid in full after
giving effect to any concurrent payment to the holders of Senior Indebtedness
in
respect of such Senior Indebtedness.
3
2.5 Subrogation.
After all Senior Indebtedness is paid in full and until the
indebtedness evidenced by this agreement or instrument is paid in full, the
Relevant Creditor shall be subrogated to the rights of the holders of Senior
Indebtedness. For purposes of this Section 2.5, a distribution made under
this Section 2 to holders of Senior Indebtedness which otherwise would have
been made to the Relevant Creditor, or a payment made by the Relevant Creditor
to holders of Senior Indebtedness in respect of a turnover obligation under
this
Section 2, is not, as between the Relevant Obligor and such holder, a
payment by the Relevant Obligor on Senior Indebtedness.
2.6 Relative
Rights. This Section 2 defines the relative rights of the Relevant
Creditor and the holders of Senior Indebtedness. Nothing in this Section 2
shall:
(a) impair,
as between the Relevant Obligor and the Relevant Creditor, the obligation of
the
Relevant Obligor, which is absolute and unconditional, to pay the principal
of
and interest on the indebtedness evidenced by this agreement or instrument
in
accordance with its terms; or
(b) affect
the relative rights of the Relevant Creditor and creditors of the Relevant
Obligor other than the holders of Senior Indebtedness; or
(c) affect
the relative rights of the holders of Senior Indebtedness among themselves;
or
(d) prevent
the Relevant Creditor from exercising its available remedies upon a default,
subject to Section 2.4 hereof and the rights of the holders of Senior
Indebtedness to receive cash, property or other assets otherwise payable to
the
Relevant Creditor.
2.7 Subordination
May Not Be Impaired. (a) No right of any holder of Senior Indebtedness
to enforce the subordination of indebtedness evidenced by this agreement or
instrument shall in any way be prejudiced or impaired by any act or failure
to
act by the Relevant Obligor or by any act or failure to act in good faith,
by
any such holder or the Trustee, or by any non-compliance by the Relevant Obligor
with the terms, provisions or covenants herein, regardless of any knowledge
thereof which any such holder or the Trustee may have or be otherwise charged
with. Neither the subordination of the indebtedness represented by this
agreement or instrument as herein provided nor the rights of the holders of
Senior Indebtedness with respect hereto shall be affected by any extension,
renewal or modification of the terms, or the granting of any security in respect
of, any Senior Indebtedness or any exercise or non-exercise of any right, power
or remedy with respect thereto.
(b) The
Relevant Creditor agrees that all indebtedness evidenced by this agreement
or
instrument will be unsecured by any Lien upon or with respect to any property
of
the Relevant Obligor, and that the Relevant Creditor will not permit to subsist
any Liens upon its claim in respect of or upon the proceeds of the indebtedness
represented by this agreement or instrument.
(c) The
Relevant Creditor agrees not to exercise any offset or counterclaim or similar
right in respect of the indebtedness evidenced by this agreement or instrument
except to the extent payment of such indebtedness is permitted and will not
assign or otherwise dispose of this agreement or instrument or the indebtedness
which it evidences unless the assignee or acquiror, as the case may be, agrees
to be bound by the terms of this Section 2.
4
2.8 Relevant
Creditor Entitled to Rely. Upon any payment or distribution pursuant to
this Section 2, the Relevant Creditor shall be entitled to rely
(i) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 2.3 are pending,
(ii) upon a certificate of the liquidating trustee or agent or other person
in such proceedings making such payment or distribution to the Relevant Creditor
or its representative, if any, or (iii) upon a certificate of the Trustee
or any representative (if any) of the holders of Senior Indebtedness for the
purpose of ascertaining the persons entitled to participate in such payment
or
distribution, the holders of the Senior Indebtedness and other indebtedness
of
the Relevant Obligor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or
to
this Section 2.
3.1 Miscellaneous.
(a) The provisions contained herein may not be amended or modified
in
any respect, nor may any of the terms or provisions hereof be waived, except
by
an instrument signed by the Relevant Obligor, the Relevant Creditor and the
Trustee.
(b) The
provisions contained herein shall be binding upon each of the parties to this
agreement or instrument and their respective successors and assigns and shall
inure to the benefit of the Trustee and each and every holder of Senior
Indebtedness and their respective successors and assigns.
(c) The
provisions contained herein shall be governed by and construed in accordance
with the laws of the State of New York.
(d) The
Relevant Creditor and the Relevant Obligor each hereby irrevocably agrees that
any suits, actions or proceedings arising out of or in connection with the
provisions contained herein may be brought in any state or federal court sitting
in The City of New York or any court in the Province of Ontario and submits
and
attorns to the non-exclusive jurisdiction of each such court.
5
EXHIBIT
B
PROVISIONS
FOR INTER-COMPANY SUBORDINATED DEBT
1. Terms
defined in the Indenture in respect of the 8.750% Senior (Secured) Second
Priority Debentures due 2032 dated as of April 30, 2002 (the “Indenture”)
between Xxxxxx Cable Inc. (the “Company”) and JPMorgan Chase Bank, as trustee
(the “Trustee”) and used herein have the meanings attributed to such terms in
the Indenture. As used herein, the term “Relevant Obligor” means the obligor
creating, incurring, assuming or suffering to exist any Inter-Company
Subordinated Debt. The term “Obligor” means any of the Company and any
Restricted Subsidiary.
2. The
indebtedness evidenced by this agreement shall constitute Inter-Company
Subordinated Debt and the Relevant Obligor and the relevant creditor who is
owed
such indebtedness (the “Relevant Creditor”) agree that the payment of the
principal of (and premium, if any), and interest on such indebtedness is
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all amounts from time to
time owing to the Holders of the Securities (which amounts are hereinafter
called “Senior Secured Debt”). The Relevant Obligor agrees to hold the benefit
of these provisions as incorporated in this agreement or this instrument as
trustee for and on behalf of the Trustee and the Holders of the Securities
and
the Relevant Obligor shall be a party to the agreement or instrument in such
capacity and shall give the Relevant Creditor (and the Relevant Obligor on
its
own behalf) one dollar as valuable consideration in respect of the agreements
given to it in such capacity as trustee.
3. For
purposes hereof, the words “cash, property or securities” shall not be deemed to
include securities of the Relevant Obligor or any other Person provided for
by a
plan of reorganization or readjustment, the payment of which is subordinated,
at
least to the extent provided herein with respect to the indebtedness owing
to
the Relevant Creditor, to the payment of all Senior Secured Debt which may
at
the time be outstanding; provided, however, that (i) all Senior
Secured Debt is assumed by the new Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the Holders of the
Securities are not, without the consent of the Holders of the Securities,
altered by such reorganization or readjustment.
4. Upon
any distribution of assets of the Relevant Obligor or upon any dissolution,
winding up, arrangement, liquidation, reorganization, bankruptcy, insolvency
or
receivership or similar proceeding relating to the Relevant Obligor or its
property or other marshalling of assets of the Relevant Obligor:
(a) the
Holders of the Securities shall first be entitled to receive payment in full
of
all Senior Secured Debt including, without limitation, the principal thereof
and
premium, if any, and the interest due thereon, before the Relevant Creditor
is
entitled to receive any payment of the principal of and premium, if any, and
interest on any Indebtedness owing to it; and
(b) any
payment or distribution of assets of the Relevant Obligor of any kind or
character, whether in cash, property or securities, to which the Relevant
Creditor would be entitled except for the provisions hereof shall be paid by
the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the Holders of the Securities to the extent necessary
to pay in full all Senior Secured Debt remaining unpaid after giving effect
to
any concurrent payment or distribution to the Holders of the Securities in
respect of such Senior Secured Debt; and
(c) in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Relevant Obligor of any kind or character, whether in cash,
property or securities, shall be received by the Relevant Creditor before all
Senior Secured Debt is paid in full, such payment or distribution shall be
held
in trust for the benefit of and shall be paid over to the Holders of the
Securities for application to the payment of all Senior Secured Debt remaining
unpaid until all Senior Secured Debt shall have been paid in full after giving
effect to any concurrent payment or distribution to the Holders of the
Securities in respect of such Senior Secured Debt.
5. Upon
any payment or distribution of assets of the Relevant Obligor referred to in
this agreement or instrument, the Relevant Creditor shall be entitled to rely
(i) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 4 are pending,
(ii) upon a certificate of the liquidating trustee or agent or other person
in such proceedings making such payment or distribution to the Relevant Creditor
or its representative, if any, or (iii) upon a certificate of the Trustee
or any representative (if any) of the Holders of the Securities for the purpose
of ascertaining the identity of the Holders of the Securities and the Trustee,
the holders of other Senior Debt of the Relevant Obligor, the amount thereof
or
payable thereon, the amount or amounts paid or distributed thereon and all
other
facts pertinent thereto or to the subordination contemplated by this agreement
or instrument.
6. Nothing
contained herein is intended to or shall impair, as between the Relevant Obligor
and its creditors (other than the Holders of the Securities as regards the
Senior Secured Debt and the Relevant Creditor) the obligation of the Relevant
Obligor, which is unconditional and absolute, to pay to the Relevant Creditor
the principal of and premium, if any, and interest on the Debt owing to the
Relevant Creditor as and when the same shall become due and payable in
accordance with its terms or affect the relative rights of the Relevant Creditor
and creditors of the Relevant Obligor other than the Holders of the Securities
as regards the Senior Secured Debt, nor shall anything herein or therein prevent
the Relevant Creditor from exercising all remedies otherwise permitted by
applicable law upon default with respect to the Debt owing to the Relevant
Creditor subject to the rights, if any, herein of the Holders of the Securities
as regards the Senior Secured Debt in respect of cash, property or securities
of
the Relevant Obligor received upon the exercise of any such remedy.
7. Upon
the maturity of any Senior Secured Debt by lapse of time, acceleration or
otherwise, then, except as hereinafter provided, all principal of and premium,
if any, and interest on all such matured Senior Secured Debt shall first be
paid
in full or shall have first been duly provided for before any payment on account
of principal of or premium, if any, or interest owing to the Relevant Creditor
is made.
2
8. Upon
the happening of an Event of Default with respect to any Senior Secured Debt
permitting the Holders of the Securities (or any of them) to accelerate the
maturity of the Senior Secured Debt then, unless and until such Event of Default
shall have been cured or waived or shall have ceased to exist, no payment
(including, without limitation, by purchase of the Debt owing to the Relevant
Creditor or otherwise) shall be made by the Relevant Obligor with respect to
the
principal of or premium, if any, or interest on the Indebtedness owing to the
Relevant Creditor. In the event that, notwithstanding the foregoing, the
Relevant Obligor shall make any payment of principal of or premium, if any,
or
interest on the Debt owing to the Relevant Creditor after the happening of
such
an Event of Default, then, except as hereinafter otherwise provided, unless
and
until such Event of Default shall have been cured or waived or have ceased
to
exist, such payment shall be held in trust for the benefit of and, if and when
such Senior Secured Debt shall have become due and payable, shall be paid over
to the Holders of the Securities and applied to the payment of all Senior
Secured Debt remaining unpaid until all such Senior Secured Debt shall have
been
paid in full.
9. The
fact that any payment to the Relevant Creditor is prohibited hereby shall not
prevent the failure to make such payment from being an event of default as
regards such Relevant Creditor.
10. Nothing
contained herein or in any agreement, indenture or other instrument in respect
of the Debt owing to the Relevant Creditor shall, subject to
Section 7:
(a) prevent
the Relevant Obligor at any time from making payments at any time of the
principal of and premium, if any, or interest to the Relevant Creditor on
account of Inter-Company Subordinated Debt unless:
(i) Such
payment is proposed to be made on or after the date upon which any Event of
Default or any of the events described in Section 4 has occurred in
circumstances where notice of such proposed payment shall have been given by
the
Relevant Creditor or the Company to the Trustee prior to the happening of such
Event of Default or other event; or
(ii) such
payment would otherwise occur while any proceedings in respect of the
dissolution, arrangement, winding up, liquidation, reorganization, bankruptcy,
insolvency or receivership of the Relevant Obligor are pending; or
(b) prevent
the Relevant Obligor from applying to the retirement of any Inter-Company
Subordinated Debt the proceeds of a substantially concurrent issue of other
Inter-Company Subordinated Debt or of shares of any class of the Relevant
Obligor; or
(c) except
in circumstances to which clauses (a)(i) or (ii) are applicable, require the
Relevant Creditor to pay to the Trustee or the Holders of the Securities, or
to
repay to the Relevant Obligor, any amount so paid.
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11. Unless
and until written notice shall be given to the Relevant Creditor by or on behalf
of any Holder or any representative or representatives of any Holder, including
the Trustee (it being understood that nothing herein shall create any obligation
on the part of the Trustee to give any such notice), notifying the Relevant
Creditor of the happening of an Event of Default with respect to the Senior
Secured Debt or of the existence of any other facts which would result in the
making of any payment with respect to the Debt owing to the Relevant Creditor
in
contravention of the provisions hereof, the Relevant Creditor shall be entitled
to assume that no such Event of Default has occurred or that no such facts
exist; and, with respect to any monies which may at any time be received by
the
Relevant Creditor in trust pursuant to any provisions hereof prior to the
receipt by it of such written notice, nothing herein shall prevent the Relevant
Creditor from applying such monies to the purposes for which the same were
so
received, notwithstanding the occurrence or continuance of an Event of Default
with respect to, or the existence of such facts with respect to, the Senior
Secured Debt unless the Relevant Creditor has actual knowledge to the
contrary.
12. (a)
No right of the Trustee or any Holder as regards the Senior Secured Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Relevant
Obligor or by any act or failure to act, in good faith, by any such Holder
or
the Trustee, or by any non-compliance by the Relevant Obligor with the terms,
provisions or covenants herein, regardless of any knowledge thereof which any
Holder or the Trustee may have or be otherwise charged with.
(b) The
rights of the Trustee and the Holders of Securities with respect hereto shall
not be affected by any extension, renewal or modification of the terms, or
the
granting of any security in respect of, any Senior Indebtedness or any exercise
or non-exercise of any right, power or remedy with respect thereto.
(c) The
Relevant Creditor agrees not to exercise any offset or counterclaim or similar
right in respect of the Inter-Company Subordinated Debt except to the extent
payment of such Inter-Company Subordinated Debt is permitted and will not assign
or otherwise dispose of any Inter-Company Subordinated Debt unless the assignee
or acquiror, as the case may be, agrees to be bound by the terms
hereof.
13. The
provisions contained herein
(a) may
not be amended or modified in any respect, nor may any of the terms or
provisions hereof be waived, except by an instrument signed by the Relevant
Obligor, the Relevant Creditor and the Trustee,
(b) shall
be binding upon each of the parties hereto and their respective successors
and
assigns and shall enure to the benefit of the Trustee, each and every Holder
of
the Securities and their respective successors and assigns,
(c) shall
be governed by and construed in accordance with the laws of the State of New
York.
The
Relevant Creditor and the Relevant Obligor each irrevocably agree that any
suits, actions or proceedings arising out of or in connection with the
provisions contained herein may be brought in any state or federal court sitting
in The City of New York or any court in the Province of Ontario and submits
and
attorns to the non-exclusive jurisdiction of each such court.
4
EXHIBIT
C
FORM
OF PLEDGE AGREEMENT
THIS
PLEDGE AGREEMENT made as of the 30th
day of April,
2002. BETWEEN:
XXXXXX
CABLE INC., a corporation incorporated under the
Business Corporations Act
(Ontario)
(the
“Company”)
and
JPMORGAN
CHASE BANK, a New York banking corporation, as trustee
(the
“Debenture Trustee”)
In
consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
it
is hereby covenanted, agreed and acknowledged by and between the parties hereto
as follows:
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1.
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Reference
is made to that certain indenture, of even date herewith, between
the
Company, as issuer, and the Debenture Trustee, as trustee, providing
for
the issuance of the Securities (as defined below), as the same may
be
amended, supplemented, restated or replaced from time to time (the
“Debenture Indenture”). In this Pledge Agreement, unless something in the
subject matter or context is inconsistent therewith, capitalized
terms
used but not defined herein have the respective meanings attributed
to
them in the Debenture Indenture as in effect on the date hereof,
and
“Securities” means the US$200,000,000 aggregate principal amount of 8.750%
Senior (Secured) Second Priority Debentures due 2032 of the Company
and
the Exchange Securities (as defined in the Debenture Indenture) issued
under the Debenture Indenture.
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2.
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The
Company hereby deposits with and assigns and pledges to the Debenture
Trustee the Trust Bond to be held by the Debenture Trustee pursuant
to the
provisions hereof, as trustee for and on behalf of each of the holders
of
Securities, as general and continuing collateral security for the
due
repayment and satisfaction of all present and future indebtedness,
liabilities and obligations of the Company of any kind whatsoever
under,
in connection with or relating to the Debenture Indenture, including,
without limitation, the Securities and any ultimate unpaid balance
thereof, and to secure the due performance of all other present and
future
obligations of the Company to the Debenture Trustee (including obligations
under Section 607 of the Debenture Indenture) and the holders of
Securities under the Debenture Indenture and the Securities (collectively,
the “Obligations”).
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3.
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If,
at any time, an Event of Default shall have occurred and be continuing,
the Debenture Trustee may, at any time, realize upon the Trust Bond
in the
manner and to the extent permitted by law, by sale, transfer or delivery,
and may exercise and enforce all rights and remedies of the holder
of the
Trust Bond (including, without limitation, making demand thereunder
as if
the Debenture Trustee were the absolute owner thereof) without notice
to,
consent of or control by the Company, and, except to the extent required
by law, any such right or remedy may be exercised separately or in
combination with any other right or remedy and shall be in addition
to and
not in substitution for any other rights of the Debenture Trustee
however
created; provided that the Debenture Trustee shall not be bound
to exercise any such right or remedy and shall not be liable for
any loss
which may be occasioned by any failure to do so; and provided further
that any such sale, transfer or delivery shall be on terms whereby
the Person acquiring the Trust Bond shall hold the Trust Bond subject
to
the provisions hereof.
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4.
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If
any moneys received by the Debenture Trustee as payment under the
Trust
Bond or by way of realization of the security hereby constituted
are in a
currency (the “Realization Currency”) which is different from the currency
of any of the Obligations secured hereby (the “Agreed Currency”), then, in
such event, the Debenture Trustee shall be entitled to convert all
or a
portion of such moneys as are in the Realization Currency into the
Agreed
Currency at the rate of exchange quoted by The Toronto-Dominion Bank
at
its central foreign exchange desk in its head office in Toronto at
12:00
noon (Toronto time) on the date of receipt and to apply the new amount
of
moneys received on such conversion on account of the Obligations
hereby
secured, and, in any such case, the amount of the Obligations hereby
secured will be reduced by the amount of the Agreed Currency so applied,
and, for greater certainty, the Company shall remain fully liable
for the
balance of such Obligations.
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5.
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The
proceeds of the Trust Bond, including, without limitation, any
distributions in respect thereof by the Debenture Trustee, shall
be
applied by the Debenture Trustee on account of such part of the
Obligations as it chooses without prejudice to its claim upon the
Company
for any deficiency.
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6.
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The
Debenture Trustee may, from time to time, grant extensions of time
or
other indulgences, take and give up securities, accept compositions,
grant
releases and discharges and otherwise deal with the Company and other
parties, sureties or securities as the Debenture Trustee may see
fit in
accordance with the terms of the Debenture Indenture and the Securities
without prejudice to the Debenture Trustee’s right in respect of the Trust
Bond or in any way limiting or lessening the liability of the Company
under the Trust Bond.
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7.
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Upon
full, final and irrevocable
satisfaction of the Obligations, the Trust Bond, upon Company Order,
shall
be delivered to the Deed Trustee for
cancellation.
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8.
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The
Trust Bond shall not operate by way of merger of any of the Obligations,
and no judgment recovered by or on behalf of the Debenture Trustee
shall
operate by way of merger of, or in any way affect, the security of
the
Trust Bond which is in addition to and not in substitution for any
other
security now or hereafter held by the Debenture
Trustee.
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9.
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Notwithstanding
the provisions of any other section of this Pledge Agreement or any
provisions of the Debenture Indenture, the Inter-Creditor Agreement,
the
Deed of Trust or any security provided for thereunder, under no
circumstances, other than if an Event of Default shall have occurred
and
be continuing, may the Debenture Trustee collect or claim a right
to
collect any amounts on or in respect of the Trust Bond or pursuant
to any
provisions of the Deed of Trust or the security provided for thereunder
or
under the Debenture Indenture. If any such amount is, for any reason,
received by the Debenture Trustee, it shall pay over the amount to
the
Company or to the Restricted Subsidiary providing security in respect
of
the Obligations (the “Payee”) unless (i) an Event of Default shall
have occurred and be continuing or (ii) a Default shall have occurred
and be continuing, in which case, the Debenture Trustee shall retain
such
amount in trust for the benefit of the Payee until (a) the Default
has been cured or (b) any applicable grace period in respect of such
Default has expired, at which time, the Debenture Trustee shall pay
over
such amount to the Payee unless an Event of Default shall have occurred
and be continuing. Any such amount received by the Debenture Trustee
which
it is required to pay to the Payee pursuant to this Section 9 shall,
in no
circumstances, be deemed to be a payment on account of the
Obligations.
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2
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10.
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Notwithstanding
that the Trust Bond is expressed to be payable on demand, the Debenture
Trustee shall have no right to, and shall not, demand payment unless
or
until an Event of Default shall have occurred and be continuing.
Notwithstanding any provisions of the Trust Bond, payment to the
Debenture
Trustee or the holders of Securities of interest for any period in
respect
of the Obligations shall be deemed to be payment in satisfaction
of the
interest payment for the same period under the Trust Bond. No payment
of
principal on account of any of the Obligations shall be treated as
a
payment on account of any of the principal amount of the Trust Bond.
The
Debenture Trustee, in realizing on the Trust Bond or the security
constituted thereby, shall not claim under the Trust Bond any greater
amount in the aggregate for principal and interest than the aggregate
of
the Obligations then owing by the
Company.
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11.
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The
Company shall not amend, modify or supplement, or waive or consent
to
departures from, the provisions of the Trust Bond or any other pledge
agreement relating to any other Senior Secured Bond (as such term
is
defined in the Deed of Trust) issued pursuant to the Deed of Trust
except
as provided in the Deed of Trust.
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12.
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(a)
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Upon
the deposit of the Trust Bond pursuant to Section 2 hereof, the Trust
Bond shall have a legend conspicuously noted thereon substantially
in the
form of the legend below:
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“This
Senior Secured Bond is subject to the terms and conditions of a pledge
agreement, dated as of April 30, 2002, between Xxxxxx Cable Inc. and JPMorgan
Chase Bank, as trustee.”
(b) Any
bond issued under the Deed of Trust in substitution for, or in replacement
of,
the Trust Bond shall have conspicuously noted thereon the legend referred to
in
Section 12(a) hereof.
3
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13.
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The
provisions hereof shall be binding upon, and shall inure to the benefit
of, the Company, the Debenture Trustee and the holders of Securities
and
their respective successors and permitted
assigns.
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14.
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Nothing
contained herein, in the Trust Bond or in the Deed of Trust shall
amend,
modify, vary or otherwise change the rights of the Debenture Trustee
or
any of the holders of Securities or the obligations of the Company
under
the Debenture Indenture or in respect of the Securities or shall
limit the
rights of the Debenture Trustee or any of the holders of Securities
under,
or in respect of, the Obligations.
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15.
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This
Agreement shall be governed by and construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this instrument as of
the
day and year first above written.
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XXXXXX
CABLE INC.
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By
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Name:
X. Xxxxxxxx Xxxx
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Title:
Vice-President, Treasurer
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By
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Name:
Xxxx X. Xxxx
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Title:
Vice-President
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JPMORGAN
CHASE BANK, as trustee
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By
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Name:
X. Xxxxxxxx Xxxx
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Title:
Vice-President, Treasurer
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4
EXHIBIT
D
FORM
OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS
FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
[date]
JPMorgan
Chase Bank
000
Xxxx
00xx Xxxxxx
New
York,
New York 10001
| Re: | Xxxxxx Cable Inc. | |
| (the “Company”) 8.750% Senior (Secured) Second Priority | ||
| Debentures due 2032 (the “Securities”) |
Ladies
and Gentlemen:
This
letter relates to $______ principal amount of Securities which are evidenced
by
the Restricted Global Security (CUSIP No. 00000XXX0) and held with the
Depositary in the name of Cede & Co. and held for the benefit of ________
(the beneficial owner) (the “Transferor”). The Transferor has requested a
transfer of such beneficial interest in the Securities to a Person who will
take
delivery thereof in the form of an equal principal amount of Securities
evidenced by the Regulation S Global Security (CUSIP
No. X00000XX0).
In
connection with such request and in respect of such Securities, we hereby
certify that such transfer has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the “Securities Act”), and accordingly we
hereby further certify that:
(A) if
the transfer has been effected pursuant to Rule 903 or Rule 904:
(1) the
offer of the Securities was not made to a person in the United
States;
(2) either
(a) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States or (b) the transaction
was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows
that
the transaction has been pre-arranged with a buyer in the United
States;
(3) no
directed selling efforts have been made in the United States in contravention
of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
and
(4) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
(B) If
the transfer has been effected pursuant to Rule 144, the Securities have been
transferred in a transaction permitted by Rule 144 under the Securities
Act.
Upon
giving effect to this request to exchange a beneficial interest in such
Restricted Global Security for a beneficial interest in a Regulation S
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to a Regulation S Global Security pursuant
to the Indenture and the Securities.
You
and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
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Very
truly yours,
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[Name
of Transferor]
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By
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Authorized
Signature
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2
|
|
EXHIBIT
E
|
FORM
OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS
FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED
GLOBAL SECURITY
JPMorgan
Chase Bank
000
Xxxx
00xx Xxxxxx
New
York,
New York 10001
| Re: | Xxxxxx Cable Inc. | |
| (the “Company”) 8.750% Senior (Secured) Second Priority | ||
| Debentures due 2032 ( the “Securities”) |
Ladies
and Gentlemen:
This
letter relates to $_______ principal amount of the Securities which are
evidenced by the Regulation S Global Security (CUSIP No. X00000XX0) and held
with the Depositary in the name of Cede & Co. and held for the benefit of
_______ (the beneficial owner) (the “Transferor”). The Transferor has requested
a transfer of such beneficial interest in the Securities to a Person who will
take delivery thereof in the form of an equal principal amount of Securities
evidenced by the Restricted Global Security (CUSIP No. 00000XXX0), to be held
with the Depositary.
In
connection with such request and in respect of such Securities, the Transferor
hereby certifies that such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
Upon
giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to a Restricted Global Security pursuant
to
the Indenture and the Securities Act.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under
the Securities Act.
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Very
truly yours,
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[Name
of Transferor]
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By
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Authorized
Signature
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2
EXHIBIT
F
FORM
OF CERTIFICATE FOR TRANSFER OR
EXCHANGE
AFTER TWO YEARS
JPMorgan
Chase Bank
000
Xxxx
00xx Xxxxxx
New
York,
New York 10001
| Re: | Xxxxxx Cable Inc. | |
| (the “Company”) 8.750% Senior (Secured) Second Priority | ||
| Debentures due 2032 ( the “Securities”) |
Ladies
and Gentlemen:
[For
transfers: This letter relates to $____________ principal amount of Securities
which are evidenced by a Restricted Global Security (CUSIP
No. 00000XXX0) and held with the Depositary in the name of Cede &
Co. [and held for the benefit of _______________] (the “Beneficial Owner”). The
Beneficial Owner has requested that its beneficial interest in such Securities
be transferred to a Person that will take delivery thereof in the form of an
equal principal amount of Securities evidenced by the Regulation S Global
Security (CUSIP No. X00000XX0).
In
connection with such request and in respect of such Securities, the Beneficial
Owner does hereby certify that upon such transfer, (a) a period of at least
two years will have elapsed since April 30, 2002, (b) the Beneficial
Owner during the three months preceding the date of such transfer was not an
“affiliate” of the Company (as defined in Rule 144 under the Securities Act),
and it was not acting on behalf of such an affiliate and (c) such Person to
whom such transfer is being made is not an “affiliate” of the
Company.]
[For
exchanges: This letter relates to $_________ principal amount of Securities
that
are evidenced by a [Restricted Global Security (CUSIP No. 00000XXX0) and held
with the Depositary in the name of Cede & Co. [and held for the benefit of]
______________] (the “Beneficial Owner”). The Beneficial Owner has requested
that its beneficial interest in such Securities be exchanged for a beneficial
interest in an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. X00000XX0).
In
connection with such request and in respect of such Securities, the Beneficial
Owner does hereby certify that, upon such exchange, (a) it will be the
beneficial owner of such Securities, (b) a period of at least two years
will have elapsed since April 30, 2002 and (c) the Beneficial Owner will
not be, and during the three months preceding the date of such exchange will
not
have been, an “affiliate” of the Company (as defined in Rule 144 under the
Securities Act), and it is not acting on behalf of such an
affiliate.]
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
Dated:
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[Insert
Name of Beneficial Owner]
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By
|
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Name:
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Title:
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2
