ROGERS CABLE INC., Issuer And JPMORGAN CHASE BANK, Trustee INDENTURE Dated as of June 19, 2003 6.25% Senior (Secured) Second Priority Notes due 2013
CONFORMED
COPY
Exhibit
99.7
XXXXXX
CABLE INC.,
Issuer
And
JPMORGAN
CHASE BANK,
Trustee
---------------
Dated
as
of June 19, 2003
---------------
6.25%
Senior (Secured) Second Priority Notes due 2013
RECONCILIATION
AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND
INDENTURE, DATED AS OF JUNE 19, 2003*
|
TRUST
INDENTURE
ACT
SECTION
|
INDENTURE SECTION | |
|
Section
310
|
(a)(1)
|
609
|
|
(a)(2)
|
609
|
|
|
(b)
|
608,
610
|
|
|
Section
312
|
(c)
|
701
|
|
Section
314
|
(a)
|
703
|
|
(a)(4)
|
1022
|
|
|
(b)
|
1202
|
|
|
(c)(1)
|
103
|
|
|
(c)(2)
|
103
|
|
|
(e)
|
103
|
|
|
Section
315
|
(b)
|
602
|
|
Section
316
|
(a)
|
|
|
(last
sentence)
|
101(“Outstanding”)
|
|
|
(a)(1)(A)
|
502,
512
|
|
|
(a)(1)(B)
|
513
|
|
|
(b)
|
508
|
|
|
(c)
|
105
|
|
|
Section
317
|
(a)(1)
|
503
|
|
(a)(2)
|
504
|
|
|
(b)
|
1003
|
|
|
Section
318
|
(a)
|
108
|
---------------
* This
reconciliation and tie shall not, for any purpose, be deemed to be part of
the
Indenture.
i
TABLE
OF
CONTENTS
Article
One
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
| Page | ||
|
SECTION
101.
|
Definitions
|
1
|
|
“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
|
|
|
“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
|
|
|
“Voting
Shares”
|
23
|
iv
|
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
|
27
|
|
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
|
28
|
|
SECTION
112.
|
Benefits
of Indenture
|
28
|
|
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
|
31
|
|
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
|
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
|
|
|
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
|
103
|
|
SECTION
1023.
|
Subordination
Arrangements
|
103
|
|
SECTION
1024.
|
Waiver
of Certain Covenants
|
104
|
|
SECTION
1025.
|
Suspension
of Covenants
|
104
|
|
SECTION
1026.
|
Release
of Security
|
105
|
Article
Eleven
REDEMPTION
OF SECURITIES
|
SECTION
1101.
|
Right
of Redemption
|
106
|
|
SECTION
1102.
|
Applicability
of Article
|
106
|
|
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
|
107
|
|
SECTION
1106.
|
Deposit
of Redemption Price
|
108
|
|
SECTION
1107.
|
Securities
Payable on Redemption Date
|
108
|
|
SECTION
1108.
|
Securities
Redeemed in Part
|
108
|
|
SECTION
1109.
|
Effect
of Change in Control Purchase Notice
|
109
|
|
SECTION
1110.
|
Deposit
of Change in Control Purchase Price
|
109
|
|
SECTION
1111.
|
Securities
Purchased in Part
|
110
|
|
SECTION
1112.
|
Repayment
to the Company
|
110
|
Article
Twelve
SECURITY
DOCUMENTS
|
SECTION
1201.
|
Pledge
Agreement
|
110
|
|
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
|
112
|
|
TESTIMONIUM
|
114
|
|
viii
| 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 June 19, 2003 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 6.25% Senior (Secured) Second
Priority Notes due 2013 (hereinafter called the “Initial Securities”) and 6.25%
Exchange Senior (Secured) Second Priority Notes due 2013 (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, societe 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 0 Xxx
Xxxx
Xxxxx, 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 9.65% senior secured second priority debentures due 2014, 10% senior
secured second priority notes due 2005, 10% senior secured second priority
debentures due 2007, 7.60% senior (secured) second priority notes due 2007,
7.875% senior secured second priority notes due 2012 and 8.750% senior secured
second priority debentures due 2032.
“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)
any
amendment or refinancing of any Permitted Debt referred to in clauses (i)
through (iv) 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
(vi)
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 June 19, 2003, or Debt constituting an amendment
or
refinancing (including any successive amendment or refinancing) of Debt that
was
issued on or before June 19, 2003 (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 June 19, 2003 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 June 16, 2003, relating to the sale of the Securities.
“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 Citigroup
Global Markets 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)
Citigroup Global Markets 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 June 19, 2003, 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/Limitee,
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 organized 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, 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
“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$700,000,000 issued by the Company under
the
Deed of Trust and pledged to and in favor of the Trustee for and on behalf
of
the Trustee and each of the Holders pursuant to the Pledge
Agreement.
22
“Trust
Estate” means the property which
is covered or intended to be covered by the Lien of the Pledge Agreement
as
collateral security for the Securities.
“Trust
Indenture Act” means the United
States Trust Indenture Act of 1939, as amended, and as in force at the date
as
of which this instrument was executed, except as provided in Section
907.
“Trustee”
means
the Person named as the
“Trustee” in the first paragraph of this Indenture, until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean such successor Trustee.
“U.S.
Dollars”, “United States
Dollars”, “U.S.$” 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
TERM
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
|
|
Change
in Control Purchase Price
|
516
|
|
Change
in Control Triggering Event
|
501
|
|
Computation
Period
|
1010
|
23
|
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
|
|
Other
Currency
|
117
|
|
Parent
Company
|
801
|
|
Permitted
Residuary Beneficiary
|
501
|
|
Perpetuity
Date
|
501
|
|
Private
Placement Legend
|
202
|
|
Qualified
Persons
|
501
|
|
Qualifying
Trust
|
501
|
|
rate(s)
of exchange
|
116
|
|
Regulation
S Global Securities
|
201
|
|
Release
Date
|
1026
|
|
Relevant
Person
|
119
|
|
Restricted
Global Securities
|
201
|
|
Restricted
Payment
|
1010
|
|
Security
Factor
|
1016
|
|
Security
Register
|
305
|
|
Security
Registrar
|
305
|
|
Suspended
Covenants
|
1025
|
|
Suspension
Period
|
1025
|
|
Taxes
|
1021
|
|
25%
Excess Proceeds
|
1016
|
|
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.
24
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.
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.
25
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.
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.
27
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.
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.
28
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.
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.
31
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 Euroclear Bank
S.A./N.V., as operator of the Euroclear System (“Euroclear”) and Clearstream
Banking, societe 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.
6.25%
[Exchange]* SENIOR (SECURED) SECOND PRIORITY NOTES
DUE
2013
CUSIP
______
No. U.S.$______
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
June 15, 2013, at the office or agency of the Company referred to below,
and to
pay interest thereon on December 15, 2003 and semiannually thereafter, on
June
15 and December 15 in each year, from and including June 19, 2003 or from
the
most recent Interest Payment
Date to which interest has been paid or duly provided for, at the rate of
6.25%
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 June 1 or December 1 (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.
[The
Holder of this Security is entitled to the benefits of the Registration Rights
Agreement, dated as of June 19, 2003, 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
-----------------------
* Include
only for Exchange Securities.
** Include
only for Initial Securities.
36
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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Title:
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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 6.25%
[Exchange]* Senior (Secured) Second Priority Notes due 2013 (herein called
the
“Securities”), which may be issued under an indenture (herein called the
“Indenture”) dated as of June 19, 2003 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.
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.
-----------------------
* Include only for Initial Securities.
* Include only for Initial Securities.
38
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.$350,000,000 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 “6.25% Senior (Secured) Second Priority Notes due 2013”
and the Exchange Securities shall be known and designated as the “6.25% Exchange
Senior (Secured) Second Priority Notes due 2013”, in each case, of the Company.
The Stated Maturity of the Securities shall be June 15, 2013 and they shall
bear
interest at the rate of 6.25% per annum from and including June 19, 2003,
or the
most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on December 15, 2003 and semi-annually thereafter on
June
15 and December 15 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.$350,000,000, 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.
(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).
Section 307(b).
48
(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 June 19, 2005 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.
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
(l) shall not constitute Events of Default.
53
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 encumbrancer
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
(l) 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 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 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” (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 Rogers 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 Rogers 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
manner 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.
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(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.
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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.
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(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 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.
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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.
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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, Excluded
Securities or Excluded Assets), 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
90
(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.
91
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;
92
(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;
93
(xiii)
any other Lien existing on the date of this Indenture; and
(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.
97
(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.
98
(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.
99
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, (iii) if the Securities are presented for payment more
than
15 days after the date on which such payment or such Securities became due
and
payable or the date on which such payment thereof is duly provided for,
whichever is later (except to the extent that the Holder would have been
entitled to Additional Amounts had the Securities been presented on the last
day
of such 15 day period) or (iv) where withholding is imposed on a payment
to an
individual pursuant to any European Union Directive on the taxation of savings
or any law implementing or complying with, or introduced in order to conform
to,
such Directive. 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. Upon the written request of the Holders of
Securities, the Company will furnish to the Holders of the Securities 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 of any Holder of Securities (other than an Excluded Holder)
reimburse such Holder for the amount of (i) any such Taxes so levied or imposed
and paid by such Holder as a result of any failure of the Company to withhold,
deduct or remit to the relevant tax authority, on a timely basis, the full
amounts required under applicable law; and (ii) any such Taxes so levied
or
imposed with respect to any reimbursement under the foregoing clause (i),
so
that the net amount received by such Holder after such reimbursement would
not
be less than the net amount such Xxxxxx would have received if such Taxes
on
such reimbursement had not been imposed.
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.
102
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.
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 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.
104
(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.
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.
105
(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 NewsWire Ltd. service or similar business news wire service in
Canada.
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 June 16, 2003, 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.
106
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.
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
107
(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.
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.
108
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).
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.
109
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).
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.
110
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.
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.
111
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.
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.
*
*
*
112
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.
|
XXXXXX
CABLE INC.
|
|
|
By:
|
/s/
M. Xxxxxxxx Xxxx
|
|
Name:
X. Xxxxxxxx
Xxxx
|
|
|
Title:
Vice-President, Treasurer
|
|
|
By:
|
/s/
Xxxx X. Xxxx
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title:
Vice-President
|
|
|
JPMORGAN
CHASE BANK
|
|
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
Name: Xxxxxxx
Xxxxx
|
|
|
Title:
Vice President
|
|
113
EXHIBIT
A
PROVISIONS
FOR INTER-COMPANY DEEPLY SUBORDINATED DEBT
1.1 Terms
defined in the
Indenture in respect of the 6.25% Senior (Secured) Second Priority Notes
due
2013 dated as of June 19, 2003 (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;
114
(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.
115
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.
116
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.
117
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.
118
EXHIBIT
B
PROVISIONS
FOR INTER-COMPANY SUBORDINATED DEBT
1. Terms
defined in the
Indenture in respect of the 6.25% Senior (Secured) Second Priority Notes
due
2013 dated as of June 19, 2003 (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
119
(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.
120
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.
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.
121
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.
122
EXHIBIT
C
FORM
OF
PLEDGE AGREEMENT
THIS
PLEDGE AGREEMENT made as of the
19th day of June, 2003.
BETWEEN:
XXXXXX
CABLE INC., a corporation incorporated under the Business Corporations Act
(Ontario)
(the “Company”)
(the “Company”)
and
JPMORGAN
CHASE BANK, a New York banking corporation,
as
trustee
(the
“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 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 “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 Indenture
as in
effect on the date hereof, and “Securities” means the US$350,000,000
aggregate principal amount of 6.25 Senior (Secured) Second Priority
Notes
due 2013 of the Company and the Exchange Securities (as defined
in the
Indenture) issued under the
Indenture.
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2.
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The
Company hereby deposits with and assigns and pledges to the Trustee
the
Trust Bond to be held by the 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 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 Trustee
(including obligations under Section 607 of the Indenture) and
the holders
of Securities under the Indenture and the Securities (collectively,
the
“Obligations”).
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3.
|
If,
at any time, an Event of Default shall have occurred and be continuing,
the 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
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 Trustee
however
created; provided that the 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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123
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4.
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If
any moneys received by the 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 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 Trustee, shall be applied
by the
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
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 Trustee may see fit in accordance
with the terms of the Indenture and the Securities without prejudice
to
the 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.
|
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 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 Trustee.
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9.
|
Notwithstanding
the provisions of any other section of this Pledge Agreement or
any
provisions of the 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 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 Indenture.
If
any such amount is, for any reason, received by the 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 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 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 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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124
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10.
|
Notwithstanding
that the Trust Bond is expressed to be payable on demand, the 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 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 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.
|
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) 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:
|
“This
Senior Secured Bond is subject to the terms and conditions of a pledge
agreement, of even date herewith, entered into by the Company and JPMorgan
Chase
Bank, as trustee, in connection with the issue by the Company of
U.S.$350,000,000 aggregate principal amount of 6 1/4% Senior (Secured) Second
Priority Notes due 2013.”
(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.
Section 12(a) hereof.
125
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13.
|
The
provisions hereof shall be binding upon, and shall inure to the
benefit
of, the Company, the Trustee and the holders of Securities and
their
respective successors and permitted
assigns.
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14.
|
Nothing
contained herein, in the Trust Bond or in the Deed of Trust shall
amend,
modify, vary or otherwise change the rights of the Trustee or any
of the
holders of Securities or the obligations of the Company under the
Indenture or in respect of the Securities or shall limit the rights
of the
Trustee or any of the holders of Securities under, or in respect
of, the
Obligations.
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15.
|
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.
|
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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M.
Xxxxxxxx Xxxx
|
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Vice-President,
Treasurer
|
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By:
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Xxxx
X. Xxxx
|
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Vice-President
|
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|
JPMORGAN
CHASE BANK, as trustee for the Notes
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By:
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Name:
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Title:
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126
EXHIBIT
D
FORM
OF
CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS FROM RESTRICTED GLOBAL SECURITY
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”) 6.25% Senior (Secured) Second Priority Notes
due
2013 (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.
127
(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.
|
Very
truly yours,
[NAME
OF TRANSFEROR]
|
|
|
By:
|
|
128
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”) 6.25% Senior (Secured) Second Priority Notes
due
2013 ( 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.
129
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,
[NAME
OF TRANSFEROR]
|
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By:
|
|
|
Authorized
Signature
|
|
130
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”) 6.25% Senior (Secured) Second Priority Notes
due
2013 ( 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
June
19, 2013, (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 June 19, 2003 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.]
131
This
certificate and the statements
contained herein are made for your benefit and the benefit of the
Company.
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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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132
EXHIBIT
G
SUBORDINATION
AGREEMENT
THIS
AGREEMENT made as of the 19th day
of June, 2003 AMONG Xxxxxx Cable Inc. (the “Company”); Rogers Cablesystems
Ontario Limited, Rogers Ottawa Limited/Limitee, Rogers Cablesystems Georgian
Bay
Limited and Rogers Cable Atlantic Inc. (collectively, the “Restricted
Subsidiaries” and, each individually, a “Restricted Subsidiary”); JPMorgan Chase
Bank (formerly Chemical Bank) in its capacity as trustee under the Subordinated
Debt Indenture (as defined below) (the “Subordinated Debt Trustee”); and
JPMorgan Chase Bank in its capacity as trustee under the 2003 Note Indenture
(as
defined below) (the “2003 Note Trustee”)
WITNESSES
THAT WHEREAS:
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A.
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The
Company (formerly known as Rogers Cablesystems Limited),
certain affiliates of the Company that were then Designated
Subsidiaries (within the meaning of the Deed of Trust (as defined
below))
and the Subordinated Debt Trustee, among others, entered into an
indenture
(the “Subordinated Debt Indenture”), dated as of November 30, 1995,
providing for the issuance of the Company’s 11% Senior Subordinated
Guaranteed Debentures due 2015 (the “Subordinated Securities”). “Deed of
Trust” means the restated deed of trust and mortgage, dated as of January
31, 1995, between Rogers Cablesystems Limited (now the Company)
and
National Trust Company, as trustee.
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B.
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The
Company and the 2003 Note Trustee entered into an indenture (the
“2003
Note Indenture”), dated as of the date hereof, providing for the issuance
of the Company’s 6.25% Senior (Secured) Second Priority Notes due 2013
(the “2003 Notes”).
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X.
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Xxxxxxxx
to section 1207 of the Subordinated Debt Indenture, the Company
has
furnished an Officers’ Certificate (as such term is defined in the
Subordinated Debt Indenture) to the Subordinated Debt Trustee (i)
stating
that the 2003 Note Trustee is trustee on behalf of holders of Senior
Indebtedness (as such term is defined in the Subordinated Debt
Indenture) and (ii) directing the Subordinated Debt Trustee to
execute and
deliver this Agreement.
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NOW
THEREFORE for good and valuable consideration (the receipt and sufficiency
of
which are hereby acknowledged), the parties hereto agree as
follows:
1.
SUBORDINATION
The
Subordinated Debt Trustee, under
the authority granted to it in the Subordinated Debt Indenture and as trustee
on
behalf of the holders of the Subordinated Securities, the Company and each
of
the Restricted Subsidiaries hereby covenant with the 2003 Note Trustee, in
its
capacity as trustee on behalf of the holders of the 2003 Notes, that (i)
the
indebtedness represented by the Subordinated Securities, (ii) the payment
of
principal of (and premium, if any) and interest on each and all of the
Subordinated Securities, (iii) the obligations represented
by each and all of the Guarantees (as such term is defined in the Subordinated
Debt Indenture) delivered from time to time under the Subordinated Debt
Indenture and (iv) the payment of the Guaranteed Obligations (as such term
is
defined in such Guarantees) thereunder are all subordinate and subject in
right
of payment to the prior payment in full of indebtedness, premium (if any),
interest and fees and expenses owing to the holders of the 2003 Notes and
the
2003 Note Trustee, as trustee on their behalf, under the 2003 Notes and the
2003
Note Indenture, in the manner, to the same extent and with the same effect
as if
the terms and provisions of the Subordinated Debt Indenture and such Guarantees
were set forth herein.
133
2. PAYMENT
TO THE COMPANY IN CERTAIN CIRCUMSTANCES
In
accordance with section 1205 of the
Subordinated Debt Indenture, if any holder of the 2003 Notes or the 2003
Note
Trustee, as trustee on behalf of the holders of the 2003 Notes, (each, a
“Recipient”) shall receive any amount under this Agreement and, at the time of
receipt, such Recipient is not entitled to such amount under the terms of
the
2003 Note Indenture and the 2003 Notes (whether by reason of maturity,
acceleration or otherwise), then such Recipient shall turn over such amount
to
the Company. Any such amount so received by any Recipient which it is required
to turn over to the Company pursuant to this section 2 shall, in no
circumstances, be considered to be a payment on account of the Senior
Indebtedness represented by the 2003 Notes.
3.
BINDING EFFECT AND ENUREMENT
This
Agreement shall be binding upon
the successors of the Company, each of the Restricted Subsidiaries and the
Subordinated Debt Trustee, as trustee on behalf of the holders of the
Subordinated Securities, and shall enure to the benefit of the successors
and
permitted assigns of the 2003 Note Trustee, as trustee on behalf of the holders
of the 2003 Notes.
4. NO
WAIVER OR AMENDMENT
No
provision of this Agreement may be
waived or amended except by an instrument in writing signed by the party
hereto
against which the enforcement of any waiver or amendment is sought.
5. NO
PERSONAL LIABILITY
Neither
the Subordinated Debt Trustee
nor the 2003 Note Trustee makes any representation or warranty as to the
validity, sufficiency or effect of this Agreement or as to its authority
to
execute and deliver this Agreement. Neither the Subordinated Debt Trustee
nor
the 2003 Note Trustee shall have any personal responsibility or liability
with
respect to the covenant contained in section 1 hereof.
6. COUNTERPARTS
This
Agreement may be executed in
counterparts, and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
134
7.
GOVERNING LAW
This
Agreement shall be governed by,
and construed in accordance with, the laws of the Province of Ontario and
the
laws of Canada applicable therein.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
135
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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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ROGERS
CABLESYSTEMS ONTARIO LIMITED
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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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ROGERS
OTTAWA LIMITED/LIMITEE
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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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136
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ROGERS
CABLESYSTEMS GEORGIAN BAY LIMITED
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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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ROGERS
CABLE ATLANTIC 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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137
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JPMORGAN
CHASE BANK, in its capacity as the Subordinated Debt
Trustee
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By:
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Name: Xxxxxxx
Xxxxx
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Title:
Vice President
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JPMORGAN
CHASE BANK, in its capacity as the 2003 Note
Trustee
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By:
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Name: Xxxxxxx
Xxxxx
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Title:
Vice President
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138
