Exhibit 10.7
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of December 31, 2003 (this
"Supplemental Indenture"), is by and among ▇▇▇▇▇▇ Cable Inc., a corporation
organized under the laws of the Province of Ontario (hereinafter called "Rogers
Cable"), ▇▇▇▇▇▇ Cable Communications Inc., a corporation organized under the
laws of the Province of Ontario and a wholly-owned subsidiary of Rogers Cable
(hereinafter called "RCCI"), and CIBC Mellon Trust Company, a trust company
organized under the laws of Canada (hereinafter called the "Trustee").
W I T N E S S E T H
WHEREAS, ▇▇▇▇▇▇ Cable and the Trustee are parties to an indenture dated as
of February 5, 2002 (the "Indenture"), pursuant to which Rogers Cable's
outstanding 7.60% Senior (Secured) Second Priority Notes due February 6, 2007
(the "Notes") were issued, which Notes constitute "Securities" as that term is
defined in the Indenture;
WHEREAS, in connection with a corporate restructuring, Rogers Cable
intends to transfer certain of its properties, assets and liabilities
constituting its assets substantially as an entirety to RCCI (the "Transfer");
WHEREAS, pursuant to Section 801(a) of the Indenture, in connection with
the Transfer, RCCI is required to execute and deliver to the Trustee a
supplemental indenture assuming all of the obligations of the Company under the
Securities, the Indenture and the Collateral Documents;
WHEREAS, Section 802 of the Indenture provides that upon the transfer of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801 of the Indenture, (i) the successor Person shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under the Indenture with the same effect as if such successor Person
had been named as the Company in the Indenture and (ii) except in the case of a
lease, the Company shall be discharged from all obligations and covenants under
the Indenture and the Securities;
WHEREAS, Rogers Cable, RCCI and the Trustee desire that, following the
Transfer, (i) ▇▇▇▇▇▇ Cable shall not be discharged from its obligations and
covenants under the Indenture and the Securities, but shall continue as the
Company for all purposes of the Indenture and the Securities; (ii) RCCI shall
assume, as a co-obligor on a joint and several basis with ▇▇▇▇▇▇ Cable, all of
the Company's obligations under the Securities and the Indenture; and (iii) to
the extent provided herein each of Rogers Cable and RCCI shall be the Company
for purposes of the Indenture as if each of them had been named as the Company
therein;
WHEREAS, Section 901 of the Indenture provides that without the consent of
any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture, to, among other things, evidence the
assumption by any successor Person of the covenants of the Company in the
Indenture and in the Securities or the Collateral Documents, as the case may
be, or, to make any other change that does not adversely affect the rights of
any Holder;
WHEREAS, Rogers Cable and RCCI have complied with all conditions precedent
provided for in the Indenture relating to this Supplemental Indenture; and
WHEREAS the foregoing recitals are made as representations and statements
of fact by ▇▇▇▇▇▇ Cable and RCCI and not by the Trustee.
NOW, THEREFORE, for and in consideration of the foregoing premises, Rogers
Cable, RCCI and the Trustee hereby agree for the equal and ratable benefit of
the Holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. ASSUMPTION BY RCCI. RCCI hereby assumes, as a co-obligor on a joint
and several basis with Rogers Cable, all obligations and covenants of the
Company under the Indenture, the Securities and the Collateral Documents of the
Company, including without limitation obligations for the due and punctual
payment of the principal of, premium, if any, and interest on all Securities
issued or to be issued pursuant to the Indenture and the performance or
observance of each other obligation and covenant set forth in the Indenture to
be performed or observed on the part of the Company.
3. Rogers Cable not Discharged. Notwithstanding Section 802 of the
Indenture, following the Transfer, Rogers Cable shall not be discharged from
its obligations and covenants under the Indenture and the Securities.
4. References to the "Company" in the Indenture. Following the Transfer,
all references to the "Company" in the Indenture shall be deemed to be
references to each of Rogers Cable and RCCI, as co-obligors on a joint and
several basis; provided, that (i) with respect to any matter to be determined on
a Consolidated basis for the Company and its Restricted Subsidiaries, such
matter shall be determined for Rogers Cable and its Restricted Subsidiaries,
treating RCCI for such purposes as a Restricted Subsidiary; (ii) where the
context requires that a reference to the "Company" refer to a single entity
only, such reference shall be deemed to be to Rogers Cable only; and (iii) all
references to the board of directors or any officer of the "Company" shall be
deemed to be references to the board of directors or such officer of Rogers
Cable.
5. Notices.
a) Section 106(b) of the Indenture is hereby amended and restated in its
entirety as follows:
(b) to ▇▇▇▇▇▇ Cable Inc. or ▇▇▇▇▇▇ Cable Communications Inc. by the
Trustee or any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or
delivered in writing to ▇▇▇▇▇▇ Cable Inc. or ▇▇▇▇▇▇ Cable Communications
Inc., as the case may be, to 333 Bloor Street East, 10th Floor, Toronto,
Ontario, Canada, M4W 1G9, Attention: Vice-President, Treasurer, fax:
▇▇▇-▇▇▇-▇▇▇▇, with a copy to the Vice-President, General Counsel and
Secretary, fax: ▇▇▇-▇▇▇-▇▇▇▇, or, in either case, at any other address
previously furnished in writing to the Trustee by ▇▇▇▇▇▇ Cable Inc. or
▇▇▇▇▇▇ Cable Communications Inc.
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b) At the date of execution of this Supplemental Indenture, the Corporate
Trust Office is located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇, Attention: Director, Corporate Trust Services.
6. Trustee's Acceptance. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
7. Effect of Supplemental Indenture. Upon the execution and
delivery of this Supplemental Indenture by Rogers Cable, RCCI and the Trustee,
the Indenture shall be supplemented and amended in accordance herewith, and
this Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of a Security heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
8. Indenture Remains in Full Force and Effect. Except as
supplemented or amended hereby, all other provisions in the Indenture and the
Securities, to the extent not inconsistent with the terms and provisions of
this Supplemental Indenture, shall remain in full force and effect.
9. Incorporation of Indenture. All the provisions of this
Supplemental Indenture shall be deemed to be incorporated in, and made a part
of, the Indenture; and the Indenture, as supplemented and amended by this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
10. Counterparts. This Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
11. Effect of Headings. The headings of this Supplemental Indenture
are inserted for convenience of reference and shall not be deemed to be a part
thereof.
12. Successors. All covenants and agreements in this Supplemental
Indenture by RCCI and Rogers Cable shall be binding upon and accrue to the
benefit of their respective successors. All covenants and agreements in this
Supplemental Indenture by the Trustee shall be binding upon and accrue to the
benefit of its successors.
13. Benefits of Supplemental Indenture. Nothing in this Supplemental
Indenture, the Indenture or the Securities, express or implied, shall give to
any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders, any benefit of any legal or equitable
right, remedy or claim under this Supplemental Indenture, the Indenture or the
Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
▇▇▇▇▇▇ CABLE INC.
By: /s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: M. ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice-President, Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice-President
▇▇▇▇▇▇ CABLE COMMUNICATIONS INC.
By: /s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: M. ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice-President, Treasurer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice-President
CIBC MELLON TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
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