Exhibit 4.3
EXECUTION COPY
VIDEOTRON LTEE
US$175,000,000
6 3/8% SENIOR NOTES DUE DECEMBER 15, 2015
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INDENTURE
Dated as of September 16, 2005
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▇▇▇▇▇ Fargo Bank, National Association,
as Trustee
This INDENTURE, dated as of September 16, 2005, is by and among VIDEOTRON
LTEE, a company incorporated under the laws of the Province of Quebec, each
Subsidiary Guarantor listed on the signature pages hereto, and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as trustee (the "TRUSTEE").
The Company, each Subsidiary Guarantor and the Trustee agree as follows for
the benefit of each other and for the equal and ratable benefit of the Holders
of the 6 3/8% Senior Notes due December 15, 2015 (the "NOTES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
"144A GLOBAL NOTE" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold for initial resale in reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with, or
in contemplation of, such other Person merging with or into, or becoming a
Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"ADDITIONAL NOTES" means any Notes (other than Initial Notes and Exchange
Notes and Notes issued under Sections 2.06, 2.07, 2.10 and 3.06 hereof) issued
under this Indenture in accordance with Sections 2.02, 2.15 and 4.09 hereof, as
part of the same series as the Initial Notes or as an additional series.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED, HOWEVER, that beneficial ownership of more
than 10% of the Voting Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by" and "under
common control with" shall have correlative meanings.
"AGENT" means any Registrar, co-registrar, Paying Agent or additional paying
agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer, redemption or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer, redemption or exchange.
"ASSET ACQUISITION" means (a) an Investment by the Company or any Restricted
Subsidiary in any other Person pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated or merged with or into the
Company or any Restricted Subsidiary or (b) any acquisition by the Company or
any Restricted Subsidiary of the assets of any Person that constitute
substantially all of an operating unit, a division or line of business of such
Person or that is otherwise outside of the ordinary course of business.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights, other than sales of inventory in the ordinary course of business;
PROVIDED, HOWEVER, that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries, taken as a whole, shall be governed by the provisions of
Sections 4.18 and 5.01 hereof and not by the provisions of Section 4.12
hereof; and
(2) the issuance of Equity Interests of any Restricted Subsidiary or the
sale of Equity Interests by the Company or any of its Restricted
Subsidiaries in any Restricted Subsidiary.
Notwithstanding the preceding, the following items shall not be deemed to be
Asset Sales:
(1) any single transaction or series of related transactions that
involves assets having a fair market value (as determined by the Board of
Directors of the Company and evidenced by a resolution of the Board of
Directors of the Company) of less than US$1.0 million;
(2) a sale, lease, conveyance or other disposition of assets between or
among the Company and its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(4) the sale, lease, conveyance or other disposition of equipment,
inventory, accounts receivable or other assets in the ordinary course of
business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) any Tax Benefit Transaction; and
(7) a Restricted Payment or Permitted Investment that is permitted by
Section 4.10 hereof.
"ASSET SWAP" means an exchange of assets by the Company or a Restricted
Subsidiary for:
(1) one or more Permitted Businesses;
(2) a controlling equity interest in any Person whose assets consist
primarily of one or more Permitted Businesses; provided such Person becomes
a Restricted Subsidiary; and/or
(3) long-term assets that are used in a Permitted Business in a
like-kind exchange or transfer pursuant to Section 1031 of the Code or any
similar or successor provision of the Code or Sections 51, 85, 85.1, 86,
87 or 88(1) of the Income Tax Act (Canada) or any similar or successor
provisions of the Income Tax Act (Canada).
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction means, at
the time of determination, the present value of the obligation of the lessee for
net rental payments during the remaining term of the lease included in such sale
and leaseback transaction including any period for which such lease has been
extended or may, at the option of the lessor, be extended. Such present value
shall be calculated using a discount rate equal to the rate of interest implicit
in such transaction, determined in accordance with GAAP.
"BACK-TO-BACK DEBT" means any loans made or debt instruments issued as part
of a Back-to-Back Transaction and in which each party to such Back-to-Back
Transaction, other than a Videotron Entity, executes a subordination agreement
in favor of the Holders in substantially the form attached hereto as Exhibit F.
"BACK-TO-BACK PREFERRED SHARES" means Preferred Shares issued:
(1) to a Videotron Entity by an Affiliate of the Company in
circumstances where, immediately prior to or after, as the case may be, the
issuance of such Preferred Shares, an Affiliate of such Videotron Entity has
loaned on an unsecured basis to such Videotron Entity, or an Affiliate of
such Videotron Entity has subscribed for Preferred Shares of such Videotron
Entity in, an amount equal to the requisite subscription price for such
Preferred Shares;
(2) by a Videotron Entity to one of its Affiliates in circumstances
where, immediately prior to or after, as the case may be, the issuance of
such Preferred Shares, such Videotron Entity has loaned an amount equal to
the proceeds of such issuance to an Affiliate on an unsecured basis; or
(3) by a Videotron Entity to one of its Affiliates in circumstances
where, immediately prior to or after, as the case may be, the issuance of
such Preferred Shares, such Videotron Entity has used the proceeds of such
issuance to subscribe for Preferred Shares issued by an Affiliate;
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in each case on terms whereby:
(i) the aggregate redemption amount applicable to the Preferred Shares
issued to or by such Videotron Entity is identical:
(A) in the case of (1) above, to the principal amount of the loan
made or the aggregate redemption amount of the Preferred Shares
subscribed for by such Affiliate;
(B) in the case of (2) above, to the principal amount of the loan
made to such Affiliate; or
(C) in the case of (3) above, to the aggregate redemption amount of
the Preferred Shares issued by such Affiliate;
(ii) the dividend payment date applicable to the Preferred Shares issued
to or by such Videotron Entity shall:
(A) in the case of (1) above, be immediately prior to, or on the same
date as, the interest payment date relevant to the loan made or
the dividend payment date on the Preferred Shares subscribed for
by such Affiliate;
(B) in the case of (2) above, be immediately after, or on the same
date as, the interest payment date relevant to the loan made to
such Affiliate; or
(C) in the case of (3) above, be immediately after, or on the same
date as, the dividend payment date on the Preferred Shares issued
by such Affiliate;
(iii) the amount of dividends provided for on any payment date in the
share conditions attaching to the Preferred Shares issued:
(A) to a Videotron Entity in the case of (1) above, shall be equal to
or in excess of the amount of interest payable in respect of the
loan made or the amount of dividends provided for in respect of
the Preferred Shares subscribed for by such Affiliate;
(B) by a Videotron Entity in the case of (2) above, shall be less
than or equal to the amount of interest payable in respect of the
loan made to such Affiliate; or
(C) by a Videotron Entity in the case of (3) above, shall be equal to
the amount of dividends in respect of the Preferred Shares issued
by such Affiliate;
and PROVIDED that, in the case of Preferred Shares issued by a Restricted
Subsidiary that is not a Subsidiary Guarantor, each holder of such Preferred
Shares under such Back-to-Back Transaction, other than such Restricted
Subsidiary, executes a subordination agreement in favor of the Holders in
substantially the form attached hereto as Exhibit F.
"BACK-TO-BACK SECURITIES" means Back-to-Back Preferred Shares or
Back-to-Back Debt or both, as the context requires; PROVIDED that a Back-to-Back
Security issued by any Restricted Subsidiary that is not a Subsidiary Guarantor
(A) shall provide that (i) such Restricted Subsidiary shall suspend any payment
on such Back-to-Back Security until such Restricted Subsidiary receives payment
on the corresponding Back-to-Back Security in an amount equal to or exceeding
the amount to be paid on the Back-to-Back Security issued by such Restricted
Subsidiary and (ii) if the holder of such Back-to-Back Security is paid any
amount on or with respect to such Back-to-Back Security by such Restricted
Subsidiary, then to the extent such amounts are paid out of proceeds in excess
of the corresponding payment received by such Restricted Subsidiary on the
corresponding Back-to-Back Security held by it, the holder of such Back-to-Back
Security will hold such excess payment in trust for the benefit of such
Restricted Subsidiary and will forthwith repay such payment to such Restricted
Subsidiary and (B) may provide that, notwithstanding clause (A), such Restricted
Subsidiary may make payment on such Back-to-Back Security if at the time of
payment such Restricted Subsidiary would be permitted to make such payment under
Section 4.10 hereof; PROVIDED that any payment made pursuant to this
clause (B) which is otherwise prohibited under clause (A) would constitute a
Restricted Payment.
"BACK-TO-BACK TRANSACTION" means any of the transactions described under the
definition of Back-to-Back Preferred Shares.
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"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors, the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT 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.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as such term is used in
Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "BENEFICIALLY OWNS" and "BENEFICIALLY OWNED" shall have
corresponding meanings.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of the
corporation;
(2) with respect to a partnership, the board of directors of the general
partner of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"BOARD RESOLUTION" means a copy of a resolution certified by the secretary
or an assistant secretary (or individual performing comparable duties) of the
applicable Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CANADIAN TAXING AUTHORITY" means any federal, provincial, territorial or
other Canadian government or any authority or agency therein having the power to
tax.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CAPITAL STOCK SALE PROCEEDS" means the aggregate net cash proceeds received
by the Company after October 8, 2003:
(1) as a contribution to the common equity capital or from the issue or
sale of Equity Interests of the Company (other than Disqualified Stock or
Back-to-Back Securities); or
(2) from the issue or sale of convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt securities of the Company that
have been converted into or exchanged for such Equity Interests,
other than, in either (1) or (2), Equity Interests (or convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities)
sold to a Subsidiary of the Company.
"CASH EQUIVALENTS" means:
(1) United States dollars or Canadian dollars;
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(2) investments in securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed by any state,
commonwealth, territory or province of the United States of America or
Canada, or by any political subdivision or taxing authority thereof, and
rated in the "R-1" category by the Dominion Bond Rating Service Limited;
(3) certificates of deposit and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers' acceptances with
maturities not exceeding one year and overnight bank deposits, in each case,
with any domestic commercial bank having capital and surplus in excess of
US$500.0 million;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in
clauses (2) and (3) above entered into with any financial institution
meeting the qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Rating Services and in each
case maturing within one year after the date of acquisition or with respect
to commercial paper in Canada, a rating in the "R-1" category by the
Dominion Bond Rating Service Limited; and
(6) money market funds at least 90% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1) through (5) of this
definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Company and the Restricted Subsidiaries, taken
as a whole, to any "person" (as that term is used in Section 13(d)(3) of the
Exchange Act) other than a Permitted Holder or a Related Party;
(2) the adoption of a plan relating to the liquidation or dissolution of
the Company;
(3) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any Person, other
than a Permitted Holder or a Related Party, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the Company,
measured by voting power rather than number of shares; or
(4) during any consecutive two-year period, the first day on which
individuals who constituted the Board of Directors of the Company as of the
beginning of such two-year period (together with any new directors who were
nominated for election or elected to such Board of Directors with the
approval of a majority of the individuals who were members of such Board of
Directors, or whose nomination or election was previously so approved at the
beginning of such two-year period) cease to constitute a majority of the
Board of Directors of the Company.
"CLEARSTREAM" means Clearstream Banking S.A. and any successor thereto.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"COMMISSION" means the U.S. Securities and Exchange Commission and any
successor entity thereto.
"COMPANY" means Videotron Ltee and any successor thereto.
"CONSOLIDATED CASH FLOW" means, with respect to any specified Person for any
period, the Consolidated Net Income of such Person for such period plus:
(1) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income;
plus
(2) Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period, including for the purpose of this
clause (2) any interest expense on the QMI Subordinated Loan that was
otherwise excluded from the definition of Consolidated Interest Expense, in
each case to the extent that any such expense was deducted in computing such
Consolidated Net Income; plus
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(3) depreciation, amortization (including amortization of goodwill and
other intangibles, but excluding amortization of prepaid cash expenses that
were paid in a prior period to the extent such expense is amortized) and
other non-cash expenses (excluding any such non-cash expense to the extent
that it represents (i) an accrual of or reserve for cash expenses in any
future period, or (ii) amortization of a prepaid cash expense that was paid
in a prior period to the extent such expense is amortized) of such Person
and its Restricted Subsidiaries for such period, to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
(4) any interest and other payments made to Persons other than any
Videotron Entity in respect of Back-to-Back Securities to the extent such
interest and other payments were not deducted in computing such Consolidated
Net Income; minus
(5) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of
business, in each case, on a consolidated basis and determined in accordance
with GAAP.
Notwithstanding the foregoing, the provision for taxes based on the income
or profits of, the Consolidated Interest Expense of and the depreciation and
amortization and other non-cash expenses of a Restricted Subsidiary shall be
added to Consolidated Net Income to compute Consolidated Cash Flow of the
Company only to the extent that a corresponding amount would be permitted at the
date of determination to be dividended or distributed to the Company by such
Restricted Subsidiary without prior governmental approval (unless such approval
has been obtained), and without direct or indirect restriction pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to that
Restricted Subsidiary or its shareholders.
"CONSOLIDATED INDEBTEDNESS" means, with respect to any Person as of any date
of determination, without duplication, the total amount of Indebtedness of such
Person and its Restricted Subsidiaries, including (i) the total amount of
Indebtedness of any other Person, to the extent that such Indebtedness has been
guaranteed by the referent Person or one or more of its Restricted Subsidiaries,
and (ii) the aggregate liquidation value of all Disqualified Stock of such
Person and all Preferred Shares of Restricted Subsidiaries of such Person, in
each case, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person, for any
period, without duplication, the sum of (i) the consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
Obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts, and other fees, and charges incurred in respect of
letter of credit or bankers' acceptance financings), all calculated after taking
into account the effect of all Hedging Obligations, (ii) the consolidated
interest expense of such Person and its Restricted Subsidiaries that was
capitalized during such period, (iii) any interest expense on Indebtedness of
another Person that is guaranteed by such Person or any of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or any of its
Restricted Subsidiaries (whether or not such guarantee or Lien is called upon),
(iv) the product of (a) all dividend payments on any series of Preferred Shares
of such Person or any of its Restricted Subsidiaries, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state, provincial, territorial and local statutory tax
rate of such Person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP, and (v) to the extent not included in
clause (iv) above for purposes of GAAP, the product of (a) all dividend payments
on any series of Disqualified Stock of such Person or any of its Restricted
Subsidiaries, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state,
provincial, territorial and local statutory tax rate of such Person, expressed
as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
Interest and other payments on Back-to-Back Securities, and any accrual, or
payment-in-kind, of interest on the QMI Subordinated Loan to the extent that
such interest is not paid in cash, shall not be included as Consolidated
Interest Expense.
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"CONSOLIDATED NET INCOME" means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; PROVIDED, HOWEVER, that:
(1) the Net Income (but not loss) of any Person that is not a Restricted
Subsidiary (other than an Unrestricted Subsidiary) or that is accounted for
by the equity method of accounting shall be included; PROVIDED, that the Net
Income shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (unless such
approval has been obtained) or, directly or indirectly, by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary or
its equityholders;
(3) the Net Income of any Person acquired during the specified period
for any period prior to the date of such acquisition shall be excluded;
(4) the cumulative effect of a change in accounting principles shall be
excluded;
(5) the Net Income (but not loss) of any Unrestricted Subsidiary shall
be excluded, whether or not distributed to the specified Person or one of
its Subsidiaries; PROVIDED, HOWEVER, that for purposes of Sections 4.10
hereof, the Net Income of any Unrestricted Subsidiary shall be included to
the extent it would otherwise be included under clause (1) of this
definition; and
(6) any non-cash compensation expense realized for grants of performance
shares, stock options or other rights to officers, directors and employees
of the Company or any Restricted Subsidiary shall be excluded, PROVIDED that
such shares, options or other rights can be redeemed at the option of the
holders thereof for Capital Stock of the Company or Quebecor Media (other
than in each case Disqualified Stock of the Company).
"CONSOLIDATED REVENUES" means the gross revenues of the Company and the
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP; PROVIDED that (1) any portion of gross revenues derived directly or
indirectly from Unrestricted Subsidiaries, including dividends or distributions
from Unrestricted Subsidiaries, shall be excluded from such calculation, and
(2) any portion of gross revenues derived directly or indirectly from a Person
(other than a Subsidiary of the Company or a Restricted 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.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 12.02 hereof, or such other address as to which the
Trustee may give notice to the Company.
"CREDIT AGREEMENT" means the amended credit facility between the Company,
the guarantor subsidiaries named therein, Royal Bank of Canada, as
administrative agent, RBC Dominion Securities Inc., as lead arranger, and the
lenders thereto dated as of November 29, 2000, as thereafter amended.
"CREDIT FACILITIES" means, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities, in each case
with banks or other institutional lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"CURRENCY EXCHANGE PROTECTION AGREEMENT" means, in respect of a Person, any
foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to protect such Person against
fluctuations in currency exchange rates entered into with any commercial bank or
other financial institutions having capital and surplus in excess of
US$500.0 million.
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"CUSTODIAN" means, with respect to the Notes issuable or issued in whole or
in part in global form, the Person specified in Section 2.03(c) hereof as
Custodian with respect to the Notes, and any and all successors thereto
appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"DEBT TO CASH FLOW RATIO" means, as of any date of determination
(the "Determination Date"), the ratio of (a) the Consolidated Indebtedness of
the Company (excluding the QMI Subordinated Loan) as of such Determination Date
to (b) the Consolidated Cash Flow of the Company for the most recently ended
fiscal quarter ending immediately prior to such Determination Date for which
internal financial statements are available (the "Measurement Period")
multiplied by four, determined on a PRO FORMA basis after giving effect to all
acquisitions or dispositions of assets made by the Company and the Restricted
Subsidiaries from the beginning of such quarters through and including such
Determination Date (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such quarter. For
purposes of calculating Consolidated Cash Flow for each Measurement Period
immediately prior to the relevant Determination Date, (i) any Person that is a
Restricted Subsidiary on the Determination Date (or would become a Restricted
Subsidiary on such Determination Date in connection with the transaction that
requires the determination of such Consolidated Cash Flow) shall be deemed to
have been a Restricted Subsidiary at all times during the applicable Measurement
Period; (ii) any Person that is not a Restricted Subsidiary on such
Determination Date (or would cease to be a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Consolidated Cash Flow) shall be deemed not to have been a
Restricted Subsidiary at any time during the applicable Measurement Period;
(iii) if the Company or any Restricted Subsidiary shall have in any manner
(x) acquired through an Asset Acquisition or (y) disposed of (including by way
of an Asset Sale or the termination or discontinuance of activities constituting
such operating business) any operating business during the applicable
Measurement Period or after the end of such period and on or prior to such
Determination Date, such calculation shall be made on a PRO FORMA basis in
accordance with GAAP, as if, in the case of an Asset Acquisition, all such
transactions (including any related financing transactions) had been consummated
on the first day of the applicable Measurement Period, and, in the case of an
Asset Sale or termination or discontinuance of activities constituting such
operating business, all such transactions (including any related financing
transactions) had been consummated prior to the first day of the applicable
Measurement Period; (iv) if (A) since the beginning of the applicable
Measurement Period, the Company or any Restricted Subsidiary has incurred any
Indebtedness that remains outstanding or has repaid any Indebtedness, or
(B) the transaction giving rise to the need to calculate the Debt to Cash Flow
Ratio is an incurrence or repayment of Indebtedness, Consolidated Interest
Expense for such Measurement Period shall be calculated after giving effect on a
PRO FORMA basis to such incurrence or repayment as if such Indebtedness was
incurred or repaid on the first day of such period, PROVIDED that, in the event
of any such repayment of Indebtedness, Consolidated Cash Flow for such period
shall be calculated as if the Company or such Restricted Subsidiary had not
earned any interest income actually earned during such period in respect of the
funds used to repay such Indebtedness; and (v) if any Indebtedness bears a
floating rate of interest and is being given PRO FORMA effect, the interest
expense on such Indebtedness shall be calculated as if the base interest rate in
effect for such floating rate of interest on the Determination Date had been the
applicable base interest rate for the entire Measurement Period (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of twelve months). For
purposes of this definition, any PRO FORMA calculation shall be made in good
faith by a responsible financial or accounting officer of the Company consistent
with Article 11 of Regulation S-X of the Securities Act, as such Regulation may
be amended.
"DEFAULT" means any event that is, or with the passage of time or the giving
of notice 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.
"DEFINITIVE NOTE" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 or 2.10 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in whole or
in part in global form, the Person specified in Section 2.03(b) hereof as the
Depositary with respect to the Notes, and any and all successors
8
▇▇▇▇▇▇▇ appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence,
(i) Back-to-Back Preferred Shares shall not constitute Disqualified Stock and
(ii) any Capital Stock that would constitute Disqualified Stock solely because
the holders thereof have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a change of control or an asset sale shall
not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with the
provisions of Section 4.10 hereof. The term "DISQUALIFIED STOCK" shall also
include any options, warrants or other rights that are convertible into
Disqualified Stock or that are redeemable at the option of the holder, or
required to be redeemed, prior to the date that is 91 days after the date on
which the Notes mature.
"DISTRIBUTION COMPLIANCE PERIOD" means the 40-day distribution compliance
period as defined in Regulation S.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means an offering by the Company of Equity Interests
(other than Disqualified Stock or Back-to-Back Securities) of the Company
however designated and whether voting or non-voting or an equity contribution by
a direct or indirect parent company to the common equity of the Company.
"EUROCLEAR" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
systems, and any successor thereto.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, including any successor legislation
and rules and regulations.
"EXCHANGE NOTES" means Notes registered under the Securities Act to be
exchanged for Notes not so registered, pursuant to and as set forth in a
Registration Rights Agreement relating to such an exchange.
"EXCHANGE OFFER" has the meaning set forth in a Registration Rights
Agreement relating to an exchange of Notes registered under the Securities Act
for Notes not so registered.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in a
Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and the Restricted
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on October 8, 2003, until such amounts are repaid.
"GAAP" means generally accepted accounting principles, consistently applied,
as in effect in Canada from time to time.
"GLOBAL NOTE LEGEND" means the legend set forth in
Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes
issued under this Indenture.
"GLOBAL NOTES" means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof) and the payment for which the United States of America
pledges its full faith and credit, and which are not callable or redeemable at
the issuer's option.
"GUARANTEE" means, as to any Person, a guarantee other than by endorsement
of negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof, of all or any part of any Indebtedness of another Person.
9
"HEDGING OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person pursuant to any Interest Rate Agreement or Currency
Exchange Protection Agreement.
"HOLDER" means a Person in whose name a Note is registered.
"INCUR" means, with respect to any Indebtedness or other Obligation of any
Person, to create, incur, issue, assume, guarantee or otherwise become
indirectly or directly liable, contingently or otherwise, with respect of such
Indebtedness or other Obligation.
"INDEBTEDNESS" means, with respect to any specified Person, any indebtedness
of such Person, whether or not contingent:
(1) representing principal of and premium, if any, in respect of
borrowed money;
(2) representing principal of and premium, if any, evidenced by bonds,
notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);
(3) in respect of bankers' acceptances;
(4) representing Capital Lease Obligations of such Person and all
Attributable Debt in respect of sale and leaseback transactions entered into
by such Person;
(5) representing the balance deferred and unpaid of the purchase price
of any property, except any such balance that constitutes an accrued expense
or trade payable;
(6) representing the amount of all obligations of such Person with
respect to the repayment of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Stock (in each case, valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued dividends); or
(7) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit,
Hedging Obligations, Attributable Debt, Disqualified Stock and Preferred Stock)
would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term "INDEBTEDNESS" includes
all Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified Person)
and, to the extent not otherwise included, the guarantee by the specified Person
of any Indebtedness of any other Person. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Stock or Preferred Stock which does not
have a fixed repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or
Preferred Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified Stock or
Preferred Stock, such fair market value shall be determined in good faith by the
Board of Directors of the issuer of such Disqualified Stock or Preferred Stock.
The term "INDEBTEDNESS" shall not include Back-to-Back Securities.
The amount of any Indebtedness described above in
clauses (1) through (7) and in the preceding paragraph outstanding as of any
date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, and shall be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount, and
(2) the principal amount thereof, together with any interest thereon
that is more than 30 days past due, in the case of any other Indebtedness;
PROVIDED, HOWEVER, that if any Indebtedness denominated in a currency other than
Canadian dollars is hedged or swapped through the maturity of such Indebtedness
under a Currency Exchange Protection Agreement, the amount of such Indebtedness
shall be adjusted to the extent of any positive or negative value (to the extent
the Obligation under such Currency Exchange Protection Agreement is not
otherwise included as Indebtedness of such Person) of such Currency Exchange
Protection Agreement.
10
"INDENTURE" means this instrument, as originally executed or as it may from
time to time be supplemented or amended in accordance with Article 9 hereof.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"INITIAL NOTES" means US$175 million aggregate principal amount of Notes
issued under this Indenture on the date hereof.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"INTEREST PAYMENT DATES" shall have the meaning set forth in paragraph 1 of
each Note.
"INTEREST RATE AGREEMENT" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect against fluctuations in
interest rates entered into with any commercial bank or other financial
institution having capital and surplus in excess of US$500.0 million.
"INVESTMENTS" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans or other extensions of credit (including guarantees, but excluding
advances to customers or suppliers in the ordinary course of business that are,
in conformity with GAAP, recorded as accounts receivable, prepaid expenses or
deposits on the balance sheet of the Company or its Restricted Subsidiaries and
endorsements for collection or deposit arising in the ordinary course of
business), advances (excluding commission, travel and similar advances to
officers and employees made consistent with past practices), capital
contributions (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP
and include the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary. If the Company or any Restricted Subsidiary sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Investment in such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in Section 4.10(c) hereof. The
acquisition by the Company or any Restricted Subsidiary of a Person that holds
an Investment in a third Person shall be deemed to be an Investment by the
Company or such Restricted Subsidiary in such third Person in an amount equal to
the fair market value of the Investment held by the acquired Person in such
third Person in an amount determined as provided in Section 4.10(c) hereof.
"ISSUE DATE" means September 16, 2005.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in each of the City of New York, Montreal, the city in which the
Corporate Trust Office of the Trustee is located or any other place of payment
on the Notes are authorized by law, regulation or executive order to remain
closed.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest, hypothecation, assignment for security or encumbrance of any
kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or capital lease
or other title retention agreement, any lease in the nature thereof, any option
or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
"LETTER OF TRANSMITTAL" means the letter of transmittal, or its electronic
equivalent in accordance with the Applicable Procedures, to be prepared by the
Company and sent to all Holders of the Initial Notes or any Additional Notes for
use by such Holders in connection with an Exchange Offer.
"MANAGEMENT FEES" means any amounts payable by the Company or any Restricted
Subsidiary in respect of management or similar services.
11
"NET INCOME" means, with respect to any specified Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Shares dividends, excluding, however:
(1) any gain (or loss), together with any related provision for taxes on
such gain (or loss), realized in connection with: (a) any Asset Sale
(without regard to the $1.0 million limitation set forth in the definition
thereof) or (b) the disposition of any securities by such Person or any of
its Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain (or loss), together with any related
provision for taxes on such extraordinary gain (or loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the Company or
any Restricted Subsidiary in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of (a) the direct costs relating
to such Asset Sale, including, without limitation, legal, accounting and
investment banking fees, and sales commissions, (b) any relocation expenses
incurred as a result of the Asset Sale, (c) taxes paid or payable as a result of
the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements, (d) amounts required to
be applied to the repayment of Indebtedness or other liabilities, secured by a
Lien on the asset or assets that were the subject of such Asset Sale, or
required to be paid as a result of such sale, (e) any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP, and (f) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures of the Company or
such Restricted Subsidiary as a result of such Asset Sale.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any Restricted Subsidiary
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is directly
or indirectly liable as a guarantor or otherwise or (c) constitutes the
lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit, upon notice, lapse of time or both, any holder of
any other Indebtedness (other than the Notes) of the Company or any
Restricted Subsidiary to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity; and
(3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any
Restricted Subsidiary.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice
President of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of the
Company, at least one of whom shall be the principal executive officer,
principal financial officer or the principal accounting officer of the Company,
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, an Affiliate of the Company or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to DTC, shall include Euroclear and
Clearstream.
"PERMITTED BUSINESS" means the businesses conducted by the Company and its
Restricted Subsidiaries in the cable and telecommunications industry, including
on-line internet services, telephony and the sale and rental of videocassettes,
or anything related or ancillary thereto.
12
"PERMITTED HOLDERS" means one or more of the following persons or entities:
(1) Quebecor Inc.;
(2) Quebecor Media;
(3) any issue of the late ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(4) any trust having as its sole beneficiaries one or more of the
persons listed in clause (3) above;
(5) any corporation, partnership or other entity controlled by one or
more of the persons or trusts referred to in clause (3) or (4) above or in
this clause (5); and
(6) Capital Communications CDPQ Inc.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Restricted Subsidiary;
(2) any Investment in cash or Cash Equivalents;
(3) any Investment 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 into, the Company or any Restricted Subsidiary,
PROVIDED that, in each case, such Person's primary business is a
Permitted Business;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with the provisions of Section 4.12 hereof;
(5) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock or Back-to-Back Securities)
of the Company;
(6) Hedging Obligations entered into in the ordinary course of business
of the Company or any Restricted Subsidiary and not for speculative
purposes, and that do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in interest
rates or foreign currency exchange rates or by reason of fees, indemnities
and compensation payable thereunder;
(7) payroll, travel and similar advances to officers, directors and
employees of the Company and the Restricted Subsidiaries for
business-related travel expenses, moving expenses and other similar expenses
that are expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP;
(8) any Investment in connection with Back-to-Back Transactions;
(9) any Investment existing on October 8, 2003; and
(10) other Investments in any Person that is not an Affiliate of the
Company (other than a Restricted Subsidiary) having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (10) since October 8, 2003 not to
exceed US$50.0 million.
"PERMITTED LIENS" means:
(1) Liens on the assets of the Company and any Restricted Subsidiaries
securing Indebtedness and other Obligations of the Company and Restricted
Subsidiaries under Credit Facilities, which Indebtedness was permitted by
the terms of this Indenture to be incurred, PROVIDED, HOWEVER, that the
aggregate principal amount of such Indebtedness secured by such Liens shall
not exceed an aggregate of Cdn$650.0 million at any one time outstanding;
(2) Liens in favor of the Company or a Restricted Subsidiary;
13
(3) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated or amalgamated with the Company or any
Restricted Subsidiary, PROVIDED that such Liens were in existence prior to
the contemplation of such merger, consolidation or amalgamation and do not
extend to any assets other than those of the Person merged into or
consolidated or amalgamated with the Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary, PROVIDED that such Liens were in
existence prior to the contemplation of such acquisition and do not extend
to any assets other than such property;
(5) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by Section 4.09(b)(4) hereof covering only the assets acquired
with such Indebtedness;
(7) Liens existing on October 8, 2003;
(8) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
PROVIDED that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(9) Liens securing Permitted Refinancing Indebtedness, PROVIDED that any
such Lien does not extend to or cover any property, Capital Stock or
Indebtedness other than the property, shares or debt securing the
Indebtedness so refunded, refinanced or extended;
(10) attachment or judgment Liens not giving rise to a Default or an
Event of Default;
(11) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security;
(12) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptance, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in
the ordinary course of business, exclusive of Obligations for the payment of
borrowed money;
(13) licenses, permits, reservations, servitudes, easements,
rights-of-way and rights in the nature of easements (including, without
limiting the generality of the foregoing, licenses, easements, rights-of-way
and rights in the nature of easements for railways, sidewalks, public ways,
sewers, drains, gas or oil pipelines, steam, gas and water mains or electric
light and power, or telephone and telegraph or cable television conduits,
poles, wires and cables, reservations, limitations, provisos and conditions
expressed in any original grant from any governmental entity or other grant
of real or immovable property, or any interest therein) and zoning land use
and building restrictions, by-laws, regulations and ordinances of federal,
provincial, regional, state, municipal and other governmental authorities in
respect of real property not interfering, individually or in the aggregate,
in any material respect with the use of the affected real property for the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries at such real property;
(14) Liens of franchisors or other regulatory bodies arising in the
ordinary course of business;
(15) Liens securing reimbursement obligations with respect to letters of
credit that encumber documents and other property relating to such letters
of credit and the products and proceeds thereof;
(16) Liens encumbering customary initial deposits and margin deposits,
and other Liens that are within the general parameters customary in the
industry and incurred in the ordinary course of business, in each case,
securing Indebtedness under Hedging Obligations and forward contracts,
options, future contracts, future options or similar agreements or
arrangements, including mark-to-market transactions designed solely to
protect the Company or any Restricted Subsidiary from fluctuations in
interest rates, currencies or the price of commodities;
(17) Liens consisting of any interest or title of licensor in the
property subject to a license;
14
(18) Liens arising from sales or other transfers of accounts receivable
which are past due or otherwise doubtful of collection in the ordinary
course of business;
(19) any extensions, substitutions, replacements or renewals of the
foregoing clauses (2) through (18); and
(20) Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary with respect to Obligations that do not exceed
US$25 million at any one time outstanding.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the Company
or any Restricted Subsidiary issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or any Subsidiary Guarantor (other than intercompany
Indebtedness); PROVIDED, HOWEVER, that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest thereon and the amount of any reasonably determined premium
necessary to accomplish such refinancing and such reasonable expenses
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes or the
Subsidiary Guarantees, such Permitted Refinancing Indebtedness is
subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(4) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is PARI PASSU in right of payment with the Notes or any
Subsidiary Guarantees, such Permitted Refinancing Indebtedness is
PARI PASSU with, or subordinated in right of payment to, the Notes or such
Subsidiary Guarantees; and
(5) such Indebtedness is incurred either by the Company, a Subsidiary
Guarantor or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same Indebtedness as that evidenced by such
particular Note; and any Note authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same
Indebtedness as the lost, destroyed or stolen Note.
"PREFERRED SHARES" means any Capital Stock of a Person, however designated,
which entitles the holder thereof to a preference with respect to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over shares of any other class of
Capital Stock issued by such Person.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture
except as otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QMI SUBORDINATED LOAN" means the Indebtedness owed by the Company to
Quebecor Media pursuant to the Subordinated Loan Agreement dated March 24, 2003
between the Company and Quebecor Media, as amended.
"QUEBECOR MEDIA" means Quebecor Media Inc., the parent of the Company.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of the Issue Date, among the Company, each Subsidiary Guarantor and the
initial purchasers named therein, as such agreement may be
15
amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements between the Company
and the other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes, or exchange
such Additional Notes for registered notes, under the Securities Act.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
means the applicable date specified as a "Record Date" on the face of the Note.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold for initial resale in reliance on Rule 904.
"RELATED PARTY" means:
(1) any controlling shareholder, 80% (or more) owned Subsidiary, or
immediate family member (in the case of an individual) of any Permitted
Holder, or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, shareholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any one or
more Permitted Holder and/or such other Persons referred to in the
immediately preceding clause (1).
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Department of the Trustee (or any successor
group of the Trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTES" means 144A Global Notes and Regulation S Global
Notes.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PAYMENT" means:
(1) the declaration or payment of any dividend or the making of any
other payment or distribution on account of the Company's or any Restricted
Subsidiary's Equity Interests, including, without limitation, any payment in
connection with any merger or consolidation involving the Company or any
Restricted Subsidiary, or to the direct or indirect holders of the Company's
or any Restricted Subsidiary's Equity Interests in their capacity as such,
other than dividends, payments or distributions payable in Equity Interests
(other than Disqualified Stock or Back-to-Back Securities) of the Company or
to the Company or a Restricted Subsidiary (and, if such Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other
shareholders of such Restricted Subsidiary on a PRO RATA basis or on a basis
that results in the receipt by the Company or a Restricted Subsidiary of
dividends or distributions of greater value than it would receive on a
PRO RATA basis);
(2) the purchase, redemption or other acquisition or retirement for
value, including, without limitation, in connection with any merger or
consolidation involving the Company, of any Equity Interests of the Company,
other than such Equity Interests of the Company held by the Company or any
of its Restricted Subsidiaries;
(3) the making of any payment on or with respect to, or the purchase,
redemption, defeasance or other acquisition or retirement for value of any
Back-to-Back Securities or Indebtedness that is subordinated to the Notes or
the Subsidiary Guarantees, except, in the case of Indebtedness that is
subordinated to the Notes or Subsidiary Guarantees (other than Back-to-Back
Securities and the QMI Subordinated Loan), a payment of interest at the
Stated Maturity of such interest or principal at or within one year of the
Stated Maturity of principal of such Indebtedness; PROVIDED that any
accretion or payment-in-kind of interest on the QMI Subordinated Loan, to
the extent such accretion or payment is not made in cash, will not be a
Restricted Payment;
16
(4) any Restricted Investment; or
(5) the payment of any amount of Management Fees (including Deferred
Management Fees) to a Person other than the Company or a Restricted
Subsidiary.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means, with respect to any Person, any
transaction involving any of the assets or properties of such Person whether now
owned or hereafter acquired, whereby such Person sells or transfers such assets
or properties and then or thereafter leases such assets or properties or any
part thereof or any other assets or properties which such Person intends to use
for substantially the same purpose or purposes as the assets or properties sold
or transferred.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended, and the
rules and regulations thereunder, including any successor legislation and rules
and regulations.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in any Registration
Rights Agreement relating to registering Notes under the Securities Act.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on October 8,
2003.
"SPECIAL INTEREST" has the meaning set forth in any Registration Rights
Agreement and relating to amounts to be paid in the event the Company fails to
satisfy certain conditions set forth therein. For all purposes of this
Indenture, the term "interest" shall include Special Interest, if any, with
respect to the Notes.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the Company or any
Subsidiary Guarantor (whether outstanding on October 8, 2003 or thereafter
incurred) that is subordinate or junior in right of payment to the Notes or any
Subsidiary Guarantee pursuant to a written agreement to that effect.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the
only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"SUBSIDIARY GUARANTEE" means a guarantee on the terms set forth in this
Indenture by a Subsidiary Guarantor of the Company's obligations with respect to
the Notes.
"SUBSIDIARY GUARANTOR" means (1) each Restricted Subsidiary on the Issue
Date other than Societe D'Edition Et De Transcodage T.E. Ltee and its
Subsidiaries and (2) any other Person that becomes a Subsidiary Guarantor
pursuant to the provisions of Section 4.19 hereof or who otherwise executes and
delivers a supplemental indenture to the Trustee providing for a Subsidiary
Guarantee, and in each case their respective successors and assigns until
17
released from their obligations under their Subsidiary Guarantees and this
Indenture in accordance with the terms hereof.
"TAX" means any tax, duty, levy, impost, assessment or other governmental
charge (including penalties, interest and any other liabilities related
thereto).
"TAX BENEFIT TRANSACTION" means, for so long as the Company is a direct or
indirect Subsidiary of Quebecor Inc., any transaction between a Videotron Entity
and Quebecor Inc. or any of its Affiliates, the primary purpose of which is to
create tax benefits for any Videotron Entity or for Quebecor Inc. or any of its
Affiliates; PROVIDED, HOWEVER, that (1) the Videotron Entity involved in the
transaction obtains a favorable tax ruling from a competent tax authority or a
favorable tax opinion from a nationally recognized Canadian law or accounting
firm having a tax practice of national standing as to the tax efficiency of the
transaction for such Videotron Entity; (2) the Company delivers to the Trustee
(a) a resolution of the Board of Directors of the Company to the effect the
transaction will not prejudice the Holders and certifying that such transaction
has been approved by a majority of the disinterested members of such Board of
Directors and (b) an opinion as to the fairness to such Videotron Entity of such
transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing in the United States or Canada,
PROVIDED that such an opinion shall not be required for Tax Benefit Transactions
in amounts not exceeding Cdn$1.0 million (and not exceeding in the aggregate
Cdn$10.0 million for the preceeding 12-month period); (3) such transaction is
set forth in writing; and (4) the Consolidated Cash Flow of the Company is not
reduced after giving PRO FORMA effect to the transaction as if the same had
occurred at the beginning of the most recently ended full fiscal quarter of the
Company for which internal financial statements are available; PROVIDED,
HOWEVER, that if such transaction shall thereafter cease to satisfy the
preceding requirements as a Tax Benefit Transaction, it shall thereafter cease
to be a Tax Benefit Transaction for purposes of this Indenture and shall be
deemed to have been effected as of such date and, if the transaction is not
otherwise permitted by this Indenture as of such date, the Company shall be in
default under this Indenture if such transaction does not comply with the
preceding requirements or is not otherwise unwound within 30 days of that date.
"TIA" means the U.S. Trust Indenture Act of 1939, as amended, and the rules
and regulations thereunder, including any successor legislation and rules and
regulations.
"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.
"UNRESTRICTED DEFINITIVE NOTES" means one or more Definitive Notes that do
not and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTES" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend and are deposited with and
registered in the name of the Depositary or its nominee.
"UNRESTRICTED SUBSIDIARY" means:
(1) any Subsidiary of the Company that is designated after the Issue Date as
an Unrestricted Subsidiary as permitted or required pursuant to the provisions
of Section 4.17 hereof and is not thereafter redesignated as a Restricted
Subsidiary as permitted pursuant thereto; and
(2) any Subsidiary of an Unrestricted Subsidiary.
"VIDEOTRON ENTITY" means any of the Company or any of its Restricted
Subsidiaries.
"VOTING STOCK" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
18
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof,
by (b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any specified Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
will at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Acceleration Notice"....................................... 6.02
"Additional Amounts"........................................ 4.20(a)(3)
"Affiliate Transaction"..................................... 4.14(a)
"Asset Sale Offer".......................................... 4.12(e)
"Authentication Order"...................................... 2.02(d)
"Base Currency"............................................. 12.13(a)
"Benefited Party"........................................... 10.01
"Change of Control Offer"................................... 4.18(a)
"Change of Control Amount".................................. 4.18(a)
"Covenant Defeasance"....................................... 8.03
"DTC"....................................................... 2.03(b)
"Event of Default".......................................... 6.01
"Excess Proceeds"........................................... 4.12
"Excluded Holder"........................................... 4.20(b)
"First Currency"............................................ 12.14
"judgment currency"......................................... 12.13(a)
"Legal Defeasance".......................................... 8.02
"losses".................................................... 7.07
"Offer Amount".............................................. 3.09(b)(ii)
"Offer Period".............................................. 3.09(c)
"Offer to Purchase"......................................... 3.09(a)
"Paying Agent".............................................. 2.03(a)
"Payment Default"........................................... 6.01(v)(a)
"Permitted Debt"............................................ 4.09(b)
"Purchase Date"............................................. 3.09(c)
"rate(s) of exchange"....................................... 12.13
"Registrar"................................................. 2.03(a)
"Security Register"......................................... 3.03
"Surviving Company"......................................... 5.01(a)(1)
"Surviving Guarantor"....................................... 5.01(b)(1)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
(a) Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
19
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Company and any successor obligor upon the
Notes.
(c) All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA and not otherwise defined herein have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural include
the singular;
(v) all references in this instrument to "Articles," "Sections" and
other subdivisions are to the designated Articles, Sections and subdivisions
of this instrument as originally executed;
(vi) 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.
(vii) "including" means "including without limitation;"
(viii)provisions apply to successive events and transactions; and
(ix) references to sections of or rules under the Securities Act, the
Exchange Act or the TIA shall be deemed to include substitute, replacement
or successor sections or rules adopted by the Commission from time to time
thereunder.
ARTICLE 2.
THE NOTES
SECTION 2.01. Form and Dating.
(a) GENERAL. The Notes and the Trustee's certificate of authentication
shall be substantially in the form included in Exhibit A hereto, which is hereby
incorporated in and expressly made part of this Indenture. The Notes may have
notations, legends or endorsements required by law, exchange rule or usage in
addition to those set forth on Exhibit A. Each Note shall be dated the date of
its authentication. The Notes shall be in denominations of US$1,000 and integral
multiples thereof. The terms and provisions contained in the Notes shall
constitute a part of this Indenture, and the Company, the Subsidiary Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby. To the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) FORM OF NOTES. Notes shall be issued initially in global form and shall
be substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such aggregate principal
amount of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate
20
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions and transfers of interests therein. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) BOOK-ENTRY PROVISIONS. This Section 2.01(c) shall apply only to Global
Notes deposited with the Trustee, as custodian for the Depositary. Participants
and Indirect Participants shall have no rights under this Indenture or any
Global Note with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as custodian for the Depositary, and the Depositary
shall be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants or Indirect
Participants, the Applicable Procedures or the operation of customary practices
of the Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Note.
(d) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
SECTION 2.02. Execution and Authentication.
(a) One Officer shall execute the Notes on behalf of the Company by manual
or facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated by the Trustee, the Note shall nevertheless
be valid.
(c) A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by an
Officer (an "AUTHENTICATION ORDER"), authenticate Notes for original issue.
(e) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless otherwise provided in such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent shall have the same rights
as an Agent with respect to Holders.
SECTION 2.03 Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes, and the
Trustee hereby agrees so to initially act.
21
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all funds held by it
relating to the Notes to the Trustee. The Company at any time may require a
Paying Agent to pay all funds held by it relating to the Notes to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for such funds. If the Company or
a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all funds held by it as Paying Agent.
Upon any Event of Default under Sections 6.01(viii) and (ix) hereof relating to
the Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of all Holders
and shall otherwise comply with TIA Section312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date or such shorter time
as the Trustee may allow, as the Trustee may reasonably require of the names and
addresses of the Holders and the Company shall otherwise comply with TIA
Section312(a).
SECTION 2.06. Transfer and Exchange.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. The Company shall exchange Global
Notes for Definitive Notes if: (1) the Company delivers to the Trustee a notice
from the Depositary that the Depositary is unwilling or unable to continue to
act as Depositary for the Global Notes or that it has ceased to be a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary; (2) the Company at its option determines that
the Global Notes shall be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; or (3) a Default or Event of Default shall
have occurred and be continuing. Upon the occurrence of any of the preceding
events in clauses (1), (2) or (3) above, Definitive Notes shall be issued in
denominations of US$1,000 or integral multiples thereof and in such names as the
Depositary shall instruct the Trustee in writing. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Except as provided above, every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), and beneficial interests in a Global Note may not be
transferred and exchanged other than as provided in
Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in Global Notes also shall require compliance with either
clause (i) or (ii) below, as applicable, as well as one or more of the other
following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer restrictions
set forth in the Private Placement Legend and any Applicable Procedures;
PROVIDED, HOWEVER, that prior to the expiration of the Distribution
Compliance Period, transfers of beneficial interests in Regulation S Global
Note may not be made to or for the account or benefit of a "U.S. Person"
(as defined in Rule 902(k) of Regulation S) (other than a "distributor"
22
(as defined in Rule 902(d) of Regulation S)). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.
Except as may be required by any Applicable Procedures, no written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in Global
Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A)(1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) if permitted under
Section 2.06(a) hereof, (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (B)(1) above. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture
and the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global Note to
Another Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial
interest in a 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial
interest in a Regulation S Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to an Exchange
Offer in accordance with a Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal (or is deemed to
have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to an
Exchange Offer Registration Statement in accordance with a Registration
Rights Agreement; or
23
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this clause (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that
such exchange or transfer shall be effected in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D) above at a
time when an Unrestricted Global Note has not yet been issued, the Company shall
execute and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to
clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in Unrestricted Global
Notes for Beneficial Interests in Restricted Global Notes
Prohibited. Beneficial interests in an Unrestricted Global Note may not be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, beneficial interests in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE NOTES.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. Subject to Section 2.06(a) hereof, if any holder of a
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
"non-U.S. Person" (as defined in Rule 902(k) of Regulation S) in an
offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed
in clauses (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, as applicable; or
(F) if such beneficial interest is being transferred to the Company
or any of its Subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof,
the Trustee shall reduce or cause to be reduced in a corresponding amount
pursuant to Section 2.06(h) hereof the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and,
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upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate and deliver a Restricted Definitive
Note in the appropriate principal amount to the Person designated by the
holder of such beneficial interest in instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder. Any Restricted Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c)(i) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee shall
deliver such Restricted Definitive Notes to the Persons in whose names such
Notes are so registered. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. Subject to Section 2.06(a) hereof, a holder of a
beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an Exchange
Offer in accordance with a Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, makes any and all certifications
in the applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as
may be required by such Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to an
Exchange Offer Registration Statement in accordance with a Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer shall be effected in compliance with
the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend shall no longer be
required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of this
Section 2.06(c)(ii) the Company shall execute, and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate and deliver an Unrestricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial
interest in instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such holder, and the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof the aggregate principal amount of the applicable
Restricted Global Note.
(iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. Subject to Section 2.06(a) hereof, if any holder of a
beneficial interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note, then, upon satisfaction of the applicable
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall reduce
or cause to be reduced in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of the applicable
25
Unrestricted Global Note, and the Company shall execute and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate and deliver an Unrestricted Definitive Note in the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on behalf
of such holder. Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall designate in
such instructions. The Trustee shall deliver such Unrestricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall not bear the Private Placement
Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note,
a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof; or
(C) if such Restricted Definitive Note is being transferred to a
"non-U.S. Person" (as defined in Rule 902(k) of Regulation S) in an
offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, a 144A Global Note, and in the case of clause (C) above, a
Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to a Exchange
Offer in accordance with a Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, makes such certifications in the
applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as
may be required by such Registration Rights Agreement;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to an
Exchange Offer Registration Statement in accordance with a Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or
(2) if the holder of such Restricted Definitive Note proposes to
transfer such Note to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note, a
26
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer shall be effected in compliance with
the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend shall no longer be
required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in this
Section 2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note
and increase or cause to be increased in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of the Unrestricted Global
Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Unrestricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased in a corresponding amount pursuant to
Section 2.06(h) hereof the aggregate principal amount of one of the
Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to Beneficial
Interests in Restricted Global Notes Prohibited. An Unrestricted Definitive
Note may not be exchanged for, or transferred to Persons who take delivery
thereof in the form of, beneficial interests in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such exchange or
transfer of a Definitive Note for a beneficial interest in an Unrestricted
Global Note is effected pursuant to clause (ii)(B), (ii)(D) or (iii) above
at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES. Upon
request by a holder of Definitive Notes and such holder's compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such holder. In
addition, the requesting holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904, a
certificate in the form of Exhibit B hereto, including the certifications
in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, a certificate in the
form of Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an Exchange
Offer in accordance with a Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or
27
the transferee, in the case of a transfer, makes such certifications in
the applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as
may be required by such Registration Rights Agreement;
(B) any such transfer is effected pursuant to a Shelf Registration
Statement in accordance with a Registration Rights Agreement;
(C) any such transfer is effected by a broker-dealer pursuant to an
Exchange Offer Registration Statement in accordance with a Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof; or
(2) if the holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this clause (D), if the Registrar
so requests, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer shall be
effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend shall no longer be required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of
Section 2.06(e)(ii) the Trustee shall cancel the prior Restricted
Definitive Note and the Company shall execute, and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive
Note in the appropriate principal amount to the Person designated by
the holder of such prior Restricted Definitive Note in instructions
delivered to the Registrar by such holder.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from
the Holders thereof.
(f) EXCHANGE OFFER. Upon the occurrence of an Exchange Offer in accordance
with a Registration Rights Agreement, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the applicable Restricted Global Notes (A) tendered for acceptance by Persons
that make any and all certifications in the applicable Letters of Transmittal
(or are deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights Agreement,
and (B) accepted for exchange in the Exchange Offer and (ii) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who made
the foregoing certification and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall reduce or cause
to be reduced in a corresponding amount the aggregate principal amount of the
applicable Restricted Global Notes, and the Company shall execute and the
Trustee shall authenticate and deliver to the Persons designated by the holders
of Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
28
(i) Private Placement Legend.
(A) Except as permitted by clause (B) below, each Global Note and
each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the
following form:
"THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH VIDEOTRON LTEE (THE "COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY
PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE
RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE,
OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to clauses (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
29
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS MAY BE 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."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 4.12, 4.18 and 9.05 hereof).
(ii) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Company, evidencing the same Indebtedness, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.
(iii) Neither the Registrar nor the Company shall be required (A) to
issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the date of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date (including a Regular
Record Date) and the next succeeding Interest Payment Date.
(iv) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for
the purpose of receiving payment of principal of and interest on such Note
and for all other purposes, in each case regardless of any notice to the
contrary.
(v) All certifications, certificates and Opinions of Counsel required to
be submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
(vi) The Trustee is hereby authorized and directed to enter into a
letter of representation with the Depositary in the form provided by the
Company and to act in accordance with such letter.
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SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, shall authenticate
a replacement Note. If required by the Trustee or the Company, the Holder of
such Note shall provide indemnity sufficient, in the judgment of the Trustee or
the Company, as applicable, to protect the Company, the Trustee, any Agent and
any authenticating agent from any loss that any of them may suffer in connection
with such replacement. If required by the Company, such Holder shall reimburse
the Company for its reasonable expenses in connection with such replacement.
Every replacement Note issued in accordance with this Section 2.07 shall be
the valid obligation of the Company evidencing the same Indebtedness as the
destroyed, lost or stolen Note and shall be entitled to all of the benefits of
this Indenture equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.08. Outstanding Notes.
(a) The Notes outstanding at any time shall be the entire principal amount
of Notes represented by all the Global Notes and Definitive Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected by
the Trustee in accordance with Section 2.06 hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note shall not cease to be outstanding because the Company or an Affiliate of
the Company holds the Note; PROVIDED, HOWEVER, that Notes held by the Company or
a Subsidiary of the Company shall be deemed not to be outstanding for purposes
of Section 3.07(c) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it shall cease to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01 hereof, it shall cease to be outstanding and interest on it shall
cease to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date, a Purchase Date or
maturity date, funds sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent, Notes owned by the Company,
or by any Affiliate of the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Definitive Notes but may
have variations that the Company considers appropriate for temporary Notes and
as shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate Global Notes or
Definitive Notes in exchange for temporary Notes, as applicable.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. Upon sole
direction of the Company, the Trustee shall cancel all Notes surrendered for
registration of transfer, exchange,
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payment, replacement or cancellation and shall destroy cancelled Notes (subject
to the record retention requirements of the Exchange Act or other applicable
laws). Certification of the destruction of all cancelled Notes shall be
delivered to the Company from time to time upon request. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, PROVIDED that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company
(or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
SECTION 2.13. CUSIP or ISIN Numbers.
The Company in issuing the Notes may use "CUSIP" or "ISIN" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" or "ISIN" numbers
in notices of redemption as a convenience to Holders; PROVIDED, HOWEVER, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Notes or as contained in any notice of
a redemption or notice of an Offer to Purchase and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such
redemption or Offer to Purchase shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the "CUSIP" or "ISIN" numbers.
SECTION 2.14. Special Interest.
If Special Interest is payable by the Company pursuant to a Registration
Rights Agreement and paragraph 1 of the Notes, the Company shall deliver to the
Trustee a certificate to that effect stating (i) the amount of such Special
Interest that is payable and (ii) the date on which such interest is payable
pursuant to Section 4.01 hereof. Unless and until a Responsible Officer of the
Trustee receives such a certificate or instruction or direction from the Holders
in accordance with the terms of this Indenture, the Trustee may assume without
inquiry that no Special Interest is payable. The foregoing shall not prejudice
the rights of the Holders with respect to their entitlement to Special Interest
as otherwise set forth in this Indenture or the Notes and pursuing any action
against the Company directly or otherwise directing the Trustee to take any such
action in accordance with the terms of this Indenture and the Notes. If the
Company has paid Special Interest directly to the Persons entitled to it, the
Company shall deliver to the Trustee an Officers' Certificate setting forth the
details of such payment.
SECTION 2.15. Issuance of Additional Notes.
The Company shall be entitled, subject to its compliance with Section 4.09
hereof, to issue Additional Notes under this Indenture which shall have
identical terms as the Initial Notes issued on the date hereof, other than with
respect to the date of issuance, issue price and rights under a related
Registration Rights Agreement, if any. The Initial Notes issued on the date
hereof, any Additional Notes and all Exchange Notes issued in exchange therefor
shall be treated as a single class for all purposes under this Indenture,
including without limitation, directions, waivers, consents, redemptions and
Offers to Purchase.
With respect to any Additional Notes, the Company shall set forth in a Board
Resolution and an Officers' Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
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(b) the issue price, the issue date and the CUSIP and/or ISIN number of such
Additional Notes; PROVIDED, HOWEVER, that no Additional Notes may be issued at a
price that would cause such Additional Notes to have "original issue discount"
within the meaning of Section 1273 of the Code; and
(c) whether such Additional Notes shall be subject to the restrictions on
transfer set forth in Section 2.06 hereof relating to Restricted Global Notes
and Restricted Definitive Notes.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least
45 days but not more than 60 days before a redemption date (or such shorter
period as allowed by the Trustee), an Officers' Certificate setting forth
(i) the applicable section of this Indenture pursuant to which the redemption
shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
SECTION 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
PRO RATA basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of US$1,000 or integral multiples of
US$1,000, except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not an integral
multiple of US$1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days prior to a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at such ▇▇▇▇▇▇'s
address appearing in the securities register maintained in respect of the Notes
by the Registrar (the "SECURITY REGISTER").
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price or if the redemption is made pursuant to
Section 3.07(b) hereof a calculation of the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent
to collect the redemption price;
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(f) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(g) the applicable section of this Indenture pursuant to which the Notes
called for redemption are being redeemed; and
(h) that no representation is made as to the correctness of the CUSIP or
ISIN numbers, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at its expense; PROVIDED, HOWEVER, that the Company shall
have delivered to the Trustee, at least 45 days (or such shorter period allowed
by the Trustee) prior to the redemption date, an Officers' Certificate
requesting that the Trustee give such notice (in the name and at the expense of
the Company) and setting forth the information to be stated in such notice as
provided in this Section 3.03.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption shall become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. Deposit of Redemption Price.
On or prior to 11:00 a.m. Eastern time on the Business Day prior to any
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and accrued and unpaid
interest on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be
redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption in accordance with
Section 2.08(d) hereof. If a Note is redeemed on or after a Regular Record Date
but on or prior to the related Interest Payment Date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such Regular Record Date. If any Note
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal from the redemption date until such
principal is paid, and to the extent lawful on any interest not paid on such
unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) of this Section 3.07, the
Notes shall not be redeemable at the option of the Company prior to
December 15, 2010. Beginning on December 15, 2010, the Company may redeem all or
a part of the Notes, at once or over time, in accordance with Section 3.03
hereof, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest thereon on the Notes redeemed,
to the applicable redemption date (subject to the right of Holders of record on
the relevant Regular
34
Record Date to receive interest due on the relevant Interest Payment Date), if
redeemed during the twelve-month period commencing on December 15 of the years
indicated below:
Redemption Year Percentage
--------------- ----------
2010........................................................ 103.188%
2011........................................................ 102.125%
2012........................................................ 101.063%
2013 and thereafter......................................... 100.000%
(b) At any time and from time to time prior to December 15, 2008, the
Company may on one or more occasions redeem up to 35% of the aggregate principal
amount of the Notes issued under this Indenture at a redemption price (expressed
as a percentage of principal amount) equal to 106.375% of the principal amount
thereof, plus accrued and unpaid interest thereon to the redemption date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date) with the net cash
proceeds of one or more Equity Offerings; PROVIDED, HOWEVER, that (i) at least
65% of the aggregate principal amount of the Notes issued under this Indenture
(excluding Notes held by the Company and its Subsidiaries) remain outstanding
immediately following such redemption and (ii) any such redemption shall be made
within 90 days of the date of closing of any such Equity Offering.
(c) If the Company becomes obligated to pay any Additional Amounts because
of a change in the laws or regulations of Canada or any Canadian Taxing
Authority, or a change in any official position regarding the application or
interpretation thereof, in either case that is publicly announced or becomes
effective on or after the Issue Date, the Company may, at any time, redeem all,
but not part, of the Notes at a price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date, PROVIDED that
at any time that the aggregate principal amount of the Notes outstanding is
greater than US$20.0 million, any Holder of the Notes may, to the extent that it
does not adversely affect the Company's after-tax position, at its option, waive
the Company's compliance with the provisions of Section 4.20 hereof with respect
to such Holder's Notes; PROVIDED, FURTHER, that if any Holder waives such
compliance, the Company may not redeem that Holder's Notes pursuant to this
Section 3.07(c).
(d) Any prepayment pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. Mandatory Redemption.
Except as set forth in Sections 4.12 and 4.18 hereof, the Company shall not
be required to make mandatory redemption or sinking fund payments with respect
to, or offers to purchase, the Notes.
SECTION 3.09. Offers To Purchase.
(a) In the event that, pursuant to Section 4.12 or 4.18 hereof, the Company
shall be required to commence an Asset Sale Offer or Change of Control Offer
(each, an "OFFER TO PURCHASE"), it shall follow the procedures specified below.
(b) The Company shall commence the Offer to Purchase by sending, by
first-class mail, with a copy to the Trustee, to each Holder, at such ▇▇▇▇▇▇'s
address appearing in the Security Register a notice, the terms of which shall
govern the Offer to Purchase, stating:
(i) that the Offer to Purchase is being made pursuant to this
Section 3.09 and Section 4.12 or 4.18, as the case may be, and, in the case
of a Change of Control Offer, that a Change of Control has occurred, the
transaction or transactions that constitute the Change of Control, and that
a Change of Control Offer is being made pursuant to Section 4.18 hereof;
(ii) the principal amount of Notes required to be purchased pursuant to
Section 4.12 or 4.18 hereof (the "OFFER AMOUNT"), the purchase price, the
Offer Period and the Purchase Date (each as defined below);
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(iii) except as provided in clause (ix), that all Notes timely tendered
and not withdrawn shall be accepted for payment;
(iv) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(v) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to accrue
interest on or after the Purchase Date;
(vi) that Holders electing to have a Note purchased pursuant to the
Offer to Purchase may elect to have Notes purchased in integral multiples of
US$1,000 only;
(vii) that Holders electing to have a Note purchased pursuant to the
Offer to Purchase shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a Depositary,
if appointed by the Company, or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;
(viii)that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note (or portions thereof) the Holder delivered for purchase
and a statement that such ▇▇▇▇▇▇ is withdrawing his election to have such
Note purchased;
(ix) that, in the case of an Asset Sale Offer, if the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount,
the Company shall select the Notes to be purchased on a PRO RATA basis (with
such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of US$1,000 or integral multiples thereof shall be
purchased);
(x) that Holders whose Notes were purchased in part shall be issued new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer)
(xi) any other procedures that Holders must follow in order to tender
their Notes (or portions thereof) for payment.
(c) The Offer to Purchase shall remain open for a period of at least
30 days but no more than 60 days following its commencement, except to the
extent that a longer period is required by applicable law (the "OFFER PERIOD").
No later than five Business Days after the termination of the Offer Period
(the "PURCHASE DATE"), the Company shall purchase the Offer Amount or, if less
than the Offer Amount has been tendered, all Notes tendered in response to the
Offer to Purchase. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.
(d) On or prior to the Purchase Date, the Company shall, to the extent
lawful:
(i) accept for payment (on a PRO RATA basis to the extent necessary in
connection with an Asset Sale Offer) the Offer Amount of Notes or portions
of Notes properly tendered pursuant to the Offer to Purchase, or if less
than the Offer Amount has been tendered, all Notes tendered;
(ii) deposit with the Paying Agent an amount equal to the Offer Amount
in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions of Notes being purchased by the
Company and that such Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.09.
(e) The Company, the Depositary or the Paying Agent, as the case may be,
shall promptly (but in any event not later than five Business Days after the
Purchase Date) deliver to each tendering Holder of Notes properly tendered and
accepted by the Company for purchase the Purchase Amount for such Notes, and the
Company shall promptly execute and issue a new Note, and the Trustee, upon
receipt of an Authentication Order shall authenticate and deliver (or cause to
be transferred by book-entry) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered PROVIDED,
HOWEVER, that each such new Note shall be in a principal amount of US$1,000 or
an integral multiple of US$1,000. Any Note not so accepted shall be promptly
36
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Purchase Date.
(f) If the Purchase Date is on or after a Regular Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Offer to Purchase.
(g) The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the Offer to
Purchase. To the extent that the provisions of any securities laws or
regulations conflict with Section 4.12 or 4.18, as applicable, this
Section 3.09 or other provisions of this Indenture, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under Section 4.12 or 4.18, as applicable, this
Section 3.09 or such other provision by virtue of such conflict.
(h) Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made in accordance with the provisions of
Section 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if any,
and interest on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 11:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Company shall pay
Special Interest, if any, in the same manner, on the dates and in the amounts
set forth in a Registration Rights Agreement, the Notes and this Indenture. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods), from time to time on demand at
the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day 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.
SECTION 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain an office or agency (which may be an office
or drop facility of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be presented or surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of any change in the location of 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.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such
37
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the Trustee,
as such office, drop facility or agency of the Company in accordance with
Section 2.03 hereof.
SECTION 4.03. Reports.
(a) Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes
are outstanding the Company shall file with the Commission, and shall furnish to
the Holders and the Trustee:
(1) within 120 days after the end of each fiscal year of the Company,
annual reports on Form 20-F or 40-F, as applicable, or any successor form;
and
(2) (a) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, reports on Form 10-Q or any
successor form, or (b) within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, reports on
Form 6-K, or any successor form, which in each case, regardless of
applicable requirements, shall, at a minimum, contain a "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
and, with respect to any such reports, a reconciliation to U.S. GAAP as
permitted by the Commission for foreign private issuers.
(b) For so long as any Notes remain outstanding, the Company shall furnish
to the Holders, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
(c) If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
this Section shall include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes thereto, and in
Management's Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company
and the Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
SECTION 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company and its Subsidiaries have kept, observed,
performed and fulfilled their obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company and its Subsidiaries have kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.
(b) The Company shall otherwise comply with TIA Section314(a)(2).
(c) The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Default or Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
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SECTION 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies,
except such as are being contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders.
SECTION 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, 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, that 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 shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.07. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Restricted
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and the Restricted Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any Restricted Subsidiary,
if the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
the Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes, or that such
preservation is not necessary in connection with any transaction not prohibited
by this Indenture.
SECTION 4.08. Payments for Consent.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, pay or cause to be paid any consideration, to or for the
benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid and is paid to all Holders that
consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred Shares.
(a) The Company shall not, and shall not permit any of its Subsidiaries to,
Incur, directly or indirectly, any Indebtedness, including Acquired Debt, and
the Company shall not issue any Disqualified Stock and shall not permit any of
its Subsidiaries to issue any Preferred Shares; PROVIDED, HOWEVER, that the
Company may Incur Indebtedness, including Acquired Debt, or issue Disqualified
Stock, and the Subsidiary Guarantors may Incur Indebtedness, including Acquired
Debt, or issue Preferred Shares if the Company's Debt to Cash Flow Ratio at the
time of Incurrence of such Indebtedness or the issuance of such Disqualified
Stock or Preferred Shares, after giving PRO FORMA effect to such Incurrence or
issuance as of such date and to the use of proceeds therefrom, taking into
account any substantially concurrent transactions related to such Incurrence, as
if the same had occurred at the beginning of the most recently ended full fiscal
quarter of the Company for which internal financial statements are available,
would have been no greater than 5.5 to 1.0.
39
(b) Paragraph (a) of this Section 4.09 shall not prohibit the Incurrence of
any of the following items of Indebtedness or issuances of Preferred Shares
(each such item being referred to herein as "PERMITTED DEBT"):
(1) the Incurrence by the Company or a Subsidiary Guarantor of
Indebtedness and letters of credit under Credit Facilities in an aggregate
principal amount at any one time outstanding under this clause (1) (with
letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Company and the Restricted Subsidiaries
thereunder) not to exceed an aggregate of Cdn$469.0 million, LESS the
aggregate amount of all Net Proceeds of Asset Sales applied by the Company
or any Restricted Subsidiaries subsequent to October 8, 2003 to permanently
repay Indebtedness under a Credit Facility (and, in the case of any
revolving credit Indebtedness, to effect a corresponding commitment
reduction thereunder) pursuant to the provisions of Section 4.12 hereof;
(2) the Incurrence by the Company and the Restricted Subsidiaries of the
Existing Indebtedness;
(3) the Incurrence by (a) the Company of Indebtedness represented by the
Initial Notes and the Exchange Notes to be issued in exchange for such
Initial Notes and in exchange for any Additional Notes, and (b) the
Subsidiary Guarantors of Indebtedness represented by the Subsidiary
Guarantees relating to the Initial Notes and the guarantees issued in
exchange for such Subsidiary Guarantees and in exchange for the Subsidiary
Guarantees relating to any Additional Notes;
(4) the Incurrence by the Company or a Subsidiary Guarantor of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case, Incurred for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the
Company or such Subsidiary Guarantor, in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness Incurred pursuant to this
clause (4), not to exceed US$40.0 million at any time outstanding;
(5) the Incurrence by the Company or any Subsidiary Guarantor of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness, other than
intercompany Indebtedness, that was permitted by this Indenture to be
incurred under paragraph (a) or clauses (b)(2), (b)(3) and (b)(4) of this
Section 4.09;
(6) the Incurrence by the Company or any Subsidiary Guarantor of
intercompany Indebtedness between or among the Company and any Restricted
Subsidiary; PROVIDED, HOWEVER, that:
(i) if the Company or any Subsidiary Guarantor is the obligor on
such Indebtedness, such Indebtedness must be unsecured and expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes, in the case of the Company, or the Subsidiary
Guarantee, in the case of a Subsidiary Guarantor, and
(ii) (a) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Company or a Restricted Subsidiary and (b) any sale or other transfer of
any such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this
clause (6);
(7) the issuance by the Company or any Restricted Subsidiary of
Preferred Shares solely to or among the Company and any Restricted
Subsidiaries; PROVIDED, HOWEVER, that (a) any subsequent issuance or
transfer of Equity Interests that results in any such Preferred Shares being
held by a Person other than the Company or a Restricted Subsidiary and
(b) any sale or other transfer of any such Preferred Shares to a Person that
is not either the Company or a Restricted Subsidiary shall be deemed, in
each case, to constitute an issuance of such Preferred Shares by the Company
or a Restricted Subsidiary, as the case may be, that was not permitted by
this clause (7);
40
(8) the Incurrence by the Company or any Restricted Subsidiary of
Hedging Obligations that are Incurred in the ordinary course of business of
the Company or such Restricted Subsidiary and not for speculative purposes;
PROVIDED, HOWEVER, that, in the case of:
(i) any Interest Rate Agreement, the notional principal amount of
such Hedging Obligation does not exceed the principal amount of the
Indebtedness to which such Hedging Obligation relates; and
(ii) any Currency Exchange Protection Agreement, such Hedging
Obligation does not increase the principal amount of Indebtedness of the
Company or such Restricted Subsidiary outstanding other than as a result
of fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(9) the guarantee by the Company or a Subsidiary Guarantor of
Indebtedness of the Company or a Subsidiary Guarantor that was permitted to
be Incurred by another provision of this Section 4.09;
(10) the Incurrence by the Company or any Subsidiary Guarantors of
Indebtedness in an aggregate principal amount at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this
clause (10), not to exceed US$25.0 million;
(11) the Incurrence by the Company or any Restricted Subsidiary of
Indebtedness in an aggregate principal amount at any time outstanding,
including all Permitted Refinancing Indebtedness Incurred to refund,
refinance or replace any Indebtedness Incurred pursuant to this
clause (11), not to exceed US$25.0 million, LESS the aggregate amount of all
Net Proceeds of Asset Sales applied by the Company or any Restricted
Subsidiary subsequent to October 8, 2003 to permanently repay such
Indebtedness (and, in the case of any revolving credit Indebtedness, to
effect a corresponding commitment reduction thereunder) pursuant to the
provisions of Section 4.12 hereof;
(12) the issuance of Preferred Shares by the Company's Unrestricted
Subsidiaries or the Incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt; PROVIDED, HOWEVER, that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary, that event shall be
deemed to constitute an Incurrence of Indebtedness by a Restricted
Subsidiary that was not permitted by this clause (12);
(13) the issuance of Indebtedness or Preferred Shares in connection with
a Tax Benefit Transaction.
(c) The accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of Disqualified Stock
(to the extent provided for when the Indebtedness or Disqualified Stock on which
such interest or dividend is paid was originally issued) shall not be deemed to
be an Incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section 4.09; PROVIDED that in each case the amount thereof is
for all other purposes included in the Consolidated Interest Expense and
Indebtedness of the Company or its Restricted Subsidiary as accrued.
(d) Neither the Company nor any Subsidiary Guarantor shall Incur any
Indebtedness, including Permitted Debt, that is contractually subordinated in
right of payment to any other Indebtedness of the Company or such Subsidiary
Guarantor, as applicable, unless such Indebtedness is also contractually
subordinated in right of payment to the Notes or the Subsidiary Guarantee, as
applicable, on substantially identical terms; PROVIDED, HOWEVER, that no
Indebtedness of the Company or a Subsidiary Guarantor shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company or such Subsidiary Guarantor, as applicable, solely by virtue of
collateral or lack thereof.
(e) Notwithstanding any other provision of this Section 4.09, the maximum
amount of Indebtedness that may be Incurred pursuant to this Section 4.09 will
not be deemed to be exceeded with respect to any outstanding Indebtedness due
solely to the result of fluctuations in the exchange rate of currencies.
(f) For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in
clauses (b)(1) through (13) above, or is entitled to be Incurred pursuant to
paragraph (a) of this Section 4.09, the Company shall be permitted to classify
such item of Indebtedness on the date of its Incurrence or later reclassify all
or a portion of such item of Indebtedness, in any manner that complies with this
Section. Indebtedness under
41
Credit Facilities outstanding on the date on which Notes are first issued and
authenticated under this Indenture shall be deemed to have been Incurred on such
date in reliance on the exception provided by clause (1) of paragraph (b) of
this Section 4.09.
SECTION 4.10. Restricted Payments.
(a) The Company shall not make, and shall not permit any Restricted
Subsidiary to make, directly or indirectly, any Restricted Payment, unless, at
the time of and after giving effect to such Restricted Payment,
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment; and
(2) the Company would, at the time of such Restricted Payment and after
giving PRO FORMA effect thereto as if such Restricted Payment had been made
at the beginning of the applicable fiscal quarter, have been permitted to
Incur at least US$1.00 of additional Indebtedness, other than Permitted
Debt, pursuant to the Debt to Cash Flow Ratio test set forth in
Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments declared or made by the Company and its Restricted
Subsidiaries after October 8, 2003, excluding Restricted Payments made
pursuant to clauses (2), (3), (4), (6), (7), (8), (9) and (10) of
paragraph (b) below, shall not exceed, at the date of determination, the
sum, without duplication, of:
(a) an amount equal to the Company's Consolidated Cash Flow from
October 1, 2003 to the end of the Company's most recently ended full
fiscal quarter for which internal financial statements are available,
taken as a single accounting period, less 1.5 times the Company's
Consolidated Interest Expense from the October 1, 2003 to the end of the
Company's most recently ended full fiscal quarter for which internal
financial statements are available, taken as a single accounting period
(or, if such amount for such period is a deficit, minus 100% of such
deficit); plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds, less any
such Capital Stock Sale Proceeds used in connection with:
(i) an Investment made pursuant to clause (6) of the definition
of "Permitted Investments;" or
(ii) an Incurrence of Indebtedness pursuant to
Section 4.09(b)(8) hereof; plus
(c) to the extent that any Restricted Investment that was made after
October 8, 2003 is sold for cash or otherwise liquidated or repaid for
cash (except to the extent any such payment or proceeds are included in
the calculation of Consolidated Cash Flow), the lesser of (i) the cash
return of capital with respect to such Restricted Investment, less the
cost of disposition, if any, and (ii) the initial amount of such
Restricted Investment; plus
(d) to the extent that the Board of Directors of the Company
designates any Unrestricted Subsidiary that was designated as such after
October 8, 2003 as a Restricted Subsidiary, the lesser of (i) the
aggregate fair market value of all Investments owned by the Company and
the Restricted Subsidiaries in such Subsidiary at the time such
Subsidiary was designated as an Unrestricted Subsidiary and (ii) the then
aggregate fair market value of all Investments owned by the Company and
the Restricted Subsidiaries in such Unrestricted Subsidiary.
(b) The provisions of paragraph (a) above shall not prohibit:
(1) so long as no Default has occurred and is continuing or would be
caused thereby, the payment of any dividend within 60 days after the date
the dividend is declared, if at that date of declaration such payment would
have complied with the provisions of this Indenture; PROVIDED, HOWEVER, that
such dividend shall be included in the calculation of the amount of
Restricted Payments;
(2) so long as no Default has occurred and is continuing or would be
caused thereby, the redemption, repurchase, retirement, defeasance or other
acquisition of any Subordinated Indebtedness of the Company or any
Subsidiary Guarantor or of any Equity Interests of the Company in exchange
for, or out of the net cash proceeds of the substantially concurrent sale,
other than to a Subsidiary of the Company or an employee stock
42
ownership plan or to a trust established by the Company or any Subsidiary of
the Company for the benefit of its employees, of, Equity Interests of the
Company (other than Disqualified Stock or Back-to-Back Securities); PROVIDED
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (a)(3)(b) above;
(3) so long as no Default has occurred and is continuing or would be
caused thereby, the defeasance, redemption, repurchase or other acquisition
of Subordinated Indebtedness of the Company or any Subsidiary Guarantor with
the net cash proceeds from an Incurrence of Permitted Refinancing
Indebtedness;
(4) any payment by the Company or a Restricted Subsidiary to any one of
the other of them;
(5) so long as no Default has occurred and is continuing or would be
caused thereby, the repurchase, redemption or other acquisition or
retirement for value by the Company of any Equity Interests of the Company
held by any member of the management of the Company or any of its
Subsidiaries pursuant to any management equity subscription agreement or
stock option agreement in effect as of October 8, 2003; PROVIDED, HOWEVER,
that the aggregate price paid for all such repurchased, redeemed, acquired
or retired Equity Interests shall not exceed US$2.0 million in any
twelve-month period;
(6) payments of any kind made in connection with or in respect of
Back-to-Back Securities; PROVIDED, HOWEVER, that to the extent such payments
shall be made to Affiliates of the Company (other than its Subsidiaries),
all corresponding payments required to be paid by such Affiliates pursuant
to the related Back-to-Back Securities shall be received, immediately prior
to or concurrently with any such payments, by all applicable Videotron
Entities;
(7) so long as no Default has occurred and is continuing or would be
caused thereby, any Tax Benefit Transaction;
(8) so long as no Default has occurred and is continuing or would be
caused thereby, the payment of any Management Fees or other similar expenses
by the Company to its direct or indirect parent company for bona fide
services (including reimbursement for expenses Incurred in connection with,
or allocation of corporate expenses in relation to, providing such services)
provided to, and directly related to the operations of, the Company and the
Restricted Subsidiaries, in an aggregate amount not to exceed 1.5% of
Consolidated Revenues in any twelve-month period;
(9) so long as no Default has occurred and is continuing or would be
caused thereby, other Restricted Payments since October 8, 2003 in an
aggregate amount not to exceed US$30.0 million; and
(10) so long as no Default has occurred and is continuing or would be
caused thereby and the Debt to Cash Flow Ratio is no greater than 5.0 to 1
(calculated on a PRO FORMA basis as if such payment, including any related
financing transaction, had occurred at the beginning of the applicable
fiscal quarter), the payment of dividends or distributions to Quebecor Media
or the repayment of the QMI Subordinated Loan, in an aggregate amount not to
exceed Cdn$200.0 million since October 8, 2003.
(c) The amount of any Restricted Payment, other than those effected in cash,
shall be the fair market value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued to or by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to
be valued pursuant to this Section 4.10 shall be determined by the Board of
Directors of the Company whose resolution with respect thereto shall be
delivered to the Trustee. The determination of the Board of Directors of the
Company shall be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing in the United States
or Canada if the fair market value exceeds US$25.0 million; PROVIDED, that the
Board of Directors of the Company shall not be required to obtain such an
opinion or appraisal in connection with any payments with respect to
Back-to-Back Securities to the extent such Back-to-Back Transactions were
approved in accordance with the provisions of Section 4.14 hereof. Not later
than the date of making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.10 were computed, together with a copy of any fairness opinion or
appraisal required by this Indenture.
43
(d) For purposes of this Section 4.10, if (i) any Videotron Entity ceases to
be the obligor under or issuer of any Back-to-Back Securities and a Person other
than a Videotron Entity becomes the obligor thereunder (or the issuer of any
Back-to-Back Preferred Shares) or (ii) any Restricted Subsidiary that is an
obligor under or issuer of any Back-to-Back Securities ceases to be a Restricted
Subsidiary other than by consolidation or merger with the Company or another
Restricted Subsidiary, then 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 Back-to-Back Debt (or the subscription price of any Back-to-Back
Preferred Shares) at the time of the assumption thereof by such other Person or
at the time such Restricted Subsidiary ceases to be a Restricted Subsidiary.
SECTION 4.11. Liens.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist or become
effective any Lien of any kind on any asset owned at October 8, 2003 or
thereafter acquired, except Permitted Liens, unless the Company or such
Restricted Subsidiary has made or will make effective provision to secure the
Notes and any applicable Subsidiary Guarantees equally and ratably with the
obligations of the Company or such Restricted Subsidiary secured by such Lien
for so long as such obligations are secured by such Lien.
SECTION 4.12. Asset Sales.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, consummate an Asset Sale unless:
(1) the Company, or the Restricted Subsidiary, as the case may be,
receives consideration at the time of the Asset Sale at least equal to the
fair market value of the assets or Equity Interests issued or sold or
otherwise disposed of;
(2) such fair market value is determined by the Company's Board of
Directors and evidenced by a Board Resolution set forth in an Officers'
Certificate delivered to the Trustee; and
(3) at least 75% of the consideration received in such Asset Sale by the
Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this clause (3), each of the following shall be
deemed to be cash:
(a) any Indebtedness or other liabilities, as shown on the Company's
or such Restricted Subsidiary's most recent balance sheet, of the Company
or any Restricted Subsidiary (other than contingent liabilities and
Indebtedness that are by their terms PARI PASSU with or subordinated to
the Notes or any Subsidiary Guarantee and liabilities to the extent owed
to the Company or any Affiliate of the Company), that are assumed by the
transferee of any such assets pursuant to a written agreement that
releases the Company or such Restricted Subsidiary from further liability
with respect to such Indebtedness or liabilities; and
(b) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted within 60 days of the applicable Asset Sale by the Company or
such Restricted Subsidiary into cash, to the extent of the cash received
in such conversion.
(b) Notwithstanding the terms of paragraph (a) above, the Company and the
Restricted Subsidiaries may engage in Asset Swaps if (i) immediately after
giving effect to any such Asset Swap, the Company would be permitted to Incur at
least US$1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio
test set forth in Section 4.09(a), and (ii) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Swap at least equal
to the fair market value of the assets disposed of, which fair market value
shall be determined by the Board of Directors of the Company or the Restricted
Subsidiary, as the case may be, and evidenced by a Board Resolution set forth in
an Officers' Certificate delivered to the Trustee; PROVIDED, HOWEVER, that the
determination of the Board of Directors shall be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm of
national standing in the United States or Canada if the fair market value
exceeds US$25.0 million.
44
(c) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply those Net Proceeds at its option:
(1) to permanently repay or reduce Indebtedness, other than Subordinated
Indebtedness, of the Company or a Subsidiary Guarantor secured by such
assets, Indebtedness of the Company or a Subsidiary Guarantor under Credit
Facilities or Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor, and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire, or enter into a binding agreement to acquire, all or
substantially all of the assets (other than cash, Cash Equivalents and
securities) of any Person engaged in a Permitted Business; PROVIDED,
HOWEVER, that any such commitment shall be subject only to customary
conditions (other than financing), and such acquisition shall be consummated
no later than 180 days after the end of such 360-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting
Stock of a Person engaged in a Permitted Business from a Person that is not
an Affiliate of the Company; PROVIDED, HOWEVER, that such commitment shall
be subject only to customary conditions (other than financing) and such
acquisition shall be consummated no later than 180 days after the end of
such 360-day period; and PROVIDED, FURTHER, HOWEVER, that (a) after giving
effect thereto, the Person so acquired becomes a Restricted Subsidiary and
(b) such acquisition is otherwise made in accordance with this Indenture,
including, without limitation, Section 4.10 hereof; or
(4) to acquire, or enter into a binding agreement to acquire, other
long-term assets (other than securities) that are used or useful in a
Permitted Business; PROVIDED, HOWEVER, that such commitment shall be subject
only to customary conditions (other than financing) and such acquisition
shall be consummated no later than 180 days after the end of such 360-day
period.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied, invested or
segregated from the general funds of the Company for investment in identified
assets pursuant to a binding agreement, in each case as provided in
paragraph (c) above shall constitute Excess Proceeds; PROVIDED, HOWEVER, that
the amount of any Net Proceeds that ceases to be so segregated as contemplated
in paragraph (c) above shall also constitute "Excess Proceeds" at the time any
such Net Proceeds cease to be so segregated; PROVIDED FURTHER, HOWEVER, that the
amount of any Net Proceeds that continues to be segregated for investment and
that is not actually reinvested within twenty-four months from the date of the
receipt of such Net Proceeds shall also constitute "Excess Proceeds."
(e) When the aggregate amount of Excess Proceeds exceeds US$35.0 million,
the Company shall make an offer (an "ASSET SALE OFFER") to all Holders of Notes
and all holders of other Indebtedness that is PARI PASSU in right of payment
with the Notes or any Subsidiary Guarantee containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets, to purchase the maximum principal amount
of Notes and such other PARI PASSU Indebtedness that may be purchased out of the
Excess Proceeds in accordance with the procedures set forth in Section 3.09
hereof. The offer price in any Asset Sale Offer shall be equal to 100% of
principal amount of the Notes and such other PARI PASSU Indebtedness, plus
accrued and unpaid interest to the date of purchase, and shall be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer
and all Holders of Notes have been given the opportunity to tender their Notes
for purchase in accordance with such Asset Sale Offer and this Indenture, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
this Indenture. If the aggregate principal amount of Notes and such other
PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount
of Excess Proceeds, the Notes and such other PARI PASSU Indebtedness shall be
purchased on a PRO RATA basis based on the principal amount of Notes and such
other PARI PASSU Indebtedness tendered. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sales
provisions of this Indenture, the Company shall comply with the applicable
45
securities laws and regulations and shall not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
conflict.
SECTION 4.13. Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions on its Equity
Interests to the Company or any other Restricted Subsidiary, or with respect
to any other interest or participation in, or measured by, its profits, or
pay any liabilities owed to the Company or any other Restricted Subsidiary;
(2) make loans or advances, or guarantee any such loans or advances, to
the Company or any other Restricted Subsidiary; or
(3) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary.
(b) The restrictions set forth in paragraph (a) above shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit Facilities as
in effect on October 8, 2003 and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof; PROVIDED, HOWEVER, that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained
in such Existing Indebtedness and Credit Facilities, as in effect on
October 8, 2003;
(2) this Indenture and the Notes;
(3) applicable law or any applicable rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any Restricted Subsidiary as in effect at the
time of such acquisition (except to the extent such Indebtedness or Capital
Stock was Incurred or issued in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired; PROVIDED, HOWEVER, that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be Incurred at the time of such acquisition;
(5) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;
(6) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the property so acquired of
the nature described in clause (3) of paragraph (a) above;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by such Restricted Subsidiary
pending its sale or other disposition;
(8) Permitted Refinancing Indebtedness; PROVIDED, HOWEVER, that any
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens securing Indebtedness that is permitted to be secured without
also securing the Notes or the applicable Subsidiary Guarantee pursuant to
Section 4.11 hereof that limit the right of the debtor to dispose of the
assets subject to any such Lien;
(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements, stock
sale agreements and other similar agreements entered into in the ordinary
course of business;
46
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
and
(12) any Indebtedness or any agreement pursuant to which such
Indebtedness was issued if the encumbrance or restriction applies only upon
a payment or financial covenant default or event of default contained in
such Indebtedness or agreement and (A) such encumbrance or restriction is
not materially more disadvantageous to the Holders than is customary in
comparable financings (as determined in good faith by the Board of Directors
of the Company) and (B) management of the Company delivers to the Trustee an
Officers' Certificate evidencing its determination at the time such
agreement is entered into, that such encumbrance or restriction will not
materially impair the Company's ability to make payments on the Notes.
SECTION 4.14. Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, make any payment to, or sell, lease, transfer,
exchange or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction or
series of transactions, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate, officer or director of the
Company (each, an "AFFILIATE TRANSACTION") unless:
(1) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable arm's length transaction by the Company or
such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
US$10.0 million, a Board Resolution of the Company set forth in an
Officers' Certificate certifying that such Affiliate Transaction or
series of related Affiliate Transactions complies with this Section 4.14
and that such Affiliate Transaction or series of related Affiliate
Transactions has been approved by a majority of the disinterested members
of the Board of Directors of the Company; and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
US$40.0 million, an opinion as to the fairness to the Company or such
Restricted Subsidiary of such Affiliate Transaction or series of related
Affiliate Transactions from a financial point of view issued by an
independent accounting, appraisal or investment banking firm of national
standing in the United States or Canada.
(b) The following items shall be deemed not to constitute Affiliate
Transactions and, therefore, shall not be subject to the provisions of
paragraph (a) above:
(1) any employment agreement entered into by the Company or any
Restricted Subsidiary in the ordinary course of business and consistent with
the past practice of the Company or such Restricted Subsidiary;
(2) transactions between or among the Company and/or the Restricted
Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company
solely because the Company owns an Equity Interest in such Person, PROVIDED
such transactions are on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained
in a comparable arm's length transaction by the Company or such Restricted
Subsidiary with an unrelated Person;
(4) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Company;
(5) sales of Equity Interests of the Company, other than Disqualified
Stock or Back-to-Back Securities, to Affiliates of the Company;
(6) any agreement or arrangement as in effect on the Issue Date or any
amendment thereto or any transaction contemplated thereby, including
pursuant to any amendment thereto, in any replacement agreement or
arrangement thereto so long as any such amendment or replacement agreement
or arrangement is not more
47
disadvantageous to the Company or the Restricted Subsidiaries, as the case
may be, in any material respect than the original agreement as in effect on
the Issue Date;
(7) Restricted Payments that are permitted by the provisions of
Section 4.10 hereof;
(8) Permitted Investments; and
(9) any Tax Benefit Transaction.
SECTION 4.15. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; PROVIDED,
HOWEVER, that the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:
(a) the Company or that Restricted Subsidiary, as applicable, could have
(i) Incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction under the Debt to Cash Flow Ratio test
set forth in Section 4.09(a) hereof and (ii) created a Lien on such property
securing Attributable Debt pursuant to the provisions of Section 4.11 hereof;
(b) the net cash proceeds of such sale and leaseback transaction are at
least equal to the fair market value, as determined in good faith by the Board
of Directors of the Company and set forth in an Officers' Certificate delivered
to the Trustee, of the property that is the subject of that sale and leaseback
transaction; and
(c) the transfer of assets in such sale and leaseback transaction is
permitted by, and the Company or such Restricted Subsidiary applies the proceeds
of such transaction in compliance with, the provisions of Section 4.12 hereof.
SECTION 4.16. Issuances and Sales of Equity Interests in Subsidiaries.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of
(including, without limitation, by way of merger, amalgamation or otherwise) any
Equity Interests in any direct or indirect Restricted Subsidiary that
constitutes a Significant Subsidiary of the Company or any group of Restricted
Subsidiaries which, when taken as a whole, would constitute a Significant
Subsidiary of the Company, to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary thereof or, in connection with a Tax Benefit
Transaction, to Quebecor Inc. or a direct or indirect Subsidiary of
Quebecor Inc.), unless:
(1) such transfer, conveyance, sale, lease or other disposition (whether
by way of merger, amalgamation or otherwise) is of all the Equity Interests
of such Restricted Subsidiary; and
(2) the Net Proceeds from such transfer, conveyance, sale, lease or
other disposition (whether by way of merger, amalgamation or otherwise) are
applied in accordance with the provisions of Section 4.12 hereof.
(b) The Company shall not permit any direct or indirect Restricted
Subsidiary that constitutes a Significant Subsidiary or any group of Restricted
Subsidiaries which, when taken as a whole, would constitute a Significant
Subsidiary of the Company, to issue any Equity Interests to any Person, other
than, (1) if necessary, shares of Capital Stock constituting directors'
qualifying shares, (2) Back-to-Back Securities or (3) to the Company or a Wholly
Owned Restricted Subsidiary thereof.
48
SECTION 4.17. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any Subsidiary to be
an Unrestricted Subsidiary if such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) does not own any Equity Interest of any Restricted Subsidiary, or
hold any Liens on any property of the Company or any of its Restricted
Subsidiaries;
(3) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary unless the terms
of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those that might
be obtained at the time from Persons who are not Affiliates of the Company;
(4) is a Person with respect to which neither the Company nor any
Restricted Subsidiary has any direct or indirect obligation (a) to subscribe
for additional Equity Interests or (b) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels
of operating results;
(5) except in the case of a Subsidiary Guarantor that is designated as
an Unrestricted Subsidiary in accordance with this Indenture, has not
guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any Restricted Subsidiary;
(6) has at least one director on its Board of Directors that is not a
director or executive officer of the Company or any Restricted Subsidiary
and has at least one executive officer that is not a director or executive
officer of the Company or any Restricted Subsidiary; and
(7) such designation would not cause a Default or Event of Default.
(b) Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
provisions of paragraph (a) above and was permitted by the provisions of
Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to
meet the requirements of the provisions of paragraph (a) above, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Preferred Shares of such Subsidiary shall be deemed to be issued and any
Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted
Subsidiary as of such date and, if such Preferred Shares are not permitted to be
issued or such Indebtedness is not permitted to be Incurred as of such date
under the provisions of Section 4.09 hereof, the Company shall be in default of
such Section.
(c) If a Restricted Subsidiary is designated as an Unrestricted Subsidiary,
the aggregate fair market value of all outstanding Investments owned by the
Company and the Restricted Subsidiaries in the Subsidiary so designated shall be
deemed to be an Investment made as of the time of such designation and shall
either reduce the amount available for Restricted Payments under
Section 4.10(a) hereof or reduce the amount available for future Investments
under one or more clauses of the definition of Permitted Investments, as the
Company shall determine. Such designation shall be permitted only if such
Investment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the requirements of the provisions of paragraph (a) above. Upon
designation of a Restricted Subsidiary as an Unrestricted Subsidiary in
compliance with this Section 4.17, such Subsidiary shall be released from any
Subsidiary Guarantee previously made by such Subsidiary in accordance with the
provisions of Section 10.05 hereof.
(d) The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER, that
(i) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is
permitted under the provisions of Section 4.09 hereof, calculated on a
PRO FORMA basis as if such designation had occurred at the beginning of the most
recently ended full fiscal quarter for which internal financial statements are
available; (ii) all outstanding Investments owned by such Unrestricted
Subsidiary shall be deemed to be made as of the time of such designation and
such Investments shall only be permitted if such Investments would be permitted
under the provisions of Section 4.10 hereof; (iii) all Liens upon property or
assets of such Unrestricted Subsidiary existing at the time of such designation
would be
49
permitted under the provisions of Section 4.11 hereof; and (iv) no Default or
Event of Default would be in existence following such designation.
SECTION 4.18. Repurchase at the Option of Holders Upon a Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall, within
30 days of a Change of Control, make an offer (the "CHANGE OF CONTROL OFFER")
pursuant to the procedures set forth in Section 3.09 hereof. Each Holder shall
have the right to accept such offer and require the Company to repurchase all or
any part (equal to US$1,000 or an integral multiple of US$1,000) of such
Holder's Notes pursuant to the Change of Control Offer at a purchase price, in
cash (the "CHANGE OF CONTROL AMOUNT"), equal to 101% of the aggregate principal
amount of Notes repurchased, plus accrued and unpaid interest on the Notes
repurchased to the purchase date.
(b) The Company shall not be required to make a Change of Control Offer upon
a Change of Control if a third party makes a Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Notes or portions of Notes properly tendered and not withdrawn
under the Change of Control Offer.
SECTION 4.19. Future Guarantors.
The Company shall cause each Person that becomes a Wholly Owned Restricted
Subsidiary of the Company following the Issue Date to become a Subsidiary
Guarantor and to execute a supplemental indenture and deliver an Opinion of
Counsel to the Trustee. In addition, the Company shall not permit any of its
Restricted Subsidiaries, directly or indirectly, to guarantee any other
Indebtedness (including any Back-to-Back Debt) of the Company or any of its
Restricted Subsidiaries, unless such Restricted Subsidiary is a Subsidiary
Guarantor or simultaneously executes and delivers a supplemental indenture
providing for a Subsidiary Guarantee of the payment of the Notes by such
Restricted Subsidiary, which Subsidiary Guarantee shall be senior to or
PARI PASSU with such Subsidiary's guarantee of such other Indebtedness. The form
of the Subsidiary Guarantee is attached hereto as Exhibit E.
SECTION 4.20. Additional Amounts.
(a) All payments made by or on behalf of the Company or the Subsidiary
Guarantors on or with respect to the Notes shall be made without withholding or
deduction for any Taxes imposed by any Canadian Taxing Authority, unless
required by law or the interpretation or administration thereof by the relevant
Canadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any
other payor) is required to withhold or deduct any amount on account of Taxes
from any payment made under or with respect to any Notes that are outstanding on
the date of the required payment, it shall:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the relevant
government authority in accordance with applicable law;
(3) pay the 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;
(4) furnish to the Holders, within 30 days after the date the payment of
any Taxes is due, certified copies of tax receipts evidencing such payment
by the Company or such Subsidiary Guarantor;
(5) indemnify and hold harmless each Holder (other than an Excluded
Holder, as defined in paragraph (b) below) for the amount of (a) any Taxes
paid by each such Holder as a result of payments made on or with respect to
the Notes, (b) any liability (including penalties, interest and expenses)
arising from or with respect to such payments and (c) any Taxes imposed with
respect to any reimbursement under the foregoing clauses (a) or (b), but
excluding any such Taxes that are in the nature of Taxes on net income,
taxes on capital, franchise taxes, net worth taxes and similar taxes; and
50
(6) at least 30 days prior to each date on which any payment under or
with respect to the Notes is due and payable, if the Company or any
Subsidiary Guarantor becomes obligated to pay Additional Amounts with
respect to such payment, deliver to the Trustee an Officers' Certificate
stating the amounts so payable and such other information necessary to
enable the Trustee to pay such Additional Amounts to Holders on the payment
date.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional
Amounts shall be payable to a Holder in respect of beneficial ownership of a
Note (an "EXCLUDED HOLDER"):
(1) with which the Company or such Subsidiary Guarantor does not deal at
arm's-length, within the meaning of the INCOME TAX ACT (Canada), at the time
of making such payment;
(2) 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
acquisition, holding or disposition of Notes or the receipt of payments
thereunder; or
(3) if such Holder waives its right to receive Additional Amounts.
Any reference, in any context in this Indenture, to the payment of
principal, premium, if any, redemption price, Change of Control Amount, offer
price and interest or any other amount payable under or with respect to any
Note, shall be deemed to include the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable.
The obligations described under this Section 4.20 will survive any
termination, defeasance or discharge of this Indenture and will apply MUTATIS
MUTANDIS to any jurisdiction in which any successor Person to the Company or any
Subsidiary Guarantor, as applicable, is organized or any political subdivision
or taxing authority or agency thereof or therein.
SECTION 4.21. Business Activities.
The Company shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than the Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries
taken as a whole.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets of the Company and
Subsidiary Guarantors.
(a) The Company may not directly or indirectly, (i) consolidate, merge or
amalgamate with or into another Person, whether or not the Company is the
surviving corporation, or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
and the Restricted Subsidiaries, taken as a whole, in one or more related
transactions, to another Person, unless, in either case,
(1) either (a) the Company is the surviving corporation, or (b) the
Person formed by or surviving any such consolidation, merger or amalgamation
(if other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made (the "SURVIVING
COMPANY") is a corporation organized or existing under the laws of the
United States, any state of the United States, the District of Columbia,
Canada or any province or territory of Canada;
(2) the Surviving Company expressly assumes all the obligations of the
Company under the Notes, this Indenture and, if applicable, any Registration
Rights Agreements, pursuant to agreements reasonably satisfactory to the
Trustee;
(3) immediately after giving effect to such transaction no Default or
Event of Default exists; and
(4) the Company or the Surviving Company shall, on the date of such
transaction after giving PRO FORMA effect thereto and any related financing
transactions as if the same had occurred at the beginning of the
51
applicable fiscal quarter, be permitted to Incur at least US$1.00 of
additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set
forth in Section 4.09(a) hereof.
(b) Unless in connection with a disposition by the Company or a Subsidiary
Guarantor of its entire ownership interest in a Subsidiary Guarantor or all or
substantially all the assets of a Subsidiary Guarantor permitted by, and in
accordance with the applicable provisions of, this Indenture (including, without
limitation, the provisions of Section 4.12 hereof, the Company shall cause each
Subsidiary Guarantor not to directly or indirectly, (i) consolidate, merge or
amalgamate with or into another Person, whether or not such Subsidiary Guarantor
is the surviving corporation, or (ii) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of
such Subsidiary Guarantor, in one or more related transactions, to another
Person, unless, in either case,
(1) either (a) such Subsidiary Guarantor is the surviving corporation,
or (b) the Person formed by or surviving any such consolidation, merger or
amalgamation (if other than such Subsidiary Guarantor) or to which such
sale, assignment, transfer, conveyance or other disposition shall have been
made (the "SURVIVING GUARANTOR") is a corporation, limited liability company
or limited partnership organized or existing under the laws of the
United States, any state of the United States, the District of Columbia,
Canada or any province or territory of Canada;
(2) the Surviving Guarantor expressly assumes all the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee, this Indenture
and, if applicable, any Registration Rights Agreements, pursuant to
agreements reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction no Default or
Event of Default exists; and
(4) such Subsidiary Guarantor or the Surviving Guarantor shall, on the
date of such transaction after giving PRO FORMA effect thereto and any
related financing transactions as if the same had occurred at the beginning
of the applicable fiscal quarter, be permitted to Incur at least US$1.00 of
additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set
forth in Section 4.09(a) hereof.
(c) In addition, the Company shall not, and shall cause each Subsidiary
Guarantor not to, directly or indirectly, lease all or substantially all of its
properties or assets, in one or more related transactions, to any other Person.
Clauses (a)(4) and (b)(4) of this Section 5.01 shall not apply to a merger,
consolidation or amalgamation, or a sale, assignment, transfer, conveyance or
other disposition of assets, between or among the Company and any Restricted
Subsidiary.
SECTION 5.02. Successor Corporation Substituted.
Each Surviving Company and Surviving Guarantor shall succeed to, and be
substituted for, and may exercise every right and power of the Company or a
Subsidiary Guarantor, as applicable, under this Indenture; PROVIDED, HOWEVER,
that in the case of:
(a) a sale, transfer, assignment, conveyance or other disposition (unless
such sale, transfer, assignment, conveyance or other disposition is of all or
substantially all of the assets of the Company and the Restricted Subsidiaries,
taken as a whole, or in the case of a Subsidiary Guarantor, such sale, transfer,
assignment, conveyance or other disposition is of all or substantially all of
the assets of such Subsidiary Guarantor or all of the Capital Stock of such
Subsidiary Guarantor to a Person that is not (either before or after giving
effect to such transactions) a Subsidiary of the Company), or
(b) a lease,
the predecessor company shall not be released from any of the obligations or
covenants under this Indenture, including with respect to the payment of the
Notes and obligations under the Subsidiary Guarantees.
52
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following is an "Event of Default":
(i) default for 30 days in the payment when due of interest on, including
Additional Amounts or Special Interest, if any, or with respect to, the Notes;
(ii) default in payment, when due at Stated Maturity, upon acceleration,
redemption, required repurchase or otherwise, of the principal of, or premium,
if any, on the Notes;
(iii) failure by the Company or any Restricted Subsidiary to comply with the
provisions of Section 4.09, 4.10, 4.12, 4.18 or 5.01 hereof;
(iv) failure by the Company or any Restricted Subsidiary for 30 days after
written notice thereof has been given to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% of the aggregate
principal amount of the Notes outstanding to comply with any of its other
covenants or agreements in this Indenture;
(v) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness by
the Company or any Restricted Subsidiary, or the payment of which is guaranteed
by the Company or any Restricted Subsidiary, whether such Indebtedness or
guarantee now exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to pay principal of, or interest or premium,
if any, on, such Indebtedness when due at the final maturity of such
Indebtedness (a "PAYMENT DEFAULT"); or
(b) results in the acceleration of such Indebtedness prior to its Stated
Maturity,
and, in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
US$25.0 million or more;
(vi) failure by the Company or any Restricted Subsidiary to pay final,
non-appealable judgments aggregating in excess of US$25.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(vii) any Subsidiary Guarantee of a Significant Subsidiary ceases, or the
Subsidiary Guarantees of any group of Subsidiaries that, when taken together,
would constitute a Significant Subsidiary cease, to be in full force and effect
(other than in accordance with the terms of any such Subsidiary Guarantee) or
any Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms
its obligations under its Subsidiary Guarantee, or a group of Subsidiary
Guarantors that, when taken together, would constitute a Significant Subsidiary
deny or disaffirm their obligations under their respective Subsidiary
Guarantees;
(viii)the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, when taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or gives notice of intention to make a
proposal under any Bankruptcy Law;
(B) consents to the entry of an order for relief against it in an
involuntary case or consents to its dissolution or winding up;
(C) consents to the appointment of a receiver, interim receiver,
receiver and manager, liquidator, trustee or custodian of it or for all or
substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) admits in writing its inability to pay its debts as they become due
or otherwise admits its insolvency; or
53
(F) seeks a stay of proceedings against it or proposes or gives notice
or intention to propose a compromise, arrangement or reorganization of any
of its debts or obligations under any Bankruptcy Law; and
(ix) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, when taken together, would
constitute a Significant Subsidiary, in an involuntary case; or
(B) appoints a receiver, interim receiver, receiver and manager,
liquidator, trustee or custodian of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, when taken together, would
constitute a Significant Subsidiary, or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary;
(C) orders the liquidation of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, when taken together, would
constitute a Significant Subsidiary; or
(D) orders the presentation of any plan or arrangement, compromise or
reorganization of the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, when taken together, would constitute a
Significant Subsidiary;
and such order or decree remains unstayed and in effect for 60 consecutive days.
SECTION 6.02. Acceleration.
If any Event of Default (other than those of the type described in
Section 6.01(viii) or (ix) occurs and is continuing, the Trustee may, and the
Trustee upon the request of Holders of 25% in principal amount of the
outstanding Notes shall, or the Holders of at least 25% in principal amount of
outstanding Notes may, declare the principal of all the Notes, together with all
accrued and unpaid interest, premium, if any, to be due and payable by notice in
writing to the Company and the Trustee specifying the respective Event of
Default and that such notice is a notice of acceleration (the "ACCELERATION
NOTICE"), and the same shall become immediately due and payable.
In the case of an Event of Default specified in Section 6.01(viii)
or (ix) hereof, all outstanding Notes shall become due and payable immediately
without further action or notice by the Trustee or the Holders. Holders may not
enforce this Indenture or the Notes except as provided in this Indenture.
At any time after a declaration of acceleration with respect to the Notes,
the Holders of a majority in principal amount of the Notes then outstanding
(by notice to the Trustee) may rescind and cancel such declaration and its
consequences if:
(a) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction;
(b) all existing Defaults and Events of Default have been cured or waived
except nonpayment of principal of or interest on the Notes that has become due
solely by such declaration of acceleration;
(c) to the extent the payment of such interest is lawful, interest (at the
same rate specified in the Notes) on overdue installments of interest and
overdue payments of principal which has become due otherwise than by such
declaration of acceleration has been paid;
(d) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its reasonable expenses, disbursements and advances;
and
(e) in the event of the cure or waiver of an Event of Default of the type
described in Section 6.01(viii) or (ix), the Trustee has received an Officers'
Certificate and Opinion of Counsel that such Event of Default has been cured or
waived.
In the case of an Event of Default with respect to the Notes occurring by
reason of any willful action or inaction taken or not taken by the Company or on
the Company's behalf with the intention of avoiding payment of the premium that
the Company would have been required to pay if the Company had then elected to
redeem the Notes pursuant to Section 3.07 hereof, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to
54
December 15, 2010, by reason of any willful action or inaction taken or not
taken by the Company or on the Company's behalf with the intention of avoiding
the prohibition on redemption of the Notes prior to December 15, 2010, then the
premium specified in Section 3.07(b) hereof shall also become immediately due
and payable to the extent permitted by law upon acceleration of the Notes.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission by
the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All remedies shall be cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of at least a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default, and its
consequences, except a continuing Default or Event of Default (i) in the payment
of the principal of or interest on the Notes and (ii) in respect of a covenant
or provision which under this Indenture cannot be modified or amended without
the consent of the Holder of each Note affected by such modification or
amendment. Upon any waiver of a Default or Event of Default such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed cured
for every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 6.05. Control by Majority.
Subject to Section 7.01, Section 7.02(e) (including the Trustee's receipt of
the security or indemnification described therein) and Section 7.07 hereof, in
case an Event of Default shall occur and be continuing, the Holders of at least
a majority in aggregate principal amount of the Notes then outstanding 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 with respect to the Notes; PROVIDED, HOWEVER, the
Trustee may refuse to follow any direction from the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding that
conflicts with applicable law or this Indenture, or that the Trustee determines
in good faith may be unduly prejudicial to the rights of the Holders not joining
in the giving of such direction, and may take any other action it deems proper
that is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
No Holder shall have any right to institute any proceeding with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
remedy thereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a
continuing Event of Default,
(b) Holders of at least 25% in aggregate principal amount of the Notes then
outstanding have made written request and offered indemnity satisfactory to the
Trustee to institute such proceeding as trustee, and
(c) the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days.
The preceding limitations shall not apply to a suit instituted by a Holder
for enforcement of payment of principal of, and premium, if any, or interest on,
a Note on or after the respective due dates for such payments set forth in such
Note.
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A Holder may not use this Indenture to affect, disturb or prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.06 hereof), the right of any Holder to receive payment of
principal, premium, if any, and interest on the Notes held by such Holder, on or
after the respective due dates expressed in the Notes (including in connection
with an offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01 (i) or (ii) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest then due and owing (together with
interest on overdue principal and, to the extent lawful, interest) and 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.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee shall be authorized to file such proofs of claim and 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 the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee and its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, moneys, securities and any other properties that the Holders may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. 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 plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to Holders for amounts due and unpaid on the Notes for principal,
premium, if any, and interest ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal,
premium, if any, and interest, respectively; and
THIRD: to the Company or to such party as a court of competent jurisdiction
shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
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SECTION 6.11. Undertaking for Costs.
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 or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and the court in
its discretion may 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 the party litigant. This
Section 6.11 shall not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If 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 its exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, 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. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) 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 is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
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SECTION 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in any such document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee shall not be liable for any action it takes or omits to take
in good faith that it believes to be authorized or within the rights or powers
conferred upon it by this Indenture.
(d) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(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 unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(f) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a Default or
Event of Default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee from the Company or the Holders of 25% in
aggregate principal amount of the outstanding Notes, and such notice references
the specific Default or Event of Default, the Notes and this Indenture.
(g) The Trustee shall not be required to give any bond or surety in respect
of the performance of its power and duties hereunder.
(h) The Trustee shall have no duty to inquire as to the performance of the
Company's covenants herein.
(i) 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 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Subsidiary
Guarantor or any Affiliate of the Company with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as Trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee shall also be subject to
Sections 7.10 and 7.11 hereof.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
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SECTION 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known
to the Trustee, the Trustee shall mail to Holders a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a Default
or Event of Default in payment of principal of, premium, if any, or interest on
any Note, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders a brief report dated as of such reporting date that
complies with TIA Section313(a) (but if no event described in TIA
Section313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with
TIA Section313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA Section313(c).
A copy of each report at the time of its mailing to the Holders shall be
mailed to the Company and filed with the Commission and each stock exchange on
which the Notes are listed in accordance with TIA Section313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange and any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee (in its capacity as Trustee) or any
predecessor Trustee (in its capacity as Trustee) against any and all losses,
claims, damages, penalties, fines, liabilities or expenses, including incidental
and out-of-pocket expenses and reasonable attorneys fees (for purposes of this
Article 7, "LOSSES") incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent such losses may be attributable to its negligence or bad faith. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim, and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel if the Trustee has been reasonably advised by counsel that there may be
one or more legal defenses available to it that are different from or additional
to those available to the Company and in the reasonable judgment of such counsel
it is advisable for the Trustee to engage separate counsel, and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss incurred by the Trustee through the Trustee's own negligence or
bad faith.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture, the resignation or removal of the
Trustee and payment in full of the Notes.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal, premium, if any, and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(viii) or (ix) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time upon 30 days' prior notice to
the Company and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10 hereof, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. Subject to
the Lien provided for in Section 7.07 hereof, the retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee
PROVIDED, HOWEVER; that all sums owing to the Trustee hereunder shall have been
paid. Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by ▇▇▇▇▇▇.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
banking association, the successor corporation or banking association without
any further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a Person organized
and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least
US$50.0 million (or a wholly-owned subsidiary of a bank or trust company, or of
a bank
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holding company, the principal subsidiary of which is a bank or trust company
having a combined capital and surplus of at least US$50.0 million) as set forth
in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of
TIA Section310(a)(1), (2) and (5). The Trustee is subject to TIA Section310(b).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section311(a), excluding any creditor
relationship listed in TIA Section311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE") and each Subsidiary Guarantor shall be released from all of its
obligations under its Subsidiary Guarantee. For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a), (b) and (d) below, and to
have satisfied all its other obligations under the Notes and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04 hereof, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, or interest and
Additional Amounts on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Article 2 and Sections 4.01
and 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations and the Subsidiary Guarantor's
in connection therewith and (d) this Article 8. If the Company exercises under
Section 8.01 hereof the option applicable to this Section 8.02, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, payment of the
Notes may not be accelerated because of an Event of Default. Subject to
compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
SECTION 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.05 and 4.06,
4.09 through 4.19, and 4.21 hereof, and the operation of Sections 5.01(a)(4)
and (b)(4) hereof, with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 hereof are satisfied (hereinafter,
"COVENANT DEFEASANCE") and each Subsidiary Guarantor shall be released from all
of its obligations under its Subsidiary Guarantee with respect to such covenants
in connection with such outstanding Notes and the Notes shall thereafter be
deemed 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 Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply
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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 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. If the Company exercises
under Section 8.01 hereof the option applicable to this Section 8.03, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, payment of
the Notes may not be accelerated because of an Event of Default specified in
clause (iii) (with respect to the covenants contained in Sections 4.09, 4.10,
4.12 or 4.18 or Section 5.01(a)(4) or (b)(4) hereof), (iv) (with respect to
Sections 4.05, 4.06, 4.11, 4.13 through 4.17, 4.19 and 4.21 hereof), (v), (vi),
(vii), (viii) and (ix) of such Section 6.01 (but in the case of (viii) and
(ix) of Section 6.01 hereof, with respect to Significant Subsidiaries only) or
because of the Company's failure to comply with Section 5.01(a)(4) or
(b)(4) hereof.
SECTION 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes.
In order to exercise Legal Defeasance or Covenant Defeasance:
(a) the Company shall irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, or interest and premium, if any, on the outstanding
notes on the Stated Maturity or on the applicable date of redemption, as the
case may be, and the Company shall specify whether the Notes are being defeased
to maturity or to a particular date of redemption;
(b) in the case of Legal Defeasance, the Company shall deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) subsequent to the Issue Date, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred
and the Company shall have delivered to the Trustee an Opinion of Counsel in
Canada reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for Canadian federal,
provincial or territorial income tax purposes as a result of such Legal
Defeasance and will be subject to Canadian federal, provincial or territorial
income tax (including withholding tax) on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of Covenant Defeasance, the Company shall deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming
that Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and will
be subject to 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 and the Company shall have delivered to the Trustee an Opinion of
Counsel in Canada reasonably acceptable to the Trustee confirming that Holders
of the outstanding Notes will not recognize income, gain or loss for Canadian
federal, provincial or territorial income tax purposes as a result of such
Covenant Defeasance and will be subject to Canadian federal, provincial or
territorial income tax (including withholding tax) on the same amounts, in the
same manner and at the same time as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing
either (a) on the date of such deposit, or (b) insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit, other than, in each case, a Default
or Event of Default resulting from the borrowing of funds to be applied to such
deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material agreement or
instrument, to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound;
(f) the Company shall deliver to the Trustee an Opinion of Counsel to the
effect that, (a) assuming no intervening bankruptcy of the Company or any
Subsidiary Guarantor between the date of deposit and the 91st day following such
deposit and assuming that no Holder is an "insider" of the Company under
applicable Bankruptcy Law, after the 91st day following such deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and (b) the creation of the defeasance trust does not violate the Investment
Company Act of 1940;
(g) the Company shall deliver to the Trustee an Officers' Certificate
stating that such deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors of the Company
or others;
(h) if the Notes are to be redeemed prior to their Stated Maturity, the
Company must deliver to the Trustee irrevocable instructions to redeem all of
the Notes on the specified redemption date; and
(i) the Company shall deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
SECTION 8.05. Deposited Cash and Government Securities to be Held in Trust;
Other Miscellaneous
Provisions.
Subject to Section 8.06 hereof, all cash and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee
(or other qualifying trustee, collectively for purposes of this Section 8.05,
the "TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of all sums due and to become due thereon
in respect of principal, premium, if any, and interest but such cash and
securities need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof 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 Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any cash or non-callable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent certified public accountants of recognized international standing
expressed in a written certification thereof delivered to the Trustee (which may
be the certification delivered under Section 8.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. Repayment to Company.
Subject to any applicable laws relating to abandoned property, any cash or
non-callable Government Securities deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder shall thereafter, as an
unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in THE
NEW YORK TIMES and THE WALL STREET JOURNAL (national
edition), notice that such cash and securities remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.
63
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, 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 Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02
or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such cash and securities in accordance with Section 8.02 or 8.03
hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders to receive such payment from the cash and securities held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee
may amend or supplement this Indenture or the Notes without the consent of any
Holder to:
(a) cure any ambiguity, defect or inconsistency;
(b) provide for uncertificated Notes in addition to or in place of
certificated Notes (PROVIDED that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner such
that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code);
(c) provide for the assumption of the obligations of the Company and/or a
Subsidiary Guarantor to Holders in the case of a merger, consolidation, or
amalgamation or sale of all or substantially all of the assets of the Company
and/or a Subsidiary Guarantor; PROVIDED, HOWEVER, that the Company shall deliver
to the Trustee:
(i) an Opinion of Counsel to the effect that Holders will not recognize
income, gain or loss for U.S. Federal income tax purposes as a result of
such assumption by a successor corporation and will be subject to
U.S. federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such assumption had not occurred,
and
(ii) an Opinion of Counsel in Canada to the effect that Holders will not
recognize income, gain or loss for Canadian federal, provincial or
territorial tax purposes as a result of such assumption by a successor
corporation and will be subject to Canadian federal, provincial or
territorial taxes (including withholding taxes) on the same amounts, in the
same manner and at the same times as would have been the case if such
assumption had not occurred;
(d) make any change that would provide any additional rights or benefits to
the Holders or that does not adversely affect the legal rights under this
Indenture of any such Holder;
(e) add additional guarantees with respect to the Notes or release
Subsidiary Guarantors from Subsidiary Guarantees as provided or permitted by the
terms of this Indenture;
(f) provide for the issuance of Additional Notes in accordance with this
Indenture; or
(g) comply with requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the TIA.
SECTION 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture and the Notes with the consent of the
Holders of at least a majority in principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (except a continuing Default or Event of
Default (i) in
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the payment of principal, premium, if any, or interest on the Notes and (ii) in
respect of a covenant or provision which under this Indenture cannot be modified
or amended without the consent of the Holder of each Note affected by such
modification or amendment) or compliance with any provision of this Indenture or
the Notes may be waived with the consent of the Holders of at least a majority
in principal amount of the Notes, including Additional Notes, if any, then
outstanding voting as a single class (including consents obtained in connection
with a purchase of or tender offer or exchange offer for the Notes).
Without the consent of each Holder, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of any Note or
alter the provisions with respect to the redemption of the Notes;
(c) reduce the rate of or change the time for payment of interest on any
Note;
(d) waive a Default or Event of Default in the payment of principal of, or
interest or premium, if any, on the Notes, except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that resulted from such
acceleration;
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to waivers
of past Defaults or the rights of Holders of Notes to receive payments of
principal of, or interest or premium, if any, on the Notes, or to institute suit
for the enforcement of any payment on or with respect to such Holders' Notes or
any Subsidiary Guarantee;
(g) amend, change or modify the obligation of the Company to make and
consummate an Asset Sale Offer with respect to any Asset Sale in accordance with
the provisions of Section 4.12 hereof after the obligation to make and
consummate such Asset Sale Offer has arisen or the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change in
Control in accordance with the provisions of Section 4.18 hereof after such
Change of Control has occurred, including, in each case, amending, changing or
modifying any definition relating thereto;
(h) except as otherwise permitted under the provisions of Section 5.01
hereof, consent to the assignment or transfer by the Company or any Subsidiary
Guarantor of any of their rights or obligations under this Indenture;
(i) subordinate the Notes or any Subsidiary Guarantee to any other
obligation of the Company or the applicable Subsidiary Guarantor;
(j) amend or modify the provisions of Section 4.20 hereof;
(k) amend or modify any Subsidiary Guarantee in a manner that would
adversely affect the Holders of the Notes or release any Subsidiary Guarantor
from any of its obligations under its Subsidiary Guarantee or this Indenture
(except in accordance with the terms of this Indenture); or
(l) make any change in the preceding amendment and waiver provisions.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any supplemental
indenture. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to consent to
such supplemental indenture, whether or not such Holders remain Holders after
such record date; PROVIDED that unless such consent shall have become effective
by virtue of the requisite percentage having been obtained prior to the date
which is 120 days after such record date, any such consent previously given
shall automatically and without further action by any Holder be cancelled and of
no further effect.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holder of each Note affected thereby to
such ▇▇▇▇▇▇'s address appearing in the Security Register a notice
65
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental indenture that complies with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion thereof that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion thereof if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver shall become effective in accordance with its
terms and thereafter shall bind every Holder.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement
or waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amendment or supplemental indenture until the Board of Directors
approves it. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amended or supplemental
indenture is the legal, valid and binding obligations of the Company enforceable
against it in accordance with its terms, subject to customary exceptions and
that such amended or supplemental indenture complies with the provisions hereof
(including Section 9.03 hereof).
ARTICLE 10.
SUBSIDIARY GUARANTEES
SECTION 10.01. Guarantee.
Subject to this Article 10, each of the Subsidiary Guarantors hereby
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns (a) the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes, subject to any applicable grace period, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on the overdue principal and premium, if any, and to the extent permitted by
law, interest, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that same shall be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at maturity, by acceleration
pursuant to Section 6.02 hereof, redemption or otherwise. Failing payment when
due of any amount so guaranteed
66
or any performance so guaranteed for whatever reason, the Subsidiary Guarantors
shall be jointly and severally obligated to pay the same immediately. Each
Subsidiary Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.
Each Subsidiary Guarantor hereby agrees that its obligations with regard to
its Subsidiary Guarantee shall be joint and several, unconditional, irrespective
of the validity or enforceability of the Notes or the obligations of the Company
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the Obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Subsidiary Guarantor. Each
Subsidiary Guarantor further, to the extent permitted by law, waives and
relinquishes all claims, rights and remedies accorded by applicable law to
guarantors and agrees not to assert or take advantage of any such claims, rights
or remedies, including but not limited to: (a) any right to require any of the
Trustee, the Holders or the Company (each a "BENEFITED PARTY"), as a condition
of payment or performance by such Subsidiary Guarantor, to (1) proceed against
the Company, any other guarantor (including any other Subsidiary Guarantor) of
the Obligations under the Subsidiary Guarantees or any other Person,
(2) proceed against or exhaust any security held from the Company, any such
other guarantor or any other Person, (3) proceed against or have resort to any
balance of any deposit account or credit on the books of any Benefited Party in
favor of the Company or any other Person, or (4) pursue any other remedy in the
power of any Benefited Party whatsoever; (b) any defense arising by reason of
the incapacity, lack of authority or any disability or other defense of the
Company including any defense based on or arising out of the lack of validity or
the unenforceability of the Obligations under the Subsidiary Guarantees or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of the Company from any cause other than payment in full of the
Obligations under the Subsidiary Guarantees; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon any Benefited Party's errors or omissions
in the administration of the Obligations under the Subsidiary Guarantees, except
behavior which amounts to bad faith; (e)(1) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms of the
Subsidiary Guarantees and any legal or equitable discharge of such Subsidiary
Guarantor's obligations hereunder, (2) the benefit of any statute of limitations
affecting such Subsidiary Guarantor's liability hereunder or the enforcement
hereof, (3) any rights to set-offs, recoupments and counterclaims and
(4) promptness, diligence and any requirement that any Benefited Party protect,
secure, perfect or insure any security interest or lien or any property subject
thereto; (f) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance
of the Subsidiary Guarantees, notices of default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under the Subsidiary Guarantees or any agreement
related thereto, and notices of any extension of credit to the Company and any
right to consent to any thereof; (g) to the extent permitted under applicable
law, the benefits of any "One Action" rule and (h) any defenses or benefits that
may be derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of the Subsidiary
Guarantees. Except to the extent expressly provided herein, including
Sections 8.02, 8.03 and 10.05 hereof, each Subsidiary Guarantor hereby covenants
that its Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in its Subsidiary Guarantee and this
Indenture.
If any Holder or the Trustee is required by any court or otherwise to return
to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder,
this Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Subsidiary Guarantor further agrees that, as between the Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Section 6.02 hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby and (y) in the
event of any declaration of acceleration of such obligations as provided in
Section 6.02 hereof, such
67
obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantors for the purpose of this Subsidiary
Guarantee. The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Subsidiary Guarantee.
SECTION 10.02. Limitation on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Subsidiary Guarantors hereby
irrevocably agree that the obligations of such Subsidiary Guarantor under this
Article 10 shall be limited to the maximum amount as shall, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Subsidiary Guarantor that are relevant under such laws, including, if
applicable, its guarantee of all obligations under the Credit Agreement, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under this Article 10, result
in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee
not constituting a fraudulent transfer or conveyance. In addition, the liability
of each Subsidiary Guarantor governed by the COMPANIES ACT (Quebec) under its
Subsidiary Guarantee shall be limited to the maximum amount permitted under
Section 123.66 of the COMPANIES ACT (Quebec). To that end, but only to the
extent such obligations would otherwise be avoidable, the obligations of the
Subsidiary Guarantor under this Article shall be limited to the maximum amount
that, after giving effect to the incurrence thereof, would not render the
Subsidiary Guarantor insolvent or unable to pay its debts as they mature.
SECTION 10.03. Execution and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee
in substantially the form included in Exhibit E attached hereto shall be
endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf
of such Subsidiary Guarantor by its President or one of its Vice Presidents.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set
forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall
be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth
in this Indenture on behalf of the Subsidiary Guarantors.
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 10.05 hereof, no Subsidiary
Guarantor may consolidate, merge or amalgamate with or into (whether or not such
Subsidiary Guarantor is the Surviving Guarantor) another Person whether or not
affiliated with such Subsidiary Guarantor unless:
(a) subject to Section 10.05 hereof, the Person formed by or surviving any
such consolidation, merger or amalgamation (if other than a Subsidiary Guarantor
or the Company) unconditionally assumes all the obligations of such Subsidiary
Guarantor, pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee, under this Indenture, the Subsidiary Guarantee and
any Registration Rights Agreements on the terms set forth herein or therein; and
68
(b) the Subsidiary Guarantor or the Surviving Guarantor, as applicable,
complies with the requirements of Article 5 hereof.
In case of any such consolidation, merger, amalgamation, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Subsidiary Guarantees to be endorsed
upon all of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation, merger or amalgamation of a Subsidiary
Guarantor with or into the Company or another Subsidiary Guarantor, or shall
prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary
Guarantor.
SECTION 10.05. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the Capital Stock of
any Subsidiary Guarantor (including by way of consolidation, merger or
amalgamation), in each case to a Person that is not (either before or after
giving effect to such transaction) an Affiliate of the Company, then such
Subsidiary Guarantor shall be released and relieved of any obligations under its
Subsidiary Guarantee; PROVIDED that such sale or other disposition shall be
subject to all applicable provisions of this Indenture, including without
limitation Section 4.12 hereof. If a Subsidiary Guarantor is designated as an
Unrestricted Subsidiary in accordance with the provisions of Section 4.17
hereof, such Subsidiary Guarantor shall be released and relieved of any
obligations under its Subsidiary Guarantee. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition or designation was made by the Company in
accordance with the provisions of this Indenture, including without limitation
Section 4.12 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Subsidiary Guarantor from its
obligations under its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Subsidiary Guarantor
under this Indenture.
ARTICLE 11.
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge.
This Indenture shall be discharged and shall cease to be of further effect,
except as to surviving rights of registration of transfer or exchange of the
Notes, as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been previously authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has previously been deposited in trust or segregated and
held in trust by the Company and is thereafter repaid to the Company or
discharged from the trust) have been delivered to the Trustee for
cancellation; or
(ii) all Notes that have not been previously delivered to the Trustee
for cancellation (A) have become due and payable by reason of a making of a
notice of redemption or otherwise or (B) will become due and
69
payable within one year, and the Company or any Subsidiary Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not
previously delivered to the Trustee for cancellation for principal, premium,
if any, and interest on the Notes to the date of deposit, in the case of
Notes that have become due and payable, or to the Stated Maturity or
redemption date, as the case may be;
(b) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and such
deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Subsidiary Guarantor is
a party or by which the Company or any Subsidiary Guarantor is bound;
(c) the Company or any Subsidiary Guarantor has paid or caused to be paid
all other sums payable by it under this Indenture;
(d) the Company shall have delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Notes at maturity or the
date of redemption, as the case may be; and
(e) the Company shall have delivered to the Trustee an Officers' Certificate
and Opinion of Counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have been
satisfied.
SECTION 11.02. Deposited Cash and Government Securities to be Held in Trust;
Other Miscellaneous
Provisions.
Subject to Section 11.03 hereof, all cash and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee
(or other qualifying trustee, collectively for purposes of this Section 11.02,
the "TRUSTEE") pursuant to Section 11.01 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest but
such cash and securities need not be segregated from other funds except to the
extent required by law.
SECTION 11.03. Repayment to Company.
Subject to any applicable laws relating to abandoned property, any cash or
non-callable Government Securities deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal
of, premium, if any, or interest on, any Note 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 its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter,
as an unsecured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in THE
NEW YORK TIMES and THE WALL STREET JOURNAL (national
edition), notice that such cash and securities remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.
ARTICLE 12.
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
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SECTION 12.02. Notices.
Any notice or communication by the Company and/or a Subsidiary Guarantor or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
facsimile transmission or overnight air courier guaranteeing next-day delivery,
to the other's address:
If to the Company or a Subsidiary Guarantor:
Videotron Ltee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee, by notice to the other, may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to the Trustee) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if sent by facsimile
transmission; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee shall be deemed duly given and effective only upon
receipt.
Any notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next-day delivery to its address shown on the Security Register.
Any notice or communication shall also be so mailed to any Person described in
TIA Section313(c), to the extent required by the TIA. Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of
TIA Section312(c).
71
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section314(a)(4)) shall comply with the provisions of
TIA Section314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(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 such Person, he or she has made such
examination or investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
With respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate, certificates of public officials or reports or opinions of experts.
SECTION 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. No Personal Liability of Directors, Officers, Employees and
Shareholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Subsidiary Guarantor, as such, shall have any
liability for any obligations of the Company or of the Subsidiary Guarantors
under the Notes, this Indenture, the Subsidiary Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
SECTION 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
72
SECTION 12.10. Successors.
All covenants and agreements of the Company in this Indenture and the Notes
shall bind its successors. All covenants and agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 12.11. Severability.
In case any provision in this Indenture or in the Notes 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 12.12. Consent to Jurisdiction and Service of Process.
(a) Each of the Company and each of the Subsidiary Guarantors irrevocably
consents to the non-exclusive jurisdiction of the courts of the State of
New York and the courts of the United States of America located in the Borough
of Manhattan, City and State of
New York over any suit, action or proceeding
with respect to this Indenture or the transactions contemplated hereby. Each of
the Company and each of the Subsidiary Guarantors waives any objection that it
may have to the venue of any suit, action or proceeding with respect to this
Indenture or the transactions contemplated hereby in the courts of the State of
New York or the courts of the United States of America, in each case, located in
the Borough of Manhattan, City and State of
New York, or that such suit, action
or proceeding brought in the courts of the State of
New York or the
United States of America, in each case, located in the Borough of Manhattan,
City and State of
New York was brought in an inconvenient court and agrees not
to plead or claim the same.
(b) Each of the Company and each of the Subsidiary Guarantors irrevocably
appoints CT Corporation System, as its authorized agent in the State of
New York upon which process may be served in any such suit or proceedings, and
agrees that service of process upon such agent, and written notice of said
service to CT Corporation System, by the person serving the same to the address
provided in Section 12.02 hereof, shall be deemed in every respect effective
service of process upon the Company or any Subsidiary Guarantor in any such suit
or proceeding. Each of the Company and each of the Subsidiary Guarantors further
agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of ten years from the date of this Indenture.
SECTION 12.13. Conversion of Currency.
The Company covenants and agrees that the following provisions shall apply
to conversion of currency in the case of the Notes 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 shall 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 Notes 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 Notes and this
Indenture (other than under this paragraph (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 paragraph (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
73
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.
(c) The obligations contained in paragraph (a)(ii) and (b) of this
Section 12.13 shall constitute obligations of the Company separate and
independent from its other respective obligations under the Notes 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 paragraph (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
paragraph (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
Royal Bank of Canada at its central foreign exchange desk in its head office in
Montreal at 12:00 noon (Montreal, Quebec 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 the Section 12.13.
SECTION 12.14. Currency Equivalent.
Except as provided in Section 12.13, for purposes of the construction of the
terms of this Indenture or of the Notes, 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 which is required to purchase such amount in the First Currency
at the rate of exchange quoted by Royal Bank of Canada at its central foreign
exchange desk in its head office in Montreal at 12:00 noon (Montreal, Quebec
time) on the date of determination.
SECTION 12.15. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.16. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings in this Indenture
have been inserted for convenience of reference only, are not to be considered a
part of this Indenture and shall in no way modify or restrict any of the terms
or provisions hereof.
SECTION 12.17. Qualification of this Indenture.
The Company shall qualify this Indenture under the TIA in accordance with
the terms and conditions of any Registration Rights Agreements and shall pay all
reasonable costs and expenses (including attorneys' fees and expenses for the
Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.
[Signatures on following page]
74
SIGNATURES
Dated as of September 16, 2005.
COMPANY:
VIDEOTRON LTEE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice-President
SUBSIDIARY GUARANTORS:
GROUPE DE DIVERTISSEMENT SUPERCLUB INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
LE SUPERCLUB VIDEOTRON LTEE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
SUPERCLUB VIDEOTRON CANADA INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
LES PROPRIETES SUPERCLUB INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
CF CABLE TV INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice-President
75
VIDEOTRON (REGIONAL) LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice-President
TRUSTEE:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Vice President
76
EXHIBIT A
(Face of Note)
6 3/8% SENIOR NOTES DUE DECEMBER 15, 2015
CUSIP
ISIN
No. US$
VIDEOTRON LTEE
promises to pay to CEDE & CO., or its registered assigns, the principal sum of
________ Dollars (US$ ________) on December 15, 2015.
Interest Payment Dates: June 15 and December 15, commencing December 15, 2005.
Record Dates: June 1 and December 1.
IN WITNESS WHEREOF, the Company has caused this Note to be signed by its duly
authorized officer.
VIDEOTRON LTEE
By:
Name
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: ________________________
Authorized Signatory
Dated ____________, 2005
A-1
(Back of Note)
6 3/8% SENIOR NOTES DUE DECEMBER 15, 2015
[THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH VIDEOTRON LTEE (THE "COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY
PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE
RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE,
OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
[IF THIS NOTE IS A GLOBAL NOTE, INSERT:] THIS GLOBAL NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("DTC"), TO
A-2
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE 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.]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Videotron Ltee, a company incorporated under the laws of
Quebec (the "COMPANY"), promises to pay interest (as defined in the Indenture)
on the principal amount of this Note at 6.375% per annum until maturity and
shall pay Special Interest, if any, as provided in the Registration Rights
Agreement relating to these Notes. The Company shall pay interest semi-annually
on June 15 and December 15 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day (each an "INTEREST PAYMENT DATE").
Interest on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
PROVIDED, HOWEVER, that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be December 15, 2005. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the interest rate then in
effect under the Indenture and this Note; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods), from
time to time on demand at the same rate to the extent lawful. Interest shall be
computed on the basis of a 360-day 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.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the December 1 or
June 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose, or,
at the option of the Company, payment of interest may be made by check mailed to
the Holders at their addresses set forth in the Security Register; PROVIDED,
HOWEVER, that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest and premium, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, ▇▇▇▇▇ Fargo Bank, National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
September 16, 2005 ("INDENTURE") among the Company, the guarantors party thereto
(the "SUBSIDIARY GUARANTORS") and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code
SectionSection 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Paragraph 5, the
Notes shall not be redeemable at the option of the Company prior to
December 15, 2010. Beginning on December 15, 2010, the Company may redeem
A-3
all or a part of the Notes, at once or over time, in accordance with
Section 3.03 of the Indenture, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon on the Notes redeemed, to the applicable redemption date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date), if redeemed
during the twelve-month period commencing on December 15 of the years indicated
below:
Redemption Year Percentage
--------------- ----------
2010........................................................ 103.188%
2011........................................................ 102.125%
2012........................................................ 101.063%
2013 and thereafter......................................... 100.000%
(b) At any time and from time to time prior to December 15, 2008, the
Company may on one or more occasions redeem up to 35% of the aggregate principal
amount of the Notes issued under this Indenture at a redemption price (expressed
as a percentage of principal amount) equal to 106.375% of the principal amount
thereof, plus accrued and unpaid interest thereon to the redemption date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date) with the net cash
proceeds of one or more Equity Offerings; PROVIDED, HOWEVER, that (i) at least
65% of the aggregate principal amount of the Notes issued under this Indenture
(excluding Notes held by the Company and its Subsidiaries) remain outstanding
immediately following such redemption and (ii) any such redemption shall be made
within 90 days of the date of closing of any such Equity Offering.
(c) If the Company becomes obligated to pay any Additional Amounts because
of a change in the laws or regulations of Canada or any Canadian Taxing
Authority, or a change in any official position regarding the application or
interpretation thereof, in either case that is publicly announced or becomes
effective on or after the Issue Date, the Company may, at any time, upon not
less than 30 nor more than 60 days' notice, redeem all, but not part, of the
Notes at a price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest to the redemption date, PROVIDED that at any time that the
aggregate principal amount of the Notes outstanding is greater than
US$20.0 million, any Holder of the Notes may, to the extent that it does not
adversely affect the Company's after-tax position, at its option, waive the
Company's compliance with the provisions of Section 4.20 of the Indenture with
respect to such Holder's Notes; PROVIDED, FURTHER, that if any Holder waives
such compliance, the Company may not redeem that ▇▇▇▇▇▇'s Notes pursuant to this
clause (c).
(d) Any prepayment pursuant to this paragraph 5 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 4.12 and 4.18 of
the Indenture, the Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company shall make an
offer to all Holders to repurchase all (equal to US$1,000 or an integral
multiple of US$1,000) of such Holder's Notes at a purchase price in cash equal
to 101% of the aggregate principal amount of the Notes repurchased, plus accrued
and unpaid interest on the Notes repurchased to the purchase date in accordance
with the procedures set forth in Section 3.09 of the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales,
it shall not be required to apply any Net Proceeds in accordance with the
Indenture until the aggregate Excess Proceeds from all Asset Sales following the
date the Notes are first issued exceeds US$35.0 million. Thereafter, the Company
shall commence an Asset Sale Offer by applying the Excess Proceeds pursuant to
Section 3.09 of the Indenture to purchase the maximum principal amount of Notes
(including any Additional Notes) that may be purchased out of the Excess
Proceeds at an offer price in cash equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest, if any, to the
Purchase Date in accordance with the procedures set forth in Section 3.09 of the
Indenture. To the extent that the aggregate amount of Notes (including
Additional Notes) tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company (or such Restricted Subsidiary) may apply such
A-4
deficiency for any purpose not prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a
PRO RATA basis.
8. NOTICE OF REDEMPTION. Notices of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than US$1,000 may be redeemed in part but only in integral multiples of
US$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest shall cease to accrue on Notes or portions
thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of US$1,000 and integral multiples of US$1,000.
This Note shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed hereon and the aggregate principal amount of Notes
represented hereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Company and the Trustee may amend or supplement the Indenture or the Notes with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes, including Additional Notes, if any, voting as a single
class (including consents obtained in connection with a purchase of or tender
offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07
of the Indenture, any existing Default or Event of Default (except a continuing
Default or Event of Default (i) in the payment of principal, premium, if any,
interest or Special Interest or Additional Amounts, if any, on the Notes and
(ii) in respect of a covenant or provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Note affected by
such modification or amendment) or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in principal amount of the then outstanding Notes, including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for the Notes). Without the consent of any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Notes to (a) cure any
ambiguity, defect or inconsistency; (b) provide for uncertificated Notes in
addition to or in place of certificated Notes (PROVIDED that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code); (c) provide for the assumption of the
obligations of the Company and/or a Subsidiary Guarantor to Holders in the case
of a merger, consolidation, or amalgamation or sale of all or substantially all
of the assets of the Company and/or a Subsidiary Guarantor; PROVIDED, HOWEVER,
that the Company shall deliver to the Trustee (i) an Opinion of Counsel to the
effect that Holders will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such assumption by a successor corporation
and will be subject to U.S. federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such assumption
had not occurred, and (ii) an Opinion of Counsel in Canada to the effect that
Holders will not recognize income, gain or loss for Canadian federal, provincial
or territorial tax purposes as a result of such assumption by a successor
corporation and will be subject to Canadian federal, provincial or territorial
taxes (including withholding taxes) on the same amounts, in the same manner and
at the same times as would have been the case if such assumption had not
occurred; (d) make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights under
this Indenture of any such Holder; (e) add additional guarantees with respect to
the Notes or release Subsidiary Guarantors from Subsidiary Guarantees as
provided or permitted by the terms of the Indenture; (f) provide for the
issuance of Additional Notes in accordance with the Indenture; or (g) comply
with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA.
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12. DEFAULTS AND REMEDIES. Each of the following is an Event of Default
under the Indenture: (a) default for 30 days in the payment when due of interest
on, including Additional Amounts or Special Interest, if any, or with respect
to, the Notes; (b) default in payment, when due at Stated Maturity, upon
acceleration, redemption, required repurchase or otherwise, of the principal of,
or premium, if any, on the Notes; (c) failure by the Company or any Restricted
Subsidiary to comply with the provisions of Section 4.09, 4.10, 4.12, 4.18 or
5.01 of the Indenture; (d) failure by the Company or any Restricted Subsidiary
for 30 days after written notice thereof has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% of the
aggregate principal amount of the Notes outstanding to comply with any of its
other covenants or agreements in the Indenture; (e) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness by the Company or any Restricted
Subsidiary, or the payment of which is guaranteed by the Company or any
Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is
created after the Issue Date, if that default: (i) is caused by a failure to pay
principal of, or interest or premium, if any, on, such Indebtedness when due at
the final maturity of such Indebtedness (a "PAYMENT DEFAULT"); or (ii) results
in the acceleration of such Indebtedness prior to its Stated Maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
US$25.0 million or more; (f) failure by the Company or any Restricted Subsidiary
to pay final, non-appealable judgments aggregating in excess of
US$25.0 million, which judgments are not paid, discharged or stayed for a period
of 60 days; (g) any Subsidiary Guarantee of a Significant Subsidiary ceases, or
the Subsidiary Guarantees of any group of Subsidiaries that, when taken
together, would constitute a Significant Subsidiary cease, to be in full force
and effect (other than in accordance with the terms of any such Subsidiary
Guarantee) or any Subsidiary Guarantor that is a Significant Subsidiary denies
or disaffirms its obligations under its Subsidiary Guarantee, or a group of
Subsidiary Guarantors that, when taken together, would constitute a Significant
Subsidiary deny or disaffirm their obligations under their respective Subsidiary
Guarantees; and (h) certain events of bankruptcy, insolvency or reorganization
affecting the Company or any of its Significant Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Notes may declare
all the Notes to be due and payable. Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency
described in the Indenture, all outstanding Notes shall become due and payable
without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal, premium, if any, or interest or Special Interest or Additional
Amounts, if any) if it determines in good faith that withholding notice is in
the interests of the Holders. The Holders of at least a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of principal, premium, if any, or interest or
Special Interest or Additional Amounts, if any. The Company is required to
deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations, the
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Subsidiary Guarantor or
any Subsidiary Guarantor or any Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or of any
Subsidiary Guarantor, as such, shall have any liability for any obligations of
the Company or any Subsidiary Guarantor under the Indenture, the Notes, the
Subsidiary Guarantees or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
A-6
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes that are Initial Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of September 16, 2005, among the Company
and the parties named on the signature pages thereto or, in the case of
Additional Notes, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have the rights set forth in one or more Registration Rights
Agreements, if any, among the Company and the other parties thereto, relating to
rights given by the Company to the purchasers of such Additional Notes.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Notes and has directed the Trustee to use CUSIP
numbers in notices of redemption or notices of Offers to Purchase as a
convenience to Holders. No representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption or notice of an Offer to Purchase and reliance may be placed only on
the other identification numbers printed thereon and any such redemption or
Offer to Purchase shall not be affected by any defect in or omission of such
numbers.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Videotron Ltee,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, Attention: Director,
Legal Affairs.
19. GOVERNING LAW. The internal law of the State of New York shall govern
and be used to construe this Note.
A-7
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.12 or 4.18 of the Indenture, check the box below:
/ / Section 4.12
/ / Section 4.18
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.12 or Section 4.18 of the Indenture, state the amount you
elect to have purchased: US$ ____________________
Date: Your Signature:
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.:
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may
be determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of
1934, as amended.
A-8
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or other tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
A-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal ▇▇▇▇▇▇
▇▇▇▇▇▇ of of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease of Trustee or Note
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ------------------- --------------------
A-10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Videotron Ltee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
▇▇▇▇▇ Fargo Bank, National Association.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: 6 3/8% Senior Notes due December 15, 2015
Reference is ▇▇▇▇▇▇ made to the Indenture, dated as of September 16, 2005
(the "INDENTURE"), among Videotron Ltee, as issuer (the "COMPANY"), the
Subsidiary Guarantors party thereto and ▇▇▇▇▇ Fargo Bank, National Association,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
________________________, (the "TRANSFEROR") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of US$____________ in such Note[s] or interests
(the "TRANSFER"), to ________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The 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 beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note 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
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2. / / Check if Transferee will take delivery of a beneficial interest in
the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or
Rule 904(a) of Regulation S under the Securities Act, (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Distribution Compliance Period, the transfer is not being made
to a U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in
the
B-1
Private Placement Legend printed on the Regulation S Global Note, the Temporary
Regulation S Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
3. / / Check and complete if Transferee will take delivery of a Definitive
Note pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) / / such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a Subsidiary
thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and
the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive
Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than US$250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy
of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Definitive Notes and in the Indenture and the
Securities Act.
4. / / Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) / / Check if Transfer is pursuant to Rule 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) / / Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) / / Check if Transfer is Pursuant to Other Exemption. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144,
B-2
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ____________), or
(ii) / / Regulation S Global Note (CUSIP ____________); or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a), (b) OR (c)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ____________), or
(ii) / / Regulation S Global Note (CUSIP ____________), or
(iii) / / Unrestricted Global Note (CUSIP ____________); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Videotron Ltee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: 6 3/8% Senior Notes due December 15, 2015
Reference is ▇▇▇▇▇▇ made to the Indenture, dated as of September 16, 2005
(the "INDENTURE"), among Videotron Ltee, as issuer (the "COMPANY"), the
Subsidiary Guarantors party thereto and ▇▇▇▇▇ Fargo Bank, National Association,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
________________________, (the "OWNER") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
US$____________ in such Note[s] or interests (the "EXCHANGE"). In connection
with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) / / Check if Exchange is from beneficial interest in a Restricted Global
Note to beneficial interest in an Unrestricted Global Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "SECURITIES ACT"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) / / Check if Exchange is from beneficial interest in a Restricted Global
Note to Unrestricted Definitive Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) / / Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
(d) / / Check if Exchange is from Restricted Definitive Note to Unrestricted
Definitive Note. In connection with the Owner's Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) / / Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Definitive Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) / / Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CIRCLE ONE]
144A Global Note, Regulation S Global Note, IAI Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Note and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Videotron Ltee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Re: 6 3/8% Senior Notes due December 15, 2015
Reference is ▇▇▇▇▇▇ made to the Indenture, dated as of September 16, 2005
(the "INDENTURE"), among Videotron Ltee, as issuer (the "COMPANY"), the
Subsidiary Guarantors party thereto and ▇▇▇▇▇ Fargo Bank, National Association,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
In connection with our proposed purchase of US$____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein) that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
transfer is being made in reliance on Rule 144A under the Securities Act,
(C) to an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S. broker-
dealer) to you and to the Company a signed letter substantially in the form of
this letter and, such transfer is in respect of a minimum principal amount of
Notes of US$250,000, (D) pursuant to offers and sales to non-U.S. Persons that
occur outside the United States in accordance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to any other available exemption under
the Securities Act or (F) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any Person purchasing the
Definitive Note or beneficial interest in a Global Note from us in a transaction
meeting the requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
D-1
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment. We have had access to such financial and other
information and have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we deem necessary
in connection with our decision to purchase the Notes.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account, or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion, for investment purposes only and are not acquiring the
Notes with a view to any distribution thereof in a transaction that would
violate the Securities Act of the securities laws of any state of the
United States or any other applicable jurisdiction.
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. This letter shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated:
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, hereby
unconditionally guarantees, to the extent set forth in the Indenture and subject
to the provisions in the Indenture, dated as of September 16, 2005
(the "INDENTURE"), among Videotron Ltee, as issuer (the "COMPANY"), the
Subsidiary Guarantors listed on the signature pages thereto and ▇▇▇▇▇ Fargo
Bank, National Association, as trustee (the "TRUSTEE"), (a) the due and punctual
payment of the principal of, premium, if any, and interest and Special Interest
and Additional Amounts, if any, on the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, if any, and, to the extent permitted by law,
interest and Special Interest and Additional Amounts, if any, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee under the Notes and the Indenture, all in accordance with the terms
of the Notes and the Indenture; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at maturity, by acceleration pursuant
to Section 6.02 of the Indenture, redemption or otherwise. The obligations of
the Subsidiary Guarantors to the Holders of Notes and to the Trustee pursuant to
the Subsidiary Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Subsidiary Guarantee. Except to the extent provided in
the Indenture, including Sections 8.02, 8.03 and 10.05 thereof, this Subsidiary
Guarantee shall not be discharged except by complete performance of the
obligations contained herein and in the Indenture. Each Holder of a Note, by
accepting the same agrees to and shall be bound by such provisions. Capitalized
terms used herein and not defined are used herein as so defined in the
Indenture.
[NAME OF ▇▇▇▇▇▇▇▇▇]
By:
Name:
Title:
E-1
EXHIBIT F
FORM OF SUBORDINATION AGREEMENT
This SUBORDINATION AGREEMENT is dated as of (the "Agreement").
To: ▇▇▇▇▇ Fargo Bank, National Association, for itself and as trustee under the
Indenture referred to below for the holders of the Notes (the "Trustee")
[OBLIGOR] (the "Obligor"), as obligor under the obligation dated as of
made or issued by the Obligor in favor of [HOLDER]
(the "Subordinated Security"), and [HOLDER], as holder (the "Holder") of the
Subordinated Security, for ten dollars and other good and valuable consideration
received by each of the Obligor and the Holder from the Trustee and any other
Representative and by each of the Obligor and the Holder from the other, agree
as follows:
1. Interpretation.
(a) "Cash, Property or Securities". "Cash, Property or Securities" shall not
be deemed to include securities of the 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
Subordinated Security, 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) "payment in full". "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 and any special interest thereon to the date of such payment,
together with all other amounts owing with respect to such Senior Indebtedness.
(c) "Representative" means the agent (including an administrative agent),
trustee or representative of holders of Senior Indebtedness.
(d) "Senior Indebtedness". "Senior Indebtedness" means, at any date, all
indebtedness (including, without limitation, any and all amounts of principal,
interest, special interest, additional amounts, premium, fees, penalties,
indemnities and "post-petition interest" in bankruptcy and any reimbursement of
expenses) under (1) the Indenture, including, without limitation, the "Notes,"
the "Subsidiary Guarantees," the "Exchange Notes," the "Additional Notes" and
any "guarantee" of the Exchange Notes or the Additional Notes (in each case, as
defined in the Indenture) (2) the indenture, dated as of October 8, 2003, as
supplemented by the first supplemental indenture, dated as of July 12, 2004
(the "2003 Indenture") among Videotron, the guarantors thereto and ▇▇▇▇▇ Fargo
Bank, National Association, as Trustee, including, without limitation, the
"Notes," the "Subsidiary Guarantees," the "Exchange Notes," the "Additional
Notes" and any "guarantee" of the Exchange Notes or the Additional Notes
(in each case, as defined in the 2003 Indenture) and (3) any Credit Facilities
(as defined in the Indenture) of Videotron.
2. Agreement Entered into Pursuant to Indenture. The Obligor and the Holder
are entering into this Agreement pursuant to the provisions of the Indenture,
dated as of September 16, 2005 (the "Indenture"; capitalized terms used herein
without definition having the meanings set forth therein) among Videotron, the
Subsidiary Guarantors and the Trustee. Pursuant to the Indenture, Videotron has
issued and the Subsidiary Guarantors have guaranteed, 6 3/8% Senior Notes due
December 15, 2015 of Videotron.
3. Subordination. The indebtedness or obligation represented by the
Subordinated Security shall be subordinated as follows:
(a) Agreement to Subordinate. The Obligor, for itself and its successors
and assigns, and the Holder agree, that the indebtedness or obligation evidenced
by the Subordinated Security (including, without limitation, principal,
interest, premium, redemption or retraction amount, dividend, fees, penalties,
indemnities and "post-petition interest" in bankruptcy and any reimbursement of
expenses) is subordinate and junior in right of payment, to the extent and in
the manner provided in this Section 3, to the prior payment in full of all
Senior Indebtedness. The
F-1
provisions of this Section 3 are for the benefit of the Trustee and/or other
Representative acting on behalf 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.
(b) Liquidation, Dissolution or Bankruptcy.
(i) Upon any distribution of assets of the Obligor to creditors or upon
a liquidation or dissolution or winding-up of the Obligor or in a
bankruptcy, arrangement, liquidation, reorganization, insolvency,
receivership or similar case or proceeding relating to the Obligor
or its property or other marshalling of assets of the Obligor:
(A) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all Senior Indebtedness before the Holder shall
be entitled to receive any payment of any amount owing in respect
of the Subordinated Security (including, without limitation,
principal, interest, premium, redemption or retraction amount, or
dividend);
(B) until payment in full of all Senior Indebtedness, any
distribution of assets of the Obligor of any kind or character to
which the Holder would be entitled but for this Section 3 is
hereby assigned absolutely to the holders of Senior Indebtedness
(equally and ratably among the holders of Senior Indebtedness) and
shall be paid by the Obligor or by any receiver, trustee in
bankruptcy, liquidating trustee, agents or other Persons making
such payment or distribution to the Trustee and/or other
Representative on behalf of the holders of Senior Indebtedness, as
their interests may appear; and
(C) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Obligor of any kind or character,
whether in Cash, Property or Securities, shall be received by the
Holder 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 Trustee and/or other Representative
on behalf of the holders of Senior Indebtedness (equally and
ratably among 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.
(ii) If (A) a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Obligor or its property
(a "Reorganization Proceeding") is commenced and is continuing and
(B) the Holder does not file proper claims or proofs of claim in
the form required in a Reorganization Proceeding prior to 45 days
before the expiration of the time to file such claims, then
(1) upon the request of the Trustee, the Holder shall file such
claims and proofs of claim in respect of the Subordinated Security
and execute and deliver such powers of attorney, assignments and
proofs of claim or proxies as may be directed by the Trustee to
enable it to exercise in the sole discretion of the Trustee any and
all voting rights attributable to the Subordinated Security which
are capable of being voted (whether by meeting, written resolution
or otherwise) in a Reorganization Proceeding and enforce any and
all claims upon or in respect of the Subordinated Security 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
Subordinated Security, and (2) whether or not the Trustee shall
take the action described in clause (1) above, the Trustee shall
nevertheless be deemed to have such powers of attorney as may be
necessary to enable the Trustee to exercise such voting rights,
file appropriate claims and proofs of claim and otherwise exercise
the powers described above for and on behalf of the Holder.
(c) Relative Rights. This Section 3 defines the relative rights of the
Holder and the holders of Senior Indebtedness. Nothing in this Section 3 shall:
(i) impair, as between the Obligor and the Holder, the obligation of
the Obligor, which is absolute and unconditional, to make the
payments required by the Subordinated Security in accordance with
its terms; or
F-2
(ii) affect the relative rights of the Holder and creditors of the
Obligor other than the holders of Senior Indebtedness; or
(iii) affect the relative rights of the holders of Senior Indebtedness
among themselves; or
(iv) prevent the Holder from exercising its available remedies upon a
default, subject to the rights of the holders of Senior
Indebtedness to receive cash, property or other assets otherwise
payable to the Holder.
(d) Subordination May Not Be Impaired.
(i) No right of any holder of Senior Indebtedness to enforce the
subordination of indebtedness or obligation evidenced by the
Subordinated Security shall in any way be prejudiced or impaired by
any act or failure to act by the Obligor or by any such holder or
the Trustee, or by any non-compliance by the 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
Subordinated Security 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.
(ii) The Holder agrees that all indebtedness or obligation evidenced by
the Subordinated Security will be unsecured by any Lien upon or
with respect to any property of the Obligor.
(iii) The Holder agrees not to exercise any offset or counterclaim or
similar right in respect of the indebtedness or obligation
evidenced by the Subordinated Security except to the extent
payment of such indebtedness or obligation is permitted and will
not assign or otherwise dispose of the Subordinated Security or
the indebtedness or obligation which it evidences unless the
assignee or acquiror, as the case may be, agrees to be bound by
the terms of this Agreement.
(e) Holder Entitled to Rely. Upon any payment or distribution pursuant to
this Section 3, the Holder 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 3(b) 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 Holder or its representative, if any, or
(iii) upon a certificate of the Trustee and/or other 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 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 3.
4. Enforceability. Each of the Obligor and the Holder represents and warrants
that this Agreement has been duly authorized, executed and delivered by each of
the Obligor and the Holder and constitutes a valid and legally binding
obligation of each of the Obligor and the Holder, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and that, in
the case of a Subordinated Security made or issued by Videotron or a Subsidiary
Guarantor, on the date hereof, the Holder shall deliver an opinion or opinions
of counsel to such effect to the Trustee for the benefit of the holders of the
Senior Indebtedness under the Indenture.
5. Miscellaneous.
(a) Until payment in full of all the Senior Indebtedness, the Obligor and
the Holder agree that no amendment shall be made to the Subordinated Security
which would affect the rights of the holders of the Senior Indebtedness
hereunder.
(b) This Agreement 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 Obligor, the Holder and the Trustee and/or other Representative
(if any).
F-3
(c) This Agreement shall be binding upon each of the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
Trustee and/or other Representative (if any) and each and every holder of Senior
Indebtedness and their respective successors and assigns.
(d) This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(e) The Holder and the Obligor each hereby irrevocably agrees that any
suits, actions or proceedings arising out of or in connection with this
Agreement may be brought in any state or federal court sitting in The City of
New York or any court in the Province of Quebec and submits and attorns to the
non-exclusive jurisdiction of each such court.
(f) The Holder and the Obligor will whenever and as often as reasonably
requested to do so by the Trustee and/or other Representative (if any), do,
execute, acknowledge and deliver any and all such other and further acts,
assignments, transfers and any instruments of further assurance, approvals and
consents as are necessary or proper in order to give complete effect to this
Agreement.
(g) Each of the Holder and the Obligor irrevocably appoints CT Corporation
System, as its authorized agent in the State of New York upon which process may
be served in any such suit or proceedings, and agrees that service of process
upon such agent, and written notice of said service to CT Corporation System, by
the person serving the same to the addresses listed below, shall be deemed in
every respect effective service of process upon the Holder or the Obligor, as
applicable, in any such suit or proceeding.
If to the Obligor:
[ ]
If to the Holder:
[ ]
Each of the Holder and the Obligor further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect so long as any Notes or Exchange Notes (including any
Additional Notes) remain outstanding.
IN WITNESS WHEREOF, the Obligor and the Holder each have caused this
Agreement to be duly executed.
[OBLIGOR]
By:
Name:
Title:
[HOLDER]
By:
Name:
Title:
F-4
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE......................... 1
Section 1.01. Definitions................................................. 1
Section 1.02. Other Definitions........................................... 19
Section 1.03. Incorporation by Reference of Trust Indenture Act........... 19
Section 1.04. Rules of Construction....................................... 20
ARTICLE 2. THE NOTES.......................................................... 20
Section 2.01. Form and Dating............................................. 20
Section 2.02. Execution and Authentication................................ 21
Section 2.03. Registrar and Paying Agent.................................. 21
Section 2.04. Paying Agent to Hold Money in Trust......................... 22
Section 2.05. Holder Lists................................................ 22
Section 2.06. Transfer and Exchange....................................... 22
Section 2.07. Replacement Notes........................................... 31
Section 2.08. Outstanding Notes........................................... 31
Section 2.09. Treasury Notes.............................................. 31
Section 2.10. Temporary Notes............................................. 31
Section 2.11. Cancellation................................................ 31
Section 2.12. Defaulted Interest.......................................... 32
Section 2.13. CUSIP or ISIN Numbers....................................... 32
Section 2.14. Special Interest............................................ 32
Section 2.15. Issuance of Additional Notes................................ 32
ARTICLE 3. REDEMPTION AND PREPAYMENT.......................................... 33
Section 3.01. Notices to Trustee.......................................... 33
Section 3.02. Selection of Notes to Be Redeemed........................... 33
Section 3.03. Notice of Redemption........................................ 33
Section 3.04. Effect of Notice of Redemption.............................. 34
Section 3.05. Deposit of Redemption Price................................. 34
Section 3.06. Notes Redeemed in Part...................................... 34
Section 3.07. Optional Redemption......................................... 34
Section 3.08. Mandatory Redemption........................................ 35
Section 3.09. Offers To Purchase.......................................... 35
ARTICLE 4. COVENANTS.......................................................... 37
Section 4.01. Payment of Notes............................................ 37
Section 4.02. Maintenance of Office or Agency............................. 37
Section 4.03. Reports..................................................... 38
Section 4.04. Compliance Certificate...................................... 38
Section 4.05. Taxes....................................................... 39
Section 4.06. Stay, Extension and Usury Laws.............................. 39
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Section 4.07. Corporate Existence......................................... 39
Section 4.08. Payments for Consent........................................ 39
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Shares...................................................... 39
Section 4.10. Restricted Payments......................................... 42
Section 4.11. Liens....................................................... 44
Section 4.12. Asset Sales................................................. 44
Section 4.13. Dividend and Other Payment Restrictions Affecting
Subsidiaries................................................ 46
Section 4.14. Transactions with Affiliates................................ 47
Section 4.15. ▇▇▇▇ and Leaseback Transactions............................. 48
Section 4.16. Issuances and Sales of Equity Interests in Subsidiaries..... 48
Section 4.17. Designation of Restricted and Unrestricted Subsidiaries..... 49
Section 4.18. Repurchase at the Option of Holders Upon a Change of
Control..................................................... 50
Section 4.19. Future Guarantors........................................... 50
Section 4.20. Additional Amounts.......................................... 50
Section 4.21. Business Activities......................................... 51
ARTICLE 5. SUCCESSORS......................................................... 51
Section 5.01. Merger, Consolidation and Sale of Assets of the Company and
Subsidiary Guarantors....................................... 51
Section 5.02. Successor Corporation Substituted........................... 52
ARTICLE 6. DEFAULTS AND REMEDIES.............................................. 53
Section 6.01. Events of Default........................................... 53
Section 6.02. Acceleration................................................ 54
Section 6.03. Other Remedies.............................................. 55
Section 6.04. Waiver of Past Defaults..................................... 55
Section 6.05. Control by Majority......................................... 55
Section 6.06. Limitation on Suits......................................... 55
Section 6.07. Rights of Holders to Receive Payment........................ 56
Section 6.08. Collection Suit by Trustee.................................. 56
Section 6.09. Trustee May File Proofs of Claim............................ 56
Section 6.10. Priorities.................................................. 56
Section 6.11. Undertaking for Costs....................................... 57
ARTICLE 7. TRUSTEE............................................................ 57
Section 7.01. Duties of Trustee........................................... 57
Section 7.02. Rights of Trustee........................................... 58
Section 7.03. Individual Rights of Trustee................................ 58
Section 7.04. Trustee's Disclaimer........................................ 58
Section 7.05. Notice of Defaults.......................................... 59
Section 7.06. Reports by Trustee to Holders............................... 59
Section 7.07. Compensation and Indemnity.................................. 59
Section 7.08. Replacement of Trustee...................................... 60
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Section 7.09. Successor Trustee by ▇▇▇▇▇▇, etc............................ 60
Section 7.10. Eligibility; Disqualification............................... 60
Section 7.11. Preferential Collection of Claims Against Company........... 61
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE........................... 61
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.... 61
Section 8.02. Legal Defeasance and Discharge.............................. 61
Section 8.03. Covenant Defeasance......................................... 61
Section 8.04. Conditions to Legal or Covenant Defeasance.................. 62
Section 8.05. Deposited Cash and Government Securities to be Held in
Trust; Other Miscellaneous Provisions....................... 63
Section 8.06. Repayment to Company........................................ 63
Section 8.07. Reinstatement............................................... 64
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER................................... 64
Section 9.01. Without Consent of Holders of Notes......................... 64
Section 9.02. With Consent of Holders of Notes............................ 64
Section 9.03. Compliance with Trust Indenture Act......................... 66
Section 9.04. Revocation and Effect of Consents........................... 66
Section 9.05. Notation on or Exchange of Notes............................ 66
Section 9.06. Trustee to Sign Amendments, etc............................. 66
ARTICLE 10. SUBSIDIARY GUARANTEES............................................. 66
Guarantee...................................................
Section 10.01. 66
Limitation on Subsidiary Guarantor Liability................
Section 10.02. 68
Execution and Delivery of Subsidiary Guarantee..............
Section 10.03. 68
Subsidiary Guarantors May Consolidate, etc., on Certain
Section 10.04. Terms....................................................... 68
Releases Following Sale of Assets...........................
Section 10.05. 69
ARTICLE 11. SATISFACTION AND DISCHARGE........................................ 69
Satisfaction and Discharge..................................
Section 11.01. 69
Deposited Cash and Government Securities to be Held in
Section 11.02. Trust; Other Miscellaneous Provisions....................... 70
Repayment to Company........................................
Section 11.03. 70
ARTICLE 12. MISCELLANEOUS..................................................... 70
Trust Indenture Act Controls................................
Section 12.01. 70
Notices.....................................................
Section 12.02. 71
Communication by Holders of Notes with Other Holders of
Section 12.03. Notes....................................................... 71
Certificate and Opinion as to Conditions Precedent..........
Section 12.04. 72
Statements Required in Certificate or Opinion...............
Section 12.05. 72
Rules by Trustee and Agents.................................
Section 12.06. 72
No Personal Liability of Directors, Officers, Employees and
Section 12.07. Shareholders................................................ 72
Governing Law...............................................
Section 12.08. 72
No Adverse Interpretation of Other Agreements...............
Section 12.09. 72
iii
Page
--------
Successors..................................................
Section 12.10. 73
Severability................................................
Section 12.11. 73
Consent to Jurisdiction and Service of Process..............
Section 12.12. 73
Conversion of Currency......................................
Section 12.13. 73
Currency Equivalent.........................................
Section 12.14. 74
Counterpart Originals.......................................
Section 12.15. 74
Table of Contents, Headings, etc............................
Section 12.16. 74
Qualification of this Indenture.............................
Section 12.17. 74
EXHIBIT A: FORM OF NOTE
EXHIBIT B: FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C: FORM OF CERTIFICATE OF EXCHANGE
FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED
EXHIBIT D: INVESTOR
EXHIBIT E: FORM OF NOTATION OF GUARANTEE
EXHIBIT F: FORM OF SUBORDINATION AGREEMENT
iv
CROSS-REFERENCE TABLE
TIA Section Reference Indenture Section
--------------------- -----------------
310(a)(1)................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.08, 7.10
(c)......................................................... N.A.
311(a)...................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312(a)...................................................... 2.05
(b)......................................................... 12.03
(c)......................................................... 12.03
313(a)...................................................... 7.06
(b)(1)...................................................... N.A.
(b)(2)...................................................... 7.06, 7.07
(c)......................................................... 7.06, 12.02
(d)......................................................... 7.06
314(a)...................................................... 4.03, 4.04, 12.02
(b)......................................................... N.A.
(c)(1)...................................................... 12.04
(c)(2)...................................................... 12.04
(c)(3)...................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 12.05
315(a)...................................................... 7.01
(b)......................................................... 7.05, 12.02
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316(a) (last sentence)...................................... 2.09
(a)(1)(A)................................................... 6.05
(a)(1)(B)................................................... 6.04
(a)(2)...................................................... N.A.
(b)......................................................... 6.07
317(a)(1)................................................... 6.08
(a)(2)...................................................... 6.09
(b)......................................................... 2.04
318(a)...................................................... 12.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.