QUEBECOR MEDIA INC. US$525,000,000 73/4% SENIOR NOTES DUE MARCH 15, 2016 INDENTURE Dated as of January 17, 2006 U.S. Bank National Association, as Trustee
Exhibit 2.8
US$525,000,000
73/4% SENIOR NOTES DUE MARCH 15, 2016
Dated as of January 17, 2006
U.S. Bank National Association,
as Trustee
as Trustee
This INDENTURE, dated as of January 17, 2006, is by and between QUEBECOR MEDIA INC., a company
incorporated under the laws of the Province of Québec (the “Company”), and U.S. BANK NATIONAL
ASSOCIATION, as trustee (the “Trustee”).
The Company and the Trustee agree as follows for the equal and ratable benefit of the Holders
of the 73/4% Senior Notes due March 15, 2016 (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.
“Accounts Receivable Entity” means a Subsidiary of the Company or any other Person in which
the Company or any of its Restricted Subsidiaries makes an Investment:
(1) that is formed solely for the purpose of, and that engages in no activities other
than activities in connection with, financing accounts receivable;
(2) that is designated pursuant to a resolution of the Board of Directors of the
Company as an Accounts Receivable Entity;
(3) no portion of the Indebtedness or any other obligation (contingent or otherwise) of
which (a) is at any time guaranteed by the Company or any of its Restricted Subsidiaries
(excluding guarantees of obligations (other than any guarantee of Indebtedness) pursuant to
Standard Securitization Undertakings), (b) is at any time recourse to or obligates the
Company or any of its Restricted Subsidiaries in any way, other than pursuant to Standard
Securitization Undertakings, or (c) subjects any asset of the Company or any other
Restricted Subsidiary of the Company, directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization Undertakings (such
Indebtedness, “Non-Recourse Accounts Receivable Entity Indebtedness”);
(4) with which neither the Company nor any of its Restricted Subsidiaries has any
material contract, agreement, arrangement or understanding other than contracts, agreements,
arrangements and understandings entered into in the ordinary course of business on terms no
less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company in connection with
a Qualified Receivables Transaction and fees payable in the ordinary course of business in
connection with servicing accounts receivable in connection with such a Qualified
Receivables Transaction; and
(5) with respect to which neither the Company nor any of its Restricted Subsidiaries
has any obligation to maintain or preserve the solvency or any balance sheet term, financial
condition, level of income or results of operations thereof.
“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.
“Applicable Premium” means, with respect to a Note at any date of redemption, the greater of
(i) 1.0% of the principal amount of such Note and (ii) the excess of (A) the present value at such
date of redemption of (1) the redemption price of such Note at March 15, 2011 (such redemption
price being described under Section 3.07) plus (2) all remaining required interest payments due on
such Note through March 15, 2011 (excluding accrued but unpaid interest to the date of redemption),
computed using a discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
principal amount of such Note.
“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 of the Company or
any of its Restricted Subsidiaries; 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 of less than US$10.0 million;
(2) a sale, lease, conveyance or other disposition of assets between or among the
Company and its Restricted Subsidiaries;
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(3) an issuance of Equity Interests by the Company or any of its Restricted
Subsidiaries to the Company or another of its Restricted Subsidiaries;
(4) the sale, lease, conveyance or other disposition of equipment, inventory or other
assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) sales of accounts receivables pursuant to a Qualified Receivables Transaction for
the Fair Market Value thereof, including cash in an amount equal to at least 75% of the Fair
Market Value thereof;
(7) any transfer of accounts receivable, or a fractional undivided interest therein, by
an Accounts Receivable Entity in a Qualified Receivables Transaction;
(8) any Tax Benefit Transaction;
(9) the issuance of Equity Interests of any Public Subsidiary pursuant to any equity
compensation plan approved in accordance with the rules and regulations of the primary stock
exchange or quotation system on which the Capital Stock of such Public Subsidiary is listed
or quoted; provided, however, that the aggregate Fair Market Value for all such issued
Equity Interests shall not exceed US$5.0 million in any twelve-month period;
(10) the issuance of Equity Interests of any of the Company’s Restricted Subsidiaries;
provided, that after such issuance the Company’s ownership interests in such Restricted
Subsidiary, whether directly or through its Restricted Subsidiaries, is at least equal to
its ownership interests in such Restricted Subsidiary prior to such issuance; and
(11) a Restricted Payment or Permitted Investment that is permitted by Section 4.10
hereof.
“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 Quebecor Media
Entity, executes or has executed a subordination agreement in favor of the Holders in substantially
the form attached hereto as Exhibit E.
“Back-to-Back Preferred Shares” means Preferred Shares issued:
(1) to a Quebecor Media Entity by an Affiliate of the Company (other than a Quebecor
Media Entity) in circumstances where, immediately prior to or after, as the case may be, the
issuance of such Preferred Shares, an Affiliate of such Quebecor Media Entity (other than a
Quebecor Media Entity) has loaned on an unsecured basis to such Quebecor Media Entity, or an
Affiliate of such Quebecor Media Entity (other than a Quebecor Media Entity) has subscribed
for Preferred Shares of such Quebecor Media Entity in, an amount equal to the requisite
subscription price for such Preferred Shares;
(2) by a Quebecor Media Entity to one of its Affiliates (other than a Quebecor Media
Entity) in circumstances where, immediately prior to or after, as the case may be, the
issuance of such Preferred Shares, such Quebecor Media Entity has loaned an amount equal to
the proceeds of such issuance to an Affiliate (other than a Quebecor Media Entity) on an
unsecured basis; or
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(3) by a Quebecor Media Entity to one of its Affiliates (other than a Quebecor Media
Entity) in circumstances where, immediately prior to or after, as the case may be, the
issuance of such Preferred Shares, such Quebecor Media Entity has used the proceeds of such
issuance to subscribe for Preferred Shares issued by an Affiliate (other than a Quebecor
Media Entity);
in each case on terms whereby:
(i) the aggregate redemption amount applicable to the Preferred Shares issued to or by
such Quebecor Media 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
Quebecor Media 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 Quebecor Media 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 Quebecor Media 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 Quebecor Media 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 of the Company
as set forth in clauses (1), (2) and (3) above, each holder of such Preferred Shares under such
Back-to-Back Transaction, other than such Restricted Subsidiary, executes or has executed a
subordination agreement in favor of the Holders in substantially the form attached hereto as
Exhibit E.
“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 of
the Company (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
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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.
“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;
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(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 (including cash received
when non-cash proceeds have been converted into cash) received by the Company after the Issue Date:
(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;
(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, at the time of acquisition, 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$250.0 million;
(4) repurchase obligations with a term of not more than 60 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, at the time of acquisition, at least a “P-1” rating from
▇▇▇▇▇’▇ Investors Service, Inc. or at least an “A-1” rating from 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, at the time of acquisition, 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;
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(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.
“Commodity Price Agreement” means any commodity swap agreements, commodity option agreements,
forward contracts and other agreements or arrangements entered into for the purpose of fixing,
hedging or swapping commodity price risk.
“Company” means Quebecor Media Inc. 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, to the extent that any such expense was deducted in computing such Consolidated
Net Income; plus
(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; plus
(4) solely for the purpose of determining the amount of Indebtedness that may be
Incurred under Section 4.09(a), the amount of income or losses attributable to a
non-controlling interest in a non-Wholly Owned Restricted Subsidiary, which was deducted and
not added back in calculating Consolidated Net Income of such Person; minus
(5) any interest and other payments made to Persons other than any Quebecor Media
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
(6) 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.
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“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 shall not be included as Consolidated Interest Expense.
“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) solely for the purpose of determining the amount available for Restricted Payments
under Section 4.10(a)(3)(a), 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 (or 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
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(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 any
of its Restricted Subsidiaries (other than in each case Disqualified Stock of the Company).
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 11.02 hereof, or such other address as to which the Trustee may give notice to the Company.
“Credit Agreement” means the Credit Agreement, to be dated as of the Issue Date, by and among
the Company, as Borrower, the financial institutions party thereto from time to time, as Lenders,
and Bank of America, N.A., as Administrative Agent for the Lenders.
“Credit Facilities” means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities, or other debt arrangements (including, without
limitation, under this Indenture), in each case with banks, other institutional lenders or
investors, providing for revolving credit loans, term loans, notes, receivables financing
(including, to the extent Indebtedness, through the sales of accounts receivables to such lenders
or investors or to an Accounts Receivable Entity) 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 any foreign exchange contract, currency swap
agreement, currency option or other similar agreement or arrangement entered into for the purpose
of protecting against fluctuations in currency exchange rates with any commercial bank or other
financial institutions having capital and surplus in excess of US$250.0 million at the time the
Currency Exchange Protection Agreement is entered into.
“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 as of such Determination Date to (b)
(i) the Consolidated Cash Flow of the Company’s cable segment as reported in its consolidated
financial statements (the “Cable Business”) for the most recently ended fiscal quarter ending
immediately prior to such Determination Date for which internal financial statements are available
multiplied by four, provided, that if (A) in such fiscal quarter the Consolidated Cash Flow of the
Cable Business was reduced by a cash restructuring expense and (B) no similar restructuring expense
or other non-recurring cash expense was incurred by the Cable Business in the three fiscal quarters
prior to such fiscal quarter, for the purpose of calculating the Consolidated Cash Flow of the
Cable Business, such cash restructuring charge shall not be multiplied by four; plus (ii) the
Consolidated Cash Flow of the Company, excluding the Cable Business, for the most recently ended
four fiscal quarters ending immediately prior to such Determination Date for which internal
financial statements are available (each of the periods referenced to in clauses (i) and (ii), a
“Measurement Period”), determined on a pro forma basis after giving effect to all acquisitions or
dispositions of assets made by the Company and its Restricted Subsidiaries from the beginning of
the applicable Measurement Period through and including such Determination Date (including any
related financing transactions) as if such acquisitions and dispositions had occurred at the
beginning of the applicable Measurement Period. 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 of its Restricted Subsidiaries 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
9
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 had been 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.
“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 thereto 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).
10
“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 in
existence on the Issue Date, until such amounts are repaid.
“Fair Market Value” means, with respect to any assets (including securities), the price that
could be negotiated in an arm’s-length transaction, for cash, between a willing seller and willing
buyer, neither of whom is under undue pressure or compulsion to complete the transaction; provided,
however, that if such assets have a Fair Market Value in excess of US$40.0 million, Fair Market
Value shall be determined by the Board of Directors of the Company, as set forth in a resolution,
based upon (i) approval by a majority of the disinterested members of the Board of Directors or
(ii) an opinion or appraisal issued by an accounting, appraisal or investment banking firm of
national standing in the United States or Canada; provided, further, that no such resolution,
approval or opinion shall be required in connection with any Back-to-Back Transaction.
“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.
“Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Exchange Protection Agreement or Commodity
Price Agreement.
“Holder” means a Person in whose name a Note is registered, unless otherwise specified in this
Indenture or such Note.
11
“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 the
face of 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 or Standard Securitization
Undertakings.
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
12
under such Currency Exchange Protection Agreement is not otherwise included as Indebtedness of such
Person) of such Currency Exchange Protection Agreement.
“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$525.0 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 any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other similar agreement or arrangement entered into for the
purpose of protecting against fluctuations in interest rates with any commercial bank or other
financial institution having capital and surplus in excess of US$250.0 million at the time the
Interest Rate Agreement is entered into.
“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 January 17, 2006.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in each of
the City of New York, Montréal, 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.
13
“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.
“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 $10.0 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 of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) other than a pledge of the Equity Interests of an Unrestricted
Subsidiary, (b) is directly or indirectly liable as a guarantor or otherwise other than by
virtue of a pledge of the Equity Interests of an Unrestricted Subsidiary 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 other than set
forth in clause (1) above.
“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.
14
“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 Subsidiaries on the
Issue Date, or anything related or ancillary thereto.
“Permitted Holders” means one or more of the following persons or entities:
(1) Quebecor Inc.;
(2) any issue of the late ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(3) any trust having as its sole beneficiaries one or more of the persons listed in
clause (2) above;
(4) any corporation, partnership or other entity controlled, directly or indirectly, by
one or more of the persons or trusts referred to in clause (2) or (3) above; and
(5) Caisse de dépôt et placement du Québec, or any corporation, partnership or other
entity controlled, directly or indirectly, by Caisse de dépôt et placement du
Québec.
“Permitted Investments” means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(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;
(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; or
(c) such Person, which was formed solely for the purpose of acquiring assets of a
Permitted Business, is upon acquisition of such assets obligated to convey or otherwise
distribute assets to the Company or any of its Restricted Subsidiaries having a Fair Market
Value at least equal to the Investment of the Company or such Restricted Subsidiary in such
Person (net of transaction expenses);
provided, that, in each case, such Person’s primary business is, or the assets acquired by the
Company or any of its Restricted Subsidiaries are used or useful in, 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;
15
(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) any Investment made in connection with Hedging Obligations entered into in the
ordinary course of business of the Company or any of its Restricted Subsidiaries 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, foreign currency
exchange rates or commodity prices, 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 its 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 the Issue Date, and any Investment that is an extension,
modification, renewal or reinvestment of such existing Investment, provided, that, the Fair
Market Value of the new Investment does not exceed the Fair Market Value of the existing
Investment at the time it is extended, modified, renewed or reinvested;
(10) any Investment by the Company or any Restricted Subsidiary of the Company in an
Accounts Receivable Entity or any Investment by an Accounts Receivable Entity in any other
Person in connection with a Qualified Receivables Transaction, so long as any Investment in
an Accounts Receivable Entity is in the form of a Purchase Money Note or an Equity Interest;
(11) Investments in joint ventures engaged in a Permitted Business not to exceed
US$50.0 million.
(12) other Investments in any Person 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 (12)
since the Issue Date, not to exceed US$100.0 million in the aggregate outstanding at any one
time.
“Permitted Liens” means:
(1) Liens on the assets of the Company securing Indebtedness and other Obligations of
the Company under Credit Facilities, which Indebtedness was permitted to be incurred
pursuant to Section 4.09(b)(1) hereof;
(2) Liens in favor of the Company;
(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, 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;
(4) Liens on property existing at the time of acquisition thereof by the Company,
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;
16
(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 the Issue Date;
(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 Liens of a similar
nature incurred in the ordinary course of business (including, without limitation,
mechanics’, landlords’ or workmen’s compensation Liens and Liens in respect of insurance or
benefits and other similar Liens), in each case 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 ▇▇▇▇-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;
(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;
17
(19) Liens on accounts receivable and related assets incurred in connection with a
Qualified Receivables Transaction;
(20) Liens on Capital Stock of any Unrestricted Subsidiary;
(21) any extensions, substitutions, replacements or renewals of the foregoing clauses
(2) through (20); and
(22) Liens incurred in the ordinary course of business of the Company with respect to
Obligations that do not exceed US$50.0 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 of its Restricted
Subsidiaries (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, 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, such Permitted Refinancing
Indebtedness is pari passu with, or subordinated in right of payment to, the Notes; and
(5) such Indebtedness is incurred either by the Company 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.
18
“Public Subsidiary” means any of the Company’s Restricted Subsidiaries that (1) is required to
file reports pursuant to the Securities Act (Ontario) and/or is required to file reports pursuant
to Section 13 of the Exchange Act and (2) has Capital Stock listed or quoted on the Toronto Stock
Exchange, the New York Stock Exchange or the NASDAQ National Market.
“Purchase Money Note” means a promissory note of an Accounts Receivable Entity to the Company
or any of its Restricted Subsidiaries, which note must be repaid from cash available to the
Accounts Receivable Entity, other than amounts required to be established as reserves pursuant to
agreements, amounts paid to investors in respect of interest, principal and other amounts owing to
such investors and amounts paid in connection with the purchase of newly generated receivables.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Receivables Transaction” means any transaction or series of transactions entered
into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or such
Restricted Subsidiary transfers to an Accounts Receivable Entity (in the case of a transfer by the
Company or any of its Restricted Subsidiaries) or any other Person other than the Company or any of
its Subsidiaries, or grants a security interest in, any accounts receivable (whether now existing
or arising in the future) of the Company or any of its Restricted Subsidiaries, and any assets
related thereto, including, without limitation, all collateral securing such accounts receivable,
all contracts and all guarantees or other obligations in respect of such accounts receivable,
proceeds of such accounts receivable and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with an accounts
receivable financing transaction; provided such transaction is on market terms at the time the
Company or such Restricted Subsidiary enters into such transaction.
“Quebecor Media Entity” means any of the Company or any of its Restricted Subsidiaries.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Issue
Date, among the Company and the initial purchasers named therein, as such agreement may be 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).
“Replacement Assets” means (1) non-current assets that will be used or useful in a Permitted
Business; (2) if the Net Proceeds are from the sale of assets of the Company or any of its
Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries,
substantially all the assets of a Permitted Business or a
19
majority of the Voting Stock of any Person engaged in a Permitted Business that will become on
the date of acquisition thereof a Restricted Subsidiary; or (3) if the Net Proceeds are from the
sale of assets or Equity Interests of a Person other than the Company or any of its Restricted
Subsidiaries, the assets of a Permitted Business or the Voting Stock of any Person engaged in a
Permitted Business.
“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 (a) payable in Equity Interests (other than
Disqualified Stock or Back-to-Back Securities) of the Company or (b) 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
Subordinated Indebtedness, except, in the case of Subordinated Indebtedness (other than
Back-to-Back Securities), 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 Subordinated
Indebtedness; or
(4) any Restricted Investment.
“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.
20
“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 the Issue Date.
“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.
“Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any of its Restricted Subsidiaries, which are customary
in an accounts receivable securitization transaction.
“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 of its Restricted
Subsidiaries (whether outstanding on the Issue Date or thereafter incurred) that is, by its terms,
expressly subordinate or junior in right of payment to the Notes.
“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).
“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 Quebecor Media Entity and Quebecor Inc. or any of its
Affiliates, the primary purpose of which is to create tax benefits for any Quebecor Media Entity or
for Quebecor Inc. or any of its Affiliates; provided, however, that not later than the date of any
such transaction (1) if the Tax Benefit Transaction includes net consideration payable thereunder
in excess of Cdn$10.0 million (or Cdn$25.0 million when aggregated with all other Tax Benefit
Transactions in any 12-month period), the Quebecor Media Entity involved in the transaction
obtains, or has obtained in connection with a previous similar Tax Benefit Transaction, a favorable
tax
21
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 Quebecor Media Entity; (2) if the Tax Benefit Transaction includes net
consideration payable thereunder in excess of Cdn$10.0 million (or Cdn$25.0 million when aggregated
with all other Tax Benefit Transactions in any 12-month period), the Company delivers to the
trustee a resolution of the Board of Directors of the Company to the effect the transaction will
not prejudice the Holders, which resolution shall be based upon (a) approval by a majority of the
disinterested members of such Board of Directors or (b) an opinion as to the fairness to such
Quebecor Media 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; (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 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 will be in default under this Indenture if such transaction does not comply with the
preceding requirements or is not otherwise unwound within 45 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.
“Treasury Rate” means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) which has become publicly available at least two business
days prior to the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly equal to the then
remaining term of the Notes to March 15, 2011; provided, however, that if the then remaining term
of the Notes to March 15, 2011 is not equal to the constant maturity of a United States Treasury
security for which a weekly average yield is given, the Treasury Rate will be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
United States Treasury securities for which such yields are given, except that if the then
remaining term of the Notes to March 15, 2011 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year will
be used.
“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) Nurun Inc.;
(2) 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
(3) any Subsidiary of an Unrestricted Subsidiary.
“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.
22
“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.
| Term | Defined in 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” |
11.13(a) | |
“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” |
11.14 | |
“judgment currency” |
11.13(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” |
11.13 | |
“Registrar” |
2.03(a) | |
“Security Register” |
3.03 | |
“Surviving Company” |
5.01(a)(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;
23
“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 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.
24
(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 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
25
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.
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. The Paying Agent, except if
the Paying Agent is the Company or a Subsidiary, shall not be liable for interest on any money
received or held by it hereunder, and, if the Paying Agent is other than the Company or a
Subsidiary, moneys held in trust by the Paying Agent need not be segregated except as required by
law. 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
§312(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 §312(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.
26
(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” (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
27
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
(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:
28
(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, 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;
29
(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 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
30
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 certificate from
such holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;
31
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.
32
(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 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
33
(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, in each case evidencing the same
continuing Indebtedness as the Notes exchanged therefor. 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.
(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 HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE 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 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 QUEBECOR MEDIA INC. (THE “COMPANY”) OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (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:
34
“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 (55
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (“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
35
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.
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
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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 as to
which a Responsible Officer of the Trustee has received an Officer’s Certificate stating that such
Notes 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, 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
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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;
(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
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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 Holder’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;
(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.
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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), (c) and (d) of this Section 3.07, the Notes shall not
be redeemable at the option of the Company prior to March 15, 2011. Beginning on March 15, 2011,
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 Record Date to receive
interest due on the relevant Interest Payment Date), if redeemed during the twelve-month period
commencing on March 15 of the years indicated below:
| Redemption Year | Percentage | |||
2011 |
103.875 | % | ||
2012 |
102.583 | % | ||
2013 |
101.292 | % | ||
2014 and thereafter |
100.000 | % | ||
(b) At any time and from time to time prior to March 15, 2009, 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 107.75% 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) At any time and from time to time prior to March 15, 2011, the Company may, at its option,
redeem all or part of the Notes upon not less than 30 nor more than 60 days’ prior notice at a
redemption price equal
to the sum of (i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of
the date of redemption, plus (iii) accrued and unpaid interest and Special Interest, if any, to the
date of redemption.
(d) 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
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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).
(e) 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 Holder’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);
(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 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 Holder is withdrawing his election to have such Note
purchased;
41
(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 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.
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(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 hereby
initially designates the office of the Trustee at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇,
Mail Stop: EX-NY-WALL as such an office or agency. 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 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 one 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:
43
| (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.
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 §314(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.
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. [Reserved.]
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, in accordance with the
organizational documents (as the same may be amended from time to time) of the Company and (ii) the
rights (charter and statutory), licenses and franchises of the Company.
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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 Restricted 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 Restricted Subsidiaries to issue any
Preferred Shares; provided, however, that the Company may Incur Indebtedness, including Acquired
Debt, or issue Disqualified Stock, and its Restricted Subsidiaries 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 applicable Measurement Period,
would have been no greater than 6.0 to 1.0.
(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 of Indebtedness and letters of credit under one or more 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 thereunder) not to exceed an aggregate of Cdn$1.25 billion, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company since the Issue Date 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 Existing Indebtedness; | ||
| (3) | the Incurrence by 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; | ||
| (4) | the Incurrence by the Company or any of its Restricted Subsidiaries 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 Restricted Subsidiaries, 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$100.0 million at any time outstanding; | ||
| (5) | the Incurrence by the Company or any of its Restricted Subsidiaries 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; |
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| (6) | the Incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any Restricted Subsidiary; provided, however, that: |
| (i) | if the Company 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, 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 of Disqualified Stock or the issuance by 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 Disqualified Stock or 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 Disqualified Stock or 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 Disqualified Stock by the Company or Preferred Shares by a Restricted Subsidiary, as the case may be, that was not permitted by this clause (7); |
| (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 any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be Incurred by another provision of this Section 4.09; | ||
| (10) | the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in relation with 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; | ||
| (11) | the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness owed to any Person under or in connection with any worker’s compensation, health, disability, employee benefits or equity compensation plan or property, casualty or liability insurance provided by such Person to the Company or its Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; |
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| (12) | the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn out obligations or other similar obligations, in each case incurred or assumed in connection with a transaction permitted by this Indenture; | ||
| (13) | Non-Recourse Accounts Receivable Entity Indebtedness incurred by any Accounts Receivable Entity in a Qualified Receivables Transaction; | ||
| (14) | the Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness, the issuance by the Company of Disqualified Stock or the issuance by any of the Company’s Restricted Subsidiaries of Preferred Shares in an aggregate principal amount at any time outstanding not to exceed US$100.0 million; and | ||
| (15) | the issuance of Indebtedness, Preferred Shares or Disqualified Stock 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 or Preferred Shares in the form of additional
shares of the same class of Disqualified Stock or Preferred Shares (to the extent provided for when
the Indebtedness or Disqualified Stock or Preferred Shares 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 or Preferred Shares 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) The Company shall not Incur any Indebtedness, including Permitted Debt, that is
contractually subordinated in right of payment to any other Indebtedness of the Company, unless
such Indebtedness is also contractually subordinated in right of payment to the Notes, on
substantially identical terms; provided, however, that no Indebtedness of the Company shall be
deemed to be contractually subordinated in right of payment to any other Indebtedness of the
Company, 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 (15) 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 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 |
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| 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 the Issue Date, excluding Restricted Payments made pursuant to clauses (2), (3), (4), (6), (7), (8), (9), (10) and (11) 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 the first date of the fiscal quarter in which the Issue Date occurs 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 first date of the fiscal quarter in which the Issue Date occurs 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 the Issue Date 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 the Issue Date 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; plus | ||
| (e) | Cdn$215.0 million. |
| (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; |
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| (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 of its Restricted Subsidiaries 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 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 of its Restricted Subsidiaries 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 the Company’s stock option plans; provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed the sum of (a) US$5.0 million in any fiscal year (with unused amounts in any fiscal year being permitted to be carried over to succeeding fiscal years) and (b) the Company’s liability under the Company’s stock option plans as of the Issue Date; | ||
| (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 Quebecor Media 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, management fees or similar expenses payable to shareholders of the Company in an aggregate amount not to exceed US$2.0 million in any calendar year; | ||
| (9) | (a) the payment of any dividend pursuant to the terms of Disqualified Stock of the Company or Preferred Shares of any of its Restricted Subsidiaries, provided, that such dividend is included in the Company’s Consolidated Interest Expense; and (b) the payment of principal at the Stated Maturity of Disqualified Stock of the Company or Preferred Shares of any of its Restricted Subsidiaries, provided, that such Disqualified Stock or Preferred Shares was incurred or permitted to be incurred pursuant to the covenant contained in Section 4.09; | ||
| (10) | the repurchase by any of the Company’s non-Wholly Owned Restricted Subsidiaries of its previously issued and outstanding Equity Interests for consideration equal to the Fair Market Value of the repurchased Equity Interests; |
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| (11) | so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed US$50.0 million; and | ||
| (12) | 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 5.5 to 1.0 (calculated on a pro forma basis as if such payment, including any related financing transaction, had occurred at the beginning of the applicable Measurement Period), the purchase, redemption or other acquisition or retirement for value, of Equity Interests of the Company held by Caisse de dépôt et placement du Québec or any of its Affiliates. |
(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.
(d) For purposes of this Section 4.10, if (i) any Affiliate of the Company ceases to be the
obligor under or issuer of any Back-to-Back Securities and a Person other than an Affiliate of the
Company 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, directly or indirectly, create, incur, assume or suffer to exist or
become effective any Lien of any kind on any asset owned at the Issue Date or thereafter acquired,
except Permitted Liens, unless the Company has made or will make effective provision to secure the
Notes equally and ratably with the obligations of the Company 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; and | ||
| (2) | at least 75% of the consideration received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents, Replacement Assets or a combination thereof. 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 subordinated to the Notes), 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 90 days of |
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| the applicable Asset Sale by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in such conversion. |
(b) [Reserved].
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or
any of its Restricted Subsidiaries may apply those Net Proceeds at its option:
| (1) | (a) to permanently repay or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Company’s Restricted Subsidiaries; | ||
| (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 a Subsidiary 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) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, 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; | ||
| (4) | to acquire, or enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; 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; | ||
| (5) | to make capital expenditures; or | ||
| (6) | 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 or invested as provided in
paragraph (c) above shall constitute “Excess Proceeds.”
(e) When the aggregate amount of Excess Proceeds exceeds Cnd$100.0 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 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
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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 securities laws and
regulations and shall be deemed not 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 the Issue Date 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 not materially 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 the Issue Date; provided, further, however, that if such Existing Indebtedness or Credit Facility could not be amended, modified, restated, renewed, increased, supplemented, refunded, replaced or refinanced on commercially reasonable terms without the inclusion of dividend and other payment restrictions that are materially more restrictive than those contained in such Existing Indebtedness or Credit Facility (as determined in good faith by the Board of Directors of the Company), the Company or its Restricted Subsidiary may amend, modify, restate, renew, increase, supplement, refund, replace or refinance such Existing Indebtedness or Credit Facility, provided, that the dividend and other payment restrictions contained therein will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company); |
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| (2) | this Indenture and the Notes; | ||
| (3) | applicable law or any applicable rule, regulation or order, or under the terms of any permit or license issued under 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 or other agreements that restrict the assignment of such agreements or rights or non-cash assets thereunder, including, without limitation, customary restrictions imposed on the transfer of intellectual property, in each case entered into in the ordinary course of business; | ||
| (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 the dividend and other payment restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; provided, further, however, that if such Permitted Refinancing Indebtedness could not be entered into on commercially reasonable terms without the inclusion of dividend and other payment restrictions that are materially more restrictive than those contained in the existing Indebtedness (as determined in good faith by the Board of Directors of the Company), the Company or its Restricted Subsidiary may enter into such Permitted Refinancing Indebtedness, provided, that the dividend and other payment restrictions contained therein will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company); | ||
| (9) | Liens securing Indebtedness that is permitted to be secured without also securing the Notes 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 asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; | ||
| (11) | customary provisions in joint venture agreements, shareholders’ agreements and other similar agreements entered into in the ordinary course of business; | ||
| (12) | customary restrictions imposed by customers under contracts entered into in the ordinary course of business; | ||
| (13) | Non-Recourse Accounts Receivable Entity Indebtedness or other contractual requirements of an Accounts Receivable Entity in connection with a Qualified |
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| Receivables Transaction; provided that such restrictions apply only to such Accounts Receivables Entity or the receivables which are subject to the Qualified Receivables Transaction; and | |||
| (14) | any Indebtedness or any agreement pursuant to which such Indebtedness was issued if (a) the encumbrance or restriction applies only upon a payment or financial covenant default or event of default contained in such Indebtedness or agreement, (b) 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 (c) such encumbrance or restriction will not materially impair the Company’s ability to make payments on the Notes (as determined in good faith by the Board of Directors of the Company). |
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 with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of US$40.0 million: |
| (i) | a Board Resolution of the Company set forth in an Officers’ Certificate stating 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; or | ||
| (ii) | 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) | payments pursuant to any employment agreement, collective bargaining agreement, employee benefit plan or other compensation, indemnity, incentive or similar arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business, which represent customary and reasonable consideration (as determined in good faith by the Board of Directors of the Company); | ||
| (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 |
54
| 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 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; | ||
| (9) | Transactions effected as part of a Qualified Receivables Transaction; and | ||
| (10) | any Tax Benefit Transaction. |
Section 4.15. [Reserved].
Section 4.16. [Reserved].
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) | 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 |
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(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.
(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 applicable Measurement Period;
(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; and (iii) 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 in whole or in 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. [Reserved].
Section 4.20. Additional Amounts.
(a) All payments made by or on behalf of the Company 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 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:
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| (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 such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder after this withholding or deduction (including any deduction or withholding for Additional Amounts) 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; | ||
| (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 | ||
| (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 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. |
For greater certainty, the obligation to indemnify under clause (5) above shall extend to
Taxes (other than Taxes that are excluded under clause (5) above) paid by a Holder in respect of
which the Company is not obliged to withhold as a result of the Holder’s status as an authorized
foreign bank or a registered non-resident insurer (each as defined in the Income Tax Act (Canada))
(or other entity exempt from withholding on a basis comparable to authorized foreign banks and
registered non-resident insurers) where such Holder must itself pay Taxes imposed by a Canadian
Taxing Authority in lieu of withholding taxes.
(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 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 enforcement of rights 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 Company shall pay any present or future stamp, court, documentary or other similar taxes,
charges or levies that arise in any jurisdiction from the execution, delivery or registration of,
or enforcement of rights under, this Indenture or any related document.
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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, is organized or any political subdivision or taxing authority or
agency thereof or therein.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation and Sale of Assets of the Company.
(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 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) [Reserved]
(c) In addition, the Company shall not, directly or indirectly, lease all or substantially all
of its properties or assets, in one or more related transactions, to any other Person. Clause
(a)(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 shall succeed to, and be substituted for, and may exercise every right
and power of the Company 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, to a Person that is not (either before
or after giving effect to such transactions) a Subsidiary of the Company), or
(b) a lease,
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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.
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, 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 4.12, 4.18 or 5.01 hereof;
(iv) failure by the Company or any Restricted Subsidiary for 45 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 for money borrowed 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) [Reserved];
(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;
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(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
(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, dissolution or winding up 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:
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(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.
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
61
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.
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
62
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.
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 of which the Trustee is deemed to have notice in accordance with
Section 7.02(f) 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
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(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 on their face to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or
other facts or the correctness of opinions or conclusions 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 shall have offered
to the Trustee security and indemnity satisfactory to it in it sole discretion against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received or held 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.
(g) Neither the Trustee nor the Registrar shall have any duty to monitor, or have any
responsibility with respect to, the Company’s compliance with any U.S. or Canadian federal, state
or provincial securities laws.
(h) The Trustee shall have no obligation to ascertain or inquire as to the observance or
performance of any covenant, agreement or obligation on the part of the Company under this
Indenture or any other agreement, instrument or document.
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 selected by it (including in-house 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.
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(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 security or indemnity satisfactory to the Trustee in its sole
discretion 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) [Reserved.]
(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 Affiliate of the Company with the same rights it
would have if it were not Trustee. Unless otherwise provided by law, the foregoing shall not by
itself be deemed a conflicting interest. 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.
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.
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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 §313(a) (but if no event
described in TIA §313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA §313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA §313(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 §313(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, including, if applicable, for its services as
Paying Agent and Registrar. Compensation of the Trustee in accordance with its established fee
schedule, as it may be amended from time to time, shall be deemed reasonable compensation to the
Trustee for its services. 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 (including in-house
counsel).
The Company shall indemnify the Trustee and any predecessor Trustee against any and all
losses, claims, damages, penalties, fines, liabilities or expenses, including incidental and
out-of-pocket expenses and reasonable attorneys fees and expenses (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
result from 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.
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.
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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 Merger, etc.
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,
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or of a bank 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 §310(a)(1),
(2) and (5). The Trustee is subject to TIA §310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA
§311(b). A Trustee who has resigned or been removed shall be subject to TIA §311(a) to the extent
indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasanc.
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”).
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 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 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 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
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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) 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) 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 U.S. federal income tax purposes as a
result of such Legal Defeasance and will be subject to U.S. 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 U.S. federal income tax purposes as a result of such
Covenant Defeasance and will be subject to U.S. 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;
(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;
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(f) the Company shall deliver to the Trustee an Opinion of Counsel to the effect that, (a)
assuming no intervening bankruptcy of the Company 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,
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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.
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 to Holders in the case of a
merger, consolidation, or amalgamation or sale of all or substantially all of the assets of the
Company; 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) provide for the issuance of Additional Notes in accordance with this Indenture; or
(f) comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA.
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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 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;
(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 of any of their rights or obligations under this Indenture;
(i) subordinate the Notes to any other obligation of the Company;
(j) amend or modify the provisions of Section 4.20 hereof; or
(k) 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
72
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; provided, however, that the Trustee shall have the right to require
an Opinion of Counsel to the effect that the proposed amendment or waiver conforms in substance to
the consent of the Holders.
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 Holder’s address appearing
in the Security Register a notice 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).
73
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. 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 payable within one year, and the Company 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 is a party
or by which the Company is bound;
(c) the Company 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 10.02. Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 10.03 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 10.02, the “Trustee”) pursuant to Section 10.01 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 10.03. 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
74
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 11.
MISCELLANEOUS
Section 11.01. 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.
Section 11.02. Notices.
Any notice or communication by the Company 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:
Quebecor Media Inc.
▇▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
U.S. Bank National Association
Attention: Corporate Trust Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇- ▇▇▇-▇▇▇▇
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.
75
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 § 313(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 11.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA §312(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 §312(c).
Section 11.04. 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 11.05 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 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been complied with.
Section 11.05. 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 §314(a)(4)) shall comply
with the provisions of TIA §314(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
76
(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 11.06. 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 11.07. No Personal Liability of Directors, Officers, Employees and
Shareholders.
No past, present or future director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company under the Notes, this
Indenture 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 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE
AND THE NOTES.
Section 11.09. 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.
Section 11.10. 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 11.11. 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 11.12. Consent to Jurisdiction and Service of Process
(a) The Company 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. The Company 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) The Company 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
77
same to the address provided in Section 11.02 hereof, shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding. The Company 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 11.13. 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 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 11.13 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 Montréal at 12:00 noon (Montréal,
Québec 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 11.13.
78
Section 11.14. Currency Equivalent.
Except as provided in Section 11.13, 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 Montréal at 12:00 noon (Montréal, Québec time) on the date of
determination.
Section 11.15. 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 11.16. 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 11.17. 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.
79
[Signatures on following page]
80
SIGNATURES
Dated as of January 17, 2006.
| Company: | ||||
| QUEBECOR MEDIA INC. | ||||
| By: | /s/ ▇▇▇▇ ▇’▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇’▇▇▇▇▇ | ||||
| Title: Vice President, Finance | ||||
81
| Trustee: | ||||
| U.S. BANK NATIONAL ASSOCIATION | ||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Title: Vice President | ||||
82
EXHIBIT A
(Face of Note)
73/4% SENIOR NOTES DUE MARCH 15, 2016
| CUSIP ISIN |
||
| No.___ | US$ |
promises to pay to CEDE & CO., or its registered assigns, the principal sum of
Dollars (US$ ) on March 15, 2016.
Interest Payment Dates: June 15 and December 15, commencing June 15, 2006.
Record Dates: June 1 and December 1.
IN WITNESS WHEREOF, the Company has caused this Note to be signed by its duly authorized
officer.
| QUEBECOR MEDIA INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Notes referred to in the
within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
as Trustee
By:
|
||||
| Dated , 2006 | ||||
A-1
(Back of Note)
73/4% SENIOR NOTES DUE MARCH 15, 2016
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE 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 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 QUEBECOR MEDIA INC. (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (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 (55
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (“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
A-2
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. Quebecor Media Inc., a company incorporated under the laws of Québec (the
“Company”), promises to pay interest (as defined in the Indenture) on the principal amount of this
Note at 7.750% 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 June 15,
2006. 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 June 1 or December 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, U.S. 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 January 17, 2006
(“Indenture”) between the Company 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 §§ 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), (c) and (d) of this Paragraph 5, the Notes shall not
be redeemable at the option of the Company prior to March 15, 2011. Beginning on March 15, 2011,
the Company may redeem 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
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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 March 15 of the
years indicated below:
| Redemption Year | Percentage | |||
2011 |
103.875 | % | ||
2012 |
102.583 | % | ||
2013 |
101.292 | % | ||
2014 and thereafter |
100.000 | % | ||
(b) At any time and from time to time prior to March 15, 2009, 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 107.75% 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) At any time and from time to time prior to March 15, 2011, the Company may, at its option,
redeem all or part of the Notes upon not less than 30 nor more than 60 days’ prior notice at a
redemption price equal to the sum of (i) 100% of the principal amount thereof, plus (ii) the
Applicable Premium as of the date of redemption, plus (iii) accrued and unpaid interest and Special
Interest, if any, to the date of redemption.
(d) 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 Holder’s Notes pursuant to this
clause (c).
(e) 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, or offers to purchase, the Notes.
7. Offer to 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 Cnd$100.0
million. Thereafter, the Company shall commence
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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
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, except with respect to withholding tax and the obligation under the Indenture to pay
Additional Amounts.
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 to Holders in the case of a
merger, consolidation, or amalgamation or sale of all or substantially all of the assets of the
Company; 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
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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) provide for the
issuance of Additional Notes in accordance with the Indenture; or (f) comply with requirements of
the Commission in order to effect or maintain the qualification of this Indenture under the TIA.
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, 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 4.12, 4.18 or 5.01 of the
Indenture; (d) failure by the Company or any Restricted Subsidiary for 45 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 for money borrowed 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; and (g) 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 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, as such, shall have any liability for any obligations
of the Company under the Indenture, the Notes 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.
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
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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 January 17, 2006, 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: Quebecor Media Inc., ▇▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇, 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.
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Option of Holder to Elect to Accept Offer to Purchase
If you want to elect to accept the offer to have this Note purchased by the Company pursuant to
Section 4.12 or 4.18 of the Indenture, check the box below:
o
|
Section 4.12 | |
o
|
Section 4.18 |
If you want to elect to accept the offer in respect of only part of the Note 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. |
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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. | ||||||||
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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 Amount | ||||||||
| Amount of | of this Global Note | Signature of | ||||||
| decrease in | Amount of increase | following such | authorized signatory | |||||
| Principal Amount | in Principal Amount | decrease (or | of Trustee or | |||||
| Date of Exchange | of this Global Note | of this Global Note | increase) | Note Custodian | ||||
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Quebecor Media Inc.
▇▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
▇▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
U.S. Bank National Association
[ ]
Attention: Corporate Trust Services
Facsimile No.: [ ]
[ ]
Attention: Corporate Trust Services
Facsimile No.: [ ]
Re: 73/4% Senior Notes due March 15, 2016
Reference is hereby made to the Indenture, dated as of January 17, 2006 (the “Indenture”),
between Quebecor Media Inc., as issuer (the “Company”), and U.S. 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. o 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. o 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
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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. o 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) o such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;
or
(b) o such Transfer is being effected to the Company or a Subsidiary thereof;
or
(c) ▇▇▇▇▇ 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) o 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. o Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) o 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) o 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
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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) o 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, 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) | o | a beneficial interest in the: | ||||
| (i) | o | 144A Global Note (CUSIP ), or | ||||
| (ii) | o | Regulation S Global Note (CUSIP ); or | ||||
| (b) | o | a Restricted Definitive Note. | ||||
| 2. | After the Transfer the Transferee will hold: | |||||
| [CHECK ONE OF (a), (b) OR (c)] | ||||||
| (a) | o | a beneficial interest in the: | ||||
| (i) | o | 144A Global Note (CUSIP ), or | ||||
| (ii) | o | Regulation S Global Note (CUSIP ), or | ||||
| (iii) | o | Unrestricted Global Note (CUSIP ); or | ||||
| (b) | o | a Restricted Definitive Note; or | ||||
| (c) | o | an Unrestricted Definitive Note, | ||||
| in accordance with the terms of the Indenture. | ||||||
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Quebecor Media Inc.
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Attention: Director, Legal Affairs
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Attention: Director, Legal Affairs
U.S. Bank National Association
[ ]
Attention: Corporate Trust Services
Facsimile No.: [ ]
[ ]
Attention: Corporate Trust Services
Facsimile No.: [ ]
Re: 73/4% Senior Notes due March 15, 2016
Reference is hereby made to the Indenture, dated as of January 17, 2006 (the “Indenture”),
between Quebecor Media Inc., as issuer (the “Company”), and U.S. 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) o 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) o 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) o 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) o 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) o 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) o 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.
C-2
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-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Quebecor Media Inc.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
▇▇▇ ▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Director, Legal Affairs
U.S. Bank National Association
[ ]
Attention: Corporate Trust Services
Facsimile No.: [ ]
[ ]
Attention: Corporate Trust Services
Facsimile No.: [ ]
Re: 73/4% Senior Notes due March 15, 2016
Reference is hereby made to the Indenture, dated as of January 17, 2006 (the “Indenture”),
between Quebecor Media Inc., as issuer (the “Company”), and U.S. 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) o a beneficial interest in a Global Note, or
(b) o 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.
D-1
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.
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 Transferor] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Dated: | ||||||
D-2
EXHIBIT E
FORM OF SUBORDINATION AGREEMENT
This SUBORDINATION AGREEMENT is dated as of (the “Agreement”).
To: U.S. 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 “Exchange Notes,” the “Additional Notes” and any “guarantee” of the
Exchange Notes or the Additional Notes (in each case, as defined in the Indenture) and (2) any
Credit Facilities (as defined in the Indenture) of Quebecor Media.
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 January 17, 2006 (the
“Indenture”; capitalized terms used herein without definition having the meanings set forth
therein) between Quebecor Media and the Trustee. Pursuant to the Indenture, Quebecor Media has
issued 73/4% Senior Notes due March 15, 2016 of Quebecor Media.
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
provisions of this Section 3 are for the benefit of the Trustee
E-1
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 |
E-2
| 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 | ||
| (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
E-3
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 Quebecor Media, 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).
(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 Québec 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.
E-4
If to the Obligor:
[ ]
If to the Holder:
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: | ||||
E-5
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE | 1 | |||||
| Section 1.01. | Definitions | 1 | ||||
| Section 1.02. | Other Definitions | 23 | ||||
| Section 1.03. | Incorporation by Reference of Trust Indenture Act | 23 | ||||
| Section 1.04. | Rules of Construction | 24 | ||||
| ARTICLE 2. THE NOTES | 24 | |||||
| Section 2.01. | Form and Dating | 24 | ||||
| Section 2.02. | Execution and Authentication | 25 | ||||
| Section 2.03. | Registrar and Paying Agent | 25 | ||||
| Section 2.04. | Paying Agent to Hold Money in Trust | 26 | ||||
| Section 2.05. | Holder Lists | 26 | ||||
| Section 2.06. | Transfer and Exchange | 26 | ||||
| Section 2.07. | Replacement Notes | 36 | ||||
| Section 2.08. | Outstanding Notes | 36 | ||||
| Section 2.09. | Treasury Notes | 36 | ||||
| Section 2.10. | Temporary Notes | 37 | ||||
| Section 2.11. | Cancellation | 37 | ||||
| Section 2.12. | Defaulted Interest | 37 | ||||
| Section 2.13. | CUSIP or ISIN Numbers | 37 | ||||
| Section 2.14. | Special Interest | 37 | ||||
| Section 2.15. | Issuance of Additional Notes | 38 | ||||
| ARTICLE 3. REDEMPTION AND PREPAYMENT | 38 | |||||
| Section 3.01. | Notices to Trustee | 38 | ||||
| Section 3.02. | Selection of Notes to Be Redeemed | 38 | ||||
| Section 3.03. | Notice of Redemption | 39 | ||||
| Section 3.04. | Effect of Notice of Redemption | 39 | ||||
| Section 3.05. | Deposit of Redemption Price | 39 | ||||
| Section 3.06. | Notes Redeemed in Part | 40 | ||||
| Section 3.07. | Optional Redemption | 40 | ||||
| Section 3.08. | Mandatory Redemption | 41 | ||||
| Section 3.09. | Offers To Purchase | 41 | ||||
| ARTICLE 4. COVENANTS | 43 | |||||
| Section 4.01. | Payment of Notes | 43 | ||||
| Section 4.02. | Maintenance of Office or Agency | 43 | ||||
i
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||||
| Section 4.03. | Reports | 43 | ||||
| Section 4.04. | Compliance Certificate | 44 | ||||
| Section 4.05. | Taxes | 44 | ||||
| Section 4.06. | [Reserved.] | 44 | ||||
| Section 4.07. | Corporate Existence | 44 | ||||
| Section 4.08. | Payments for Consent | 45 | ||||
| Section 4.09. | Incurrence of Indebtedness and Issuance of Preferred Shares | 45 | ||||
| Section 4.10. | Restricted Payments | 47 | ||||
| Section 4.11. | Liens | 50 | ||||
| Section 4.12. | Asset Sales | 50 | ||||
| Section 4.13. | Dividend and Other Payment Restrictions Affecting Subsidiaries | 52 | ||||
| Section 4.14. | Transactions with Affiliates | 54 | ||||
| Section 4.15. | [Reserved] | 55 | ||||
| Section 4.16. | [Reserved] | 55 | ||||
| Section 4.17. | Designation of Restricted and Unrestricted Subsidiaries | 55 | ||||
| Section 4.18. | Repurchase at the Option of Holders Upon a Change of Control | 56 | ||||
| Section 4.19. | [Reserved] | 56 | ||||
| Section 4.20. | Additional Amounts | 56 | ||||
| ARTICLE 5. SUCCESSORS | 58 | |||||
| Section 5.01. | Merger, Consolidation and Sale of Assets of the Company | 58 | ||||
| Section 5.02. | Successor Corporation Substituted | 58 | ||||
| ARTICLE 6. DEFAULTS AND REMEDIES | 59 | |||||
| Section 6.01. | Events of Default | 59 | ||||
| Section 6.02. | Acceleration | 60 | ||||
| Section 6.03. | Other Remedies | 61 | ||||
| Section 6.04. | Waiver of Past Defaults | 61 | ||||
| Section 6.05. | Control by Majority | 61 | ||||
| Section 6.06. | Limitation on Suits | 62 | ||||
| Section 6.07. | Rights of Holders to Receive Payment | 62 | ||||
| Section 6.08. | Collection Suit by Trustee | 62 | ||||
| Section 6.09. | Trustee May File Proofs of Claim | 62 | ||||
| Section 6.10. | Priorities | 63 | ||||
| Section 6.11. | Undertaking for Costs | 63 | ||||
| ARTICLE 7. TRUSTEE | 63 | |||||
ii
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||||
| Section 7.01. | Duties of Trustee | 63 | ||||
| Section 7.02. | Rights of Trustee | 64 | ||||
| Section 7.03. | Individual Rights of Trustee | 65 | ||||
| Section 7.04. | Trustee’s Disclaimer | 65 | ||||
| Section 7.05. | Notice of Defaults | 65 | ||||
| Section 7.06. | Reports by Trustee to Holders | 66 | ||||
| Section 7.07. | Compensation and Indemnity | 66 | ||||
| Section 7.08. | Replacement of Trustee | 67 | ||||
| Section 7.09. | Successor Trustee by Merger, etc. | 67 | ||||
| Section 7.10. | Eligibility; Disqualification | 67 | ||||
| Section 7.11. | Preferential Collection of Claims Against Company | 68 | ||||
| ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE | 68 | |||||
| Section 8.01. | Option to Effect Legal Defeasance or Covenant Defeasance | 68 | ||||
| Section 8.02. | Legal Defeasance and Discharge | 68 | ||||
| Section 8.03. | Covenant Defeasance | 68 | ||||
| Section 8.04. | Conditions to Legal or Covenant Defeasance | 69 | ||||
| Section 8.05. | Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions | 70 | ||||
| Section 8.06. | Repayment to Company | 70 | ||||
| Section 8.07. | Reinstatement | 71 | ||||
| ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER | 71 | |||||
| Section 9.01. | Without Consent of Holders of Notes | 71 | ||||
| Section 9.02. | With Consent of Holders of Notes | 72 | ||||
| Section 9.03. | Compliance with Trust Indenture Act | 73 | ||||
| Section 9.04. | Revocation and Effect of Consents | 73 | ||||
| Section 9.05. | Notation on or Exchange of Notes | 73 | ||||
| Section 9.06. | Trustee to Sign Amendments, etc. | 73 | ||||
| ARTICLE 10. SATISFACTION AND DISCHARGE | 74 | |||||
| Section 10.01. | Satisfaction and Discharge | 74 | ||||
| Section 10.02. | Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions | 74 | ||||
| Section 10.03. | Repayment to Company | 74 | ||||
| ARTICLE 11. MISCELLANEOUS | 75 | |||||
| Section 11.01. | Trust Indenture Act Controls | 75 | ||||
| Section 11.02. | Notices | 75 | ||||
iii
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||||
| Section 11.03. | Communication by Holders of Notes with Other Holders of Notes | 76 | ||||
| Section 11.04. | Certificate and Opinion as to Conditions Precedent | 76 | ||||
| Section 11.05. | Statements Required in Certificate or Opinion | 76 | ||||
| Section 11.06. | Rules by Trustee and Agents | 77 | ||||
| Section 11.07. | No Personal Liability of Directors, Officers, Employees and Shareholders | 77 | ||||
| Section 11.08. | Governing Law | 77 | ||||
| Section 11.09. | No Adverse Interpretation of Other Agreements | 77 | ||||
| Section 11.10. | Successors | 77 | ||||
| Section 11.11. | Severability | 77 | ||||
| Section 11.12. | Consent to Jurisdiction and Service of Process | 77 | ||||
| Section 11.13. | Conversion of Currency | 78 | ||||
| Section 11.14. | Currency Equivalent | 79 | ||||
| Section 11.15. | Counterpart Originals | 79 | ||||
| Section 11.16. | Table of Contents, Headings, etc. | 79 | ||||
| Section 11.17. | Qualification of this Indenture | 79 |
| EXHIBIT A 1 | ||||||
| (Face of Note) 1 | ||||||
| 73/4% SENIOR NOTES DUE MARCH 15, 2016 | 1 | |||||
| QUEBECOR MEDIA INC. | 1 | |||||
| (Back of Note) 2 | ||||||
| 73/4% SENIOR NOTES DUE MARCH 15, 2016 | 2 | |||||
| Option of Holder to Elect to Accept Offer to Purchase | 8 | |||||
| Assignment Form 9 | ||||||
| (Insert assignee’s social security or other tax I.D. no.) | 9 | |||||
| (Print or type assignee’s name, address and zip code) | 9 | |||||
| SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE | 10 | |||||
| EXHIBIT B | 1 | |||||
| FORM OF CERTIFICATE OF TRANSFER | 1 | |||||
| [CHECK ALL THAT APPLY] | 1 | |||||
| or | 2 | |||||
| or | 2 | |||||
| or | 2 | |||||
| ANNEX A TO CERTIFICATE OF TRANSFER | 4 | |||||
| [CHECK ONE OF (a) OR (b)] | 4 | |||||
iv
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||||
| [CHECK ONE OF (a), (b) OR (c)] | 4 | |||||
| EXHIBIT C 1 | ||||||
| FORM OF CERTIFICATE OF EXCHANGE | 1 | |||||
| EXHIBIT D 1 | ||||||
FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR |
1 | |||||
1. |
Interpretation. | 1 | ||||
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 January 17, 2006 (the “Indenture”; capitalized terms used herein without definition having the meanings set forth therein) between Quebecor Media and the Trustee. Pursuant to the Indenture, Quebecor Media has issued 73/4% Senior Notes due March 15, 2016 of Quebecor Media | 1 | ||||
3. |
Subordination. The indebtedness or obligation represented by the Subordinated Security shall be subordinated as follows: | 1 | ||||
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 Quebecor Media, 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 | 4 | ||||
5. |
Miscellaneous | 4 | ||||
EXHIBIT A: FORM OF NOTE
EXHIBIT B: FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C: FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D: FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
EXHIBIT E: FORM OF SUBORDINATION AGREEMENT
EXHIBIT B: FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C: FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D: FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
EXHIBIT E: FORM OF SUBORDINATION AGREEMENT
v
CROSS-REFERENCE TABLE
| TIA Section | Indenture | |
| Reference | 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) |
11.03 | |
(c) |
11.03 | |
313(a) |
7.06 | |
(b)(1) |
N.A. | |
(b)(2) |
7.06, 7.07 | |
(c) |
7.06, 11.02 | |
(d) |
7.06 | |
314(a) |
4.03, 4.04, 11.02 | |
(b) |
N.A. | |
(c)(1) |
12.04 | |
(c)(2) |
12.04 | |
(c)(3) |
N.A. | |
(d) |
N.A. | |
(e) |
11.05 | |
315(a) |
7.01 | |
(b) |
7.05, 11.02 | |
(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) |
11.01 |
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.