ROGERS WIRELESS INC., Issuer And JPMORGAN CHASE BANK, Trustee INDENTURE Dated as of November 30, 2004 8.00% Senior Subordinated Notes due 2012
EXHIBIT
99.31
EXECUTION
COPY
▇▇▇▇▇▇
WIRELESS INC.,
Issuer
And
JPMORGAN
CHASE BANK,
Trustee
_______________________
Dated
as
of November 30, 2004
_______________________
8.00%
Senior Subordinated Notes due 2012
|
TRUST
INDENTURE
ACT
SECTION
|
INDENTURE
SECTION
|
||
|
Section
310
|
(a)(1)
|
609
|
|
|
(a)(2)
|
609
|
||
|
(b)
|
608,
610
|
||
|
Section
312
|
(c)
|
701
|
|
|
Section
314
|
(a)
|
703
|
|
|
(a)(4)
|
1011
|
||
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(b)
|
1202
|
||
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(c)(1)
|
103
|
||
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(c)(2)
|
103
|
||
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(e)
|
103
|
||
|
Section
315
|
(b)
|
602
|
|
|
Section
316
|
(a)
|
||
|
(last
sentence)
|
101
(“Outstanding”)
|
||
|
(a)(1)(A)
|
502,
512
|
||
|
(a)(1)(B)
|
513
|
||
|
(b)
|
508
|
||
|
(c)
|
105
|
||
|
Section
317
|
(a)(1)
|
503
|
|
|
(a)(2)
|
504
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||
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(b)
|
1003
|
||
|
Section
318
|
(a)
|
108
|
|
_____________
* This
reconciliation and tie shall not, for any purpose, be deemed to be part of
the
Indenture.
TABLE
OF
CONTENTS
|
PAGE
|
|||
|
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|||
|
SECTION
101. Definitions
|
1
|
||
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“Additional
Securities”
|
2
|
||
|
“Adjusted
Treasury Rate”
|
2
|
||
|
“Affiliate”
|
2
|
||
|
“Agent”
|
2 | ||
|
“Agent
Member”
|
2
|
||
|
“Applicable
Procedures”
|
2
|
||
|
“Bank
Credit Agreement”
|
2
|
||
|
“Bank
Credit Facility”
|
3
|
||
|
“Banks”
|
3
|
||
|
“Board
of Directors”
|
3
|
||
|
“Board
Resolution”
|
3
|
||
|
“Business
Day”
|
3
|
||
|
“Canadian
Dollars”
|
3
|
||
|
“Cdn
Dollars”
|
3
|
||
|
“Cdn$”
|
3
|
||
|
“Capital
Lease Obligation”
|
3
|
||
|
“Capital
Stock”
|
3
|
||
|
“Cash
Equivalents”
|
3
|
||
|
“Commission”
|
3
|
||
|
“Common
Stock”
|
4
|
||
|
“Company”
|
4
|
||
|
“Company
Request”
|
4
|
||
|
“Company
Order”
|
4
|
||
|
“Comparable
Treasury Issue”
|
4
|
||
|
“Comparable
Treasury Price”
|
4
|
||
|
“Corporate
Trust Office”
|
4
|
||
|
“Debt”
|
4
|
||
|
“Deed
of Trust”
|
5
|
||
|
“Deed
Trustee”
|
5
|
||
|
“Default”
|
5
|
||
|
“Depositary”
|
5
|
||
|
“Designated
Senior Indebtedness”
|
5
|
||
|
“Disqualified
Stock”
|
5
|
||
|
“Event
of Default”
|
6
|
||
|
“Exchange
Act”
|
6
|
||
|
“Exchange
Offer”
|
6
|
||
|
“Exchange
Offer Registration Statement”
|
6
|
||
|
“Exchange
Securities”
|
6
|
||
|
“Existing
Secured Securities”
|
6
|
||
|
“Fitch
IBCA”
|
6
|
||
i
|
PAGE
|
||
|
“Generally
Accepted Accounting Principles”
|
6
|
|
|
“GAAP”
|
6
|
|
|
“Holder”
|
6
|
|
|
6
|
||
|
“Indenture
Obligations”
|
6
|
|
|
“Initial
Securities”
|
7
|
|
|
“Inter-Company
Deeply Subordinated Debt”
|
7
|
|
|
“Inter-Company
Subordinated Debt”
|
7
|
|
|
“Interest
Payment Date”
|
7
|
|
|
“Investment
Grade Rating”
|
7
|
|
|
“Lien”
|
7
|
|
|
“Maturity”
|
7
|
|
|
“▇▇▇▇▇’▇”
|
7
|
|
|
“Non-Payment
Event of Default”
|
7
|
|
|
“Opinion
of Counsel”
|
8
|
|
|
“Outstanding”
|
8
|
|
|
“Paying
Agent”
|
8
|
|
| “Payment Default” | 8 | |
|
“Person”
|
9
|
|
|
“Predecessor
Security”
|
9
|
|
|
“Preferred
Stock”
|
9
|
|
|
“Purchase
Money Obligations”
|
9
|
|
|
“QIB”
|
9
|
|
|
“Quotation
Agent”
|
9
|
|
|
“Rating
Agencies”
|
9
|
|
|
“Rating
Date”
|
9
|
|
|
“Rating
Decline”
|
9
|
|
|
“RCI”
|
9
|
|
|
“Redemption
Date”
|
10
|
|
|
“Redemption
Price”
|
10
|
|
|
“Reference
Treasury Dealer”
|
10
|
|
|
“Reference
Treasury Dealer Quotations”
|
10
|
|
|
“Registration
Rights Agreement”
|
10
|
|
|
“Registration
Statement”
|
10
|
|
|
“Regular
Record Date”
|
10
|
|
|
“Regulation
S”
|
10
|
|
|
“Responsible
Officer”
|
10
|
|
|
“Restricted
Subsidiary”
|
10
|
|
|
“Rogers
Entities”
|
10
|
|
|
“Rule
144A”
|
10
|
|
|
“Securities
Act”
|
11
|
|
|
“Security”
|
11
|
|
|
“Securities”
|
11
|
|
|
“Senior
Indebtedness”
|
11
|
|
|
“Senior
Notes”
|
11
|
|
|
“Shelf
Registration Statement”
|
11
|
|
|
“Special
Record Date”
|
11
|
|
|
“S&P”
|
11
|
ii
|
PAGE
|
||
|
“Stated
Maturity”
|
12
|
|
|
“Subsidiary”
|
12
|
|
|
“Supplier
Obligations”
|
12
|
|
|
“Trust
Bonds”
|
12
|
|
|
“Trust
Indenture Act”
|
12
|
|
|
“Trustee”
|
12
|
|
|
“U.S.
Dollars”
|
12
|
|
|
“United
States Dollars”
|
12
|
|
|
“U.S.$”
|
12
|
|
|
“$”
|
12
|
|
|
“Voting
Shares”
|
12
|
|
|
SECTION
102.
|
Other
Definitions
|
12
|
|
SECTION
103.
|
Compliance
Certificates and Opinions
|
13
|
|
SECTION
104.
|
Form
of Documents Delivered to the Trustee
|
14
|
|
SECTION
105.
|
Acts
of Holders
|
15
|
|
SECTION
106.
|
Notices,
Etc., to Trustee and Company
|
16
|
|
SECTION
107.
|
Notice
to Holders; Waiver
|
16
|
|
SECTION
108.
|
Conflict
of Any Provision of Indenture with the Trust Indenture Act
|
17
|
|
SECTION
109.
|
Effect
of Headings and Table of Contents
|
17
|
|
SECTION
110.
|
Successors
and Assigns
|
17
|
|
SECTION
111.
|
Separability
Clause
|
17
|
|
SECTION
112.
|
Benefits
of Indenture
|
17
|
|
SECTION
113.
|
Governing
Law
|
17
|
|
SECTION
114.
|
Legal
Holidays
|
17
|
|
SECTION
115.
|
Agent
for Service; Submission to Jurisdiction; Waiver of
Immunities
|
18
|
|
SECTION
116.
|
Conversion
of Currency
|
18
|
|
SECTION
117.
|
Currency
Equivalent
|
20
|
|
SECTION
118.
|
No
Recourse Against Others
|
20
|
|
SECTION
119.
|
Reliance
on Financial Data
|
20
|
|
SECTION
120.
|
Documents
in English
|
20
|
|
ARTICLE
TWO
SECURITY
FORMS
|
||
|
SECTION
201.
|
Forms
Generally
|
21
|
|
SECTION
202.
|
Restrictive
Legends
|
22
|
|
SECTION
203.
|
Form
of Face of Security
|
25
|
|
SECTION
204.
|
Form
of Reverse of Security
|
27
|
|
SECTION
205.
|
Form
of Trustee’s Certificate of Authentication
|
30
|
|
ARTICLE
THREE
THE
SECURITIES
|
||
|
SECTION
301.
|
Title
and Terms
|
31
|
|
SECTION
302.
|
Denominations
|
31
|
|
SECTION
303.
|
Execution,
Authentication, Delivery and Dating
|
32
|
|
SECTION
304.
|
Temporary
Securities
|
33
|
|
SECTION
305.
|
Registration,
Registration of Transfer and Exchange
|
33
|
iii
|
PAGE
|
||
|
SECTION
306.
|
Book-Entry
Provisions for Global Securities
|
34
|
|
SECTION
307.
|
Special
Transfer Provisions
|
36
|
|
SECTION
308.
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
38
|
|
SECTION
309.
|
Payment
of Interest; Interest Rights Preserved
|
39
|
|
SECTION
310.
|
Persons
Deemed Owners
|
40
|
|
SECTION
311.
|
Cancellation
|
40
|
|
SECTION
312.
|
Computation
of Interest
|
40
|
|
ARTICLE
FOUR
DEFEASANCE
AND COVENANT DEFEASANCE
|
||
|
SECTION
401.
|
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
41
|
|
SECTION
402.
|
Defeasance
and Discharge
|
41
|
|
SECTION
403.
|
Covenant
Defeasance
|
41
|
|
SECTION
404.
|
Conditions
to Defeasance or Covenant Defeasance
|
42
|
|
SECTION
405.
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions
|
44
|
|
SECTION
406.
|
Reinstatement
|
45
|
|
ARTICLE
FIVE
REMEDIES
|
||
|
SECTION
501.
|
Events
of Default
|
45
|
|
SECTION
502.
|
Acceleration
of Maturity; Rescission and Annulment
|
48
|
|
SECTION
503.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
50
|
|
SECTION
504.
|
Trustee
May File Proofs of Claim
|
50
|
|
SECTION
505.
|
Trustee
May Enforce Claims Without Possession of Securities
|
51
|
|
SECTION
506.
|
Application
of Money Collected
|
51
|
|
SECTION
507.
|
Limitation
on Suits
|
52
|
|
SECTION
508.
|
Unconditional
Right of Holders to Receive Principal, Premium and
Interest
|
52
|
|
SECTION
509.
|
Restoration
of Rights and Remedies
|
53
|
|
SECTION
510.
|
Rights
and Remedies Cumulative
|
53
|
|
SECTION
511.
|
Delay
or Omission Not Waiver
|
53
|
|
SECTION
512.
|
Control
by Holders
|
53
|
|
SECTION
513.
|
Waiver
of Past Defaults
|
53
|
|
SECTION
514.
|
Undertaking
for Costs
|
54
|
|
SECTION
515.
|
Waiver
of Stay, Extension or Usury Laws
|
54
|
|
SECTION
516.
|
Change
in Control Offer
|
54
|
|
54
|
||
|
ARTICLE
SIX
THE
TRUSTEE
|
||
|
SECTION
601.
|
Certain
Duties and Responsibilities
|
57
|
iv
|
PAGE
|
||
|
SECTION
602.
|
Notice
of Defaults
|
58
|
|
SECTION
603.
|
Certain
Rights of Trustee
|
58
|
|
SECTION
604.
|
Not
Responsible for Recitals or Issuance of Securities
|
59
|
|
SECTION
605.
|
May
Hold Securities
|
60
|
|
SECTION
606.
|
Money
Held in Trust
|
60
|
|
SECTION
607.
|
Compensation,
Reimbursement and Indemnity
|
60
|
|
SECTION
608.
|
Conflicting
Interests
|
61
|
|
SECTION
609.
|
Corporate
Trustee Required; Eligibility
|
61
|
|
SECTION
610.
|
Resignation
and Removal; Appointment of Successor
|
61
|
|
SECTION
611.
|
Acceptance
of Appointment by Successor
|
62
|
|
SECTION
612.
|
Merger,
Conversion, Consolidation or Succession to Business
|
62
|
|
SECTION
613.
|
Trustee
Not to Be Appointed Receiver
|
63
|
|
SECTION
614.
|
Acceptance
of Trusts
|
63
|
|
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
||
|
SECTION
701.
|
Disclosure
of Names and Addresses of Holders
|
63
|
|
SECTION
702.
|
Reports
by Trustee
|
64
|
|
SECTION
703.
|
Reports
by Company
|
64
|
|
ARTICLE
EIGHT
AMALGAMATION,
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER
OR LEASE
|
||
|
SECTION
801.
|
Company
May Amalgamate, Etc., Only on Certain Terms
|
65
|
|
SECTION
802.
|
Successor
Substituted
|
65
|
|
SECTION
803.
|
Securities
to be Secured in Certain Events
|
66
|
|
ARTICLE
NINE
SUPPLEMENTS
AND AMENDMENTS TO INDENTURE
|
||
|
SECTION
901.
|
Supplemental
Indentures and Amendments Without Consent of Holders
|
66
|
|
SECTION
902.
|
Supplemental
Indentures and Certain Amendments with Consent of Holders
|
66
|
|
SECTION
903.
|
Execution
of Supplemental Indentures
|
67
|
|
SECTION
904.
|
Effect
of Supplemental Indentures
|
68
|
|
SECTION
905.
|
Conformity
with the Trust Indenture Act
|
68
|
|
SECTION
906.
|
Reference
in Securities to Supplemental Indentures
|
68
|
|
ARTICLE
TEN
COVENANTS
|
||
|
SECTION
1001.
|
Payment
of Principal, Premium and Interest
|
68
|
v
|
PAGE
|
||
|
SECTION
1002
|
Maintenance
of Offices or Agencies
|
68
|
|
SECTION
1003
|
Money
for Security Payments to Be Held in Trust
|
69
|
|
SECTION
1004
|
Corporate
Existence
|
70
|
|
SECTION
1005
|
Payment
of Taxes and Other Claims
|
70
|
|
SECTION
1006.
|
Maintenance
of Properties
|
70
|
|
SECTION
1007.
|
Limitation
on Liens
|
71
|
|
SECTION
1008.
|
Limitation
on Other Senior Subordinated Debt
|
71
|
|
SECTION
1009.
|
Provision
of Financial Information
|
71
|
|
SECTION
1010.
|
Payment
of Additional Amounts
|
72
|
|
SECTION
1011.
|
Statement
as to Compliance
|
73
|
|
SECTION
1012.
|
Waiver
of Certain Covenants
|
73
|
|
SECTION
1013.
|
Subordination
Agreements
|
74
|
|
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
|
||
|
SECTION
1101.
|
Right
of Redemption
|
74
|
|
SECTION
1102.
|
Applicability
of Article
|
75
|
|
SECTION
1103.
|
Election
to Redeem; Notice to Trustee
|
75
|
|
SECTION
1104.
|
Selection
by Trustee of Securities to Be Redeemed
|
75
|
|
SECTION
1105.
|
Notice
of Redemption
|
75
|
|
SECTION
1106.
|
Deposit
of Redemption Price
|
76
|
|
SECTION
1107.
|
Securities
Payable on Redemption Date
|
76
|
|
SECTION
1108.
|
Securities
Redeemed in Part
|
77
|
|
SECTION
1109.
|
Effect
of Change in Control Purchase Notice
|
77
|
|
SECTION
1110.
|
Deposit
of Change in Control Purchase Price
|
78
|
|
SECTION
1111.
|
Securities
Purchased in Part
|
78
|
|
SECTION
1112.
|
Repayment
to the Company
|
78
|
|
ARTICLE
TWELVE
SUBORDINATION
OF SECURITIES
|
||
|
SECTION
1201.
|
Securities
Subordinate to Senior Indebtedness of the Company
|
78
|
|
SECTION
1202.
|
Payment
over of Proceeds upon Dissolution, Etc.
|
79
|
|
SECTION
1203.
|
Suspension
of Payment when Designated Senior Indebtedness in default
|
81
|
|
SECTION
1204.
|
Liens
|
82
|
|
SECTION
1205.
|
Payment
Permitted if no Default
|
82
|
|
SECTION
1206
|
Subrogation
to Rights of Holders of Senior Indebtedness
|
83
|
|
SECTION
1207
|
Provisions
Solely to Define Relative Rights
|
83
|
|
SECTION
1208
|
Trustee
to Effectuate Subordination; Subordination Agreements with Agent
Under
Bank Credit Agreement and Senior Debt Trustees
|
83
|
|
SECTION
1209
|
No
Waiver of Subordination Provisions
|
84
|
|
SECTION
1210
|
Notice
to the Trustee
|
85
|
|
SECTION
1211
|
Reliance
on Bankruptcy Order or Certificate of Liquidating Agent
|
86
|
|
SECTION
1212
|
Rights
of the Trustee as Holders of Senior Indebtedness of the Company;
Preservation of Trustee’s Rights
|
86
|
vi
|
PAGE
|
||
|
SECTION
1213
|
Article
Applicable to Paying Agent
|
86
|
|
SECTION
1214
|
No
Suspension of Remedies
|
86
|
|
SECTION
1215
|
Trust
Moneys not Subordinated
|
87
|
|
SECTION
1216
|
Assignment
by Holders of Senior Indebtedness
|
87
|
|
SECTION
1217
|
Payments
by Affiliates
|
87
|
|
TESTIMONIUM
|
88
|
|
|
SIGNATURES
|
88
|
|
vii
EXHIBITS
|
A
|
-
|
Provisions
for Inter-Company Deeply Subordinated Debt
|
|
B
|
-
|
Provisions
for Inter-Company Subordinated Debt
|
|
C
|
-
|
Form
of Certificate to be delivered in connection with Transfers from
Restricted Global Security to Regulation S Global
Security
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D
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-
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Form
of Certificate to be delivered in connection with Transfers from
Regulation S Global Security to Restricted Global
Security
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E
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-
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Form
of Certificate for Transfer or Exchange after two years
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F
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Form
of Company Subordination Agreement with Agent
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G
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Form
of Company Subordination Agreement with the Senior Debt
Trustees
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viii
INDENTURE
dated as of November 30, 2004 between ▇▇▇▇▇▇ Wireless Inc., a corporation
organized under the Canada Business Corporations Act (hereinafter called the
“Company”), and JPMorgan Chase Bank, N.A., a national banking association
organized under the laws of the United States, as trustee (hereinafter called
the “Trustee”).
RECITALS
OF THE COMPANY
WHEREAS,
the Company has duly authorized the creation of and issue of its 8.00% Senior
Subordinated Notes due 2012 (hereinafter called the “Initial Securities”) and
8.00% Exchange Senior Subordinated Notes due 2012 (hereinafter called the
“Exchange Securities” and, together with the Initial Securities, the
“Securities”), of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture;
WHEREAS,
upon the effectiveness of the Exchange Offer Registration Statement or the
Shelf
Registration Statement, as the case may be, this Indenture will be subject
to,
and shall be governed by, applicable provisions of the Trust Indenture Act;
and
WHEREAS,
all things necessary have been done to make the Securities, when executed and
duly issued by the Company and authenticated and delivered hereunder by the
Trustee, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, each in accordance with their respective
terms.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION
101. DEFINITIONS.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b)
all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(c)
all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with generally accepted accounting principles in
Canada;
1
(d)
the
words “herein”, “hereof” and “hereunder” and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other
subdivision;
(e)
the
words “include”, “includes” and “including” as used herein shall be deemed in
each case to be followed by the phrase “without limitation”; and
(f)
the
words “amendment or refinancing” as used herein shall be deemed in each case to
refer to any amendment, renewal, extension, substitution, refinancing,
restructuring, restatement, replacement, supplement or other modification of
any
instrument or agreement; the words “amended or refinanced” shall have a
correlative meaning.
Certain
terms, used principally in Articles Five and Ten, are defined in those
Articles.
“Additional
Securities” means up to an unlimited additional aggregate principal amount of
Securities that may be issued under a supplemental indenture after the date
that
the Securities are first issued by the Company and authenticated by the Trustee
under this Indenture, which shall rank pari passu with the Securities initially
issued in all respects.
“Adjusted
Treasury Rate” means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for
the Redemption Date.
“Affiliate”
means, with respect to any specified Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
“control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Agent”
means the agent bank under the Bank Credit Agreement and any future agent under
the Bank Credit Agreement.
“Agent
Member” means any members of, or participants in, the Depositary.
“Applicable
Procedures” means applicable procedures of the Depositary, Euroclear System or
Clearstream Banking, societe anonyme, as the case may be.
“Bank
Credit Agreement” means the Amended and Restated Credit Agreement dated as of
March 15, 1997, as amended by a first amendment agreement dated as of April
12,
2001 and as further amended by a second amendment agreement dated as of October
8, 2004, in each case between the Company and the Banks as in effect on the
date
of this Indenture and as such agreement may be further amended, restated,
renewed, extended, substituted, refinanced, restructured, replaced, supplemented
or otherwise modified from time to time, and includes any agreement (i)
extending the maturity of all or any portion of the Debt thereunder, (ii) adding
additional
borrowers or guarantors thereunder, (iii) modifying the amount, terms and
conditions, covenants and other provisions thereof and (iv) any agreement (and
related document) governing Debt incurred to refinance, in whole or in part,
the
borrowings and commitments then outstanding or permitted to be outstanding
under
such agreement or successor credit agreement, whether by the same or any other
lender.
2
“bank
credit facility” means any credit agreement or working capital facility among
the Company and/or its Subsidiaries and one or more lenders, as such credit
agreement or working capital facility may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise
modified (including with other lenders) from time to time, regardless of whether
any other credit agreement or working capital facility or any portion thereof
was outstanding or in effect at the time of such amendment, renewal, extension,
substitution, refinancing, restructuring, replacement, supplement or
modification.
“Banks”
means the lenders from time to time who are parties to the Bank Credit
Agreement.
“Board
of
Directors” means the board of directors of the Company or any duly authorized
committee of such board.
“Board
Resolution” means a copy of a resolution certified by the General Counsel,
Secretary or an Assistant Secretary of the Company to have been duly adopted
by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions and trust companies in The City of New York
or
the City of Toronto are authorized or obligated by law, regulation or executive
order to be closed.
“Canadian
Dollars”, “Cdn Dollars” and “Cdn$” each mean lawful currency of
Canada.
“Capital
Lease Obligation” means, with respect to any Person, an obligation incurred or
assumed in the ordinary course of business under or in connection with any
capital lease of real or personal property which, in accordance with GAAP,
has
been recorded as a capitalized lease.
“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or equivalents (however designated) of such Person’s capital
stock whether now outstanding or issued after the date of this Indenture,
including, without limitation, all Common Stock and Preferred
Stock.
“cash
equivalents” means money, certified cheques, demand deposit accounts held by the
Deed Trustee or other instruments or investments of equivalent liquidity and
safety.
“Commission”
means the United States Securities and Exchange Commission, as from time to
time
constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing
the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
3
“Common
Stock” means, with respect to any Person, any and all shares, interests and
participations (however designated and whether voting or non-voting) in such
Person’s common equity, whether now outstanding or issued after the date of this
Indenture, and includes, without limitation, all series and classes of such
common stock.
“Company”
means the Person named as the “Company” in the first paragraph of this
Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person. To the extent necessary to comply with the requirements
of the provisions of Trust Indenture Act Sections 310 through 317 as they are
applicable to the Company, the term “Company” shall include any other obligor
with respect to the Securities for the purposes of complying with such
provisions.
“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by any two of the following officers: its Chairman of the Board
of Directors, any Vice Chairman, its President, any Executive Vice President,
any Senior Vice President, any Vice President, its Treasurer, its Secretary
or
its General Counsel, and delivered to the Trustee.
“Comparable
Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the
Securities being redeemed that would be utilized, at the time of selection
and
in accordance with customary financial practice, in pricing new issues of
corporate debt of comparable maturity to the remaining term of the
Securities.
“Comparable
Treasury Price” means, with respect to any Redemption Date, the average of the
Reference Treasury Dealer Quotations for the Redemption Date.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered. At the date
of
execution of this Indenture, the Corporate Trust Office of the Trustee is
located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
“Debt”
means, with respect to any Person, without duplication and (except as provided
in clause (ii) below) without regard to any interest component thereof (whether
actual or imputed) that is not due and payable:
(i)
money
borrowed (including, without limitation, by way of overdraft) or indebtedness
represented by notes payable and drafts accepted representing extensions of
credit;
(ii)
the
face amount of any drafts of a corporation in Canadian Dollars and accepted
by a
Canadian lender for discount in Canada;
4
(iii)
all
obligations (whether or not with respect to the borrowing of money) which
are
evidenced by bonds, debentures, notes or similar instruments or not so evidenced
but which would be considered to be indebtedness for borrowed money in
accordance with GAAP;
(iv)
all
liabilities upon which interest charges are customarily paid by such
Person;
(v)
shares of Disqualified Stock not held by the Company or a wholly-owned
Subsidiary;
(vi)
Capital Lease Obligations, Purchase Money Obligations and Supplier
Obligations, determined in each case in accordance with GAAP; and
(vii)
any
guarantee (other than by endorsement of negotiable instruments for collection
or
deposit in the ordinary course of business) in any manner of any part or
all of
an obligation included in clauses (i) through (vi) above;
provided
that “Debt” shall not include trade payables and accrued liabilities which are
current liabilities incurred in the ordinary course of business.
“Deed
of
Trust” means the Amended and Restated Deed of Trust and Mortgage dated as of
March 15, 1997, between the Company and the Deed Trustee, as amended by the
First Supplemental Deed of Trust and Mortgage dated March 19, 1997, as in effect
on the date hereof and as such agreement may be amended, restated, supplemented
or otherwise modified from time to time.
“Deed
Trustee” means National Trust Company, a trust company subsisting under the laws
of the Province of Ontario, Canada and its successors and assigns, as trustee
under the Deed of Trust.
“Default”
means any event which is, or after notice or passage of time or both would
be,
an Event of Default.
“Depositary”
means The Depository Trust Company, its nominees and their respective
successors.
“Designated
Senior Indebtedness” means all Senior Indebtedness under the Bank Credit
Agreement.
“Disqualified
Stock” means any Capital Stock of the Company which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder) or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation
or
otherwise, or is redeemable at the option of the holder thereof, in whole or
in
part, on or prior to the maturity date of the Securities, for cash or securities
constituting Debt; provided that shares of Preferred Stock of the Company that
are issued with the benefit of provisions requiring a change in control offer
to
be made for such shares in the event of a change in control of the Company,
which provisions have substantially the same effect as the relevant provisions
of Sections 501 and 516 hereof, shall not be deemed to be “Disqualified Stock”
solely by virtue of such provisions. For purposes of this definition,
the term “Debt” includes Inter-Company Subordinated Debt.
5
“Event
of
Default” has the meaning specified in Article Five.
“Exchange
Act” means the United States Securities Exchange Act of 1934, as amended, and as
in force at the date as of which this instrument was executed.
“Exchange
Offer” means the exchange offer that may be effected pursuant to the
Registration Rights Agreement.
“Exchange
Offer Registration Statement” means the Exchange Offer Registration Statement as
defined in the Registration Rights Agreement.
“Exchange
Securities” has the meaning stated in the first recital of this Indenture and
refers to any Exchange Securities containing terms substantially identical
to,
and evidencing the same indebtedness as, the Initial Securities (except that
such Exchange Securities shall not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Initial Securities in
accordance with the Exchange Offer, as provided for in the Registration Rights
Agreement and this Indenture.
“Existing
Secured Securities” means securities evidencing indebtedness under the Company’s
10 1/2% Senior Secured Notes due 2006, 9 5/8% Senior Secured Notes due 2011,
6
3/8% Senior (Secured) Notes due 2014 and 9 3/4% Senior Secured Debentures due
2016.
“Fitch
IBCA” means Fitch IBCA or any successor to such rating agency business
thereof.
“Generally
Accepted Accounting Principles” or “GAAP” means generally accepted accounting
principles, in effect in Canada, as applied from time to time, by the Company
in
the preparation of its consolidated financial statements.
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
“Indenture”
means this instrument as originally executed (including all exhibits and
schedules hereto) and as it may from time to time be supplemented or amended
by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof.
“Indenture
Obligations” means the obligations of the Company and any other obligor
hereunder or under the Securities to pay principal of (and premium, if any)
and
interest on the Securities when due and payable at Maturity and any Additional
Amounts, and all other amounts due or to become due under or in connection
with
this Indenture, the Securities and the performance of all other obligations
to
the Trustee (including all amounts due to the Trustee under Section 607 hereof)
and the Holders under this Indenture and the Securities, according to the terms
hereof and thereof.
6
“Initial
Securities” has the meaning stated in the first recital of this
Indenture.
“Inter-Company
Deeply Subordinated Debt” means all indebtedness of the Company for money
borrowed from Rogers Entities under which payments by the Company with respect
thereto are subordinated to the Securities in the manner and to the extent
set
forth in Exhibit A hereto and in respect of which the agreement or instrument
evidencing such indebtedness contains or incorporates by reference the
provisions of Exhibit A hereto for the benefit of the Trustee and the
Holders.
“Inter-Company
Subordinated Debt” means all indebtedness of the Company for money borrowed from
Rogers Entities and under which payments by the Company with respect thereto
are
subordinated to the Securities in the manner and to the extent set forth in
Exhibit B hereto and in respect of which the agreement or instrument evidencing
such indebtedness contains or incorporates by reference the provisions of
Exhibit B for the benefit of the Trustee and the Holders.
“Interest
Payment Date” means the Stated Maturity of an installment of interest on the
Securities.
“Investment
Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by
S&P, Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by
Fitch IBCA.
“Lien”
means any mortgage, charge, pledge, lien, privilege, security interest,
hypothecation and transfer, lease of real property or other encumbrance upon
or
with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
“Maturity”
when used with respect to any Security means the date on which the principal
of
(and premium, if any) and interest on such Security becomes due and payable
as
therein or herein provided, whether at the Stated Maturity or by declaration
of
acceleration, call for redemption or otherwise.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc. or any successor to such rating agency
business thereof.
“Non-Payment
Event of Default” means any event (other than a Payment Default) the occurrence
of which entitles one or more Persons to accelerate the maturity of any
Designated Senior Indebtedness.
“Officers’
Certificate” means a certificate signed by any two of the following officers of
the Company: its Chairman, any Vice Chairman, its President, any Executive
Vice
President, any Senior Vice President, any Vice President, its Treasurer, its
Secretary or its General ▇▇▇▇▇▇▇, and delivered to the Trustee. Each such
certificate shall include the statements provided for in applicable provisions
of the Trust Indenture Act and shall comply with Section 103.
7
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company, and who shall be acceptable to the Trustee. Each such opinion shall
include the statements provided for in applicable provisions of the Trust
Indenture Act and shall comply with Section 103.
“Outstanding”
when used with respect to Securities means, as of the date of determination,
all
Securities theretofore authenticated and delivered under this Indenture,
except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee
for
cancellation;
(b)
Securities, or portions thereof, for whose payment, redemption or purchase
money
in the necessary amount has been theretofore deposited with the Trustee or
any
Paying Agent (other than the Company) in trust or set aside and segregated
in
trust by the Company (if the Company shall act as its own Paying Agent) for
the
Holders of such Securities; provided that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c)
Securities, except to the extent provided in Sections 402 and 403, with respect
to which the Company has effected defeasance or covenant defeasance as provided
in Article Four; and
(d)
Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to them that such Securities are held by a bona fide
purchaser in whose hands the Securities are valid obligations of the
Company;
provided,
however, that in determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, direction,
consent or waiver hereunder, Securities owned by the Company, or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in relying upon any such
request, demand, direction, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act
with respect to such Securities and that the pledgee is not the Company or
any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of (or
premium, if any) or interest on any Securities on behalf of the
Company.
“Payment
Default” means any default, whether or not any requirement for the giving of
notice, the lapse of time or both, or any other condition to such default
becoming an event of default has occurred, in the payment of principal of (or
premium, if any) or interest on, or any other amount payable in connection
with
Designated Senior Indebtedness.
8
“Person”
means any individual, corporation, partnership, joint venture, limited liability
company, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof, or any other
entity.
“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 308 in exchange for a mutilated security or in lieu
of a
lost, destroyed or stolen Security shall be deemed to evidence the same debt
as
the mutilated, lost, destroyed or stolen Security.
“Preferred
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s
preferred or preference stock whether now outstanding or issued after the date
of this Indenture, and includes, without limitation, all classes and series
of
preferred or preference stock.
“Purchase
Money Obligations” means, with respect to any Person, obligations, other than
Capital Lease Obligations and Supplier Obligations, incurred or assumed in
the
ordinary course of business in connection with the purchase of property to
be
used in the business of such Person.
“QIB”
means a Qualified Institutional Buyer pursuant to Rule 144A.
“Quotation
Agent” means Citigroup Global Markets Inc. or such other Reference Treasury
Dealer appointed by the Company.
“Rating
Agencies” means S&P, Fitch IBCA and Moody’s, and each of such Rating
Agencies is referred to individually as a “Rating Agency”.
“Rating
Date” means the date which is 90 days prior to the earlier of (i) a Change in
Control and (ii) public notice of the occurrence of a Change in Control or
of
the intention of the Company to effect a Change in Control.
“Rating
Decline” means the occurrence of the following on, or within 90 days after, the
date of public notice of the occurrence of a Change in Control or of the
intention by the Company to effect a Change in Control (which period may be
extended so long as the rating of the Securities is under publicly announced
consideration for possible downgrade by any of the Rating Agencies): (a) in
the
event the Securities are assigned an Investment Grade Rating by at least two
of
the three Rating Agencies on the Rating Date, the rating of such Securities
by
at least two of the three Rating Agencies shall be below an Investment Grade
Rating; or (b) in the event the Securities are rated below an Investment Grade
Rating by at least two of the three Rating Agencies on the Rating Date, the
rating of such Securities by at least two of the three Rating Agencies shall
be
decreased by one or more gradations (including gradations within rating
categories as well as between rating categories).
“RCI”
means ▇▇▇▇▇▇ Communications Inc., a corporation organized under the laws of
the
Province of British Columbia, and its successors and assigns.
9
“Redemption
Date”, when used with respect to any Securities to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.
“Reference
Treasury Dealer” means (1) Citigroup Global Markets Inc. or its
successors; provided, however, that if it shall cease to be a primary U.S.
Government securities dealer in New York City (a “Primary Treasury Dealer”), the
Company shall substitute for it another Primary Treasury Dealer; and (2) any
other Primary Treasury Dealer selected by the Company.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Reference
Treasury Dealer, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted by
the
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding
the
Redemption Date.
“Registration
Rights Agreement” means the Registration Rights Agreement among the Company and
the Initial Purchasers named therein, dated as of November 30, 2004, relating
to
the Securities.
“Registration
Statement” means the Registration Statement as defined in the Registration
Rights Agreement.
“Regular
Record Date” for the interest payable on any Interest Payment Date means the
June 1 or December 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
“Regulation
S” means Regulation S under the Securities Act.
“Responsible
Officer”, when used with respect to the Trustee, means the chairman or any
vice-chairman of the board of directors, the chairman or vice-chairman of the
executive committee of the board of directors, the president, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, the cashier, any assistant cashier,
any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
“Restricted
Subsidiary” means any Subsidiary of the Company that, at the time of
determination, has been designated as a “Restricted Subsidiary” under any of the
agreements or indentures governing Senior Indebtedness, provided that if at
the
time of determination there is no Senior Indebtedness outstanding, “Restricted
Subsidiary” shall mean a Significant Subsidiary, as such term is defined under
Regulation S-X.
“Rogers
Entities” means RCI and its Affiliates.
10
“Rule
144A” means Rule 144A under the Securities Act.
“Securities
Act” means the United States Securities Act of 1933, as amended, and as in force
at the date as of which this instrument was executed.
“Security”
and “Securities” have the meaning set forth in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term “Securities”
shall include any Additional Securities that may be issued under a supplemental
indenture and any Exchange Securities to be issued and exchanged for any Initial
Securities in accordance with the Exchange Offer provided for in the
Registration Rights Agreement and this Indenture and, for purposes of this
Indenture, all Initial Securities, Additional Securities and Exchange Securities
shall vote together as one series of Securities under this
Indenture.
“Senior
Indebtedness” means, with respect to the Company, any liability or obligation
secured by Trust Bonds or by liens ranking prior to the liens securing Trust
Bonds (such as a lien given to secure a Supplier Obligation as contemplated
by
the Deed of Trust) and, without duplication, the principal of (and premium,
if
any) and interest on and other amounts due on or in connection with any Debt
of
the Company whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed. Without limiting the generality of the foregoing,
“Senior Indebtedness” shall include the principal of and premium, if any, and
interest on all obligations of every nature of the Company from time to time
owed to the Banks or the Agent under the Bank Credit Agreement or to the holders
of or the trustees with respect to the Existing Secured Securities and Senior
Notes.
Notwithstanding
the foregoing, “Senior Indebtedness” shall not include (A) Debt evidenced by the
Securities, (B) Debt of the Company that is expressly subordinated in right
of
payment to any Senior Indebtedness of the Company, or the Securities, (C) Debt
of the Company that by operation of law is subordinated to any general unsecured
obligations of the Company, (D) Debt of the Company, to the extent incurred
in
violation of Section 1008, (E) Inter-Company Subordinated Debt or Inter-Company
Deeply Subordinated Debt or Debt of the Company to any Subsidiary, (F) any
liability for Canadian federal, provincial or local taxes or U.S. federal,
state
or local taxes or other taxes, owed or owing by the Company and (G) trade
payables owed or owing by the Company.
“Senior
Notes” means securities evidencing indebtedness under the Company’s
U.S.$550,000,000 Floating Rate Senior (Secured) Notes due 2010, Cdn$460,000,000
7.625% Senior (Secured) Notes due 2011, U.S.$470,000,000 7.25% Senior (Secured)
Notes due 2012, and U.S.$550,000,000 7.50% Senior (Secured) Notes due
2015.
“Shelf
Registration Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.
“Special
Record Date” means a date fixed by the Trustee for the payment of any Defaulted
Interest pursuant to Section 309.
“S&P”
means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or
any successor to such rating agency business thereof.
11
“Stated
Maturity”, when used with respect to any Security or any installment of interest
thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of interest is due and
payable.
“Subsidiary”
means any firm, corporation or other legal entity in which the Company, the
Company and one or more Subsidiaries or one or more Subsidiaries owns, directly
or indirectly, a majority of the Voting Shares or has, directly or indirectly,
the right to elect a majority of the board of directors, if it is a corporation,
or the right to make or control its management decisions, if it is some other
Person.
“Supplier
Obligations” means any obligation of the Company on a Consolidated basis
incurred or assumed in the ordinary course of business and in favor of a
supplier or other Person for the deferred purchase price of goods supplied
to
the Company or any other Restricted Subsidiary in respect of which goods the
Deed Trustee has postponed its prior security interest in favor of such supplier
or other Person and in respect of which the Company shall have delivered a
notice to the Deed Trustee which notice sets forth (i) the name of such supplier
or other Person, (ii) a brief description of the supply agreement governing
such
Supplier Obligations and (iii) the amount of the Supplier Obligations that
may
be incurred or assumed under such agreement.
“Trust
Bonds” means any bonds issued by the Company under the Deed of
Trust.
“Trust
Indenture Act” means the United States Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this instrument was executed, except
as
provided in Section 905.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
Indenture, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean such successor
Trustee.
“U.S.
Dollars”, “United States Dollars”, “U.S.$” and the symbol “$” each mean lawful
currency of the United States of America.
“Voting
Shares” means any Capital Stock having voting power under ordinary circumstances
to vote in the election of a majority of the directors of a corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
SECTION
102. OTHER DEFINITIONS.
|
DEFINED
TERM
|
IN
SECTION
|
|
Act
|
105
|
|
Additional
Amounts
|
1010
|
|
Bankruptcy
Law
|
501
|
|
Bankruptcy
Order
|
501
|
|
Base
Currency
|
116
|
|
Change
in Control
|
501
|
|
Change
in Control Offer
|
516
|
|
Change
in Control Purchase Date
|
516
|
12
|
DEFINED
TERM
|
IN
SECTION
|
|
|
Change
in Control Purchase Notice
|
516
|
|
|
Change
in Control Purchase Price
|
516
|
|
|
Change
in Control Triggering Event
|
501
|
|
|
Clearstream,
Luxembourg
|
201
|
|
|
Covenant
Defeasance
|
403
|
|
|
Custodian
|
501
|
|
|
Defaulted
Interest
|
309
|
|
|
defeasance
|
402
|
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
501
|
|
|
Euroclear
|
201
|
|
|
Excluded
Holder
|
1010
|
|
|
Family
Percentage Holding
|
501
|
|
|
First
Currency
|
117
|
|
|
Global
Securities
|
201
|
|
|
incorporated
provision
|
108
|
|
|
judgment
currency
|
116
|
|
|
Member
of the Rogers Family
|
501
|
|
|
Notice
of Default
|
501
|
|
|
Other
Currency
|
117
|
|
|
Parent
Company
|
801
|
|
|
Permitted
Junior Securities
|
1202
|
|
|
Permitted
Residuary Beneficiary
|
501
|
|
|
Perpetuity
Date
|
501
|
|
|
Private
Placement Legend
|
202
|
|
|
Qualified
Persons
|
501
|
|
|
Qualifying
Trust
|
501
|
|
|
rate(s)
of exchange
|
116
|
|
|
Regulation
S Global Securities
|
201
|
|
|
Relevant
Person
|
119
|
|
|
Restricted
Global Securities
|
201
|
|
|
Security
Register
|
305
|
|
|
Security
Registrar
|
305
|
|
|
Senior
Debt Trustees
|
1208
|
|
|
Subordinated
Obligations
|
1201
|
|
|
Subordination
Documents
|
1012
|
|
|
Taxes
|
1010
|
|
|
turnover
amounts
|
1012
|
|
|
U.S.
Government Obligations
|
404
|
|
SECTION
103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the
case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be
furnished.
13
Every
certificate or opinion (other than the certificates required by Section 1011)
with respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(a)
a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(b)
a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(c)
a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with or satisfied; and
(d)
a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with or satisfied.
SECTION
104. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE.
In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect
to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
14
SECTION
105. ACTS OF HOLDERS.
(a)
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by their agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of
a writing appointing any such agent shall be sufficient for any purpose of
this
Indenture and (subject to Trust Indenture Act Section 315) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section.
(b)
The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any reasonable manner which the Trustee deems
sufficient.
(c)
The
ownership of Securities shall be proved by the Security Register.
(d)
If
the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for the
determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding Trust Indenture
Act Section 316(c), any such record date shall be the record date specified
in
or pursuant to such Board Resolution, which shall be a date not more than 30
days prior to the first solicitation of Holders generally in connection
therewith and no later than the date such solicitation is
completed.
If
such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date,
but
only the Holders of record at the close of business on such record date shall
be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Securities then Outstanding have authorized or agreed
or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Securities then Outstanding shall
be computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders
on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e)
Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
by the Holder of any Security shall bind every future Holder of the same
Security or the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action
is
made upon such Security.
15
(f)
For
all purposes of this Indenture, all Initial Securities, Exchange Securities
and
any Additional Securities shall vote together as one series of Securities under
this Indenture.
SECTION
106. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a)
the
Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or delivered, in writing, to or with the
Trustee at its Corporate Trust Office, Attention: Institutional Trust Services;
and
(b)
the
Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished
or delivered in writing to the Company in care of ▇▇▇▇▇▇ Communications Inc.,
10th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇, Vice President, Treasurer, with a copy to Senior Vice President,
Finance and Chief Financial Officer of the Company, One Mt. Pleasant Road,
16th
Floor, Toronto, Ontario, Canada, M4Y 2Y5, or, in either case, at any other
address previously furnished in writing to the Trustee.
SECTION
107. NOTICE TO HOLDERS; WAIVER.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at its address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect
to
other Holders. Any notice mailed to a Holder in the aforesaid manner shall
be
conclusively deemed to have been received by such Holder when mailed whether
or
not actually received by such ▇▇▇▇▇▇. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled
to
receive such notice, either before or after the event, and such waiver shall
be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause, it shall be impracticable to mail notice of any event as required by
any
provision of this Indenture, then any method of giving such notice as shall
be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
16
SECTION
108. CONFLICT OF ANY PROVISION OF INDENTURE WITH THE TRUST INDENTURE
ACT.
Each
of
the Trustee and the Company agrees to comply with all provisions of the Trust
Indenture Act applicable to or binding upon it in connection with this Indenture
and any action to be taken hereunder. If and to the extent that any provision
of
this Indenture limits, qualifies or conflicts with any mandatory requirement
of
the Trust Indenture Act, such mandatory requirement shall prevail. For greater
certainty, if and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
“incorporated provision”) required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
SECTION
109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION
110. SUCCESSORS AND ASSIGNS.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION
111. SEPARABILITY CLAUSE.
In
case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION
112. BENEFITS OF INDENTURE.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person (other than the parties hereto and their successors hereunder, any Paying
Agent and the Holders) any benefit or any legal or equitable right, remedy
or
claim under this Indenture.
SECTION
113. GOVERNING LAW.
This
Indenture and the Securities shall be governed by and construed in accordance
with the laws of the State of New York. Upon the issuance of the Exchange
Securities or the effectiveness of the Shelf Registration Statement, this
Indenture shall be subject to the provisions of the Trust Indenture Act that
are
required or deemed to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION
114. LEGAL HOLIDAYS.
In
any
case where any Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or Change
in Control Purchase Date with respect to any Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not
be
made on such date, but may be made on the next succeeding Business Day with
the
same force and effect as if made on the Interest Payment Date, Redemption Date,
date established for payment of Defaulted Interest pursuant to Section 309,
Stated Maturity or Change in Control Purchase Date and no interest shall accrue
with respect to such payment for the period from and after such Interest Payment
Date, Redemption Date, date established for payment of Defaulted Interest
pursuant to Section 309, Stated Maturity or Change in Control Purchase Date,
as
the case may be, to the next succeeding Business Day.
17
SECTION
115. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By
the
execution and delivery of this Indenture, the Company (i) acknowledges that
it
has, by separate written instrument, irrevocably designated and appointed CT
Corporation System (and any successor entity) (“CT Corporation”), ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent upon
which
process may be served in any suit, action or proceeding arising out of or
relating to the Securities or this Indenture that may be instituted in any
federal or state court in the State of New York, Borough of Manhattan, or
brought under federal or state securities laws or brought by the Trustee
(whether in its individual capacity or in its capacity as Trustee hereunder),
and acknowledges that CT Corporation has accepted such designation, (ii) submits
to the non-exclusive jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon CT Corporation and
written notice of said service to it (mailed or delivered to its Senior Vice
President, Finance and Chief Financial Officer at its principal office in
Toronto, Canada, with copies to ▇▇▇▇▇▇ Communications Inc., in each case as
specified in Section 106(b) hereof) shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any
and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as this Indenture shall be in full force and effect.
To
the
extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the Company hereby
irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
SECTION
116. CONVERSION OF CURRENCY.
The
Company covenants and agrees that the following provisions shall apply to
conversion of currency in the case of the Securities and this
Indenture:
(a)
(i)
If, for the purpose of obtaining judgment in, or enforcing the judgment of,
any
court in any country, it becomes necessary to convert into a currency (the
“judgment currency”) an amount due in any other currency (the “Base Currency”),
then the conversion shall be made at the rate of exchange prevailing on the
Business Day before the day on which the judgment is given or the order of
enforcement is made, as the case may be (unless a court shall otherwise
determine).
(ii)
If
there is a change in the rate of exchange prevailing between the Business Day
before the day on which the judgment is given or an order of enforcement is
made, as the case may be (or such other date as a court shall determine), and
the date of receipt of the amount due, the Company will pay such additional
(or,
as the case may be, such lesser) amount, if any, as may be necessary so that
the
amount paid in the judgment currency when converted at the rate of exchange
prevailing on the date of receipt will produce the amount in the Base Currency
originally due.
18
(b)
In
the event of the winding-up of the Company at any time while any amount or
damages owing under the Securities and this Indenture, or any judgment or order
rendered in respect thereof, shall remain outstanding, the Company shall
indemnify and hold the Holders and the Trustee harmless against any deficiency
arising or resulting from any variation in rates of exchange between (1) the
date as of which the equivalent of the amount in U.S. Dollars or Canadian
Dollars, as the case may be, due or contingently due under the Securities and
this Indenture (other than under this Subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs
of
claim in such winding-up. For the purpose of this Subsection (b), the final
date
for the filing of proofs of claim in the winding-up of the Company shall be
the
date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c)
The
obligations contained in Subsections (a)(ii) and (b) of this Section 116 shall
constitute obligations of the Company separate and independent from its other
respective obligations under the Securities and this Indenture, shall give
rise
to separate and independent causes of action against the Company, shall apply
irrespective of any waiver or extension granted by any Holder or the Trustee
or
any of them from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim in
the
winding-up of the Company for a liquidated sum in respect of amounts due
hereunder (other than under Subsection (b) above) or under any such judgment
or
order. Any such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or the liquidator
or otherwise or any of them. In the case of Subsection (b) above, the amount
of
such deficiency shall not be deemed to be reduced by any variation in rates
of
exchange occurring between the said final date and the date of any liquidating
distribution.
(d)
The
term “rate(s) of exchange” shall mean the rate of exchange quoted by The
Toronto-Dominion Bank at its central foreign exchange desk in its head office
in
Toronto at 12:00 noon (Toronto, Ontario time) for purchases of the Base Currency
with the judgment currency other than the Base Currency referred to in
Subsections (a) and (b) above and includes any premiums and costs of exchange
payable.
(e)
The
Trustee shall have no duty or liability with respect to monitoring or enforcing
this Section 116.
19
SECTION
117. CURRENCY EQUIVALENT.
Except
as
provided in Section 116, for purposes of the construction of the terms of this
Indenture or of the Securities, in the event that any amount is stated herein
in
the currency of one nation (the “First Currency”), as of any date such amount
shall also be deemed to represent the amount in the currency of any other
relevant nation (the “Other Currency”) which is required to purchase such amount
in the First Currency at the rate of exchange quoted by The Toronto-Dominion
Bank at its central foreign exchange desk in its head office in Toronto at
12:00
noon (Toronto, Ontario time) on the date of determination.
SECTION
118. NO RECOURSE AGAINST OTHERS.
A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities
or
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting any of the Securities
waives and releases all such liability.
SECTION
119. RELIANCE ON FINANCIAL DATA.
In
computing any amounts under this Indenture,
(i)
to
the extent relevant in computing any amounts under this Indenture, the Company
shall use audited financial statements of the Company, its Subsidiaries, any
Person that would become a Subsidiary in connection with the transaction that
requires the computation and any Person from which the Company or a Subsidiary
has acquired an operating business, or is acquiring an operating business in
connection with the transaction that requires the computation (each such Person
whose financial statements are relevant in computing any particular amount,
a
“Relevant Person”) for the period or portions of the period to which the
computation relates for which audited financial statements are available on
the
date of computation and unaudited financial statements and other current
financial data based on the books and records of the Relevant Person or Relevant
Persons, as the case may be, to the extent audited financial statements for
the
period or any portion of the period to which the computation relates are not
available on the date of computation, and
(ii)
the
Company shall be permitted to rely in good faith on the financial statements
and
other financial data derived from the books and records of any Relevant Person
that are available on the date of the computation.
SECTION
120. DOCUMENTS IN ENGLISH.
By
common
accord, this Indenture, the Securities and all documents related thereto have
been or will be drawn up in the English language solely.
20
ARTICLE
TWO
SECURITY
FORMS
SECTION
201. FORMS GENERALLY.
The
Initial Securities shall be known as the “8.00% Senior Subordinated Notes due
2012” and the Exchange Securities shall be known as the “8.00% Exchange Senior
Subordinated Notes due 2012”, in each case, of the Company. The Securities and
the Trustee’s certificate of authentication shall be in substantially the forms
set forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith,
be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities (but which shall not affect the rights or duties
of
the Trustee). Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The
definitive Securities shall be printed, lithographed or engraved or produced
by
any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Initial
Securities offered and sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global securities substantially in the
form
set forth in this Article (the “Restricted Global Securities”) deposited with
the Trustee, as custodian for the Depositary, duly executed by the Company
and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Restricted Global Securities may from time to time be increased
or
decreased by adjustments made on the records of the Depositary or its nominee,
or of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial
Securities offered and sold in reliance on Regulation S shall be issued in
the
form of one or more permanent global securities in registered form substantially
in the form set forth in this Article (the “Regulation S Global Securities” and
together with the Restricted Global Securities the “Global Securities”). The
Regulation S Global Securities will be registered in the name of a nominee
of
the Depositary and deposited with the Trustee, as custodian of the Depositary,
for credit to Euroclear Bank S.A./N.V., as operator of the Euroclear System
(“Euroclear”) and Clearstream Banking, societe anonyme (“Clearstream,
Luxembourg”) for the benefit of the Holders. The aggregate principal amount of
the Regulation S Global Security may from time to time be increased or decreased
by adjustments made on the records of the Depositary or its nominee, or of
the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
21
SECTION
202. RESTRICTIVE LEGENDS.
Unless
and until (i) an Initial Security is sold under an effective Registration
Statement or (ii) an Initial Security is exchanged for an Exchange Security
in
connection with an effective Registration Statement, in each case as provided
for in the Registration Rights Agreement, each such Restricted Global Security
shall bear the following legend (the “Private Placement Legend”) on the face
thereof:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF ▇▇▇▇▇▇ WIRELESS INC. THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR A PREDECESSOR SECURITY HERETO) OR (Y) BY ANY HOLDER THAT
WAS
AN AFFILIATE OF ▇▇▇▇▇▇ WIRELESS INC. AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN
(1)
TO
▇▇▇▇▇▇ WIRELESS INC.,
(2)
SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(3)
IN AN
OFFSHORE TRANSACTION TO NON-U.S. PERSONS THAT OCCURS OUTSIDE THE UNITED STATES
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE
BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF
THIS SECURITY), PROVIDED THAT SUCH NON-U.S. PERSONS AGREE NOT TO RESELL OR
OTHERWISE TRANSFER THE SECURITIES IN CANADA OR TO OR FOR THE BENEFIT OF A
CANADIAN RESIDENT, EXCEPT IN ACCORDANCE WITH APPLICABLE CANADIAN SECURITIES
LAWS,
(4)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT (INCLUDING, WITHOUT LIMITATION, TO AN INSTITUTION THAT IS AN ACCREDITED
INVESTOR OR THE EXEMPTION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT), OR
22
(5)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT,
IN
EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER JURISDICTION AND SUBJECT TO THE RIGHT OF ▇▇▇▇▇▇
WIRELESS INC. AND THE TRUSTEE PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER
PURSUANT TO CLAUSE (4) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATES AND OTHER INFORMATION THEY MAY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS AND THE RIGHT OF ▇▇▇▇▇▇ WIRELESS INC.
AND THE TRUSTEE PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO
CLAUSES (1) THROUGH (5) TO REQUIRE ANY TRANSFER CERTIFICATIONS REQUIRED PURSUANT
TO THE INDENTURE GOVERNING THIS SECURITY.
Each
Initial Security (and all certificates issued in exchange therefor or in
substitution thereof) shall bear the following legend until such legend shall
no
longer be necessary or advisable because such Security is no longer subject
to
the restrictions on transfer described therein:
UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITY
SHALL NOT TRADE THE SECURITY IN OR TO A PERSON IN ANY PROVINCE OR TERRITORY
OF
CANADA BEFORE [APRIL 1, 2005], WHICH DATE IS FOUR MONTHS AND A DAY AFTER THE
DATE OF ISSUANCE OF THE SECURITY.
Each
Exchange Security (and all certificates issued in exchange therefor or in
substitution thereof) shall bear a legend in the following form until such
legend shall no longer be necessary or advisable because such Security is no
longer subject to the restrictions on transfer described therein:
UNLESS
PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THE SECURITY
SHALL NOT TRADE THE SECURITY IN OR TO A PERSON IN ANY PROVINCE OR TERRITORY
OF
CANADA BEFORE [X], 20[X], WHICH DATE IS FOUR MONTHS AND A DAY AFTER THE DATE
OF
ISSUANCE OF THE SECURITY.
Each
Initial Security sold pursuant to Regulation S shall bear the following legend
until such legend shall no longer be necessary or advisable because such
Security is no longer subject to the restrictions on transfer described
therein:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”). PRIOR TO JANUARY 10, 2005 (THE “RESTRICTED PERIOD”),
OFFERS OR SALES OF THIS SECURITY MAY NOT BE MADE TO A U.S. PERSON OR FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON (OTHER THAN A DISTRIBUTOR) (AS SUCH TERMS
ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT), UNLESS SUCH OFFER OR
SALE
IS MADE IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT. PRIOR TO THE
EXPIRATION OF THE RESTRICTED PERIOD, ANY OFFER OR SALE OF THIS SECURITY IS
SUBJECT TO THE RIGHT OF ▇▇▇▇▇▇ WIRELESS INC. AND THE TRUSTEE PRIOR TO ANY SUCH
OFFER OR SALE TO REQUIRE CERTIFICATIONS REQUIRED PURSUANT TO THE INDENTURE
GOVERNING THIS SECURITY.
23
Each
Global Security, whether or not an Initial Security, shall also bear the
following legend on the face thereof:
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306
AND
307 OF THE INDENTURE GOVERNING THIS SECURITY.
24
SECTION
203. FORM OF FACE OF SECURITY.
▇▇▇▇▇▇
WIRELESS INC.
8.00%
[Exchange]* SENIOR SUBORDINATED NOTES
DUE
2012
|
CUSIP
______
|
|
|
No.
|
U.S.$______
|
▇▇▇▇▇▇
Wireless Inc., a corporation organized under the Canada Business Corporations
Act (herein called the “Company”, which term includes any successor entity under
the Indenture hereinafter referred to), for value received, hereby promises
to
pay to _____ or registered assigns, the principal sum of ______ United States
Dollars (or such other amount that may from time to time be indicated on the
records of the Trustee as the result of increases or decreases by adjustments
made on the records of the Trustee, as the custodian for DTC, in accordance
with
the rules and procedures of DTC) on December 15, 2012, at the office or agency
of the Company referred to below, and to pay interest thereon on June 15, 2005
and semiannually thereafter, on June 15 and December 15 in each year, from
November 30, 2004 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 8.00% per annum
[subject to adjustment as provided below]**, until the principal hereof is
paid
or duly provided for, and (to the extent lawful) to pay on demand interest
on
any overdue interest at the rate borne by the Securities from the date of the
Interest Payment Date on which such overdue interest becomes payable to the
date
payment of such interest has been made or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close
of
business on the Regular Record Date for such interest, which shall be the June
1
or December 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for, and interest on such Defaulted Interest
at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior
to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
_____________
* Include
only for Exchange Securities.
** Include
only for Initial Securities.
25
[The Holder of this Security is entitled to the benefits of the Registration
Rights Agreement, dated as of November 30, 2004, between the Company and the
Initial Purchasers named therein (the “Registration Rights Agreement”). In the
event that (a) neither the Exchange Offer Registration Statement (as such term
is defined in the Registration Rights Agreement) nor a Shelf Registration
Statement (as such term is defined in the Registration Rights Agreement) is
filed with the Securities and Exchange Commission on or prior to the 150th
day
following the date of original issue of the Securities, (b) neither the Exchange
Offer Registration Statement nor a Shelf Registration Statement has been
declared effective on or prior to the 210th calendar day following the date
of
original issue of the Securities or (c) neither the Exchange Offer (as such
term
is defined in the Registration Rights Agreement) is consummated nor a Shelf
Registration Statement is declared effective on or prior to the 240th day
following the date of original issue of the Securities, the interest rate borne
by this Security shall be increased by 0.25% per annum following such 150-day
period in the case of clause (a) above, following such 210-day period in the
case of clause (b) above or following such 240-day period in the case of clause
(c) above. The aggregate amount of such increase from the original interest
rate
pursuant to these provisions shall in no event exceed 0.25% per annum. Upon
(x)
the filing of either the Exchange Offer Registration Statement or a Shelf
Registration Statement after the 150-day period described in clause (a) above,
(y) the effectiveness of either the Exchange Offer Registration Statement or
a
Shelf Registration Statement after the 210-day period described in clause (b)
above or (z) the consummation of the Exchange Offer or the effectiveness of
a
Shelf Registration Statement, as the case may be, after the 240-day period
described in clause (c) above, the interest rate borne by this Security from
the
date of such filing, effectiveness or consummation, as the case may be, will
be
reduced to the interest rate set forth above. The Company shall promptly provide
the Trustee with notice of any change in the interest rate borne by this
Security.]*
Payment
of the principal of (and premium, if any) and interest on this Security will
be
made at the offices or agencies of the Company maintained for that purpose
in
The City of New York (which initially shall be the Corporate Trust Office of
the
Trustee), and if the Company shall designate and maintain an additional office
or agency for such purpose, also at such additional office or agency, in U.S.
Dollars; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the address of the Person entitled thereto
as
such address shall appear on the Security Register; provided further that all
payments of the principal of (and premium, if any) and interest on Securities,
the Holders of which have given wire transfer instructions to the Company or
the
Paying Agent at least 10 Business Days prior to the applicable payment date
and
hold at least U.S.$1,000,000 in principal amount of Securities, will be required
to be made by wire transfer of immediately available funds to the accounts
specified by such Holders in such instructions. Any such wire transfer
instructions received by the Company or the Paying Agent shall remain in effect
until revoked by such Holder. Notwithstanding the foregoing, the final payment
of principal shall be payable only upon surrender of this Security to the Paying
Agent.
Interest
on this Security shall be computed on the basis of a year of twelve 30-day
months. For the purposes of the Interest Act (Canada), the yearly rate of
interest which is equivalent to the rate payable hereunder is the rate payable
multiplied by the actual number of days in the year and divided by
360.
_____________
* Include
only for Initial Securities.
26
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been duly executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall
not
be entitled to any benefit under the Indenture, or be valid or obligatory for
any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
|
Dated:
|
▇▇▇▇▇▇
WIRELESS INC.
|
|
|
By
|
||
|
By
|
||
SECTION
204. FORM OF REVERSE OF SECURITY.
This
Security is one of a duly authorized issue of securities of the Company
designated as its 8.00% [Exchange]* Senior Subordinated Notes due 2012 (herein
called the “Securities”), which may be issued under an indenture (herein called
the “Indenture”) dated as of November 30, 2004 between the Company and JPMorgan
Chase Bank, N.A., as trustee (herein called the “Trustee”, which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and
of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
As
provided for in the Indenture, the Company may, subject to certain limitations,
from time to time, without notice to or the consent of the Holders, create
and
issue Additional Securities so that such Additional Securities shall be
consolidated and form a single series with the Securities initially issued
by
the Company and shall have the same terms as to status, redemption or otherwise
as Securities originally issued. Any Additional Securities shall be issued
with
the benefit of any indenture supplemental to the Indenture.
The
Company will pay to the Holders such Additional Amounts as may become payable
under Section 1010 of the Indenture.
______________
* Include
only for Exchange Securities.
27
On
or
before each payment date, the Company shall deliver or cause to be delivered
to
the Trustee or the Paying Agent an amount in U.S. Dollars sufficient to pay
the
amount due on such payment date.
At
any
time prior to December 15, 2008, the Securities will be subject to redemption
upon not less than 30 nor more than 60 days’ prior notice by first-class mail,
at any time, as a whole or in part, in amounts of U.S.$1,000 or an integral
multiple of U.S.$1,000, at the option of the Company, at a Redemption Price
equal to the greater of: (1) 100% of the principal amount of the Securities,
and
(2) as determined by the Quotation Agent, the sum of the present values of
the
remaining scheduled payments of principal and interest on the Securities (not
including any portion of the payments of interest accrued as of the Redemption
Date) discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate
plus 50 basis points, in each case plus accrued interest thereon to the
Redemption Date, all as provided in the Indenture.
On
or
after December 15, 2008, the Securities will be subject to redemption upon
not
less than 30 nor more than 60 days’ prior notice by first-class mail, at any
time, as a whole or in part, in amounts of U.S.$1,000 or an integral multiple
of
U.S.$1,000, at the option of the Company, at the Redemption Price set forth
below, in each case plus accrued interest thereon to the Redemption Date, all
as
provided in the Indenture. The following Redemption Prices are for Securities
redeemed during the 12-month period commencing on December 15 of the years
set
forth below, and are expressed as percentages of the principal
amount.
|
Year
|
Redemption
Price
|
|
2008
|
104.000%
|
|
2009
|
102.000%
|
|
2010
and thereafter
|
100.000%
|
The
Securities will also be subject to redemption as a whole, but not in part,
at
the option of the Company at any time, on not less than 30 nor more than 60
days’ prior written notice, at 100% of the principal amount plus accrued
interest to the Redemption Date, in the event the Company has become or would
become obligated to pay, on the next date on which any amount would be payable
in respect of the Securities, any Additional Amounts as a result of certain
changes affecting Canadian withholding taxes.
In
the
case of any redemption of Securities, interest installments whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders
of
record of such Securities, or one or more Predecessor Securities, at the close
of business on the relevant Record Date referred to on the face hereof.
Securities (or portions thereof) for whose redemption and payment provision
is
made in accordance with the Indenture shall cease to bear interest from and
after the Redemption Date.
In
the
event of redemption of this Security in part only, a replacement Security or
Securities for the unredeemed portion hereof shall be issued in the name of
the
Holder hereof upon the cancellation hereof.
28
If
an
Event of Default (other than an Event of Default resulting from a Change in
Control Triggering Event which is cured by the making and consummation of a
Change in Control Offer) shall occur and be continuing, the principal amount
of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
In
addition, it shall be an Event of Default under the Indenture if a Change in
Control Triggering Event occurs on or prior to the Maturity of the Securities.
The Securities may be accelerated following such an Event of Default as provided
in the Indenture unless the Company (or a third party) offers, within 20
Business Days after the occurrence of such Event of Default, to purchase the
Securities and purchases the Securities for the Change in Control Purchase
Price
in cash on the date that is 40 Business Days after the occurrence of the Change
in Control Triggering Event from a Holder who delivers and does not withdraw
a
Change in Control Purchase Notice. Holders have the right to withdraw any Change
in Control Purchase Notice by delivering to the Paying Agent a written notice
of
withdrawal in accordance with the terms and provisions of the
Indenture.
The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by
the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders under the Indenture at any time by the Company and
the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder
of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
The
Securities are subordinated in right of payment, in the manner and to the extent
set forth in the Indenture and in any other agreements entered into by the
Trustee, as permitted or required by the Indenture, to acknowledge or effectuate
such subordination, to the prior payment in full of all Senior Indebtedness
of
the Company whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. Each Holder by its acceptance hereof
agrees to be bound by such provisions and authorizes and expressly directs
the
Trustee, on its behalf, to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination provided for in the Indenture
and
appoints the Trustee its attorney-in-fact for such purpose.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
29
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable on the Security Register of the
Company, upon surrender of this Security for registration of transfer at the
offices or agencies of the Company maintained for such purpose in The City
of
New York duly endorsed by, or accompanied by a written instrument of transfer
in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or its attorney duly authorized in writing, and thereupon
one
or more replacement Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The
Securities are issuable only in registered form without coupons in denominations
of U.S.$1,000 and any integral multiple thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the
same.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes
or
other governmental charges payable in connection with any registration of
transfer or exchange.
Prior
to
the time of due presentment of this Security for registration of transfer,
the
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company,
the
Trustee nor any agent shall be affected by notice to the contrary.
All
terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION
205. FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
JPMorgan
Chase Bank, N.A., as Trustee, certifies that this is one of the Securities
referred to in the within-mentioned Indenture.
|
JPMORGAN
CHASE BANK
|
|
|
By
|
|
|
Authorized
Officer
|
|
30
ARTICLE
THREE
THE
SECURITIES
SECTION
301. TITLE AND TERMS.
An
unlimited aggregate principal amount of Securities may be authenticated and
delivered under this Indenture (of which U.S.$400,000,000 is being issued,
authenticated and delivered the date hereof), including Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Sections 303, 304, 305, 306, 516, 906, 1108
or
1111.
The
Initial Securities shall be known and designated as the “8.00% Senior
Subordinated Notes due 2012” and the Exchange Securities shall be known and
designated as the “8.00% Exchange Senior Subordinated Notes due 2012”, in each
case, of the Company. The Stated Maturity of the Securities shall be December
15, 2012 and they shall bear interest at the rate of 8.00% per annum from
November 30, 2004, or the most recent Interest Payment Date to which interest
has been paid or duly provided for, payable on June 15, 2005, and semi-annually
thereafter on June 15 and December 15 in each year and at said Stated Maturity,
until the principal thereof is paid or duly provided for.
The
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose
in
The City of New York, and if the Company shall designate and maintain an
additional office or agency for such purpose, also at such additional office
or
agency; provided, however, that, at the option of the Company, interest may
be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register; provided further that all
payments of the principal of (and premium, if any) and interest on Securities,
the Holders of which have given wire transfer instructions to the Company or
the
Paying Agent at least 10 Business Days prior to the applicable payment date
and
hold at least U.S.$1,000,000 in principal amount of Securities, will be required
to be made by wire transfer of immediately available funds to the accounts
specified by such Holders in such instructions. Any such wire transfer
instructions received by the Company or the Paying Agent shall remain in effect
until revoked by such Holder. Notwithstanding the foregoing, the
final payment of principal shall be payable only upon surrender of the Security
to the Paying Agent.
The
Securities shall be redeemable as provided in Article Eleven.
Additional
Securities ranking pari passu with the Securities issued on the date hereof
may
be created and issued from time to time by the Company without notice to or
consent of the Holders and shall be consolidated with and form a single series
with the Securities initially issued and shall have the same terms as to status,
redemption or otherwise as the Securities originally issued. Any Additional
Securities shall be issued with the benefit of an indenture supplemental to
this
Indenture.
SECTION
302. DENOMINATIONS.
31
The
Securities shall be issuable only in registered form without coupons and only
in
denominations of U.S.$1,000 and any integral multiple thereof.
SECTION
303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The
Securities shall be executed on behalf of the Company by any two of the
following officers: its Chairman, its Vice Chairman, its President, any Vice
Presidents or its Treasurer, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding
that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at
the date of such Securities.
The
Trustee shall (upon Company Order) authenticate and deliver Securities for
original issue in an aggregate principal amount of up to U.S.$400,000,000,
provided that, if the Company shall issue any Additional Securities pursuant
to
Section 301, the Trustee shall authenticate and deliver such Additional
Securities upon delivery to the Trustee of a Company Order accompanied by an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the original issue of
such
Additional Securities have been complied with.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed
by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such
Security has been duly authenticated and delivered hereunder.
In
case
the Company, pursuant to Article Eight, shall be amalgamated, consolidated
or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of substantially all of its properties and assets to any
Person, and the successor Person resulting from such amalgamation,
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any
of
the Securities authenticated or delivered prior to such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate (but which shall not affect the
rights or duties of the Trustee), but otherwise in substance of like tenor
as
the Securities surrendered for such exchange and of like principal amount;
and
the Trustee, upon Company Order of the successor Person, shall authenticate
and
deliver replacement Securities as specified in such request for the purpose
of
such exchange. If replacement Securities shall at any time be authenticated
and
delivered in any new name of a successor Person pursuant to this Section in
exchange or substitution for or upon registration of transfer of any Securities,
such successor Person, at the option of any Holder but without expense to such
Holder, shall provide for the exchange of all Securities at the time Outstanding
held by such Holder for Securities authenticated and delivered in such new
name.
32
SECTION
304. TEMPORARY SECURITIES.
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine (but which shall not affect the rights
or duties of the Trustee), as conclusively evidenced by their execution of
such
Securities.
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for such purpose pursuant to Section 1002, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and, upon Company Order, the Trustee
shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations evidencing the same
indebtedness as the temporary Securities so exchanged. Until so exchanged,
the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION
305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The
Company shall cause to be kept at one of its offices or agencies maintained
pursuant to Section 1002 a register (the register maintained in such office
and
in any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. Said office or agency
is ▇▇▇▇▇▇ initially appointed “Security Registrar” for the purpose of
registering Securities and transfers of Securities as herein
provided.
Upon
surrender for registration of transfer of any Security at the office or agency
of the Company designated pursuant to Section 1002, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more replacement Securities of any authorized
denomination or denominations of a like aggregate principal amount.
Furthermore,
any Holder of a Global Security shall, by acceptance of such Global Security,
agree that transfers of beneficial interests in such Global Security may be
effected only through a book-entry system maintained by the Holder of such
Global Security (or its agent), and that ownership of a beneficial interest
in
the Security shall be required to be reflected in a book entry.
33
At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denomination or denominations of a like aggregate principal amount
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange (including an exchange
of Initial Securities for Exchange Securities), the Company shall execute,
and
the Trustee shall authenticate and deliver, the replacement Securities which
the
Holder making the exchange is entitled to receive; provided that no exchange
of
Initial Securities for Exchange Securities shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the Commission
and
the Initial Securities to be exchanged for the Exchange Securities shall be
cancelled by the Trustee.
All
Securities issued upon any registration of transfer or exchange of Securities
under the Indenture shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or
exchange.
Every
Security presented or surrendered for registration of transfer, or for exchange
or redemption, shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in
form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or its attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange or
redemption of Securities, but the Company may require payment of a sum
sufficient to pay all documentary, stamp or similar issue or transfer taxes
or
other governmental charges that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Sections 303, 304, 516, 906, 1108 or 1111 not involving any transfer
or pursuant to an Exchange Offer.
The
Company shall not be required (a) to issue replacement Securities or register
the transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
the
Securities under Section 1105 and ending at the close of business on the day
of
such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of
Securities being redeemed in part.
SECTION
306. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a)
The
Global Securities initially shall (i) be registered in the name of the
Depositary for such Global Securities or the nominee of such Depositary, (ii)
be
deposited with the Trustee, as custodian for such Depositary and (iii) bear
legends as set forth in Section 202.
34
The
Depositary or its nominee shall be the Holder of the Global Securities, and
owners of beneficial interests in the Securities represented by the Global
Securities shall hold such interests pursuant to the procedures and practices
of
the Depositary. Any such owner’s beneficial ownership of any such Securities
will be shown only on, and the transfer of such ownership interest shall be
effected only through, records maintained by the Depositary or its nominee.
Investors in the Regulation S Global Security may hold their interests in the
Regulation S Global Security through Euroclear or Clearstream, Luxembourg,
if
they are participants in such systems, or indirectly through organizations
which
are participants in such systems. After the expiration of the Restricted Period
(but not earlier), investors in the Regulation S Global Security may also hold
such interests through organizations other than Euroclear or Clearstream,
Luxembourg that are participants in the Depositary’s system. Euroclear and
Clearstream, Luxembourg will hold interests in the Regulation S Global Security
on behalf of their participants through customers’ securities accounts in their
respective names on the books of their respective depositories, which, in turn,
will hold such interests in the Regulation S Global Security in customer’s
securities accounts in the depositories’ names on the books of the Depositary.
All interests in a Global Security, including those held through Euroclear
or
Clearstream, Luxembourg, may be subject to the procedures and requirements
of
the Depositary. Those interests held through Euroclear and Clearstream,
Luxembourg will be subject to the procedures and requirements of such systems.
As used herein, the term “Restricted Period” means the period of 40 consecutive
days beginning on and including the first day after the later of (i) the day
that Citigroup Global Markets Inc. advises the Company and the Trustee in
writing of the day on which the Securities are first offered to persons other
than distributors (as defined in Regulation S) and (ii) the original issue
date
of the Securities.
(b)
Transfers of any Global Security shall be limited to transfers of such Global
Security in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in any Global Security
may
be transferred in accordance with the rules and procedures of the Depositary
and
the provisions of Section 307. Unless (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Securities or ceases to be a clearing agency registered under the Exchange
Act
or announces an intention permanently to cease business or does in fact do
so
and a successor depositary is not appointed by the Company within 90 days of
such notice, (ii) the Company, at its option, notifies the Trustee that it
elects to cause the exchange of the Global Securities for Securities in
certificated form, (iii) an Event of Default has occurred and is continuing
with
respect to a Global Security or (iv) in the case of a Global Security held
for
the account of Euroclear or Clearstream, Luxembourg, Euroclear or Clearstream,
Luxembourg, as the case may be, is closed for business for 14 continuous
Business Days or announces an intention to cease or permanently ceases business,
owners of beneficial interests in a Regulation S Global Security will not be
entitled to have any portions of such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of Securities
in
definitive form and will not be considered the owners or holders of the Global
Security.
(c)
Securities issued in exchange for a Global Security or any portion thereof
pursuant to the last sentence of subsection (b) of this Section shall be issued
in definitive, fully registered form, without interest coupons, shall have
an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear any
legends required hereunder. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Trustee, as Security Registrar. With
regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Trustee is acting
as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount equal
to
the portion thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender or adjustment,
the
Trustee, upon Company Order, shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof. In the event of the occurrence of any of
the
events specified in the last sentence of subsection (b) of this Section 306,
the
Company will promptly make available to the Trustee a reasonable supply of
certificated Securities in definitive form.
35
(d)
Except as otherwise set forth in this Indenture or a Global Security, owners
of
beneficial interests in the Securities evidenced by a Global Security will
not
be entitled to any rights under this Indenture with respect to such Global
Security, and the Depositary or its nominee may be treated by the Company,
the
Trustee and any agent of the Company or the Trustee as the owner and Holder
of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any such agent from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or its nominee or impair, as between the Depositary
or its nominee and such owners of beneficial interests, the operation of
customary practices governing the exercise of the rights of the Depositary
or
its nominee as Holder of any Security.
SECTION
307. SPECIAL TRANSFER PROVISIONS.
Unless
and until (i) an Initial Security is sold under an effective Registration
Statement, or (ii) an Initial Security is exchanged for an Exchange Security
in
connection with an effective Registration Statement, pursuant to the
Registration Rights Agreement, the following provisions shall
apply:
(a)
Restricted Global Security to Regulation S Global Security. If, at any time,
an
owner of a beneficial interest in a Restricted Global Security deposited with
the Trustee, as custodian for the Depositary, wishes to transfer its interest
in
such Restricted Global Security to a Person who is required or permitted to
take
delivery thereof in the form of an interest in a Regulation S Global Security,
such owner shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a Regulation
S Global Security as provided in this Section 307(a). Upon receipt by the
Trustee of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or cause to
be
credited a beneficial interest in the Regulation S Global Security in an amount
equal to the beneficial interest in the applicable Restricted Global Security
to
be exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary and the Euroclear or Clearstream, Luxembourg account (if applicable)
to be credited with such increase, and (3) a certificate substantially in the
form of Exhibit C hereto given by the owner of such beneficial interest, the
Trustee, as Security Registrar, shall instruct the Depositary to reduce or
cause
to be reduced the aggregate principal amount of the applicable Restricted Global
Security and to increase or cause to be increased the aggregate principal amount
of the applicable Regulation S Global Security by the principal amount of the
beneficial interest in the Restricted Global Security to be exchanged, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security equal
to
the reduction in the aggregate principal amount of the applicable Restricted
Global Security, and to debit, or cause to be debited, from the account of
the
Person making such exchange or transfer the beneficial interest in the
Restricted Global Security that is being exchanged or transferred.
36
(b)
Regulation S Global Security to Restricted Global Security. If, at any time,
an
owner of a beneficial interest in a Regulation S Global Security deposited
with
the Trustee as custodian for the Depositary wishes to transfer its interest
in
such Regulation S Global Security to a Person who is required or permitted
to
take delivery thereof in the form of an interest in a Restricted Global
Security, such owner shall, subject to the Applicable Procedures, exchange
or
cause the exchange of such interest for an equivalent beneficial interest in
a
Restricted Global Security, as provided in this Section 307(b). Upon receipt
by
the Trustee of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member, directing the Trustee, as Security Registrar,
to credit or cause to be credited a beneficial interest in the Restricted Global
Security equal to the beneficial interest in the Regulation S Global Security
to
be exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary to be credited with such increase and (3) if such transfer is
requested prior to the expiration of the Restricted Period, a certificate in
the
form of Exhibit D attached hereto given by the owner of such beneficial
interest, the Trustee, as Security Registrar, shall instruct the Depositary
to
reduce or cause to be reduced the aggregate principal amount of such Regulation
S Global Security and to increase or cause to be increased the aggregate
principal amount of the applicable Restricted Global Security by the principal
amount of the beneficial interest in the Regulation S Global Security to be
exchanged, and the Trustee, as Security Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the applicable Restricted Global Security equal to the reduction
in
the aggregate principal amount of such Regulation S Global Security and to
debit
or cause to be debited from the account of the Person making such transfer
the
beneficial interest in the Regulation S Global Security that is being
transferred. After the expiration of the Restricted Period, the certificate
described in clause (3) above shall no longer be required to effect transfers
pursuant to this Section 307(b).
(c)
Restricted Global Security to Regulation S Global Security After Two Years.
If
the holder of a beneficial interest in a Restricted Global Security wishes
at
any time after November 30, 2006 to (A) transfer such interest to a Person
who
wishes to take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security or (B) to exchange such interest for a beneficial
interest in a Regulation S Global Security, such transfer or exchange may be
effected, subject to the Applicable Procedures, only in accordance with this
Section 307(c). Upon receipt by the Trustee of (1) in the case of a transfer
or exchange of an interest in the Restricted Global Security, written
instructions given in accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Security in an amount equal to the
beneficial interest in the Restricted Global Security to be so transferred
or
exchanged, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of the
Depositary (and, if applicable, the Euroclear or Clearstream, Luxembourg
account, as the case may be) to be credited with such beneficial interest and
(3) a certificate substantially in the form of Exhibit E hereto given by the
holder of such beneficial interest, the Trustee, as Security Registrar, shall
instruct the Depositary to reduce the principal amount of the Restricted Global
Security, and to increase the principal amount of the Regulation S Global
Security, by the principal amount of the beneficial interest in the Restricted
Global Security to be so transferred or exchanged, and to credit or cause to
be
credited to the account of the Person specified in such instructions a
beneficial interest in the Regulation S Global Security having a principal
amount equal to the amount by which the principal amount of the Restricted
Global Security was reduced upon such transfer or exchange.
37
(d)
Private Placement Legend. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The
Security Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 306 or this Section 307. The Company
shall have the right to inspect and make copies of all such letters, notices
or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Security Registrar.
SECTION
308. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If
(a)
any mutilated Security is surrendered to the Trustee, or (b) the Company and
the
Trustee receive evidence to their satisfaction of the destruction, loss or
theft
of any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a replacement Security of like tenor and principal amount, bearing
a
number not contemporaneously outstanding.
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, the Company in its discretion may, instead of issuing
a
replacement Security, pay such Security.
Upon
the
issuance of any replacement Securities under this Section, the Company may
require the payment of a sum sufficient to pay all documentary, stamp or similar
issue or transfer taxes or other governmental charges that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
the
Trustee) connected therewith.
38
Every
replacement Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute a contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at
any
time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION
309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of
business on the Regular Record Date for such interest.
Any
interest on any Security which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date and interest on such defaulted
interest at the interest rate borne by the Securities, to the extent lawful
(such defaulted interest and interest thereon herein collectively called
“Defaulted Interest”), shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Subsection (a) or (b) below:
(a)
The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment
of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment,
and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as
in this Subsection provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than
15
days and not less than 10 days prior to the date of the proposed payment and
not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder at
its
address as it appears in the Security Register, not less than 10 days prior
to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following Subsection
(b).
39
(b)
The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Subsection, such payment shall be deemed practicable
by
the Trustee.
Subject
to the foregoing provisions of this Section, each Security delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu of
any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION
310. PERSONS DEEMED OWNERS.
Prior
to
the time of due presentment for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 309) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to
the
contrary.
SECTION
311. CANCELLATION.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by the Trustee. The
Company shall deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be destroyed and certification of their destruction delivered to the Company
unless by a Company Order the Company shall direct that cancelled Securities
be
returned to it.
SECTION
312. COMPUTATION OF INTEREST.
Interest
on the Securities shall be computed on the basis of a year of twelve 30-day
months.
40
ARTICLE
FOUR
DEFEASANCE
AND COVENANT DEFEASANCE
SECTION
401. COMPANY’S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The
Company may, at its option by Board Resolution, at any time, with respect to
the
Securities, elect to have either Section 402 or Section 403 be applied to all
Outstanding Securities upon compliance with the conditions set forth below
in
this Article Four.
SECTION
402. DEFEASANCE AND DISCHARGE.
Upon
the
Company’s exercise under Section 401 of the option applicable to this Section
402, the Company shall be deemed to have been discharged from its obligations
with respect to all Outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, “defeasance”). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 405
and the other Sections of this Indenture referred to in (A), (B), and (C) below,
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights
of
Holders of Outstanding Securities to receive solely from the trust fund
described in Section 404 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest on such
Securities when such payments are due, (B) the Company’s obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003, 1010 (for
purposes of applying Section 1010, if the Trustee (or any other qualifying
trustee referred to in Section 404(1)) is required by law or by the
interpretation or administration thereof to withhold or deduct any amount for
or
on account of Taxes (as defined in Section 1010) from any payment made from
the
trust fund described in Section 404 under or with respect to the Securities,
such payment shall be deemed to have been made by the Company and the Company
shall be deemed to have been so required to withhold or deduct) and 1013, (C)
the Company’s right of redemption pursuant to Section 1101(b), provided that
either (i) the change or amendment referred to therein occurs after defeasance
is exercised by the Company in accordance with Section 404 or (ii) the Company
is, immediately before the defeasance, entitled to redeem the Securities
pursuant to Section 1101(b), in which case the Company may redeem the Securities
in accordance with Article Eleven by complying with such Article and depositing
with the Trustee, in accordance with Section 1106, an amount of money
sufficient, together with all amounts held in trust pursuant to Section 404(1),
to pay the Redemption Price of all the Securities to be redeemed, (D) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the
Company’s obligations in connection therewith, including the Company’s
obligations under Section 607 and (E) this Article Four. Subject to compliance
with this Article Four, the Company may exercise its option under this Section
402 notwithstanding the prior exercise of its option under Section 403 with
respect to the Securities.
SECTION
403. COVENANT DEFEASANCE.
41
Upon
the
Company’s exercise under Section 401 of the option applicable to this Section
403, the Company shall be released from its obligations under any covenant
contained in Articles Eight and Twelve and in Sections 1004 through 1009 with
respect to the Outstanding Securities on and after the date the conditions
set
forth below are satisfied (hereinafter, “covenant defeasance”), and the
Securities shall thereafter be deemed to be not “Outstanding” for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “Outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed Outstanding for financial
accounting purposes). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities, the Company may omit to comply
with
and shall have no liability in respect of any term, condition or limitation
set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference
in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501(c), but, except as specified above, the remainder of this
Indenture (including Section 607 hereof) and such Securities shall be unaffected
thereby. In addition, upon the Company’s exercise under Section 401 of the
option applicable to Section 403, Section 501(c) through (e) and Section 501(i)
shall not constitute Events of Default.
SECTION
404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The
following shall be the conditions to application of either Section 402 or
Section 403 to the Outstanding Securities:
(1)
The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609 who
shall
agree to comply with the provisions of this Article Four applicable to it)
as
trust funds, in trust, for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of
the Holders of such Securities, (A) cash in U.S. Dollars in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of principal
and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in U.S. Dollars
in
an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and
discharge, the principal of (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of interest;
provided that the Trustee (or other qualifying trustee) shall have been
irrevocably instructed by the Company to apply such money or the proceeds of
such U.S. Government Obligations to said payments with respect to the
Securities. Before such a deposit, the Company may give the Trustee, in
accordance with Section 1103 hereof, a notice of its election to redeem all
of
the Outstanding Securities at a future date in accordance with Article Eleven
hereof, which notice shall be irrevocable. For this purpose, “U.S. Government
Obligations” means securities that are (x) direct obligations of the United
States of America for the timely payment of which its full faith and credit
is
pledged or (y) obligations of a Person controlled or supervised by and acting
as
an agency or instrumentality of the United States of America the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation
by
the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as required by
law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by
such
depository receipt.
42
(2)
No
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit or, insofar as Subsection 501(f), (g) or (h) is concerned, at
any
time during the period ending on the 91st day after the date of such deposit
(it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3)
Neither the Company nor any Restricted Subsidiary is an “insolvent person”
within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date
of
such deposit or at any time during the period ending on the 91st day after
the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(4)
Such
defeasance or covenant defeasance shall not result in a breach or violation
of,
or constitute a default under, this Indenture or any other material agreement
or
instrument to which the Company is a party or by which it is bound.
(5)
In
the case of an election under Section 402, the Company shall have delivered
to
the Trustee an Opinion of Counsel in the United States stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since November 19, 2004, there has been a change in
the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance and will be subject
to United States federal income tax on the same amounts, in the same manner
and
at the same times as would have been the case if such defeasance had not
occurred.
(6)
In
the case of an election under Section 403, the Company shall have delivered
to
the Trustee an Opinion of Counsel in the United States to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or loss
for
United States federal income tax purposes as a result of such covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if
such covenant defeasance had not occurred.
43
(7)
The
Company shall have delivered to the Trustee an Opinion of Counsel in Canada
to
the effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for Canadian federal or provincial income tax or other
tax
(including withholding tax) purposes as a result of such defeasance or covenant
defeasance, as applicable, and will be subject to Canadian federal and
provincial income tax and other tax (including withholding tax) on the same
amounts, in the same manner and at the same times as would have been the case
if
such defeasance or covenant defeasance, as applicable, had not occurred. This
condition may not be waived by any Holder or the Trustee.
(8)
The
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit made by the Company pursuant to its election under Section
402
or Section 403 was not made by the Company with the intent of preferring the
Holders over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or
others.
(9)
The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel in the United States, each stating that all conditions
precedent relating to either the defeasance under Section 402 or the covenant
defeasance under Section 403 (as the case may be) have been complied
with.
SECTION
405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject
to the provisions of the last paragraph of Section 1003, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
405, the “Trustee”) pursuant to Section 404 in respect of the Outstanding
Securities shall be held in trust and applied by the Trustee, in accordance
with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of
all sums due and to become due thereon in respect of principal (and premium,
if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law.
The
Company shall pay and indemnify the Trustee on an after-tax basis against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 404 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities.
44
Anything
in this Article Four to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may
be the opinion delivered under Section 404(1)), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance.
SECTION
406. REINSTATEMENT.
If
the
Trustee or any Paying Agent is unable to apply any money in accordance with
Section 405, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Company’s obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section
402
or 403, as the case may be, until such time as the Trustee or Paying Agent
is
permitted to apply all such money in accordance with Section 405; provided,
however, that, if the Company makes any payment of principal of (or premium,
if
any) or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE
FIVE
REMEDIES
SECTION
501. EVENTS OF DEFAULT.
“Event
of
Default”, wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a)
default in the payment of the principal of (or premium, if any, on) any Security
at its Maturity, whether or not prohibited by the provisions of Article 12
herein; or
(b)
default in the payment of any interest or any Additional Amounts on any Security
when it becomes due and payable, and continuance of such default for a period
of
30 days, whether or not prohibited by the provisions of Article 12 herein;
or
(c)
default in the performance, or breach, of any covenant or warranty of the
Company in this Indenture (other than a default in the performance, or breach,
of a covenant or warranty which is specifically dealt with elsewhere in this
Section), and continuance of such default or breach for a period of 60 days
after there has been given to the Company by the Trustee or to the Company
and
the Trustee by the Holders of at least 25% in aggregate principal amount of
the
Outstanding Securities a written notice specifying such default or breach and
stating that such notice is a “Notice of Default” hereunder; or
45
(d)
(i)
there shall have occurred one or more defaults of the Company or any Restricted
Subsidiary in the payment of the principal of or premium on any Debt aggregating
Cdn$25,000,000 or more, when the same becomes due and payable at the stated
maturity thereof, and such default or defaults shall continue after any
applicable grace period and have not been cured or waived or (ii) there shall
occur and be continuing any acceleration of the maturity of any Debt aggregating
Cdn$25,000,000 or more and, in any case referred to in the foregoing clause
(i)
or clause (ii), the Debt that is the subject of such non-payment has not been
discharged, or such non-payment or acceleration has not been rescinded or
annulled, within 10 days of such non-payment or acceleration; or
(e)
any
judgments or orders aggregating Cdn$25,000,000 or more rendered against the
Company or any Restricted Subsidiary remain unsatisfied and unstayed for 60
consecutive days; or
(f)
the
Company or any Restricted Subsidiary pursuant to or under or within the meaning
of any Bankruptcy Law:
(1)
commences a voluntary case or proceeding;
(2)
consents to the entry of a Bankruptcy Order in an involuntary case or proceeding
or the commencement of any case against it;
(3)
consents to the appointment of a Custodian of it or for any substantial part
of
its property;
(4)
makes
a general assignment for the benefit of its creditors or files a proposal or
other scheme of arrangement involving the rescheduling or composition of its
indebtedness;
(5)
files
a petition in bankruptcy or an answer or consent seeking reorganization or
relief; or
(6)
consents to the filing of such petition in bankruptcy or the appointment of
or
taking possession by a Custodian; or
(g)
a
court of competent jurisdiction in any involuntary case or proceeding enters
a
Bankruptcy Order against the Company or any Restricted Subsidiary, and such
Bankruptcy Order remains unstayed and in effect for 15 consecutive days;
or
(h)
a
Custodian shall be appointed out of court with respect to the Company or any
Restricted Subsidiary, or with respect to all or any substantial part of the
property of the Company or any Restricted Subsidiary, or any encumbrancer shall
take possession of all or any substantial part of the property of the Company
or
any Restricted Subsidiary; or
(i)
a
Change in Control Triggering Event shall occur.
“Bankruptcy
Law” means the Bankruptcy and Insolvency Act (Canada) or any other Canadian
federal or provincial law or the law of any other jurisdiction relating to
bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors. “Custodian” means any receiver, interim receiver, receiver and manager,
trustee, assignee, liquidator, sequestrator or similar official under any
Bankruptcy Law or any other person with like powers. “Bankruptcy Order” means
any court order made in a proceeding pursuant to or within the meaning of any
Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or
providing for liquidation, winding up, dissolution or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor’s property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
46
Under
this Indenture, a “Change in Control Triggering Event” is deemed to occur upon
both a Change in Control and a Rating Decline with respect to the
Securities.
A
“Change
in Control” means (i) any transaction (including an amalgamation, merger or
consolidation or the sale of Capital Stock of the Company) the result of which
is that any Person or Group (as defined in Rule 13d-5 of the Exchange Act),
other than Members of the Rogers Family or RCI or a Person or Group controlled
by one or more of the Members of the Rogers Family or RCI, acquires, directly
or
indirectly, more than 50% of the total voting power of all classes of Voting
Shares of the Company or (ii) any transaction (including an amalgamation, merger
or consolidation or the sale of Capital Stock of the Company) the result of
which is that any Person or Group (as defined in Rule 13d-5 of the Exchange
Act), other than (A) Members of the Rogers Family or RCI or a Person or Group
controlled by Members of the Rogers Family or RCI or (B) for so long as the
only
primary beneficiaries of a Qualifying Trust established under the last will
and
testament of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ are one or more persons referred to in clause
(ii)
of the definition of “Member of the Rogers Family” or the spouse, widow or
widower, for the time being and from time to time, of any person described
in
subclause (ii)(c), (d) or (e) of the definition of “Member of the Rogers
Family”, any Person designated by the trustees of such Qualifying Trust to
exercise voting rights attaching to the shares held by such trustees, has
elected to the Board of Directors such number of its or their nominees so that
such nominees so elected shall constitute a majority of the number of the
directors comprising the Board of Directors; provided that to the extent that
one or more regulatory approvals are required for any of the transactions or
circumstances described in clause (i) or (ii) above to become effective under
applicable law, such transactions or circumstances shall be deemed to have
occurred at the time such approvals have been obtained and become effective
under applicable law.
“Member
of the Rogers Family” means (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (who was born on May 27, 1933,
such individual being hereinafter referred to as “▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇”); (ii) such
of the following persons as are living at the date of this Indenture or are
born
after the date of this Indenture and before the Perpetuity Date: (a) the spouse,
for the time being and from time to time, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (b) after the
death of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the widow, if any, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (c) the
issue
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (d) any half-sister of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the issue
of
any such half-sister; (e) individuals adopted by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any of
the
issue of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, provided that such individuals have not attained
the
age of majority at the date of such adoption, together with the issue of any
such adopted individuals; provided that if any person is born out of wedlock
he
shall be deemed not to be the issue of another person for the purposes hereof
unless and until he is proven or acknowledged to be the issue of such person
and; (iii) a Qualifying Trust, but only to the extent of its Family Percentage
Holding of voting securities or rights to control or direct the voting
securities of the Company at the time of the determination.
47
“Qualifying
Trust” means a trust (whether testamentary or inter vivos) any beneficiary of
which is a person referred to in clause (i) or (ii) of the definition of “Member
of the Rogers Family” or the spouse, widow or widower, for the time being and
from time to time, of any person described in subclause (ii)(c), (d) or (e)
of
the definition of “Member of the Rogers Family” (provided that such spouse,
widow or widower is living at the date of this Indenture or is born after the
date of this Indenture and before the Perpetuity Date) (all such persons being
hereafter referred to as “Qualified Persons”).
“Family
Percentage Holding” means the aggregate percentage of the securities held by a
Qualifying Trust representing, directly or indirectly, an interest in voting
securities or rights to control or direct the voting securities of the Company,
that it is reasonable, under all the circumstances, to regard as being held
beneficially for Qualified Persons (or any class consisting of two or more
Qualified Persons); provided always that in calculating the Family Percentage
Holding (A) in respect of any power of appointment or discretionary trust
capable of being exercised in favor of any of the Qualified Persons such trust
or power shall be deemed to have been exercised in favor of Qualified Persons
until such trust or power has been otherwise exercised; (B) where any
beneficiary of a Qualifying Trust has assigned, transferred or conveyed, in
any
manner whatsoever, his or her beneficial interest to another person, then,
for
the purpose of determining the Family Percentage Holding in respect of such
Qualifying Trust, the person to whom such interest has been assigned,
transferred or conveyed shall be regarded as the only person beneficially
interested in the Qualifying Trust in respect of such interest but in the case
where the interest is so assigned, transferred or conveyed is an interest in
a
discretionary trust or is an interest which may arise as a result of the
exercise in favor of the assignor of a discretionary power of appointment and
such discretionary trust or power of appointment is also capable of being
exercised in favor of persons described in clause (i) or (ii) of the definition
of “Member of the Rogers Family”, such discretionary trust or power shall be
deemed to have been so exercised in favor of Qualified Persons until it has
in
fact been exercised; and (C) the interest of any Permitted Residuary Beneficiary
shall be ignored until its interest has indefeasibly vested.
“Permitted
Residuary Beneficiary” means any person who is a beneficiary of a Qualifying
Trust and, under the terms of the Qualifying Trust, is entitled to distributions
out of the capital of such Qualifying Trust only after the death of all of
the
Qualified Persons who are beneficiaries of such Qualifying Trust.
“Perpetuity
Date” means the date that is 21 years, less one day, from the date of the death
of the last survivor of the individuals described in clause (i) or subclause
(ii)(a), (b), (c), (d) or (e) of the definition of “Member of the Rogers
Family”, who are living at the date of this Indenture.
SECTION
502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If
(i) an
Event of Default (other than an Event of Default specified in Section 501(f),
501(g), 501(h) or 501(i)) occurs and is continuing, or (ii) an Event of Default
specified in Section 501(i) occurs and is continuing and the Company (or a
third
party) fails in any material respect to comply with any of the provisions of
Section 516, then and in every such case the Trustee or the Holders of not
less
than 25% in principal amount of the Securities Outstanding may declare the
principal of all the Securities to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any
such declaration such principal shall become immediately due and payable (a)
if
there shall no longer be any Bank Credit Agreement, immediately or (b) if there
shall be a Bank Credit Agreement, upon the first to occur of (1) an acceleration
in full of the Designated Senior Indebtedness or (2) the fifth Business Day
after receipt by the Company and the Agent of such declaration given under
this
Indenture, unless (in the absence of an acceleration in full of the Designated
Senior Indebtedness) on or prior to such fifth Business Day the Company shall
have discharged the Debt (in the case of an Event of Default under clause (d)
above) or otherwise cured such Event of Default and shall have given written
notice of such discharge or cure to the Trustee. The Company will give the
Trustee written notice that there is no longer any Bank Credit Agreement upon
the occurrence of each instance when there is no longer any Bank Credit
Agreement.
48
If
an
Event of Default specified in Section 501(f), 501(g) or 501(h) occurs and is
continuing, then the principal of all the Securities shall ipso facto become
and
be immediately due and payable without any declaration or other act on the
part
of the Trustee or any Holder. The Company will deliver to the Trustee, within
10
days after the occurrence thereof, notice of any acceleration or default in
payment at maturity of Debt referred to in Section 501(d).
At
any
time after a declaration of acceleration has been made and before a judgment
or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities, by written notice to the Company and
the
Trustee, may rescind and annul such declaration and its consequences
if:
(a)
the
Company has paid or deposited, or caused to be paid or deposited, with the
Trustee a sum sufficient to pay
(1)
all
overdue interest on all Securities,
(2)
the
principal of (and premium, if any, on) any Securities that have become due
otherwise than by such declaration of acceleration and interest thereon at
the
rate borne by the Securities,
(3)
to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities, and
(4)
all
sums paid or advanced by the Trustee hereunder, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and
any other amounts due to the Trustee pursuant to Section 607; and
(b)
all
Events of Default, other than the non-payment of principal of, premium, if
any,
or interest on the Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section
513.
49
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Notwithstanding
the preceding paragraph, in the event of a declaration of acceleration in
respect of the Securities because an Event of Default specified in Section
501(d) shall have occurred and be continuing, such declaration of acceleration
shall be automatically annulled if the Debt that is the subject of such Event
of
Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Debt, and written notice of
such
discharge or rescission, as the case may be, shall have been given to the
Trustee by the Company and countersigned by the holders of such Debt or a
trustee, fiduciary or agent for such holders, within 30 days after such
declaration of acceleration in respect of the Securities, and no other Event
of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
SECTION
503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The
Company covenants that if:
(a)
default is made in the payment of any interest or Additional Amounts on any
Security when such interest or Additional Amounts becomes due and payable and
such default continues for a period of 30 days, or
(b)
default is made in the payment of the principal of (or premium, if any, on)
any
Security at the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest
upon
the overdue principal (and premium, if any) and, to the extent that payment
of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Trustee, its agents and counsel.
If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
If
an
Event of Default occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders under
this Indenture by such appropriate private or judicial proceedings as the
Trustee shall deem most effectual to protect and enforce such
rights.
SECTION
504. TRUSTEE MAY FILE PROOFS OF CLAIM.
50
In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then
be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a)
to
file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due to the Trustee pursuant to Section 607) and of the Holders
allowed in such judicial proceeding, and
(b)
to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for
the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
607.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any proposal, plan of
reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or
to
authorize the Trustee to vote in respect of the claim of any Holder in any
such
proceeding.
SECTION
505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee shall be brought in its own name
and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due to the Trustee pursuant to Section 607, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION
506. APPLICATION OF MONEY COLLECTED.
Any
money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
51
FIRST:
To
the payment of all amounts due the Trustee under Section 607;
SECOND:
To the payment of the amounts then due and unpaid upon the Securities for
principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest; and
THIRD:
The balance, if any, to the Company.
SECTION
507. LIMITATION ON SUITS.
No
Holder
of any Securities shall have any right to institute any proceeding, judicial
or
otherwise, with respect to this Indenture or the Securities, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a)
such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(b)
the
Holders of not less than 25% in principal amount of the Outstanding Securities
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(c)
such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d)
the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e)
no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount
of
the Outstanding Securities;
it
being
understood and intended that no one or more Holders shall have any right in
any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to obtain
or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture except in the manner provided in this Indenture
and for the equal and ratable benefit of all the Holders.
SECTION
508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 309) interest and any
Additional Amounts on such Security on the respective due dates expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
52
SECTION
509. RESTORATION OF RIGHTS AND REMEDIES.
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION
510. RIGHTS AND REMEDIES CUMULATIVE.
Except
as
provided in Section 308, no right or remedy herein conferred upon or reserved
to
the Trustee or to the Holders is intended to be exclusive of any other right
or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder
or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION
511. DELAY OR OMISSION NOT WAIVER.
No
delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION
512. CONTROL BY HOLDERS.
The
Holders of a majority in principal amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, provided that
(a)
such
direction shall not be in conflict with any rule of law or with this Indenture
or expose the Trustee to personal liability, and
(b)
subject to the provisions of the Trust Indenture Act, the Trustee may take
any
other action deemed proper by it which is not inconsistent with such
direction.
53
SECTION
513. WAIVER OF PAST DEFAULTS.
The
Holders of a majority in principal amount of the Outstanding Securities may
on
behalf of the Holders of all the Securities waive any past default hereunder
and
its consequences, except a default
(a)
in
the payment of the principal of (or premium, if any) or interest on any
Security, or
(b)
arising from a Change in Control Triggering Event, or
(c)
in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon
any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or
impair any right consequent thereon.
SECTION
514. UNDERTAKING FOR COSTS.
All
parties to this Indenture agree, and each Holder of any Security by its
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in
its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment
of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case
of
redemption, on or after the Redemption Date).
SECTION
515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
SECTION
516. CHANGE IN CONTROL OFFER.
54
(a)
The
Securities may not be accelerated pursuant to Section 502 following an Event
of
Default under Section 501(i) and such Event of Default shall be cured if the
Company complies with the provisions of this Section 516. If the Company elects
to cure such Event of Default, within 20 Business Days of the occurrence of
an
Event of Default under Section 501(i), (i) the Company shall notify the Trustee
in writing of the occurrence of the Change in Control Triggering Event and
shall
make an offer to purchase (the “Change in Control Offer”) the Securities at a
purchase price equal to 101% of the principal amount thereof plus any accrued
and unpaid interest thereon to the Change in Control Purchase Date (as
hereinafter defined) (the “Change in Control Purchase Price”) on the date that
is 40 Business Days after the occurrence of the Change in Control Triggering
Event (the “Change in Control Purchase Date”), (ii) the Trustee shall mail a
copy of the Change in Control Offer to each Holder and (iii) the Company shall
cause a notice of the Change in Control Offer to be sent at least once to the
Dow ▇▇▇▇▇ News Service or similar business news service in the United States
and
Canada News Wire Ltd. service or similar news service in Canada. The Change
in
Control Offer shall remain open from the time such offer is made until the
Change in Control Purchase Date. The Trustee shall be under no obligation to
ascertain the occurrence of a Change in Control Triggering Event or to give
notice with respect thereto other than as provided above upon receipt of a
Change in Control Offer from the Company. The Trustee may conclusively assume,
in the absence of receipt of a Change in Control Offer from the Company, that
no
Change in Control Triggering Event has occurred. The Change in Control Offer
shall include a form of Change in Control Purchase Notice to be completed by
the
Holder and shall state:
(1)
the
events causing a Change in Control Triggering Event and the date such Change
in
Control Triggering Event is deemed to have occurred;
(2)
that
the Change in Control Offer is being made pursuant to this Section 516(a) and
that all Securities properly tendered pursuant to the Change in Control Offer
will be accepted for payment;
(3)
the
date by which the Change in Control Purchase Notice pursuant to this Section
516
must be given;
(4)
the
Change in Control Purchase Date;
(5)
the
Change in Control Purchase Price;
(6)
the
names and addresses of the Paying Agent and the offices or agencies referred
to
in Section 1002;
(7)
that
Securities must be surrendered to the Paying Agent at the office of the Paying
Agent or to an office or agency referred to in Section 1002 to collect
payment;
(8)
that
the Change in Control Purchase Price for any Security as to which a Change
in
Control Purchase Notice has been duly given and not withdrawn will be paid
promptly upon the later of the first Business Day following the Change in
Control Purchase Date and the time of surrender of such Security as described
in
clause (7) above;
55
(9)
the
procedures the Holder must follow to accept the Change in Control Offer;
and
(10)
the
procedures for withdrawing a Change in Control Purchase Notice.
(b)
A
Holder may accept a Change in Control Offer by delivering to the Paying Agent
at
the office of the Paying Agent or to an office or agency referred to in Section
1002 a written notice (a “Change in Control Purchase Notice”) at any time prior
to the close of business on the Change in Control Purchase Date,
stating:
(1)
that
such Holder elects to have a Security purchased pursuant to the Change in
Control Offer;
(2)
the
principal amount of the Security that the Holder elects to have purchased by
the
Company, which amount must be U.S.$1,000 or an integral multiple thereof, and
the certificate numbers of the Securities to be delivered by such Holder for
purchase by the Company; and
(3)
that
such Security shall be purchased on the Change in Control Purchase Date pursuant
to the terms and conditions specified in this Indenture.
The
delivery of such Security (together with all necessary endorsements) to the
Paying Agent at the office of the Paying Agent or to an office or agency
referred to in Section 1002 prior to, on or after the Change in Control Purchase
Date shall be a condition to the receipt by the Holder of the Change in Control
Purchase Price therefor; provided that such Change in Control Purchase Price
shall be so paid pursuant to this Section 516 only if the Security so delivered
to the Paying Agent or to an office or agency referred to in Section 1002 shall
conform in all respects to the description thereof set forth in the related
Change in Control Purchase Notice.
The
Company shall purchase from the Holder thereof, pursuant to this Section 516,
a
portion of a Security if the principal amount of such portion is U.S.$1,000
or
an integral multiple of U.S.$1,000. Provisions of this Indenture that apply
to
the purchase of all of a Security also apply to the purchase of a portion of
such Security.
Any
purchase by the Company contemplated pursuant to the provisions of this Section
516 shall be consummated by the delivery by the Company of the consideration
to
be received by the Holder promptly upon the later of (a) the first Business
Day
following the Change in Control Purchase Date and (b) the time of delivery
of
the Security by the Holder to the Paying Agent or to an office or agency
referred to in Section 1002 in the manner required by this Section
516.
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent,
at
the office of the Paying Agent or an office or agency referred to in Section
1002, the Change in Control Purchase Notice contemplated by this Section 516(b)
shall have the right to withdraw such Change in Control Purchase Notice at
any
time prior to the close of business on the Change in Control Purchase Date
by
delivery of a written notice of withdrawal to the Paying Agent or to an office
or agency referred to in Section 1002 in accordance with Section
1109.
56
The
Paying Agent or the office or agency referred to in Section 1002 shall promptly
notify the Company of the receipt by the former of any Change in Control
Purchase Notice or written notice of withdrawal thereof.
(c)
The
Securities may also not be accelerated pursuant to Section 502 following an
Event of Default under Section 501(i) and such Event of Default shall also
be
cured if a third party makes and consummates a Change in Control Offer in the
manner and at the times and otherwise in compliance with this Section 516;
provided, however, that any such third party shall be subject to Section 1010
in
respect of any amounts paid by such third party hereunder (for this purpose,
Section 1010 is modified by replacing “Company” with the name of the third
party) and such Event of Default shall be cured only if such third party
complies with Section 1010 (as modified) or if the Company satisfies the third
party’s obligations under such Section.
ARTICLE
SIX
THE
TRUSTEE
SECTION
601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a)
Except during the continuance of an Event of Default,
(1)
the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2)
in
the absence of bad faith on its part, the Trustee may conclusively rely, as
to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same
to determine whether or not they conform to the requirements of this
Indenture.
(b)
In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.
(c)
No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its
own willful misconduct, except that:
57
(1)
this
Subsection shall not be construed to limit the effect of Subsection (a) of
this
Section;
(2)
the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it shall be proved that the Trustee was negligent
in
ascertaining the pertinent facts;
(3)
the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
a
majority in principal amount of the Outstanding Securities relating to the
time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this
Indenture; and
(4)
no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(d)
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to
the Trustee shall be subject to the provisions of this Section.
SECTION
602. NOTICE OF DEFAULTS.
The
Trustee shall, within a reasonable time but not exceeding 60 days after the
occurrence of any Default, transmit by mail to all Holders, as their names
and
addresses appear in the Security Register, notice of such Default or Event
of
Default hereunder known to the Trustee, unless such Default is not an Event
of
Default and shall have been cured or waived; provided, however, that, except
in
the case of a Default in the payment of the principal of (or premium, if any)
or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
a
trust committee of directors and/or Responsible Officers of the Trustee in
good
faith determines that the withholding of such notice is in the best interests
of
the Holders and the Trustee so advises the Company in writing.
Where
notice of the occurrence of any Default is given by the Trustee under the
preceding paragraph and the Default is thereafter cured, the Trustee shall,
within a reasonable time but not exceeding 60 days after the Trustee becomes
aware of the curing of the Default, transmit by mail to all Holders, as their
names and addresses appear in the Security Register, notice that the Default
is
no longer continuing.
SECTION
603. CERTAIN RIGHTS OF TRUSTEE.
Except
as
otherwise provided in Section 601:
58
(a)
the
Trustee may rely and shall be protected in acting or refraining from acting
upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have
been signed or presented by the proper party or parties;
(b)
any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c)
whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering
or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon
an Officers’ Certificate;
(d)
the
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e)
the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f)
the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(g)
the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION
604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The
recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture
or
the Securities. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
59
SECTION
605. MAY HOLD SECURITIES.
The
Trustee, any Paying Agent, Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities, and, subject to the Trust Indenture Act, may otherwise deal with
the
Company with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION
606. MONEY HELD IN TRUST.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION
607. COMPENSATION, REIMBURSEMENT AND INDEMNITY.
The
Company agrees:
(a)
to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b)
except as otherwise expressly provided herein, to reimburse the Trustee upon
its
request for all reasonable expenses, disbursements and advances incurred or
made
by the Trustee in accordance with any provision of this Indenture (including
the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c)
to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out
of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
As
security for the performance of the obligations of the Company under this
Section, the Trustee shall have a claim and lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of Holders of particular Securities.
The
Company’s payment of indemnity obligations pursuant to this Section 607 shall
survive the discharge of this Indenture and the expiry of any trusts created
hereby and the resignation or removal of the Trustee. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 501(f), (g)
or
(h), the expenses are intended to constitute expenses of administration under
any Bankruptcy Law.
60
SECTION
608. CONFLICTING INTERESTS.
The
Trustee shall comply with the terms of Trust Indenture Act Section
310(b).
SECTION
609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under Trust Indenture Act Section 310(a)(1) and which shall have a
combined capital and surplus of at least U.S.$50,000,000 and have its Corporate
Trust Office in The City of New York to the extent there is such an institution
eligible and willing to serve. If such Person publishes reports of condition
at
least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then
for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified
in
this Article.
SECTION
610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a)
No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b)
The
Trustee may resign at any time by giving written notice thereof to the Company.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the resigning Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction (at the Company’s expense) for the appointment of a successor
Trustee.
(c)
The
Trustee may be removed at any time by an Act of the Holders of a majority in
principal amount of the Outstanding Securities, delivered to the Trustee and
to
the Company.
(d)
If at
any time:
(1)
the
Trustee shall fail to comply with the provisions of Section 608, or
(2)
the
Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any Holder who has been
a
bona fide Holder of a Security for at least six months, or
(3)
the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed
or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any case, (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 514, in the case of clause (1) above,
the Holder of any Security and any other interested party, and in the case
of
clauses (2) and
61
(3)
above, the Holder of any Security who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(e)
If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Company, by
a
Board Resolution, shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of
such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with Section
611, become the successor Trustee and supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders of the Securities and so accepted appointment, the
retiring Trustee or the Holder of any Security who has been a bona fide Holder
for at least six months may on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a
successor Trustee.
(f)
The
Company shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust
Office.
SECTION
611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver
to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all amounts due it under
Section 607, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject to the claim and lien
provided for in Section 607. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and
trusts.
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION
612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the institutional trust services business of the
Trustee, shall be the successor of such Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to the authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
62
SECTION
613. TRUSTEE NOT TO BE APPOINTED RECEIVER.
Neither
the Trustee nor any “related person”, as defined in the Business Corporations
Act (Ontario), to the Trustee, shall be appointed a receiver or receiver and
manager or liquidator of all or any part of the assets or undertaking of the
Company.
SECTION
614. ACCEPTANCE OF TRUSTS.
The
Trustee hereby accepts the trusts imposed upon it by this Indenture and
covenants and agrees to perform the same as herein expressed.
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION
701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
(a)
Upon
application to the Trustee in accordance with the Trust Indenture Act, Holders
may communicate pursuant to the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Securities.
(b)
In
addition, a Holder may, upon payment to the Trustee of a reasonable fee and
subject to compliance with any applicable requirement of the Trust Indenture
Act, require the Trustee to furnish within 10 days after receiving the affidavit
or statutory declaration referred to below, a list setting out (i) the name
and
address of every registered Holder, (ii) the aggregate principal amount of
Securities owned by each registered Holder and (iii) the aggregate principal
amount of Outstanding Securities, each as shown on the records of the Trustee
on
the day that the affidavit or statutory declaration is delivered to the Trustee.
The affidavit or statutory declaration, as the case may be, shall contain (x)
the name, address and occupation of the Holder, (y) where the Holder is a
corporation, its name and address for service and (z) a statement that the
list
will not be used except in connection with an effort to influence the voting
of
the Holders, an offer to acquire Securities, or any other matter relating to
the
Securities or the affairs of the Company. Where the Holder is a corporation,
the
affidavit or statutory declaration shall be made by a director or officer of
the
corporation.
(c)
Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee shall be held
accountable by reason of the disclosure of such list of the names and addresses
of the Holders, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under the Trust Indenture
Act.
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(d)
The
Company shall comply with the terms of Trust Indenture Act Section
312(a).
SECTION
702. REPORTS BY TRUSTEE.
Within
60
days after May 15 of each year commencing with the first May 15 after the first
issuance of Securities, the Trustee shall transmit by mail to all Holders,
as
their names and addresses appear in the Security Register, as provided in Trust
Indenture Act Section 313(c), a brief report dated as of such May 15 if required
by Trust Indenture Act Section 313(a).
SECTION
703. REPORTS BY COMPANY.
The
Company shall:
(a)
file
with the Trustee, within 30 days after the Company is required to file the
same
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such
of the supplementary and periodic information, documents and reports which
may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b)
file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company, as the case
may
be, with the conditions and covenants of this Indenture as may be required
from
time to time by such rules and regulations; and
(c)
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, within 30 days after the filing thereof with the Trustee,
in
the manner and to the extent provided in Trust Indenture Act Section 313(c),
such summaries of any information, documents and reports required to be filed
by
the Company pursuant to Subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
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ARTICLE
EIGHT
AMALGAMATION,
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER
OR LEASE
SECTION
801. COMPANY MAY AMALGAMATE, ETC., ONLY ON CERTAIN TERMS.
The
Company shall not amalgamate or consolidate with or merge with or into any
other
Person or convey, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person by liquidation, winding-up
or
otherwise (in one transaction or a series of related transactions)
unless:
(a)
either (1) the Company shall be the continuing corporation or (2) the Person
(if
other than the Company) formed by such amalgamation or consolidation or into
which the Company is merged or the Person which acquires by conveyance,
transfer, lease or other disposition the properties and assets of the Company
substantially as an entirety (i) shall be a corporation, partnership or trust
organized and validly existing under (A) the laws of the United States of
America or any State thereof or the District of Columbia or (B) the federal
laws
of Canada or any Province thereof and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b)
immediately after giving effect to such transaction (and treating any Debt
which
becomes an obligation of the Company or a Subsidiary in connection with or
as a
result of such transaction as having been incurred at the time of such
transaction), no Default or Event of Default shall have occurred and be
continuing; and
(c)
the
Company or such Person shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition and,
if
a supplemental indenture is required in connection with such transaction (or
series of transactions), such supplemental indenture, comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION
802. SUCCESSOR SUBSTITUTED.
Upon
any
amalgamation, consolidation or merger, or any conveyance, transfer, lease or
other disposition of the properties and assets of the Company substantially
as
an entirety in accordance with Section 801, the successor Person formed by
such
amalgamation or consolidation or into which the Company is merged or the
successor Person to which such conveyance, transfer, lease or other disposition
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease, the Company shall be discharged from all obligations and
covenants under this Indenture and the Securities.
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SECTION
803. SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If,
upon
any such consolidation or amalgamation of the Company with or merger of the
Company into any other Person, or upon any conveyance, transfer, lease or
disposition of the properties and assets of the Company substantially as an
entirety to any Person by liquidation, winding-up or otherwise (in one
transaction or a series of related transactions), any property or asset of
the
Company would thereupon become subject to any Lien, then, unless such Lien
could
be created pursuant to the provisions of this Indenture without equally and
ratably securing the Securities, the Company, prior to or simultaneously with
such consolidation, amalgamation, merger, conveyance, transfer, lease or
disposition, will, as to such property or asset, secure the Securities
Outstanding hereunder (together with, if the Company shall so determine, any
other Debt of the Company now existing or hereafter created which is not
subordinate to the Securities) equally and ratably with (or prior to) the Debt
which upon such consolidation, amalgamation, merger, conveyance, transfer,
lease
or disposition is to become secured as to such property or asset by such Lien,
or will cause such Securities to be so secured.
ARTICLE
NINE
SUPPLEMENTS
AND AMENDMENTS TO INDENTURE
SECTION
901. SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF
HOLDERS.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any
of
the following purposes:
(a)
to
evidence the succession of another Person to the Company and the assumption
by
any such successor of the covenants of the Company, herein and in the
Securities, as the case may be;
(b)
to
add to the covenants of the Company for the benefit of the Holders, or to
surrender any right or power herein or in the Securities conferred upon the
Company;
(c)
to
cure any ambiguity, to correct or supplement any provision herein which may
be
defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture;
provided that, in each case, such provisions shall not adversely affect the
interests of the Holders in any material respect; to issue Additional Securities
as provided in Section 301;
(d)
to
make any other change that does not adversely affect the rights of any Holder
or
to further secure the Securities.
SECTION
902. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH CONSENT OF
HOLDERS.
66
With
the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of such Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Indenture or of waiving or modifying in any manner
the
rights of the Holders under this Indenture; provided, however, that no such
supplemental indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(a)
change the Stated Maturity of the principal of, or any installment of interest
on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or change the coin
or currency in which the principal of any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date); or
(b)
reduce the amount of, or change the coin or currency of, or impair the right
to
institute suit for the enforcement of, the Change in Control Purchase Price;
or
(c)
reduce the percentage in principal amount of the Outstanding Securities, the
consent of whose Holders is required for any such supplemental indenture, or
the
consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(d)
modify any of the provisions of this Section or Sections 513 and 1012, except
to
increase any such percentage or to provide that certain other provisions of
this
Indenture cannot be modified or waived without the consent of the Holder of
each
Security affected thereby; or
(e)
modify any of the provisions of this Indenture relating to the subordination
of
the Securities in a manner adverse to any Holder in any material
respect.
It
shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION
903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to the Trust Indenture Act and Section 603 hereof) shall be fully
protected in acting and relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
67
SECTION
904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon
the
execution of any supplemental indenture under this Article, this Indenture
shall
be modified in accordance therewith, and such supplemental indenture shall
form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION
905. CONFORMITY WITH THE TRUST INDENTURE ACT.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION
906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed
by
the Company and, upon Company Order, authenticated and delivered by the Trustee
in exchange for Outstanding Securities.
ARTICLE
TEN
COVENANTS
SECTION
1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The
Company will duly and punctually pay the principal of (and premium, if any)
and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION
1002. MAINTENANCE OF OFFICES OR AGENCIES.
The
Company will maintain in The City of New York an office or agency where
Securities may be presented or surrendered for payment, where Securities may
be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such office
or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
addresses thereof, such presentations, surrenders, notices and demands may
be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The
Company may from time to time designate one or more other offices or agencies
(in or outside of The City of New York) where the Securities may be presented
or
surrendered for any or all such purposes, and may from time to time rescind
such
designation; provided, however, that no such designation or rescission shall
in
any manner relieve the Company of its obligation to maintain an office or agency
in The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and any change
in
the location of any such office or agency.
68
SECTION
1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If
the
Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on any
of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents for the Securities, it will,
on
or before each due date of the principal of (and premium, if any) or interest
on
any Securities, deposit with a Paying Agent a sum in same day funds (or New
York
Clearing House funds if such deposit is made prior to the date on which such
deposit is required to be made) sufficient to pay the principal (and premium,
if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless
such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
The
Company will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a)
hold
all sums held by it for the payment of the principal of (and premium, if any)
or
interest on Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b)
give
the Trustee notice of any default by the Company (or any other obligor upon
the
Securities) in the making of any payment of principal (and premium, if any)
or
interest; and
(c)
at
any time during the continuance of any such default, upon the written request
of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
69
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the payment of the principal of (and premium, if any) or interest
on
any Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
SECTION
1004. CORPORATE EXISTENCE.
Subject
to Article Eight, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect the corporate existence and
corporate power and authority of the Company and each Restricted Subsidiary;
provided, however, that the Company shall not be required to preserve any such
corporate existence and corporate power and authority if the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of
the business of the Company and its Restricted Subsidiaries taken as a
whole.
SECTION
1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The
Company will pay or discharge or cause to be paid or discharged, before the
same
shall become delinquent, (a) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Restricted Subsidiary or
upon
the income, profits or property of the Company or any Restricted Subsidiary
and
(b) all material lawful claims for labor, materials and supplies, which, if
unpaid, might by law become a Lien upon the property of the Company or any
Restricted Subsidiary that could produce a material adverse effect on the
Consolidated financial condition of the Company; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate
proceedings.
SECTION
1006. MAINTENANCE OF PROPERTIES.
The
Company will cause all properties owned by the Company or any Restricted
Subsidiary or used or held for use in the conduct of its business or the
business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company
may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, except, in every case,
as
and to the extent that the Company may be prevented by fire, strikes, lockouts,
acts of God, inability to obtain labor or materials, governmental restrictions,
enemy action, civil commotion or unavoidable casualty or similar causes beyond
the control of the Company; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Restricted Subsidiary
and
not disadvantageous in any material respect to the Holders.
70
SECTION
1007. LIMITATION ON LIENS.
The
Company will not create, affirm, incur, or suffer to exist any Lien of any
kind
securing Debt upon any of its property or assets, now owned or hereafter
acquired, unless and for so long as the Company secures the Securities equally
and ratably with (or, in the case of Debt that is subordinated to the
Securities, prior to) such secured Debt, other than:
(i)
Liens
on the properties and assets of the Company securing Senior
Indebtedness;
(ii)
Liens on property or assets of a Person existing at the time such person is
merged with or into or consolidated with the Company, provided that such Liens
were not incurred in contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or consolidated
with the Company and the Subsidiaries of such Person; and
(iii)
Liens on property or assets existing at the time of the acquisition thereof
by
the Company, provided that such Liens were not incurred in contemplation of
such
acquisition and do not extend to any property other than the property or assets
so acquired by the Company.
To
the
extent that any Lien qualifies or may be considered under more than one of
the
foregoing clauses (i) through (iii), it shall be deemed to constitute a Lien
permitted under this Section 1007 pursuant to the clause designated from time
to
time by the Company, which designation need not be in writing.
SECTION
1008. LIMITATION ON OTHER SENIOR SUBORDINATED DEBT.
The
Company will not create, incur, assume, guarantee or in any other manner become
liable with respect to any Debt (other than the Securities) that is subordinate
in right of payment to any Senior Indebtedness of the Company unless such Debt
is also pari passu with, or subordinate in right of payment to, the Securities.
For the purposes of such covenant, Debt will be deemed to be pari passu with
the
Securities if it is subordinate to Senior Indebtedness of the Company pursuant
to subordination provisions substantially similar to those contained in Article
Twelve hereof. Nothing in this Section 1008 shall prohibit the Company from
creating, incurring, assuming or in any other manner becoming liable with
respect to any Senior Indebtedness secured by a lien which ranks junior to
any
other lien securing any other Senior Indebtedness.
SECTION
1009. PROVISION OF FINANCIAL INFORMATION.
(a)
The
Company shall supply without cost to each Holder of the Securities, and file
with the Trustee within 30 days after the Company is required to file the same
with the Commission, copies of the annual reports and quarterly reports and
of
the information, documents and other reports which the Company may be required
to file with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act.
(b)
If
the Company is not required to file with the Commission such reports and other
information referred to in Section 1009(a), the Company shall furnish without
cost to each Holder of the Securities and file with the Trustee (i) within
110
days after the end of each fiscal year, audited year-end financial statements
prepared in accordance with GAAP and substantially in the form prescribed by
applicable Canadian regulatory authorities for Canadian public reporting
companies (whether or not the Company is a public reporting company at the
time), (ii) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, unaudited quarterly financial statements prepared
in accordance with GAAP and substantially in the form prescribed by applicable
Canadian regulatory authorities for Canadian public reporting companies (whether
or not the Company is a public reporting company at the time). The Company
shall
also make such reports available to prospective purchasers of the Securities,
securities analysts and broker-dealers upon their request.
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SECTION
1010. PAYMENT OF ADDITIONAL AMOUNTS.
All
payments made by the Company under or with respect to the Securities will be
made free and clear of and without withholding or deduction for or on account
of
any present or future tax, duty, levy, impost, assessment or other governmental
charge imposed or levied by or on behalf of the Government of Canada or of
any
province or territory thereof or by any authority or agency therein or thereof
having power to tax (hereinafter “Taxes”), unless the Company is required to
withhold or deduct Taxes by law or by the interpretation or administration
thereof. If the Company is so required to withhold or deduct any amount for
or
on account of Taxes from any payment made under or with respect to the
Securities, the Company will pay as interest such additional amounts
(“Additional Amounts”) as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if such Taxes
had not been withheld or deducted; provided that no Additional Amounts will
be
payable with respect to a payment made to a Holder (an “Excluded Holder”) (i)
with which the Company does not deal at arm’s length (within the meaning of the
Income Tax Act (Canada)) at the time of making such payment or (ii) which is
subject to such Taxes by reason of its being connected with Canada or any
province or territory thereof otherwise than by the acquisition or mere holding
of Securities or the receipt of payments thereunder, (iii) if the Securities
are
presented for payment more than 15 days after the date on which such payment
or
such Securities became due and payable or the date on which such payment thereof
is duly provided for, whichever is later (except to the extent that the Holder
would have been entitled to Additional Amounts had the Securities been presented
on the last day of such 15-day period) or (iv) to the extent that such
withholding is imposed on a payment to a Holder who is an individual pursuant
to
European Union Directive 2003/48/EC on the taxation of savings or any law
implementing or complying with, or introduced in order to conform to, such
Directive. The Company will also (i) make such withholding or deduction and
(ii)
remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. Upon the written request of a Holder of
Securities, the Company will furnish, as soon as reasonably practicable, to
such
Holder of Securities certified copies of tax receipts evidencing such payment
by
the Company. The Company will indemnify and hold harmless each Holder (other
than to the extent the Holder is an Excluded Holder) and upon written request
of
any Holder of Securities (other than to the extent the Holder is an Excluded
Holder) reimburse such Holder for the amount of (i) any such Taxes so levied
or
imposed and paid by such Holder as a result of any failure of the Company to
withhold, deduct or remit to the relevant tax authority, on a timely basis,
the
full amounts required under applicable law; and (ii) any such Taxes so levied
or
imposed with respect to any reimbursement under the foregoing clause (i), so
that the net amount received by such ▇▇▇▇▇▇ after such reimbursement would
not
be less than the net amount such Holder would have received if such Taxes on
such reimbursement had not been imposed.
72
At
least
30 days prior to each date on which any payment under or with respect to the
Securities is due and payable, if the Company will be obligated to pay
Additional Amounts with respect to such payment, the Company will deliver to
the
Trustee an Officers’ Certificate stating the fact that such Additional Amounts
will be payable, the amounts so payable and will set forth such other
information necessary to enable the Trustee, on behalf of the Company, to pay
such Additional Amounts to Holders on the payment date. Whenever in this
Indenture there is mentioned, in any context, the payment of principal (and
premium, if any), Redemption Price, Change in Control Purchase Price, interest
or any other amount payable under or with respect to any Security such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in this Section to the extent that, in such context, Additional Amounts
are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made (if
applicable).
The
obligations of the Company under this Section 1010 shall survive the termination
of this Indenture and the payment of all amounts under or with respect to the
Securities.
SECTION
1011. STATEMENT AS TO COMPLIANCE.
The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year ending after the date hereof (or within such shorter time period
as
may be required by the Trust Indenture Act) and otherwise upon the demand of
the
Trustee, a brief certificate of its principal executive officer, principal
financial officer or principal accounting officer stating whether, to such
officer’s knowledge, the Company is in compliance with all covenants and
conditions to be complied with by it under this Indenture. For purposes of
this
Section 1011, such compliance shall be determined without regard to any period
of grace or requirement of notice under this Indenture.
When
a
Default has occurred and is continuing or if the Trustee, any Holder or the
trustee for or the holder of any other evidence of Debt of the Company or any
Restricted Subsidiary gives any notice or takes any other action with respect
to
a claimed default (other than with respect to Debt in the principal amount
of
less than Cdn$10,000,000), the Company shall deliver to the Trustee an Officers’
Certificate specifying such Default, notice or other action within 10 Business
Days of its occurrence.
The
Company shall furnish to the Trustee, upon the demand of the Trustee, evidence,
in the form required by the Trustee, of any action required or permitted to
be
taken by the Company under this Indenture.
SECTION
1012. WAIVER OF CERTAIN COVENANTS.
73
The
Company may omit in any particular instance to comply with any covenant or
condition set forth in Sections 1005 through 1009 if, before or after the time
for such compliance, the Holders of a majority in aggregate principal amount
of
the Securities at the time outstanding shall, by Act of such Holders, waive
such
compliance in such instance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant
or
condition shall remain in full force and effect.
SECTION
1013. SUBORDINATION AGREEMENTS.
(i)
The
Company, to the extent it is an obligor under Inter-Company Deeply Subordinated
Debt or Inter-Company Subordinated Debt from time to time, will hold in trust
for the benefit of the Trustee and the Holders the rights and benefits of the
provisions substantially in the form of Exhibits A and B hereto, which
provisions shall be incorporated into agreements or instruments evidencing
Inter-Company Deeply Subordinated Debt and Inter-Company Subordinated Debt,
respectively.
(ii)
For
greater certainty, notwithstanding the provisions of any Inter-Company Deeply
Subordinated Debt, any Inter-Company Subordinated Debt, any provision thereof
as
may be incorporated in any document or any other agreement pursuant to which
the
Trustee or the Holders are or may become entitled to receive from holders of
subordinated indebtedness of the Company payments by way of turn-over
(“subordination documents”), neither the Trustee nor the Holders shall collect,
claim any right to collect, accept or receive any amounts (the “turnover
amounts”), whether in cash, property or otherwise, pursuant to any subordination
document unless a Default or Event of Default shall have occurred and be
continuing. In the event that notwithstanding the provisions of this Section
1013(ii), the Holders or the Trustee shall receive or collect any turnover
amounts such turnover amounts shall be received and held in trust for and shall
be paid over to such holders of subordinated indebtedness or the liquidating
agent or other Person who shall have made such payment on their behalf under
the
subordination documents. Any such turnover amounts received by the Trustee
or
Holder which the Trustee or Holder is required to pay over to such holders
of
subordinated indebtedness or the liquidating agent or other Person who shall
have made such payment on their behalf shall in no circumstances be deemed
to be
a payment on account of the Securities.
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
SECTION
1101. RIGHT OF REDEMPTION.
(a)
The
Securities may be redeemed, at the election of the Company, as a whole or from
time to time in part, at any time, subject to the conditions and at the
Redemption Prices specified in the form of Security set forth in Article Two
herein, together with accrued interest to the Redemption Date.
74
(b)
If,
as a result of any change in, or amendment to, the laws (or any regulations
promulgated thereunder) of Canada (or any political subdivision or taxing
authority thereof or therein), or any change in, or amendment to, any official
position regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on
or
after November 19, 2004, the Company has become or would become obligated to
pay, on the next date on which any amount would be payable under or with respect
to the Securities, any Additional Amounts in accordance with Section 1010
hereof, then the Company may, at its option, redeem the Securities, as a whole
but not in part, at a redemption price equal to 100% of their principal amount,
together with interest accrued thereon to the Redemption Date; provided that
the
Company determines, in its business judgment, that the obligation to pay such
Additional Amounts cannot be avoided by the use of reasonable measures available
to the Company not including substitution of the obligor under the
Securities.
SECTION
1102. APPLICABILITY OF ARTICLE.
Redemption
of Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION
1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The
election of the Company to redeem the Securities pursuant to Section 1101 shall
be evidenced by a Board Resolution. In case of any redemption at the election
of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by it (unless a shorter notice period shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed.
SECTION
1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If
less
than all the Securities are to be redeemed, the particular Securities or
portions thereof to be redeemed shall be selected not more than 60 days and
not
less than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, pro rata, and
the
amounts to be redeemed may be equal to U.S.$1,000 or any integral multiple
thereof.
The
Trustee shall promptly notify the Company and the Security Registrar in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For
all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Securities shall relate, in the case of
any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be
redeemed.
SECTION
1105. NOTICE OF REDEMPTION.
75
Notice
of
redemption shall be given by first-class mail, postage prepaid, mailed not
less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of
Securities to be redeemed, at its address appearing in the Security
Register.
All
notices of redemption shall state:
(a)
the
Redemption Date;
(b)
the
Redemption Price;
(c)
if
less than all Outstanding Securities are to be redeemed, the identification
(and, in the case of a Security to be redeemed in part, the principal amount)
of
the particular Securities to be redeemed;
(d)
that
on the Redemption Date the Redemption Price will become due and payable upon
each such Security, and that interest thereon shall cease to accrue on and
after
said date; and
(e)
the
place or places where such Securities are to be surrendered for payment of
the
Redemption Price.
Notice
of
redemption of Securities to be redeemed at the election of the Company shall
be
given by the Company or, at its request, by the Trustee in the name and at
the
expense of the Company.
SECTION
1106. DEPOSIT OF REDEMPTION PRICE.
On
or
prior to any Redemption Date, the Company shall deposit or cause to be deposited
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in same day funds (or New York Clearing House funds if such deposit
is
made prior to the applicable Redemption Date) sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date.
SECTION
1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice
of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company
at
the Redemption Price together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on
or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such on the relevant
Regular Record Dates according to the terms and the provisions of Section
309.
76
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal thereof (and premium, if any, thereon) shall, until
paid, bear interest from the Redemption Date at the rate borne by such
Security.
SECTION
1108. SECURITIES REDEEMED IN PART.
Any
Security which is to be redeemed only in part shall be surrendered at the office
or agency of the Company maintained for such purpose pursuant to Section 1002
(with, if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company, the Security Registrar or the Trustee duly executed by, the Holder
thereof or its attorney duly authorized in writing), and the Company shall
execute, and, upon Company Order, the Trustee shall authenticate and deliver
to
the Holder of such Security without service charge, a replacement Security
or
Securities, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION
1109. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.
Upon
receipt by the Company of the Change in Control Purchase Notice specified in
Section 516(b), the Holder of the Security in respect of which such Change
in
Control Purchase Notice was given shall (unless such Change in Control Purchase
Notice is withdrawn as specified in the following two paragraphs of this
Section) thereafter be entitled to receive solely the Change in Control Purchase
Price with respect to such Security. Such Change in Control Purchase Price
shall
be paid to such Holder upon the later of (a) the first Business Day following
the Change in Control Purchase Date (provided the conditions in Section 516(b)
have been satisfied) and (b) the time of delivery of the Security to the Paying
Agent at the office of the Paying Agent or to the office or agency referred
to
in Section 1002 by the Holder thereof in the manner required by Section
516(b).
A
Change
in Control Purchase Notice may be withdrawn before or after delivery by the
Holder to the Paying Agent at the office of the Paying Agent of the Security
to
which such Change in Control Purchase Notice relates, by means of a written
notice of withdrawal delivered by the Holder to the Paying Agent at the office
of the Paying Agent or to the office or agency referred to in Section 1002
to
which the related Change in Control Purchase Notice was delivered at any time
prior to the close of business on the Change in Control Purchase Date
specifying, as applicable:
(1)
the
certificate number of the Security in respect of which such notice of withdrawal
is being submitted,
(2)
the
principal amount of the Security (which shall be U.S.$1,000 or an integral
multiple thereof) with respect to which such notice of withdrawal is being
submitted, and
(3)
the
principal amount, if any, of such Security (which shall be U.S.$1,000 or an
integral multiple thereof) that remains subject to the original Change in
Control Purchase Notice and that has been or will be delivered for purchase
by
the Company.
77
The
Paying Agent will promptly return to the respective Holders thereof any
Securities with respect to which a Change in Control Purchase Notice has been
withdrawn in compliance with this Indenture.
SECTION
1110. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.
No
later
than 11:00 a.m. (New York time) on the Business Day following the Change in
Control Purchase Date the Company shall deposit or cause to be deposited with
the Paying Agent (or, if the Company is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 1003) an amount of cash
sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof that are to be purchased as of the Change in
Control Purchase Date.
SECTION
1111. SECURITIES PURCHASED IN PART.
Any
Security that is to be purchased only in part shall be surrendered to the Paying
Agent at the office of the Paying Agent or to the office or agency referred
to
in Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and, upon
Company Order, the Trustee shall authenticate and deliver to the Holder of
such
Security, without service charge, a replacement Security or Securities, of
any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the principal amount of the Security
so
surrendered that is not purchased.
SECTION
1112. REPAYMENT TO THE COMPANY.
As
provided in the Securities, the Trustee and the Paying Agent shall return to
the
Company any cash that remains unclaimed, together with interest or dividends,
if
any, thereon (subject to the provisions of Section 607), held by them for the
payment of the Change in Control Purchase Price; provided, however, that, to
the
extent that the aggregate amount of cash deposited by the Company pursuant
to
Section 1110 exceeds the aggregate Change in Control Purchase Price of the
Securities or portions thereof to be purchased, then the Trustee shall hold
such
excess for the Company and promptly after the Business Day following the Change
in Control Purchase Date the Trustee shall upon demand return any such excess
to
the Company together with interest or dividends, if any, thereon (subject to
the
provisions of Section 607).
ARTICLE
TWELVE
SUBORDINATION
OF SECURITIES
SECTION
1201. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS OF THE
COMPANY.
The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities and all other amounts payable with
respect thereto (collectively the “Subordinated Obligations”) are hereby
expressly made subordinate and postponed to and subject in right of payment
as
provided in this Article to the prior payment in full of all Senior Indebtedness
of the Company. All provisions of this Article Twelve shall be subject to
Section 1215.
78
This
Article 12 shall constitute a continuing offer to all Persons who, in reliance
upon such Article, become holders of, or continue to hold, Senior Indebtedness,
and such provisions are made for the benefit of the holders of Senior
Indebtedness, and such holders are made obligees hereunder and they or each
of
them may enforce such provisions.
SECTION
1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In
the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization or other similar case
or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary, or (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c)
any
general assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event:
(1)
the
holders of Senior Indebtedness of the Company shall receive payment in full
of
all amounts due on or in respect of all Senior Indebtedness of the Company
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character (other than a payment or
distribution (i) from the trust described in Article Four (and specifically
in
Section 404) or (ii) in the form of equity securities or subordinated securities
of the Company or any successor obligor with respect to the Senior Indebtedness
of the Company provided for by a plan of arrangement or reorganization or a
proposal under any Bankruptcy Law that, in the case of any such subordinated
securities, are subordinate in right of payment to all Senior Indebtedness
of
the Company (or such successor obligor) that may at the time be outstanding
to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article (such equity securities or
subordinated securities hereinafter being “Permitted Junior Securities”)) on
account of the Subordinated Obligations; and
(2)
any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than a payment or distribution
(i) from the trust described in Article Four (and specifically in Section 404)
or (ii) in the form of Permitted Junior Securities), including, without
limitation, by way of set-off or enforcement of any guarantee or otherwise,
which the Trustee or the Holders would be entitled to receive and retain but
for
the provisions of this Article shall be paid by the liquidating trustee or
agent
or other person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, immediately and
directly to the holders of Senior Indebtedness of the Company or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to
the
extent necessary to make payment in full of all Senior Indebtedness of the
Company remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of such Senior
Indebtedness; and
79
(3)
in
the event that, notwithstanding the foregoing provisions of this Section, the
Trustee or the Holder of any Security shall have received any payment or
distribution of assets of the Company of any kind or character, whether in
cash,
property or securities, including, without limitation, by way of set-off or
enforcement of any guarantee or otherwise, in respect of the Subordinated
Obligations which such Trustee or the Holder would be entitled to receive and
retain but for the provisions of this Article, before all Senior Indebtedness
of
the Company is paid in full, then and in each such event such payment or
distribution (other than a payment or distribution (i) from the trust described
in Article Four (and specifically in Section 404) or (ii) in the form of
Permitted Junior Securities) shall be held by such recipient in trust and
separate and apart from any of its other property for the benefit of the holders
of Senior Indebtedness of the Company (which trust is hereby declared and
acknowledged), and shall be immediately paid over or delivered forthwith to
the
holders of Senior Indebtedness of the Company or their representative or
representatives for application to the remaining unpaid Senior Indebtedness
to
the extent necessary to make payment in full of all Senior Indebtedness of
the
Company remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of Senior
Indebtedness of the Company; and
(4)
for
greater certainty, any Taxes that have been withheld or deducted from any
payment or distribution in respect of the Securities, or any Taxes that ought
to
have been withheld or deducted from any such payment or distribution that have
been remitted to the relevant taxing authority, shall not be considered to
be an
amount that a Holder or the Trustee is entitled to receive and retain for the
purposes of Section 1202(2), or an amount that a Holder or the Trustee receives
for the purposes of Section 1203(3). For purposes of this paragraph (4), “Taxes”
includes any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed or levied by or on behalf of the Government of
the
United States of America or of any state or territory thereof or by any
authority or agency therein or thereof having power to tax.
The
amalgamation or consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer, lease or other disposal of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set
forth in Article Eight shall not be deemed a dissolution, winding-up,
liquidation, reorganization, arrangement, assignment for the benefit of
creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such amalgamation or
consolidation or into which the Company is merged or the Person which acquires
such assets substantially as an entirety, as the case may be, shall, as a part
of such amalgamation, consolidation, merger, conveyance, transfer, lease or
disposal, comply with the conditions set forth in Article Eight.
80
SECTION
1203. SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR INDEBTEDNESS IN
DEFAULT.
(a)
Unless Section 1202 shall be applicable, upon (1) the occurrence of a Payment
Default and (2) receipt by the Trustee from the Agent (or such other
representative of Designated Senior Indebtedness) of written notice of such
occurrence, no payment or distribution of any assets of the Company of any
kind
or character shall be made by the Company including, without limitation, by
way
of set-off or enforcement of any guarantee or otherwise, on account of the
Subordinated Obligations or on account of the purchase or redemption or other
acquisition of Securities unless and until such Payment Default shall have
been
cured or waived in writing or shall have ceased to exist or such Designated
Senior Indebtedness shall have been paid in full, after which the Company shall
resume making any and all required payments in respect of the Securities,
including any missed payments.
(b)
Unless Section 1202 shall be applicable, upon (1) the occurrence of a
Non-payment Event of Default and (2) receipt by the Trustee from the Agent
(or
such other representative of Designated Senior Indebtedness) of written notice
of such occurrence, then no payment or distribution of any assets of the Company
of any kind or character (other than a payment or distribution (i) from the
trust described in Article Four (and specifically in Section 404) or (ii) in
the
form of Permitted Junior Securities) shall be made by the Company including,
without limitation, by way of set-off or enforcement of any guarantee or
otherwise, on account of the Subordinated Obligations or on account of the
purchase or redemption or other acquisition of Securities for a period (“Payment
Blockage Period”) commencing on the date of receipt by the Trustee of such
notice from the Agent (or such other representative) unless and until (subject
to any blockage of payments that may then be in effect under subsection (a)
of
this Section) (x) more than 179 days shall have elapsed since receipt of such
written notice by such Trustee, (y) such Non-Payment Event of Default shall
have
been cured or waived in writing or shall have ceased to exist or such Designated
Senior Indebtedness shall have been paid in full or (z) such Payment Blockage
Period shall have been terminated by written notice to the Company or the
Trustee from the Agent (or such other representative), after which, in the
case
of clause (x), (y) or (z), the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
Notwithstanding any other provision of this Indenture, in no event shall a
Payment Blockage Period extend beyond 179 days from the date of the receipt
by
the Trustee of the notice referred to in clause (2) above (the “Initial Blockage
Period”). Any number of additional Payment Blockage Periods may be commenced
during the Initial Blockage Period; provided, however, that no such additional
Payment Blockage Period shall extend beyond the Initial Blockage Period. After
the expiration of the Initial Blockage Period, no Payment Blockage Period may
be
commenced until at least 186 consecutive days have elapsed from the last day
of
the Initial Blockage Period. Notwithstanding any other provision of this
Indenture, no event of default with respect to Designated Senior Indebtedness
which existed or was continuing on the date of the commencement of any Payment
Blockage Period initiated by the Agent (or such other representative) for such
Designated Senior Indebtedness shall be, or be made, the basis for the
commencement of a second Payment Blockage Period initiated by the Agent (or
such
other representative) for such Designated Senior Indebtedness, whether or not
within the Initial Blockage Period, unless such event of default shall have
been
cured or waived for a period of not less than 90 consecutive days.
81
(c)
In
the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security which is prohibited by
the
foregoing provisions of this Section, then and in each such event such payment
shall be paid over and delivered forthwith to the Company, and no such payment
so paid over shall be treated as a payment of any amount owing to the Trustee
or
a Holder of a Security.
SECTION
1204. LIENS.
The
Company and the Trustee agree that all of the Subordinated Obligations will
be
unsecured by any Lien (as that term is defined in the Bank Credit Agreement)
upon or with respect to any of the property, assets or undertaking of the
Company. The Trustee agrees that should any Lien (as that term is defined in
the
Bank Credit Agreement) arise, whether by operation of law or otherwise, in
its
favor, it will hold the benefit thereof in trust for the holders of the Senior
Indebtedness of the Company and, so long as any Senior Indebtedness of the
Company is not paid in full, any payment by or on behalf of the Company or
distribution of assets, property or undertaking of the Company with respect
to
any such Lien will be made to the holders of the Senior Indebtedness of the
Company or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented
by
each, to the extent necessary to make payment in full of all Senior Indebtedness
of the Company remaining unpaid, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
SECTION
1205. PAYMENT PERMITTED IF NO DEFAULT.
Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent the Company, at any time except during the pendency
of
any event referred to in clause (a), (b) or (c) of Section 1202 or under the
conditions described in Section 1203, from making payments at any time of
principal of (and premium, if any) or interest on the Securities.
SECTION
1206. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS.
Subject
to the payment in full of all Senior Indebtedness of the Company, the Holders
of
the Securities shall be subrogated (equally and ratably with the holders of
all
indebtedness of the Company which by its express terms is subordinated and
postponed to Senior Indebtedness of the Company to the same extent as the
Securities are subordinated and postponed and which is entitled to like rights
of subrogation) to the rights of the holders of such Senior Indebtedness to
the
extent that payment of Senior Indebtedness has been made under Section 1202
of
this Indenture from amounts otherwise payable to Holders of the Securities,
to
receive payments and distributions of assets of the Company of any kind or
character, whether in cash, property or securities, applicable to the Senior
Indebtedness of the Company until the Subordinated Obligations shall be paid
in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of the Company of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
of the Company by Holders of the Securities or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be or be deemed to be a payment or distribution
by
the Company to or on account of the Senior Indebtedness of the
Company.
82
SECTION
1207. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness of the Company on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is
intended to or shall:
(a)
impair, as between the Company and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders
of
the Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance
with
their terms; or
(b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness
of
the Company; or
(c)
prevent the Trustee or the Holder of any Security from exercising the remedies
otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any proceeding under
any Bankruptcy Law, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness of the Company in respect of cash, property
or
securities of the Company received upon the exercise of any such
remedy.
If
a
holder of Senior Indebtedness or a trustee for such holder shall receive in
such
capacity any amount under this Article and at the time of such receipt such
holder or trustee is not entitled to (whether by reason of maturity,
acceleration or otherwise) such amount under the terms of such Senior
Indebtedness, then such holder or trustee shall turn such amount over to the
Company. Any such amount so received by any holder of Senior Indebtedness or
a
trustee for such holder which such holder or trustee is so required to turn
over
to the Company shall in no circumstances be considered to be a payment on
account of such Senior Indebtedness.
For
greater certainty, if the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which neither such
Trustee nor the Holder is, at the time of such receipt, entitled pursuant to
the
terms of this Indenture read without reference to this Article Twelve, such
payment or distribution shall not be subject to Section 1202 and shall be
promptly remitted by such Trustee or the Holder of the Security, as the case
may
be, to the Company.
SECTION
1208. TRUSTEE TO EFFECTUATE SUBORDINATION; SUBORDINATION AGREEMENTS WITH
AGENT UNDER BANK CREDIT AGREEMENT AND SENIOR DEBT TRUSTEES.
Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes. Upon
the written direction of the Company and upon being furnished with an Officers’
Certificate stating that one or more named persons are holders of Senior
Indebtedness of the Company and specifying the amount and nature of such Senior
Indebtedness, the Trustee, from time to time, for and on behalf of all present
and future Holders of the Securities, shall exercise and deliver deeds of
subordination in favor of the person or persons named or referred to in such
Officers’ Certificate providing that such person or persons and his or their
successors or assigns are entitled to all the rights and benefits of this
Article as the holder or holders of Senior Indebtedness of the Company; provided
that the Company may not request the Trustee to execute one or more
subordination agreements in favor of (x) the Agent or (y) the trustees with
respect to the Company’s Existing Secured Securities or Senior Notes (the
“Senior Debt Trustees”), without, in either case, requesting the Trustee to
execute one or more subordination agreements in favor of each of the Agent
and
the Senior Debt Trustees. An executed counterpart of each such subordination
agreement shall be delivered by such Trustee to the Company and another such
counterpart shall be retained by such Trustee. Nothing contained in this Section
1208 shall impair the rights of any holders of Senior Indebtedness of the
Company in whose favor such subordination agreement has not been so executed
and
delivered.
83
Concurrently
with the execution and delivery of this Indenture, (i) the Company and the
Trustee shall enter into with the Agent, a subordination agreement substantially
in the form of Exhibit F to this Indenture, (ii) the Company and the Trustee
shall enter into with the Senior Debt Trustees a subordination agreement
substantially in the form of Exhibit G to this Indenture.
SECTION
1209. NO WAIVER OF SUBORDINATION PROVISIONS.
(a)
No
right of any present or future holder of any Senior Indebtedness of the Company
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or the Trustee or by any act or failure to act by any such holder, or by any
non-compliance by the Company or the Trustee with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such holder
may have to be otherwise charged with.
(b)
Without in any way limiting the generality of subsection (a) of this Section,
the holders of Senior Indebtedness of the Company may, at any time and from
time
to time, without the consent of or notice to the Trustee or the Holders of
the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness of the Company, do any one or more or of the following:
(1)
change the manner, place or terms of payment or extend the time of payment
of,
or renew or alter, the terms of Senior Indebtedness of the Company or the terms
of any instrument evidencing the same or any agreement under which Senior
Indebtedness of the Company is outstanding (including, without limitation,
any
increase in the aggregate principal amount of any indebtedness) thereunder,
it
being understood that any such additional indebtedness shall not constitute
Senior Indebtedness to the extent incurred in violation of Section 1007 of
this
Indenture); (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness of the Company;
(3)
release any Person liable in any manner for the collection of Senior
Indebtedness of the Company; and (4) exercise or refrain from exercising any
rights against the Company and/or any other Person.
84
(c)
If
the Trustee on behalf of the Holders or any Holders should fail to file a proof
of claim in any bankruptcy, insolvency, receivership or similar proceeding
relating to the Company at least 30 days before the expiration of the time
to
file such claim or claims, each holder of Senior Indebtedness of the Company
(or
its representative) is hereby authorized to file an appropriate claim for and
on
behalf of all or any of the Holders.
SECTION
1210. NOTICE TO THE TRUSTEE.
(a)
The
Company shall give prompt written notice to the Trustee of any fact known to
it
which would prohibit the making of any payment or distribution to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company, the Agent, a representative for the holders of Senior Indebtedness
of
the Company or any trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions
of
Section 602, shall be entitled in all respects to assume that no such facts
exist; provided, however, that, if the Trustee shall not have received the
notice provided for in this Section or Section 1203 hereof prior to the date
on
which by the terms of this Indenture any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on or any amounts payable in connection with any
Security), then, anything herein contained to the contrary notwithstanding,
the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected with respect to such action taken by any notice to the contrary which
may be received by it on or after such date.
(b)
Subject to the provisions of Trust Indenture Act Sections 315(a) through (d),
the Trustee shall be entitled to rely on any written notice delivered to it
from
time to time by the Agent or a representative for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness of the Company and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve. In the event
that the Trustee determines in good faith that further evidence is required
with
respect to the right of any Person as a holder of Senior Indebtedness of the
Company to participate in any payment or distribution pursuant to this Article,
such Trustee may request such Person to furnish evidence to the reasonable
satisfaction of such Trustee as to the amount of Senior Indebtedness of the
Company held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to
the
rights of such Person under this Article and, if such evidence is not furnished,
such Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
85
SECTION
1211. RELIANCE ON BANKRUPTCY ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon
any
payment or distribution of assets of the Company referred to in this Article,
the Trustee, subject to the provisions of Trust Indenture Act Sections 315(a)
through (d), and the Holders of the Securities shall be entitled to rely on
any
bankruptcy order entered by any court of competent jurisdiction, or a
certificate of (i) the trustee in bankruptcy as to matters over which it has
authority, (ii) a receiver under the Deed of Trust or any other receiver whose
certificate is agreed to by the Deed Trustee, or (iii) assignee for the benefit
of all unsecured creditors as to matters over which it has authority, delivered
to the Trustee or to the Holders of Securities from time to time by any Person,
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness of the Company
and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION
1212. RIGHTS OF THE TRUSTEE AS HOLDERS OF SENIOR INDEBTEDNESS OF THE
COMPANY; PRESERVATION OF TRUSTEE’S RIGHTS.
Subject
to the terms of this Article, the Trustee in its individual capacity shall
be
entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness of the Company which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness of the Company, and nothing
in
this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
SECTION
1213. ARTICLE APPLICABLE TO PAYING AGENT.
In
case
at any time any Paying Agent other than the Trustee shall have been appointed
by
the Company and be then acting hereunder, the term “Trustee” as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully
for
all intents and purposes as if such Paying Agent were named in this Article
in
addition to or in place of the Trustee, provided, however, that Section 1212
shall not apply to the Company, any Restricted Subsidiary or any Affiliate
of
the Company or any Restricted Subsidiary if any of them or any such Affiliate
acts as Paying Agent.
SECTION
1214. NO SUSPENSION OF REMEDIES.
Nothing
contained in this Article shall limit the right of the Trustee or the Holders
of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Five or to pursue any rights or remedies hereunder or under
applicable law; provided, however, that, upon the occurrence and during the
continuance of an Event of Default under this Indenture, neither the Trustee
nor
any Holder shall be entitled to accelerate the maturity of all or any of the
Subordinated Obligations until the earlier to occur of the fifth Business Day
following the receipt by the Company and the Agent of a written declaration
of
acceleration as provided in Section 502 and the date of acceleration in full
of
the Designated Senior Indebtedness. The Trustee agrees that it will immediately
upon receipt by it of a notice of Default under this Indenture, or the cure
or
waiver of such Default, immediately give notice of same to the Deed
Trustee.
86
SECTION
1215. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding
anything contained herein to the contrary, payments from cash or the proceeds
of
U.S. Government Obligations held in trust under Article Four of this Indenture
by the Trustee (or such other trustee who shall have satisfied the requirements
of Section 609 and who shall agree to comply with the provisions of Article
Four
applicable to it) and which were deposited in accordance with the terms of
Article Four of this Indenture and not in violation of Section 1203 of this
Indenture for the payment of principal of (and premium, if any) and interest
on
the Securities shall not be subordinated to the prior payments of any Senior
Indebtedness of the Company or subject to the restrictions set forth in this
Article Twelve and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Indebtedness of the Company or
any
other creditor of the Company; provided, however, the Company will not exercise
such defeasance without the prior written consent of the Banks holding in the
aggregate at least 66-2/3% of the available commitments under the Bank Credit
Agreement and the Company must provide the Trustee with written evidence of
such
prior written consent before it may exercise its defeasance option.
SECTION
1216. ASSIGNMENT BY HOLDERS OF SENIOR INDEBTEDNESS.
(a)
No
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities made to the holders of Senior
Indebtedness of the Company (1) under Section 1202(2) by a liquidating trustee
or agent or other person or (2) under Section 1202(3) by the Trustee or a Holder
shall, to the extent that such payment or distribution to the holders of Senior
Indebtedness has been made from amounts otherwise payable to the Holders of
the
Securities, as between the Company and the holders of Senior Indebtedness to
whom such payment or distribution was made, constitute or be deemed to be a
payment on account of such Senior Indebtedness. If the Trustee or the Holders
are not for any reason entitled to be subrogated to the rights of holders of
Senior Indebtedness in respect of such payment or distribution, then, subject
to
clause (b) of this Section, each holder of Senior Indebtedness to whom any
such
payment or distribution is made will promptly after request by the Trustee
assign its Senior Indebtedness to the extent of such payment or distribution
and
all rights with respect thereto (excluding any rights to any security) to the
Trustee on behalf of the Holders.
(b)
A
holder of Senior Indebtedness of the Company shall not be required to provide
an
assignment under clause (a) of this Section if (i) such holder, acting
reasonably, concludes that there is a likelihood that the granting of such
assignment on the terms of the relevant assignment agreement would cause such
holder to be liable to any other Person or (ii) all Senior Indebtedness of
the
Company shall not have been paid in full.
SECTION
1217. PAYMENTS BY AFFILIATES.
At
any
time when the provisions of Section 1202(a), (b) or (c) or 1203(a) or (b) shall
be applicable, the Company will not permit any Affiliate of the Company to
make
any payment or distribution of assets for or on behalf of the Company to the
Trustee or to any Holder that the Company or any obligor or guarantor with
respect to the Subordinated Obligations would be prohibited from making under
any of such Sections (or the equivalent provisions with respect to such obligor
or guarantor), without the prior written consent of
87
the
Banks
holding in the aggregate at least 66-2/3% of the commitments under the Bank
Credit Agreement (it being understood that, upon receipt of such consent,
nothing in this Article shall be deemed to prevent, and such Affiliate shall
be
entitled to make, any such payment).
*
*
*
88
This
Indenture may be signed in any number of counterparts with the same effect
as if
the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
Indenture.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed and attested, all as of the day and year first above
written.
|
▇▇▇▇▇▇
WIRELESS INC.
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||
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By:
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/s/ M.
▇▇▇▇▇▇▇▇ ▇▇▇▇
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|
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Name:
|
▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Title:
|
Vice-President,
Treasurer
|
|
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By:
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/s/ ▇▇▇▇ ▇.
▇▇▇▇
|
|
|
Name:
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▇▇▇▇
▇. ▇▇▇▇
|
|
|
Title:
|
Vice-President
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|
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Attest:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
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JPMORGAN
CHASE BANK
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||
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇
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|
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇
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|
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Title:
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Trust
Officer
|
|
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Attest:
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/s/
▇. ▇’▇▇▇▇▇
|
89
EXHIBIT
A
PROVISIONS
FOR INTER-COMPANY DEEPLY SUBORDINATED DEBT
1.1
Terms defined in the Indenture in respect of the 8.00% Senior Subordinated
Notes
due 2012 dated as of November 30, 2004 (the “Indenture”) between ▇▇▇▇▇▇ Wireless
Inc. (the “Company”) and JPMorgan Chase Bank, N.A., as trustee (the “Trustee”),
and used herein have the meanings attributed to such terms in the
Indenture.
2.1
AGREEMENT TO SUBORDINATE. The indebtedness evidenced by this agreement or
instrument shall constitute Inter-Company Deeply Subordinated Debt and the
Company and the relevant creditor who is owed such indebtedness (the “Relevant
Creditor”) agree that such indebtedness (including, without limitation,
principal, interest, premium, fees, penalties, indemnities and “post-petition
interest” in bankruptcy) is subordinate and junior in right of payment, to the
extent and in the manner provided in this Section 2, to the prior payment in
full of all Senior Indebtedness and Indenture Obligations of the Company now
or
hereafter existing.
The
Company agrees to hold the benefit of these provisions as incorporated in this
agreement or this instrument as trustee for and on behalf of the holders, from
time to time, of Senior Indebtedness, the Trustee and the Holders and the
Company shall be a party to the agreement or instrument in such capacity and
shall give the Relevant Creditor (and the Company on its own behalf) one dollar
as valuable consideration in respect of the agreements given to it in such
capacity as trustee.
The
provisions of this Section 2 are for the benefit of the holders from time to
time of Senior Indebtedness and the Holders, and such holders or Holders are
hereby made obligees hereunder to the same extent as if their names were written
herein as such, and they (collectively or singly) may proceed to enforce such
provisions.
2.2
LIQUIDATION; DISSOLUTION; BANKRUPTCY. (a) Upon any distribution of assets of
the
Company to creditors or upon a liquidation or dissolution or winding-up of
the
Company or in a bankruptcy, arrangement, liquidation, reorganization,
insolvency, receivership or similar case or proceeding relating to the Company
or its property or other marshalling of assets of the Company:
(i)
the
holders of Senior Indebtedness shall be entitled to receive payment in full
of
all Senior Indebtedness and, if all such Senior Indebtedness shall have been
paid in full, the Trustee and the Holders shall be entitled to receive payment
in full of all Indenture Obligations before the Relevant Creditor shall be
entitled to receive any payment of principal of or interest on, or any other
amount owing in respect of, the indebtedness evidenced by this agreement or
instrument;
(ii)
until payment in full of all Senior Indebtedness and, if all such Senior
Indebtedness shall have been paid in full, the Indenture Obligations, any
distribution of assets of any kind or character to which the Relevant Creditor
would be entitled but for this Section 2 shall be paid by the Company or by
any
receiver, trustee in bankruptcy, liquidating trustee, agents or other Persons
making such payment or distribution to, or if received by the Relevant Creditor
shall be held for the benefit of and shall be forthwith paid or delivered to,
the holders of Senior Indebtedness, as their interests may appear, and if all
such Senior Indebtedness shall have been paid in full, the Trustee and Holders
in respect of the Indenture Obligations; and
90
(iii)
in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Relevant Creditor before all Senior
Indebtedness is paid in full, and, if all such Senior Indebtedness shall have
been paid in full before all Indenture Obligations are paid in full, such
payment or distribution shall be held in trust for the benefit of and shall
be
paid over to the holders of Senior Indebtedness, as their interests may appear,
and if all such Senior Indebtedness shall have been 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 the Holders in respect of the Indenture Obligations, first,
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, and second, for application to the payment of all Indenture
Obligations until all Indenture Obligations shall have been paid in full after
giving effect to any concurrent payment or distribution to the Trustee or the
Holders in respect of such Indenture Obligations.
For
purposes hereof, the words “cash, property or securities” shall be deemed not to
include Permitted Junior Securities of the Company or any other Person provided
for by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided herein with respect to the
indebtedness evidenced by this agreement or instrument, to the payment of all
Senior Indebtedness and Indenture Obligations which may be at the time
outstanding; provided, however, that (i) all Senior Indebtedness or Indenture
Obligations, as the case may be, are assumed by the new Person, if any,
resulting from any such reorganization or readjustment, and (ii) the rights
of
the holders of Senior Indebtedness and the Holders are not, without the consent
of such holders or the Holders, as the case may be, altered by such
reorganization or readjustment.
(b)
If
the Relevant Creditor does not file proper claims or proofs of claim in the
form
required in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property prior to 45 days before
the
expiration of the time to file such claims, then (i) upon the request of the
representative or representatives of the holders of Senior Indebtedness or
the
trustee or trustees under any indenture under which any instrument evidencing
such Senior Indebtedness may have been issued, or the Trustee, the Relevant
Creditor shall file such claims and proofs of claim in respect of the
indebtedness evidenced by this agreement or instrument and execute and deliver
such powers of attorney, assignments and proofs of claim as may be directed
by
the representative or representatives of the holders of Senior Indebtedness,
or
the trustee or trustees under any indenture under which any instrument
evidencing such Senior Indebtedness may have been issued, or the Trustee to
enable it to enforce any and all claims upon or in respect of the indebtedness
evidenced by this agreement or instrument and to collect and receive any and
all
payments or distributions which may be payable or deliverable at any time upon
or in respect of the indebtedness evidenced by this agreement or instrument,
and
(ii) whether or not the representative or representatives of the holders of
Senior Indebtedness, or the trustee or trustees under any indenture under which
any instrument evidencing such Senior Indebtedness may have been issued, or
the
Trustee shall take the action described in clause (i) above, the representative
or representatives of the holders of Senior Indebtedness, or the trustee or
trustees under any indenture under which any instrument evidencing such Senior
Indebtedness may have been issued, or the Trustee, as the case may be, shall
nevertheless be deemed to have such powers of attorney as may be necessary
to
file appropriate claims and proofs of claim and otherwise exercise the powers
described above.
91
For
purpose of this Section 2, “payment in full”, with respect to any indebtedness,
means the receipt on an irrevocable basis of cash in an amount equal to the
unpaid principal amount of such indebtedness and premium, if any, and interest
thereon to the date of such payment, together with all other amounts owing
with
respect to such indebtedness.
2.3
SENIOR INDEBTEDNESS, INDENTURE OBLIGATIONS. (a) The Company shall not pay any
principal, interest or premium on the indebtedness evidenced by this agreement
or instrument, acquire the indebtedness evidenced by this agreement or
instrument for cash or property other than capital stock of the Company, or
make
any loans, advances or extensions of credit to the Relevant Creditor with
respect to the indebtedness evidenced by this agreement or instrument, or pay
or
acquire any obligation or liability upon which the Relevant Creditor is the
obligor, and the Relevant Creditor shall not demand, accept or receive any
payment of any principal, interest or premium on the indebtedness evidenced
by
this agreement or instrument or any such cash, property (other than capital
stock of the Company), loans, advances or extensions of credit at any time
when:
(i)
a
default in the payment of any Indenture Obligations has occurred, whether at
maturity or at a date fixed for prepayment or by declaration of an acceleration
or otherwise, and such default either (A) shall be continuing or (B) shall
not
have been cured and shall have been waived by the Holders on the express
condition that payments on and acquisitions of the indebtedness evidenced by
this agreement or instrument by the Company be prohibited pursuant to this
clause (i); or
(ii)
any
default (other than as described in clause (i) of this Section 2.3(a)) under
any
agreement or instrument evidencing Indenture Obligations shall have occurred
and
either (x) shall be continuing or (y) shall not have been cured and shall have
been waived by the Holders on the express condition that payments on or
acquisition of the indebtedness evidenced by this agreement or instrument be
prohibited pursuant to this clause (ii); or
(iii)
such payment of principal, interest or premium on the indebtedness evidenced
by
this agreement or instrument, or acquisition of the indebtedness evidenced
by
this agreement or instrument for cash or property other than capital stock
of
the Company would cause a Default or Event of Default under the
Indenture.
(b)
If at
any time when a payment on the indebtedness evidenced by this agreement or
instrument is due, the Company would (but for this subsection (b)) be prohibited
by Section 2.3(a) from making such payment, the Company shall nonetheless be
obligated to make such payment if all of the Holders with respect to which
any
default shall have occurred shall have consented thereto in
writing.
92
(c)
If,
notwithstanding the foregoing, any payment of any kind or character, whether
in
cash, property or otherwise, shall be received by the Relevant Creditor before
all Senior Indebtedness in respect of which a Payment Default or Non-Payment
Event of Default shall have occurred is paid in full, and, if all such Senior
Indebtedness shall have been paid in full, the Indenture Obligations are paid
in
full, such payment shall be held in trust for the benefit of and shall be paid
over to the holders of such Senior Indebtedness, as their interests may appear,
and, if all such Senior Indebtedness shall have been paid in full, the Trustee
and the Holders in respect of the Indenture Obligations, first, for application
to the payment of all such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full after giving effect to any concurrent
payment to the holders of such Senior Indebtedness in respect of such Senior
Indebtedness, and second, for application to the payment of all Indenture
Obligations until all Indenture Obligations shall have been paid in full after
giving effect to any concurrent payment or distribution to the Trustee or the
Holders in respect of such Indenture Obligations.
2.4
SUBROGATION. After all Senior Indebtedness or Indenture Obligations are
paid in full and until the indebtedness evidenced by this agreement or
instrument is paid in full, the Relevant Creditor shall be subrogated to the
rights of the holders of Senior Indebtedness or the Holders, as the case may
be.
For purposes of this Section 2.4, a distribution made under this Section 2
to
holders of Senior Indebtedness or Holders which otherwise would have been made
to the Relevant Creditor, or a payment made by the Relevant Creditor to holders
of Senior Indebtedness or Holders in respect of a turnover obligation under
this
Section 2, is not, as between the Company and such holders or Holders, a payment
by the Company on account of Senior Indebtedness or Indenture
Obligations.
2.5
RELATIVE RIGHTS. This Section 2 defines the relative rights of the Relevant
Creditor on the one hand and the holders of Senior Indebtedness and the Holders
on the other hand. Nothing in this Section 2 shall:
(a)
impair, as between the Company and the Relevant Creditor, the obligation of
the
Company, which is absolute and unconditional, to pay the principal of and
interest on the indebtedness evidenced by this agreement or instrument in
accordance with its terms; or
(b)
affect the relative rights of the Relevant Creditor on the one hand and
creditors of the Company other than the holders of Senior Indebtedness or
Holders on the other hand; or
(c)
affect the relative rights of the holders of Senior Indebtedness and Holders
among themselves; or
(d)
prevent the Relevant Creditor from exercising its available remedies upon a
default, subject to Section 2.3 hereof and the rights of the holders of Senior
Indebtedness or the Holders to receive cash, property or other assets otherwise
payable to the Relevant Creditor.
2.6
SUBORDINATION MAY NOT BE IMPAIRED. (a) No right of any holder of Senior
Indebtedness, the Trustee or any Holder to enforce the subordination of
indebtedness evidenced by this agreement or instrument shall in any way be
prejudiced or impaired by any act or failure to act by the Company or by any
act
or failure to act in good faith, by any such holder, the Trustee or any Holder
or by any non-compliance by the Company with the terms, provisions or covenants
herein, regardless of any knowledge thereof which any such holder, the Trustee
or any such Holder may have or be otherwise charged with. Neither the
subordination of the indebtedness represented by this agreement or instrument
as
herein provided nor the rights of the holders of Senior Indebtedness, the
Trustee and the Holders 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 Indenture Obligations or any exercise or
non-exercise of any right, power or remedy with respect thereto.
93
(b)
The
Relevant Creditor agrees that all indebtedness evidenced by this agreement
or
instrument will be unsecured by any Lien upon or with respect to any property
of
the Company, and that the Relevant Creditor will not permit to subsist any
Liens
upon its claim in respect of or upon the proceeds of the indebtedness
represented by this agreement or instrument.
(c)
The
Relevant Creditor agrees not to exercise any offset or counterclaim or similar
right in respect of the indebtedness evidenced by this agreement or instrument
except to the extent payment of such indebtedness is permitted and will not
assign or otherwise dispose of this agreement or instrument or the indebtedness
which it evidences unless the assignee or acquiror, as the case may be, agrees
to be bound by the terms of this Section 2.
2.7
RELEVANT CREDITOR ENTITLED TO RELY. Upon any payment or distribution pursuant
to
this Section 2, the Relevant Creditor shall be entitled to rely (i) upon any
order or decree of a court of competent jurisdiction in which any proceedings
of
the nature referred to in Section 2.2 are pending, (ii) upon a certificate
of
the liquidating trustee or agent or other person in such proceedings making
such
payment or distribution to the Relevant Creditor or its representative, if
any,
or (iii) upon a certificate of the Trustee or any representative (if any) of
holders of Senior Indebtedness or Holders for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Section 2.
3.1
MISCELLANEOUS. (a) The provisions contained herein may not be amended or
modified in any respect, nor may any of the terms or provisions hereof be
waived, except by an instrument signed by the Company, the Relevant Creditor
and
the Trustee.
(b)
The
provisions contained herein shall be binding upon each of the parties to this
agreement or instrument and their respective successors and assigns and shall
inure to the benefit of the Trustee, each and every holder of Senior
Indebtedness and each and every Holder and their respective successors and
assigns.
(c)
The
provisions contained herein shall be governed by and construed in accordance
with the laws of the State of New York.
(d)
The
Relevant Creditor and the Company each hereby irrevocably agrees that any suits,
actions or proceedings arising out of or in connection with the provisions
contained herein may be brought in any state or federal court sitting in The
City of New York or any court in the Province of Ontario and submits and attorns
to the non-exclusive jurisdiction of each such court.
94
EXHIBIT
B
PROVISIONS
FOR INTER-COMPANY SUBORDINATED DEBT
1.
Unless
otherwise provided in this Exhibit B, terms defined in the Indenture in respect
of the 8.00% Senior Subordinated Notes due 2012 dated as of November 30, 2004
(the “Indenture”) between ▇▇▇▇▇▇ Wireless Inc. (the “Company”) and JPMorgan
Chase Bank, N.A., as trustee (the “Trustee”), and used herein have the meanings
attributed to such terms in the Indenture.
2.
The
indebtedness evidenced by this agreement or instrument shall constitute
Inter-Company Subordinated Debt and the Company and the relevant creditor who
is
owed such indebtedness (the “Relevant Creditor”) agree that the payment of the
principal of (and premium, if any), and interest on such indebtedness is
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness
and
Indenture Obligations of the Company now or hereafter existing. The Company
agrees to hold the benefit of these provisions as incorporated in the agreement
or the instrument as trustee for and on behalf the holders of Senior
Indebtedness, the Trustee and the Holders and the Company shall be a party
to
the agreement or instrument in such capacity and shall give the Relevant
Creditor (and the Company on its own behalf) one dollar as valuable
consideration in respect of the agreements given to it in such capacity as
trustee.
3.
For
purposes hereof, the words “cash, property or securities” shall not be deemed to
include Permitted Junior Securities of the Company or any other Person provided
for by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided herein with respect to the
indebtedness evidenced by this agreement or instrument, to the payment of all
Senior Indebtedness and Indenture Obligations which may be at the time
outstanding; provided, however, that (i) all Indenture Obligations are assumed
by the new Person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the Holders are not, without the consent
of
the Holders, altered by such reorganization or readjustment.
4.
Upon
any distribution of assets of the Company to creditors or upon a liquidation
or
dissolution or winding-up of the Company or in a bankruptcy, arrangement,
liquidation, reorganization, insolvency, receivership or similar case or
proceeding relating to the Company or its property or other marshalling of
assets of the Company:
(a)
the
holders of Senior Indebtedness shall be entitled to receive payment in full
of
all Senior Indebtedness and, if all such Senior Indebtedness shall have been
paid in full, the Trustee and the Holders shall be entitled to receive payment
in full of all Indenture Obligations before the Relevant Creditor shall be
entitled to receive any payment of principal of or interest on, or any other
amount owing in respect of, the indebtedness evidenced by this agreement or
instrument;
(b)
until
payment in full of all Senior Indebtedness and, if all such Senior Indebtedness
shall have been paid in full, the Indenture Obligations, any distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Relevant Creditor would be entitled to except for
the
provisions hereof shall be paid by the liquidating trustee or agent or other
persons making such payment or distribution, whether a trustee in bankruptcy,
a
receiver or liquidating trustee or otherwise, to, or if received by the Relevant
Creditor shall be held for the benefit of and shall be forthwith paid or
delivered to, the holders of Senior Indebtedness, as their interests may appear,
and if all such Senior Indebtedness shall have been paid in full, the Trustee
and Holders in respect of the Indenture Obligations; and
95
(c)
in
the event that, notwithstanding the foregoing, any payment or distribution
of
assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Relevant Creditor before all Senior
Indebtedness is paid in full, and, if all such Senior Indebtedness shall have
been paid in full, the Indenture Obligations are paid in full, such payment or
distribution shall be held in trust for the benefit of and shall be paid over
to
the holders of Senior Indebtedness, as their interests may appear, and, if
all
such Senior Indebtedness shall have been paid in full, the Trustee and the
Holders in respect of the Indenture Obligations, first, 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,
and
second, for application to the payment of all Indenture Obligations until all
Indenture Obligations shall have been paid in full after giving effect to any
concurrent payment or distribution to the Trustee or the Holders in respect
of
such Indenture Obligations.
5.
Upon
any payment or distribution of assets of the Company referred to in this
agreement or instrument, the Relevant Creditor shall be entitled to rely (i)
upon any order or decree of a court of competent jurisdiction in which any
proceedings of the nature referred to in Section 4 are pending, (ii) upon a
certificate of the liquidating trustee or agent or other person in such
proceedings making such payment or distribution to the Relevant Creditor or
its
representative, if any, or (iii) upon a certificate of any representative (if
any) of the holders of Senior Indebtedness or the Trustee for the purpose of
ascertaining the identity of such holders or Holders, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to the subordination
contemplated by this agreement or instrument.
6.
Nothing contained herein is intended to or shall impair, as between the Company
and its creditors (other than the holders of Senior Indebtedness as regards
the
Senior Indebtedness and the Holders as regards the Indenture Obligations, on
the
one hand, and the Relevant Creditor, on the other hand) the obligation of the
Company, which is unconditional and absolute, to pay to the Relevant Creditor
the principal of and premium, if any, and interest on the Debt owing to the
Relevant Creditor as and when the same shall become due and payable in
accordance with its terms or affect the relative rights of the Relevant Creditor
and creditors of the Company other than the holders of Senior Indebtedness
as
regards the Senior Indebtedness and the Holders as regards the Indenture
Obligations, nor shall anything herein or therein prevent the Relevant Creditor
from exercising all remedies otherwise permitted by applicable law upon default
with respect to the Debt owing to the Relevant Creditor subject to the rights,
if any, herein of the holders of Senior Indebtedness as regards the Senior
Indebtedness and the Holders as regards the Indenture Obligations in respect
of
cash, property or securities of the Company received upon the exercise of any
such remedy.
96
7.
Upon
the maturity of any Securities by lapse of time, acceleration or otherwise,
then, except as hereinafter provided, all principal of and premium, if any,
and
interest on all such matured Securities and all other Indenture Obligations
shall first be paid in full or shall have first been duly provided for before
any payment on account of principal of or premium, if any, or interest owing
to
the Relevant Creditor is made.
8.
Upon
the happening of an Event of Default permitting the Holders (or any of them)
to
accelerate the maturity of the Indenture Obligations, then, unless and until
such Event of Default shall have been cured or waived or shall have ceased
to
exist, no payment (including, without limitation, by purchase of the Debt owing
to the Relevant Creditor or otherwise) shall be made by the Company with respect
to the principal of or premium, if any, or interest on the indebtedness
represented by this agreement or instrument owing to the Relevant Creditor.
In
the event that, notwithstanding the foregoing, the Company shall make any
payment of principal of or premium, if any, or interest on the Debt owing to
the
Relevant Creditor after the happening of such Event of Default, then, except
as
hereinafter otherwise provided, unless and until such Event of Default shall
have been cured or waived or have ceased to exist, such payment shall be held
in
trust first, for the benefit of and, if and when such Senior Indebtedness in
respect of which an Event of Default shall have occurred shall have become
due
and payable, shall be paid over to the holders of such Senior Indebtedness
and
applied to the payment of all such Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, and second, for
the
benefit of and, if and when such Indenture Obligations shall have become due
and
payable, shall be paid over to the holders of such Indenture Obligations and
applied to the payment of all Indenture Obligations remaining unpaid until
all
such Indenture Obligations shall have been paid in full.
9.
The
fact that any payment to the Relevant Creditor is prohibited hereby shall not
prevent the failure to make such payment from being an event of default as
regards such Relevant Creditor.
10.
Nothing contained herein or in any agreement, indenture or other instrument
in
respect of the Debt owing to the Relevant Creditor shall, subject to Section
7:
(a)
prevent the Company at any time from making payments at any time of the
principal of and premium, if any, or interest to the Relevant Creditor on
account of Inter-Company Subordinated Debt unless:
(i)
such
payment is proposed to be made on or after the date upon which any Event of
Default or any of the events described in Section 4 has occurred in
circumstances where notice of such proposed payment shall have been given by
the
Relevant Creditor or the Company to the Trustee prior to the happening of such
Event of Default; or
(ii)
such
payment would otherwise occur while any proceedings in respect of the
dissolution, arrangement, winding-up, liquidation, reorganization, bankruptcy,
insolvency, receivership, assignment for the benefit of creditors or other
marshalling of assets or liabilities of the Company are pending; or
97
(b)
prevent the Company from applying to the retirement of any Inter-Company
Subordinated Debt the proceeds of a substantially concurrent issue of other
Inter-Company Subordinated Debt or of shares of any class of the Company;
or
(c)
except in circumstances to which clauses (a)(i) or (ii) are applicable, require
the Relevant Creditor to pay to the holders of Senior Indebtedness, the Trustee
or the Holders, or to repay to the Company, any amount so paid.
11.
Unless and until written notice shall be given to the Relevant Creditor by
or on
behalf of any holder of Senior Indebtedness or any representative or
representatives of any such holder, or the Trustee (it being understood that
nothing herein shall create any obligation on the part of such representative
or
representatives or the Trustee to give any such notice), notifying the Relevant
Creditor of the happening of an Event of Default or of the existence of any
other facts which would result in the making of any payment with respect to
the
Debt owing to the Relevant Creditor in contravention of the provisions hereof,
the Relevant Creditor shall be entitled to assume that no such Event of Default
has occurred or that no such facts exist; and, with respect to any monies which
may at any time be received by the Relevant Creditor in trust pursuant to any
provisions hereof prior to the receipt by it of such written notice, nothing
herein shall prevent the Relevant Creditor from applying such monies to the
purposes for which the same were so received, notwithstanding the occurrence
or
continuance of an Event of Default with respect to, or the existence of such
facts with respect to, the Senior Indebtedness or Indenture Obligations, unless
the Relevant Creditor has actual knowledge to the contrary.
12.
(a)
No right of any holder of Senior Indebtedness as regards the Senior Indebtedness
or the Trustee or any Holder as regards the Indenture Obligations to enforce
subordination as provided herein shall at any time in any way be prejudiced
or
impaired by any act or failure to act on the part of the Company or by any
act
or failure to act, in good faith, by any such holder, Holder or the Trustee,
or
by any non-compliance by the Company with the terms, provisions or covenants
herein, regardless of any knowledge thereof which any holder, Holder or the
Trustee may have or be otherwise charged with.
(b)
The
rights of holders of Senior Indebtedness, the Trustee and the Holders with
respect hereto shall not be affected by any extension, renewal or modification
of the terms, or the granting of any security in respect of, any Senior
Indebtedness or any exercise or non-exercise of any right, power or remedy
with
respect thereto.
(c)
The
Relevant Creditor agrees not to exercise any offset or counterclaim or similar
right in respect of the Inter-Company Subordinated Debt except to the extent
payment of such Inter-Company Subordinated Debt is permitted and will not assign
or otherwise dispose of any Inter-Company Subordinated Debt unless the assignee
or acquiror, as the case may be, agrees to be bound by the terms
hereof.
13.
The
provisions contained herein
(a)
may
not be amended or modified in any respect, nor may any of the terms or
provisions hereof be waived, except by an instrument signed by the Company,
the
Relevant Creditor and the Trustee,
98
(b)
shall
be binding upon each of the parties hereto and their respective successors
and
assigns and shall enure to the benefit of the Trustee, each and every holder
of
Senior Indebtedness, and each and every Holder and their respective successors
and assigns,
(c)
shall
be governed by and construed in accordance with the laws of the State of New
York.
The
Relevant Creditor and the Company each irrevocably agree that any suits, actions
or proceedings arising out of or in connection with the provisions contained
herein may be brought in any state or federal court sitting in The City of
New
York or any court in the Province of Ontario and submits and attorns to the
non-exclusive jurisdiction of each such court.
99
EXHIBIT
C
FORM
OF
CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS
FROM
RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
[date]
JPMorgan
Chase Bank, N.A.
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ Floor
New
York,
New York 10004
|
Re:
▇▇▇▇▇▇
Wireless
Inc.
(the
“Company”) 8.00% Senior Subordinated Notes
due
2012 (the “Securities”)
|
Ladies
and Gentlemen:
This
letter relates to $_______ principal amount of Securities which are evidenced
by
the Restricted Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) and held with the
Depositary in the name of Cede & Co. and held for the benefit of __________
(the beneficial owner) (the “Transferor”). The Transferor has requested a
transfer of such beneficial interest in the Securities to a Person who will
take
delivery thereof in the form of an equal principal amount of Securities
evidenced by the Regulation S Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇).
In
connection with such request and in respect of such Securities, we hereby
certify that such transfer has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the “Securities Act”), and accordingly we
hereby further certify that:
(A)
if
the transfer has been effected pursuant to Rule 903 or Rule 904:
(1)
the
offer of the Securities was not made to a person in the United
States;
(2)
either (a) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated off-shore securities
market and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United
States;
100
(3)
no
directed selling efforts have been made in the United States in contravention
of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
and
(4)
the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
(B)
If
the transfer has been effected pursuant to Rule 144, the Securities have been
transferred in a transaction permitted by Rule 144 under the Securities
Act.
Upon
giving effect to this request to exchange a beneficial interest in such
Restricted Global Security for a beneficial interest in a Regulation S Global
Security, the resulting beneficial interest shall be subject to the restrictions
on transfer applicable to Regulation S Global Security pursuant to the Indenture
and the Securities.
You
and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
|
Very
truly yours,
|
|
|
[Name
of Transferor]
|
|
|
By:
|
|
|
Authorized
Signature
|
|
101
EXHIBIT
D
FORM
OF
CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS
FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED
GLOBAL SECURITY
JPMorgan
Chase Bank, N.A.
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ Floor
New
York,
New York 10004
|
Re: ▇▇▇▇▇▇
Wireless Inc.
(the
“Company”) 8.00% Senior Subordinated Notes
due
2012 (the “Securities”)
|
Ladies
and Gentlemen:
This
letter relates to $_______ principal amount of the Securities which are
evidenced by the Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) and held
with the Depositary in the name of Cede & Co. and held for the benefit of
__________ (the beneficial owner) (the “Transferor”). The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal principal amount of
Securities evidenced by the Restricted Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇),
to
be held with the Depositary.
In
connection with such request and in respect of such Securities, the Transferor
hereby certifies that such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a “qualified
institutional buyer” within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
Upon
giving effect to this request to exchange a beneficial interest in Regulation
S
Global Securities for a beneficial interest in the Restricted Global Security,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to the U.S Global Securities pursuant to the Indenture
and
the Securities Act.
102
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under
the
Securities Act.
|
Very
truly yours
|
|
|
[Name
of Transferor]
|
|
|
By:
|
|
103
EXHIBIT
E
FORM
OF
CERTIFICATE FOR TRANSFER OR
EXCHANGE
AFTER TWO YEARS
JPMorgan
Chase Bank, N.A.
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ Floor
New
York,
New York 10004
|
Re: ▇▇▇▇▇▇
Wireless Inc.
(the
“Company”) 8.00% Senior Subordinated Notes
due
2012 (the “Securities”)
|
Ladies
and Gentlemen:
[For
transfers: This letter relates to $____________ principal amount of Securities
which are evidenced by a Restricted Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇) and
held with the Depositary in the name of Cede & Co. [and held for the benefit
of _________________] (the “Beneficial Owner”). The Beneficial Owner has
requested that its beneficial interest in such Securities be transferred to
a
Person that will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the Regulation S Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇).
In
connection with such request and in respect of such Securities, the Beneficial
Owner does hereby certify that upon such transfer, (a) a period of at least
two
years will have elapsed since _____, 2004, (b) the Beneficial Owner during
the
three months preceding the date of such transfer was not an “affiliate” of the
Company (as defined in Rule 144 under the Securities Act), and it was not acting
on behalf of such an affiliate and (c) such Person to whom such transfer is
being made is not an “affiliate” of the Company.]
[For
exchanges: This letter relates to $_______________ principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇) and held with the Depositary in the name of Cede & Co. [and held
for the benefit of ] _______] (the “Beneficial Owner”). The Beneficial Owner has
requested that its beneficial interest in such Securities be exchanged for
a
beneficial interest in an equal principal amount of Securities evidenced by
the
Regulation S Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇).
In
connection with such request and in respect of such Securities, the Beneficial
Owner does hereby certify that, upon such exchange, (a) it will be the
beneficial owner of such Securities, (b) a period of at least two years will
have elapsed since November 30, 2004 and (c) the Beneficial Owner will not
be,
and during the three months preceding the date of such exchange will not have
been, an “affiliate” of the Company (as defined in Rule 144 under the Securities
Act), and it is not acting on behalf of such an affiliate.]
104
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
|
Dated:
|
[Insert
Name of Beneficial Owner]
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
105
EXHIBIT
F
FORM
OF
COMPANY SUBORDINATION
AGREEMENT
WITH AGENT
SUBORDINATION
AGREEMENT (the “Agreement”), made as of the [X] day of [X], 2004 among ▇▇▇▇▇▇
Wireless Inc., a corporation organized under the Canada Business Corporations
Act (the “Company”), National Trust Company, a trust company incorporated under
the laws of Ontario (hereinafter called the “Deed Trustee”), JPMorgan Chase
Bank, N.A., a national banking association organized under the laws of the
United States, as trustee (the “Trustee”), and The Bank of Nova Scotia as
administrative agent (the “Agent”) for the several lenders (individually, a
“Bank” and, collectively, the “Banks”) from time to time who are parties to the
Bank Credit Agreement (as defined in Article 1 hereof).
WHEREAS
the Company has authorized and issued U.S.$400,000,000 aggregate principal
amount of the Securities (as defined in Article 1);
WHEREAS
each Holder of a Security by its acceptance thereof has authorized and directed
the Trustee on the Holder’s behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Agreement and has appointed the Trustee its attorney-in-fact for any and all
such purposes;
WHEREAS
the Deed Trustee is required by the terms of the Bank Credit Agreement (as
defined in Article 1 hereof) to be a party to this Agreement;
NOW
THEREFORE, for valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company, the Deed Trustee, the Trustee and the Agent
agree as follows:
ARTICLE
1
DEFINITIONS
|
|
(a)
|
“Additional
Bonds” means a bond or bonds, in addition to the Bond, issued under the
Deed of Trust.
|
|
|
(b)
|
“Bank
Credit Agreement” means the Amended and Restated Credit Agreement dated as
of March 15, 1997, as amended by a first supplemental agreement dated
as
of April 12, 2001 and as further amended by a second amending agreement
dated as of October 8, 2004, in each case, among the Company, the
Banks
and the Agent as in effect on the date of this Agreement and as such
agreement may be further amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise modified
from time to time.
|
|
|
(c)
|
“Bankruptcy
Law” means the Bankruptcy and Insolvency Act (Canada) or any other
Canadian federal or provincial law or the law of any other jurisdiction
(including, without limitation, the United States of America) relating
to
bankruptcy, insolvency, winding-up, liquidation, reorganization or
relief
of debtors.
|
106
|
|
(d)
|
“Bankruptcy
Order” means any court order made in a proceeding pursuant to or within
the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, winding-up,
dissolution or reorganization, or appointing a custodian of a debtor
or of
all or any substantial part of a debtor’s property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or
other
relief of a debtor.
|
|
|
(e)
|
“Bond”
means the senior secured bond in the principal amount of
Cdn.$4,000,000,000 dated as of March 15, 1997 issued by the Company
under
the Deed of Trust and pledged pursuant to the Bond Pledge
Agreement.
|
|
|
(f)
|
“Bond
Pledge Agreement” means the bond pledge agreement dated as of March 15,
1997 and pursuant to which the Bond is pledged to the Company to
and in
favour of the Agent for and on behalf of itself and each of the
Banks.
|
|
|
(g)
|
“cash
equivalents” means money, certified cheques, demand deposit accounts held
by the Deed Trustee or other instruments or investments of equivalent
liquidity and safety acceptable to holders of the Designated Senior
Indebtedness.
|
|
|
(h)
|
“Designated
Senior Indebtedness” means all Senior Indebtedness under the Bank Credit
Agreement.
|
|
|
(i)
|
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
|
|
|
(j)
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“Indenture”
means the Indenture, dated as of November 30, 2004, between the Company
and the Trustee, relating to the Securities, as originally executed
(including all exhibits and schedules thereto) and as it may from
time to
time be supplemented or amended by one or more indentures supplemental
thereto entered into pursuant to the applicable provisions
thereof.
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(k)
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“Initial
Blockage Period” has the meaning specified in Section 2.3(b)
hereof.
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(l)
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“Lien”
means any mortgage, charge, pledge, lien, privilege, security interest,
hypothec, cession and transfer, lease of real property or other
encumbrance upon or with respect to any Property of an Obligor, now
owned
or hereafter acquired.
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(m)
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“Non-payment
Event of Default” means any event (other than a Payment Default), the
occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior
Indebtedness.
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(n)
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“Obligors”
means the Company and any Restricted Subsidiaries (as defined in
the Bank
Credit Agreement) collectively, and “Obligor” means any one of them
individually.
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(o)
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“Payment
Blockage Period” has the meaning specified in Section 2.3(b)
hereof.
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(p)
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“Payment
Default” means any default, whether or not any requirement for the giving
of notice, the lapse of time or both, or any other condition to such
default
becoming
an event of default has occurred, in the payment of principal of
(or
premium, if any) or interest on, or any other amount payable in
connection
with, Designated Senior
Indebtedness.
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107
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(q)
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“payment
in full”, “paid in full” and any term of similar import means either (i)
the actual payment in full of an obligation or indebtedness in cash
or
cash equivalents in the currency in which the obligation or indebtedness
is denominated or, subject to any provision in the instrument governing
such obligation or indebtedness relating to conversion of amounts
received
in a judgment currency other than the payment currency, the equivalent
in
Canadian dollars or (ii) the provision for such payment; provided
that
such provision shall be satisfactory to each of the Banks and shall
be the
same for all holders of Senior
Indebtedness.
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(r)
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“Permitted
Junior Securities” has the meaning specified in Section 2.2
hereof.
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(s)
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“Property”
means, with respect to any Person, all of its undertaking, property
or
assets of any kind.
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(t)
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“Securities”
means the Company’s 8.00% Senior Subordinated Notes due
2012.
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(u)
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“Senior
Indebtedness” means any liability or obligation secured by the Bond or an
Additional Bond or by liens ranking prior to the liens securing Bonds
and,
without duplication, the principal of (and premium, if any) and interest
on and all other amounts due on or in connection with any Debt of
the
Company, whether outstanding on the date of the Indenture or thereafter
created, incurred or assumed. Without limiting the generality
of the foregoing, “Senior Indebtedness” shall include the principal of and
premium, if any, and interest on all obligations of every nature
of the
Company from time to time owed to the Banks or the Agent under the
Bank
Credit Agreement and to the holders of or the trustee with respect
to the
Company’s 10-1/2% Senior Secured Notes due 2006, 9-5/8% Senior Secured
Notes due 2011, 6-3/8% Senior (Secured) Notes due 2014, 9-3/4% Senior
Secured Debentures due 2016, 7.625% Senior (Secured) Notes due 2011,
Floating Rate Senior (Secured) Notes due 2010, 7.25% Senior (Secured)
Notes due 2012 and 7.50% Senior (Secured) Notes due
2015.
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Notwithstanding
the foregoing, “Senior Indebtedness” shall not include (A) Debt evidenced
by the Securities, (B) Debt of the Company that is expressly subordinated
in right of payment to any Senior Indebtedness of the Company or
the
Securities, (C) Debt of the Company that by operation of law is
subordinate to any general unsecured obligations of the Company,
(D) Debt
of the Company to the extent incurred in violation of the provisions
of
Section 1008 of the Indenture, (E) Inter-Company Subordinated Debt
or
Inter-Company Deeply Subordinated Debt or Debt of the Company to
any
Subsidiary, (F) any liability for Canadian federal, provincial or
local
taxes or U.S. federal, state or local taxes, or other taxes, owed
or owing
by the Company and (G) trade payables owed or owing by the
Company.
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(v)
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“Subordinated
Obligations” has the meaning specified in Section 2.1
hereof.
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108
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(w)
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“Taxes”
means any present or future tax, duty, levy, impost, assessment or
other
governmental charge imposed or levied by or on behalf of the Government
of
Canada or of any province or territory thereof or by any authority
or
agency therein or thereof having power to
tax.
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All
other
capitalized terms used herein without definition have the meanings ascribed
thereto in the Indenture.
ARTICLE
2
SUBORDINATION
OF SECURITIES
SECTION
2.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS OF THE
COMPANY
The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees that, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities and all other amounts payable with
respect thereto (collectively, the “Subordinated Obligations”) are hereby
expressly made subordinate and postponed to and subject in right of payment
as
provided in this Article to the prior payment in full of all Senior Indebtedness
of the Company. All provisions of this Article 2 shall be subject to Section
2.14.
This
Agreement shall constitute a continuing offer to all Persons who, in reliance
upon such Agreement, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligees hereunder and they
or
each of them may enforce such provisions.
SECTION
2.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In
the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization or other similar case
or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary, or (b) any
liquidation, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c)
any
general assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event
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(1)
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the
holders of Senior Indebtedness of the Company shall receive payment
in
full of all amounts due on or in respect of all Senior Indebtedness
of the
Company before the Holders of the Securities are entitled to receive
or
retain any payment or distribution of any kind or character (other
than a
payment or distribution (i) from the trust described in Article Four
of
the Indenture (and specifically in Section 404 of the Indenture)
or (ii)
in the form of equity securities or subordinated securities of the
Company
or any successor obligor with respect to the Senior Indebtedness
of the
Company provided for by a plan of arrangement or reorganization or
a
proposal under any Bankruptcy Law that, in the case of any such
subordinated securities, are subordinate in right of payment to all
Senior
Indebtedness of the Company (or such successor obligor) that may
at the
time be outstanding to substantially
the same extent as, or to a greater extent than, the Securities are
so
subordinated as provided in this Article (such equity securities
or
subordinated securities hereinafter being “Permitted Junior Securities”))
on account of the Subordinated Obligations;
and
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109
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(2)
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any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than a payment or
distribution (i) from the trust described in Article Four of the
Indenture
(and specifically in Section 404 of the Indenture) or (ii) in the
form of
Permitted Junior Securities), including, without limitation, by way
of
set-off or enforcement of any guarantee or otherwise, which the Trustee
or
the Holders would be entitled to receive and retain but for the provisions
of this Article shall be paid by the liquidating trustee or agent
or other
Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, immediately
and directly to the holders of Senior Indebtedness of the Company
or their
representative or representatives or to the trustee or trustees under
any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, rateably according to the aggregate
amounts remaining unpaid on account of the Senior Indebtedness held
or
represented by each, to the extent necessary to make payment in full
of
all Senior Indebtedness of the Company remaining unpaid, after giving
effect to any concurrent payment or distribution, or provision therefor,
to or for the holders of such Senior Indebtedness;
and
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(3)
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in
the event that, notwithstanding the foregoing provisions of this
Section,
the Trustee or the Holder of any Security shall have received any
payment
or distribution of assets of the Company of any kind or character,
whether
in cash, property or securities, including, without limitation, by
way of
set-off or enforcement of any guarantee or otherwise, in respect
of the
Subordinated Obligations which the Trustee or the Holder would be
entitled
to receive and retain but for the provisions of this Article, before
all
Senior Indebtedness of the Company is paid in full, then and in each
such
event such payment or distribution (other than a payment or distribution
(i) from the trust described in Article Four of the Indenture (and
specifically in Section 404 of the Indenture) or (ii) in the form
of
Permitted Junior Securities) shall be held by such recipient in trust
and
separate and apart from any of its other property for the benefit
of the
holders of Senior Indebtedness of the Company (which trust is hereby
declared and acknowledged), and shall be paid over or delivered forthwith
to the holders of Senior Indebtedness of the Company or their
representative or representatives for application to the remaining
unpaid
Senior Indebtedness to the extent necessary to make payment in full
of all
Senior Indebtedness of the Company remaining unpaid, after giving
effect
to any concurrent payment or distribution, or provision therefor,
to or
for the holders of Senior Indebtedness of the Company;
and
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110
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(4)
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for
greater certainty, any Taxes that have been withheld or deducted
from any
payment or distribution in respect of the Securities, or any Taxes
that
ought to have been withheld or deducted from any such payment or
distribution that have been remitted to the relevant taxing authority,
shall not be considered to be an amount that a Holder or the Trustee
is
entitled to receive and retain for the purposes of Section 2.2(2),
or an
amount that a Holder or the Trustee receives for the purposes of
Section
2.3(3). For purposes of this paragraph (4), “Taxes” additionally includes
any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed or levied by or on behalf of the Government
of
the United States of America or of any state or territory thereof
or by
any authority or agency therein or thereof having power to
tax.
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The
amalgamation or consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer, lease or other disposal of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
of
the Indenture shall not be deemed a dissolution, winding-up, liquidation,
reorganization, arrangement, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such amalgamation or consolidation or into
which
the Company is merged or the Person which acquires such assets substantially
as
an entirety, as the case may be, shall, as a part of such amalgamation,
consolidation, merger, conveyance, transfer, lease or disposal, comply with
the
conditions of Section 801 of the Indenture.
SECTION
2.3 SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR INDEBTEDNESS IN
DEFAULT
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(a)
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Unless
Section 2.2 shall be applicable, upon (1) the occurrence of a Payment
Default and (2) receipt by the Trustee from the Agent (or such other
representative of Designated Senior Indebtedness) of written notice
of
such occurrence, no payment or distribution of any assets of the
Company
of any kind or character shall be made by the Company, including,
without
limitation, by way of set-off or enforcement of any guarantee or
otherwise, on account of the Subordinated Obligations or on account
of the
purchase or redemption or other acquisition of Securities unless
and until
such Payment Default shall have been cured or waived in writing or
shall
have ceased to exist or such Designated Senior Indebtedness shall
have
been paid in full, after which the Company shall resume making any
and all
required payments in respect of the Securities, including any missed
payments.
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(b)
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Unless
Section 2.2 shall be applicable, upon (1) the occurrence of a Non-payment
Event of Default and (2) receipt by the Trustee from the Agent (or
such
other representative of Designated Senior Indebtedness) of written
notice
of such occurrence, then no payment or distribution of any assets
of the
Company of any kind or character (other than a payment or distribution
(i)
from the trust described in Article Four of the Indenture (and
specifically in Section 404 of the Indenture) or (ii) in the form
of
Permitted Junior Securities) shall be made by the Company, including,
without limitation, by way of set-off or enforcement of any guarantee
or
otherwise, on account of the Subordinated Obligations or on account
of the
purchase or redemption or other acquisition of Securities for a period
(“Payment Blockage
Period”) commencing on the date of receipt by the Trustee of such notice
from the Agent (or such other representative) unless and until (subject
to
any blockage of payments that may then be in effect under subsection
(a)
of this Section) (x) more than 179 days shall have elapsed since
receipt
of such written notice by the Trustee, (y) such Non-payment Event
of
Default shall have been cured or waived in writing or shall have
ceased to
exist or such Designated Senior Indebtedness shall have been paid
in full
or (z) such Payment Blockage Period shall have been terminated by
written
notice to the Company or the Trustee from the Agent (or such other
representative), after which, in the case of clause (x), (y) or (z),
the
Company shall resume making any and all required payments in respect
of
the Securities, including any missed payments. Notwithstanding
any other provision of this Agreement, in no event shall a Payment
Blockage Period extend beyond 179 days from the date of the receipt
by the
Trustee of the notice referred to in clause (2) above (the “Initial
Blockage Period”). Any number of additional Payment Blockage Periods may
be commenced during the Initial Blockage Period; provided, however,
that
no such additional Payment Blockage Period shall extend beyond the
Initial
Blockage Period. After the expiration of the Initial Blockage
Period, no Payment Blockage Period may be commenced until at least
186
consecutive days have elapsed from the last day of the Initial Blockage
Period. Notwithstanding any other provision of this Agreement,
no event of default with respect to Designated Senior Indebtedness
which
existed or was continuing on the date of the commencement of any
Payment
Blockage Period initiated by the Agent (or such other representative)
for
such Designated Senior Indebtedness shall be, or be made, the basis
for
the commencement of a second Payment Blockage Period initiated by
the
Agent (or such other representative) for such Designated Senior
Indebtedness, whether or not within the Initial Blockage Period,
unless
such event of default shall have been cured or waived for a period
of not
less than 90 consecutive
days.
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111
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(c)
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In
the event that, notwithstanding the foregoing, the Company shall
make any
payment to the Trustee or the Holder of any Security prohibited by
the
foregoing provisions of this Section, then and in each such event
such
payment shall be paid over and delivered forthwith to the Company,
and no
such payment so paid over shall be treated as a payment of any amount
owing to the Trustee or a Holder of a
Security.
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SECTION
2.4 LIENS
The
Company and the Trustee agree that all of the Subordinated Obligations are
and,
except as permitted under the Indenture and the Bank Credit Agreement, will
be
unsecured by any Lien upon or with respect to any of the Property of the
Company. For greater certainty, the entering into of this Agreement does not
fulfill the condition precedent, required under Section 5.4 of the Bank Credit
Agreement to any of the Subordinated Obligations being secured by any Lien,
that
the Company, the Trustee and the Deed Trustee enter into a subordination and
postponement agreement in form and content satisfactory to the Agent and the
Majority Lenders (as defined in the Bank Credit Agreement). The Trustee agrees
that should any Lien arise, whether by operation of law or otherwise, in its
favour, it will hold the benefit thereof in trust for the holders of the Senior
Indebtedness of the Company and, so long as any Senior Indebtedness of the
Company is not paid in full, any payment by or on behalf of the Company or
distribution of Property of the Company with respect to any such Lien will
be
made to the holders of the Senior Indebtedness of the Company or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to
the
extent necessary to make payment in full of all Senior Indebtedness of the
Company remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
112
SECTION
2.5 PAYMENT PERMITTED IF NO DEFAULT
Nothing
contained in this Article or elsewhere in this Agreement, the Indenture or
in
any of the Securities shall prevent the Company, at any time except during
the
pendency of any event referred to in clause (a), (b) or (c) of Section 2.2
or
under the conditions described in Section 2.3, from making payments at any
time
of principal of (and premium, if any) or interest on the
Securities.
SECTION
2.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
Subject
to the payment in full of all Senior Indebtedness of the Company, the Holders
of
the Securities shall be subrogated (equally and ratably with the holders of
all
indebtedness of the Company which by its express terms is subordinated and
postponed to Senior Indebtedness of the Company to the same extent as the
Securities are subordinated and postponed and which is entitled to like rights
of subrogation) to the rights of the holders of Senior Indebtedness to the
extent that payment of Senior Indebtedness has been made under Section 2.2
of
this Agreement from amounts otherwise payable to Holders of the Securities,
to
receive payments and distributions of assets of the Company of any kind or
character, whether in cash, property or securities applicable to the Senior
Indebtedness of the Company until the Subordinated Obligations shall be paid
in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of the Company of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
of the Company by Holders of the Securities or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness, and the
Holders of the Securities, be or be deemed to be a payment or distribution
by
the Company to or on account of the Senior Indebtedness of the
Company.
SECTION
2.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS
The
provisions of this Article are, and are intended, solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness of the Company on the other hand. Nothing
contained in this Article or elsewhere in this Agreement, the Indenture or
in
the Securities is intended to or shall
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(a)
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impair,
as between the Company and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the
Holders
of the Securities the principal of (and premium, if any) and interest
on
the Securities, or any
payment required under the Indenture, as and when the same shall
become
due and payable in accordance with their terms;
or
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113
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(b)
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affect
the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness
of the Company; or
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(c)
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prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under the Indenture
including, without limitation, filing and voting claims in any proceeding
under any Bankruptcy Law, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness of the Company in respect
of
cash, property or securities of the Company received upon the exercise
of
any such remedy.
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If
a
holder of Senior Indebtedness or a trustee for such holder shall receive in
such
capacity any amount under this Agreement and at the time of such receipt such
holder or trustee is not entitled to (whether by reason of maturity,
acceleration or otherwise) such amount under the terms of such Senior
Indebtedness, then such holder or trustee shall turn such amount over to the
Company. Any such amount so received by any holder of Senior Indebtedness or
trustee for such holder which such holder or trustee is so required to turn
over
to the Company shall in no circumstances be considered to be a payment on
account of such Senior Indebtedness.
SECTION
2.8 NO WAIVER OF SUBORDINATION PROVISIONS
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(a)
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No
right of any present or future holder of any Senior Indebtedness
of the
Company to enforce subordination as herein provided shall at any
time in
any way be prejudiced or impaired by any act or failure to act on
the part
of the Company or the Trustee or by any act or failure to act by
any such
holder, or by any non-compliance by the Company or the Trustee with
the
terms, provisions and covenants of this Agreement or the Indenture,
regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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(b)
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Without
in any way limiting the generality of subsection (a) of this Section,
the
holders of Senior Indebtedness of the Company may, at any time and
from
time to time, without the consent of or notice to the Trustee or
the
Holders of the Securities, without incurring responsibility to the
Holders
of the Securities and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders
of
the Securities to the holders of Senior Indebtedness of the Company,
do
any one or more of the following: (1) change the manner, place or
terms of
payment or extend the time of payment of, or renew or alter, the
terms of
Senior Indebtedness of the Company or the terms of any instrument
evidencing the same or any agreement under which Senior Indebtedness
of
the Company is outstanding (including, without limitation, any increase
in
the aggregate principal amount of any indebtedness thereunder, it
being
understood that any such additional indebtedness shall not constitute
Senior Indebtedness to the extent incurred in violation of Section
1008 of
the Indenture); (2) sell, exchange, release or otherwise deal with
any
property pledged, mortgaged or otherwise securing Senior Indebtedness
of
the Company; (3) release any Person liable in any
manner
for the collection of Senior Indebtedness of the Company; and (4)
exercise
or refrain from exercising any rights against the Company and/or
any other
Person.
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114
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(c)
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If
the Trustee on behalf of the Holders or any Holders should fail to
file a
proof of claim in any bankruptcy, insolvency, receivership or similar
proceeding relating to the Company at least 30 days before the expiration
of the time to file such claim or claims, each holder of Senior
Indebtedness of the Company (or its representative) is hereby authorized
to file an appropriate claim for and on behalf of all or any of the
Holders.
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SECTION
2.9 NOTICE TO THE TRUSTEE
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(a)
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The
Company shall give prompt written notice to the Trustee of any fact
known
to it which would prohibit the making of any payment or distribution
to or
by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this Agreement,
the Trustee shall not be charged with knowledge of the existence
of any
facts which would prohibit the making of any payment to or by the
Trustee
in respect of the Securities, unless and until the Trustee shall
have
received written notice thereof from the Company, the Agent, a
representative for the holders of Senior Indebtedness of the Company
or
any trustee, fiduciary or agent therefor; and prior to the receipt
of any
such written notice, the Trustee, subject to the provisions of Section
601
of the Indenture, shall be entitled in all respects to assume that
no such
facts exist; provided, however, that, if the Trustee shall not have
received the notice provided for this Section or Section 2.3 hereof
prior
to the date on which by the terms of the Indenture any money may
become
payable for any purpose (including, without limitation, the payment
of the
principal of (and premium, if any) or interest on or any amounts
payable
in connection with any Security), then, anything herein contained
to the
contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which
such
money was received and shall not be affected with respect to such
action
taken by any notice to the contrary which may be received by the
Trustee
on or after such date.
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(b)
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Subject
to the provisions of the Trust Indenture Act Sections 315(a) through
(d),
the Trustee shall be entitled to rely on any written notice delivered
to
them from time to time by a representative for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders
of
the Senior Indebtedness of the Company and other indebtedness of
the
Company, the amount thereof or payable thereon, the amount or amounts
paid
or distributed thereon and all other facts pertinent thereto or to
this
Article Two. In the event that the Trustee determines in good faith
that
further evidence is required with respect to the right of any Person
as a
holder of Senior Indebtedness of the Company to participate in any
payment
or distribution pursuant to this Article, the Trustee may request
such
Person to furnish evidence to the reasonable satisfaction of the
Trustee
as to the amount of Senior Indebtedness of the Company held by such
Person, the extent to which such Person is entitled to participate
in such
payment or distribution and any other facts pertinent to the rights
of
such Person under this Article and, if such evidence is not furnished,
the
Trustee
may defer any payment to such Person pending judicial determination
as to
the right of such Person to receive such
payment.
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115
SECTION
2.10 RELIANCE ON BANKRUPTCY ORDER OR CERTIFICATE OF LIQUIDATING
AGENT
Upon
any
payment or distribution of assets of the Company referred to in this Article,
the Trustee, subject to the provisions of the Trust Indenture Act Sections
315(a) through (d), and the Holders of the Securities shall be entitled to
rely
on any Bankruptcy Order entered by any court of competent jurisdiction, or
a
certificate of (i) the trustee in bankruptcy (or other court-appointed officer)
as to matters over which it has authority, (ii) a receiver under the Deed of
Trust or any other receiver whose certificate is agreed to by the Deed Trustee
or (iii) an assignee for the benefit of all unsecured creditors as to matters
over which it has authority, delivered to the Trustee or to the Holders of
Securities from time to time by any Person, for the purpose of ascertaining
the
Persons entitled to participate in such payment or distribution, the holders
of
Senior Indebtedness of the Company and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION
2.11 RIGHTS OF THE TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS OF THE
COMPANY; PRESERVATION OF THE TRUSTEE’S RIGHTS
Subject
to the terms of this Article, the Trustee in its individual capacity shall
be
entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness of the Company which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness of the Company, and nothing
in
this Agreement shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to the claims of, or payments to, the
Trustee under or pursuant to Section 607 of the Indenture.
SECTION
2.12 ARTICLE APPLICABLE TO PAYING AGENTS
In
case
at any time any Paying Agent other than the Trustee shall have been appointed
by
the Company under the Indenture and be then acting thereunder, the term
“Trustee” as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent
within its meaning as fully for all intents and purposes as if such Paying
Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 2.11 shall not apply to the Company or any Affiliate
of
the Company if any of them is acting as Paying Agent.
SECTION
2.13 NO SUSPENSION OF REMEDIES
Nothing
contained in this Article shall limit the right of the Trustee or the Holders
to
take any action to accelerate the maturity of the Securities pursuant to Article
Five of the Indenture or to pursue any rights or remedies under the Indenture
or
under applicable law; provided, however, that, upon the occurrence and during
the continuance of an Event of Default under the Indenture, neither the Trustee
nor any Holder shall be entitled to accelerate the maturity of all or any of
the
Subordinated Obligations until the earlier to occur of the fifth Business Day
following the receipt by the Company and the Agent of a written declaration
of
acceleration as provided in Section 502 of the Indenture and the date of
acceleration in full of the Designated Senior Indebtedness. The Trustee agrees
that it will immediately upon receipt by it of a notice of a Default under
the
Indenture, or the cure or waiver of such Default, immediately give notice of
same to the Deed Trustee.
116
SECTION
2.14 TRUST MONEYS NOT SUBORDINATED
Notwithstanding
anything contained herein to the contrary, payments from cash or the proceeds
of
U.S. Government Obligations held in trust under the provisions of the Indenture
relating to defeasance by the Trustee (or such other trustee who shall have
satisfied the requirements of the Indenture) and which were deposited in
accordance with the terms of such provisions of the Indenture relating to
defeasance and not in violation of Section 2.3 hereof and the corresponding
provisions of the Indenture, if any, for the payment of principal of (and
premium, if any) and interest on the Securities shall not be subordinated to
the
prior payment of any Senior Indebtedness of the Company or subject to the
restrictions set forth in this Article 2 and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company; provided,
however, the Company will not exercise the benefit of such defeasance without
the prior written consent of the Majority Lenders (as defined in the Bank Credit
Agreement), and the Company must provide the Trustee with written evidence
of
the prior written consent of the Majority Lenders (as defined in the Bank Credit
Agreement) before it may exercise its defeasance option.
SECTION
2.15 TRUSTEE TO EFFECTUATE SUBORDINATION
Each
Holder of a Security by its acceptance thereof authorizes and directs the
Trustee on its behalf to take such action as may be necessary or appropriate
to
effectuate the subordination provided in this Agreement and appoints the Trustee
its attorney-in-fact for any and all such purposes.
SECTION
2.16 ASSIGNMENT BY HOLDERS OF SENIOR INDEBTEDNESS
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(a)
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No
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities made to the holders of Senior
Indebtedness of the Company (1) under Section 2.2(2) by a liquidating
trustee or agent or other person or (2) under Section 2.2(3) by the
Trustee or a Holder shall, to the extent that such payment or distribution
to the holders of Senior Indebtedness has been made from amounts
otherwise
payable to the Holders of the Securities, as between the Company
and the
holders of Senior Indebtedness to whom such payment or distribution
was
made, constitute or be deemed to be a payment on account of such
Senior
Indebtedness. If the Trustee or the Holders are not for any reason
entitled to be subrogated to the rights of holders of Senior Indebtedness
in respect of such payment or distribution, then, subject to clause
(b) of
this Section, each holder of Senior Indebtedness to whom any such
payment
or distribution is made will promptly after request by the Trustee
assign
its Senior Indebtedness to the extent of such payment or distribution
and
all rights with respect thereto (excluding any rights to any security)
to
the Trustee on behalf of the
Holders.
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(b)
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A
holder of Senior Indebtedness of the Company shall not be required
to
provide an assignment under clause (a) of this Section if (i) such
holder,
acting reasonably, concludes that there is a likelihood that the
granting
of such assignment on the terms of the relevant assignment agreement
would
cause such holder to be liable to any other Person or (ii) all Senior
Indebtedness of the Company shall not have been paid in
full.
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117
SECTION
2.17 PAYMENTS BY AFFILIATES
At
any
time when the provisions of Section 2.2(a), (b) or (c) or Section 2.3(a) or
(b)
shall be applicable, the Company will not permit any Affiliate to make any
payment or distribution of assets for or on behalf of the Company to the Trustee
or to any Holder that the Company or any obligor or guarantor with respect
to
the Subordinated Obligations would be prohibited from making under any of such
Sections (or the equivalent provisions with respect to such obligor or
guarantor), without the prior written consent of the Majority Lenders (as
defined in the Bank Credit Agreement) (it being understood that, upon receipt
of
such consent, nothing in this Agreement shall be deemed to prevent, and such
Affiliate shall be entitled to make, any such payment).
ARTICLE
3
NOTICE
SECTION
3.1 NOTICES
Any
notice or other communication required or permitted to be given or made
hereunder, shall be in writing or by telecopy and shall not be effective until
received and shall be addressed as follows:
if
to the
Company, addressed to it at:
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
Toronto,
Ontario
M4Y
2Y5
Attention:
Chief Financial Officer
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
Copy
to:
▇▇▇▇▇▇
Communications Inc.
10th
Floor
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
Toronto,
Ontario
M4W
1G9
Attention:
Chief Financial Officer
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
if
to the
Trustee, addressed to it at:
118
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇
15th
Floor
New
York,
New York 10004
Attention:
Institution Trust Services
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
if
to the
Agent, addressed to it at:
Corporate
Banking - Communications,
Media
&
Technology
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Toronto,
Ontario
M5W
2X6
Attention:
Managing Director
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
if
to the
Deed Trustee, addressed to it at:
c/o CIBC
Mellon Trust Company
▇▇▇
▇▇▇
▇▇▇▇▇▇
P.O.
Box
1 Toronto, Ontario
M5H
4A6
Attention:
Manager, Corporate Trust Department
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
Any
such
notice or demand, if telecopied before 4:30 p.m. on a Business Day shall be
deemed to have been received on that day, and after 4:30 p.m. on a Business
Day,
shall be deemed to have been received on the Business Day next following the
date of transmission.
ARTICLE
4
MISCELLANEOUS
SECTION
4.1 AMENDMENT, ETC.
No
amendment, modification or waiver of any provision of this Agreement or consent
to any departure from any provision of this Agreement will in any event be
effective unless it is signed by the Company, the Trustee and the
Agent.
SECTION
4.2 SUCCESSOR TRUSTEE
If
the
Trustee for the time being under the Indenture shall resign or be removed and
a
successor trustee thereafter shall be appointed in accordance with the
Indenture, then upon such successor trustee agreeing in writing to be bound
by
the provisions of this Agreement as the Trustee hereunder, all references herein
to “Trustee” in this Agreement shall be deemed to be references to such
successor trustee as and from such date and such successor trustee shall receive
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Trustee and the retiring or removed Trustee shall be
discharged from its further duties and obligations as Trustee under this
Agreement.
119
SECTION
4.3 APPLICABLE LAW AND SUBMISSION TO JURISDICTION
This
Agreement shall be conclusively deemed to be a contract made in the Province
of
Ontario and shall for all purposes be governed by and interpreted in accordance
with the laws of the Province of Ontario and federal laws of Canada applicable
therein in effect from time to time without prejudice to or limitation of any
other rights or remedies available under the laws of any jurisdiction where
property or assets of the Company may be found. Each of the parties irrevocably
submits to the non-exclusive jurisdiction of the courts of the Province of
Ontario.
SECTION
4.4 ENTIRE AGREEMENT
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter and supersedes all prior negotiations, undertakings,
representations and understandings.
SECTION
4.5 SEVERABILITY
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall not invalidate or render unenforceable the remaining
provisions, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION
4.6 SUCCESSORS AND ASSIGNEES
This
Agreement shall be binding upon and enure to the benefit of the parties hereto
and their respective successors and permitted assignees.
SECTION
4.7 COUNTERPARTS
This
Agreement and the acceptance thereof may be executed on any number of separate
counterparts and all said counterparts taken together shall be deemed to
constitute one and the same instrument.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
120
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, on this ______ day of
___________________, 2004.
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▇▇▇▇▇▇
WIRELESS INC.
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By:
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Name:
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▇▇▇▇
▇. ▇▇▇▇
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Title:
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Vice-President
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By:
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Name:
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▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title:
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Vice-President,
Treasurer
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NATIONAL
TRUST COMPANY, as Deed Trustee
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A., as Trustee
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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121
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THE
BANK OF NOVA SCOTIA,
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as
Agent, with the consent of the Majority Lenders (as defined in the
Bank
Credit Agreement)
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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122
EXHIBIT
G
FORM
OF
SUBORDINATION AGREEMENT
WITH
THE
SENIOR DEBT TRUSTEES
This
Subordination Agreement made as of [Date] between ▇▇▇▇▇▇ Wireless Inc. (the
“Company”) and JPMorgan Chase Bank, N.A., as trustee (the “Trustee”), under the
Indenture (as defined below) and ___ as [trustee/representative] (the “Senior
Debt Trustee”) under [an indenture] dated as of [Date] between the Company,
[list Guarantor parties] and the Senior Debt Trustee, as
[trustee/representative] for the holders of [ ]% Senior [Notes] [Debentures]
due
[ ] of the Company issued under such [indenture] and outstanding from time
to
time and constituting Senior Indebtedness (such holders being hereinafter called
“holders of Senior Indebtedness”).
WITNESSES
THAT WHEREAS:
A.
The
Company and the Trustee have entered into an indenture (the “Indenture”) dated
as of November 30, 2004 providing for the issuance of 8.00% Senior Subordinated
Notes due 2012 of the Company (the “Securities”); and
B.
As set
forth in the Indenture and in the Securities, the Holders have authorized the
execution and delivery by the Trustees of this Agreement on their
behalf;
NOW
THEREFORE for value received the parties agree as follows:
1.
DEFINITIONS.
A
capitalized term not defined in this Agreement has the meaning ascribed to
such
term in the Indenture.
2.
SUBORDINATION.
The
Trustee, under the authority granted to it in the Indenture and on behalf of
and
as agent for all Holders of outstanding Securities, and the Company hereby
covenant with the Senior Debt Trustee in its capacity as trustee that the
indebtedness represented by the Securities and the payment of the principal
of
(and premium, if any) and interest on each and all of the Securities delivered
from time to time under the Indenture thereunder are subordinate and subject
in
right of payment to the prior payment in full of Senior Indebtedness to holders
of Senior Indebtedness, in the manner, to the extent and with the same effect
as
if the terms and provisions of the Indenture were set forth herein.
3.
PAYMENT TO THE COMPANY IN CERTAIN CIRCUMSTANCES.
Pursuant
to Section 1207 of the Indenture, if a holder of Senior Indebtedness or the
Senior Debt Trustee shall receive in such capacity any amount under this
Agreement and at the time of receipt such holder or the Senior Debt Trustee
is
not entitled to (whether by reason of maturity, acceleration or otherwise)
such
amount under the terms of such Senior Indebtedness, then such holder or the
Senior Debt Trustee shall turn over such amount to the Company. Any such amount
so received by any holder of Senior Indebtedness or the Senior Debt Trustee
which such holder or the Senior Debt Trustee is so required to turn over to
the
Company shall in no circumstances be considered to be a payment on account
of
such Senior Indebtedness.
123
4.
BINDING EFFECT AND INUREMENT.
This
Agreement shall be binding upon the successors of the Company and the Trustee,
and enure to the benefit of the successors of the Senior Debt Trustee in their
capacity as trustees.
5.
NO WAIVER OR AMENDMENT.
No
provision of this Agreement may be waived or amended except by an instrument
in
writing signed by the party against whom the enforcement of any waiver or
amendment is sought.
6.
NO PERSONAL LIABILITY.
The
Trustee and the Senior Debt Trustee make no representation or warranty as to
the
validity, sufficiency or effect of this Agreement, or as to the authority of
the
Trustee or the Senior Debt Trustee, as the case may be, to execute or deliver
this Agreement. The Trustee and the Senior Debt Trustee shall have no personal
responsibility or liability with respect to the covenant contained in Section
2
hereof.
7.
COUNTERPARTS
This
Agreement may be executed on any number of separate counterparts and all said
counterparts taken together shall be deemed to constitute one and the same
instrument.
124
8.
GOVERNING LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Ontario and the laws of Canada applicable therein.
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▇▇▇▇▇▇
WIRELESS INC.
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By:
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Title:
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By:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Title:
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[ ],
a
Senior Debt Trustee
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By:
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Title:
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125