EXECUTION VERSION
ROGERS COMMUNICATIONS INC.,
as issuer of the Securities
and
THE BANK OF NEW YORK MELLON,
as Trustee
INDENTURE
Dated as of August 6, 2008
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF AUGUST 6, 2008*
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TRUST INDENTURE
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INDENTURE
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ACT SECTION
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SECTION
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Section 310 (a)
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(1)
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509
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(a)
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(2)
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509
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(b)
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508, 510
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Section 312 (c)
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601
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Section 314 (a)
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603
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(c)
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(1)
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103
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(c)
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(2)
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103
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(e)
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103
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Section 315 (b)
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502
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Section 316 (a)
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(last sentence)
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101 (Outstanding)
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(a)
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(1)(A)
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402, 412
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(a)
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(1)(B)
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413
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(b)
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408
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(c)
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105
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Section 317 (a)
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(1)
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403
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(a)
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(2)
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404
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(b)
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903
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Section 318 (a)
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108
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*
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This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.
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TABLE OF CONTENTS
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PAGE
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101. DEFINITIONS
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1
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Act
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2
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Affiliate
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2
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Beneficial Owner
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2
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Board of Directors
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2
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Board Resolution
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2
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Book-Based System
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2
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Book-Entry Securities
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3
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Business Day
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3
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Canadian dollars, Cdn dollars, Cdn$ and $
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3
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Capital Lease Obligation
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3
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Capital Stock
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3
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Clearing Agency
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3
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Clearing Agency Participant
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4
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Commission
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4
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Common Stock
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4
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Company
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4
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Company Request or Company Order
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4
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Consolidation
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4
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Corporate Trust Office
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5
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Debt
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5
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Default
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6
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Depositary
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6
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Discount Securities
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6
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Disqualified Stock
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6
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DTC
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6
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Event of Default
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6
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Exchange Act
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6
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Generally Accepted Accounting Principles or GAAP
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7
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Global Security
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7
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Government Obligations
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7
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Guarantor
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7
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Holder
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7
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Holder Direction
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7
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Indenture
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7
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Inter-Company Subordinated Debt
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8
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Interest Payment Date
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8
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ii
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PAGE
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Lien
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8
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Linked Securities
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8
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Maturity
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8
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Maturity Consideration
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8
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Officers Certificate
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9
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Opinion of Counsel
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9
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Outstanding
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9
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Paying Agent
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10
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Person
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10
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Place of Payment
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10
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Predecessor Security
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10
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Preferred Stock
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10
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Purchase Money Obligations
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11
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Redemption Date
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11
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Redemption Price
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11
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Regular Record Date
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11
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Responsible Officer
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11
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Restricted Subsidiary
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11
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Rogers Entities
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11
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Securities Act
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11
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Security and Securities
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12
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Series or Series of Securities
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12
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Series Supplement
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12
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Shareholders Equity
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12
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Special Record Date
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12
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Stated Maturity
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12
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Subsidiary
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12
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Trust Indenture Act
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12
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Trustee
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13
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U.S.$ and U.S. dollars
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13
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Unrestricted Subsidiary
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13
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Voting Shares
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13
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SECTION 102.
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OTHER DEFINITIONS
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13
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SECTION 103.
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COMPLIANCE CERTIFICATES AND OPINIONS
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14
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SECTION 104.
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FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE
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14
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SECTION 105.
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ACTS OF HOLDERS
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15
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SECTION 106.
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NOTICES, ETC., TO TRUSTEE AND COMPANY
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16
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SECTION 107.
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NOTICE TO HOLDERS; WAIVER
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17
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SECTION 108.
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CONFLICT OF ANY PROVISION OF INDENTURE WITH THE TRUST INDENTURE ACT
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17
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SECTION 109.
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EFFECT OF HEADINGS AND TABLE OF CONTENTS
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18
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SECTION 110.
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SUCCESSORS AND ASSIGNS
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18
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SECTION 111.
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SEPARABILITY CLAUSE
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18
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SECTION 112.
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BENEFITS OF INDENTURE
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18
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SECTION 113.
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GOVERNING LAW
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18
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SECTION 114.
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LEGAL HOLIDAYS
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18
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iii
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PAGE
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SECTION 115.
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AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES
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19
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SECTION 116.
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CONVERSION OF CURRENCY
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19
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SECTION 117.
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CURRENCY EQUIVALENT
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21
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SECTION 118.
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NO RECOURSE AGAINST OTHERS
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21
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SECTION 119.
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RELIANCE ON FINANCIAL DATA
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21
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SECTION 120.
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DOCUMENTS IN ENGLISH
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22
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SECTION 121.
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NO CONFLICT WITH SERIES SUPPLEMENTS
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22
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ARTICLE TWO
THE SECURITIES
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SECTION 201.
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TITLE AND TERMS
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22
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SECTION 202.
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ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES
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23
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SECTION 203.
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DENOMINATIONS
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26
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SECTION 204.
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EXECUTION, AUTHENTICATION, DELIVERY AND DATING
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26
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SECTION 205.
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TEMPORARY SECURITIES
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27
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SECTION 206.
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REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
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28
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SECTION 207.
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BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES
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29
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SECTION 208.
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MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
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31
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SECTION 209.
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PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
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32
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SECTION 210.
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PERSONS DEEMED OWNERS
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33
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SECTION 211.
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CANCELLATION
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33
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SECTION 212.
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COMPUTATION OF INTEREST
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34
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ARTICLE THREE
DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 301.
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COMPANYS OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE
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34
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SECTION 302.
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DEFEASANCE AND DISCHARGE
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34
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SECTION 303.
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COVENANT DEFEASANCE
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35
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SECTION 304.
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CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
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36
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SECTION 305.
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DEPOSITED MONEY TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS
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38
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SECTION 306.
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REINSTATEMENT
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38
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ARTICLE FOUR
REMEDIES
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SECTION 401.
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EVENTS OF DEFAULT
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39
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SECTION 402.
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ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
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41
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SECTION 403.
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COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
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42
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SECTION 404.
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TRUSTEE MAY FILE PROOFS OF CLAIM
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43
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iv
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PAGE
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SECTION 405.
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TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
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44
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SECTION 406.
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APPLICATION OF MONEY COLLECTED
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44
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SECTION 407.
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LIMITATION ON SUITS
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45
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SECTION 408.
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UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST
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45
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SECTION 409.
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RESTORATION OF RIGHTS AND REMEDIES
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46
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SECTION 410.
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RIGHTS AND REMEDIES CUMULATIVE
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46
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SECTION 411.
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DELAY OR OMISSION NOT WAIVER
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46
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SECTION 412.
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CONTROL BY HOLDERS
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46
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SECTION 413.
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WAIVER OF PAST DEFAULTS
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47
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SECTION 414.
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UNDERTAKING FOR COSTS
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47
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ARTICLE FIVE
THE TRUSTEE
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SECTION 501.
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CERTAIN DUTIES AND RESPONSIBILITIES
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48
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SECTION 502.
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NOTICE OF DEFAULTS
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49
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SECTION 503.
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CERTAIN RIGHTS OF TRUSTEE
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49
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SECTION 504.
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NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
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50
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SECTION 505.
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MAY HOLD SECURITIES
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51
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SECTION 506.
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MONEY HELD IN TRUST
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51
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SECTION 507.
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COMPENSATION, REIMBURSEMENT AND INDEMNITY
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51
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SECTION 508.
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CONFLICTING INTERESTS
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52
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SECTION 509.
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CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
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52
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SECTION 510.
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RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
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52
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SECTION 511.
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ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
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54
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SECTION 512.
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MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
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55
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SECTION 513.
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TRUSTEE NOT TO BE APPOINTED RECEIVER
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55
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SECTION 514.
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ACCEPTANCE OF TRUSTS
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56
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ARTICLE SIX
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 601.
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DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS
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56
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SECTION 602.
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REPORTS BY TRUSTEE
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57
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SECTION 603.
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REPORTS BY COMPANY
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57
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ARTICLE SEVEN
AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 701.
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COMPANY MAY AMALGAMATE, ETC., ONLY ON CERTAIN TERMS
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58
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v
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PAGE
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SECTION 702.
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SUCCESSOR SUBSTITUTED
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59
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ARTICLE EIGHT
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
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SECTION 801.
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SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF HOLDERS
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59
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SECTION 802.
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SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH CONSENT OF HOLDERS
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60
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SECTION 803.
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EXECUTION OF SUPPLEMENTAL INDENTURES
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61
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SECTION 804.
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EFFECT OF SUPPLEMENTAL INDENTURES
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61
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SECTION 805.
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CONFORMITY WITH THE TRUST INDENTURE ACT
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61
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SECTION 806.
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REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES
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62
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SECTION 807.
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EXECUTION OF SUBORDINATION AGREEMENTS
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62
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ARTICLE NINE
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COVENANTS
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SECTION 901.
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PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
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62
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SECTION 902.
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MAINTENANCE OF OFFICE OR AGENCY
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62
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SECTION 903.
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MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST
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63
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SECTION 904.
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CORPORATE EXISTENCE
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64
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SECTION 905.
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PAYMENT OF TAXES AND OTHER CLAIMS
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64
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SECTION 906.
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PROVISION OF FINANCIAL INFORMATION
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65
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SECTION 907.
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PAYMENT OF ADDITIONAL AMOUNTS
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65
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SECTION 908.
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STATEMENT AS TO COMPLIANCE
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67
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SECTION 909.
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SUBORDINATION ARRANGEMENTS
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67
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SECTION 910.
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WAIVER OF CERTAIN COVENANTS
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68
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ARTICLE TEN
REDEMPTION OF SECURITIES
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SECTION 1001.
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RIGHT OF REDEMPTION
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68
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SECTION 1002.
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APPLICABILITY OF ARTICLE
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68
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SECTION 1003.
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ELECTION TO REDEEM; NOTICE TO TRUSTEE
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69
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SECTION 1004.
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SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
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69
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SECTION 1005.
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NOTICE OF REDEMPTION
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69
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SECTION 1006.
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DEPOSIT OF REDEMPTION PRICE
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70
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SECTION 1007.
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SECURITIES PAYABLE ON REDEMPTION DATE
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70
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SECTION 1008.
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SECURITIES REDEEMED IN PART
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70
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SECTION 1009.
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SECURITIES PURCHASED IN PART
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71
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vi
EXHIBITS
A Provisions for Inter-Company Subordinated Debt
vii
INDENTURE dated as of August 6, 2008 between Rogers Communications Inc., a corporation
organized under the laws of the Province of British Columbia (hereinafter called the Company),
and The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the
Trustee).
WHEREAS the Company wishes to issue from time to time Securities in the manner provided for in
this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSES that, for good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the Company and the Trustee, the Company and
the Trustee agree, for the equal and proportionate benefit of all Holders of the securities issued
under this Indenture (the Securities), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in Canada;
(d) the words herein, hereof and hereunder and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(e) the words include, includes and including as used herein shall be deemed in
each case to be followed by the phrase without limitation; and
(f) the words amendment or refinancing as used herein shall be deemed in each case
to refer to any amendment, renewal, extension, substitution, refinancing, restructuring,
restatement, replacement, supplement or other modification of any instrument or agreement;
the words amended or refinanced shall have a correlative meaning.
1
Certain terms are defined in those Articles in which they are used principally.
Act
, when used with respect to any Holder, has the meaning specified in Section 105.
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.
Beneficial Owner
means (a) with respect to Book-Entry Securities, the Person who is the beneficial owner of
such Book-Entry Securities as reflected on the books of a Clearing Agency or a Clearing Agency
Participant maintaining an account with a Clearing Agency (directly or as an indirect participant,
in accordance with the rules of a Clearing Agency); or (b) with respect to Securities other than
Book-Entry Securities, a Person who is (i) a beneficial owner of such Securities and as reflected
on the Security Register or (ii) a Person who is the beneficial owner of such Securities and as
reflected on the books of a registered Holder who holds such Securities on behalf of the beneficial
owner, as the case may be.
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.
Book-Based System
means, in relation to the Global Securities of a Series, the debt clearing, record entry,
transfer and pledge systems and services established and operated by or on behalf of the related
Depositary for such Series (including where applicable pursuant to
2
one or more agreements between such Depositary and its participants establishing the rules and
procedures for such systems and services).
Book-Entry Securities
means any Global Securities issued or registered in the name of a Clearing Agency maintaining
book-entry records with respect to the ownership and transfer of such Securities, or its nominee,
or a custodian of such Clearing Agency, or its nominee, and for which registration, transfer and
exchange of such Securities or any interest therein may not be effected by the Trustee or any other
Person maintaining the Security Register, except in accordance with the terms of this Indenture and
the rules of the Clearing Agency.
Business Day
means each Monday, Tuesday, Wednesday, Thursday and Friday which (a) 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, and (b) in connection
with a particular Series, is a day in any Place of Payment relative to such Series on which the
related Depositary, if any, for such Series processes transactions under its Book-Based System.
Canadian dollars, Cdn dollars, Cdn$ and $
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 Persons capital stock whether now outstanding or issued
after the date of this Indenture, including, without limitation, all Common Stock and Preferred
Stock.
Clearing Agency
means, in relation to a Series issuable in whole or in part in the form of one or more Global
Securities, DTC or any other organization recognized as a clearing agency pursuant to applicable
securities law that is specified for such purpose in the related Series Supplement.
3
Clearing Agency Participant
means a broker, dealer, bank, other financial institution or other Person for whom from time
to time a Clearing Agency effects book-entry transfers and pledges of Book-Entry Securities held by
the Clearing Agency.
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.
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 Persons 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 and Chief
Executive Officer, its Chief Financial Officer, any Executive Vice-President, any Senior
Vice-President, any Vice-President, its Treasurer, its Secretary or its General Counsel, and
delivered to the Trustee.
Consolidation
means the consolidation of the accounts of the Restricted Subsidiaries with those of the
Company, if and to the extent the accounts of each such Restricted Subsidiary would normally be
consolidated with those of the Company, all in accordance with GAAP; provided, however, that
Consolidation will not include consolidation of the accounts of any Unrestricted Subsidiary. For
purposes of clarification, it is understood that the accounts of the Company or any Restricted
Subsidiary include the accounts of any partnership, the beneficial interests in which are
controlled (in
4
accordance with GAAP) by the Company or any such Restricted Subsidiary. The term
Consolidated shall have a correlative meaning.
Corporate Trust Office
means the office of the Trustee at which at any particular time its corporate trust business
shall be principally administered. At the date of execution of this Indenture, the Corporate Trust
Office of the Trustee is located at The Bank of New York Mellon, 101 Barclay Street, Floor 4-East,
New York, New York 10286, Attention: Global Trust Services Americas, Fax: (212) 815-5366.
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 yet
due and payable:
(i) money borrowed (including, without limitation, by way of overdraft) or
indebtedness represented by notes payable and drafts accepted representing
extensions of credit;
(ii) the face amount of any drafts of a corporation in Canadian dollars and
accepted by a Canadian lender for discount in Canada;
(iii) all obligations (whether or not with respect to the borrowing of money)
which are evidenced by bonds, debentures, notes or other similar instruments or not
so evidenced but which would be considered to be indebtedness for borrowed money in
accordance with GAAP;
(iv) all liabilities upon which interest charges are customarily paid by such
Person;
(v) shares of Disqualified Stock not held by the Company or a wholly-owned
Restricted Subsidiary;
(vi) Capital Lease Obligations and Purchase Money Obligations, determined in
each case in accordance with GAAP; and
(vii) any guarantee (other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business) in any manner of any part
or all of an obligation included in clauses (i) through (vi) above;
provided that Debt shall not include (A) trade payables and accrued liabilities which are current
liabilities incurred in the ordinary course of business, and (B) except as otherwise expressly
provided herein, Inter-Company Subordinated Debt.
5
Default
means, with respect to a Series, any event that is, or after notice or passage of time or both
would be, an Event of Default with respect to such Series.
Depositary
means, with respect to a Series issuable in whole or in part in the form of one or more Global
Securities, the Clearing Agency or Clearing Agencies designated in or pursuant to the related
Series Supplement as the Depositary or Depositaries for such Series, together with their respective
successors in such capacity; provided, however, that, if no Clearing Agency is so designated in the
related Series Supplement, Depositary means, with respect to such Series, DTC.
Discount Securities
means Securities, other than Linked Securities, issued pursuant to this Indenture which are
offered for a price less than the amount thereof to be due and payable at Maturity other than
solely due to such amount being determined by application of a multiplier or leverage factor.
Disqualified Stock
means, for any Series, any Capital Stock of the Company or any Restricted Subsidiary which, by
its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder) or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the maturity date of such Series
for cash or securities constituting Debt. For purposes of this definition, the term Debt
includes Inter-Company Subordinated Debt.
DTC
means The Depository Trust Company, together with its successors from time to time.
Event of Default
has the meaning specified in Article Four.
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.
6
Generally Accepted Accounting Principles or GAAP
means generally accepted accounting principles, in effect in Canada, as established by the
Canadian Institute of Chartered Accountants and as applied from time to time by the Company in the
preparation of its consolidated financial statements.
Global Security
means a Security of a Series in global form.
Government Obligations
means direct obligations of, or obligations of a Person the timely payment of which is
unconditionally guaranteed by, the government that issued any of the currencies in which the
applicable Series of Securities are payable, and that are not subject to prepayment, redemption or
call 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
obligation or obligations or a specific payment of principal of or interest on any 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 Government Obligation or the specific
payment of principal of or interest on the Government Obligation evidenced by such depository
receipt.
Guarantor
means, in respect of any Series of Securities, any Person that guarantees the payment and
performance of obligations of the Company in respect of such Securities, as specified in the Series
Supplement in respect of such Securities.
Holder
means a Person in whose name a Security is registered in the Security Register (and including,
for greater certainty, in the case of any Global Security, the applicable Depositary or its nominee
which has possession of such Global Security or in whose name such Global Security is registered,
as the case may be).
Holder Direction
means, in respect of an Act of Holders of a Series, an approval of or direction to make, give
or take such Act given pursuant to an instrument in writing signed in one or more counterparts by
Holders (in person or by their agent duly appointed in writing) of more than 50% of the principal
amount of such Series then Outstanding.
Indenture
7
means (i) this instrument as originally executed (including all exhibits and schedules hereto)
and as it may from time to time be supplemented or amended (other than by a Series Supplement) by
one or more indentures supplemental hereto entered into pursuant to the applicable provisions
hereof, or (ii) with respect to a particular Series, this Indenture as defined in clause (i) above
as supplemented by the related Series Supplement.
Inter-Company Subordinated Debt
means, for any Series, all indebtedness of the Company or any of the Restricted Subsidiaries
(except from one to the other) for money borrowed from Rogers Entities and under which payments by
the Company or such Restricted Subsidiary, as the case may be, with respect thereto are
subordinated to the Securities in the manner and to the extent set forth in Exhibit A hereto and in
respect of which the agreement or instrument evidencing such indebtedness contains or incorporates
by reference provisions substantially in the form of Exhibit A for the benefit of the Trustee and
the Holders.
Interest Payment Date
means the Stated Maturity of an installment of interest on the applicable Series of
Securities.
Lien
means any mortgage, charge, pledge, lien, privilege, security interest, hypothecation and
transfer, lease of real property or other encumbrance upon or with respect to any property of any
kind of the Company or any of the Restricted Subsidiaries, real or personal, movable or immovable,
now owned or hereafter acquired.
Linked Securities
means Securities the Maturity Consideration of which or any other payment thereon will be
determined by reference to: (a) one or more equity or debt securities, including, but not limited
to, the price or yield of such securities; (b) any statistical measure of economic or financial
performance, including, but not limited to, any currency, consumer price or mortgage index; or (c)
the price or value of any commodity or any other item or index or any combination thereof.
Maturity
, when used with respect to any Security, means the date on which the principal of (and
premium, if any) and interest on such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity thereof or by declaration of acceleration, call for
redemption or otherwise.
Maturity Consideration
8
means, with respect to Securities of a Series (whether or not issued by, or the obligation of,
the Company), the amount of money (including payment of principal and premium, if any, and any
accrued but unpaid interest thereon), or a combination of money, securities and/or other property,
in either case payable or deliverable upon payment of the discharge of the Securities of such
Series upon Maturity.
Officers Certificate
means a certificate signed by any two of the following officers of the Company: its Chairman,
any Vice Chairman, its President and Chief Executive Officer, its Chief Financial Officer, any
Executive Vice President, any Senior Vice President, any Vice President, its Treasurer, its
Secretary or its General Counsel, 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.
Opinion of Counsel
means a written opinion of counsel, who may be counsel for the Company, which opinion shall be
reasonably
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 the Securities or a Series of Securities means, as of the date of
determination, all Securities (or all Securities of such Series, as applicable) theretofore
authenticated and delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee, the
related Security Registrar or the related Paying Agent 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 related
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 302 and 303, with respect to
which the Company has effected defeasance or covenant defeasance as provided in Article
Three; 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
9
satisfactory to it that such Securities are held by a bona fide purchaser in whose
hands the Securities are valid obligations of the Company.
In determining whether the Holders of the requisite principal amount of Outstanding Securities (or
Series of Outstanding Securities) have given any request, demand, direction, consent or waiver
hereunder, the principal amount of a Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall be equal to the
face amount due and payable at Maturity and, provided further, that, 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 pledgees 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, in respect of a Series, any Person authorized by the Company in or pursuant to the
Indenture or the related Series Supplement to pay the principal of (or premium, if any) or interest
on any Securities of such Series on behalf of the Company.
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.
Place of Payment
means, in relation to a Series, the place or places where the principal of (and premium or
other amounts, if any) and interest on Securities of such Series are payable as specified in the
related Series Supplement or, if no Place of Payment is specified in such Series Supplement, the
Corporate Trust Office of the Trustee located in The City of New York.
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 208 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
10
means, with respect to any Person, any and all shares, interests, participations or other
equivalents (however designated) of such Persons 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, 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.
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.
Regular Record Date
, for the interest payable on any Interest Payment Date, means the date specified with respect
to such Series (whether or not a Business Day) in the related Series Supplement.
Responsible Officer
, when used with respect to the Trustee, means any managing director, any director, or any
vice president, any assistant vice president, any assistant secretary, any assistant treasurer, any
trust officer or assistant trust officer 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 other than an Unrestricted Subsidiary.
Rogers Entities
means the Company and its Affiliates.
Securities Act
11
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 paragraph immediately preceding Section 101 of this
Indenture and more particularly means any Securities authenticated and delivered under this
Indenture.
Series or Series of Securities
means all Securities of a series, whether or not any such Securities have been or are to be
issued on the same date.
Series Supplement
means, with respect to a Series, a supplement to this Indenture establishing the terms and
conditions applicable to such Series, as such supplement may be amended, modified, supplemented,
consolidated or restated from time to time.
Shareholders Equity
means the aggregate amount of shareholders equity (including but not limited to share
capital, contributed surplus and retained earnings) of the Company as shown on the most recent
annual audited or quarterly unaudited consolidated balance sheet of the Company and computed in
accordance with GAAP.
Special Record Date
means a date fixed by the Trustee for the payment of any Default Interest pursuant to Section
209.
Stated Maturity
, when used with respect to any Series of Securities or any installment of interest thereon,
means the date specified in such Series as the fixed date on which the principal of such Series or
such installment of interest is due and payable.
Subsidiary
means any firm, partnership, corporation or other legal entity in which the Company, the
Company and one or more Subsidiaries or one or more Subsidiaries owns, directly or indirectly, a
majority of the Voting Shares or has, directly or indirectly, the right to elect a majority of the
board of directors, if it is a corporation, or the right to make or control its management
decisions, if it is some other Person.
Trust Indenture Act
12
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 805.
Trustee
means the Person named as the Trustee in the first paragraph of this Indenture, until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter Trustee shall mean such successor Trustee.
U.S.$ and U.S. dollars
each mean lawful currency of the United States of America.
Unrestricted Subsidiary
means (i) any Subsidiary of the Company that at the time of determination shall be designated
an Unrestricted Subsidiary in accordance with the provisions of the applicable Series Supplement
and (ii) any Subsidiary of an Unrestricted Subsidiary.
Voting Shares
means any Capital Stock having voting power under ordinary circumstances to vote in the
election of a majority of the directors of a corporation (irrespective of whether or not at the
time stock of any other class or classes shall have or might have voting power by reason of the
happening of any contingency).
SECTION 102. OTHER DEFINITIONS.
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DEFINED
|
DEFINED TERM
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IN SECTION
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|
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Additional Amounts
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|
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907
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Bankruptcy Law
|
|
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401
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Bankruptcy Order
|
|
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401
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Base Currency
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116
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covenant defeasance
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303
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Custodian
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401
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Default Interest
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209
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defeasance
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302
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Determination Date
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116
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Excluded Holder
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907
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First Currency
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|
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117
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incorporated provision
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108
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judgment currency
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|
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116
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liquidation currency
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|
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116
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Notice of Default
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401
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Other Currency
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117
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13
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DEFINED
|
DEFINED TERM
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IN SECTION
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rate(s) of exchange
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116
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Relevant Person
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119
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Security Register
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206
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Security Registrar
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206
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Successor Company
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701
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Taxes
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907
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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, the compliance with which constitutes a condition precedent) relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except that, in the case of
any such application or request as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion 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, as
applicable, are based;
(c) a statement that, in the opinion of each such individual, such individual has made
such examination or investigation as is necessary to enable such individual to express an
informed opinion as to whether or not such covenant or condition has been complied with or
satisfied; and
(d) a statement as to whether, in the opinion of each such individual, such covenant
or condition has been complied with or satisfied.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
14
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.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of one or more
Series of Securities may be made, given or taken by way of a Holder Direction from Holders
of such one or more Series; and, except as herein otherwise expressly provided, such action
shall become effective when the instrument in respect of the Holder Direction is delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such instrument
(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 Section 501 and Trust Indenture Act Section 315)
conclusive in favor of the Trustee and the Company, if made in the manner provided in this
Section.
Without limiting the generality of this Section, unless otherwise established in or pursuant
to a Series Supplement pursuant to Section 202, a Holder, including a Clearing Agency that is a
Holder of a Global Security, may make, give or take, by a proxy or proxies, duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders, and a Clearing Agency that is a
Holder of a Global Security may provide its proxy or proxies to the Beneficial Owners of interests
in any such Global Security through such Clearing Agencys standing instructions and customary
practices.
15
(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 and in accordance
with such reasonable rules as the Trustee may determine; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in this
Section.
(c) The ownership of Securities and the principal amount and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the determination of the
Holders entitled to give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding
Trust Indenture Act Section 316(c), any such record date shall be the record date specified
in or pursuant to such Board Resolution, which shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection therewith and no later than
the date such solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of determining whether Holders
of the requisite proportion of Securities (or Series 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 (or Securities of
a Series of 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, any Security Registrar or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
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,
16
(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: Global Trust Finance; and
(b) the Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given, furnished or
delivered in writing to the Company to 333 Bloor Street East, 10th Floor, Toronto, Ontario,
Canada, M4W 1G9, Attention: Vice-President, Treasurer, fax: 416-935-3598, with a copy to
the Senior Vice-President, General Counsel and Secretary, fax: 416-935-3548, or, in either
case, at any other address previously furnished in writing to the Trustee by the Company.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Except as otherwise expressly provided herein or in a Series Supplement, 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 Holder. 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.
SECTION 108. CONFLICT OF ANY PROVISION OF INDENTURE WITH THE TRUST INDENTURE
ACT.
Each of the Trustee, the Company and any Guarantor 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 (including
any Series Supplement or other supplemental 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
17
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
permitted assigns (if any), whether so expressed or not. All covenants and agreements of the
Trustee in this Indenture shall bind its successors and permitted assigns (if any), 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, any Paying Agent and any Security Registrar, and their respective
successors hereunder, and the Holders) any benefit or any legal or equitable right, remedy or claim
under this Indenture or in respect of the Securities.
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. 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
Default Interest pursuant to Section 209 or Stated Maturity with respect to any Security shall not
be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any Series which specifically states that such
provision shall apply in lieu of this Section) payment of interest or principal (and premium or
other amounts, 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
18
payment of Default Interest pursuant to Section 209 or Stated Maturity 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 Default Interest pursuant to Section 209 or Stated
Maturity to the next succeeding Business Day.
SECTION 115. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, the Company (i) acknowledges that it has, by
separate written instrument, irrevocably designated and appointed CT Corporation System (and any
successor entity) (CT Corporation), 111 Eighth Avenue, 13th Floor, New York, New York 10011, as
its authorized agent upon which process may be served in any suit, action or proceeding arising out
of or relating to the Securities or this Indenture that may be instituted in any federal or state
court in the State of New York, Borough of Manhattan, or brought under federal or state securities
laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and acknowledges that CT Corporation has accepted such designation, (ii) submits to the
non-exclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that
service of process upon CT Corporation and written notice of said service to it (mailed or
delivered to its Vice-President, Treasurer, with a copy to its Senior Vice-President, General
Counsel and Secretary, in each case as specified in Section 106(b) hereof) shall be deemed in every
respect effective service of process upon it in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation and appointment of CT Corporation
in full force and effect so long as this Indenture shall be in full force and effect.
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 any Series of 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 any other currency (the
judgment currency) an amount in the currency due hereunder or under such Series (the
Base Currency), then the conversion shall be made at the rate of exchange prevailing on
the Business Day before the day on which a final judgment which is not appealable is given
or the order of
19
enforcement is made, as the case may be (unless a court shall otherwise determine)
(such day being the Determination Date).
(ii) If there is a change in the rate of exchange prevailing between the Determination
Date for a judgment and the date of receipt of the amount due in respect of such judgment,
the Company will pay such additional (or, as the case may be, such lesser) amount, if any,
as may be necessary so that the amount paid in the judgment currency when converted at the
rate of exchange prevailing on the date of receipt will produce the amount in the Base
Currency originally due.
(b) In the event of the winding-up of the Company at any time while any amount or
damages owing under such Series and this Indenture, or any judgment or order rendered in
respect thereof, shall remain outstanding, the Company shall indemnify and hold the Holders
of the Securities of such Series 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 the Base Currency due or contingently due under such Series and
this Indenture (other than under this Subsection (b)) is calculated for the purposes of
converting such amounts into another currency (the liquidation currency) in 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 in respect of each Series mean (unless
otherwise provided in the applicable Series Supplement) the rate of exchange quoted by The
Toronto-Dominion Bank at its central foreign exchange
20
desk in its head office in Toronto at 12:00 noon (Toronto, Ontario time) for purchases of
the Base Currency with the judgment currency or liquidation currency, as applicable, and
includes any premiums and costs of exchange payable.
(e) Neither the Trustee nor any Paying Agent shall have any duty or liability with
respect to monitoring or enforcing this Section 116.
SECTION 117. CURRENCY EQUIVALENT.
Except as provided in Section 116, for purposes of the construction of the terms of this
Indenture or of the Securities, in the event that any amount is stated herein in the currency of
one nation (the First Currency), as of any date such amount shall also be deemed to represent the
amount in the currency of any other relevant nation (the Other Currency) which is required to
purchase such amount in the First Currency at the rate of exchange quoted by The Toronto-Dominion
Bank at its central foreign exchange desk in its head office in Toronto at 12:00 noon (Toronto,
Ontario time) on the date of determination.
SECTION 118. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. Each Holder by
accepting any of the Securities waives and releases all such liability.
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
21
(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.
The Company, the Trustee and, by their acceptance of Securities and the benefits of this
Indenture (including the related Series Supplement), the Holders acknowledge that this Indenture,
each Security and each document related hereto and thereto has been drawn up in English at the
express will of such Persons.
SECTION 121. NO CONFLICT WITH SERIES SUPPLEMENTS
The terms and provisions of a Series Supplement for any particular Series may eliminate,
modify, amend or add to any of the terms and provisions of this Indenture, but solely as applied to
such Series. The insertion of the phrase in any Series Supplement, unless otherwise provided in
the related Series Supplement or similar phrases in this Indenture, or the absence of any such
phrase, shall not limit the scope of or otherwise affect the proceeding sentence or Section 202.
For greater certainty, if a term or provision contained in this Indenture shall conflict or be
inconsistent with a term or provision of any such Series Supplement, such Series Supplement shall
govern with respect to the Series to which it relates; provided, however, that the terms and
provisions of such Series Supplement may eliminate, modify, amend or add to the terms and
provisions of this Indenture solely as applied to such Series.
ARTICLE TWO
THE SECURITIES
SECTION 201. TITLE AND TERMS.
An unlimited aggregate principal amount of Securities may be authenticated and delivered under
this Indenture. The Securities may be issued in one or more Series. All Securities of a Series
shall be identical except as may be set forth in the applicable Series Supplement detailing the
adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the
case of Securities of a Series to be issued from time to time, the Series Supplement may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date
from which interest shall accrue) are to be determined. Securities may differ between Series in
respect of any matters.
Except as otherwise provided in the related Series Supplement, the Company hereby designates
the Corporate Trust Office in The City of New York as the Place of Payment for each Series (and, if
the Company shall designate and maintain an additional office or agency at the Place of Payment in
respect of such Series, also such additional Place of Payment) and initially appoints the Trustee
as the Paying Agent therefor; provided, however, that, at the option of the Company, interest may
be paid by
22
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 interest,
premium and other amounts, if any, 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 Cdn$1,000,000 (for Securities denominated in Canadian dollars) or
U.S.$1,000,000 (for Securities denominated in U.S. dollars), or the equivalent amount in any other
currency or currencies, 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 Ten.
SECTION 202. ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES.
At or prior to the issuance of any Securities within a Series, the following shall be
established by a Series Supplement pursuant to authority granted under a Board Resolution:
(a) the title of the Securities of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other Series);
(b) the ranking of the Securities of the Series relative to other Debt of the Company and the
terms of any subordination provisions;
(c) any limit upon the aggregate principal amount of the Securities of the Series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series);
(d) the date or dates on which the Maturity Consideration for the Securities of the Series
are payable;
(e) whether the Securities of the Series will bear interest and/or whether Securities will be
issued as Discount Securities or Linked Securities, the rate or rates (which may be fixed or
variable) at which the Securities of the Series shall bear interest, if any, and, if applicable,
the interest rate basis, formula or other method of determining such interest rate or rates, the
date or dates from which such interest, if any, shall accrue, the Interest Payment Dates on which
such interest, if any, shall be payable or the method by which such dates will be determined, the
record dates for the determination of Holders thereof to whom such interest is payable (in the case
of Securities in registered form), whether any interest will be paid on Default Interest and the
basis upon which such interest will be calculated if other than that of a 360 day year of twelve
30-day months;
23
(f) the currency or currencies, including composite currencies in which Securities of the
Series shall be denominated;
(g) any Place of Payment in addition to or instead of the Corporate Trust Office of the
Trustee and the method of such payment, if by electronic transfer, mail or other means, to the
extent different or additional to the method provided herein, where Securities of such Series may
be surrendered for registration, transfer or exchange and where demand to or upon the Company in
respect of such Securities and this Indenture may be served;
(h) the price or prices at which, the period or periods within which, and the terms and
conditions upon which, Securities of the Series may be redeemed, in whole or in part at the option
of the Company or otherwise;
(i) the form of the Securities of the Series and whether Securities of the Series are to be
issued in registered form or bearer form or both;
(j) whether Securities of the Series are to be issuable in fully certificated form or as
Book-Entry Securities and, if in certificated form, whether such Securities are to be issuable
initially in the form of one or more Global Securities and the form of any legend or legends to be
borne by any such Security;
(k) if the Securities of the Series shall be issued in whole or in part in the form of a
Global Security, the terms and conditions, if any, upon which such Global Security may be exchanged
in whole or in part for other individual definitive Securities of such Series to the extent
different from what is provided herein and the Depositary for such Global Security;
(l) any authenticating agent, Paying Agent, transfer agent or Security Registrar in respect
of such Series to the extent different than, or in addition to, any Person identified as such in
this Indenture;
(m) the terms and conditions, if any, upon which the Securities of the Series may be
converted into common shares or other equity interests of the Company, including the initial
conversion price or rate, the conversion period and any additional provisions;
(n) the obligation, if any, of the Company to redeem, purchase or repay the Securities of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which, the period or periods within which, and the terms and conditions
upon which, Securities of the Series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligations;
(o) the terms, if any, upon which the Securities of the Series may be exchanged for other
securities, and the terms and conditions upon which such exchange shall be effected, including the
initial exchange price or rate, the exchange period and any other additional provisions;
24
(p) if other than denominations of Cdn$1,000 or U.S.$1,000 and any integral multiple thereof,
the denominations in which the Securities of the Series shall be issuable;
(q) if the amount of Maturity Consideration with respect to the Securities of the Series may
be determined with reference to an index or pursuant to a formula or other method, the manner in
which such amounts will be determined and the calculation agent, if any, with respect thereto;
(r) if the principal amount payable at the Stated Maturity of Securities of the Series will
not be determinable as of any one or more dates prior to such Stated Maturity, the amount that will
be deemed to be such principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any Maturity other than the Stated Maturity and
which will be deemed to be outstanding as of any such date (or, in any such case, the manner in
which such deemed principal amount is to be determined);
(s) the applicability of, or any changes or additions to, the defeasance and discharge
provisions of Article Three;
(t) if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 402;
(u) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the
Securities of the Series of any properties, assets, moneys, proceeds, securities or other
collateral, including whether certain provisions of the Trust Indenture Act are applicable and any
corresponding changes to provisions of this Indenture as then in effect;
(v) any addition to or modification or elimination of the Events of Default (and the related
definitions) which applies to the Series and any change in the right of the Trustee or the
requisite Holders of such Series of Securities to declare the principal amount of, or interest,
premium or other amounts, if any, on, such Series of Securities due and payable pursuant to Section
402;
(w) the applicability of, and any addition to or change in, the covenants (and the related
definitions) set forth in Articles Seven or Nine or elsewhere in this Indenture which apply to
Securities of the Series;
(x) with regard to Securities of the Series that do not bear interest, the dates for certain
required reports to the Trustee;
(y) any guarantees to be provided in respect of the Companys obligations in respect of the
Securities of the Series and the terms and conditions, if any, pursuant to which such Series is to
be guaranteed; and
25
(z) any other terms of Securities of the Series (which terms shall not be expressly
prohibited by the provisions of this Indenture or prohibited by the Trust Indenture Act).
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Series Supplement referred to above, and the authorized principal amount of any Series may not be
increased to provide for issuances of additional Securities of such Series, unless otherwise
provided in such Series Supplement.
SECTION 203. DENOMINATIONS.
The Securities shall be issuable, except as otherwise provided with respect to any Series of
Securities pursuant to the related Series Supplement in accordance with Section 202, in fully
registered form without coupons and in denominations of Cdn$1,000 (for Securities denominated in
Canadian dollars) or U.S.$1,000 (for Securities denominated in U.S. dollars) and any integral
multiple thereof.
SECTION 204. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any two of the following officers
of the Company: its Chairman, any Vice-Chairman, its President and Chief Executive Officer, its
Chief Financial Officer, any Vice-President, its Treasurer or its Secretary. 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 at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Series Supplement delivered pursuant to Section 202,
upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its
authentication unless otherwise provided in the Series Supplement delivered pursuant to Section
202.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Series
Supplement delivered pursuant to Section 202, except as provided in Section 208.
Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to the applicable provisions of Article Five) shall be fully protected in relying on: (a)
the Series Supplement establishing the form of the Securities of that
26
Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers Certificate complying with Section 103 and (c)
an Opinion of Counsel complying with Section 103.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (b) if the Trustee in good faith by its trust committee shall determine that such
action would expose the Trustee to liability to Holders of any then outstanding Series of
Securities.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an agent of the Trustee to deal with the
Company or an Affiliate of the Company.
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 set forth in the applicable Series Supplement duly executed by or on behalf of 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 Seven, 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 Company shall have
assumed (or, by operation of law, shall have become liable for) the obligations of the Company
under the Securities pursuant to Article Seven, 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 Company, be exchanged for other Securities
executed in the name of the Successor Company 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 Company, 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 Company pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Securities, such Successor Company, at the option of any Holder but without expense
to such Holder, shall provide for the exchange of all Securities at the time Outstanding held by
such Holder for Securities authenticated and delivered in such new name.
SECTION 205. TEMPORARY SECURITIES.
27
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 of the same Series containing identical
terms and provisions upon surrender of the temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 902 or the relevant Series Supplement,
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 of the same Series containing identical terms and provisions and 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 206. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept (i) by the Trustee at its Corporate Trust Office or (ii) by
such other registrar as the Company may appoint at such other place or places (if any) in respect
of any Series as the Company may designate pursuant to the related Series Supplement or Section
902, a register (the register maintained in such office and in any other office or agency
designated pursuant to Section 902 being herein sometimes referred to as the Security Register)
in which, subject to such reasonable regulations as it may prescribe, the Trustee or the Person
maintaining the Security Register shall provide for the registration of Securities and of transfers
of Securities as herein provided. Said office or agency shall be the Security Registrar for the
Securities of each Series.
Upon surrender for registration of transfer of any Security at the Corporate Trust Office of
the Trustee or any other office or agency of the Company designated pursuant to Section 902, 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 the same Series of any
authorized denomination or denominations, of a like aggregate principal amount and containing
identical terms and provisions.
At the option of the Holder, Securities may be exchanged for other Securities of the same
Series containing identical terms and provisions, in any authorized
28
denomination or denominations, and 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, the Company shall execute, and the Trustee shall authenticate and deliver, the
replacement Securities which the Holder making the exchange is entitled to receive.
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.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer, or for exchange or
redemption, shall (if so required by the Company or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange or redemption of
Securities, but the Company may require payment of a sum sufficient to pay all documentary, stamp
or similar issue or transfer taxes or other governmental charges that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchanges pursuant to
Section 204, 205, 806, 1008 or 1009 not involving any transfer.
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 1005 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 207. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The related Series Supplement shall establish whether the Securities of a Series shall be
issued in whole or in part in the form of one or more Global Securities and the Depositary for such
Global Security or Securities. Ownership of the Book-Entry Securities will be constituted through
beneficial interests in the Book-Entry Securities held by the Depositary or its nominee in the form
of a Global Security, and will be represented through book-entry accounts of Clearing Agency
Participants, acting on behalf of the Beneficial Owners of such Book-Entry Securities. Any
registration of
29
beneficial ownership in, and transfers of beneficial ownership of, Book-Entry Securities may
be made only through the applicable Book-Based System by a Clearing Agency Participant of the
Depositary identified in the related Series Supplement. In such case, the Trustee shall deal with
the Depositary and Clearing Agency Participants as representatives of the Beneficial Owners of such
Securities for purposes of exercising the rights of Holders hereunder, as provided in this
Indenture. Requests and directions from such representatives shall not be deemed to be
inconsistent if they are made with respect to different Beneficial Owners.
(b) Notwithstanding any provisions to the contrary contained in any other provisions of this
Indenture and in addition thereto, except as otherwise specified in the related Series Supplement,
any Book-Entry Security that is a Global Security shall be exchangeable pursuant to Section 206 of
this Indenture for Securities of the same Series registered in the names of Beneficial Owners other
than the Depositary for such Security or its nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global Security or if at
any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in
either case, the Company fails to appoint a successor Depositary within 90 days of such event, (ii)
the Company executes and delivers to the Trustee an Officers Certificate to the effect that such
Global Security shall be so exchangeable or (iii) an Event of Default with respect to the
Securities of such Series represented by such Global Security shall have occurred and be
continuing. Any Book-Entry Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Securities registered in such names as the Depositary shall direct in writing
in an aggregate principal amount equal to the principal amount of such Book-Entry Security with
like tenor and terms.
Except as provided above in this Section 207(b), a Global Security may only be transferred in
whole but not in part (i) by the Depositary with respect to such Global Security to a nominee of
such Depositary, (ii) by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or (iii) by the Depositary or any such nominee to a successor Depositary or a nominee of
such a successor Depositary.
(c) Any Global Security issued hereunder shall bear a legend in substantially the following
form:
THIS SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO THE INDENTURE, (B) THIS SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 207(B) OF THE INDENTURE, (C) THIS SECURITY MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 211 OF THE INDENTURE AND (D) EXCEPT AS OTHERWISE PROVIDED IN
SECTION 207(B) OF THE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY
(X) BY THE DEPOSITARY TO A NOMINEE OF THE
30
DEPOSITARY, (Y) BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR (Z) BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.
(d) The Company, the Trustee and any agent of the Trustee shall treat a person as the Holder
of such principal amount of outstanding Securities of such Series represented by a Global Security
as shall be specified in a written statement of the Depositary with respect to such Global
Security, for purposes of obtaining any consents, declarations, waivers or directions required to
be given by the Holders pursuant to this Indenture.
SECTION 208. 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) in connection therewith.
Every replacement Security of any Series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security of such Series shall constitute a contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security of such Series shall be at any time
enforceable by anyone, and the Holder thereof shall be entitled to all benefits of this Indenture
equally and proportionately with any and all Holders of other Securities of such Series 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.
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SECTION 209. 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, to the extent provided for in the Series Supplement in
respect of such Security and to the extent lawful, interest on such defaulted interest at the
interest rate provided for such purpose in such Series Supplement (such defaulted interest and any
interest thereon herein collectively called Default Interest), shall forthwith cease to be
payable to the Holder of such Security on the Regular Record Date by virtue of having been such
Holder; and such Default 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 Default 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 Default Interest,
which shall be fixed in the manner following. The Company shall notify the Trustee in
writing of the amount of Default 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 or
the Paying Agent an amount of money equal to the aggregate amount proposed to be paid in
respect of such Default Interest or shall make arrangements satisfactory to the Trustee or
the Paying Agent 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 Default
Interest as in this Subsection provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Default 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 Default
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 Default Interest
and the Special Record Date therefor having been so mailed, such Default Interest shall be
paid to the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (b).
(b) The Company may make payment of any Default 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
32
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 210. 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 209) interest on such Security and for all other purposes
whatsoever other than the obligations of the Company under Section 907, 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 211. 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. Upon
written request by the Company, 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.
33
SECTION 212. COMPUTATION OF INTEREST.
Except as otherwise contemplated by Section 201, interest on the Securities of any Series
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 to which any rate of interest payable under a Security,
which is to be calculated on any basis other than a full calendar year, is equivalent may be
determined by multiplying the rate by a fraction, the numerator of which is the number of days in
the calendar year in which the period for which interest at such rate is payable and the
denominator of which is the number of days comprising such other basis.
ARTICLE THREE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 301. COMPANYS OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option by Board Resolution, at any time, with respect to the
Securities or any Series of Securities, elect to have either Section 302 or Section 303 be applied
to all Outstanding Securities or all Outstanding Securities of such Series upon compliance with the
conditions set forth below in this Article Three.
SECTION 302. DEFEASANCE AND DISCHARGE.
Upon the Companys exercise under Section 301 of the option applicable to this Section 302,
the Company (and, as applicable, any Guarantors) shall be deemed to have been discharged from its
obligations with respect to all Outstanding Securities or all Outstanding Securities of a Series,
as the case may be, on the date the conditions set forth in Section 304 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 such Securities, which
shall thereafter be deemed to be Outstanding only for the purposes of Section 305 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 such Securities to receive solely
from the trust fund described in Section 304 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 Companys obligations with respect to such Securities under Sections 205,
206, 208, 902, 903, 907 (for purposes of applying Section 907, if the Trustee (or any other
qualifying trustee referred to in Section 304(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 907) from any payment made from the trust fund described in Section 304 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
34
required to withhold or deduct) and 908, (C) the Companys right of redemption in respect of such
Securities pursuant to Section 1001(b), provided that either (i) the change or amendment referred
to therein occurs after defeasance is exercised by the Company in accordance with Section 304 or
(ii) the Company was, immediately before the defeasance, entitled to redeem the Securities pursuant
to Section 1001(b), in which case the Company may redeem the Securities in accordance with Article
Ten by complying with such Article and depositing with the Trustee, in accordance with Section
1006, an amount of money sufficient, together with all amounts held in trust pursuant to Section
304(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 Companys obligations in connection
therewith, including the Companys obligations under Section 507 and (E) this Article Three.
Subject to compliance with this Article Three, the Company may exercise its option under this
Section 302 notwithstanding the prior exercise of its option under Section 303 with respect to the
Securities.
SECTION 303. COVENANT DEFEASANCE.
Upon the Companys exercise under Section 301 of the option applicable to this Section 303,
the Company (and, as applicable, any Guarantors) shall be released from its obligations under any
covenant contained in Article Seven and in Sections 904 through 906 and any and all additional or
different covenants in the Series Supplement (unless otherwise indicated therein), in each case,
with respect to the Outstanding Securities or the Outstanding Securities of the applicable Series,
as the case may be, on and after the date the conditions set forth below in Section 304 are
satisfied (hereinafter, covenant defeasance), and such 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 such 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 401(c), but, except as specified above, the remainder of this
Indenture (including Section 507 hereof) and such Securities shall be unaffected thereby. In
addition, upon the Companys exercise under Section 301 of the option applicable to Section 303,
none of Subsections 401(c) through (e) nor any additional or different Events of Default
established in the applicable Series Supplement (unless otherwise specified therein) shall
constitute Events of Default with respect to such Securities.
35
SECTION 304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 302 or Section 303 to
all Outstanding Securities or all Outstanding Securities of a Series, as applicable:
(1) The Company shall irrevocably have deposited or, through the Paying Agent,
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 509 who shall agree to comply with the provisions of this
Article Three applicable to it) as trust funds, in trust, for the purpose of making
the following payments in its own capacity or through the Paying Agent,
specifically pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (x) cash in the currency or currencies in which such
Securities are payable or (y) 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
the currency or currencies in which such Securities are payable or (z) any
combination of the foregoing which would, in the aggregate, be in an amount
sufficient, in the opinion of a nationally recognized firm of independent public
accountants or chartered accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (and which shall be applied by the
Trustee or the Paying Agent (or other qualifying trustee) to pay and discharge) the
principal of, and interest and premium, if any, on, such Securities on the
respective Stated Maturities (or Redemption Date, if applicable) thereof; provided
that the Trustee or the Paying Agent (or other qualifying trustee) shall have been
irrevocably instructed by the Company to apply such money to said payments with
respect to such Securities. Before such a deposit, the Company may give the
Trustee, in accordance with Section 1003 hereof, a notice of its election to redeem
all of the Outstanding Securities or all of the Outstanding Securities of a Series
at a future date in accordance with Article Ten hereof or any applicable provisions
of the Series Supplement for such Securities, which notice shall be irrevocable.
(2) No Default or Event of Default shall have occurred and be continuing on
the date of the deposit under clause (1) above or, insofar as Subsection 401(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
36
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 302, 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 the date of issuance of such Securities,
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,
such Holders 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 303, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States to the effect
that such Holders will not recognize income, gain or loss for United States federal
income tax purposes as a result of such covenant defeasance and will be subject to
United States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not
occurred.
(7) The Company shall have delivered to the Trustee an Opinion of Counsel in
Canada to the effect that such Holders 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
302 or Section 303 was not made by the Company with the intent of preferring such
Holders over other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others.
37
(9) The Company shall have delivered to the Trustee an Officers Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating to
either the defeasance under Section 302 or the covenant defeasance under Section
303 (as the case may be) have been complied with.
SECTION 305. DEPOSITED MONEY TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS.
Subject to the provisions of the last paragraph of Section 903 and the provisions of Section
506, all money and Government Obligations (including any proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section 305, the Trustee)
in respect of Securities of a Series pursuant to Section 304 shall be held in trust and applied by
the Trustee, in accordance with the provisions of 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 of, and interest or premium, if any, on, such Securities, 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 Government Obligations deposited pursuant to
Section 304 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 applicable Series.
Anything in this Article Three to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or Government Obligations held
by it as provided in Section 304 which, in the opinion of a nationally recognized firm of
independent public accountants or chartered accountants expressed in a written certification
thereof delivered to the Trustee (which may be included with the opinion delivered under Section
304(1)), are in excess of the amount thereof which would then be required to be deposited to effect
defeasance or covenant defeasance, as the case may be, of the applicable Securities or Series of
Securities.
SECTION 306. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
305, by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Companys obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 302 or 303, 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 305; provided, however, that, if
the Company makes any payment of the principal of, or interest, premium, or other amounts, if any,
on, any Security following the reinstatement of its obligations, the Company shall be subrogated
38
to the rights of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE FOUR
REMEDIES
SECTION 401. EVENTS OF DEFAULT.
Unless otherwise indicated for a particular Series of Securities by the applicable Series
Supplement, with respect to each Series of Securities, Event of Default, wherever used herein,
means any one of the following events and any additional events identified as being an Event of
Default in respect of such Series in the related Series Supplement (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 the Redemption Price on) any
Security of such Series when it becomes due and payable at its Maturity; or
(b) default in the payment of any interest or any Additional Amounts on any Security
of such Series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(c) default in the performance, or breach, of any covenant of the Company or of any
Restricted Subsidiary in this Indenture that is applicable to such Series (other than a
default in the performance, or breach, of a covenant 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 of such Series a written notice specifying such default or breach and stating
that such notice is a Notice of Default hereunder; or
(d) (i) there shall have occurred one or more defaults of the Company or any
Restricted Subsidiary in the payment of the principal of or premium on any indebtedness for
money borrowed having an aggregate principal amount in excess of the greater of
Cdn$100,000,000 and 3.5% of Shareholders Equity (or the equivalent amount in any other
currency or currencies), 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 the principal amount of any indebtedness for money borrowed of the
Company or any Restricted Subsidiary having an aggregate principal amount in excess of the
greater of Cdn$100,000,000 and 3.5% of Shareholders Equity (or the equivalent amount in
any other currency or currencies) and, in any case referred to in the foregoing clause (i),
such Debt has not been paid or, in any case referred to in the
39
foregoing clause (ii), such acceleration has not been rescinded or annulled, in each
case within 10 days of such non-payment or acceleration; or
(e) any judgments or orders aggregating in excess of the greater of Cdn$100,000,000
and 3.5% of Shareholders Equity (or the equivalent amount in any other currency or
currencies) 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 60 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 and, if the Company or such Restricted Subsidiary
shall be contesting such appointment in good faith, such appointment continues for 90
consecutive days.
Bankruptcy Law means the
Bankruptcy and Insolvency Act
(Canada), the
Companies Creditors
Arrangement Act
(Canada) or any other similar applicable Canadian federal or provincial law or
similar applicable 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 in bankruptcy, 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,
40
dissolution or reorganization, or appointing a Custodian of a debtor or of all or any
substantial part of a debtors property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
SECTION 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section 401(f), 401(g) or
401(h)) occurs and is continuing with respect to any Series of Securities, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities of such Series then Outstanding may declare the principal of all such Securities to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal shall become immediately due and payable.
If an Event of Default specified in Section 401(f), 401(g) or 401(h) occurs and is continuing with
respect to a Series of Securities, then the principal of all Securities of such Series 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 shall deliver to the Trustee, within 15 days after the Company becoming aware of
the occurrence thereof, written notice in the form of an Officers Certificate of any Event of
Default and any event which with the giving of notice or the lapse of time would become an Event of
Default, its status and what action the Company is taking or proposes to take with respect thereto.
Notwithstanding the foregoing, the Company will deliver to the Trustee, within 10 days after the
occurrence thereof, notice of any acceleration or default in payment of indebtedness for money
borrowed referred to in Section 401(d).
At any time after a declaration of acceleration has been made in respect of an Event of
Default with respect to any Series of Securities 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
such affected Series may, by a Holder Direction, rescind and annul such declaration and the
consequences of such declaration of acceleration. In each such case, the rescission and annulment
will be effective on the last date on which each of the following have been satisfied:
(a) written notice of such Holder Direction is delivered to the Company and the
Trustee;
(b) 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 any Securities of such Series,
(2) all principal, premium and other amounts for any Securities of such Series
that have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by such Securities,
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(3) to the extent provided for in the Series Supplement in respect of the
Securities of such Series and to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided for such purpose in
such Series Supplement, 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 507; and
(c) all Events of Default with respect to such Series, other than the non-payment of
principal of, and interest, premium and other amounts on, Securities of such Series which
have become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 413.
No such rescission and annulment shall affect any subsequent Event of Default with respect to such
Series or impair any right consequent thereon. In addition, no recission or annulment in respect
of one Series shall affect any Event of Default with respect to any other Series or impair any
right of the Trustee or the Holders of such other Series with respect thereto.
Notwithstanding the preceding paragraph, in the event of a declaration of acceleration in
respect of any Securities because an Event of Default specified in Section 401(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 403. 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 of a Series of Securities 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 of a Series of Securities at the Maturity thereof,
the Company will, upon demand of the Trustee or, subject to Section 407, upon demand of the Holders
of not less than 25% in aggregate principal amount of the Securities of
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such Series then Outstanding, pay to the Trustee, 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 provided for in the Series Supplement for such Securities and to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of interest, at the rate
provided for such purpose in such Series Supplement; 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 such 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 such Securities, wherever situated.
If an Event of Default with respect to a Series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the Holders of the
Securities of such Series under this Indenture by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights.
SECTION 404. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal (and premium, if any)
and interest owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due to the Trustee pursuant
to Section 507) and of the Holders allowed in such judicial proceeding, and
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(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, in its own capacity or through the Paying Agent;
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
or the Paying Agent 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 507.
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 405. 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 507, be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 406. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article for a Series of Securities 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 such Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 507 with respect to such
Series;
SECOND: To the payment of the amounts then due and unpaid upon such 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;
44
THIRD: To the payment of any other amounts due and payable with respect to such Series; and
FOURTH: The balance, if any, to the Company.
SECTION 407. LIMITATION ON SUITS.
No Holder of any Securities of any Series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or such Securities, or for the appointment of
a receiver, receiver and manager or trustee in respect of the Company or a Subsidiary of the
Company, or to pursue any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee and the Company, or
has received written notice from the Trustee, of a continuing Event of Default with respect
to such Series;
(b) the Holders of not less than 25% in aggregate principal amount of all of the
Outstanding Securities of such Series 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 funding and
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
funding and indemnity has failed to institute any such proceeding; and
(e) during such 60-day period the Trustee has not received a contrary Holder Direction
from the Holders of such Series;
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 (whether of the same Series or any other Series), or to
obtain or to seek to obtain priority or preference over any other Holders (whether of the same
Series or any other Series) 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 408. 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 209) interest and any Additional Amounts on such Security
on the respective Maturities thereof expressed in
45
such Security and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 409. 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 410. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 208, 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 411. 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 412. CONTROL BY HOLDERS.
Except as otherwise provided in this Indenture, and subject to compliance with the provisions
of this Indenture requiring the giving of sufficient funds and indemnity to the Trustee, the
Holders of a Series shall have the right, in each case by a Holder Direction, 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, under this Indenture with respect to such
Securities; provided that
(a) such Holder Direction shall not be in conflict with any rule of law or with this
Indenture or expose the Trustee to personal liability,
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(b) subject to the provisions of the Trust Indenture Act, the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such Holder
Direction, and
(c) such Holder Direction is not unduly prejudicial to the rights of other Holders of
Securities of such Series.
SECTION 413. WAIVER OF PAST DEFAULTS.
The Holders of Outstanding Securities of any Series with respect to which a Default or Event
of Default shall have occurred and be continuing may, on behalf of all Holders of such Series,
waive any past Default or Event of Default hereunder and its consequences by providing written
notice of a Holder Direction to the Trustee, except a Default or Event of Default
(a) in the payment of the principal of (or premium, if any) or interest on any such
Security of such Series, or
(b) in respect of a covenant or provision hereof which under Article Eight cannot be
modified or amended without the consent of the Holder of each Outstanding Security
affected.
Upon any such waiver becoming effective with respect to a Series, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been cured, for purposes
of such Series 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 414. 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 of a Series of 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).
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ARTICLE FIVE
THE TRUSTEE
SECTION 501. 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 persons own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsections
(a) or (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent;
(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 a Holder Direction
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
48
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 502. NOTICE OF DEFAULTS.
The Trustee shall, within a reasonable time but not exceeding 90 days after the occurrence of
any Default with respect to any Series, transmit by mail to all Holders of the applicable Series,
as their names and addresses appear in the Security Register, notice of such Default hereunder
known to the Trustee, unless such Default is not an Event of Default and shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment of the principal of
(or premium, if any) or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interests of the Holders of the
Securities of such Series 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 Company shall notify the Trustee of such cure,
and 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 of the applicable Series, as
their names and addresses appear in the Security Register, the Companys notice that the Default is
no longer continuing.
SECTION 503. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 501:
(a) the Trustee may act and 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 (other than delivery of any Security to the
Trustee for authentication and delivery pursuant to Section 204 which shall be sufficiently
evidenced as provided therein) 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
49
specifically prescribed) may, in the absence of bad faith on its part, rely upon an
Officers Certificate and/or Opinion of Counsel;
(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) except as provided in clause (a) above, 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;
(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;
(h) in no event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited to, lost
profits, even if the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action; and
(i) in no event shall the Trustee be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or undeclared),
terrorism, fire, riot, embargo, government action, including any laws, ordinances,
regulations, governmental action or the like which delay, restrict or prohibit the
providing of the services contemplated by this Agreement.
SECTION 504. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustees 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 created
50
hereunder. The Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 505. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any 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 Section 513 and 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 506. 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 507. 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 in accordance with a written fee schedule executed by the Company,
which may be amended from time to time with the written consent of the Company and the
Trustee (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 properly documented expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the properly documented expenses and
disbursements of its agents and counsel), except any such expense, disbursement or advance
as may be attributable solely to its or its agents negligence, willful misconduct or bad
faith; and
(c) to indemnify the Trustee (which for purposes of this Subsection (c) shall include
The Bank of New York Mellon in every role it performs hereunder and its officers,
directors, employees, counsel, and agents) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, willful misconduct 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.
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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 of any Series,
pro rata
in accordance
with their respective principal amounts, 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,
including such funds held for the payment of the principal of, or any interest, premium or other
amounts payable on, such Securities.
The Companys payment of indemnity obligations pursuant to this Section 507 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 an Event of
Default specified in Section 401(f), (g) or (h), the expenses are intended to constitute expenses
of administration under any Bankruptcy Law.
SECTION 508. CONFLICTING INTERESTS.
The Trustee shall comply with the terms of Trust Indenture Act Section 310(b).
SECTION 509. 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 510. 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 511.
(b) The Trustee may resign at any time by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by Section 511
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 Companys expense) for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time with respect to the Securities of a Series
by a Holder Direction from the Holders of the Outstanding Securities of such Series
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 508 and
shall fail to resign after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 509, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent, or a receiver or receiver and manager of the Trustee or of
its property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee with respect
to all Securities or any applicable Series of Securities, or (ii) subject to Section 414, in the
case of clause (1) above, the Holder of any Security who has been a bona fide Holder of a Security
for at least six months, and in the case of clauses (2) and (3) above, the Holder of any Security
and any other interested party may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect all
Securities of such Series 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, with respect to one or more
Series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those Series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of one or more
or all of such Series and that at any time there shall be only one Trustee with respect to
the Securities of any particular Series). If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to any Series shall be appointed by a Holder Direction and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with Section 511, become the successor Trustee with respect to such Series
and, to that extent, supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed with respect to a Series, by the Company or
the Holders of the Securities of such Series, and so accepted such appointment, the
retiring Trustee or the Holder of any Security of such Series 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.
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(f) Any new Trustee hereunder appointed under any provision of this Section shall be
qualified to act as Trustee hereunder in accordance with Section 509, shall certify that it
will not have any material conflict of interest upon becoming Trustee hereunder, and shall
accept the trusts herein declared and provided for. On any new appointment, the new
Trustee shall be vested with the same powers, rights, duties and responsibilities as if it
had been originally named herein as Trustee.
(g) The Company shall give notice of each resignation and each removal of the Trustee
with respect to a Series and each appointment of a successor Trustee with respect to a
Series by mailing written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such Series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee for such Series and
the address of its Corporate Trust Office.
SECTION 511. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) 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 507, 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 507.
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.
(b) In case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) Series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more Series shall execute and
deliver a supplemental indenture wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those
Series to which the appointment of such successor Trustee relates; (ii) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those Series as to
which the retiring Trustee is not retiring shall continue to be vested in the
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retiring Trustee; and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees of the same trust,
that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act or failure
to act on the part of any other Trustee hereunder, and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with respect to the
Securities of that or those Series to which the appointment of such successor Trustee
relates have no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this Indenture other
than as hereinafter expressly set forth, and each 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 with respect to the Securities of that or those Series
to which the appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee and upon the payment of any amount to the Trustee under Section
507, such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities of that or those
Series to which the appointment of such successor Trustee relates.
(c) 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 512. 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.
SECTION 513. TRUSTEE NOT TO BE APPOINTED RECEIVER.
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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 514. 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 SIX
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 601. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
(a) Upon application to the Trustee in accordance with the Trust Indenture Act,
Holders of a particular Series of Securities may communicate pursuant to the Trust
Indenture Act with other Holders of such Series with respect to their rights under this
Indenture or the Securities.
(b) In addition, a Holder of a particular Series of Securities 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 of Outstanding Securities of such Series, the
aggregate principal amount of Outstanding Securities owned by each registered Holder of
such Series and (ii) the aggregate principal amount of Outstanding Securities of such
Series, 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 and address 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
of such Series, an offer to acquire such Securities, or any other matter relating to such
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.
(d) The Company shall comply with the terms of Trust Indenture Act Section 312(a).
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SECTION 602. 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 603. 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 filed by the Company pursuant to Subsections (a) and (b)
of this Section.
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ARTICLE SEVEN
AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 701. 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 (the
Successor Company) (i) shall be a corporation, company, partnership or trust organized
and validly existing under (A) the federal laws of Canada or any Province thereof or (B)
the laws of the United States of America or any State thereof or the District of Columbia
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 of every Series under this Indenture (provided, however,
that the Successor Company shall not be required to execute and deliver such a supplemental
indenture in the event of an amalgamation of the Company with one or more other Persons, in
which (x) the amalgamation is governed by the laws of Canada or any province thereof, (y)
the Successor Company and the Company are, immediately prior to such amalgamation,
organized and existing under the laws of Canada or any province thereof and (z) upon the
effectiveness of such amalgamation, the Successor Company shall have become or shall
continue to be (as the case may be), by operation of law, liable for the due and punctual
payment of the Securities and the due and punctual performance and observance of all other
obligations of the Company under the Securities of every Series under this Indenture);
(b) immediately after giving effect to such transaction (and, to the extent applicable
in respect of any Series, 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 the Successor Company 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
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this Article and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 702. 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 701, the Successor Company 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 Company 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.
ARTICLE EIGHT
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 801. SUPPLEMENTAL INDENTURES AND AMENDMENTS WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, any
Guarantors of the affected Securities, if applicable, 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 in
accordance with Article Seven;
(b) to add to the covenants of the Company for the benefit of the Holders of any
Series of Securities, or to Events of Default in respect of a Series of Securities, or to
surrender any right or power herein or in the Securities of any Series conferred upon the
Company;
(c) to give effect to any Holder Direction or any other direction from Holders
permitted to be given under this Indenture, and to any other Act of the Holders made, given
or taken by the Holders of one or more Series in accordance with this Indenture;
(d) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series, and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 511(b);
(e) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or therein,
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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 of any Series in any material respect;
(f) to add security to, to further secure, or to guarantee the Securities of any
Series;
(g) to confirm and evidence the release, termination or discharge of any guarantee or
security in respect of the Securities of any Series when such release, termination or
discharge, as applicable, is permitted by this Indenture; or
(h) to make any other change to this Indenture or the Securities of a Series that does
not adversely affect the interests of the Holders of the Securities of such Series in any
material respect.
In addition, without the consent of any Holders, but subject to the terms and conditions of
this Indenture, the Company and the Trustee may, and the Trustee shall, upon the written request of
the Company or when so directed by this Indenture, make, execute, acknowledge and deliver Series
Supplements from time to time to establish the form or terms of a Series of Securities which the
Company wishes to issue under this Indenture.
SECTION 802. SUPPLEMENTAL INDENTURES AND CERTAIN AMENDMENTS WITH CONSENT OF
HOLDERS.
The Company, when authorized by a Board Resolution, any Guarantors of the affected Securities,
if applicable, and the Trustee may, and the Trustee shall upon written request of the Company or
when so directed by this Indenture, 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 the Securities of any Series or of waiving or modifying in any manner the
rights of the Holders of a Series under this Indenture or the Securities of such Series upon
delivery to the Company and the Trustee of written notice of a Holder Direction from the Holders of
Outstanding Securities of each Series that would be affected by such supplemental indenture or
indentures, as the case may be; provided, however, that no such supplemental indenture, amendment
or waiver shall, without the consent of the Holder of each Outstanding Security of a Series
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
reduce the Redemption Price 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 percentage in principal amount of the Outstanding Securities of such
Series, the consent of whose Holders is required for any such
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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
(c) modify any of the provisions of this Section or Section 413, 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 Outstanding Security of such
Series affected thereby.
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. Notwithstanding anything to the contrary in this Indenture, any action that
is permitted or authorized to be taken by a Holder Direction shall be binding upon all Holders of
the applicable Series regardless of whether a particular Holder shall have approved such Holder
Direction and, except as otherwise provided in such Holder Direction, regardless of whether the
Holders of any other affected Series shall have approved such action in respect of such other
affected Series under this Section.
SECTION 803. 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 503
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, that any
conditions precedent have been satisfied, and that the supplemental indenture is legal, valid,
binding and enforceable under the laws of the State of New York, and conforms to the Trust
Indenture Act. The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustees own rights, duties or immunities under this Indenture or
otherwise.
SECTION 804. 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 of the applicable Series theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 805. 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.
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SECTION 806. 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 or the Company, 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
Board of Directors, to any such supplemental indenture may be prepared and executed by the Company
and, upon Company Order, authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 807. EXECUTION OF SUBORDINATION AGREEMENTS.
In the event that the Trustee receives an Officers Certificate (i) to the effect that the
Company or a Restricted Subsidiary proposes to issue Debt subordinated in right of payment to
Securities of any Series or the senior indebtedness of such Restricted Subsidiary, as the case may
be, and that the issuance of such new subordinated Debt is in compliance with the terms of this
Indenture and (ii) requesting that the Trustee execute a subordination agreement (or instrument of
like effect) with the holders of such subordinated Debt or their representative, then, upon Company
Order, the Trustee shall, without the consent of any Holder, execute such subordination agreement
(or instrument of like effect).
ARTICLE NINE
COVENANTS
SECTION 901. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each Series that it will
duly and punctually pay the principal of (and premium, if any) and interest on the Securities of
such Series in accordance with the terms of such Securities and this Indenture.
SECTION 902. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain, or cause the related Security Registrar or related Paying Agent, as
the case may be, to maintain, an office or agency at each Place of Payment for a Series where
Securities of such Series may be presented or surrendered for payment and where such Securities may
be surrendered for registration of transfer or exchange. 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
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furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may from time to time designate one or more other offices or agencies (in or
outside of the Place of Payment) where the Securities of one or more Series 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 Place of Payment for each Series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and any change in the location of any such office or agency.
SECTION 903. 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) or, to extent
specified in the applicable Series Supplement, other consideration sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum or other consideration 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)
and 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
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(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 and other consideration held in trust by the Company or such Paying Agent,
such sums and other consideration to be held by the Trustee upon the same trusts as those upon
which such sums and other consideration 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 sums and other consideration.
Except as otherwise provided in the Series Supplement, and subject to applicable laws, 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 (or such shorter period as may be specified in the applicable abandoned
property statutes) 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 904. CORPORATE EXISTENCE.
Subject to Article Seven, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate (or its applicable equivalent) existence
and corporate (or its applicable equivalent) power and authority of the Company and each Restricted
Subsidiary; provided, however, that the Company shall not be required to preserve any such
corporate or equivalent existence and corporate or equivalent 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 905. 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
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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 906. 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 906(a), the Company shall furnish without cost to each
Holder of the Securities and file with the Trustee (i) within 120 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), and (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.
SECTION 907. 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 in
respect of a Beneficial Owner (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received in respect of such Beneficial Owner
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 in respect of a Beneficial Owner (each, an
Excluded
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Holder) (i) with which the Company does not deal at arms length (within the meaning of the
Income Tax Act (Canada)) at the time of making such payment, (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) which is
subject to such Taxes by reason of its failure to comply with any certification, identification,
documentation or other reporting requirements if compliance is required by law, regulation,
administrative practice or an applicable treaty as a pre-condition to exemption from, or a
reduction in the rate of deduction or withholding of, such Taxes, (iv) 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 payment thereof is duly provided for, whichever is
later (except to the extent that the Holder would have been entitled to such Additional Amounts had
the Securities been presented on the last day of such 15-day period) or (v) to the extent that such
withholding is imposed on a payment to a Holder or Beneficial Owner 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, the
Company will furnish, as soon as reasonably practicable, to such Holder certified copies of tax
receipts evidencing such payment by the Company. The Company will indemnify and hold harmless each
Holder in respect of a Beneficial Owner (other than an Excluded Holder) and, upon written request
of any Holder (other than an Excluded Holder) reimburse such Holder for the amount of (i) any such
Taxes so levied or imposed and paid by such Holder as a result of any failure of the Company to
withhold, deduct or remit to the relevant tax authority, on a timely basis, the full amounts
required under applicable law; and (ii) any such Taxes so levied or imposed with respect to any
reimbursement under the foregoing clause (i), so that the net amount received by such Holder in
respect of a Beneficial Owner after such reimbursement would not be less than the net amount such
Holder would have received in respect of such Beneficial Owner if such Taxes on such reimbursement
had not been imposed.
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, stating 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, 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).
66
The obligations of the Company under this Section 907 shall survive the discharge and
termination of this Indenture and the payment of all amounts under or with respect to the
Securities.
SECTION 908. 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 officers 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 908, such compliance shall
be determined without regard to any period of grace or requirement of notice under this Indenture.
The Company shall furnish to the Trustee, upon the demand of the Trustee, evidence, in the
form required by the Trustee, as to the Companys compliance with any condition in the Indenture
relating to any action required or permitted to be taken by the Company under this Indenture or as
a result of any obligation imposed by this Indenture.
SECTION 909. SUBORDINATION ARRANGEMENTS
(i) The Company and any Restricted Subsidiaries, to the extent any of them is
an obligor under 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 Exhibit A hereto, which provisions shall be
incorporated into agreements or instruments evidencing Inter-Company Subordinated
Debt.
(ii) For greater certainty, notwithstanding the provisions of any
Inter-Company Subordinated Debt, any provisions 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 909(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 any Holder which the Trustee or such Holder is required to pay
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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.
SECTION 910. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any covenant or condition set
forth in Sections 905 and 906 or in any and all additional or different covenants or conditions
provided in the applicable Series Supplement (except as otherwise indicated therein), in each case,
with respect to any Series of Securities to which such covenant or condition applies, if, before or
after the time for such compliance, the Holders of the Outstanding Securities of such affected
Series shall, by Holder Direction, 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 for purposes of such Series.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. RIGHT OF REDEMPTION.
(a) The Securities of a Series may be redeemed, at the election of the Company, as a
whole or from time to time in part, at any time, subject to the conditions and at the
Redemption Price specified in the form of Security set forth in the applicable Series
Supplement, together with accrued interest to the Redemption Date.
(b) If, as a result of any change in, or amendment to, the laws (or any regulations
promulgated thereunder) or treaties 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, regulations or treaties, which
change or amendment is announced or becomes effective on or after the date of issuance of
the Securities of any particular Series, 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 of such Series, any Additional Amounts in accordance with Section 907 hereof,
then the Company may, at its option, redeem such 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 such Securities.
SECTION 1002. APPLICABILITY OF ARTICLE.
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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 1003. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to Section 1001 shall be
evidenced by a Board Resolution. In case of any redemption at the election of the Company, the
Company shall, at least 30 but not more than 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, the applicable Series of Securities to be redeemed and of the principal amount of
such Securities to be redeemed.
SECTION 1004. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of a Series 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 of such Series not
previously called for redemption, on a pro rata basis, and the amounts to be redeemed may be equal
to Cdn$1,000 (for Securities denominated in Canadian dollars) or U.S.$1,000 (for Securities
denominated in U.S. dollars) 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 1005. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities of the Series
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;
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(c) if less than all Outstanding Securities of a Series 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 1006. DEPOSIT OF REDEMPTION PRICE.
Prior to, and in any event no later than 10:00 a.m. New York City time, on 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 903) an amount of money in same day funds 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 1007. 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 209.
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 1008. 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 902
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(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 1009. 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 902 (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 Holders
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.
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the day and year first above written.
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ROGERS COMMUNICATIONS INC.,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President, Finance and Chief Financial Officer
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THE BANK OF NEW YORK MELLON,
as Trustee
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By
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/s/ Catherine F. Donohue
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Name:
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Catherine F. Donohue
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Title:
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Vice President
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Exhibit A
PROVISIONS FOR INTER-COMPANY SUBORDINATED DEBT
1. Terms defined in the Indenture dated as of August 6, 2008 between Rogers Communications
Inc. and The Bank of New York Mellon, as Trustee (the Indenture) to which this Exhibit is
attached and used herein have the meanings attributed to such terms in the Indenture. As used
herein, the term Relevant Obligor means the Obligor creating, incurring, assuming or suffering to
exist any Inter-Company Subordinated Debt. The term Obligor means any of the Company and any
Restricted Subsidiary.
2. The indebtedness evidenced by this agreement shall constitute Inter-Company Subordinated
Debt and the Relevant Obligor and the relevant creditor who is owed such indebtedness (the
Relevant Creditor) agree that the payment of the principal of (and premium, if any), and interest
on such indebtedness is expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all amounts from time to time owing to
the Holders of the Securities (which amounts are hereinafter called Senior Indebtedness). The
Relevant Obligor agrees to hold the benefit of these provisions as incorporated in this agreement
or this instrument as trustee for and on behalf of the Trustee and the Holders of the Securities
and the Relevant Obligor shall be a party to the agreement or instrument in such capacity and shall
give the Relevant Creditor (and the Relevant Obligor on its own behalf) one dollar as valuable
consideration in respect of the agreements given to it in such capacity as trustee.
3. For purposes hereof, the words cash, property or securities shall not be deemed to
include securities of the Relevant Obligor or any other Person provided for by a plan of
reorganization or readjustment, the payment of which is subordinated, at least to the extent
provided herein with respect to the indebtedness owing to the Relevant Creditor, to the payment of
all Senior Indebtedness which may at the time be outstanding; provided, however, that (i) all
Senior Indebtedness is assumed by the new Person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the Holders of the Securities are not, without the consent of
the Holders of the Securities, altered by such reorganization or readjustment.
4. Upon any distribution of assets of the Relevant Obligor or upon any dissolution, winding
up, arrangement, liquidation, reorganization, bankruptcy, insolvency or receivership or similar
proceeding relating to the Relevant Obligor or its property or other marshalling of assets of the
Relevant Obligor:
(a) the Holders of the Securities shall first be entitled to receive payment in full
of all Senior Indebtedness including, without limitation, the principal thereof and
premium, if any, and the interest due thereon, before the Relevant Creditor is entitled to
receive any payment of the principal of and premium, if any, and interest on any Debt owing
to it; and
(b) any payment or distribution of assets of the Relevant Obligor of any kind or
character, whether in cash, property or securities, to which the Relevant Creditor would be
entitled except for the provisions hereof shall be paid by the liquidating trustee or agent
or other person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the Holders of the Securities to
the extent necessary to pay in full all Senior Indebtedness remaining unpaid after giving
effect to any concurrent payment or distribution to the Holders of the Securities in
respect of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Relevant Obligor of any kind or character, whether in cash, property or
securities, shall be received by the Relevant Creditor before all Senior Indebtedness is
paid in full, such payment or distribution shall be held in trust for the benefit of and
shall be paid over to the Holders of the Securities for application to the payment of all
Senior Indebtedness remaining unpaid until all Senior Indebtedness shall have been paid in
full after giving effect to any concurrent payment or distribution to the Holders of the
Securities in respect of such Senior Indebtedness.
5. Upon any payment or distribution of assets of the Relevant Obligor referred to in this
agreement or instrument, the Relevant Creditor shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the nature referred to in
Section 4 are pending, (ii) upon a certificate of the liquidating trustee or agent or other person
in such proceedings making such payment or distribution to the Relevant Creditor or its
representative, if any, or (iii) upon a certificate of the Trustee or any representative (if any)
of the Holders of the Securities for the purpose of ascertaining the identity of the Holders of the
Securities and the Trustee, the holders of other senior debt of the Relevant Obligor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to the subordination contemplated by this agreement or instrument.
6. Nothing contained herein is intended to or shall impair, as between the Relevant Obligor
and its creditors (other than the Holders of the Securities as regards the Senior Indebtedness and
the Relevant Creditor) the obligation of the Relevant Obligor, which is unconditional and absolute,
to pay to the Relevant Creditor the principal of and premium, if any, and interest on the Debt
owing to the Relevant Creditor as and when the same shall become due and payable in accordance with
its terms or affect the relative rights of the Relevant Creditor and creditors of the Relevant
Obligor other than the Holders of the Securities as regards the Senior Indebtedness, nor shall
anything herein or therein prevent the Relevant Creditor from exercising all remedies otherwise
permitted by applicable law upon default with respect to the Debt owing to the Relevant Creditor
subject to the rights, if any, herein of the Holders of the Securities as regards the Senior
Indebtedness in respect of cash, property or securities of the Relevant Obligor received upon the
exercise of any such remedy.
2
7. Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise,
then, except as hereinafter provided, all principal of and premium, if any, and interest on all
such matured Senior Indebtedness 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 with respect to any Senior Indebtedness
permitting the Holders of the Securities (or any of them) to accelerate the maturity of the Senior
Indebtedness then, unless and until such Event of Default shall have been cured or waived or shall
have ceased to exist, no payment (including, without limitation, by purchase of the Debt owing to
the Relevant Creditor or otherwise) shall be made by the Relevant Obligor with respect to the
principal of or premium, if any, or interest on the Debt owing to the Relevant Creditor. In the
event that, notwithstanding the foregoing, the Relevant Obligor shall make any payment of principal
of or premium, if any, or interest on the Debt owing to the Relevant Creditor after the happening
of such an Event of Default, then, except as hereinafter otherwise provided, unless and until such
Event of Default shall have been cured or waived or have ceased to exist, such payment shall be
held in trust for the benefit of and, if and when such Senior Indebtedness shall have become due
and payable, shall be paid over to the Holders of the Securities and applied to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness 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 Sections 7 and 8:
(a) prevent the Relevant Obligor at any time from making payments at any time of the
principal of and premium, if any, or interest to the Relevant Creditor on account of
Inter-Company Subordinated Debt unless:
(i) Such payment is proposed to be made on or after the date upon which any Event of
Default or any of the events described in Section 4 has occurred in circumstances where
notice of such proposed payment shall have been given by the Relevant Creditor or the
Company to the Trustee prior to the happening of such Event of Default or other event; or
(ii) such payment would otherwise occur while any proceedings in respect of the
dissolution, arrangement, winding up, liquidation, reorganization, bankruptcy, insolvency
or receivership of the Relevant Obligor are pending; or
(b) prevent the Relevant Obligor from applying to the retirement of any Inter-Company
Subordinated Debt the proceeds of a substantially concurrent
3
issue of other Inter-Company Subordinated Debt or of shares of any class of the
Relevant Obligor; or
(c) except in circumstances to which clauses (a)(i) or (ii) are applicable, require
the Relevant Creditor to pay to the Trustee or the Holders of the Securities, or to repay
to the Relevant Obligor, any amount so paid.
11. Unless and until written notice shall be given to the Relevant Creditor by or on behalf
of any Holder or any representative or representatives of any Holder, including by the Trustee (it
being understood that nothing herein shall create any obligation on the part of the Trustee to give
any such notice), or by the Company, in each case, notifying the Relevant Creditor of the happening
of an Event of Default with respect to the Senior Indebtedness 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 unless the Relevant
Creditor has actual knowledge to the contrary. Upon becoming aware of the happening of an Event of
Default with respect to the Senior Indebtedness 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 Company shall, as promptly as reasonably practicable,
provide written notice to the Relevant Creditor of the happening of such Event of Default or the
existence of such other facts.
12. (a) No right of the Trustee or any Holder as regards the Senior Indebtedness to enforce
subordination as provided herein shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Relevant Obligor or by any act or failure to act, in good
faith, by any such Holder or the Trustee, or by any non-compliance by the Relevant Obligor with the
terms, provisions or covenants herein, regardless of any knowledge thereof which any Holder or the
Trustee may have or be otherwise charged with.
(b) The rights of the Trustee and the Holders of Securities with respect hereto shall not be
affected by any extension, renewal or modification of the terms, or the granting of any security in
respect of, any Senior Indebtedness or any exercise or non-exercise of any right, power or remedy
with respect thereto.
(c) The Relevant Creditor agrees not to exercise any offset or counterclaim or similar right
in respect of the Inter-Company Subordinated Debt except to the extent payment of such
Inter-Company Subordinated Debt is permitted and will not assign or otherwise dispose of any
Inter-Company Subordinated Debt unless the assignee or acquiror, as the case may be, agrees to be
bound by the terms hereof.
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13. The provisions contained herein
(a) may not be amended or modified in any respect, nor may any of the terms or provisions
hereof be waived, except by an instrument signed by the Relevant Obligor, the Relevant Creditor and
the Trustee,
(b) shall be binding upon each of the parties hereto and their respective successors and
assigns and shall enure to the benefit of the Trustee, each and every Holder of the Securities and
their respective successors and assigns,
(c) shall be governed by and construed in accordance with the laws of the State of New York.
The Relevant Creditor and the Relevant Obligor each irrevocably agree that any suits, actions or
proceedings arising out of or in connection with the provisions contained herein may be brought in
any state or federal court sitting in The City of New York or any court in the Province of Ontario
and submits and attorns to the non-exclusive jurisdiction of each such court.
5
EXECUTION VERSION
ROGERS COMMUNICATIONS INC.,
as issuer of the Notes,
ROGERS WIRELESS PARTNERSHIP
and
ROGERS CABLE COMMUNICATIONS INC.
,
as the Guarantors
and
THE BANK OF NEW YORK MELLON,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 6, 2008
to
INDENTURE
Dated as of August 6, 2008
6.80% Senior Notes due 2018
TABLE OF CONTENTS
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PAGE
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101. DEFINITIONS
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1
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SECTION 102. OTHER DEFINITIONS
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8
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SECTION 103. EFFECT OF SUPPLEMENTAL INDENTURE
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9
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SECTION 104. INDENTURE REMAINS IN FULL FORCE AND EFFECT
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9
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SECTION 105. INCORPORATION OF INDENTURE
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9
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SECTION 106. COUNTERPARTS
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10
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SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS
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10
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SECTION 108. SUCCESSORS AND ASSIGNS
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10
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SECTION 109. SEPARABILITY CLAUSE
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10
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SECTION 110. BENEFITS OF SUPPLEMENTAL INDENTURE
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SECTION 111. GOVERNING LAW
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10
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ARTICLE TWO
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FORM OF THE NOTES
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SECTION 201. FORMS GENERALLY
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SECTION 202. FORM OF FACE OF NOTE
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11
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SECTION 203. FORM OF REVERSE OF NOTE
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14
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SECTION 204. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION
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ARTICLE THREE
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THE NOTES
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SECTION 301. TITLE AND TERMS
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17
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SECTION 302. DENOMINATIONS
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18
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SECTION 303. NOTES TO BE SECURED IN CERTAIN EVENTS
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ARTICLE FOUR
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REMEDIES UPON CHANGE IN CONTROL
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SECTION 401. ADDITIONAL EVENT OF DEFAULT
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SECTION 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
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SECTION 403. WAIVER OF PAST DEFAULTS
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21
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SECTION 404. CHANGE IN CONTROL OFFER
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ARTICLE FIVE
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ADDITIONAL COVENANTS
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SECTION 501. RESTRICTED SUBSIDIARIES
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SECTION 502. LIMITATION ON SECURED DEBT
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SECTION 503. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
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PAGE
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SECTION 504. LIMITATION ON RESTRICTED SUBSIDIARY DEBT
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SECTION 505. SUBORDINATION ARRANGEMENTS
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SECTION 506. WAIVER OF CERTAIN COVENANTS
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ARTICLE SIX
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CHANGE IN CONTROL PROVISIONS
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SECTION 601. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE
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SECTION 602. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE
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SECTION 603. REPAYMENT TO THE COMPANY
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ARTICLE SEVEN
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GUARANTEES
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SECTION 701. GUARANTEES
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SECTION 702. RELEASE OF GUARANTORS
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SECTION 703. AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
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SECTION 704. PAYMENT OF ADDITIONAL AMOUNTS
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ii
FIRST SUPPLEMENTAL INDENTURE dated as of August 6, 2008 (this Supplemental Indenture), among
Rogers Communications Inc., a corporation organized under the laws of the Province of British
Columbia (hereinafter called the Company), Rogers Wireless Partnership, an Ontario partnership
(hereinafter called RWP), Rogers Cable Communications Inc., a corporation organized under the
laws of Ontario (hereinafter called RCCI and, together with RWP, the Guarantors), and The Bank
of New York Mellon, a New York banking corporation, as trustee (hereinafter called the Trustee).
WHEREAS, the Company and the Trustee are parties to an indenture dated as of August 6, 2008
(as the same may from time to time be supplemented or amended (other than by a Series Supplement),
the Indenture);
WHEREAS, Article Two and Section 801 of the Indenture provide, among other things, that,
without the consent of any Holders, the Company and the Trustee may enter into a supplement to the
Indenture for the purposes of establishing the form, terms and conditions applicable to the
Securities of any Series which the Company wishes to issue under the Indenture;
WHEREAS, the Company desires to establish the form, terms and conditions of a Series of
Securities and has requested the Trustee to enter into this Supplemental Indenture for such
purpose;
WHEREAS, the Trustee has received an Officers Certificate and an Opinion of Counsel of the
Company, in each case complying with Section 103 of the Indenture; and
WHEREAS, pursuant to the Indenture, the Board of Directors has duly authorized the
establishment of the 6.80% Senior Notes due 2018 of the Company (the Notes) with the form, terms
and conditions as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, the parties hereto agree, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
Capitalized terms used herein without definition shall have the meanings assigned to them in
the Indenture.
Adjusted Treasury Rate means, with respect to any Redemption Date, the rate per year equal
to the semi-annual 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.
Attributable Debt means, as of the date of its determination, the present value (discounted
semi-annually at the interest rate implicit in the terms of the lease) of the obligation of a
lessee for rental payments pursuant to any Sale and Leaseback Transaction (reduced by the amount of
the rental obligations of any sublessee of all or part of the same property) during the remaining
term of such Sale and Leaseback Transaction (including any period for which the lease relating
thereto has been extended), such rental payments not to include amounts payable by the lessee for
maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rates
(such as those based on sales);
provided
,
however
, that in the case of any Sale and Leaseback
Transaction in which the lease is terminable by the lessee upon the payment of a penalty,
Attributable Debt shall mean the lesser of the present value of (i) the rental payments to be paid
under such Sale and Leaseback Transaction until the first date (after the date of such
determination) upon which it may be so terminated plus the then applicable penalty upon such
termination and (ii) the rental payments required to be paid during the remaining term of such Sale
and Leaseback Transaction (assuming such termination provision is not exercised).
Company means the Person named as the Company in the first paragraph of this Supplemental
Indenture, until a successor Person shall have become such pursuant to the applicable provisions of
the 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 Notes for the purposes of complying with such provisions.
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 Notes 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 Notes.
Comparable Treasury Price means, with respect to any Redemption Date, the average of the
Reference Treasury Dealer Quotations for the Redemption Date.
Consolidated Net Tangible Assets means the Consolidated Tangible Assets of any Person, less
such Persons current liabilities.
Consolidated Tangible Assets means the Tangible Assets of any Person after eliminating
inter-company items, determined on a Consolidated basis in accordance with GAAP including
appropriate deductions for any minority interest in Tangible Assets of such Persons Restricted
Subsidiaries.
Disqualified Stock means any Capital Stock of the Company or any Restricted Subsidiary
which, by its terms (or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder) or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or
2
in part, on or prior to the maturity date of the Notes for cash or securities constituting
Debt;
provided
that shares of Preferred Stock of the Company or any Restricted Subsidiary that are
issued with the benefit of provisions requiring a change in control offer to be made for such
shares in the event of a change in control of the Company or of such Restricted Subsidiary, which
provisions have substantially the same effect as the relevant provisions of Sections 401 and 404
herein, 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.
Excluded Assets means (i) all assets of any Person other than the Company or a Restricted
Subsidiary; (ii) Investments in the Capital Stock of an Unrestricted Subsidiary held by the Company
or a Restricted Subsidiary; (iii) any Investment by the Company or a Restricted Subsidiary to the
extent paid for with cash or other property that constitutes Excluded Assets or Excluded
Securities, so long as at the time of acquisition thereof and after giving effect thereto there
exists no Default or Event of Default; and (iv) proceeds of the sale of any Excluded Assets or
Excluded Securities received by the Company or any Restricted Subsidiary from a Person other than
the Company or a Restricted Subsidiary.
Excluded Securities means any Debt, Preferred Stock or Common Stock issued by the Company,
or any Debt or Preferred Stock issued by any Restricted Subsidiary, in either case to an Affiliate
thereof other than the Company or a Restricted Subsidiary,
provided
that, at all times, such
Excluded Securities shall:
(i) in the case of Debt not owed to the Company or a Restricted Subsidiary, constitute
Inter-Company Subordinated Debt;
(ii) in the case of Debt, not be guaranteed by the Company or any Restricted
Subsidiary unless such guarantee shall constitute Inter-Company Subordinated Debt;
(iii) in the case of Debt, not be secured by any assets or property of the Company or
any Restricted Subsidiary;
(iv) in the case of Debt or Preferred Stock, provide by its terms that interest or
dividends thereon shall be payable only to the extent that, after giving effect to any such
payment, no Default or Event of Default shall have occurred and be continuing; and
(v) in the case of Debt or Preferred Stock, provide by its terms that no payment
(other than payments in the form of Excluded Securities) on account of principal (at
maturity, by operation of sinking fund or mandatory redemption or otherwise) or other
payment on account of redemption, repurchase, retirement or acquisition of such Excluded
Security shall be permitted until the earlier of (x) the Maturity Date of the Notes or (y)
the date on which all principal of, premium, if any, and interest on the Notes shall have
been duly paid or provided for in full.
3
Existing Notes means any of the Existing Senior Notes or the Existing Senior Subordinated
Notes.
Existing Senior Notes means any of the 9.625% Senior Notes Due 2011, 7.625% Senior Notes Due
2011, 7.25% Senior Notes Due 2011, 7.25% Senior Notes Due 2012, 7.875% Senior Notes Due 2012, 6.25%
Senior Notes Due 2013, 6.375% Senior Notes Due 2014, 5.50% Senior Notes Due 2014, 7.50% Senior
Notes Due 2015, 6.75% Senior Notes Due 2015 or 8.75% Senior Debentures Due 2032, in each case for
which the Company is a co-obligor.
Existing Senior Subordinated Notes means the 8.00% Senior Subordinated Notes Due 2012 for
which the Company and RWP are co-obligors and RCCI is a guarantor.
Fitch means Fitch Ratings Ltd. or any successor to the rating agency business thereof.
Guarantors has the meaning set forth in the first paragraph of this Supplemental Indenture.
Indenture has the meaning set forth in the recitals of this Supplemental Indenture.
Investment means (i) directly or indirectly, any advance, loan or capital contribution to,
the purchase of any stock, bonds, notes, debentures or other securities of, the acquisition, by
purchase or otherwise, of all or substantially all of the business or assets or stock or other
evidence of beneficial ownership of, any Person or making of any investment in any Person, (ii) the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary and (iii) the transfer of
any assets or properties from the Company or a Restricted Subsidiary to any Unrestricted
Subsidiary, other than the transfer of assets or properties made in the ordinary course of
business. Investments shall exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
Investment Grade Rating means a rating equal to or higher than BBB- (or the equivalent) by
S&P, Baa3 (or the equivalent) by Moodys or BBB- (or the equivalent) by Fitch.
Issue Date means August 6, 2008, the initial issue date of the Notes.
Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business
thereof.
Net Tangible Assets means the Tangible Assets of any Person, less such Persons current
liabilities.
Notes has the meaning set forth in the recitals of this Supplemental Indenture.
4
Other Senior Notes means the senior notes and debentures for which the Company is the
obligor or a co-obligor, as applicable, that are outstanding as of the Issue Date, other than the
Notes to be issued hereunder.
Permitted Liens means any of the following Liens
(i) Liens for taxes, rates and assessments not yet due or, if due, the validity of
which is being contested diligently and in good faith by appropriate proceedings by the
Company or any of the Restricted Subsidiaries (as applicable); and Liens for the excess of
the amount of any past due taxes for which a final assessment has not been received over
the amount of such taxes as estimated and paid;
(ii) the Lien of any judgment rendered which is being contested diligently and in good
faith by appropriate proceedings by the Company, or any of the Restricted Subsidiaries, as
the case may be, and which does not have a material adverse effect on the ability of the
Company and the Restricted Subsidiaries to operate the business or operations of the
Company;
(iii) Liens on Excluded Assets;
(iv) pledges or deposits under workers compensation laws, unemployment insurance laws
or similar legislation or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Debt) or leases or deposits of cash or bonds or other direct
obligations of the United States, Canada or any Canadian province to secure surety or
appeal bonds or deposits as security for contested taxes or import duties or for the
payment of rents;
(v) Liens imposed by law, such as carriers, warehousemens and mechanics liens, or
other liens arising out of judgments or awards with respect to which an appeal or other
proceeding for review is being prosecuted (and as to which any foreclosure or other
enforcement proceeding shall have been effectively stayed);
(vi) Liens for property taxes not yet subject to penalties for non-payment or which
are being contested in good faith and by appropriate proceedings (and as to which
foreclosure or other enforcement proceedings shall have been effectively stayed);
(vii) Liens in favor of issuers of surety bonds issued in the ordinary course of
business;
(viii) minor survey exceptions, minor encumbrances, easements or reservations of or
rights of others for rights of way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of real
properties or Liens incidental to the conduct of the business of the Person incurring them
or the ownership of its properties which were not incurred in connection with Debt or other
extensions of credit and which
5
do not in the aggregate materially detract from the value of such properties or
materially impair their use in the operation of the business of such Person;
(ix) Liens in favor of Bell Canada (or any successor) under any partial system
agreement or related agreement providing for the construction and installation by Bell
Canada of cables, attachments, connectors, support structures, closures and other equipment
in accordance with the plans and specifications of the Company or any Restricted Subsidiary
and the lease by Bell Canada of such equipment to the Company or any Restricted Subsidiary
in accordance with tariffs published by Bell Canada from time to time as approved by
regulatory authorities, the absence of which would materially and adversely affect the
Company and its Restricted Subsidiaries considered as a whole; and
(x) any other Lien existing on the Issue Date.
Principal Property means, as of any date of determination, any land, land improvements or
building (and associated factory, laboratory, office and switching equipment (excluding all
products marketed by the Company or any of its Subsidiaries)) constituting a manufacturing,
development, warehouse, service, office or operating facility owned by or leased to the Company or
a Restricted Subsidiary, located within Canada and having an acquisition cost plus capitalized
improvements in excess of 0.25% of Consolidated Net Tangible Assets of the Company as of such date
of determination, other than any such property (i) which the Board of Directors determines is not
of material importance to the Company and its Restricted Subsidiaries taken as a whole, (ii) which
is not used in the ordinary course of business or (iii) in which the interest of the Company and
all its Subsidiaries does not exceed 50%.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Rating Agencies means S&P, Moodys and Fitch, and each of such Rating Agencies is referred
to individually as a Rating Agency.
Rating Date means the date which is 90 days prior to the earlier of (i) a Change in Control
and (ii) public notice of the occurrence of a Change in Control or of the intention of the Company
to effect a Change in Control.
Rating Decline means the occurrence of the following on, or within 90 days after, the date
of public notice of the occurrence of a Change in Control or of the intention by the Company to
effect a Change in Control (which period shall be extended so long as the rating of the Notes is
under publicly announced consideration for possible downgrade by any of the Rating Agencies): (i)
in the event the Notes are assigned an Investment Grade Rating by at least two of the three Rating
Agencies on the Rating Date, the rating of the Notes by at least two of the three Rating Agencies
shall be below an Investment Grade Rating; or (ii) in the event the Notes are rated below an
Investment Grade Rating by at least two of the three Rating Agencies on the Rating Date, the rating
of the Notes by at least two of the three Rating Agencies shall be decreased by one or
6
more gradations (including gradations within rating categories as well as between rating
categories).
RCCI has the meaning set forth in the first paragraph of this Supplemental Indenture.
Reference Treasury Dealer means (1) either of Citigroup Global Markets Inc. or J.P. Morgan
Securities Inc. or any successor of either entity;
provided
,
however
, that if either shall cease to
be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the
Company shall substitute for such dealer another Primary Treasury Dealer; and (2) any other Primary
Treasury Dealer(s) 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.
RWP has the meaning set forth in the first paragraph of this Supplemental Indenture.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor to the rating agency business thereof.
Sale and Leaseback Transaction means any arrangement with any Person providing for the
leasing by the Company or any Restricted Subsidiary of any Principal Property (whether such
Principal Property is now owned or hereafter acquired) that has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person, other than (i) temporary
leases for a term, including renewals at the option of the lessee, of not more than three years,
(ii) leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and
(iii) leases of Principal Property executed by the time of, or within 180 days after the latest of,
the acquisition, the completion of construction or improvement (including any improvements on
property which will result in such property becoming Principal Property), or the commencement of
commercial operation of such Principal Property.
Secured Debt means:
(a) Debt of the Company or any Restricted Subsidiary secured by any Lien upon any
Principal Property or the stock or Debt of a Restricted Subsidiary (other than a Restricted
Subsidiary that guarantees the payment obligations of the Company under the Notes); or
(b) any conditional sale or other title retention agreement covering any Principal
Property or Restricted Subsidiary;
7
but does not include any Debt secured by any Lien or any conditional sale or other title retention
agreement:
(1) incurred or entered into on or after the Issue Date to finance the acquisition,
improvement or construction of such property and either secured by Purchase Money
Obligations or Liens placed on such property within 180 days of acquisition, improvement or
construction and securing Debt not to exceed 2.5% of the Companys Consolidated Net
Tangible Assets at any time outstanding;
(2) on Principal Property or the stock or Debt of Restricted Subsidiaries and existing
at the time of acquisition of the property, stock or Debt;
(3) owing to the Company or any other Restricted Subsidiary; or
(4) existing at the time a corporation or other Person becomes a Restricted
Subsidiary;
each of the foregoing being referred to as Exempted Secured Debt.
Subordination Agreement means the subordination agreement among the Company, the Guarantors,
the Trustee, and The Bank of New York Mellon (f/k/a JPMorgan Chase Bank, N.A. and subsequently
f/k/a The Bank of New York), as trustee for the holders of the Existing Senior Subordinated Notes
(the Subordinated Note Trustee), in the form of Exhibit A attached hereto.
Tangible Assets means, at any date, the gross book value as shown by the accounting books
and records of any Person of all its property both real and personal, less (i) the net book value
of all its licenses, patents, patent applications, copyrights, trademarks, trade names, goodwill,
non-compete agreements or organizational expenses and other like intangibles, (ii) unamortized Debt
discount and expenses, (iii) all reserves for depreciation, obsolescence, depletion and
amortization of its properties and (iv) all other proper reserves which in accordance with GAAP
should be provided in connection with the business conducted by such Person.
Trustee means the Person named as the Trustee in the first paragraph of this Supplemental
Indenture, until a successor shall have become such pursuant to the applicable provisions of the
Indenture, and thereafter Trustee shall mean such successor Trustee.
SECTION 102. OTHER DEFINITIONS.
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DEFINED
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DEFINED TERM
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IN SECTION
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Change in Control
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401
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Change in Control Offer
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404
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(a)
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Change in Control Purchase Date
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404
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(a)
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Change in Control Purchase Notice
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404
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(b)
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8
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DEFINED
|
DEFINED TERM
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IN SECTION
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Change in Control Purchase Price
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404
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(a)
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Change in Control Triggering Event
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401
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Edward S. Rogers
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401
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Family Percentage Holding
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401
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Guarantee
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701
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(a)
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Guaranteed Obligations
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701
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(a)
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Maturity Date
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301
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Member of the Rogers Family
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401
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Permitted Residuary Beneficiary
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401
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Perpetuity Date
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401
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Qualifying Trust
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401
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Spouse
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401
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Successor Guarantor
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703
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SECTION 103. EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution and delivery of this Supplemental Indenture by the Company, the Guarantors
and the Trustee, the Indenture shall be supplemented and amended in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes;
provided
,
however
, that
except as otherwise provided herein, the provisions of this Supplemental Indenture shall be
applicable, and the Indenture is hereby supplemented and amended as specified herein, solely with
respect to the Notes and not with respect to any other Securities previously issued or to be issued
under the Indenture. In the event of a conflict between any provisions of the Indenture and this
Supplemental Indenture, the relevant provision or provisions of this Supplemental Indenture shall
govern.
SECTION 104. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented or amended hereby, all other provisions in the Indenture, to the extent
not inconsistent with the terms and provisions of this Supplemental Indenture, shall remain in full
force and effect.
SECTION 105. INCORPORATION OF INDENTURE.
All the provisions of this Supplemental Indenture shall be deemed to be incorporated in, and
made a part of, the Indenture; and the Indenture, as supplemented and amended by this Supplemental
Indenture, shall be read, taken and construed as one and the same instrument;
provided
,
however
,
that the provisions of this Supplemental Indenture are expressly and solely for the benefit of the
Holders of the Notes.
9
SECTION 106. COUNTERPARTS.
This Supplemental Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 107. 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. Unless otherwise expressly specified, references in this
Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and
Sections contained in this Supplemental Indenture, and not the Indenture or any other document.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Supplemental Indenture by the Company and the Guarantors
shall bind their respective successors and permitted assigns (if any), whether so expressed or not.
All covenants and agreements of the Trustee in this Supplemental Indenture shall bind its
successors and permitted assigns (if any), whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF SUPPLEMENTAL INDENTURE.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any
Person (other than the parties hereto, any Paying Agent and any Security Registrar, and their
successors hereunder, and the Holders) any benefit or any legal or equitable right, remedy or claim
under this Supplemental Indenture or in respect of the Notes.
SECTION 111. GOVERNING LAW.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York. This Supplemental Indenture shall be subject to the
provisions of the Trust Indenture Act that are required or deemed to be part of this Supplemental
Indenture and shall, to the extent applicable, be governed by such provisions.
10
ARTICLE TWO
FORM OF THE NOTES
SECTION 201. FORMS GENERALLY.
The Notes and the Trustees 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 Supplemental 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 Notes, as evidenced by their execution of the Notes (but
which shall not affect the rights or duties of the Trustee). Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The definitive Notes 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 Notes may be listed, all as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
The Notes shall be in registered form and shall initially be registered in the name of the
Depositary or its nominee. The Notes shall be issued initially as Book-Entry Securities in the
form of one or more Global Securities substantially in the form set forth in this Article deposited
with the Trustee, as custodian for the Depositary, and duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Depositary for such Global Securities
shall be DTC. The aggregate principal amount of the 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.
SECTION 202. FORM OF FACE OF NOTE.
The Notes and the Trustees certificate of authentication to be endorsed thereon are to be
substantially in the form provided for in this Section 202 and Sections 203 and 204:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC) TO THE COMPANY (HEREINAFTER REFERRED TO) 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 IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR
11
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
HOLDER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE INDENTURE (HEREINAFTER REFERRED
TO). THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE BASE INDENTURE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO THE INDENTURE, (II) THIS NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 207(B) OF THE BASE INDENTURE, (III) THIS NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 211 OF THE BASE INDENTURE AND (IV) EXCEPT AS OTHERWISE
PROVIDED IN SECTION 207(B) OF THE BASE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT
NOT IN PART, ONLY (X) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR (Z) BY THE DEPOSITARY OR ANY
NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
ROGERS COMMUNICATIONS INC.
6.80% SENIOR NOTES DUE 2018
Rogers Communications Inc., a corporation organized under the laws of the Province of British
Columbia (herein called the Company, which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of
U.S. dollars (or such other amount that may from time to
time be indicated on the records of the Depositary as the result of increases or decreases by
adjustments made on the records of the Depositary, in accordance with the rules and procedures of
the Depositary) on August 15, 2018 at the office or agency of the Company referred to below, and to
pay interest thereon in arrears on February 15, 2009 and semi-annually in arrears thereafter, on
February 15 and August 15 in each year (each herein called an Interest Payment Date), which
interest shall accrue from and including August 6, 2008 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, at the rate of 6.80% per annum, until
the principal hereof is paid or duly provided for, and (to the extent lawful) to pay interest on
any overdue interest at the rate borne by the Notes 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
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the Person in whose name this Note (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 February 1
or August 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
Default Interest, at the interest rate borne by the Notes, 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 Note (or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Default Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes 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 Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note will be made at
the office or agency 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 Notes, 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 Notes, 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 Note to the Paying Agent.
Interest on this Note shall be computed on the basis of a 360-day year consisting of twelve
30-day months. For the purposes of the
Interest Act
(Canada), the yearly rate of interest which is
equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of
days in the year and divided by 360.
Reference is hereby made to the further provisions of this Note 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 Note 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.
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Dated:
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ROGERS COMMUNICATIONS INC.
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By
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Name:
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Title:
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By
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Name:
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Title:
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SECTION 203. FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of securities of the Company designated as its
6.80% Senior Notes due 2018 (herein called the Notes), which may be issued under an indenture (as
the same may from time to time be supplemented or amended (other than by a Series Supplement),
herein called the Base Indenture) dated as of August 6, 2008 between the Company and The Bank of
New York Mellon, as trustee (herein called the Trustee, which term includes any successor trustee
thereunder), as supplemented and amended by the First Supplemental Indenture dated as of August 6,
2008 among the Company, Rogers Wireless Partnership, an Ontario partnership, Rogers Cable
Communications Inc., a corporation organized under the laws of Ontario (together with Rogers
Wireless Partnership, the Guarantors), and the Trustee (herein called the Supplemental
Indenture and, together with the Base Indenture, the Indenture), to which the Indenture
reference is hereby made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders
of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Company will pay to the Holders such Additional Amounts as may become payable under
Section 907 of the Base Indenture.
On or before each Interest 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.
To guarantee the due and punctual payment of the principal and interest on the Notes and all
other amounts payable by the Company under the Indenture and the Notes when and as the same shall
be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of
the Notes and the Indenture, the Guarantors have, jointly and severally, fully and unconditionally
guaranteed the Guaranteed Obligations on an unsecured, unsubordinated basis pursuant to the terms
of the Indenture. The Guarantors will pay to the Holders such Additional Amounts as may become
payable under Section 704 of the Supplemental Indenture.
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The Notes 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.$2,000 or an
integral multiple of U.S.$1,000 in excess thereof, at the option of the Company, at a Redemption
Price equal to the greater of: (1) 100% of the principal amount of the Notes to be redeemed, 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 Notes to be redeemed (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 40 basis points, in each case plus accrued interest thereon to the Redemption
Date.
The Notes 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 thereon 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 Notes, any Additional Amounts as a result of certain changes affecting Canadian
withholding taxes on or after the Issue Date.
In the case of any redemption of Notes, interest installments whose Stated Maturity is on or
prior to the Redemption Date will be payable to the Holders of record of such Notes, or one or more
Predecessor Securities, at the close of business on the relevant Regular Record Date referred to on
the face hereof. Notes (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 Note in part only, a replacement Note or Notes for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default (other than an Event of Default resulting from a Change in Control
Triggering Event which is cured in accordance with Section 404 of the Supplemental Indenture by the
making and consummation of a Change in Control Offer) shall occur and be continuing, the principal
amount of all the Notes 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 Notes. Following such an Event of
Default the principal amount of all the Notes may be declared due and payable in the manner and
with the effect 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 Notes and purchases
the Notes 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.
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The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Note 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 Note.
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 not
less than a majority in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes,
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 Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note 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 Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable on the Security Register, upon surrender of this Note for
registration of transfer at the Corporate Trust Office of the Trustee or any other office or agency
of the Company designated pursuant to the Indenture 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 Notes of any authorized denomination or denominations, of a like aggregate principal
amount and containing identical terms and provisions, will be issued to the designated transferee
or transferees.
The Notes are issuable only in registered form without coupons in denominations of U.S.$2,000
or integral multiples of U.S.$1,000 in excess thereof.
No service charge shall be made for any registration of transfer or exchange or redemption of
Notes, 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 Note 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
Note is registered as the owner hereof for all
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purposes except as otherwise provided, whether or not this Note be overdue, and neither the
Company, the Trustee nor any agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 204. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION.
TRUSTEES CERTIFICATE OF AUTHENTICATION The Bank of New York Mellon, as Trustee, certifies
that this is one of the Notes referred to in the within-mentioned Indenture.
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The Bank of New York Mellon
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By
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Authorized Officer
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ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS.
The Notes shall be known and designated as the 6.80% Senior Notes due 2018 of the Company.
The entire unpaid principal amount of each Note shall be become due and payable to the Holder
thereof on August 15, 2018 (the Maturity Date). Interest shall accrue on the aggregate unpaid
principal amount of each Note at a rate of interest equal to 6.80% per annum from August 6, 2008,
or the most recent Interest Payment Date to which interest has been paid or duly provided for.
Such interest shall be payable on February 15, 2009 and semi-annually thereafter on February 15 and
August 15 in each year (each an Interest Payment Date for purposes of this Supplemental Indenture),
until the principal thereof is paid or duly provided for. Interest on the Notes shall be payable
in arrears. The Regular Record Date for the interest payable on any Interest Payment Date shall be
February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. To the extent lawful, interest shall accrue on any overdue interest at the
rate borne by the Notes 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 and such
Default Interest shall be payable at the times and on the terms provided for in the Indenture.
An unlimited aggregate principal amount of the Notes may be authenticated and delivered under
this Supplemental Indenture (of which U.S.$1,400,000,000 is being issued, authenticated and
delivered on the date hereof), including Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 204, 205, 206, 207,
208, 806, 1008 or 1009 of the Indenture and Section 404 hereof. Additional Notes ranking
pari
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passu
with the Securities issued on the date hereof may be created and issued under the
Indenture from time to time by the Company without notice to or consent of the Holders, subject to
the Company complying with any applicable provision of the Indenture. Any additional Notes created
and issued shall have the same terms and conditions as the Notes initially issued, except for their
date of issue, issue price and first Interest Payment Date, and shall be consolidated with and form
a single Series with the Notes initially issued.
The Notes shall be unsecured, unsubordinated obligations of the Company ranking
pari passu
with any other present or future unsecured, unsubordinated obligations of the Company.
The Notes shall be denominated in, and all principal of, and interest and premium (if any) on,
the Notes shall be payable in U.S. dollars. Any payment of Additional Amounts hereunder shall also
be payable in U.S. dollars.
The Notes may be redeemed at the option of the Company at the prices, at the times and on such
other terms and conditions as are specified in the form of the Note in Article Two hereof. The
Company shall not be obligated to redeem, purchase or repay the Notes pursuant to any sinking fund
or analogous provisions or at the option of a Holder of the Notes except as provided in Article Six
hereof.
The Notes shall be subject to the covenants (and the related definitions) set forth in
Articles Seven and Nine of the Indenture and, except as otherwise provided herein, to any other
covenant in the Indenture, and to the defeasance and discharge provisions set forth in Article
Three thereof.
Certain obligations of the Company under the Notes shall be fully and unconditionally
guaranteed on a joint and several basis by each of the Guarantors to the extent set forth in
Article Seven hereof.
SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in fully registered form without coupons and in denominations
of U.S.$2,000 or integral multiples of U.S.$1,000 in excess thereof.
SECTION 303. NOTES TO BE SECURED IN CERTAIN EVENTS.
If, upon any consolidation or amalgamation of the Company or a Guarantor, as applicable, with
or merger of the Company or a Guarantor, as applicable, into any other Person, or upon any
conveyance, transfer, lease or disposition of the properties and assets of the Company or a
Guarantor, as applicable, substantially as an entirety to any Person by liquidation, winding-up or
otherwise (in one transaction or a series of related transactions), in each case in accordance with
Section 701 of the Indenture, in the case of the Company, or Section 703 of this Supplemental
Indenture, in the case of a Guarantor, any property or asset of the Company or of any Subsidiary,
would thereupon become subject to any Lien, then, unless such Lien could be created pursuant to
Section 502 without equally and ratably securing the Notes, the Company or the Guarantor, as
applicable, prior to or simultaneously with such consolidation,
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amalgamation, merger, conveyance, transfer, lease or disposition, will, as to such property or
asset, secure the Notes Outstanding hereunder (together with, if the Company or such Guarantor
shall so determine, any other Debt of the Company or such Guarantor now existing or hereafter
created which is not subordinate to the Notes) 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 Notes to be so
secured.
ARTICLE FOUR
REMEDIES UPON CHANGE IN CONTROL
SECTION 401. ADDITIONAL EVENT OF DEFAULT.
In addition to the Events of Default set forth in Section 401 of the Indenture, Event of
Default, wherever used herein and in the Indenture with respect to the Notes, includes the
occurrence of a Change in Control Triggering Event (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).
Under this Supplemental 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 Notes.
A Change in Control means (i) any transaction (including an amalgamation, merger or
consolidation or the sale of Capital Stock of the Company) the result of which is that any Person
or group of Persons (as the term group is used in Rule 13d-5 of the Exchange Act), other than
Members of the Rogers Family or a Person or group of Persons consisting of or controlled, directly
or indirectly, by one or more Members of the Rogers Family, 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 of Persons, other than (A) Members of the
Rogers Family or a Person or group of Persons consisting of or controlled, directly or indirectly,
by one or more Members of the Rogers Family or (B) for so long as the only primary beneficiaries of
a Qualifying Trust established under the last will and testament of Edward S. Rogers are one or
more persons referred to in clause (ii) of the definition of Member of the Rogers Family or the
Spouse, for the time being and from time to time, of the issue (including individuals adopted by
such Persons,
provided
that such adopted individuals have not attained the age of majority at the
date of such adoption, together with the issue of any such adopted individuals) of any person
described in subclause (ii)(c) or (d) 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
any 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
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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) Edward S. Rogers (who was born on May 27, 1933, such
individual being hereinafter referred to as Edward S. Rogers); (ii) such of the following persons
as are living at the date of this Supplemental 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 Edward S. Rogers; (b) after the death of Edward S. Rogers, the widow, if any, of Edward S.
Rogers; (c) the issue of Edward S. Rogers; (d) Ann Taylor Graham Calderisi, the half-sister of
Edward S. Rogers, and the issue of Ann Taylor Graham Calderisi; (e) individuals adopted by Edward
S. Rogers or any of the persons described in subclauses (a), (b) or (c) of this clause (ii),
provided
that such adopted 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) the
trustees of any Qualifying Trust, but only to the extent of such Qualifying Trusts Family
Percentage Holding of voting securities or rights to control or direct the voting securities of the
Company at the time of the determination.
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
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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.
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, for the time being and from time to time, of the issue (including
individuals adopted by such Persons,
provided
that such adopted individuals have not attained the
age of majority at the date of such adoption, together with the issue of any such adopted
individuals) of any person described in subclause (ii)(c) or (d) of the definition of Member of
the Rogers Family,
provided
that such Spouse 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).
Spouse means, in relation to any person, a person who is legally married to that person and
includes a widow or widower of that person, notwithstanding remarriage.
SECTION 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If a Change in Control Triggering Event 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 404 hereof,
then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Notes then Outstanding may declare the principal of all such Notes 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.
SECTION 403. WAIVER OF PAST DEFAULTS.
Notwithstanding Section 413 of the Indenture, the Holders of Notes may not waive any past
Default or Event of Default arising from a Change in Control Triggering Event by providing a
written notice of a Holder Direction to the Trustee. Any such Default or Event of Default may be
waived only with the consent of the Holder of each Outstanding Note.
SECTION 404. CHANGE IN CONTROL OFFER.
(a) The Notes may not be accelerated pursuant to Section 402 hereof following an Event
of Default arising from a Change in Control Triggering Event and such Event of Default
shall be cured if the Company complies with the provisions of this Section 404. If the
Company elects to cure such Event of
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Default, within 20 Business Days of the occurrence of an Event of Default arising from
a Change in Control Triggering Event, (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) all outstanding Notes properly tendered 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 Jones News Service or similar business news service in the United
States and CNW Group Ltd. (Canada News Wire) or a 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:
(i) the events causing a Change in Control Triggering Event and the date such
Change in Control Triggering Event is deemed to have occurred;
(ii) that the Change in Control Offer is being made pursuant to this Section
404 and that all Notes properly tendered pursuant to the Change in Control Offer
will be accepted for payment;
(iii) the date by which the Change in Control Purchase Notice pursuant to
this Section 404 must be given;
(iv) the Change in Control Purchase Date;
(v) the Change in Control Purchase Price;
(vi) the names and addresses of the Paying Agent and the offices or agencies
referred to in Section 902 of the Indenture;
(vii) that Notes must be surrendered to the Paying Agent at the office of the
Paying Agent or to an office or agency referred to in Section 902 of the Indenture
to collect payment;
(viii) that the Change in Control Purchase Price for any Note 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
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following the Change in Control Purchase Date and the time of surrender of
such Note as described in clause (vii) above;
(ix) the procedures the Holder must follow to accept the Change in Control
Offer; and
(x) 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 902 of the
Indenture 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:
(i) that such Holder elects to have a Note purchased pursuant to the Change in
Control Offer;
(ii) the principal amount of the Note 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 Notes to be delivered by such Holder for
purchase by the Company; and
(iii) that such Note shall be purchased on the Change in Control Purchase Date
pursuant to the terms and conditions specified in this Supplemental Indenture.
The delivery of such Note (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 902 of the
Indenture 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 404 only if the Note so
delivered to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture
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 404, a portion of
a Note if the principal amount of such portion is U.S.$1,000 or an integral multiple of U.S.$1,000.
Provisions of the Indenture that apply to the purchase of all of a Note also apply to the purchase
of a portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this Section 404 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 Note by the Holder to the Paying Agent or to an office or
agency referred to in Section 902 of the Indenture in the manner required by this Section 404.
23
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 902 of the Indenture,
the Change in Control Purchase Notice contemplated by this Section 404(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 902 of the Indenture in accordance with Section
601 hereof.
The Paying Agent or the office or agency referred to in Section 902 of the Indenture 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 Notes may also not be accelerated pursuant to Section 402 hereof following an
Event of Default arising from a Change in Control Triggering Event 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 404;
provided
,
however
, that any such third party shall be subject to Section 907 of the
Indenture in respect of any amounts paid by such third party hereunder (for this purpose,
Section 907 of the Indenture 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 907 of the Indenture (as modified) or if the Company satisfies the third partys
obligations under such Section.
ARTICLE FIVE
ADDITIONAL COVENANTS
SECTION 501. RESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any Restricted Subsidiary or
any Person that is to become a Subsidiary as an Unrestricted Subsidiary, or the Company or
any Restricted Subsidiary may transfer any assets or properties to an Unrestricted
Subsidiary, if (i) prior to and immediately after such designation, no Default or Event of
Default shall have occurred and be continuing and (ii) such Subsidiary or Person, together
with all other Unrestricted Subsidiaries, shall not in the aggregate have Net Tangible
Assets greater than 15% of the Companys Consolidated Net Tangible Assets;
provided
,
however
, that for the purposes of this Section 501, (1) the Companys Consolidated Net
Tangible Assets shall also include the aggregate Net Tangible Assets of such Subsidiary or
Person and all other Unrestricted Subsidiaries and (2) Excluded Assets shall be excluded
from the calculation of Net Tangible Assets and Consolidated Net Tangible Assets.
(b) The Board of Directors of the Company may not designate any Unrestricted
Subsidiary as a Restricted Subsidiary unless immediately before and after giving effect to
such designation, no Default or Event of Default shall have occurred and be continuing.
24
(c) Nothing in this Section 501 shall restrict or limit the Company or any Restricted
Subsidiary from transferring any asset that is an Excluded Asset to any Unrestricted
Subsidiary or any Person that is to become an Unrestricted Subsidiary.
SECTION 502. LIMITATION ON SECURED DEBT.
The Company will not, and will not permit any of its Restricted Subsidiaries to, create,
assume, incur or guarantee any Secured Debt unless and for so long as the Company secures, or
causes such Restricted Subsidiary to secure, the Notes equally and ratably with (or prior to) such
Secured Debt. However, any of the Company or its Restricted Subsidiaries may incur Secured Debt
without securing the Notes if, immediately after incurring the Secured Debt, the aggregate
principal amount of all Secured Debt then outstanding plus the aggregate amount of the Attributable
Debt then outstanding pursuant to Sale and Leaseback Transactions would not exceed 15% of the
Companys Consolidated Net Tangible Assets. The aggregate amount of all Secured Debt in the
preceding sentence excludes Secured Debt which is secured equally and ratably with the Notes and
Secured Debt that is being repaid concurrently. Any Lien which is granted to secure the Notes
under this Section 502 shall be discharged at the same time as the discharge of the Lien securing
the Secured Debt that gave rise to the obligation to secure the Notes under this Section 502.
SECTION 503. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction, unless either (a) immediately thereafter, the sum of (1) the
Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction and all other
Sale and Leaseback Transactions entered into by the Company or a Restricted Subsidiary on or after
the Issue Date (or, in the case of a Restricted Subsidiary, the date on which it became a
Restricted Subsidiary, if on or after the Issue Date) and (2) the aggregate amount of all Secured
Debt, excluding Secured Debt which is secured equally and ratably with the Notes, would not exceed
15% of the Companys Consolidated Net Tangible Assets or (b) an amount, equal to the greater of the
net proceeds to the Company or a Restricted Subsidiary from such sale and the Attributable Debt to
be outstanding pursuant to such Sale and Leaseback Transaction, is used within 180 days to retire
Debt of the Company or a Restricted Subsidiary. However, Debt which is subordinate to the Notes or
which is owed to the Company or a Restricted Subsidiary may not be retired in satisfaction of
clause (b) above.
SECTION 504. LIMITATION ON RESTRICTED SUBSIDIARY DEBT.
The Company will not permit any Restricted Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist any Debt (other than Debt to the extent that the Notes are secured
equally and ratably with (or prior to) such Debt), unless (1) the obligations of the Company under
the Notes are guaranteed (which guarantee may be on an unsecured basis) by such Restricted
Subsidiary such that the claim of the Holders of
25
the Notes under such guarantee ranks prior to or
pari passu
with such Debt or (2) after giving
effect to the incurrence of such Debt and the application of the proceeds therefrom, the sum of
(without duplication) (x) the then outstanding aggregate principal amount of Debt (other than
Exempted Secured Debt) of all Restricted Subsidiaries, (y) the then outstanding aggregate principal
amount of Secured Debt of the Company (not on a Consolidated basis) and (z) Attributable Debt
relating to then outstanding Sale and Leaseback Transactions, would not exceed 15% of Consolidated
Net Tangible Assets;
provided
,
however
, that this restriction will not apply to, and there will be
excluded from any calculation hereunder, (A) Debt owing by a Restricted Subsidiary to the Company
or to another Restricted Subsidiary and (B) Debt secured by Permitted Liens;
provided
,
further
,
that this restriction will not prohibit the incurrence of Debt in connection with any extension,
renewal or replacement (including successive extensions, renewals or replacements), in whole or in
part, of any Debt of the Restricted Subsidiaries (provided that the principal amount of such Debt
immediately prior to such extension, renewal or replacement is not increased).
SECTION 505. SUBORDINATION ARRANGEMENTS.
At the time this Indenture is entered into, each of the Company, the Guarantors, the Trustee
and the Subordinated Note Trustee shall have entered into the Subordination Agreement.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
Pursuant to Section 910 of the Indenture, the Company may omit in any particular instance to
comply with any covenant or condition in Sections 905 or 906 thereof and any covenant or condition
in Sections 501, 502, 503, 504 or 505 of this Supplemental Indenture if, before or after the time
for such compliance, the Holders of all of the Notes at the time Outstanding shall, by Holder
Direction, 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.
ARTICLE SIX
CHANGE IN CONTROL PROVISIONS
SECTION 601. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.
Upon receipt by the Company of the Change in Control Purchase Notice specified in Section
404(b) hereof, the Holder of the Note 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 Note. 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
26
Purchase Date (provided the conditions in Section 404(b) hereof have been satisfied) and (b)
the time of delivery of the Note to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 902 of the Indenture by the Holder thereof in the manner
required by Section 404(b) hereof.
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 Note 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
902 of the Indenture 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:
(a) the certificate number of the Note in respect of which such notice of withdrawal
is being submitted,
(b) the principal amount of the Note (which shall be U.S.$1,000 or an integral
multiple thereof) with respect to which such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note (which shall be U.S.$1,000 or an
integral multiple thereof) that remains subject to the original Change in Control Purchase
Notice and that has been or will be delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders thereof any Notes with respect
to which a Change in Control Purchase Notice has been withdrawn in compliance with this
Supplemental Indenture.
SECTION 602. 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 903
of the Indenture) an amount of cash sufficient to pay the aggregate Change in Control Purchase
Price of all the Notes or portions thereof that are to be purchased as of the Change in Control
Purchase Date.
SECTION 603. REPAYMENT TO THE COMPANY.
As provided in the Notes, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest and dividends, if any, thereon (subject to the
provisions of Section 507 of the Indenture), 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 602 hereof exceeds the aggregate Change in Control Purchase
Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for
the Company
27
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 and dividends, if
any, thereon (subject to the provisions of Section 507 of the Indenture).
ARTICLE SEVEN
GUARANTEES
SECTION 701. GUARANTEES.
(a) Each Guarantor hereby jointly and severally and fully and unconditionally
guarantees (each, a Guarantee) due payment and performance to the Trustee, for and on
behalf of the Holders, forthwith after demand, of all the obligations of the Company under
this Supplemental Indenture or under the Notes to pay the principal of (and premium, if
any) and interest on the Notes 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 Supplemental
Indenture, the Notes and the performance of all other obligations to the Trustee (including
all amounts due to the Trustee under Section 507 of the Indenture) and the Holders of the
Notes which obligations arise under this Supplemental Indenture and the Notes, according to
the terms hereof and thereof, including any applicable grace periods (the Guaranteed
Obligations). Each Guarantee shall be an unsecured, unsubordinated obligation of the
applicable Guarantor ranking
pari passu
with other present and future unsecured,
unsubordinated obligations of such Guarantor. The Company hereby fully and unconditionally
guarantees the Guarantee of each Guarantor.
(b) Each Guarantor agrees that, without obtaining the consent of or giving notice to
such Guarantor, the Trustee may vary this Supplemental Indenture or the Indenture, as
provided herein and therein, grant extensions of time or other indulgences, take and give
up securities, grant releases and discharges and otherwise deal with the Company and other
parties as the Trustee may see fit and may apply all monies received from the Company or
others or from securities upon such part of the Companys liability as the Trustee may
think best without prejudice to or in any way limiting or lessening the liability of the
Guarantor under this Supplemental Indenture.
(c) Each Guarantee shall be a continuing guarantee of all the Guaranteed Obligations
and shall apply to any ultimate balance due or remaining unpaid to the Holders of the
Notes. No Guarantee shall be considered as wholly or partially satisfied by the payment or
liquidation at any time of any sum of money which may at any time be or become owing or due
or remain unpaid to the Holders of the Notes.
(d) No Guarantee shall be discharged or otherwise affected by any change in the name,
objects, businesses, assets, capital structure or constitution of the Company or any
Guarantor, or by any merger or amalgamation of the Company or any Guarantor with any Person
or Persons, except as otherwise provided in this
28
Supplemental Indenture or the applicable provisions of the Indenture. In the case of
the Company being amalgamated with another corporation, the Guarantees shall apply to the
liabilities of the resulting corporation, and the term Company shall include each such
resulting corporation.
(e) All monies, advances, renewals and credits in fact borrowed or obtained by the
Company under this Supplemental Indenture shall be deemed to form part of the liabilities
hereby guaranteed notwithstanding any limitation of status or of power of the Company or of
the directors or agents thereof or that the Company may not be a legal entity or any
irregularity, defect or informality in the borrowing or obtaining of such monies, advances,
renewals or credits.
(f) The obligations of each Guarantor hereunder are and shall be absolute and
unconditional and any moneys or amounts expressed to be owing or payable by each Guarantor
hereunder which may not be recoverable from each Guarantor on the basis of a guarantee or
as surety shall be recoverable from each Guarantor as a primary obligor and principal
debtor in respect thereof.
(g) The Trustee shall not be bound to exhaust its recourse against the Company or
other parties before being entitled to demand payment from or performance by any Guarantor
and enforce its rights under this Supplemental Indenture.
(h) Any account settled or stated by or between the Trustee and the Company in
relation to this Supplemental Indenture shall be accepted by the Guarantor as conclusive
evidence that the balance or amount thereby appearing due by the Company to the Trustee is
so due.
(i) Each Guarantor shall make payment to the Trustee of the amount of the liability of
such Guarantor forthwith after demand therefor is made in writing during the continuance of
any Event of Default and such demand shall be conclusively deemed to have been effectually
made when delivered in accordance with the notice provisions set forth herein and the
liability of such Guarantor shall bear interest from the date of such demand at the rate
borne by the Notes, such interest to be calculated monthly based on the number of days
elapsed and to be deemed payable on the first Business Day of a month in respect of the
immediately preceding month or upon demand, whichever is earlier.
(j) All amounts payable by any Guarantor under this Supplemental Indenture shall be
paid without set-off or counterclaim and without any deduction or withholding whatsoever
unless and to the extent that a Guarantor shall be prohibited by law from doing so, in
which case such Guarantor shall, only to the extent such a similar requirement is imposed
on the Company pursuant to this Supplemental Indenture, pay to the Trustee such additional
amount as shall be necessary to ensure that the Trustee receives the full amount it would
have received if no such deduction or withholding had been made.
29
(k) Each Guarantor acknowledges that it has, by separate written instrument,
irrevocably designated and appointed CT Corporation System (CT Corporation) as its
authorized agent upon which process may be served in any suit or proceeding arising out of
or relating to the Notes, the Guarantees or this Supplemental Indenture that may be
instituted in any federal or state court in the State of New York or brought under federal
or state securities laws. Each Guarantor acknowledges that CT Corporation has accepted
such designation, submits to the non-exclusive jurisdiction of any such court in any such
suit or proceeding and acknowledges further that service of process upon CT Corporation (or
any successor) and written notice of said service to each Guarantor shall be deemed in
every respect effective service of process upon any Guarantor in any such suit or
proceeding. Each Guarantor 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 (or any successor) in full
force and effect so long as any of the Notes shall be outstanding. In addition, to the
extent that any Guarantor 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, it hereby irrevocably waives such immunity in respect of its obligations
under the above-referenced documents, to the extent permitted by law.
SECTION 702. RELEASE OF GUARANTORS.
(a) In addition to the release provisions set forth in the Indenture, subject to
Section 702(d), a Guarantor shall be released and relieved from all of its obligations
under this Article Seven, and such Guarantors Guarantee shall be terminated and be of no
further force or effect, upon the request of the Company (without the consent of the
Trustee) if, immediately after giving effect to such release and termination (and, if
applicable, any transaction in connection therewith, including any other concurrent
release, termination, repayment or discharge of any other guarantee or other Debt of such
Guarantor), the Company would be in compliance with Section 504 hereof, including in the
event of a sale or other disposition as a result of which such Guarantor would cease to be
a Subsidiary.
(b) In order to effect the release and termination provided for in Section 702(a), the
Company shall furnish to the Trustee an Officers Certificate stating that, immediately
after giving effect to such release and termination (as well as any concurrent release,
termination, repayment or discharge of any other guarantee or other Debt of such
Guarantor), the Company will be in compliance with Section 504 hereof. In the event that
the release and termination is in connection with a sale or other disposition as a result
of which a Guarantor would cease to be a Subsidiary,
pro forma
effect shall be given to
such disposition (including the application of any proceeds therefrom) in determining the
Companys compliance with Section 504 and, accordingly, the amount of Debt
30
subject to the Guarantee of such Guarantor and any other Debt of such Guarantor shall
be excluded from any calculation thereunder. Notwithstanding any provision to the contrary
in the Indenture or this Supplemental Indenture, no opinion, report or certificate, other
than the Officers Certificate provided for in this Section 702(b), need be furnished to
the Trustee for such release and termination. After its receipt of the aforementioned
Officers Certificate, the Trustee shall execute any documents reasonably requested by
either the Company or the applicable Guarantor in order to evidence the release of such
Guarantor from its obligations under its Guarantee under this Article Seven.
(c) No supplemental indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Note, release a Guarantor from any of its obligations under
Section 701, other than in accordance with the provisions of this Section 702 or the other
release provisions set forth in the Indenture, or amend or modify the release provisions of
this Section 702.
(d) Notwithstanding the release provisions of Section 702(a), no Guarantor shall be
released from its obligations under this Article Seven and its Guarantee will not be
terminated if, immediately after such release and termination (and, if applicable, after
giving effect to any transaction to occur concurrently therewith), such Guarantor remains a
co-obligor with or a guarantor for, as applicable, the obligations of the Company under any
Existing Note.
SECTION 703. AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.
(a) Unless a Guarantor has been released, or in connection with such transaction will
be released, from its obligations under its Guarantee in accordance with the provisions of
Section 702 hereof or any other release provision set forth in the Indenture, such
Guarantor 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:
(i) immediately after giving effect to such transaction (and treating any Debt
which becomes an obligation of the Guarantor or a Subsidiary of the Guarantor 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;
(ii) either (x) the Guarantor shall be the continuing Person or (y) the Person
(if other than the Guarantor) formed by such amalgamation or consolidation or into
which the Guarantor is merged or the Person which acquires by conveyance, transfer,
lease or other disposition the properties and assets of the Guarantor substantially
as an entirety (the Successor Guarantor) shall, unless the Successor Guarantor is
the Company, (A) be
31
a corporation, company, partnership or trust organized and validly existing
under the federal laws of Canada or any Province thereof or the laws of the United
States of America or any State thereof or the District of Columbia and (B)
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
Guarantor under its Guarantee (
provided, however,
that the Successor Guarantor
shall not be required to execute and deliver such a supplemental indenture in the
event of an amalgamation of the Guarantor with one or more other Persons, in which
the amalgamation is governed by the laws of Canada or any province thereof, the
Successor Guarantor and the Guarantor are, immediately prior to such amalgamation,
organized and existing under the laws of Canada or any province thereof and upon
the effectiveness of such amalgamation, the Successor Guarantor shall have become
or shall continue to be (as the case may be), by operation of law, liable for the
observance of all obligations of the Guarantor under its Guarantee); and
(iii) the Guarantor, the Company or the Successor Guarantor, as applicable,
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 Section 703(a) and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
(b) Upon any amalgamation, consolidation or merger, or any conveyance, transfer, lease
or other disposition of the properties and assets of a Guarantor substantially as an
entirety in accordance with Section 703(a), the Successor Guarantor shall succeed to, and
be substituted for, and may exercise every right and power of, such Guarantor under this
Supplemental Indenture and the Indenture with the same effect as if such Successor
Guarantor had been named as such Guarantor herein; and thereafter, except in the case of a
lease, such Guarantor shall be released and relieved from all of its obligations under this
Article Seven, and such Guarantors Guarantee shall be terminated and be of no further
force or effect.
SECTION 704. PAYMENT OF ADDITIONAL AMOUNTS.
All payments made by a Guarantor under or with respect to the Notes or its Guarantee will be
made free and clear of and without withholding or deduction for or on account of any present or
future Taxes, unless such Guarantor is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If a Guarantor 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 Notes or its
Guarantee, such Guarantor will pay as interest such Additional Amounts as may be necessary so that
the net amount received by each Holder in respect of a Beneficial Owner (including Additional
32
Amounts) after such withholding or deduction will not be less than the amount the Holder would
have received in respect of such Beneficial Owner 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 in
respect of a Beneficial Owner (each, an Excluded Holder for purposes of this Section 704) (i)
with which the Company does not deal at arms length (within the meaning of the Income Tax Act
(Canada)) at the time of making such payment, (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 Notes or the receipt of payments thereunder, (iii) which is subject to such
Taxes by reason of its failure to comply with any certification, identification, documentation or
other reporting requirements if compliance is required by law, regulation, administrative practice
or an applicable treaty as a pre-condition to exemption from, or a reduction in the rate of
deduction or withholding of, such Taxes, (iv) if the Notes are presented for payment more than 15
days after the date on which such payment or such Notes became due and payable or the date on which
payment thereof is duly provided for, whichever is later (except to the extent that the Holder
would have been entitled to such Additional Amounts had the Notes been presented on the last day of
such 15-day period) or (v) to the extent that such withholding is imposed on a payment to a Holder
or Beneficial Owner 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. Such Guarantor 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, such Guarantor will furnish, as soon as reasonably
practicable, to such Holder certified copies of tax receipts evidencing such payment by such
Guarantor. Such Guarantor will indemnify and hold harmless each Holder in respect of a Beneficial
Owner (other than an Excluded Holder) and, upon written request of any Holder (other than an
Excluded Holder) reimburse such Holder for the amount of (i) any such Taxes so levied or imposed
and paid by such Holder as a result of any failure of such Guarantor to withhold, deduct or remit
to the relevant tax authority, on a timely basis, the full amounts required under applicable law;
and (ii) any such Taxes so levied or imposed with respect to any reimbursement under the foregoing
clause (i), so that the net amount received by such Holder in respect of a Beneficial Owner after
such reimbursement would not be less than the net amount such Holder would have received in respect
of such Beneficial Owner if such Taxes on such reimbursement had not been imposed.
At least 30 days prior to each date on which any payment under or with respect to the
Guarantee of a Guarantor is due and payable, if such Guarantor will be obligated to pay Additional
Amounts with respect to such payment, such Guarantor will deliver to the Trustee an Officers
Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so
payable and will set forth such other information necessary to enable the Trustee, on behalf of
such Guarantor, to pay such Additional Amounts to Holders on the payment date.
The obligations of the Guarantors under this Section 704 shall survive the discharge and
termination of this Supplemental Indenture and the payment of all amounts under or with respect to
the Guarantees.
33
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed all as of the day and year first above written.
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ROGERS COMMUNICATIONS INC.,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President, Finance and Chief Financial Officer
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ROGERS WIRELESS PARTNERSHIP,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President
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ROGERS CABLE COMMUNICATIONS INC.,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President
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THE BANK OF NEW YORK MELLON,
as Trustee
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By
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/s/ Catherine F. Donohue
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Name:
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Catherine F. Donohue
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Title:
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Vice President
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ANNEX A:
FORM OF SUBORDINATION AGREEMENT
This Agreement made as of [
], 2008 between Rogers Communications Inc. (the Company), Rogers
Wireless Partnership (RWP), Rogers Cable Communications Inc. (RCCI and, together with the
Company and RWP, the Obligors), The Bank of New York Mellon (f/k/a JPMorgan Chase Bank, N.A. and
subsequently f/k/a The Bank of New York), as trustee (the Trustee) under the Indenture (as
defined below) and The Bank of New York Mellon, as trustee (the Senior Debt Trustee) under an
indenture dated as of the date hereof among the Company, as issuer, and the Senior Debt Trustee, as
trustee, as supplemented by a supplemental indenture dated as of the date hereof, among the
Company, as issuer, RWP and RCCI, as guarantors, and the Senior Debt Trustee, as trustee for the
holders of 6.80% Senior Notes due 2018 of the Company issued as of the date hereof under such
supplemental indenture and outstanding from time to time and constituting Senior Indebtedness (such
holders being hereinafter called holders of Senior Indebtedness).
WITNESSES THAT WHEREAS:
A. Rogers Wireless Inc. (Wireless) and the Trustee entered into an indenture (the Original
Indenture) dated as of November 30, 2004 providing for the issuance of 8.00% Senior Subordinated
Notes due 2012 of Wireless (the Securities);
B. The Original Indenture was amended pursuant to the First Supplemental Indenture thereto,
dated as of August 1, 2005, among Wireless, RWP and the Trustee (the Original Indenture, as so
amended, the Indenture), and pursuant to such First Supplemental Indenture RWP became a
co-obligor with Wireless in respect of the Securities;
C. On July 1, 2007, Wireless amalgamated with the Company and, according to the terms of the
Indenture, the Company succeeded to the obligations of Wireless under the Indenture and,
immediately prior thereto, RCCI entered into a Guarantee Agreement as of the same date pursuant to
which it guaranteed the payment obligations of the Company under the Indenture; and
D. As set forth in Section 1208 of 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 and the Obligors hereby covenant with the Senior Debt Trustee, in its capacity as
trustee on behalf of the holders of Senior Indebtedness, 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 applicable Obligor.
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 an Obligor shall in no
circumstances be considered to be a payment on account of such Senior Indebtedness.
4. BINDING EFFECT AND INUREMENT.
This Agreement shall be binding upon the successors of the Company, RWP, RCCI 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. INDEMNITY.
The Obligors shall, jointly and severally, indemnify the Trustee and the Senior Debt Trustee
for any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with its entry into this
Agreement.
8. 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.
9. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
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ROGERS COMMUNICATIONS INC.,
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By
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Name:
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Title:
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By
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Name:
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Title:
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ROGERS WIRELESS PARTNERSHIP,
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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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ROGERS CABLE COMMUNICATIONS INC.,
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By
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Name:
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Title:
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By
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Name:
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Title:
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THE BANK OF NEW YORK MELLON,
as Trustee
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By
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Name:
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Title:
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THE BANK OF NEW YORK MELLON,
as Senior Debt Trustee
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By
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Name:
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Title:
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EXECUTION VERSION
ROGERS COMMUNICATIONS INC.,
as issuer of the Notes,
ROGERS WIRELESS PARTNERSHIP
and
ROGERS CABLE COMMUNICATIONS INC.
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as the Guarantors
and
THE BANK OF NEW YORK MELLON,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of August 6, 2008
to
INDENTURE
Dated as of August 6, 2008
7.50% Senior Notes due 2038
TABLE OF CONTENTS
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PAGE
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101.
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DEFINITIONS
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1
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SECTION 102.
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OTHER DEFINITIONS
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8
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SECTION 103.
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EFFECT OF SUPPLEMENTAL INDENTURE
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9
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SECTION 104.
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INDENTURE REMAINS IN FULL FORCE AND EFFECT
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9
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SECTION 105.
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INCORPORATION OF INDENTURE
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9
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SECTION 106.
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COUNTERPARTS
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10
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SECTION 107.
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EFFECT OF HEADINGS AND TABLE OF CONTENTS
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10
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SECTION 108.
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SUCCESSORS AND ASSIGNS
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10
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SECTION 109.
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SEPARABILITY CLAUSE
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10
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SECTION 110.
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BENEFITS OF SUPPLEMENTAL INDENTURE
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10
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SECTION 111.
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GOVERNING LAW
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10
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ARTICLE TWO
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FORM OF THE NOTES
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SECTION 201.
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FORMS GENERALLY
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SECTION 202.
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FORM OF FACE OF NOTE
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11
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SECTION 203.
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FORM OF REVERSE OF NOTE
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14
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SECTION 204.
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FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION
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ARTICLE THREE
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THE NOTES
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SECTION 301.
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TITLE AND TERMS
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17
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SECTION 302.
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DENOMINATIONS
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18
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SECTION 303.
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NOTES TO BE SECURED IN CERTAIN EVENTS
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ARTICLE FOUR
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REMEDIES UPON CHANGE IN CONTROL
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SECTION 401.
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ADDITIONAL EVENT OF DEFAULT
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19
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SECTION 402.
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ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT
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SECTION 403.
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WAIVER OF PAST DEFAULTS
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SECTION 404.
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CHANGE IN CONTROL OFFER
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ARTICLE FIVE
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ADDITIONAL COVENANTS
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SECTION 501.
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RESTRICTED SUBSIDIARIES
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SECTION 502.
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LIMITATION ON SECURED DEBT
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SECTION 503.
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LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
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PAGE
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SECTION 504.
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LIMITATION ON RESTRICTED SUBSIDIARY DEBT
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SECTION 505.
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SUBORDINATION ARRANGEMENTS
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SECTION 506.
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WAIVER OF CERTAIN COVENANTS
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ARTICLE SIX
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CHANGE IN CONTROL PROVISIONS
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SECTION 601.
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EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE
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SECTION 602.
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DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE
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SECTION 603.
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REPAYMENT TO THE COMPANY
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ARTICLE SEVEN
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GUARANTEES
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SECTION 701.
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GUARANTEES
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SECTION 702.
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RELEASE OF GUARANTORS
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SECTION 703.
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AMALGAMATION, CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
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31
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SECTION 704.
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PAYMENT OF ADDITIONAL AMOUNTS
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ii
SECOND SUPPLEMENTAL INDENTURE dated as of August 6, 2008 (this Supplemental Indenture),
among Rogers Communications Inc., a corporation organized under the laws of the Province of British
Columbia (hereinafter called the Company), Rogers Wireless Partnership, an Ontario partnership
(hereinafter called RWP), Rogers Cable Communications Inc., a corporation organized under the
laws of Ontario (hereinafter called RCCI and, together with RWP, the Guarantors), and The Bank
of New York Mellon, a New York banking corporation, as trustee (hereinafter called the Trustee).
WHEREAS, the Company and the Trustee are parties to an indenture dated as of August 6, 2008
(as the same may from time to time be supplemented or amended (other than by a Series Supplement),
the Indenture);
WHEREAS, Article Two and Section 801 of the Indenture provide, among other things, that,
without the consent of any Holders, the Company and the Trustee may enter into a supplement to the
Indenture for the purposes of establishing the form, terms and conditions applicable to the
Securities of any Series which the Company wishes to issue under the Indenture;
WHEREAS, the Company desires to establish the form, terms and conditions of a Series of
Securities and has requested the Trustee to enter into this Supplemental Indenture for such
purpose;
WHEREAS, the Trustee has received an Officers Certificate and an Opinion of Counsel of the
Company, in each case complying with Section 103 of the Indenture; and
WHEREAS, pursuant to the Indenture, the Board of Directors has duly authorized the
establishment of the 7.50% Senior Notes due 2038 of the Company (the Notes) with the form, terms
and conditions as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, the parties hereto agree, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
Capitalized terms used herein without definition shall have the meanings assigned to them in
the Indenture.
Adjusted Treasury Rate means, with respect to any Redemption Date, the rate per year equal
to the semi-annual 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.
Attributable Debt means, as of the date of its determination, the present value (discounted
semi-annually at the interest rate implicit in the terms of the lease) of the obligation of a
lessee for rental payments pursuant to any Sale and Leaseback Transaction (reduced by the amount of
the rental obligations of any sublessee of all or part of the same property) during the remaining
term of such Sale and Leaseback Transaction (including any period for which the lease relating
thereto has been extended), such rental payments not to include amounts payable by the lessee for
maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rates
(such as those based on sales);
provided
,
however
, that in the case of any Sale and Leaseback
Transaction in which the lease is terminable by the lessee upon the payment of a penalty,
Attributable Debt shall mean the lesser of the present value of (i) the rental payments to be paid
under such Sale and Leaseback Transaction until the first date (after the date of such
determination) upon which it may be so terminated plus the then applicable penalty upon such
termination and (ii) the rental payments required to be paid during the remaining term of such Sale
and Leaseback Transaction (assuming such termination provision is not exercised).
Company means the Person named as the Company in the first paragraph of this Supplemental
Indenture, until a successor Person shall have become such pursuant to the applicable provisions of
the 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 Notes for the purposes of complying with such provisions.
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 Notes 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 Notes.
Comparable Treasury Price means, with respect to any Redemption Date, the average of the
Reference Treasury Dealer Quotations for the Redemption Date.
Consolidated Net Tangible Assets means the Consolidated Tangible Assets of any Person, less
such Persons current liabilities.
Consolidated Tangible Assets means the Tangible Assets of any Person after eliminating
inter-company items, determined on a Consolidated basis in accordance with GAAP including
appropriate deductions for any minority interest in Tangible Assets of such Persons Restricted
Subsidiaries.
Disqualified Stock means any Capital Stock of the Company or any Restricted Subsidiary
which, by its terms (or by the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder) or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the holder thereof, in whole or
2
in part, on or prior to the maturity date of the Notes for cash or securities constituting
Debt;
provided
that shares of Preferred Stock of the Company or any Restricted Subsidiary that are
issued with the benefit of provisions requiring a change in control offer to be made for such
shares in the event of a change in control of the Company or of such Restricted Subsidiary, which
provisions have substantially the same effect as the relevant provisions of Sections 401 and 404
herein, 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.
Excluded Assets means (i) all assets of any Person other than the Company or a Restricted
Subsidiary; (ii) Investments in the Capital Stock of an Unrestricted Subsidiary held by the Company
or a Restricted Subsidiary; (iii) any Investment by the Company or a Restricted Subsidiary to the
extent paid for with cash or other property that constitutes Excluded Assets or Excluded
Securities, so long as at the time of acquisition thereof and after giving effect thereto there
exists no Default or Event of Default; and (iv) proceeds of the sale of any Excluded Assets or
Excluded Securities received by the Company or any Restricted Subsidiary from a Person other than
the Company or a Restricted Subsidiary.
Excluded Securities means any Debt, Preferred Stock or Common Stock issued by the Company,
or any Debt or Preferred Stock issued by any Restricted Subsidiary, in either case to an Affiliate
thereof other than the Company or a Restricted Subsidiary,
provided
that, at all times, such
Excluded Securities shall:
(i) in the case of Debt not owed to the Company or a Restricted Subsidiary, constitute
Inter-Company Subordinated Debt;
(ii) in the case of Debt, not be guaranteed by the Company or any Restricted
Subsidiary unless such guarantee shall constitute Inter-Company Subordinated Debt;
(iii) in the case of Debt, not be secured by any assets or property of the Company or
any Restricted Subsidiary;
(iv) in the case of Debt or Preferred Stock, provide by its terms that interest or
dividends thereon shall be payable only to the extent that, after giving effect to any such
payment, no Default or Event of Default shall have occurred and be continuing; and
(v) in the case of Debt or Preferred Stock, provide by its terms that no payment
(other than payments in the form of Excluded Securities) on account of principal (at
maturity, by operation of sinking fund or mandatory redemption or otherwise) or other
payment on account of redemption, repurchase, retirement or acquisition of such Excluded
Security shall be permitted until the earlier of (x) the Maturity Date of the Notes or (y)
the date on which all principal of, premium, if any, and interest on the Notes shall have
been duly paid or provided for in full.
3
Existing Notes means any of the Existing Senior Notes or the Existing Senior Subordinated
Notes.
Existing Senior Notes means any of the 9.625% Senior Notes Due 2011, 7.625% Senior Notes Due
2011, 7.25% Senior Notes Due 2011, 7.25% Senior Notes Due 2012, 7.875% Senior Notes Due 2012, 6.25%
Senior Notes Due 2013, 6.375% Senior Notes Due 2014, 5.50% Senior Notes Due 2014, 7.50% Senior
Notes Due 2015, 6.75% Senior Notes Due 2015 or 8.75% Senior Debentures Due 2032, in each case for
which the Company is a co-obligor.
Existing Senior Subordinated Notes means the 8.00% Senior Subordinated Notes Due 2012 for
which the Company and RWP are co-obligors and RCCI is a guarantor.
Fitch means Fitch Ratings Ltd. or any successor to the rating agency business thereof.
Guarantors has the meaning set forth in the first paragraph of this Supplemental Indenture.
Indenture has the meaning set forth in the recitals of this Supplemental Indenture.
Investment means (i) directly or indirectly, any advance, loan or capital contribution to,
the purchase of any stock, bonds, notes, debentures or other securities of, the acquisition, by
purchase or otherwise, of all or substantially all of the business or assets or stock or other
evidence of beneficial ownership of, any Person or making of any investment in any Person, (ii) the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary and (iii) the transfer of
any assets or properties from the Company or a Restricted Subsidiary to any Unrestricted
Subsidiary, other than the transfer of assets or properties made in the ordinary course of
business. Investments shall exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
Investment Grade Rating means a rating equal to or higher than BBB- (or the equivalent) by
S&P, Baa3 (or the equivalent) by Moodys or BBB- (or the equivalent) by Fitch.
Issue Date means August 6, 2008, the initial issue date of the Notes.
Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business
thereof.
Net Tangible Assets means the Tangible Assets of any Person, less such Persons current
liabilities.
Notes has the meaning set forth in the recitals of this Supplemental Indenture.
4
Other Senior Notes means the senior notes and debentures for which the Company is the
obligor or a co-obligor, as applicable, that are outstanding as of the Issue Date, other than the
Notes to be issued hereunder.
Permitted Liens means any of the following Liens
(i) Liens for taxes, rates and assessments not yet due or, if due, the validity of
which is being contested diligently and in good faith by appropriate proceedings by the
Company or any of the Restricted Subsidiaries (as applicable); and Liens for the excess of
the amount of any past due taxes for which a final assessment has not been received over
the amount of such taxes as estimated and paid;
(ii) the Lien of any judgment rendered which is being contested diligently and in good
faith by appropriate proceedings by the Company, or any of the Restricted Subsidiaries, as
the case may be, and which does not have a material adverse effect on the ability of the
Company and the Restricted Subsidiaries to operate the business or operations of the
Company;
(iii) Liens on Excluded Assets;
(iv) pledges or deposits under workers compensation laws, unemployment insurance laws
or similar legislation or good faith deposits in connection with bids, tenders, contracts
(other than for the payment of Debt) or leases or deposits of cash or bonds or other direct
obligations of the United States, Canada or any Canadian province to secure surety or
appeal bonds or deposits as security for contested taxes or import duties or for the
payment of rents;
(v) Liens imposed by law, such as carriers, warehousemens and mechanics liens, or
other liens arising out of judgments or awards with respect to which an appeal or other
proceeding for review is being prosecuted (and as to which any foreclosure or other
enforcement proceeding shall have been effectively stayed);
(vi) Liens for property taxes not yet subject to penalties for non-payment or which
are being contested in good faith and by appropriate proceedings (and as to which
foreclosure or other enforcement proceedings shall have been effectively stayed);
(vii) Liens in favor of issuers of surety bonds issued in the ordinary course of
business;
(viii) minor survey exceptions, minor encumbrances, easements or reservations of or
rights of others for rights of way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of real
properties or Liens incidental to the conduct of the business of the Person incurring them
or the ownership of its properties which were not incurred in connection with Debt or other
extensions of credit and which
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do not in the aggregate materially detract from the value of such properties or
materially impair their use in the operation of the business of such Person;
(ix) Liens in favor of Bell Canada (or any successor) under any partial system
agreement or related agreement providing for the construction and installation by Bell
Canada of cables, attachments, connectors, support structures, closures and other equipment
in accordance with the plans and specifications of the Company or any Restricted Subsidiary
and the lease by Bell Canada of such equipment to the Company or any Restricted Subsidiary
in accordance with tariffs published by Bell Canada from time to time as approved by
regulatory authorities, the absence of which would materially and adversely affect the
Company and its Restricted Subsidiaries considered as a whole; and
(x) any other Lien existing on the Issue Date.
Principal Property means, as of any date of determination, any land, land improvements or
building (and associated factory, laboratory, office and switching equipment (excluding all
products marketed by the Company or any of its Subsidiaries)) constituting a manufacturing,
development, warehouse, service, office or operating facility owned by or leased to the Company or
a Restricted Subsidiary, located within Canada and having an acquisition cost plus capitalized
improvements in excess of 0.25% of Consolidated Net Tangible Assets of the Company as of such date
of determination, other than any such property (i) which the Board of Directors determines is not
of material importance to the Company and its Restricted Subsidiaries taken as a whole, (ii) which
is not used in the ordinary course of business or (iii) in which the interest of the Company and
all its Subsidiaries does not exceed 50%.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Rating Agencies means S&P, Moodys and Fitch, and each of such Rating Agencies is referred
to individually as a Rating Agency.
Rating Date means the date which is 90 days prior to the earlier of (i) a Change in Control
and (ii) public notice of the occurrence of a Change in Control or of the intention of the Company
to effect a Change in Control.
Rating Decline means the occurrence of the following on, or within 90 days after, the date
of public notice of the occurrence of a Change in Control or of the intention by the Company to
effect a Change in Control (which period shall be extended so long as the rating of the Notes is
under publicly announced consideration for possible downgrade by any of the Rating Agencies): (i)
in the event the Notes are assigned an Investment Grade Rating by at least two of the three Rating
Agencies on the Rating Date, the rating of the Notes by at least two of the three Rating Agencies
shall be below an Investment Grade Rating; or (ii) in the event the Notes are rated below an
Investment Grade Rating by at least two of the three Rating Agencies on the Rating Date, the rating
of the Notes by at least two of the three Rating Agencies shall be decreased by one or
6
more gradations (including gradations within rating categories as well as between rating
categories).
RCCI has the meaning set forth in the first paragraph of this Supplemental Indenture.
Reference Treasury Dealer means (1) either of Citigroup Global Markets Inc. or J.P. Morgan
Securities Inc. or any successor of either entity;
provided
,
however
, that if either shall cease to
be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the
Company shall substitute for such dealer another Primary Treasury Dealer; and (2) any other Primary
Treasury Dealer(s) 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.
RWP has the meaning set forth in the first paragraph of this Supplemental Indenture.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor to the rating agency business thereof.
Sale and Leaseback Transaction means any arrangement with any Person providing for the
leasing by the Company or any Restricted Subsidiary of any Principal Property (whether such
Principal Property is now owned or hereafter acquired) that has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person, other than (i) temporary
leases for a term, including renewals at the option of the lessee, of not more than three years,
(ii) leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries and
(iii) leases of Principal Property executed by the time of, or within 180 days after the latest of,
the acquisition, the completion of construction or improvement (including any improvements on
property which will result in such property becoming Principal Property), or the commencement of
commercial operation of such Principal Property.
Secured Debt means:
(a) Debt of the Company or any Restricted Subsidiary secured by any Lien upon any
Principal Property or the stock or Debt of a Restricted Subsidiary (other than a Restricted
Subsidiary that guarantees the payment obligations of the Company under the Notes); or
(b) any conditional sale or other title retention agreement covering any Principal
Property or Restricted Subsidiary;
7
but does not include any Debt secured by any Lien or any conditional sale or other title retention
agreement:
(1) incurred or entered into on or after the Issue Date to finance the acquisition,
improvement or construction of such property and either secured by Purchase Money
Obligations or Liens placed on such property within 180 days of acquisition, improvement or
construction and securing Debt not to exceed 2.5% of the Companys Consolidated Net
Tangible Assets at any time outstanding;
(2) on Principal Property or the stock or Debt of Restricted Subsidiaries and existing
at the time of acquisition of the property, stock or Debt;
(3) owing to the Company or any other Restricted Subsidiary; or
(4) existing at the time a corporation or other Person becomes a Restricted
Subsidiary;
each of the foregoing being referred to as Exempted Secured Debt.
Subordination Agreement means the subordination agreement among the Company, the Guarantors,
the Trustee, and The Bank of New York Mellon (f/k/a JPMorgan Chase Bank, N.A. and subsequently
f/k/a The Bank of New York), as trustee for the holders of the Existing Senior Subordinated Notes
(the Subordinated Note Trustee), in the form of Exhibit A attached hereto.
Tangible Assets means, at any date, the gross book value as shown by the accounting books
and records of any Person of all its property both real and personal, less (i) the net book value
of all its licenses, patents, patent applications, copyrights, trademarks, trade names, goodwill,
non-compete agreements or organizational expenses and other like intangibles, (ii) unamortized Debt
discount and expenses, (iii) all reserves for depreciation, obsolescence, depletion and
amortization of its properties and (iv) all other proper reserves which in accordance with GAAP
should be provided in connection with the business conducted by such Person.
Trustee means the Person named as the Trustee in the first paragraph of this Supplemental
Indenture, until a successor shall have become such pursuant to the applicable provisions of the
Indenture, and thereafter Trustee shall mean such successor Trustee.
SECTION 102. OTHER DEFINITIONS.
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DEFINED
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DEFINED TERM
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IN SECTION
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Change in Control
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401
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Change in Control Offer
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404
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(a)
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Change in Control Purchase Date
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404
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(a)
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Change in Control Purchase Notice
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404
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(b)
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DEFINED
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DEFINED TERM
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IN SECTION
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Change in Control Purchase Price
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404
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(a)
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Change in Control Triggering Event
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401
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Edward S. Rogers
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401
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Family Percentage Holding
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401
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Guarantee
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701
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(a)
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Guaranteed Obligations
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701
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(a)
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Maturity Date
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301
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Member of the Rogers Family
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401
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Permitted Residuary Beneficiary
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401
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Perpetuity Date
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401
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Qualifying Trust
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401
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Spouse
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401
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Successor Guarantor
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703
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SECTION 103. EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution and delivery of this Supplemental Indenture by the Company, the Guarantors
and the Trustee, the Indenture shall be supplemented and amended in accordance herewith, and this
Supplemental Indenture shall form a part of the Indenture for all purposes;
provided
,
however
, that
except as otherwise provided herein, the provisions of this Supplemental Indenture shall be
applicable, and the Indenture is hereby supplemented and amended as specified herein, solely with
respect to the Notes and not with respect to any other Securities previously issued or to be issued
under the Indenture. In the event of a conflict between any provisions of the Indenture and this
Supplemental Indenture, the relevant provision or provisions of this Supplemental Indenture shall
govern.
SECTION 104. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented or amended hereby, all other provisions in the Indenture, to the extent
not inconsistent with the terms and provisions of this Supplemental Indenture, shall remain in full
force and effect.
SECTION 105. INCORPORATION OF INDENTURE.
All the provisions of this Supplemental Indenture shall be deemed to be incorporated in, and
made a part of, the Indenture; and the Indenture, as supplemented and amended by this Supplemental
Indenture, shall be read, taken and construed as one and the same instrument;
provided
,
however
,
that the provisions of this Supplemental Indenture are expressly and solely for the benefit of the
Holders of the Notes.
9
SECTION 106. COUNTERPARTS.
This Supplemental Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 107. 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. Unless otherwise expressly specified, references in this
Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and
Sections contained in this Supplemental Indenture, and not the Indenture or any other document.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Supplemental Indenture by the Company and the Guarantors
shall bind their respective successors and permitted assigns (if any), whether so expressed or not.
All covenants and agreements of the Trustee in this Supplemental Indenture shall bind its
successors and permitted assigns (if any), whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF SUPPLEMENTAL INDENTURE.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any
Person (other than the parties hereto, any Paying Agent and any Security Registrar, and their
successors hereunder, and the Holders) any benefit or any legal or equitable right, remedy or claim
under this Supplemental Indenture or in respect of the Notes.
SECTION 111. GOVERNING LAW.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York. This Supplemental Indenture shall be subject to the
provisions of the Trust Indenture Act that are required or deemed to be part of this Supplemental
Indenture and shall, to the extent applicable, be governed by such provisions.
10
ARTICLE TWO
FORM OF THE NOTES
SECTION 201. FORMS GENERALLY.
The Notes and the Trustees 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 Supplemental 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 Notes, as evidenced by their execution of the Notes (but
which shall not affect the rights or duties of the Trustee). Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The definitive Notes 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 Notes may be listed, all as determined by the officers executing such Notes,
as evidenced by their execution of such Notes.
The Notes shall be in registered form and shall initially be registered in the name of the
Depositary or its nominee. The Notes shall be issued initially as Book-Entry Securities in the
form of one or more Global Securities substantially in the form set forth in this Article deposited
with the Trustee, as custodian for the Depositary, and duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Depositary for such Global Securities
shall be DTC. The aggregate principal amount of the 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.
SECTION 202. FORM OF FACE OF NOTE.
The Notes and the Trustees certificate of authentication to be endorsed thereon are to be
substantially in the form provided for in this Section 202 and Sections 203 and 204:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC) TO THE COMPANY (HEREINAFTER REFERRED TO) 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 IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR
11
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
HOLDER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE INDENTURE (HEREINAFTER REFERRED
TO). THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE BASE INDENTURE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO THE INDENTURE, (II) THIS NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 207(B) OF THE BASE INDENTURE, (III) THIS NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 211 OF THE BASE INDENTURE AND (IV) EXCEPT AS OTHERWISE
PROVIDED IN SECTION 207(B) OF THE BASE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT
NOT IN PART, ONLY (X) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR (Z) BY THE DEPOSITARY OR ANY
NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
ROGERS COMMUNICATIONS INC.
7.50% SENIOR NOTES DUE 2038
Rogers Communications Inc., a corporation organized under the laws of the Province of British
Columbia (herein called the Company, which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of
U.S. dollars (or such other amount that may from time to
time be indicated on the records of the Depositary as the result of increases or decreases by
adjustments made on the records of the Depositary, in accordance with the rules and procedures of
the Depositary) on August 15, 2038 at the office or agency of the Company referred to below, and to
pay interest thereon in arrears on February 15, 2009 and semi-annually in arrears thereafter, on
February 15 and August 15 in each year (each herein called an Interest Payment Date), which
interest shall accrue from and including August 6, 2008 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, at the rate of 7.50% per annum, until
the principal hereof is paid or duly provided for, and (to the extent lawful) to pay interest on
any overdue interest at the rate borne by the Notes 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
12
the Person in whose name this Note (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 February 1
or August 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
Default Interest, at the interest rate borne by the Notes, 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 Note (or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Default Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes 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 Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Note will be made at
the office or agency 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 Notes, 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 Notes, 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 Note to the Paying Agent.
Interest on this Note shall be computed on the basis of a 360-day year consisting of twelve
30-day months. For the purposes of the
Interest Act
(Canada), the yearly rate of interest which is
equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of
days in the year and divided by 360.
Reference is hereby made to the further provisions of this Note 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 Note 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.
13
Dated:
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ROGERS COMMUNICATIONS INC.
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By
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Name:
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Title:
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By
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Name:
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Title:
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SECTION 203. FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of securities of the Company designated as its
7.50% Senior Notes due 2038 (herein called the Notes), which may be issued under an indenture (as
the same may from time to time be supplemented or amended (other than by a Series Supplement),
herein called the Base Indenture) dated as of August 6, 2008 between the Company and The Bank of
New York Mellon, as trustee (herein called the Trustee, which term includes any successor trustee
thereunder), as supplemented and amended by the Second Supplemental Indenture dated as of August 6,
2008 among the Company, Rogers Wireless Partnership, an Ontario partnership, Rogers Cable
Communications Inc., a corporation organized under the laws of Ontario (together with Rogers
Wireless Partnership, the Guarantors), and the Trustee (herein called the Supplemental
Indenture and, together with the Base Indenture, the Indenture), to which the Indenture
reference is hereby made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders
of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Company will pay to the Holders such Additional Amounts as may become payable under
Section 907 of the Base Indenture.
On or before each Interest 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.
To guarantee the due and punctual payment of the principal and interest on the Notes and all
other amounts payable by the Company under the Indenture and the Notes when and as the same shall
be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of
the Notes and the Indenture, the Guarantors have, jointly and severally, fully and unconditionally
guaranteed the Guaranteed Obligations on an unsecured, unsubordinated basis pursuant to the terms
of the Indenture. The Guarantors will pay to the Holders such Additional Amounts as may become
payable under Section 704 of the Supplemental Indenture.
14
The Notes 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.$2,000 or an
integral multiple of U.S.$1,000 in excess thereof, at the option of the Company, at a Redemption
Price equal to the greater of: (1) 100% of the principal amount of the Notes to be redeemed, 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 Notes to be redeemed (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 45 basis points, in each case plus accrued interest thereon to the Redemption
Date.
The Notes 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 thereon 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 Notes, any Additional Amounts as a result of certain changes affecting Canadian
withholding taxes on or after the Issue Date.
In the case of any redemption of Notes, interest installments whose Stated Maturity is on or
prior to the Redemption Date will be payable to the Holders of record of such Notes, or one or more
Predecessor Securities, at the close of business on the relevant Regular Record Date referred to on
the face hereof. Notes (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 Note in part only, a replacement Note or Notes for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default (other than an Event of Default resulting from a Change in Control
Triggering Event which is cured in accordance with Section 404 of the Supplemental Indenture by the
making and consummation of a Change in Control Offer) shall occur and be continuing, the principal
amount of all the Notes 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 Notes. Following such an Event of
Default the principal amount of all the Notes may be declared due and payable in the manner and
with the effect 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 Notes and purchases
the Notes 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.
15
The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Note 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 Note.
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 not
less than a majority in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes,
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 Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note 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 Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable on the Security Register, upon surrender of this Note for
registration of transfer at the Corporate Trust Office of the Trustee or any other office or agency
of the Company designated pursuant to the Indenture 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 Notes of any authorized denomination or denominations, of a like aggregate principal
amount and containing identical terms and provisions, will be issued to the designated transferee
or transferees.
The Notes are issuable only in registered form without coupons in denominations of U.S.$2,000
or integral multiples of U.S.$1,000 in excess thereof.
No service charge shall be made for any registration of transfer or exchange or redemption of
Notes, 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 Note 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
Note is registered as the owner hereof for all
16
purposes except as otherwise provided, whether or not this Note be overdue, and neither the
Company, the Trustee nor any agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 204. FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION.
TRUSTEES CERTIFICATE OF AUTHENTICATION The Bank of New York Mellon, as Trustee, certifies
that this is one of the Notes referred to in the within-mentioned Indenture.
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The Bank of New York Mellon
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By
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Authorized Officer
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ARTICLE THREE
THE NOTES
SECTION 301. TITLE AND TERMS.
The Notes shall be known and designated as the 7.50% Senior Notes due 2038 of the Company.
The entire unpaid principal amount of each Note shall be become due and payable to the Holder
thereof on August 15, 2038 (the Maturity Date). Interest shall accrue on the aggregate unpaid
principal amount of each Note at a rate of interest equal to 7.50% per annum from August 6, 2008,
or the most recent Interest Payment Date to which interest has been paid or duly provided for.
Such interest shall be payable on February 15, 2009 and semi-annually thereafter on February 15 and
August 15 in each year (each an Interest Payment Date for purposes of this Supplemental Indenture),
until the principal thereof is paid or duly provided for. Interest on the Notes shall be payable
in arrears. The Regular Record Date for the interest payable on any Interest Payment Date shall be
February 1 or August 1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. To the extent lawful, interest shall accrue on any overdue interest at the
rate borne by the Notes 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 and such
Default Interest shall be payable at the times and on the terms provided for in the Indenture.
An unlimited aggregate principal amount of the Notes may be authenticated and delivered under
this Supplemental Indenture (of which U.S.$350,000,000 is being issued, authenticated and delivered
on the date hereof), including Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 204, 205, 206, 207, 208, 806,
1008 or 1009 of the Indenture and Section 404 hereof. Additional Notes ranking
pari
17
passu
with the Securities issued on the date hereof may be created and issued under the
Indenture from time to time by the Company without notice to or consent of the Holders, subject to
the Company complying with any applicable provision of the Indenture. Any additional Notes created
and issued shall have the same terms and conditions as the Notes initially issued, except for their
date of issue, issue price and first Interest Payment Date, and shall be consolidated with and form
a single Series with the Notes initially issued.
The Notes shall be unsecured, unsubordinated obligations of the Company ranking
pari passu
with any other present or future unsecured, unsubordinated obligations of the Company.
The Notes shall be denominated in, and all principal of, and interest and premium (if any) on,
the Notes shall be payable in U.S. dollars. Any payment of Additional Amounts hereunder shall also
be payable in U.S. dollars.
The Notes may be redeemed at the option of the Company at the prices, at the times and on such
other terms and conditions as are specified in the form of the Note in Article Two hereof. The
Company shall not be obligated to redeem, purchase or repay the Notes pursuant to any sinking fund
or analogous provisions or at the option of a Holder of the Notes except as provided in Article Six
hereof.
The Notes shall be subject to the covenants (and the related definitions) set forth in
Articles Seven and Nine of the Indenture and, except as otherwise provided herein, to any other
covenant in the Indenture, and to the defeasance and discharge provisions set forth in Article
Three thereof.
Certain obligations of the Company under the Notes shall be fully and unconditionally
guaranteed on a joint and several basis by each of the Guarantors to the extent set forth in
Article Seven hereof.
SECTION 302. DENOMINATIONS.
The Notes shall be issuable only in fully registered form without coupons and in denominations
of U.S.$2,000 or integral multiples of U.S.$1,000 in excess thereof.
SECTION 303. NOTES TO BE SECURED IN CERTAIN EVENTS.
If, upon any consolidation or amalgamation of the Company or a Guarantor, as applicable, with
or merger of the Company or a Guarantor, as applicable, into any other Person, or upon any
conveyance, transfer, lease or disposition of the properties and assets of the Company or a
Guarantor, as applicable, substantially as an entirety to any Person by liquidation, winding-up or
otherwise (in one transaction or a series of related transactions), in each case in accordance with
Section 701 of the Indenture, in the case of the Company, or Section 703 of this Supplemental
Indenture, in the case of a Guarantor, any property or asset of the Company or of any Subsidiary,
would thereupon become subject to any Lien, then, unless such Lien could be created pursuant to
Section 502 without equally and ratably securing the Notes, the Company or the Guarantor, as
applicable, prior to or simultaneously with such consolidation,
18
amalgamation, merger, conveyance, transfer, lease or disposition, will, as to such property or
asset, secure the Notes Outstanding hereunder (together with, if the Company or such Guarantor
shall so determine, any other Debt of the Company or such Guarantor now existing or hereafter
created which is not subordinate to the Notes) 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 Notes to be so
secured.
ARTICLE FOUR
REMEDIES UPON CHANGE IN CONTROL
SECTION 401. ADDITIONAL EVENT OF DEFAULT.
In addition to the Events of Default set forth in Section 401 of the Indenture, Event of
Default, wherever used herein and in the Indenture with respect to the Notes, includes the
occurrence of a Change in Control Triggering Event (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).
Under this Supplemental 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 Notes.
A Change in Control means (i) any transaction (including an amalgamation, merger or
consolidation or the sale of Capital Stock of the Company) the result of which is that any Person
or group of Persons (as the term group is used in Rule 13d-5 of the Exchange Act), other than
Members of the Rogers Family or a Person or group of Persons consisting of or controlled, directly
or indirectly, by one or more Members of the Rogers Family, 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 of Persons, other than (A) Members of the
Rogers Family or a Person or group of Persons consisting of or controlled, directly or indirectly,
by one or more Members of the Rogers Family or (B) for so long as the only primary beneficiaries of
a Qualifying Trust established under the last will and testament of Edward S. Rogers are one or
more persons referred to in clause (ii) of the definition of Member of the Rogers Family or the
Spouse, for the time being and from time to time, of the issue (including individuals adopted by
such Persons,
provided
that such adopted individuals have not attained the age of majority at the
date of such adoption, together with the issue of any such adopted individuals) of any person
described in subclause (ii)(c) or (d) 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
any 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
19
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) Edward S. Rogers (who was born on May 27, 1933, such
individual being hereinafter referred to as Edward S. Rogers); (ii) such of the following persons
as are living at the date of this Supplemental 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 Edward S. Rogers; (b) after the death of Edward S. Rogers, the widow, if any, of Edward S.
Rogers; (c) the issue of Edward S. Rogers; (d) Ann Taylor Graham Calderisi, the half-sister of
Edward S. Rogers, and the issue of Ann Taylor Graham Calderisi; (e) individuals adopted by Edward
S. Rogers or any of the persons described in subclauses (a), (b) or (c) of this clause (ii),
provided
that such adopted 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) the
trustees of any Qualifying Trust, but only to the extent of such Qualifying Trusts Family
Percentage Holding of voting securities or rights to control or direct the voting securities of the
Company at the time of the determination.
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
20
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.
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, for the time being and from time to time, of the issue (including
individuals adopted by such Persons,
provided
that such adopted individuals have not attained the
age of majority at the date of such adoption, together with the issue of any such adopted
individuals) of any person described in subclause (ii)(c) or (d) of the definition of Member of
the Rogers Family,
provided
that such Spouse 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).
Spouse means, in relation to any person, a person who is legally married to that person and
includes a widow or widower of that person, notwithstanding remarriage.
SECTION 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If a Change in Control Triggering Event 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 404 hereof,
then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Notes then Outstanding may declare the principal of all such Notes 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.
SECTION 403. WAIVER OF PAST DEFAULTS.
Notwithstanding Section 413 of the Indenture, the Holders of Notes may not waive any past
Default or Event of Default arising from a Change in Control Triggering Event by providing a
written notice of a Holder Direction to the Trustee. Any such Default or Event of Default may be
waived only with the consent of the Holder of each Outstanding Note.
SECTION 404. CHANGE IN CONTROL OFFER.
(a) The Notes may not be accelerated pursuant to Section 402 hereof following an Event
of Default arising from a Change in Control Triggering Event and such Event of Default
shall be cured if the Company complies with the provisions of this Section 404. If the
Company elects to cure such Event of
21
Default, within 20 Business Days of the occurrence of an Event of Default arising from
a Change in Control Triggering Event, (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) all outstanding Notes properly tendered 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 Jones News Service or similar business news service in the United
States and CNW Group Ltd. (Canada News Wire) or a 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:
(i) the events causing a Change in Control Triggering Event and the date such
Change in Control Triggering Event is deemed to have occurred;
(ii) that the Change in Control Offer is being made pursuant to this Section
404 and that all Notes properly tendered pursuant to the Change in Control Offer
will be accepted for payment;
(iii) the date by which the Change in Control Purchase Notice pursuant to
this Section 404 must be given;
(iv) the Change in Control Purchase Date;
(v) the Change in Control Purchase Price;
(vi) the names and addresses of the Paying Agent and the offices or agencies
referred to in Section 902 of the Indenture;
(vii) that Notes must be surrendered to the Paying Agent at the office of the
Paying Agent or to an office or agency referred to in Section 902 of the Indenture
to collect payment;
(viii) that the Change in Control Purchase Price for any Note 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
22
following the Change in Control Purchase Date and the time of surrender of
such Note as described in clause (vii) above;
(ix) the procedures the Holder must follow to accept the Change in Control
Offer; and
(x) 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 902 of the
Indenture 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:
(i) that such Holder elects to have a Note purchased pursuant to the Change in
Control Offer;
(ii) the principal amount of the Note 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 Notes to be delivered by such Holder for
purchase by the Company; and
(iii) that such Note shall be purchased on the Change in Control Purchase Date
pursuant to the terms and conditions specified in this Supplemental Indenture.
The delivery of such Note (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 902 of the
Indenture 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 404 only if the Note so
delivered to the Paying Agent or to an office or agency referred to in Section 902 of the Indenture
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 404, a portion of
a Note if the principal amount of such portion is U.S.$1,000 or an integral multiple of U.S.$1,000.
Provisions of the Indenture that apply to the purchase of all of a Note also apply to the purchase
of a portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this Section 404 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 Note by the Holder to the Paying Agent or to an office or
agency referred to in Section 902 of the Indenture in the manner required by this Section 404.
23
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 902 of the Indenture,
the Change in Control Purchase Notice contemplated by this Section 404(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 902 of the Indenture in accordance with Section
601 hereof.
The Paying Agent or the office or agency referred to in Section 902 of the Indenture 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 Notes may also not be accelerated pursuant to Section 402 hereof following an
Event of Default arising from a Change in Control Triggering Event 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 404;
provided
,
however
, that any such third party shall be subject to Section 907 of the
Indenture in respect of any amounts paid by such third party hereunder (for this purpose,
Section 907 of the Indenture 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 907 of the Indenture (as modified) or if the Company satisfies the third partys
obligations under such Section.
ARTICLE FIVE
ADDITIONAL COVENANTS
SECTION 501. RESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any Restricted Subsidiary or
any Person that is to become a Subsidiary as an Unrestricted Subsidiary, or the Company or
any Restricted Subsidiary may transfer any assets or properties to an Unrestricted
Subsidiary, if (i) prior to and immediately after such designation, no Default or Event of
Default shall have occurred and be continuing and (ii) such Subsidiary or Person, together
with all other Unrestricted Subsidiaries, shall not in the aggregate have Net Tangible
Assets greater than 15% of the Companys Consolidated Net Tangible Assets;
provided
,
however
, that for the purposes of this Section 501, (1) the Companys Consolidated Net
Tangible Assets shall also include the aggregate Net Tangible Assets of such Subsidiary or
Person and all other Unrestricted Subsidiaries and (2) Excluded Assets shall be excluded
from the calculation of Net Tangible Assets and Consolidated Net Tangible Assets.
(b) The Board of Directors of the Company may not designate any Unrestricted
Subsidiary as a Restricted Subsidiary unless immediately before and after giving effect to
such designation, no Default or Event of Default shall have occurred and be continuing.
24
(c) Nothing in this Section 501 shall restrict or limit the Company or any Restricted
Subsidiary from transferring any asset that is an Excluded Asset to any Unrestricted
Subsidiary or any Person that is to become an Unrestricted Subsidiary.
SECTION 502. LIMITATION ON SECURED DEBT.
The Company will not, and will not permit any of its Restricted Subsidiaries to, create,
assume, incur or guarantee any Secured Debt unless and for so long as the Company secures, or
causes such Restricted Subsidiary to secure, the Notes equally and ratably with (or prior to) such
Secured Debt. However, any of the Company or its Restricted Subsidiaries may incur Secured Debt
without securing the Notes if, immediately after incurring the Secured Debt, the aggregate
principal amount of all Secured Debt then outstanding plus the aggregate amount of the Attributable
Debt then outstanding pursuant to Sale and Leaseback Transactions would not exceed 15% of the
Companys Consolidated Net Tangible Assets. The aggregate amount of all Secured Debt in the
preceding sentence excludes Secured Debt which is secured equally and ratably with the Notes and
Secured Debt that is being repaid concurrently. Any Lien which is granted to secure the Notes
under this Section 502 shall be discharged at the same time as the discharge of the Lien securing
the Secured Debt that gave rise to the obligation to secure the Notes under this Section 502.
SECTION 503. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction, unless either (a) immediately thereafter, the sum of (1) the
Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction and all other
Sale and Leaseback Transactions entered into by the Company or a Restricted Subsidiary on or after
the Issue Date (or, in the case of a Restricted Subsidiary, the date on which it became a
Restricted Subsidiary, if on or after the Issue Date) and (2) the aggregate amount of all Secured
Debt, excluding Secured Debt which is secured equally and ratably with the Notes, would not exceed
15% of the Companys Consolidated Net Tangible Assets or (b) an amount, equal to the greater of the
net proceeds to the Company or a Restricted Subsidiary from such sale and the Attributable Debt to
be outstanding pursuant to such Sale and Leaseback Transaction, is used within 180 days to retire
Debt of the Company or a Restricted Subsidiary. However, Debt which is subordinate to the Notes or
which is owed to the Company or a Restricted Subsidiary may not be retired in satisfaction of
clause (b) above.
SECTION 504. LIMITATION ON RESTRICTED SUBSIDIARY DEBT.
The Company will not permit any Restricted Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist any Debt (other than Debt to the extent that the Notes are secured
equally and ratably with (or prior to) such Debt), unless (1) the obligations of the Company under
the Notes are guaranteed (which guarantee may be on an unsecured basis) by such Restricted
Subsidiary such that the claim of the Holders of
25
the Notes under such guarantee ranks prior to or
pari passu
with such Debt or (2) after giving
effect to the incurrence of such Debt and the application of the proceeds therefrom, the sum of
(without duplication) (x) the then outstanding aggregate principal amount of Debt (other than
Exempted Secured Debt) of all Restricted Subsidiaries, (y) the then outstanding aggregate principal
amount of Secured Debt of the Company (not on a Consolidated basis) and (z) Attributable Debt
relating to then outstanding Sale and Leaseback Transactions, would not exceed 15% of Consolidated
Net Tangible Assets;
provided
,
however
, that this restriction will not apply to, and there will be
excluded from any calculation hereunder, (A) Debt owing by a Restricted Subsidiary to the Company
or to another Restricted Subsidiary and (B) Debt secured by Permitted Liens;
provided
,
further
,
that this restriction will not prohibit the incurrence of Debt in connection with any extension,
renewal or replacement (including successive extensions, renewals or replacements), in whole or in
part, of any Debt of the Restricted Subsidiaries (provided that the principal amount of such Debt
immediately prior to such extension, renewal or replacement is not increased).
SECTION 505. SUBORDINATION ARRANGEMENTS.
At the time this Indenture is entered into, each of the Company, the Guarantors, the Trustee
and the Subordinated Note Trustee shall have entered into the Subordination Agreement.
SECTION 506. WAIVER OF CERTAIN COVENANTS.
Pursuant to Section 910 of the Indenture, the Company may omit in any particular instance to
comply with any covenant or condition in Sections 905 or 906 thereof and any covenant or condition
in Sections 501, 502, 503, 504 or 505 of this Supplemental Indenture if, before or after the time
for such compliance, the Holders of all of the Notes at the time Outstanding shall, by Holder
Direction, 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.
ARTICLE SIX
CHANGE IN CONTROL PROVISIONS
SECTION 601. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.
Upon receipt by the Company of the Change in Control Purchase Notice specified in Section
404(b) hereof, the Holder of the Note 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 Note. 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
26
Purchase Date (provided the conditions in Section 404(b) hereof have been satisfied) and (b)
the time of delivery of the Note to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 902 of the Indenture by the Holder thereof in the manner
required by Section 404(b) hereof.
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 Note 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
902 of the Indenture 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:
(a) the certificate number of the Note in respect of which such notice of withdrawal
is being submitted,
(b) the principal amount of the Note (which shall be U.S.$1,000 or an integral
multiple thereof) with respect to which such notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note (which shall be U.S.$1,000 or an
integral multiple thereof) that remains subject to the original Change in Control Purchase
Notice and that has been or will be delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders thereof any Notes with respect
to which a Change in Control Purchase Notice has been withdrawn in compliance with this
Supplemental Indenture.
SECTION 602. 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 903
of the Indenture) an amount of cash sufficient to pay the aggregate Change in Control Purchase
Price of all the Notes or portions thereof that are to be purchased as of the Change in Control
Purchase Date.
SECTION 603. REPAYMENT TO THE COMPANY.
As provided in the Notes, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest and dividends, if any, thereon (subject to the
provisions of Section 507 of the Indenture), 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 602 hereof exceeds the aggregate Change in Control Purchase
Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for
the Company
27
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 and dividends, if
any, thereon (subject to the provisions of Section 507 of the Indenture).
ARTICLE SEVEN
GUARANTEES
SECTION 701. GUARANTEES.
(a) Each Guarantor hereby jointly and severally and fully and unconditionally
guarantees (each, a Guarantee) due payment and performance to the Trustee, for and on
behalf of the Holders, forthwith after demand, of all the obligations of the Company under
this Supplemental Indenture or under the Notes to pay the principal of (and premium, if
any) and interest on the Notes 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 Supplemental
Indenture, the Notes and the performance of all other obligations to the Trustee (including
all amounts due to the Trustee under Section 507 of the Indenture) and the Holders of the
Notes which obligations arise under this Supplemental Indenture and the Notes, according to
the terms hereof and thereof, including any applicable grace periods (the Guaranteed
Obligations). Each Guarantee shall be an unsecured, unsubordinated obligation of the
applicable Guarantor ranking
pari passu
with other present and future unsecured,
unsubordinated obligations of such Guarantor. The Company hereby fully and unconditionally
guarantees the Guarantee of each Guarantor.
(b) Each Guarantor agrees that, without obtaining the consent of or giving notice to
such Guarantor, the Trustee may vary this Supplemental Indenture or the Indenture, as
provided herein and therein, grant extensions of time or other indulgences, take and give
up securities, grant releases and discharges and otherwise deal with the Company and other
parties as the Trustee may see fit and may apply all monies received from the Company or
others or from securities upon such part of the Companys liability as the Trustee may
think best without prejudice to or in any way limiting or lessening the liability of the
Guarantor under this Supplemental Indenture.
(c) Each Guarantee shall be a continuing guarantee of all the Guaranteed Obligations
and shall apply to any ultimate balance due or remaining unpaid to the Holders of the
Notes. No Guarantee shall be considered as wholly or partially satisfied by the payment or
liquidation at any time of any sum of money which may at any time be or become owing or due
or remain unpaid to the Holders of the Notes.
(d) No Guarantee shall be discharged or otherwise affected by any change in the name,
objects, businesses, assets, capital structure or constitution of the Company or any
Guarantor, or by any merger or amalgamation of the Company or any Guarantor with any Person
or Persons, except as otherwise provided in this
28
Supplemental Indenture or the applicable provisions of the Indenture. In the case of
the Company being amalgamated with another corporation, the Guarantees shall apply to the
liabilities of the resulting corporation, and the term Company shall include each such
resulting corporation.
(e) All monies, advances, renewals and credits in fact borrowed or obtained by the
Company under this Supplemental Indenture shall be deemed to form part of the liabilities
hereby guaranteed notwithstanding any limitation of status or of power of the Company or of
the directors or agents thereof or that the Company may not be a legal entity or any
irregularity, defect or informality in the borrowing or obtaining of such monies, advances,
renewals or credits.
(f) The obligations of each Guarantor hereunder are and shall be absolute and
unconditional and any moneys or amounts expressed to be owing or payable by each Guarantor
hereunder which may not be recoverable from each Guarantor on the basis of a guarantee or
as surety shall be recoverable from each Guarantor as a primary obligor and principal
debtor in respect thereof.
(g) The Trustee shall not be bound to exhaust its recourse against the Company or
other parties before being entitled to demand payment from or performance by any Guarantor
and enforce its rights under this Supplemental Indenture.
(h) Any account settled or stated by or between the Trustee and the Company in
relation to this Supplemental Indenture shall be accepted by the Guarantor as conclusive
evidence that the balance or amount thereby appearing due by the Company to the Trustee is
so due.
(i) Each Guarantor shall make payment to the Trustee of the amount of the liability of
such Guarantor forthwith after demand therefor is made in writing during the continuance of
any Event of Default and such demand shall be conclusively deemed to have been effectually
made when delivered in accordance with the notice provisions set forth herein and the
liability of such Guarantor shall bear interest from the date of such demand at the rate
borne by the Notes, such interest to be calculated monthly based on the number of days
elapsed and to be deemed payable on the first Business Day of a month in respect of the
immediately preceding month or upon demand, whichever is earlier.
(j) All amounts payable by any Guarantor under this Supplemental Indenture shall be
paid without set-off or counterclaim and without any deduction or withholding whatsoever
unless and to the extent that a Guarantor shall be prohibited by law from doing so, in
which case such Guarantor shall, only to the extent such a similar requirement is imposed
on the Company pursuant to this Supplemental Indenture, pay to the Trustee such additional
amount as shall be necessary to ensure that the Trustee receives the full amount it would
have received if no such deduction or withholding had been made.
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(k) Each Guarantor acknowledges that it has, by separate written instrument,
irrevocably designated and appointed CT Corporation System (CT Corporation) as its
authorized agent upon which process may be served in any suit or proceeding arising out of
or relating to the Notes, the Guarantees or this Supplemental Indenture that may be
instituted in any federal or state court in the State of New York or brought under federal
or state securities laws. Each Guarantor acknowledges that CT Corporation has accepted
such designation, submits to the non-exclusive jurisdiction of any such court in any such
suit or proceeding and acknowledges further that service of process upon CT Corporation (or
any successor) and written notice of said service to each Guarantor shall be deemed in
every respect effective service of process upon any Guarantor in any such suit or
proceeding. Each Guarantor 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 (or any successor) in full
force and effect so long as any of the Notes shall be outstanding. In addition, to the
extent that any Guarantor 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, it hereby irrevocably waives such immunity in respect of its obligations
under the above-referenced documents, to the extent permitted by law.
SECTION 702. RELEASE OF GUARANTORS.
(a) In addition to the release provisions set forth in the Indenture, subject to
Section 702(d), a Guarantor shall be released and relieved from all of its obligations
under this Article Seven, and such Guarantors Guarantee shall be terminated and be of no
further force or effect, upon the request of the Company (without the consent of the
Trustee) if, immediately after giving effect to such release and termination (and, if
applicable, any transaction in connection therewith, including any other concurrent
release, termination, repayment or discharge of any other guarantee or other Debt of such
Guarantor), the Company would be in compliance with Section 504 hereof, including in the
event of a sale or other disposition as a result of which such Guarantor would cease to be
a Subsidiary.
(b) In order to effect the release and termination provided for in Section 702(a), the
Company shall furnish to the Trustee an Officers Certificate stating that, immediately
after giving effect to such release and termination (as well as any concurrent release,
termination, repayment or discharge of any other guarantee or other Debt of such
Guarantor), the Company will be in compliance with Section 504 hereof. In the event that
the release and termination is in connection with a sale or other disposition as a result
of which a Guarantor would cease to be a Subsidiary,
pro forma
effect shall be given to
such disposition (including the application of any proceeds therefrom) in determining the
Companys compliance with Section 504 and, accordingly, the amount of Debt
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subject to the Guarantee of such Guarantor and any other Debt of such Guarantor shall
be excluded from any calculation thereunder. Notwithstanding any provision to the contrary
in the Indenture or this Supplemental Indenture, no opinion, report or certificate, other
than the Officers Certificate provided for in this Section 702(b), need be furnished to
the Trustee for such release and termination. After its receipt of the aforementioned
Officers Certificate, the Trustee shall execute any documents reasonably requested by
either the Company or the applicable Guarantor in order to evidence the release of such
Guarantor from its obligations under its Guarantee under this Article Seven.
(c) No supplemental indenture, amendment or waiver shall, without the consent of the
Holder of each Outstanding Note, release a Guarantor from any of its obligations under
Section 701, other than in accordance with the provisions of this Section 702 or the other
release provisions set forth in the Indenture, or amend or modify the release provisions of
this Section 702.
(d) Notwithstanding the release provisions of Section 702(a), no Guarantor shall be
released from its obligations under this Article Seven and its Guarantee will not be
terminated if, immediately after such release and termination (and, if applicable, after
giving effect to any transaction to occur concurrently therewith), such Guarantor remains a
co-obligor with or a guarantor for, as applicable, the obligations of the Company under any
Existing Note.
SECTION 703. AMALGAMATION, CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.
(a) Unless a Guarantor has been released, or in connection with such transaction will
be released, from its obligations under its Guarantee in accordance with the provisions of
Section 702 hereof or any other release provision set forth in the Indenture, such
Guarantor 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:
(i) immediately after giving effect to such transaction (and treating any Debt
which becomes an obligation of the Guarantor or a Subsidiary of the Guarantor 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;
(ii) either (x) the Guarantor shall be the continuing Person or (y) the Person
(if other than the Guarantor) formed by such amalgamation or consolidation or into
which the Guarantor is merged or the Person which acquires by conveyance, transfer,
lease or other disposition the properties and assets of the Guarantor substantially
as an entirety (the Successor Guarantor) shall, unless the Successor Guarantor is
the Company, (A) be
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a corporation, company, partnership or trust organized and validly existing
under the federal laws of Canada or any Province thereof or the laws of the United
States of America or any State thereof or the District of Columbia and (B)
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
Guarantor under its Guarantee (
provided, however,
that the Successor Guarantor
shall not be required to execute and deliver such a supplemental indenture in the
event of an amalgamation of the Guarantor with one or more other Persons, in which
the amalgamation is governed by the laws of Canada or any province thereof, the
Successor Guarantor and the Guarantor are, immediately prior to such amalgamation,
organized and existing under the laws of Canada or any province thereof and upon
the effectiveness of such amalgamation, the Successor Guarantor shall have become
or shall continue to be (as the case may be), by operation of law, liable for the
observance of all obligations of the Guarantor under its Guarantee); and
(iii) the Guarantor, the Company or the Successor Guarantor, as applicable,
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 Section 703(a) and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
(b) Upon any amalgamation, consolidation or merger, or any conveyance, transfer, lease
or other disposition of the properties and assets of a Guarantor substantially as an
entirety in accordance with Section 703(a), the Successor Guarantor shall succeed to, and
be substituted for, and may exercise every right and power of, such Guarantor under this
Supplemental Indenture and the Indenture with the same effect as if such Successor
Guarantor had been named as such Guarantor herein; and thereafter, except in the case of a
lease, such Guarantor shall be released and relieved from all of its obligations under this
Article Seven, and such Guarantors Guarantee shall be terminated and be of no further
force or effect.
SECTION 704. PAYMENT OF ADDITIONAL AMOUNTS.
All payments made by a Guarantor under or with respect to the Notes or its Guarantee will be
made free and clear of and without withholding or deduction for or on account of any present or
future Taxes, unless such Guarantor is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If a Guarantor 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 Notes or its
Guarantee, such Guarantor will pay as interest such Additional Amounts as may be necessary so that
the net amount received by each Holder in respect of a Beneficial Owner (including Additional
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Amounts) after such withholding or deduction will not be less than the amount the Holder would
have received in respect of such Beneficial Owner 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 in
respect of a Beneficial Owner (each, an Excluded Holder for purposes of this Section 704) (i)
with which the Company does not deal at arms length (within the meaning of the Income Tax Act
(Canada)) at the time of making such payment, (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 Notes or the receipt of payments thereunder, (iii) which is subject to such
Taxes by reason of its failure to comply with any certification, identification, documentation or
other reporting requirements if compliance is required by law, regulation, administrative practice
or an applicable treaty as a pre-condition to exemption from, or a reduction in the rate of
deduction or withholding of, such Taxes, (iv) if the Notes are presented for payment more than 15
days after the date on which such payment or such Notes became due and payable or the date on which
payment thereof is duly provided for, whichever is later (except to the extent that the Holder
would have been entitled to such Additional Amounts had the Notes been presented on the last day of
such 15-day period) or (v) to the extent that such withholding is imposed on a payment to a Holder
or Beneficial Owner 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. Such Guarantor 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, such Guarantor will furnish, as soon as reasonably
practicable, to such Holder certified copies of tax receipts evidencing such payment by such
Guarantor. Such Guarantor will indemnify and hold harmless each Holder in respect of a Beneficial
Owner (other than an Excluded Holder) and, upon written request of any Holder (other than an
Excluded Holder) reimburse such Holder for the amount of (i) any such Taxes so levied or imposed
and paid by such Holder as a result of any failure of such Guarantor to withhold, deduct or remit
to the relevant tax authority, on a timely basis, the full amounts required under applicable law;
and (ii) any such Taxes so levied or imposed with respect to any reimbursement under the foregoing
clause (i), so that the net amount received by such Holder in respect of a Beneficial Owner after
such reimbursement would not be less than the net amount such Holder would have received in respect
of such Beneficial Owner if such Taxes on such reimbursement had not been imposed.
At least 30 days prior to each date on which any payment under or with respect to the
Guarantee of a Guarantor is due and payable, if such Guarantor will be obligated to pay Additional
Amounts with respect to such payment, such Guarantor will deliver to the Trustee an Officers
Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so
payable and will set forth such other information necessary to enable the Trustee, on behalf of
such Guarantor, to pay such Additional Amounts to Holders on the payment date.
The obligations of the Guarantors under this Section 704 shall survive the discharge and
termination of this Supplemental Indenture and the payment of all amounts under or with respect to
the Guarantees.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed all as of the day and year first above written.
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ROGERS COMMUNICATIONS INC.,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President, Finance and Chief Financial Officer
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ROGERS WIRELESS PARTNERSHIP,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President
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ROGERS CABLE COMMUNICATIONS INC.,
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By
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/s/ M. Lorraine Daly
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Name:
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M. Lorraine Daly
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Title:
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Vice President, Treasurer
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By
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/s/ William W. Linton
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Name:
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William W. Linton
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Title:
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Senior Vice President
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THE BANK OF NEW YORK MELLON,
as Trustee
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By
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/s/ Catherine F. Donohue
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Name:
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Catherine F. Donohue
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Title:
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Vice President
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ANNEX A:
FORM OF SUBORDINATION AGREEMENT
This Agreement made as of [
], 2008 between Rogers Communications Inc. (the Company), Rogers
Wireless Partnership (RWP), Rogers Cable Communications Inc. (RCCI and, together with the
Company and RWP, the Obligors), The Bank of New York Mellon (f/k/a JPMorgan Chase Bank, N.A. and
subsequently f/k/a The Bank of New York), as trustee (the Trustee) under the Indenture (as
defined below) and The Bank of New York Mellon, as trustee (the Senior Debt Trustee) under an
indenture dated as of the date hereof among the Company, as issuer, and the Senior Debt Trustee, as
trustee, as supplemented by a supplemental indenture dated as of the date hereof, among the
Company, as issuer, RWP and RCCI, as guarantors, and the Senior Debt Trustee, as trustee for the
holders of 7.50% Senior Notes due 2038 of the Company issued as of the date hereof under such
supplemental indenture and outstanding from time to time and constituting Senior Indebtedness (such
holders being hereinafter called holders of Senior Indebtedness).
WITNESSES THAT WHEREAS:
A. Rogers Wireless Inc. (Wireless) and the Trustee entered into an indenture (the Original
Indenture) dated as of November 30, 2004 providing for the issuance of 8.00% Senior Subordinated
Notes due 2012 of Wireless (the Securities);
B. The Original Indenture was amended pursuant to the First Supplemental Indenture thereto,
dated as of August 1, 2005, among Wireless, RWP and the Trustee (the Original Indenture, as so
amended, the Indenture), and pursuant to such First Supplemental Indenture RWP became a
co-obligor with Wireless in respect of the Securities;
C. On July 1, 2007, Wireless amalgamated with the Company and, according to the terms of the
Indenture, the Company succeeded to the obligations of Wireless under the Indenture and,
immediately prior thereto, RCCI entered into a Guarantee Agreement as of the same date pursuant to
which it guaranteed the payment obligations of the Company under the Indenture; and
D. As set forth in Section 1208 of 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 and the Obligors hereby covenant with the Senior Debt Trustee, in its capacity as
trustee on behalf of the holders of Senior Indebtedness, 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 applicable Obligor.
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 an Obligor shall in no
circumstances be considered to be a payment on account of such Senior Indebtedness.
4. BINDING EFFECT AND INUREMENT.
This Agreement shall be binding upon the successors of the Company, RWP, RCCI 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. INDEMNITY.
The Obligors shall, jointly and severally, indemnify the Trustee and the Senior Debt Trustee
for any loss, liability or expense incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with its entry into this
Agreement.
8. 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.
9. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
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ROGERS COMMUNICATIONS INC.,
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By
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Name:
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Title:
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By
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Name:
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Title:
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ROGERS WIRELESS PARTNERSHIP,
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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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ROGERS CABLE COMMUNICATIONS INC.,
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By
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Name:
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Title:
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By
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Name:
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Title:
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THE BANK OF NEW YORK MELLON,
as Trustee
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By
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Name:
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Title:
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THE BANK OF NEW YORK MELLON,
as Senior Debt Trustee
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By
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Name:
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Title:
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